Judgeophrenia or Schizojudiciary?

July 14, 2005 § 7 Comments

In arguing against the natural law trumping positive law, as part of the ongoing right-liberal blogosphere apologia for presumptive pro-choice supreme court nominee Alberto Gonzales, Rob Vischer at Mirror of Justice says the following:

I’m fairly confident that Gonzales was not speaking of mere “technical points of law” (whatever those are), but of a judge’s responsibility to uphold settled legal principles, regardless of how distasteful he finds them.

It seems to me that there is an equivocation going on here. The presumption is that a judge is perfectly capable of making a dispassionate, objective judgement when it comes to positive law (“uphold[ing] settled legal principles”) but that this same judge in this same moment is incapable of objectively making a judgement about natural law, since the natural law is reduced to something the judge finds “distasteful”.

So in the modern legal order we are presumed to have schizophrenic judges who on the one hand are perfectly capable of making a dispassionate, objective judgement; but on the other hand and in the same moment are incapable of making a dispassionate, objective judgement.

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§ 7 Responses to Judgeophrenia or Schizojudiciary?

  • William Luse says:

    The conversation continues on that blog and < HREF="http://www.wiredcatholic.com/wc/PermUrl/89.htm" REL="nofollow">this one<> as well, the latter finding my sympathy.I think in this segment -“since the natural law is reduced to something the judge finds “distasteful” – you misread a bit. I think they’re saying that a Gonzalez might feel obligated to uphold an immoral law, e.g. Roe v. Wade, even though he finds doing so distasteful. But I get the sense that the poster at mirror for justice is actually extolling the need for Catholic judges to act in just this way. Which leads me to my question for you: Can a Catholic judge in good conscience uphold a “settled” (and positivist)ruling that in fact perpetuates a grave moral evil like abortion?

  • zippy says:

    <>I think they’re saying that a Gonzalez might feel obligated to uphold an immoral law, e.g. Roe v. Wade, even though he finds doing so distasteful.<>The notion seems to be that his understanding of what the positive law requires is objective, but his understanding of natural law is merely taste. So on the one hand he can be counted on to reason dispassionately and well, and on the other hand, at the same time and in the same moment, he cannot.<>Can a Catholic judge in good conscience uphold a “settled” (and positivist)ruling that in fact perpetuates a grave moral evil like abortion?<>Well, I object to limiting it to <>Catholic<> judges, because the natural law applies to all people of all faiths and knowledge of it is independent of religious confession.That said I’ll try to answer the question in two parts.A <>positivist<> ruling is (strictly speaking) meaningless, although it may well have the appearance of meaning. Usually when someone says something nonsensical to me I try to interpret it in a way that presumes his good will and rational intent as much as possible, and I recommend that approach in jurisprudence as well.An <>evil<> ruling that is contrary to natural law should be treated as no ruling at all. That is easier said than done, and often requires great bravery and sacrifice, but it is the right course. It is tricky to do for the additional reason that whatever action is taken ought not be construed as rejection of the rightful authority of the legislature or judges <>per se<>: it is only a rejection of the right of the legislature or judges to command something evil. We’d better be very, very sure of ourselves before taking that step, then.

  • William Luse says:

    But in the case of Roe v. Wade, we are sure of ourselves, are we not? (I ask because of a similar dispute I’m involved in in another arena, which I may reveal to you in due course.) I was wondering, for example, what you thought of < HREF="http://www.firstthings.com/ftissues/ft0505/opinion/miller.html" REL="nofollow">this article<>.

  • Marion says:

    This is off-topic, but I’m curious: prior to the Supremes 1973 decision to create Roe out of, essentially, whole cloth, I wonder just how much angst and breast-beating took place among the justices in the majority about “a judge’s responsibility to uphold settled legal principles, regardless of how distasteful he finds them”. Why do we Catholics – who have right on our side, after all – do this, then? I can’t imagine Justice Ruth Bader Ginsberg lying awake at night worried that she might have to one day hold her nose and vote to let stand some state’s imperviously-crafted parental notification bill. I think she would find a way – whatever it took – around ever voting to do that. Isn’t that what these Supreme Court appointment battles are all about . . . getting people into the Court who can be counted upon not only to vote your way (that’s the easy part) but also (the hard part) to have the guts and the brains to figure out a way to make the decision stick legally. . . ?

  • zippy says:

    <>But in the case of Roe v. Wade, we are sure of ourselves, are we not?<>We are sure that there is no right to abortion, and that men of good will everywhere and in every station have an obligation to use their legitimate powers to oppose it when it is proposed. It is less clear what the legitimate powers of the Federal government are in that area; but clearly the Federal govrenment does not have the legitimate power to establish such a right, because nobody has that power. As a Lie it falls under the authority of the Sovereign of Lies.<>I was wondering, for example, what you thought of this article.<>That it is mostly right. The original finding of fact in the case was heinously biased, so the legal case was already over back in the late nineties barring a change of law. (That didn’t stop me from sending my contribution to Terri’s legal fund. I have a nice note handwritten by Mary Schindler to me, written on the very day Greer ordered the feeding tube removed. I am somewhat embarrassed that she took the time to write it on that very day. It is a privilege to live in the same world with such exemplary people as the Schindlers). The state laws of Florida (and many other states) are evil and should be defied by men of good will. Many or most of the legislators who passed Terri’s Law in Congress are lawyers and knew ahead of time that it was unlikely to make any difference (that is, it would not make any difference without a change in the unjust and irrational extra-statutory assumptions that underly our legal system).If pathetic is a place, the Republicans as pro-lifers are somewhere deep beneath it.

  • zippy says:

    Marion, your post is more on-topic than you seem to think. The great liberal experiment was a test to see whether we could stop all conflict by < HREF="http://jkalb.org/node/15" REL="nofollow">banishing substantive matters to the private realm and allowing a formal freedom and equality to rule in the public realm<>. That experiment < HREF="http://jkalb.org/node/24" REL="nofollow">has failed<>.

  • Marion says:

    Interesting! <>“As the liberal state develops, so does its opposition to traditional arrangements . . . (and its) attempts to destroy normal moral ties — those consisting in obligations . . . based on . . . family . . .and religion — and replace them with abstract bureaucratic arrangements thought more rational and just. A problem with such attempts is that bureaucracy and abstract altruism . . .(lack) the force of concrete obligations to family and friends. The attempt to rationalize social life therefore weakens men’s sense of mutual obligation, leading to soaring crime rates and welfare costs. . . . <>Since the liberal state cannot recognize the source of its ills without very seriously weakening its claim to legitimacy, they remain unremedied and grow worse<>.” <>Nailed it. Yes! Thank you, Zippy!

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