St. Thomas Less?

July 20, 2005 § 4 Comments

In a lengthy comment thread over at Open Book we discussed (among other things) the Judge Roberts quote below, in which he says he had no personal reason that would prevent him from enforcing Roe vs. Wade as an appellate judge.

But since Roe vs. Wade violates the natural law, anyone and everyone should have a problem personally enforcing it, in any role whatsoever, including and especially in the role of appellate judge.

Many who are knowledgeable of the legal system seem to assume that in saying so, I have misunderstood how our legal system is supposed to work. I don’t mind the assumption, because upon encountering a clown named Zippy on the Internet it is natural to assume ignorance. But that isn’t the case here.

The blind assertion continues to be repeated that a judge has a duty – that is, he morally must – enforce the positive law “no matter what he personally thinks.” The “personally” is tossed in there, as near as I can tell, to provide the judge with an excuse to avoid making judgements about conflict between the natural law and positive law.

It is worth noting that there is no statute and no Constitutional provision – that is, no positive law – which requires legal positivism; and that in the Anglo-American legal tradition, positivism is a relatively new novelty. Blackstone says:

“This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.”

The idea seems to be that in the present environment, where the mainstream choices are between legal positivism and the postmodern “emanations and penumbras” of the modern Court, Catholic lawyers and judges are called to be functionaries, not heroes. They are called to formally cooperate with evil: to have “no personal problem” enforcing Roe vs. Wade in certain functionary roles in order to maintain an (at least locally) consistent legal positivism and a political viability for higher office.

But nobody is ever called to formally cooperate with evil. It seems to me that sometimes the line that marks the minimum moral requirements is the same line that marks personal heroism. And it doesn’t surprise me in the least that choosing the profession of which St. Thomas More is the patron saint would often require at least some degree of personal heroism just to do the minimally right thing.

Saying that you would enforce Roe vs. Wade in certain functionary roles because doing so would be the right thing to do seems to me to be formal cooperation with evil. There are times when it is licit for a Catholic to cooperate with evil materially; but it is never, ever licit under any circumstances to cooperate with evil formally.

Is the bottom line that it is impossible to support Judge Roberts based on that single quote? Of course not. But it is wrong to support what he said as correct, because it is wrong to say that evil is good.

UPDATE: The Open Book thread continues here.


§ 4 Responses to St. Thomas Less?

  • Patrick says:

    This saying is difficult; who can accept it?I mean, my knee-jerk response was to oppose what you said, because of the conclusion that it would make it practically impossible to impede the judicial enshrinement of abortion. No person who refused to cooperate with evil in this way would have a chance at any higher court, in this day and age.And yet, that only reminds me that we can’t decide morality on the consequences, and that we usually fail to see that moral compromises lead to worse cataclysms after all.I want justices on the SCOTUS who are pro-life, but I oughtn’t support it <>at the cost of cooperating formally with evil<>. Of course, have you really proven formal cooperation on the part of Mr. Roberts, not to mention those who support his confirmation?

  • zippy says:

    <>Of course, have you really proven formal cooperation on the part of Mr. Roberts, not to mention those who support his confirmation?<>Well, formal cooperation can never be truly <>proven<> externally to the moral agent. And I see no necessary moral problem with supporting Roberts’ nomination for the SCOTUS. What I <>do<> see a problem with is him saying that nothing in his personal beliefs would prevent him from enforcing <>Roe<> as an appellate judge (though the functional role is irrelevant), and with others attempting to make the case that there was nothing wrong about him saying that because of the particular functional role. It is as if the positive law called for spraying a crowd indiscriminately with bullets in the event of a protest, and a policeman said that nothing in his personal beliefs would prevent him from carrying out that law. And then his Catholic supporters jumped up and said that he was right, because policemen are expected to enforce the positive law and not ignore it because of their own personal opinions on the natural law.

  • c matt says:

    I don’t know about Roberts being St. Thomas Less, but Dr. Frist has suddenly become Dr. Frankentsein (or should it be Dr. Fristentstein?).

  • Zippy says:

    Well, I am not saying that Judge Roberts is a “Saint Thomas Less”. I know almost nothing about the man. It is more of a pun on the defense of a positivist legal system wherein whenever someone says “Judge Roberts’ particular statement is morally indefensible” it is met with the reply “oh, you just don’t get the role of an appellate judge and how the legal system is supposed to work”. The irony is particularly acute given that St. Thomas More is the patron saint of the legal profession.Judge Roberts’ statement is morally indefensible, period. No ifs, ands, or buts. None. And anyone who would defend it on the basis of roles within the legal system needs to reevaluate his assumptions.I’ve been completely away from the Internet for nearly a week so I’ll have to catch up on Fristenstein and all the rest now that I’m back.

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