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.

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§ 74 Responses to Dilemmas from the Land of Make-Believe

  • Bob says:

    The Massachusetts Supreme Court was incorrect in its ruling on same sex “marriage”. (It’s obvious to you and me that homosexual “marriage” contradicts natural law.) However incorrect the Massachusetts court was, it did believe that it was correcting an injustice that limited marriage to a man and a woman.So Zippy, would it be fair to assume that you believe the Massachusetts Supreme Court had the authority to act as it did?

  • zippy says:

    <>So Zippy, would it be fair to assume that you believe the Massachusetts Supreme Court had the authority to act as it did?<>It was an objectively unjust decision, so no. In order to be justified a decision must first and foremost actually be just. Positivism attempts to avoid the question of what is <>true<>. My understanding of things isn’t burdened by that avoidance.But there are a number of issues bundled together here, which I discussed in (for example) < HREF="https://zippycatholic.wordpress.com/2007/10/you-cant-fool-mother-nature.html" REL="nofollow">this post<>. In a nutshell, if Americans don’t want judges to have the de facto power to modify the law wholesale as an external effect of deciding particular cases then they need to take that power – the external extrapolation implied in stare decisis and judicial review – away. If Americans don’t want judges deciding particular classes of cases they need to arrange for those particular classes of cases to never end up before a judge. And of course many different juridical processes for appealing particular cases are conceivable.What cannot be done by legislative fiat – literally cannot be done, because it is an attempt to violate the fundamental nature of things, and like all attempts to violate nature it results only in a perversion – is take away a judge’s natural authority to decide the particular case before him justly.

  • Bob says:

    Certainly the Massachusetts court does not derive its authority from God, since the ruling is not in accord with natural law. But does it in fact have that authority as the supreme court of Massachusetts?If positive law is no limit to the actions of a supreme court justice, then as a practical matter we accept unjust rulings as we accept the just rulings. No secular judge on earth is infallible regarding his understanding of natural law.As a practical matter, since the Massachusetts Supreme Court did not in fact have the authority to rule as it did (even though it incorrectly believed it had the authority to rectify an “injustice”), how does the executive and legislature respond? Does the executive refuse to accept the authority of the court and ignore it? Does the legislature ignore the court and continue to write laws that state correctly that marriage is between a man and a woman?. Suppose the legislature agrees with the court, while the executive disagrees and refuses to implement. Further suppose that the legislature impeaches the executive on that basis (i.e. failure to allow same sex marriages). Clearly, the legislature doesn’t have that authority under natural law, since both the court and the legislature are wrong with respect to natural law. A new executive is installed, however, the executive departments are split whether to acknowledge the new or old executive. Since the court and the legislature had not the authority, can a business ignore the ruling and refuse benefits to same sex couples? (It probably won’t, unless the executive refuses to prosecute these cases).As a citizen, should I obey the State Trooper if that department follows the illegitimate new executive?

  • zippy says:

    <>Does the executive refuse to accept the authority of the court and ignore it? Does the legislature ignore the court and continue to write laws that state correctly that marriage is between a man and a woman?<>That is what I would do if I were a legislator or the executive (Heaven forbid). (Technically it isn’t refusing to accept the Court’s authority, since the Court doesn’t <>have<> the authority to compel an unjust act).In general, as your many questions demonstrate, it is a problem when people disagree. Textual positivism, as the proliferation of Protestant denominations under <>sola scriptura<> demonstrates, does not solve that problem. This tends to be very bothersome to people who view politics as a machine which can be tinkered and adjusted to achieve desirable outcomes which can be made independent of actual authoritative judgements on the part of actual authoritative rulers. I am not one of those people.

  • john di says:

    Zippy,For clarification…if the Constitution explicitly stated that Supreme Court judges must decide cases based only on the positive law, would you then say that Catholics could not justifiably be Supreme Court justices?

  • zippy says:

    <>…if the Constitution explicitly stated that Supreme Court judges must decide cases based only on the positive law, would you then say that Catholics could not justifiably be Supreme Court justices?<>Oh, it is much worse than that. In that situation, nobody <>rational<> could justifiably be a Supreme Court justice. Only those literally incapable of coherent normative reasoning need apply.Suppose the Constitution had a clause which read: “In cases where the natural law conflicts with the positive law, the positive law is controlling”. (Or suppose that whatever it was that was written was understood to assert this).The problem with the assertion is that it is self-contradictory. (Why this isn’t manifest to legal positivists is beyond my comprehension). The reason is that the normative force of the “is controlling” clause itself derives from the natural law. If it didn’t, then there would be quite literally no reason to obey it.Every positive-law assertion derives its normative force from the natural law. A more explicit form of the positive law can always be made by placing positive-law assertions in a natural-law “wrapper”: “Under its authority derived from the natural law, the legislature asserts that in Virginia drivers must drive on the right hand side of the road”; etc etc etc.And “Under its authority derived from the natural law, the Constitution requires that when its authority comes into conflict with the natural law the Constitution prevails” is self-undermining. There literally isn’t any reason whatsoever to obey the authority of positive law other than (1) fear of punishment; and (2) because its normative force derives from the natural law. And the former isn’t normative: that is, if you can get away with disobedience and escape punishment then (1) gives you literally no reason to obey. So “when the positive law conflicts with the natural law, the positive law prevails” is self-contradictory.

  • Lydia McGrew says:

    Okay, Zippy, I’m going to try a wholly novel (is it?) approach to changing your mind. It’s been coming to me gradually for the last few months. See how it flies:You are no fan of aggressive war. Neither am I. Now let’s suppose that there’s some nasty country where they treat their citizens horribly. And suppose that you are the commander and chief of a country and a military genius. You have a ton of intelligence data, and you can tell that you could go in there with your army and conquer that country pretty easily. There’d be battles and such, but as far as you can tell they’d be straightforward manly sorts of things in which soldiers would fight soldiers, and your forces would prevail. You also know of a person right on the spot who would make a great new ruler, and you could successfully set him up instead, the people would love him. Voila. End of nasty regime. You can tell rationally that you could pull this off.But you don’t. This is because you believe that it isn’t your place, that it would be taking authority that isn’t yours to carry out this coup d’etat.Suppose somebody accuses you of making the nasty laws of that country (make them as horrible as you want) “controlling” and giving them “normative force” because you are _refraining_ from conquering the country. But your accuser says that by sitting back and doing nothing, you are consigning the people to their horrible ruler. He says you can’t say that you are merely refraining from something, because by standing aside and leaving them in the clutches of their present government, you are really failing to uphold the natural law.It seems to me that the people who say that the judge shouldn’t (in the case we discussed on W4) order that the people be released when they’ve disobeyed an evil law could say that he is _not_ giving the evil law normative force. What he is giving the normative force to is the meta-level principle of spheres of authority, such that he believes he has no more authority actively to “deliver” those people, using his power as judge, by ordering that they be released and troubled no more than you, in the scenario, have the authority to use your army to deliver the people under the oppressive regime. In recusing himself he is merely refusing either to cooperate with the evil system _or_ to step into the sphere of authority of the legislature.

