Basic Jurisdictional Principles
A Theological Inventory of American Jurisprudence
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  Article III § 2 Clause 1 (Injunctions)  
 
 
"[I]n my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests of the nation may justify and permit." 1
 
 

Article III § 2 clause 1 (cont’d):

(2)injunctions:

The word assault derives from the common law, i.e., from "Law". It is defined as "Any willful attempt or threat to inflict injury upon the person of another, when coupled with an apparent present ability so to do, and any intentional display of force such as would give the victim reason to fear or expect immediate bodily harm". 2 This word is often connected in indictments with the word, battery. For example, "The State of XMinus hereby accuses Joe Jetstone of assault and battery". But an assault is in fact a different crime from battery. "An assault may be committed without actually touching, or striking, or doing bodily harm, to the person of another.". 3 But battery is "the unlawful application of force to the person of another". 4 "The actual offer to use force to the injury of another person is assault; the use of it is battery". 5 So the difference between assault and battery is essentially the same as the difference between a threat and the carrying through of a threat. Both the threat and the execution of the threat are crimes under the common law. Likewise, they are also obviously violations of the bloodshed mandate. Because threats can radically change the behaviors of those on the receiving end of the threat, even threats that are not followed by battery are still bloodshed. So if Joe Jetstone takes his healthy, 280-pound frame to the local park and screams threats of bodily injury at old ladies, the investigation holds that the local jural society should take him into custody, and the common law holds the same, even if he never touched, stabbed, poked, shot, or in any other way physically harmed those ladies directly. The investigation, the common law, and most reasonable people agree that assault – such threats – must be curbed.

In contrast to the common law’s concept of threat, which entails imminent danger, and which is remedied by retribution or restitution taken against the perpetrator, equity offers the injunction as a remedy against perceived threat. But unlike the common law, which is fairly rigorous, equity courts practically leave themselves wide open to create fiat remedies against any perceived threat. The potential for good is there. But the potential for abuse of injunctions is huge.

An injunction is an "equitable remedy issued or granted by a court at the suit of a party complainant, directed to a party defendant in the action, . . .  forbidding the latter to do some act, . . .  which he is threatening or attempting to commit, or restraining him in the continuance thereof, such act being unjust and inequitable, injurious to the plaintiff, and not such as can be adequately redressed by an action at law.". 6 Example: If Joe Jetstone’s warehouse full of poisonous gases starts leaking, or seems to start leaking, people in the neighborhood might file for an injunction to be issued by a local equity court. If the poisonous gas threat is not obvious, a traditional "Law" court might not find sufficient grounds to do anything against Joe’s business. Besides, law courts have been traditionally limited to remedies of monetary damages in civil suits. — "A party suing [(for restitution in what the investigation calls a subtle delict)] in a law court was limited to a recovery of money as compensation for injury or damage. By contrast, one who sued in an equity court could choose from an array of coercive remedies, including injunctions to require or prohibit conduct, to require the specific performance of a contract, or to order the division of jointly owned property. These and other equitable remedies provided a flexibility lacking in the law courts.". 7 — So in law, the damage (like a tort) must have already happened, in which case one might sue for monetary damages if the damage was a subtle delict; or the damage must have been imminent and obvious – an obvious threat – which would be a gross delict according to the investigation, and a crime at common law. So a law court doesn’t offer much protection to the neighborhood against Joe’s gas factory. People in the neighborhood suspect that Joe’s gas is leaking into the neighborhood because they see birds dropping dead and stray cats getting sick. There aren’t any dead, damaged, or injured people yet, but they’re afraid. They give up on the law court because they don’t think they can get relief there. They go to an equity court to get an injunction to shut Joe’s business down until it can be proven that it doesn’t leak. — On what grounds would the equity court issue the injunction? Is there bloodshed, or a threat of bloodshed? Is there a contract that’s being spurned?

