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.