  • zippy says:

    <>He says you can’t say that you are merely refraining from something, because by standing aside and leaving them in the clutches of their present government, you are really failing to uphold the natural law.<>Mostly I think he is just being silly, and this case is a long way away from the situation where a <>judge<> has been given a particular case that he is supposed to dispose of justly under the law in his role as judge. But even so, in principle it is possible for there to be an obligation to rise to the defense of others.<>It seems to me that the people who say that the judge shouldn’t (in the case we discussed on W4) order that the people be released when they’ve disobeyed an evil law could say that he is _not_ giving the evil law normative force.<>If it is an actual case which has been brought before him for him to render judgement – that is, if he is acting in his legitimate role as judge – then there is no “refrain from acting” option. If Providence has brought him this particular case to judge as judge, it is <>he<> who either sends them to jail unjustly or justly releases them (or recuses himself). Scalia’s answer “unjustly send them to jail” is only “passive” in his positivist fantasy world of Neuremberg moral deniability for judges.As I recall, we last left it with you insisting that the role of judge was just a positive arbitrary creation of the human will (though I think we may have agreed that there is no positive law instantiating judges in that manner in our actual polity), and with me insisting that judge is a natural function with a certain integrity which cannot be violated. IOW (and assuming I’ve grokked it correctly), you insist on a positivist conception of the role of judge. I think that runs afoul of the fallacy I pointed out in my last comment: I have no reason to accept a positivist conception of the role of judge – not even one explicitly asserted by a Constitution – unless that positivist conception is itself based in the natural law. But then that means that the natural law is controlling and precedent, which contradicts the notion that positive law is controlling with natural law subordinate. So even if legal positivists passed a Constitutional amendment requiring legal positivism, they might as well have passed an Amendment requiring judges to gyre and gimbal on the wabe.

  • Rodak says:

    Zippy–How is it possible to even know what natural law *is*–or, rather, how natural law pertains in with regard to a given question–unless it has been expressed positively, and such positive expression asserted to be based on natural law? And why isn’t this latter assertion itself “positivist?”

  • Lydia McGrew says:

    I’ll feel I’ve won a kind of interesting point (to a nerdy philosopher) if I just get you to say, “Okay, what I call ‘legal positivism’ is wrong but not incoherent.” The point of my example was to argue that if you believe you are obligated to refrain from using a particular type of power to stop a particular evil law (or a bunch of them) from taking effect, then this is _not_ giving normative force to the evil law but rather giving normative force to the principle you think is operative about spheres of authority. Now, if the judge is using this argument and, say, recuses himself, even if this means that some other judge sends people to jail under an unjust law, that doesn’t mean that the first judge has given the unjust law normative force. Rather, he’s given the principle about how he should and shouldn’t use his power as judge normative force, just like the person who doesn’t invade the country and stop the operation of its evil laws isn’t giving the evil laws of the country normative force. Now what _that_ means is that the whole thing comes down to a difference over the proper use of judicial authority, _not_ to an incoherence on the part of the “positivist” in which he is admitting that a law is evil (hence has no normative force to require you cooperate with it) but also saying that it is controlling (does have normative force to require you to cooperate with it).Now, what _I_ don’t see in the natural law is that the judge must rule that the right or just thing _happen_ in the case before him, that he must order the just _outcome_. That seems to me no more obvious by the natural law than the assertion that the legislature should have an army and power to issue orders to it directly, or that the executive should be able to make laws all by himself, or any other such statement. So you don’t see my conception of the judicial role in the natural law, whereas I think it arises from a combination of the natural law regarding taking on jobs honestly, etc., together with the set-up in our particular country, and I don’t see yours, whereas you think it obvious by the natural light that the judge must make the just thing happen using his power as judge, and that, it seems, is what the whole disagreement comes down to.

  • zippy says:

    <>How is it possible to even know what natural law *is*–or, rather, how natural law pertains in with regard to a given question–unless it has been expressed positively, and such positive expression asserted to be based on natural law?<>I don’t claim to have solved for all times the mystery of how we know things. But to say that we give expression to the natural law in our particular positive acts isn’t to say that the natural law is <>nothing but<> our particular positive acts; and in any case our positive acts are not a text.

  • Rodak says:

    “But to say that we give expression to the natural law in our particular positive acts isn’t to say that the natural law is nothing but our particular positive acts;”I would say that natural law is not expressed in our positive acts, but is that by which we evaluate the orientation of our postive acts to the Good. But to say this is to say that the natural law is “written on our hearts,” which is to imply that there is an Author. I won’t even go into how this gives us a metaphorical correspondence to the idea of “text.” The point that I’m driving at, with reference to a decision by a justice of the U.S. Supreme court, is that this is a pluralistic society with a law that must apply equally to all citizens. For there to be a one-to-one corresponsence between natural law and any given interpretation of postive law, which would satisfy the non-Catholic theist, the Catholic, and the atheist alike, each and every decision would need to include not merely the assumption, but a proof of, the existence and authority of that supreme Author. This would seem to be an irresolvable conflict for a practising Catholic interpreting secular law.

  • zippy says:

    <>Now, if the judge is using this argument and, say, recuses himself, even if this means that some other judge sends people to jail under an unjust law, that doesn’t mean that the first judge has given the unjust law normative force.<>Recusing is different from upholding the unjust law, to be sure. (Notice that we are already past the Scalia/Bork judicial philosophy in which the judge does right by upholding the unjust law). But just as a parent can be negligent in allowing her children to play in the street and get run over, and the administrator of Auschwitz can be negligent in simply leaving his post and going on vacation along the Rhine, a judge can be negligent in refusing to protect the innocent <>in the particular case Providence has placed before him<>. IIRC, my opponents in that argument refused the very possibility of this occurring, and insisted in a moral burden-shifting exercise on renaming it some kind of rebellion. But particularly in the case of a duly constituted competent judge, he is not engaging in any form of rebellion by rendering a just judgement in the particular case that comes before him. It is in the very nature of being a judge that one renders just judgements on the particular cases which come before one. Legal positivism denies that there is any such thing as a “judge”: it asserts that a judge is just a positive-law-applying mindless computer turning the crank on whatever the will of the legislators who wrote the law happens to be as applied to a particular case, even if that will is despicably wicked. The positivist judge engages in the wickedness of treating a human being as <>nothing but<> a machine, an abject slave for carrying out someone’s arbitrary will. Ironically in the case of the positivist judge he treats <>everyone<> other than the omnipotent legislature-sovereign as inhuman cogs in a machine, <>even himself<>.And that is radically opposed to the natural law, while also depending on the natural law for its normative force.

  • zippy says:

    <>For there to be a one-to-one corresponsence between natural law and any given interpretation of postive law, which would satisfy the non-Catholic theist, the Catholic, and the atheist alike, each and every decision would need to include not merely the assumption, but a proof of, the existence and authority of that supreme Author. This would seem to be an irresolvable conflict for a practising Catholic interpreting secular law.<>I’m not sure I understand perfectly, Rodak, but I do think that at bottom the assertion “there is no God” is incoherent. As with legal positivism that incoherence isn’t always <>manifest<> to our small intellects. But no conception of natural law will ever be fully satisfactory to an atheist, since the truncated-from-Author-ity atheist’s positivism will eventually collapse into postmodernism, and postmodernism doesn’t believe in any definite reality (including definite moral reality). That is part of the sociological driving force behind the idea that “you can’t legislate morality”, even though positive law <>just is<> the legislation of morality, that is, the carrying-through of the normative authority of the natural law into concrete rules mediated by human agency. Modern society is living on borrowed time, slowly digesting the remains of the Western Christendom which gave it coherence.What that does for different peoples’ conceptions of “equality” doesn’t much concern me. To the extent equality means that it is always wicked to treat a human being as not-a-human-being it is fully authoritative; to the extent it means other things than that in the political realm it seems to me to be incoherent, as I’ve written before.