There’s no obvious bloodshed, and there’s no contract, but there is certainly a threat, at least through possible negligence on Joe’s part, and at least in the minds of people who live in the neighborhood. Any reasonable jural court should be able to handle this situation constructively. — In the investigation, we found that the only globally prescribed human law is against bloodshed, and the obvious penalty for obvious bloodshed is retribution. We also found through further reflection that bloodshed must also include restitution as a remedy. We also found that retribution / restitution are inadequate remedies for some kinds of threats, and we were forced by reason to acknowledge that under certain dire circumstances, injunction is the remedy that fits the given breed of bloodshed. The common law failed to include injunction as a remedy, but equity did not have the same inadequacy. But the problem with equity was the potential for overuse of injunctions, rather than underuse. Since there is a serious and obvious threat of a deadly gas leak from Joe’s factory, according to the investigation, the situation is a form of bloodshed that demands an injunction.

When there is sufficient evidence to support a genuine suspicion that a colossal disaster is on the horizon, then a jural court should have whatever powers are necessary to circumvent the disaster. So when such massive property damage is imminent, injunctions are a lawful jural remedy, and not merely a remedy available in equity. A jural court, not an ecclesiastical court, should use an injunction to shut Joe’s business down until it’s proven safe. And since Joe’s causing the threat, Joe should pay for it. An injunction – as a lawful remedy to a bona fide threat, a remedy available in a jural court – would be a good way to resolve this kind of situation as long as the jural court stayed committed to doing justice, and free from being unduly influenced overtly or covertly by the interested parties. Apparently, law became too rigid to resolve this kind of issue. So this kind of issue shifted over to equity courts, legislatures, and regulatory agencies, all of which are more prone to bribery and back-channel deal-making than law courts ever were. Injunctions to stop imminent, colossal disasters, are more rightly law remedies than equity remedies. If equity courts were equivalent to ecclesiastical courts, then injunctions would have never belonged in equity because they do not derive from contracts.

If we try to find remedies to situations like these – Joe Jetstone’s leaky gas factory, and Ruben Stittleman’s nuclear suitcase bomb importing business 8 – within the context of our Biblical exegesis of the global Covenants, we’re left trying to make Scripture say something that we’re convinced is there in spirit, but is not there in letter. In clear words, in a face-value examination of the first eleven chapters of Genesis, injunctions are not there. They are not clear and obvious outgrowths of a reasonable understanding of the concept of bloodshed that appears in Genesis 9:6. Injunctions are therefore not clearly and obviously global. — From a reasoned reading of the first eleven chapters of Genesis, we discovered that all human beings alive in the 20th and 21st centuries should be under the personal jurisdiction of lawful jural societies. We discovered that the subject matter jurisdiction of jural societies is bloodshed. We found through a process of elimination that bloodshed encompasses what we called gross delicts. We found that gross delicts include threats, i.e., assault. We found that the remedy for gross delicts was retribution. We also found that bloodshed encompasses subtle delicts, which are delicts that are not so obvious, and are justifiably penalized with restitution, rather than retribution. Such subtle delicts are usually actions brought by individual citizens, rather than by a jural society. Situations like Joe Jetstone’s leaky gas factory are perfect examples of how we were correct in also including injunctions in the investigation’s understanding of bloodshed. — A face-value reading of Genesis 9:6 makes it obvious that the global covenant rightly has in personam jurisdiction over all people, and subject matter jurisdiction over gross delicts. Studying the local Covenants makes it obvious that it’s foolish to think that this global mandate against bloodshed doesn’t also include delicts that deserve restitution rather than retribution. But nowhere in Scripture is the need for injunctions against certain kinds of threats so clearly spelled out.

We never claimed, and we believe it’s foolish to claim, that Scripture supplies all the truths that human beings need to know. We claimed, and continue to claim, that Scripture supplies the basics of what we need to know. It gives us a framework within which to live our lives in a God-pleasing, God-glorifying manner. It’s clear from a reasoned reading of Scripture that there are four sets of laws, eternal, natural, divine, and positive. The jurisprudence that comes to us through the common law, equity, and social contract theory in general, relies heavily upon natural law. As long as we take divine law as our primary teacher, and natural law as our secondary teacher, it’s legitimate, lawful, and good for us to incorporate jurisprudential concepts from natural law. This is precisely what we’re doing here with regard to injunctions. Causes of lawful injunctions – from the investigation’s perspective – are gross delicts in that they are serious threats of bloodshed, and they are usually, but not necessarily, subtle delicts in that they are usually brought by citizens, and are therefore rightly called civil, rather than criminal. We conclude that the combination of divine law and natural law lead us to the conclusion that injunctions are a valid remedy to a special breed of bloodshed, where this special breed of bloodshed is characterized as a subtle threat of extremely severe damage to property rights. By putting this concept from natural law, injunctions, into a Biblical perspective, we see that it is rightly considered a jural remedy to an infraction against jural positive law. Because common law is prone to being more jural in nature, an injunction has never been a lawful function of equity jurisprudence when such equity operated under a secular social compact. If common law is akin to jural jurisprudence, then equity should be akin to ecclesiastical jurisprudence. We see from this how desperately American jurisprudence needs to be viewed from the perspective of divine law.

