Positivist Fatherhood

April 30, 2007 § 21 Comments

An adoptive father is a creation of the positive law. In order to adopt a child as one’s own, one has to go through a legal process.

However, this does not mean that the positive law is capable of imposing immoral obligations on the adoptive father: neither immoral obligations to commit some act, nor immoral obligations to omit some act.

The positive law does not create ex nihilo everything which falls under its proper jurisdiction. The positive law can appoint Jeb Bush governor; but once it has appointed Jeb Bush governor it cannot – literally cannot – require him as a moral matter to ignore the murders of some of those he rightfully governs by others of those whom he rightfully governs.

“Adoptive father” may well be a creation of the positive law in a sense. But it isn’t a creation of the positive law in the sense required for legal positivism to be true: for it to be true that it is impossible in principle and in all conceivable circumstances for the adoptive father to have a moral obligation, as the adoptive father delegated by the positive law, to violate some (other) requirement of some (other) positive law.

The same is true for judges, governors, or any other role. The positive law does not generate roles and responsibilities ex nihilo. It may allocate certain roles to certain people; but it cannot (literally cannot) constrain those people to act immorally either by omission or commission. It cannot constrain people in this way because the word “constrain” here means “impose a moral obligation”; and it is impossible to impose a moral obligation to do something immoral.

Literary Physics

April 27, 2007 § 11 Comments

If some court ruled that Saddam Hussein killed JFK because bullets he fired into the air after winning an Iraqi election went back in time and were transported in space to the grassy knoll, we would know that the ruling was nonsensensical and invalid. Any public official who attempted to uphold that ruling would deserve a long stay in a padded cell, not a medal for loyalty to the court.

If the legislature passed a law which required the courts to ignore any bullets which fired after the trigger was pulled and consider only bullets which fired before in determining the facts in murder by firearm, this would not create an obligation on the part of cause-and-effect savvy judges to either enforce this positive legislation or resign. When the legislature asserts nonsense it does not create an obligation on the part of sane judges to step out of the way and allow the nonsense to carry its chaos into the lives of the parties whose cases the judge adjudicates. The notion that it does is a reversal of responsibility. The one responsible for nonsense is the one who propogates it; and those responsible for protecting the common good, including judges, are obligated -qua- public officials not to resign in the face of nonsense but to resist it to the extent that resistance is not itself immoral.

Natural law of the sort I’ve been discussing deals with the nature of moral obligation. If a possible future chosen course of action (here I include both positive particular acts and the deliberate omission of particular acts) under consideration is immoral, this means by definition that it is not possible for it to be morally good to carry out that course of action. Positive law cannot – literally cannot – change this, any more than positive law can make cause and effect reverse their temporal order. No act of the human will can make literary reality into physical reality. No act of the human will can make a (self-contradictory) literary moral obligation to do evil into an actual moral obligation to do evil.

Legal positivists like Robert Bork are famous for saying that although there may well be such a thing as natural law, it does not fall within the competence of judges to determine what the natural law requires. Whether any particular judge is competent is of course a question of particular fact, and I won’t address it here. But the notion that judges can avoid questions of natural law and the issues which arise when positive law conflicts with it when carrying out their duty as judges is clearly false; every bit as false as the notion that judges can avoid questions of physical law when carrying out their duty as judges.

On the other hand the peculiar notion that mystical “emanations and penumbras” emerging unseen from the positive law describe true moral obligations on the part of citizens and public officials is just as false as the notion that literary physics describe the true physical factual situation around an assassination. Positivists may think the difference between natural law and penumbral law is a distinction without a difference, and that the issue of truth can be avoided by sticking to the assertions of positive law alone. But the difference is in fact unavoidable, because as I’ve observed before the courts literally cannot unmake the laws of physics and impose a factual situation that is false; and the courts literally cannot unmake the natural law and impose a moral obligation to do something immoral. The issue of what is true cannot be covered up or avoided with any amount of procedural wallpapering. Attempting to do so merely turns us all into postmoderns, in a world governed by literary physics.

Compelling Contradiction

April 26, 2007 § 2 Comments

When the positive law “compels” a person – either an individual or a government official – to act in a particular way, what this means is that the assertion of that particular positive law makes it morally obligatory for that person to act in that particular way.

The notion that it can be morally obligatory to act in an immoral way is self-contradictory.

Therefore the positive law cannot – literally cannot – compel a person to perform an immoral act.

Justice Following Orders

April 24, 2007 § 67 Comments

As a follow-up to the previous post, consider the following hypothetical:

What do you think Chief Justice Roberts would do if he became convinced that in fact the Constitution asserts a positive right to abortion? Suppose that he thinks Roe was poorly decided, but that properly understood in the light of the intentions of the Founders and of those who passed the Fourteenth Amendment, there really is a right to abortion asserted by the Constitution? If you just can’t get there, assume that an amendment was passed which made it completely unambiguous that the Constitution asserts a right to abortion.

Would he follow those orders?

Would you?

Just Following Orders

April 21, 2007 § 11 Comments

Every time discussion erupts in the blogosphere about the Supreme Court, the conservative legal positivism bandwagon parades through town.

It is true of course that legislating and judging are different things, and that judges ought not legislate. Legislators originate and author the positive law; judges interpret and apply the positive law.

But this doesn’t mean what most modern conservatives seem to think it means.

I’ve posted the following quote from (now) Chief Justice John Roberts before:

“Roe v. Wade is the settled law of the land. … it’s a little more than settled. It was reaffirmed in the face of a challenge … There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.”

This is what passes for the “conservative” concept of the magistrate these days: the notion that the judge is a morally neutral machine the purpose of which is to mechanically carry out the will of the legislature and existing precedent. If the judge is a moral actor rather than merely an amoral instrument of the legislature’s will, he is “legislating from the bench” according to the current putatively conservative consensus.

But orders are no excuse for an immoral action. It is quite true that the judge (not to mention the rest of us) has a positive obligation to obey the positive law. That obligation ceases and is replaced by an obligation to disobey the moment the positive law commands an immoral act. And there isn’t a special dispensation for judges which renders their acts morally licit just because they are following precedent or legislative orders.

"Illegal Combatant" is an Illegal Category

April 17, 2007 § Leave a comment

Article 4 of Geneva Convention (IV) Relative to Treatment of Prisoners of War (August 12, 1949) states that persons meeting the four criteria quoted from the 1907 Hague Convention are to be regarded as prisoners of war. Article 5, however, states that “[s]hould any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” — Seamus in the comments at CAEI


April 14, 2007 § 1 Comment

I don’t listen to the genre. But I actually found this particular commentary on the Imus pornradio incident interesting.

This may also be a good contextual opportunity to remind people of the wisdom of Eminem.

UPDATE: TSO discovers through the pages of Newsweek that “Imus outrage” wasn’t a spontaneous reaction of natural revulsion by actual listeners. Rather, his ebonics moment (in which he had the audacity not merely to engage in the everyday humdrum media personality behavior of calling a bunch of black women “nappy-headed ho’s”, but to do so while wearing white skin) was caught by some political group that was taping everything he said and combing it to look for something objectionable.

Maybe “reality television”, in which everything that occurs is social** artifice, really does reflect the “reality” in which most Americans live.

** I almost hesitate to use the word “social” here. Social implies ordinary human interaction, not the narcissistic thin soap-opera gruel that passes for human interaction in our modern liberal culture. (Ack, there I go again. I hesitate to use the word “culture” here, because…)

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