  • Rodak says:

    Zippy–I have no doubt that you’re correct. But what that means, if carried to its logical conclusion, is that individuals whose lives are governed by God’s will need to withdraw from a society that is not so governed. I don’t see how you can have it both ways.It is every bit an “incoherent” to a materialistic atheist to assert the existence of a God, as is the opposite assertion to you. It is doubtful to me that either viewpoint will ever triumph completely. I see no reason why relativism cannot limp along indefinitely, making short-term, utilitarian, decisions that work until there’s a shift in the wind.This, of course, will not work for the orthodox purist of any religion, which is why we see Muslims who are willing to die in a futile effort to establish global Shari’a.

  • zippy says:

    <>But what that means, if carried to its logical conclusion, is that individuals whose lives are governed by God’s will need to withdraw from a society that is not so governed.<>I have no doubt that some people are called to that; indeed I am < HREF="http://www.maronitemonks.org/" REL="nofollow">sure of it<>. But that <>everyone<> is called to it isn’t, as far as I can tell, a rational (let alone logical) entailment of the proposition that legal positivism is incoherent.

  • Rodak says:

    I wasn’t speaking of the cloister. I was speaking, as the reference to Shari’a should have indicated, of the concept of truly being in the world, without being of the world. Various Protestant sects have attempted this–unsuccessfully–as did the primitive Christian assemblies. Persecution by the Great Beast is almost guaranteed in the event of any concerted effort in that direction.

  • Lydia McGrew says:

    Scalia said that if he believed the death penalty were always wrong, he’d have to quit as a Supreme Court justice. So he does have that option very much in mind.I entirely agree that people must never be automata carrying out the positive law. The whole “people as automata” thing is part of what angers me so much about our present deference to the judicial branch. Not that I acknowledge that court orders and interpretations are laws, but they are obeyed as if they are actually a kind of super-law. No one ever considers telling the judge or judges to go jump in the lake. I believe that a judge could make almost any court order he liked, however heinous, and people would carry it out. Like killing the innocent, and standing guard to make sure they die without succor. We have, indeed, tested this hypothesis to some extent already and found it true. And the robotlike deference to the will of the court is found both among the executive officers of the government and private citizens alike.

  • zippy says:

    <>“Mere factual innocence is no reason not to carry out a death sentence properly reached.” – Antonin Scalia<>Obviously something in his judicial philosophy led him to say this. That he may at times say things contrary to this represents a bug in his philosophy, not a problem with his critics.I agree with you that positivist deference to the judiciary is just as problemmatic. Garbage in, garbage out.But in the end, everyone is morally responsible for what they do and fail to do.

  • Lydia McGrew says:

    Actually, it’s been noted repeatedly in the blogosphere (I just found this out by a search) that that quotation cannot be found in Scalia’s concurring opinion in the case where it supposedly occurs (Herrera v. Collins). I have read part of the majority opinion (written by one of the other justices, in which Scalia concurred) and done a search for “factual innocence in the majority opinion,” and it isn’t there, either. Scalia’s separate concurrence is quite brief and easy to read through quickly. The statement isn’t there, either. Whether he said this verbally or not with reference to that case, I don’t know. But thus far it looks like an attempted paraphrase of what he thought about the issue, not like something he actually said. I shd. have saved the Findlaw links for the majority opinion and his concurrence but didn’t. I can maybe post them later. The legal question at issue, as I understand it, was whether a prisoner was entitled to federal habeas corpus relief because he alleged that new evidence had come to light 10 years after his conviction proving his innocence. Scalia agreed that he was not, because that isn’t what federal habeas corpus relief is about. I consider the meaning of federal habeas corpus to be an interesting and open question and Scalia’s concurrence on this legal question not to be an endorsement of executing those known to be innocent.(And I might add, FWIW, that from my brief survey of the case the supposed new evidence in that particular case looks pretty dubious and even somewhat frivolous compared to the evidence for guilt on which the person was convicted in the first place.)

  • john di says:

    Zippy,Let’s say a Supreme Court justice has been reading your blog and he writes you: “…I have a case before me that, by my best efforts at interpreting the positive law, would lead to my upholding the law in question. However, I believe this positive law to violate the natural law. I also believe that the natural law requires that in my position as a Supreme Court judge of the United States (a representative republic), I don’t arrogate authority I haven’t been duly granted. I firmly believe the United States has not granted Supreme Court judges the authority to overturn laws that are in fact consistent with the positive law (even if the judge believes the positive law is not consistent with the natural law). Would you direct me to a body of authoritative writing that explains why I (a Supreme Court judge in a representative republic with a Constitution with explicit separation of powers between three branches of government) in fact do have the authority to decide based on my understanding of the natural law and that I can justifiably ignore the positive law when I think the natural law is violated. Also, please direct me to a body of authoritative writing that explains the natural law. Thanks so much…”Can you help this poor guy?

  • zippy says:

    My recollection is that he said it in a speech, not in a legal opinion. Still, if I’ve been snookered into credulity I’ll retract the point, as I don’t have a reference to the text of the speech.In any case one quote does not an entire judicial philosophy make, and I think Scalia’s approach to recusal is equivocal. Sure, if he believed the DP was <>never<> morally licit then he would (supposedly) resign. Big deal. That doesn’t excuse him in making specific judgements carrying out laws he knows to be unjust. If the First Things article I linked and John Di’s summary of the view misrepresent Scalia’s jurisprudence then my disagreement with him reduces to my disagreement with you, which is over the in-principle possibility of a case where recusal isn’t an option. If they don’t misrepresent him then Scalia disagrees with you and I disagree with both of you.The self-contradictory nature of Scalia/Bork legal positivism is well captured in this Bork quote from <>The Tempting of America<>:<>Being ‘at the mercy of legislative majorities’ is merely another way of describing the basic American plan: representative democracy. We may all deplore its results from time to time, but that does not empower judges to set them aside; <>the Constitution allows only voters to do that<>.<> [Emphasis mine].Oddly, the Constitution doesn’t actually say anything – anything at all – about that. The Constitution assigns the judicial power to the Supreme Court, and it says how Congress can limit or expand the Supreme Court’s jurisdiction; but says literally nothing of what precisely the judicial power entails.Granted, that makes it possible for we philosophically inclined geeks to argue about the implications of a Consititutional amendment requiring positive law to trump natural law. But that disconnects the discussion from the actual judicial philosophies of Scalia and Bork with respect to the actual Constitution; those judicial philosophies are self-contradictory no matter the result of our side conversation about the coherence in principle of judicial positivism in the abstract.

  • zippy says:

    <>Can you help this poor guy?<>No, I can’t. The premises of his questions – the idea that his basic problem can be solved by directing him to an authoritative body of writing – are faulty. I can’t help him, other than by pointing out that his premses are faulty.

