What part of "necessary basis" don’t you understand, Justice Scalia?

November 1, 2007 § 21 Comments

Robert Miller, approvingly quoting Scalia at First Things:

“There is no such thing as a ‘Catholic judge,’ he declared. “The bottom line is that the Catholic faith seems to me to have little effect on my work as a judge. . . . Just as there is no ‘Catholic’ way to cook a hamburger, I am hard pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic.”

I’d suggest that as a Catholic theologian, Justice Scalia makes a good burger-flipper.

“The natural law … provides the necessary basis for the civil law with which it is connected, whether by a reflection that draws conclusions from its principles, or by additions of a positive and juridical nature.” The Catechism of the Catholic Church

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§ 21 Responses to What part of "necessary basis" don’t you understand, Justice Scalia?

  • brandon field says:

    <>Just as there is no ‘Catholic’ way to cook a hamburger<>Of course, if it were a Friday, the Catholic way to cook a hamburger would be not at all. Bad example.

  • Scott says:

    When it is my turn to cook, I say Hail Mary’s as I prepare. Blessing the preperation in addition to the blessing before eating. Don’t tell me there isn’t a Catholic way to cook a hamburger!

  • Bob says:

    While I look to the Catholic Church and her Magisterium to teach me about Natural Law, I think its a mistake to view Natural Law as specifically a Catholic teaching. While it seems that the Catholic Church is the only entity out there that endorses Natural Law, I don’t think that is true. Otherwise, I should throw away Lewis’s Abolition of Man away as a fiction.What bothers me about this is the commonly used argument that opposition to abortion is a Catholic teaching (e.g. “you don’t have a right to impose your religion on the rest of us”). While the Catholic Church does teach about the immoral nature of abortion, it’s not specifically a Catholic teaching, it’s part of the law written in every man’s heart, Natural Law.In that sense, Scalia is correct. He could apply Natural Law as a Protestant judge and still reach the same judicial decisions as he would as a Catholic judge.

  • zippy says:

    <>While I look to the Catholic Church and her Magisterium to teach me about Natural Law, I think its a mistake to view Natural Law as specifically a Catholic teaching.<>True enough. But a Catholic mustn’t <>reject<> the natural law in favor of positivist textualism. Ironically Scalia’s contention would carry a great deal more water if he didn’t reject natural law jurisprudence in favor of positivist textualism.

  • john di says:

    This is my understanding of Justice Scalia’s reasoning:1. Catholic teaching does not justify people exercising authority they are not given by the laws of the land. For example, vigilantism is never justifiable. 2. The laws of the U.S. grant law-making authority to the legislative and executive branches.3. The legislative and executive branches must follow the natural law (as explained by the Catholic Church) in making just civil law but the civil laws, as written and ratified, won’t necessarily follow the natural law.4. The laws of the U.S. grant judges the authority to interpret the civil laws in light of the explicit wording of the laws and the intent of the legislative and executive bodies that wrote and ratified the laws.5. A judge who overturns laws, or writes opinions, based on his understanding of natural law, and not based on the explicit wording of the laws and the intent of the legislative and executive bodies that wrote and ratified the laws, is violating No.1 above.6. If Catholic teaching requires both No.1 above and that judges never uphold laws that violate the natural law, even if the interpretation based on the explicit wording of the laws and the intent of the legislative and executive bodies would indicate a decision in favor of the law, then the only justifiable course is for a judge to recuse himself in all such cases or resign from the bench.7. Justice Scalia does not believe that No.6 above is Catholic teaching. If he did, he would resign.

  • zippy says:

    <>This is my understanding of Justice Scalia’s reasoning:…<>That is my understanding too, and it is pretty obvious nonsense for the simple reason that the law doesn’t explicitly require judicial positivism. This is rather similar to the fact that the Bible doesn’t assert <>sola scriptura<>. At least the Moslems have a leg to stand on in claiming <>sola Koran<>, since the Koran actually does make positivist assertions about itself. In asserting legal positivism Scalia is ironically imposing his own personal (and even historically non-mainstream) opinions – opinions which also happen to be wrong – on the interpretation of the law.Catholic doctrine <>does<> require Catholics not to formally cooperate with evil. Upholding an unjust law as the specific chosen act of a judge is formal cooperation with evil, so Scalia is simply wrong about #6.Objectively he <>should<> either resign or recant his rejection of the natural law. I would very much prefer the latter, for his own sake in addition to any number of other reasons.But if history is any guide no appeal to reason will stop the legal positivists from chasing after their elusive Grail, just as nothing keeps sola scriptura Protestants from chasing after their elusive Grail.

