You Can’t Fool Mother Nature

“Judge” and “legislator” are natural categories.

Man is a social animal, and as a social animal it becomes necessary for man situated in a community to be subject to the authority of other men. One function of that authority is to choose as a prudential matter what general rules from among all possible morally licit rules are to apply to the particular community: this is the natural function of legislator, who establishes positive law. Another function is to apply and enforce the law (positive rules resting on natural law) in particular cases: this is the natural function of judge or magistrate coupled with police and penitential enforcement arms. These latter supportive roles can be (but are not necessarily in all cases) coordinated under executive leadership.

These are natural functions which arise in every community of sufficient size and scope. The legislator decides that we will drive on the right; the judge assesses a fine from Harry for failing to do so. These functions may be shared by the same body or person, or may be divided among different functionaries and jurisdictions in a given government, and may be entangled with each other for various prudential or accidental reasons either explicitly or implicitly. But the fact that particular choices are made by men about division of labor or allocation of authority does not imply that the legislative and judicial functions are themselves intrinsically positive creations of the will of men. They are not. The role of judge and the role of legislator are natural roles, and they cannot be arbitrarily shaped by men to be whatever men choose to assert them to be.

“Conservative” judicial positivism (equivocally going under the name of “originalism”, which is often positivist in character but is not necessarily so) seems to me to have arisen as a contingent historical matter. Because of the fact that the Supreme Court has taken upon itself broad powers of judicial review of all legislation, it has inserted itself into the natural legislative process: the process of making positive rules which apply to everyone, as distinct from the process of applying the law to particular cases. As a result the SCOTUS de facto holds not merely supreme judicial but supreme legislative power; and in well-founded terror of the tyrannical implications and historical particular abuses of this, conservatives invoke judicial positivism as an incantation intended to contain that power.

But positivism isn’t going to help, in the long run. Judicial positivism may as a local contingent historical matter delay or hamper various tyrannies; but in the long run it is guaranteed to turn on its would-be trainers and eat them. Because at least in the long run, you can’t fool Mother Nature.