  • Lydia McGrew says:

    I actually was cowardly to say that the federal habeas corpus issue is “open.” It looks to me (an admitted non-specialist) like Scalia is completely right on that issue.I read the one First Things article by Scalia, the one about the death penalty. Is that the one you mean (I don’t see the link; maybe it’s in a different post)? I thought it was great. What’s self-contradictory about that quotation from Bork? Is it just that you are saying that he’s factually wrong about the contents and/or clear implications of the Constitution? But that’s just a mistake, if it is wrong, not a self-contradiction.By the way, in all of this, I think the issue of “upholding” or “carrying out” laws one knows to be unjust needs to be kept pretty concretely defined by examples. After all, Zippy doesn’t believe judges should strike down laws uberhaupt any more than I do. And very often what is in view (as in the case of abortion) is a law _permitting_ someone to do something–e.g. if a state law permits abortion–which makes it difficult to come up with a concrete case in which a judge would be called upon to “uphold” it.

  • zippy says:

    <>But that’s just a mistake, if it is wrong, not a self-contradiction.<>Oh no, it is definitely self-contradictory. The Consistution doesn’t say that Judges must be judicial positivists, and Bork’s central claim is that juridical assertions which aren’t based in the text of the Constitution have no authority. So his own juridical assertion that judges must be judicial positivists has no authority, on its own terms.The First Things article by Miller is linked in the top of < HREF="https://zippycatholic.wordpress.com/2007/11/what-part-of-necessary-basis-dont-you.html" REL="nofollow">this post<>, which gave rise to the present post.I do agree that the particulars matter. Indeed, it is very nearly my central point that the particulars matter, and that the notion that the positive law trumps natural law attempts a self-contradictory categorical claim which sweeps aside all particulars.

  • Lydia McGrew says:

    I understand Bork to be making a meta-level historical claim about the separation of powers in the United States as originally set up. This concept of the separation of powers will support the way he carries out his duties as a judge, but it is not itself a claim about the content of some one specific law. It should be based historically on the text of the Constitution but also on historical sources that will show how the text of the constitution was intended by the framers and would have been understood by the original audience. What sort of country did, for example, the ratifying states understand themselves to be assenting to?Probably Bork should have said “the American system of government” or something rather than “the Constitution.” And he is an intentionalist rather than a textualist (at least, as far as I remember), so this gives him plenty of resources for making such historical arguments.Probably the strongest argument against his historical claim about the separation of powers is the phrase “and equity” in the Constitution where it says the Supreme Court will have jurisdiction over all cases in law *and equity* “arising under this Constitution.” The legal notion of equity is probably your best bet for arguing that both the framers and the ratifiers understood themselves to be giving the judiciary powers beyond those of interpreting and applying positive law. Of course, then the question would still be what those additional powers were.

  • zippy says:

    <>Probably Bork should have said “the American system of government” or something rather than “the Constitution.”<>Yes, he probably should have. But I think we are reaching diminishing returns on further discussion. I will say though that the burden of historical proof is with the positivists. Natural law jurisprudence was a well established part of the legal tradition at the time the Constitution was ratified. If the Founders had intended to rule it out in favor of positivism, it would be extremely odd for them to have failed to take the positivist step of ruling it out explicitly.<>“When human laws contradict or discountenance the means, which are necessary to preserve the essential rights of any society, they defeat the proper end of all laws, and so become null and void.” – Alexander Hamilton<>

  • Anonymous says:

    Zippy, I agree almost completely with your position, so I have been entertained by your defense of justice. Given that, I don’t know that I should butt in, but I would like to add a comment or two. Rodak, although as Catholics we believe that natural law has its ultimate source in God, it is not necessary to posit God in order to know and indeed hold firm to the natural law. All that is necessary for affirmation of natural law is a modest recognition of human nature. Many non-Catholics, and many non-Christians, and quite a few atheists, believe in the natural law without any reference to God as its source. Thus, it is not quite the “problem” you make it out to be in a pluralistic system which eschews placing one view of religion over others. You might just as much say “why do you think it proper to try to run a government where we try to view the laws (as far as possible) as relatively consistent, or where people apply the same laws to the same conditions logically – many people don’t even believe in logic.” Yes, that is true, insofar as their philosophy goes – the Queen of Hearts doesn’t, as well as the Duchess. But America is founded even MORE on the rule of law than it is on democracy, and the rule of law means logic. Does your pluralism extend to ceasing to use logic in judging when the person affected does not believe in logic? Lydia, what your hypothetical case is missing is the flesh of particulars – both specific laws and specific actions to judge – you just give generalities. But in specific cases (in a system put together by people trying to make that system just), it becomes clear that for the just judge who is not trying to arrogate more power to himself than the system provides, he normally will be able to abide by justice without claiming powers he does not have. 2 courses of action will be open to him: either it is someone else’s office under which the action providing justice belongs (and so he can refer the problem), or it is his own. For example (taking your excellent point of equity into account), some lower courts are NOT courts of equity. Therefore, a judge in the lower court might rightly reason that his power to rule for justice is impeded because his is not a court of equity – but he can point this out in his decision and virtually ensure that the case be appealed…to the appellate court which IS a court of equity. The judge who is presented 10 years after the trial with a claim of evidence that “proves” the guy is innocent can rightly say “see the Governor, he can commute the sentence, but the law does not provide me a framework for reviewing the evidence. That is, I am not a judge with power with respect to your claims.” In any case, because ALL law has its binding force precisely because it is ordered to the common good by those who hold the office of care for the common good, an evil law which contradicts the common good cannot be binding. I suspect what you are protesting is not so much <> that <> there are such laws, as how to distinguish <> which <> laws fall into this category, and (perhaps even more) how to deal with the reality that there will of necessity be controversy and dispute over such a judgment. Like Zippy, I think that an attempt to design (or, worse, re-invent the meaning of the Constitution so that it is taken to be) a system that works without controversy over the validity of laws in some cases is overly optimistic. It ignores the discord and darkened intellects resulting from fallen human nature. One should remember that the very point of having judges be chosen from those who (at least, by preference) are very knowledgeable about the law and of upright character is so that one can have confidence that their decisions will be more likely to both keep the law and to keep justice going. Any old nerd can apply the law blindly, and any old armchair jurist could overturn laws he feels are stupid. Just as an aside, The Mass. Supreme Court did not err solely on the level of violating the natural law. They also violated the meaning of the language. If they want to claim that gays have an inherent right to unions if straight people do, they can make their case and then they can try to get the legislature to follow their argument with law – just like the rest of us. But the attempt to impose upon people a meaning to the word marriage a meaning that the word as understood by all people up to now simply does not bear is itself an arrogance hardly dared by anyone outside of Lewis Carroll’s works. If they, because of their philosophical view, believe that it <> should <> bear a different meaning than it has had, they can use all the tools that are open to us, we who are not judges. Nothing in either the positive law OR the natural law give judges the right to re-invent language. Tony M

  • Rodak says:

    Tony M–It makes no sense to me to say that there are persons who don’t believe in logic. Supposing such a person to exist, it would be a fairly simple thing for a person who *does* believe in logic to demonstrate logic to the scoffer, and *prove* that logic exists and works. But, with natural law, I think that you could easily prove that concepts of what natural law consists of would differ considerably from culture to culture. Without being able to prove the existence of a transcendent Authority whose will comprises such natural law, it will prove futile to convince a non-believer, or a believer from a different tradition, that natural law governs any moral choice over which there is disagreement.How, for instance, can it be proven that ensoulment is concurrent with conception? An atheist will say there is no such thing as a soul. A non-Catholic theist may insist that ensoulment takes place concurrently with “quickening.” One secular scientist might say that a fetus becomes a “person” when it is viable outside the womb. Another might call the fetus a “person” based on a certain stage of development discernable by embryology. None of these divergent theories are reconcilable by logic, and may represent several different conceptions of what is expressed by natural law.