  • john di says:

    “…and it is pretty obvious nonsense for the simple reason that the law doesn’t explicitly require judicial positivism. This is rather similar to the fact that the Bible doesn’t assert sola scriptura…”I think a more apt analogy would be that of the ordination of women. The bible does not contain a sentence that forbids the ordination of women but the whole of scripture, properly interpreted, says only men can be ordained. Scalia believes the whole of U.S. law, properly interpreted, says that judges must interpret laws based on the explicit wording of the laws and the intent of the legislative and executive bodies that wrote and ratified the laws.

  • zippy says:

    <>I think a more apt analogy would be that of the ordination of women.<>And I think that is special pleading in support of obvious nonsense. If Scalia paid more attention to grasping the actual meaning of Catholic doctrine than he does to his private (and false) prejudices about burger-flipping and applying the law then this wouldn’t be an issue.It might be interesting for someone to argue from the actual text of the Constitution that the Constitution explicitly requires the judicial power to be exercised under a rubric of textual positivism. Oddly, I’ve never seen that done. I wonder if that isn’t because the text itself doesn’t really support that reading?

  • john di says:

    “…Upholding an unjust law as the specific chosen act of a judge is formal cooperation with evil…”I think this is the main issue. If you mean by “upholding” that the judge is sharing in the immoral intention of the unjust act, then you are right that this is formal cooperation with evil and it is never justifiable. But I think Scalia’s point is that a judge can uphold a law—make a ruling based on the text and intent of the lawmakers—while believing the law is immoral and without sharing the intent of the unjust law. This would not constitute formal cooperation.A good article is found here.http://www.jesuitswisprov.org/pdf/Kalscheur_Presentation_text.pdf

  • john di says:

    One more time.http://www.jesuitswisprov.org/pdf/Kalscheur_Presentation_text.pdf

  • zippy says:

    <>But I think Scalia’s point is that a judge can uphold a law—make a ruling based on the text and intent of the lawmakers—while believing the law is immoral and without sharing the intent of the unjust law.<>I don’t think that is the only issue: I think legal positivism is incoherent and contrary to Catholic doctrine on any number of levels.But I think it is obviously wrong to suggest that a judge can <>choose<> to rule unjustly without <>intending<> to rule unjustly merely because he believes himself to be following the orders of the legislature in ruling unjustly. Formal cooperation with evil is formal cooperation with evil, and it cannot be justified by appealing to whatever happens to motivate it. That principle applies universally, whether the secular occupation and jurisdiction in question is that of Auschwitz administrator or Supreme Court Justice or Hollywood actor or whatever.

  • William Luse says:

    What I got from Scalia’s remarks was that (for example) if he voted to overturn Roe v. Wade, he would do so not because the dictates of conscience and natural law compelled him, but rather that he could not find a justification for the abortion ruling in the text of the constitution. If such a justification could, by his own lights, have been found, I guess he would also have had to decline his nomination to the Court. This latter may sound laudable, but isn’t really, I don’t think. What it amounts to is allowing an allegiance to positivism to eliminate natural law adherents from occupying any seat on the bench.Or would he have said (if he did find the abortion liberty in the constitution) that he could rule to uphold it because his duty is to the text of that document? I’m trying to figure out where his Catholic conscience comes down on this, but it’s not easy.Every Supreme Court nominee who goes before congress is asked about his ability to uphold Roe. I wonder what Scalia said at the time, because I can’t remember.

  • zippy says:

    <>If such a justification could, by his own lights, have been found, I guess he would also have had to decline his nomination to the Court.<>It is an odd situation, because Catholic positivists like Scalia and Miller are hard at work attempting to entrench a legal regime which would make it impossible for Catholics to be judges in good conscience. I think what they want to believe is the opposite; but what they want to believe about what they are doing and what is true about what they are doing are two different things. Catholic legal positivists are busily at work building the walls of the Ghetto.

  • john di says:

    Catholic teaching does not justify people arrogating authority they are not given by the laws of the land. Men like Scalia, Bork and Kmiec believe (quite coherently) that U.S. law does not give Supreme Court judges the authority to decide cases based on natural law. So these man, all serious Catholics, would be (in their minds) violating a teaching of the Church by deciding cases on the basis of their understanding (even if informed by Church teaching) of natural law. If the Church actually teaches that judges (or anyone else for that matter) should exercise authority beyond what’s granted them by the laws of the land, then the Church needs to be far more explicit about this.So what’s a Catholic judge to do? Say for instance a law passes that seems to say in some cases women can be forced to have an abortion. A case about particular women upon whom the state wants to perform an abortion comes before the Supreme Court and, sure enough, based on the positive law the state can compel the abortion. In this case, a Catholic Supreme Court judge would have to recuse or resign because upholding the law would be formal cooperation in an evil act—the woman, against her will, would be forced to have an abortion. Overturning the law based on natural law informed by Catholic teaching would be arrogating authority.But let’s say a law passes that seems to say abortion is legally available for those who want it, and a case comes before the Supreme Court disputing this reading of the law. Let’s also say that the Catholic judge, based on the positive law, finds that the law does in fact allow abortion to be legally available for those who want it. In this case he can justifiably uphold the law as long as he does not share in the intent of the law. This is material cooperation with an evil act and is not forbidden by the Church. Of course the judge could justifiably recuse or resign in this case also but he is not required to do so by Church teaching.

