Dilemmas from the Land of Make-Believe
November 2, 2007 § 74 Comments
A commenter below expresses very well the putative “conundrum” that Catholic legal positivists pose for themselves:
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 men, 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.
Try to follow the twists and turns this argument takes. First, a positivist conception of “the laws of the land” is packaged up into the idea of what authority a judge possesses. No room is allowed for a judge’s natural duty under the law – and authority under the law, since every duty carries with it authority – to decide particular cases justly. Building from this false positivist conception of the duty and authority of a judge, it is asserted that the judge doesn’t have the authority to decide a particular case justly if his judgment runs contrary to some requirement of positive law as asserted by legislative fiat. Oddly, this entire conception of the judge’s authority rests on a judicial philosophy which is not explicit in the positive law, and which runs contrary to the authoritative teaching of the Church (and the conclusion of right reason) that the positive law represents merely explicit juridical additions to the natural law, additions the authority of which rests on natural law. On its own terms this argument has no juridical authority, since it has itself not been explicitly asserted in the positive law. Asserting judicial positivism represents an arrogation of authority – authority to tell judges what they can and cannot do with respect to deciding particular cases justly – which the positive law has not itself granted. Finally it is insinuated, seemingly without irony, that a judge’s failure to assent to legal positivism and (say) issue a ruling upholding a law which in a particular case would permit an abortion to proceed is – the failure to allow the abortion to proceed is – a violation of Church teaching.
It goes without saying, though I’ll go ahead and say it, that this risable false dilemma which legal positivists pose for themselves is begging the question. Hint: if you aren’t a legal positivist already, there is no dilemma.