  • William Luse says:

    <>Can you help this poor guy?<>“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.” William BlackstoneGod, I love that passage.http://www.yale.edu/lawweb/avalon/blackstone/blacksto.htm

  • Rodak says:

    “and dictated by God himself”And that paragraph’s coherence is limited by the above to only you and that fellow over there who believes in the same God, and the validity of the same scriptures that you believe in.While you may, indeed, be in possession of all that is True, in a pluralistic society it would be oppressive for you to posit, or interpret, laws making the other fellow, who believes in no god, or the other fellow who believes in a different god, or gods, conform, in the conduct of his life, to your beliefs.

  • zippy says:

    <>…in a pluralistic society it would be oppressive for you to posit, or interpret, laws making the other fellow, who believes in no god, or the other fellow who believes in a different god, or gods, conform, in the conduct of his life, to your beliefs.<>I love it how “pluralism” is invoked to imply that everything should be legally permissable. Don’t avoid the obvious conclusion though: that is, so much the worse for pluralism.It is more a matter, as C.S. Lewis might say, that one who apprehends the natural law will almost inevitably come to believe in the same God we do, or at least will find it uncomfortably difficult to disbelieve in Him, should our postulate follow the existential import of the natural law to its rational conclusions. But if that is an impediment to someone (say) murdering her own children, so much the worse for her. I’m all in favor of “oppressing” murderers by not allowing them to murder.

  • Lydia McGrew says:

    Tony M., I didn’t want to burden this thread with particular examples. I’ve made them up in other args. with Zippy about this matter.I’m not at all sure that Zippy wd. agree with you that referring the matter to the other branch is okay, because any so-called “positivist” can do that. In fact, in the Herrerra v. Collins case, Scalia even mentioned gubernatorial pardon in his opinion (though it was pretty obvious he didn’t think Herrera merited one, but that wd. be up to the governor). And I certainly agree that there are some areas of law–family law, for example, and contract law–that have definitely given powers to the individual judge to decide the just outcome. My disagreement with Zippy has always concerned cases where we aren’t working in one of those areas.The concrete example I gave in a different thread was of a terrible unjust law that punished people for going to Mass. I argued that the judge would be abusing his power to make a court order, speaking as a judge, for the release of a prisoner brought before him under that law who had clearly broken it. He should certainly refuse to prosecute the person too, though. He shouldn’t act like a robot and just sentence the person to have his head cut off (that was the penalty, in my example). I said he should either recuse himself or quit as a judge, probably the latter. I also advocate civil disobedience in such cases for private persons. Such recusing or quitting could very easily involve referring to other parts or branches of government that could rectify the wrong–the legislature, the executive (who should have vetoed the law). And when it comes to civil disobedience, I’m willing to grant a huge amount of latitude. The ex-judge should be going to mass himself, and he can hide mass-goers in his home. 🙂Just to make things more complicated, I staunchly believe that, as you say, the court decisions people are really talking about tacitly *are not laws.* Roe v. Wade is not a law. And I also believe that in most of these egregious cases the precedents are such that a so-called “positivist” should consider them ludicrous as constitutional interpretation, as indeed Bork and Scalia do. Now, I would therefore go so far as to say that the executive and legislative branch, and the state courts as well, therefore have the right to _ignore_ those precedents. This is not, in my opinion, abusing their power as a judge. It’s rejecting an absolutist version of federal judicial review that limits opinions on the constitutionality of laws to the judicial branch and gives the federal judicial branch absolute say on the matter._That_ means that I and the natural law theorists would agree in practice about a lot of cases where it would be just fine for abortionists to be arrested under pre-Roe laws and such and Roe to be defied. I think this approach probably applies to the Massachusetts situation, too. I suspect Romney would have been within his _positive legal_ rights to order that no marriage licenses be issued to gays.But for some reason, these radical proposals never meet with the shouts of joy I wd. expect from the natural law theorists, because I’m basing them on the fact that the judges are being something close to liars when it comes to the obvious meaning of written law and constitutions.On the other hand again, I would say that it would be a mess, legally, if a state actually had a law that banned abortion during such-and-such a trimester but not earlier, for a judge to order damages and compensation to an interested family member for an unborn child killed at an earlier stage because the law had not protected him. That really would be the judge’s writing law de novo. So the whole thing is very complicated as far as where I would agree or disagree with the natural law theorists when it gets to specific practicalities.

  • zippy says:

    <>I’m not at all sure that Zippy wd. agree with you that referring the matter to the other branch is okay, because any so-called “positivist” can do that.<>The devil is in the details. I would disagree that this is <>always<> an option. In particular, when the judge has good reason to believe that justice will in fact be served by such a referral it is obviously not problemmatic and probably obligatory. But if what he is doing is knowingly handing the Christian over to the lions, even if they are the official state lions chartered by the legislature, then no, he musn’t do that. Pilate objectively deserves the gibbet.I’m puzzled by the objection that natural law jurisprudence is only concerned with “outcomes”. Outcomes (judgements) are what judges <>do<>: the natural function of judge is to dispose of particular cases justly under the law. There may well be other intellectual activities precedent to that, but the notion that the judge’s dispositive judgement (that is, the “outcome”) can be truncated from the task of judging seems irrational to me. A judge can’t render judgement without rendering judgement: just judgements (outcomes) are his defining business. His authority can be circumscribed in any number of other ways without falling off the cliff of intellectual incoherence, but “rendering a just decision” isn’t one of them.

  • Rodak says:

    “I love it how “pluralism” is invoked to imply that everything should be legally permissable.”That is, of course, not implied. What is implied is that concensus can be reached concerning the categories and types of behavior that will be permitted, as well as those that will be proscribed. Persons in disagreement concerning any given issue agree to abide by the decision of the majority as an essential element of their freely taken decision to belong to that society. People who can’t so abide, should leave. That is, after all, how this nation, in great part, had its genesis.

  • john di 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.” William Blackstone“…His authority can be circumscribed in any number of other ways without falling off the cliff of intellectual incoherence, but ‘rendering a just decision’ isn’t one of them…” Zippy“…If the parties will at my hands call for justice, then, all were it my father stood on the one side, and the devil on the other, his cause being good, the devil should have right…” St. Thomas MoreI think St. Thomas More wins.

  • Lydia McGrew says:

    “I’m puzzled by the objection that natural law jurisprudence is only concerned with “outcomes”. Outcomes (judgements) are what judges do: the natural function of judge is to dispose of particular cases justly under the law. There may well be other intellectual activities precedent to that, but the notion that the judge’s dispositive judgement (that is, the “outcome”) can be truncated from the task of judging seems irrational to me. A judge can’t render judgement without rendering judgement: just judgements (outcomes) are his defining business. His authority can be circumscribed in any number of other ways without falling off the cliff of intellectual incoherence, but “rendering a just decision” isn’t one of them.”I would say that outcomes are his business insofar, and only insofar, as the system in which he is operating leaves the specific outcome up to him. This may be a lot: He may have the responsibility of deciding what custody arrangement is in the best interests of a child or a mentally disabled person, for example. In that case, he should go for it and bring about the custody arrangement he thinks *is* in that person’s best interests–i.e., just. But if a person has been accused of breaking a law which the judge doesn’t believe should be a law at all, then bringing about the outcome that the person is released instantaneously without trial, even when there is credible reason to believe he has broken the law in question, just isn’t one of the options he has qua judge as far as an outcome. The same is true of maximum and minimum sentences. It may be that the minimum sentence for some action (say, theft) is too harsh or the maximum sentence (for, say, rape) too lenient in terms of objective justice. But sentencing the person to more than the maximum or less than the minimum sentences prescribed by the written law, once the person has been convicted of the act in question, are not authorities the judge has qua judge for bringing about the right or best outcome in the case.

