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LD 2012 Domestic Violence
I deliberately waited two weeks to update my postings to allow time to see how students would handle the new LD domestic violence resolution. It has been very interesting. Certainly various cases supporting the social contract are making their debut. But one case I did not see in the last few weeks, is an idea I began evolving during the Christmas break. I call it:
The Exorcist AFF
I remember years ago when the movie, The Exorcist played in theaters, it was the scariest movie ever made up until that time. The story and film techniques assaulted the audience with subliminal imagery and dark psychological themes, depicting a world so shocking, most people had never experienced it before. In the film, a young girl, Regan McNeil, becomes possessed by a demon and her caregivers, desperate to deal with her increasingly bizarre behavior, resort to confining her to her bedroom while they consult with experts on how to release her from her torment. I recall very vividly, the many scenes of running up the stairs and down the hall to her bedroom and the sense of fear the moment the door is opened because the viewer has no idea what manner of shock is about to be witnessed. And indeed, each time that door is opened the manifestations become increasingly shocking. Outside of Regan's door, the world was normal and orderly, in spite of the frustration and fear of the caregivers, but inside her room, the world was a very different place where even the laws of physics were, at times suspended.
The door to Regan's room becomes a barrier which separates two worlds and each of these worlds operates under a different set of rules or laws. When the door is closed, both worlds coexist, separately, but when the door is opened, the two worlds clash. This concept, very much describes the door which separates society from domestic violence. Outside the door, society is orderly and familiar, on the other side of the door it is brutal and unfamiliar, even abhorrent. The outside world, is one we all experience in our daily lives, the inside world is probably one most of you have not experienced but even so, perhaps you can imagine it. Walk through the door of a house with repeated domestic violence, close the door and enter a world where civil law no longer applies.
The "World" In Which We Live
In the United States and in many countries, the powers of the state are vastly restricted inside the domicile. Behaviors and conditions which by necessity are restricted in public are unregulated in privacy. In the U.S. we have purposely limited the powers of the state on our properties and at the front doors of our homes, because we want to check potential abuse by the state. For example we require court orders to limit search and seizure actions by the state and apart from court orders there are very few justifiable reasons state agents can enter a home uninvited. Now my purpose in pointing this out is not to invite a discussion of state's rights with respect to private property but merely to drive home the concept that we choose to live in society and abide by a so-called social contract because it serves our interests, but we prefer to live in a world where we can fully enjoy our natural-rights without restrictions and interference from society. So we have established private domains within the public sphere and within the private domains we decide the universal rules which apply to the private realm. So if the rules and law which govern our private lives are mostly self-determined, then what is universal and what is moral in the world which exists behind the closed door? Outside, we are under social constraints, inside, we are in our natural state. In short, we are in the state of nature.
The Door to Regan's Room
While we can agree based on natural law there is a door between public and private worlds we may not understand the extents of those worlds. In the U.S. Constitution certain rights are guaranteed for the protection of privacy by the case of Griswold v. Connecticut (1965) established a legal precedent.
"We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred...The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men...Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family -- a relation as old and as fundamental as our entire civilization -- surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government, though not specifically mentioned in the Constitution."So we see, the U.S. Court acknowledges the private realm is a place which predates the social contract and it is a world that should be left unhindered as much as possible by the government. But we must also see, the world in which people lived prior to the establishment of government was the world John Locke called the state of nature and so the door to Regan's room can be seen as a metaphor for the separation of the state of nature and its natural laws from the social world and its restricted freedoms.
Morality in the State of Nature
In a essay entitled, "Locke on Punishment and the Death Penalty", (Philosophy, Vol 68, No. 264, Apr 1993) Brian Calvert observes:
"In Locke's view, the political power which gives the state the right to impose the death penalty stems from the natural rights which all people possess in the state of nature. In that state the one who transgresses against the laws of nature departs from the rule of reason and puts himself into a state of war with other members of society. Consequently those other members have a right to protect themselves as well as others against the transgressor, and this right of self-protection includes the right to kill the transgressor. In political society, the right to punish a criminal is handed over to the state, and it now becomes the purpose of the state to function as the protector of the rights of its inhabitants. The justifications which govern the state's punitive activities derive from the powers individuals possess in the natural condition, and it is in the sections devoted to a description of those powers in the natural state that we get our fullest description of the justifications for imposing capital punishment, ..."