Because the potential for abuse of injunctions is huge, and because they have, indeed, been hugely abused, we should make these disclaimers as we draw these conclusions: In order to be valid as a remedy, any injunction under a secular social compact should be responding to a threat of more than a mere nuisance. It should probably threaten more than a minor tort. — In order to keep injunctions lawful, even as they are globally applicable, it’s critical to count the cost of executing them, as much as it’s essential to count the cost of executing retribution against gross delicts and restitution against subtle delicts. In the same way that execution of retribution against a gross delict across an international border may not be cost-efficient, due to the prospects of it thereby fomenting a war that might threaten the social compact and the society as a whole, it is probably not cost-effective to execute an injunction unless the threat is extremely real and extremely serious. This is because of the long-time habit of American governments (i)interfering in the economy, thereby creating market distortions, (ii)having people beg for redress of the market distortion, (iii)poorly analyzing the cause of the market distortion, and (iv)creating a remedy that is as bad or worse than the original problem. When injunctions are used in this manner under the jurisdiction of a secular social compact, they are used wrongly. In the case of Joe Jetstone’s gas factory, when the jural court mandates execution of an injunction against Joe’s gas factory, Joe suffers a financial setback, and the neighborhood is made safe. One of the big advantages of using injunctions in this manner is that doing so tends to eliminate standing injunctions created by legislatures that are presumably agents of secular social compacts. If the potential bloodshed is not both real and subtle, then secular social compacts have no lawful power or authority to establish standing injunctions that interfere with lawful contracts. In other words, secular social compacts are not lawful when they create agencies like the Occupational Safety and Health Administration (OSHA), where such agencies in essence establish injunctions against a multitude of possible activities that are not threats of bloodshed, even though they may entail assumption of risk by individuals. Such potentially hazardous activities are best addressed locally, by local contracts, not by a long arm reaching down from Washington, D.C.

In a society dedicated to the compact theory of government, a society that honors the consent of all who have capacity, and who are innocent of bloodshed, would the use of injunctions always be this limited? — No! Under a secular social compact, injunctions are lawful only in extreme cases, as a remedy rendered by the jural society. But under a religious social compact, injunctions are lawful remedies under the ecclesiastical compact, as long as parties to the ecclesiastical compact give prior consent. For example, an injunction to stop a teacher from teaching certain things is not lawful under a secular social compact. 9 But such an injunction is certainly lawful under a religious social compact, as long as the teacher is party.

Footnotes

1George Washington on Religious Liberty and Mutual Understanding, p. 11, letter to the Religious Society Called Quakers (Oct. 1789). This quote appears in Justice O’Connor’s dissenting opinion in Boerne v. Flores, URL: https://www.law.cornell.edu/​supct/​html/​95-2074.ZD.html.

2Black’s 5th, p. 105.

3Black’s 5th, p. 105.

4Black’s 5th, p. 139.

5Black’s 5th, p. 139.

6Black’s 5th, p. 705.

7The Oxford Companion to the Supreme Court of the United States, p. 430, "Injunctions and Equitable Remedies", by James B. Stoneking.

8See Article I § 8 cl 3, URL: ./0_2_1_2_Art_I_Sec_8_Cl_3.htm​#A1.

9It’s important to note in passing that there is no way that a secular social compact can lawfully sponsor a school. It can therefore never have primary jurisdiction over a school unless there’s bloodshed on the school grounds. So all the public schools in this country are unlawful, because of the way they are funded and operated.

 
 
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