  • zippy says:

    <>I think St. Thomas More wins.<>I think he wins too. I just don’t think he says what you think he says.

  • zippy says:

    <>I would say that outcomes are his business insofar, and only insofar, as the system in which he is operating leaves the specific outcome up to him.<>That is tautological though. At issue is just what that “system” <>is<>: and the notion that it is a positive-law system which does not depend on the natural law for its normative force is (for reasons repeated ad nauseum) self-contradictory.

  • zippy says:

    <>People who can’t so abide, should leave.<>Pshaw. Credulity in the face of that “argument” is its own punishment.

  • Rodak says:

    “People who can’t so abide, should leave.”“Pshaw. Credulity in the face of that “argument” is its own punishment.”Hmmm. Does the term “cheap grace” ring a bell?

  • Anonymous says:

    Can we agree that it is the judge’s office to come up with the most just result (outcomes, again) of which the laws and and its system admit (rules, again)? This should dismay nobody, even positivists. But, of course, nobody has written into the law anywhere that the judge’s job is to achieve a just result where possible. (And, of course, had they tried to write such a law, they would have failed, because defining justice in a legal sense is impossible.) This is the nature of there being a system of law that we try to make coherent (i.e. internally consistent). And everyone understands that this is what law is for. If everyone understands that, then perhaps that is because it is the <> Natural Law. <> I don’t really buy into the business about “many different cultures and systems” upsetting pre-conceived notions of natural law. I will admit that there are lots of people who never had the privilege of living under law at all, and there the rule of might was all they saw. But even in such an environment, they knew when certain things were a violation of their own rights, i.e. were unjust. For those who live under law, ALL believe that law is related to justice. That is not because in those systems it just so happens that it is <> prescribed <> so. There is a sense of justice which precedes positive law, and is the reason people first are willing to abide by law to begin with. As for the judge dealing with a case where an evil law directly demands an inherently unjust decision (say, throwing the Christians to the lions), he has the power, right (and, indeed, duty) to simply declare that he will not abide by such law because that law is not real law, is not binding, and to abide by it would violate true law (i.e. the natural law which supercedes the human law). There can be no valid law which requires of him an immoral act of judging. Tony M

  • Lydia McGrew says:

    The question, though, Tony M., is _how_ he refuses to “abide by” it. Zippy and I are agreed that he must not sentence the Christians to be beheaded or sent to the lions or whatever. Our remaining difference is that I believe that he ought not use his power as judge to order the officers of the court to release the prisoners and issue a court order that the law is not to be enforced against them in the future. Zippy thinks he can and must and that to refuse to administer the law by recusing himself or quitting as a judge (and then doing whatever he can for them as a private citizen) is for him to be irresponsible and to give to the existence of such a written law a force it ought not to have.

  • Rodak says:

    In our culture, we recognize a natural law which is universal, applying equally to all people, everywhere.In other cultures, however, particularly tribal cultures, the natural law that pertains tends to be intra-tribal. A member of one tribe of plains Indians, for instance, would feel guilt about stealing from a member of his own tribe. But if he could manage to steal horses from another tribe, far from feeling guilt, he would feel most righteous. Some tribes acquire brides by the method of raiding neighboring tribes and abducting young women. We would call this kidnapping and rape. For them it is natural law, both sides recognizing the justice of the practice. These are extreme examples, but it is for these kinds of reasons that natural law cannot trump positive law in a diverse, multicultural society.

  • zippy says:

    <>…is for him to be irresponsible and to give to the existence of such a written law a force it ought not to have.<>My only quibble with the paraphrase is that I would say “does not have” rather than “ought not have”. The property we are discussing is the law’s existentially necessary normative property: the “oughtness” of the law. When we take a law and abstract away its normative properties it is no longer a law, because it in no way commands assent, by definition. We have no inherent reason to pay any attention to a putative “law” with its normative properties abstracted away, though we might well as a matter of prudence take into account the consequences of some people mistakenly treating non-normative assertions of the will of the sovereign as normative, or indeed the consequences of frivolous disobedience even of a mistaken and unjust – though immaterially so – command by legitimate authority. But then, even those prudential evaluations themselves receive every iota of normative force they may have from the natural law.

  • William Luse says:

    <>I think he<> [More] <>wins too. I just don’t think he says what you think he says.<>Ditto. If More were a positivist, he’d have sworn the Oath, and thereby saved himself a bit of trouble.

  • john di says:

    “…I think he [More] wins too. I just don’t think he says what you think he says…”When St. Thomas More could not fulfill his duties to the king he resigned his position as Lord Chancellor. He didn’t claim that, as Lord Chancellor, he had the authority to overthrow the law of the land even if that law was bad.

  • zippy says:

    <>When St. Thomas More could not fulfill his duties to the king he resigned his position as Lord Chancellor.<>I suppose that would be more supportive of the contention that More was a legal positvist if anyone in the discussion had ever made the bizarre claim that under the natural law it is always wrong to resign from any position: that nobody who rejects legal positivism ever licitly resigns his post. As it is, though, it looks rather like a straw man.

  • john di says:

    I thought one of your main points was that judges have the authority to overrule bad positive law (law that is inconsistent with natural law) based on their understanding of the natural law (if it’s the correct understanding). I didn’t intend to imply that you thought recusal or resignation to be always unjustifiable but I took you to be saying the best course for a Supreme Court judge is not to recuse or resign but to rule according to the correct understanding of the natural law. My intent in bringing up St. Thomas More was to show that he thought the best course to avoid formal cooperation with an evil act, in his capacity as Lord Chancellor, was to resign and retire. I think this is also what Scalia believes.

  • zippy says:

    <>I didn’t intend to imply that you thought recusal or resignation to be always unjustifiable but I took you to be saying the best course for a Supreme Court judge is not to recuse or resign but to rule according to the correct understanding of the natural law.<>I haven’t taken a position on the “best course” in every circumstance which falls under that abstract description, because I don’t think there is such a thing. The position Lydia is arguing against is my position that there are exceptions to the categorical claim that resignation/recusal is always the right thing to do when positive law attempts something contrary to natural law.<>I took you to be saying the best course for a Supreme Court judge is not to recuse or resign but to rule according to the correct understanding of the natural law.<>It is always his duty to act according to a correct understanding of the natural law, without exception. In some cases it may be his duty under the natural law to actually free the Christians scheduled for slaughter or the Jews scheduled for gassing, not merely to walk away and wash his hands. In others it may be his duty to levy the fine even though he thinks it is excessive. In still others it may be the right thing for him to resign before being caught in a dilemma which he is not prepared to handle: before the kind of case he dreads, which may well make a martyr of him, comes before him. In general, my objection is to the categorical claims of legal positivism, and my own categorical contention is that the natural law is always and everywhere dispositive in every correctly reasoned act of judging.<>My intent in bringing up St. Thomas More was to show that he thought the best course to avoid formal cooperation with an evil act, in his capacity as Lord Chancellor, was to resign and retire.<>And I take exception to generalizing from one-off judgements like More’s to a categorical rule governing all conceivable circumstances.