The following comparative observations on the state of nature are taken from the Witherspoon Institute (see http://www.nlnrac.org/earlymodern/locke)
Thomas Hobbes book Leviathan (1651) captures his main ideas around morality being the same as the law. In other words our actions are governed by the law and not our conscience. This very notion is depicted in his version of the ‘state of nature’ where no laws exist. Life in the ‘state of nature’ in Hobbes words is “solitary, poor, nasty, brutish and short’ and also that man is in continual fear, and in danger of a violent death .” Once we begin to examine life without rules and regulations we can really begin to question and reﬂect on our own morality. It could be argued that even if we did want to take the moral high ground in the state of nature we could still be forced into a corner by others who are reckless, making you as selﬁsh as the next man. This would suggest that Hobbes supports the egoist theory, which adopts the view point that people are self motivated and only act for there own self interests. Both of these descriptions are how Hobbes describes people in the state of nature’.Hobbes' description of the state of nature is one that is barbaric and undesirable but in reality it is the place where people live outside of the bounds imposed by the social contract. The following from Kevin J. Browne: (http://www2.econ.iastate.edu/classes/econ362/hallam/Readings/SocialContractHelium.pdf)
"Hobbes theory was challenged by John Locke who felt that our morality is not based on law and government, or the social contract. In fact Locke envisaged that the state of nature’ would be a much more inhabitable place. His reason for this is that we have natural laws which are also referred to as god-given laws. Locke recognises that there would still be the need for some sort of governing body, but in contrast to Hobbes theory, individuals are morally equal and would personally be able to enforce punishments for bad behaviour. One criticism here would be that individuals could have the tendency to be biased. Another obvious criticism is that Locke’s state of nature’ is dependent on a lot of religious connotations. However, you have to take in to consideration that it was written in a period when this would be a lot more relevant."
Private Life is Non-Political
FROM THE BOOK "Domestic Violence and the Politics of Privacy", Kristin Kelly, Cornell University Press, 2003:
In what was certainly a radical notion for his time, Locke indicates that as long as procreation and the rearing of children are secured, a man and a woman should be free to organize their association through contracts of their own making (II, 83). This echoes the position that he develops on the importance of individual autonomy in matters of conscience in A Third Letter for Toleration. There he forcefully argues for the preservation of a realm where individuals are free to organize their affairs according to their own rational assessment of what is best for them:"
In private domestic affairs, in the management of estates, in the conservation of bodily health, every man may consider what suits his own conveniency, and follow what course he likes best...Let any man pull down, or build, or make whatsoever expense he please, nobody murmurs, nobody controles him; he has his liberty"Third, Locke's depiction of the domestic sphere as nonpolitical bolsters the separation between the individual and the state by providing men with a mechanism for transferring and exchanging their property that does not necessitate government intervention. Although Locke argues that men agreed to leave the state of nature so they could set up a central power, "for the Regulating and Preserving of Property" (II, 3), he nevertheless insists that this in no way implies governmental authority either to take a man's property or to tell him what to do with it. Such prerogatives would defeat the very end for which the government is formed: "For a man's property is not at secure, though there be good and equitable Laws to set the bounds of it, between him and his fellow subjects, if he commands those subjects have power to take from any private man, what part he pleases of his property, and use and dispose of it as he thinks good" (II, 139). The importance of the nonpolitcal domestic sphere to the preservation of the individuals right to "use and dispose" of his property "as he thinks good" arises primarily from the family's role in providing a natural mechanism for inheritance. In his discussion of paternal power, Locke states that as long as a father fulfills his familial obligations, he may dispose of his own Possessions as he pleases..." (II, 65). The right of a man to dispose of his own property before and after his death ensures that he will not be subjected to a situation where the state controls that which by natural right is his (II, 138).
Who Decides Right and Wrong?
Kristin Kelly continues:
"Locke and Domestic Violence
Locke's discussion of the state of nature draws a picture of human relations that is paradoxically both peaceful and conflictual. As we have seen, his recognition of the inevitability of conflict between individuals led him (pg. 24) to suggest that despite "all the privileges of the state of nature" (II, 127), humans would rationally seek to relinquish their God-given powers to interpret the laws of nature to a government that would then be empowered through their concern to resolve disputes between individuals. As a result, Locke states:"The community comes to be Umpire, by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules, decides all the differences that may happen between any members of that society, concerning any matter of right, and punishes those offences, which any member hath committed against the society, with such penalties as the Law has established. (II, 87)"
However, it is important to note that Locke limits the government's role as "umpire" to resolving disputes between individuals who are in "Political Society together." As discussed previously, Locke went to great lengths to demonstrate that domestic relations are not political in nature. Furthermore, as we have seen, Locke's efforts to preserve a space where individuals pursue their own interests free of government control depend heavily on the preservation of the family as nonpolitical, and therefore private realm.
Regan's Room is The State of Nature
So I submit that every person and family unit that maintains a private life, resides in the state of nature. Normally it is not one that is "nasty and brutal" but is a place where natural law dominates behaviors apart from the restrictive freedoms in the outside, socio-political world. But for some, it is a nasty and shocking place, very similar to the imagery painted by Hobbes. It is this world in which the victims of domestic violence live, and it is the laws of nature which frame their morality.