  • zippy says:

    <>Catholic teaching does not justify people arrogating authority they are not given by the laws of the land.<>Sure. But Scalia is – contrary to Catholic doctrine – wrapping up a positivist conception of “the laws of the land” into his argument, and thus begging the question.<>Overturning the law based on natural law informed by Catholic teaching would be arrogating authority.<>Overturning the positive law might arguably be arrogating authority, but deciding the particular case in front of him justly would not be arrogating authority. Deciding particular cases justly is the natural function and duty of a judge; this also cannot be remade or unmade or circumscribed by legislative fiat; and even if one believed that it could be, in our polity it in fact has not been.

  • Jake says:

    Your argument with Scalia is apparently that he’s a positivist. I’ll agree for the sake of argument; I wouldn’t know.But if another, non-positivist judge said the same words, then it seems it would be legitimate. The natural law is, by definition, not strictly Catholic, but is available to right reason, and thus could be employed by any judge. So if you are arguing with Scalia’s positivism, then you didn’t choose a particularly good quote to use.On another note, what is the difference between what you describe here and so-called “judicial activism”?Regards,Jake

  • zippy says:

    <>But if another, non-positivist judge said the same words, then it seems it would be legitimate. The natural law is, by definition, not strictly Catholic, but is available to right reason, and thus could be employed by any judge.<>Right. I said that < HREF="https://zippycatholic.wordpress.com/2007/11/what-part-of-necessary-basis-dont-you.html#c1535741318121638855" REL="nofollow">above<>. Scalia, Bork and their like explicitly reject the primary authority of the natural law in judging particular cases. Everyone ought to accept the natural law, as it is accessible to right reason and is not a specifically Catholic thing. In addition, Catholic doctrine specifically prohibits rejecting the natural law. Rejecting it isn’t a “permissable error” like rejecting quantum physics would be.<>On another note, what is the difference between what you describe here and so-called “judicial activism”?<>The truth. < HREF="https://zippycatholic.wordpress.com/2007/10/you-cant-fool-mother-nature.html" REL="nofollow">This post<> is pertinent, as well as < HREF="https://zippycatholic.wordpress.com/2007/11/dilemmas-from-land-of-make-believe.html#c7551288165356391973" REL="nofollow">this comment<> in the thread above.

  • Jake says:

    I liked the discussion < HREF="https://zippycatholic.wordpress.com/2007/11/dilemmas-from-land-of-make-believe.html" REL="nofollow">here<>. It was the clearest statement of why you think what you think.I know you agreed that the natural law wasn’t specifically Catholic, and I know that it’s not Catholic to reject the natural law. I think you hadn’t previously said this: that a non-positivist could correctly say exactly the same words as Scalia, and there would be no problem. Do you agree?If so, I don’t think I’m arguing with the substance of what you’re saying; I’m pointing out that your critique struck in the wrong direction, or maybe was incomplete. These words of Scalia’s aren’t damning on their face, so your retort to them doesn’t address the problem with Scalia.If you think they <>plus some additional information about Scalia<> make Scalia wrong, then we need that information about Scalia or your retort is out of context. Water under the bridge, I guess — you say he’s a positivist, and that’s the real problem. I’d be interested to know how you come to that conclusion, if it’s easy to show; not to challenge you, but just because I haven’t seen that charge made before.Thanks,Jake

  • zippy says:

    That is a fair enough point, Jake. In my defense, that Scalia and Bork are legal positivists isn’t controversial, even with them, as a quick Google of “Scalia legal positivism” or “Bork legal positivism” can verify. The controversial bit (though I don’t think it should be, but then I don’t think that anything I think should be controversial, heh) is that a judicial philosophy which throws the natural law under a bus can’t claim to be fine and dandy for Catholics.

  • […] (which we can know) which bind all human beings and transcend human law. It should alarm us to be more confident in our politics than we are in our Faith, since one has been assured to us by God to be true and the other is almost certainly fraught with […]

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