  • zippy says:

    My last comment got a bit mangled. Rather than trying to fix it (Blogger doesn’t let me edit comments, just delete them) I’ll add this:<>I thought one of your main points was that judges have the authority to overrule bad positive law (law that is inconsistent with natural law) based on their understanding of the natural law (if it’s the correct understanding).<>That is, indeed, one of my main points.

  • Rodak says:

    “I thought one of your main points was that judges have the authority to overrule bad positive law (law that is inconsistent with natural law) based on their understanding of the natural law” Zippy–I’m just curious; wouldn’t a judge who did that violate some kind of oath that he’s taken to uphold that positive law? And, if so, wouldn’t he instead need to either recuse himself, or resign, rather than violate that oath? Or, perhaps, having foreseen the probability of one day needing to violate that oath in the service of natural law, perhaps he should have refused to take that oath from the git-go and sought other work?

  • Lydia McGrew says:

    This should, perhaps, go down in history as a one-of-a-kind date: Rodak and I agree about something.Rodak, I brought up that very point on an earlier thread. Zippy’s position was that positive laws that violate the natural law don’t actually exist at all. They literally aren’t real laws in any sense. So your oath to uphold the written positive law doesn’t apply to them.

  • zippy says:

    <>I’m just curious; wouldn’t a judge who did that violate some kind of oath that he’s taken to uphold that positive law?<>Only if he was a legal positivist or had taken an oath to be a legal positivist. I’ll once again point out that legal positivism is, as far as I know, both as a current and an historical matter, a <>minority<> understanding of jurisprudence in the West; so unless the Judge explicitly solemnly swore to act as a legal positivist it is ludicrous to suggest that his oath binds him to legal positivism. Legal positivists may wish to impose their understanding of “uphold the law” onto everyone, but to claim that anyone who isn’t a legal positivist is breaking an oath is calumny (unless he actually took an oath very explicitly to be a legal positivist, and AFAIK the number of offices in the United States government which require such an oath is exactly zero).The idea that he is breaking his oath is just more question begging. A natural law jurist doesn’t understand his oath to uphold the law to mean what the positivist wishes he understood it to mean.

  • William Luse says:

    <>I thought one of your main points was that judges have the authority to overrule bad positive law (law that is inconsistent with natural law) based on their understanding of the natural law (if it’s the correct understanding).<>And I believe that’s what More would have done with the Act of Supremacy had it fallen within his purview. But it didn’t. Furthermore, More’s circumstances were a little more exigent than Mr. Scalia’s.

  • Rodak says:

    “A natural law jurist doesn’t understand his oath to uphold the law to mean what the positivist wishes he understood it to mean.”Clearly it means whatever the oath-taker understands it to mean. It clearly does mean that he will uphold the positive law, since that visible, codified, positive law is that law to which lawyers and judges refer in establishing legal precedent, etc. If such an oath fundamentally refers to natural law, this should be explicitly stated, since, as I have no doubt, there a plenty of persons taking such oaths who firmly believe the law to be entirely derivative of human reason, with no transcendent components whatsoever.

  • zippy says:

    <>If such an oath fundamentally refers to natural law, this should be explicitly stated…<>Even if I agreed with that, which I don’t, the most you can claim is that the actual oaths as they stand are ambiguous. An unspoken presumption of legal positivism is just that: an unspoken presumption. IOW, question-begging.

  • zippy says:

    <>“Men do not make laws. They do but discover them. Laws must be justified by something more than the will of the majority. They must rest on the eternal foundation of righteousness. That state is most fortunate in its form of government which has the aptest instruments for the discovery of law.”<> — Calvin Coolidge, to the Massachusetts State Senate, January 7, 1914.

  • Rodak says:

    Calvin Coolidge was explicitly religious. His sentiments would not necessarily be convincing to a secular materialist:“Our government rests upon religion. It is from that source that we derive our reverence for truth and justice, for equality and liberty, and for the rights of mankind. Unless the people believe in these principles they cannot believe in our government. There are only two main theories of government in the world. One rests on righteousness, the other rests on force. One appeals to reason, the other appeals to the sword. One is exemplified in a republic, the other is represented by a despotism.” — speech at the unveiling of the equestrian statue of Bishop Francis Asbury, 15 October 1924 http://www.adherents.com/people/pc/Calvin_Coolidge.html

  • zippy says:

    <>Calvin Coolidge was explicitly religious.<>That is completely beside the point. I quoted Coolidge just to support the point that legal positivism is not presumed in talk of upholding the law in our tradition, and that therefore presuming that the oaths judges take are oaths to be legal positivists is question-begging.

  • john di says:

    “…We have no inherent reason to pay any attention to a putative “law” with its normative properties abstracted away, though we might well as a matter of prudence take into account the consequences of some people mistakenly treating non-normative assertions of the will of the sovereign as normative, or indeed the consequences of frivolous disobedience even of a mistaken and unjust – though immaterially so – command by legitimate authority. But then, even those prudential evaluations themselves receive every iota of normative force they may have from the natural law…” Zippy“…As a matter of formal logic, it must be readily admitted that no person in or out of office can set himself or herself above the divine law…” Douglas Kmiec“…I am far from denying that there is a natural law, but I do deny both that we have given judges authority to enforce it and that judges have any greater access to that law than do the rest of us…” Robert Bork“…I agree…that the fabric and the theory of our Constitution embodies our founders’ belief in natural law and natural rights. And while I also share [the] view that judicial review itself emerged as part of the strategy of the founding generation to ensure governmental conformity with natural law and to protest natural rights, I do not draw from this the conclusion that judges have broad authority to go beyond the text, structure, logic, and original understanding of the Constitution to invalidate legislation that, in the opinion of judges, is contrary to natural justice…” Robert P. George“…People, I just want to say, you know, can we all get along?…” Rodney King

  • john di says:

    “…to protest natural rights…”should be “…to protect natural rights…”

  • Rodak says:

    “…to protest natural rights…”should be “…to protect natural rights…”Thank goodness ol’ Freud has been pretty much discredited, eh, John di?

  • john di says:

    “…Thank goodness ol’ Freud has been pretty much discredited, eh, John di?…”O brother…was that the perfect typo or what?

  • zippy says:

    I’ll just point out (yet again) with respect to the Robert George quote that nothing I’ve said is contrary to it. I think greatly circumscribing or even completely dumping judicial review – which is inherently a legislative process – is probably a good idea as a prudential matter. But that in no way circumscribes the judge’s authority <>to decide justly the particular case before him<>.If Bork and Scalia were attacking judicial review or the scope of judcial review as such, I would have no quibble with them. None. But their attack on judicial review is indirect, through the adoption of legal positivism; and this I do oppose, implacably, since at bottom it represents a bald-faced lie about the very nature of the law itself.

