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.

You Can’t Fool Mother Nature

October 11, 2007 § 3 Comments

“Judge” and “legislator” are natural categories.

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

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

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

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

Sola Constitution

July 11, 2005 § 15 Comments

Conservatives tend to think that getting back to the text of the constitution will make things in our legal regime better: that some form of positivist constitutional originalism will save the day. This impulse is as laudable and yet as much in error as Protestant attempts to get back to the original Church through positivist Bible originalism.

In a lengthy comment thread over at Open Book, a commenter says the following:

I definitely don’t want judges deciding cases on their understanding of natural law. That gives far too much power to judges as the Framers would have understood. Finally, even if the Constitution could be understood as leaving room for natural law interpretivism, your position would still require that Constitutional provisions that are inconsistent with natural law be disregarded. Thus, the Consistution is not the law of the land, but whatever a judge says is natural law is.

The tremendous irony here is that the opposite is the case. Positivism in religion – sola scriptura – has resulted in religion being whatever the individual interpreting the Bible says it is. It has resulted in more than ten thousand different Christian or pseudo-Christian religions. And positivism in law has the same effect. What many conservatives don’t appreciate is that positivism and postmodernism are not opposed to each other but are directly connected faces of the same underlying basic irrationality; an irrationality that results in license to ignore the natural law.

I empathize with originalist positivism as the impulse to put a check on judicial power; but in fact it has the exact opposite effect. Just as Scriptural positivism emancipates the “believer” to construct whatever religion he wants, so legal positivism emancipates the judge to construct whatever law he wants.

In other words, whether this is immediately intuitive or not, failure to embrace constitutional positivism does not rob the constitution of all meaning. In fact, embracing constitutional positivism would rob the constitution of all meaning. Sola scriptura and sola constitution both arise from a desire to rigorously confine meaning to a text; and ironically, both ultimately rob the text in question of all meaning.

As long as the Right in America fails to understand this, and continues to reject the natural law in favor of textual positivism, it will continue to fail in its faux opposition to the excesses of modernism and postmodernism.

Note: post has been updated to clarify that the basic problem is textual positivism or the rejection of the precedent authority of natural law, not originalism-qua-originalism. HT to William Luse.

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