  • Lydia McGrew says:

    I’d be (seriously) interested to see a worked example of a case where a natural law judge (imagine it’s you yourself, Zippy) faces a positive law that is contrary to the natural law and disposes of the case before you without engaging in judicial review. I mean, is the difference supposed to be that you don’t say that it’s “unconstitutional,” because that’s not really the point? So you aren’t “striking down” the law but merely annulling it in practice, at least for any case that comes before you? How would that look in the writing of an opinion? Suppose the suit before you requests damages *on the grounds that* the law is unconstitutional? Do you say, “Well, yes, it is unconstitutional, because our Constitution presupposes the Natural Law, and this law is contrary to the natural law”? But isn’t that the same thing as striking down the law as unconstitutional–in other words, judicial review of the law? Or do you say, “It doesn’t really matter if it’s unconstitutional or not, but it is contrary to the natural law, so I order on those grounds that the damages be paid to the plaintiff who was arrested under the law [or whatever]”?I’m just having trouble figuring out how this distinction is supposed to play out in a judicial opinion in actual practice.

  • zippy says:

    <>But isn’t that the same thing as striking down the law as unconstitutional–in other words, judicial review of the law?<>No! Judicial review is where the particular determinations a judge makes in a particular case are legislatively “reflected back” upon the positive laws which pertain. A judge may well conclude that positive law X in this particular case is unjust and therefore not normative; that does not make it obligatory for everyone everywhere to come to the same conclusion about every case everywhere. Legislator is the natural role of making general positive rules in conformance with the natural law for the sake of the common good; judge is the natural role of determining a just outcome for a particular case involving particular people, objects, and events. Those roles are mixed in our polity; but there isn’t anything about them which requires us to mix them.<>I’m just having trouble figuring out how this distinction is supposed to play out in a judicial opinion in actual practice.<>Roe takes Wade to court claiming she can have an abortion whether he wants her to or not. Judge Bob rules that she can’t. Case closed: Judge Bob’s work as judge is done.What the rest of the world does in reaction to that particular judgement – e.g. turning it into a plenary abstract rule which applies everywhere to everyone in all cases; or, say, <>not<> doing that – is entirely distinct from the judge’s decision disposing of the actual particular case in front of him justly.“Judicial review” is a misnomer precisely because what is being done is not the natural act of disposing of a particular case justly, but the abstracting of that particular judgement into a legislated positive rule which applies always and everywhere.Now, there isn’t anything inherently wrong with having people who are judges also make abstract positive law, as is done in common law, stare decisis, and judicial review. Such things are prudential concerns about who performs what function in a given political arrangement. But nevertheless the natural act of judging – disposing of a particular case justly – is naturally distinct from making law. Making general rules and judging particular cases are entirely different things. Bork and Scalia don’t like how the latter is being used to feed the former, and as a result are attempting to destroy the latter and turn it into a mindless positivist machine disconnected from justice. It is incoherent and wrongheaded. If they want to declare war on judicial review, by all means declare war on judicial review. I’ll do my part and set about collecting ammunition, loading weapons, etc. But to declare war on natural law as an indirect way of attacking judicial review is <>insane<>: they need to turn the gun around and aim it <>away<> from their head before pulling the trigger.

  • William Luse says:

    Isn’t there a sort of irony in all this, in that the judges who give us things like the abortion liberty and gay marriage in Massachussetts, are not themselves behaving like positivists? They are, in the sense that abortion is now legal because they say so, but are not in the sense that they couldn’t find the liberty in the text of the constitution. They are compelled to treat that document as a sort of deposit of faith, from which doctrine can develop, as though the natural law were a thing whose depths must be continually revealed, and against which Scalia and Bork react by demanding a return to the text.

  • Rodak says:

    “…as though the natural law were a thing whose depths must be continually revealed…”You mean to say that it isn’t?

  • Lydia McGrew says:

    But if the judge says Roe _can’t_ get an abortion, he’s upholding the written law, so that’s an easy case. He doesn’t even need to mention the natural law at all, just let the positive law take its normal course.I think we have to realize that all of the really interesting cases involved here are cases where both the plaintiff and the defendant (usually the state) are assuming judicial review. The plaintiff wants the law declared unconstitutional; the state wants it upheld as constitutional.So I’ll make one up. Suppose there’s no free exercise of religion clause in the U.S. Constitution, but the doctrine of incorporation has been developed, so supposedly the Bill of Rights applies to the states. So some state passes a law fining people for going to Mass. Mr. and Mrs. Smith sue the state officers for violating their Constitutional rights by putting such a law into effect. They ask for refund of their fines and additional damages for the distress of being put in prison and harassed and such when they wouldn’t pay their fines. Since there’s no free exercise clause, their argument from a positive law perspective is pretty shaky. They say (let’s say) that the state is violating the 14th amendment by removing their “liberty” (to attend Mass) without due process of law. Or perhaps they argue that attending Mass is one of the unenumerated rights mentioned in the 9th Amendment and that the 9th Amendment gives the federal courts power to discern and enforce unenumerated rights. All very questionable from a Scalian or Borkian point of view.You, rightly, believe that fining people for going to Mass violates the natural law. Presumably you would think that the just way to dispose of the case would be at least to require the state to refund the Smiths’ fines and never to fine them again; perhaps you also think justly disposing of the individual case requires awarding of additional damages.How do you word an opinion to this effect that _isn’t_ tantamount to striking down the law fining people for going to Mass? Are you going to say that the law is unconstitutional? Or are you going to say that, regardless of whether it’s unconstitutional or not, it violates natural law? In either case, how do you word it so you aren’t striking down the law? In a judicial opinion, you have to give a _reason_ for disposing of the individual case in the way that you do. And it is that reason that is taken to be a “striking down of the law.” Again, this is because those arguing the case on both sides are assuming judicial review, so they look to your rationale as what makes the opinion apply to other similar cases. It would be extremely difficult to say, “This is against the natural law, so the Smiths should get all their fines back, with interest, and never be fined again. But this has no applicability to other cases.” Why not? After all, if the Jones’s are also fined, and sue, and it comes to you (let’s assume you’re on SCOTUS and have a majority that agree with you), exactly the same thing will happen for exactly the same reason.

  • zippy says:

    <>How do you word an opinion to this effect that _isn’t_ tantamount to striking down the law fining people for going to Mass?<>I don’t see what difference it makes how I word my opinion, or even if I bother to write one at all, if my authority as judge-qua-judge pertains only to the cases in front of me.The <>Roe<> example wasn’t intended to exactly mirror the actual case <>Roe vs Wade<>, and I probably should have made up different names. The point is that my comment stands as written <>no matter what the positive law explicitly asserts or why the case came before me<>. If the positive law said explicitly that Roe can have an abortion, it makes no difference to my comment or my judgement if I am the judge in that case. <>No matter what the positive law attempts to assert as normative<>, I still rule that Roe may not get an abortion, end of story. Roe may go somewhere else to attempt to get permission, but she doesn’t get it from me no matter what the text of the positive law says.I don’t have to claim that my decision has no applicability to other cases. It might well have applicability to other cases if that is how our legal system is set up. Too bad. If positivists don’t want my decision on the particular case before me to have applicability to other cases, they need to address that specifically. IOW, if they have a problem with judicial review, stare decisis, and common law then they need to attack those things, not the natural law.

  • john di says:

    Zippy,Has there ever been a U.S. Supreme Court justice that has acted in a way that is consistent with your understanding of proper jurisprudence?

  • zippy says:

    <>Has there ever been a U.S. Supreme Court justice that has acted in a way that is consistent with your understanding of proper jurisprudence?<>Every time a SCOTUS judge has made a just decision he has acted in a way consistent with my understanding of proper jurisprudence.

  • Rodak says:

    “Every time a SCOTUS judge has made a just decision he has acted in a way consistent with my understanding of proper jurisprudence.”But, coincidentally–or with intent?

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