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Via Media


Notes on Catholic Judges:

posted by awelborn

From two places:

From the Boston Globe

From the NYTimes



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Bill

posted August 7, 2005 at 9:45 am


Levinson’s is an interesting analogy comparing differing approaches to interpreting the constitution. As he seems to point out, “catholic” and “protestant” are really just his labels regarding interpretation and they don’t have any religious significance. In addition to the reasons Robert George gives, I think that Levinson’s analogy is lacking, because it feeds into the common tendency to treat the constitution as bordering on divinely inspired Holy Writ by which the constitution is viewed as necessarily consistent with all things good and noble. A better approach, I believe, is to view the constitution as a pragmatic set of rules and procedures that must comport itself to natural law. As such, it is not necessary, as some have tried, to “incorporate” natural law via the Declaration of Independence, the Ninth Amendment or some mysterious “original understanding.” Rather, natural law is “enforceable” simply by virtue of a proper understanding of what “law” is.



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Celine

posted August 7, 2005 at 10:21 am


Should being a Catholic make a difference in the voting record of a politician? Most conservative/orthodox Catholics agree that it should — at least on such matters as abortion and gay marriage and embryonic stem cell research. Well then, should being a Catholic make a difference in the voting record of a judge? If so, then there should be no surprise — and no self-serving accusations of irrational bigotry — when Catholic judicial candidates are scrutinized for the Catholic values they bring to the job. If not, then we have no basis to complain on Catholic grounds about the positions a Justice Brennan or Tawney or Kennedy have taken on abortion or slavery or gay rights. Let’s make up our minds, because we can’t have it both ways.
Catholics often try to dodge the issue by claiming that Catholic judges should just interpret secular law in light of Natural Law. But this assumes that the demands of Natural Law on secular law are immediately self-evident, when a Justice Blackmun’s or a Thomas Jefferson’s version of Natural Law is obviously significantly different from what a Pius IX’s or Benedict XVI’s would be.



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Nancy

posted August 7, 2005 at 11:10 am


I’m wondering if the real question isn’t, “Have American secular (Constitutional) values and Catholic values so divered that they cannot now be reconciled?”
If so, a judge may be put to the point of having to make a choice between his vow to uphold the Constitution and his duties as a Roman Catholic.
If this is true – and I am far from sure that it is – then Roman Catholics should not be American judges (in the same way, and for the same reason, that Roman Catholics should not have been officers in the Gestapo (though they were, of course)). Furthermore, the secular society is right to reject a candidate who cannot be depended upon in all circumstances to keep his vow to uphold the Constitution.



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Celine

posted August 7, 2005 at 11:32 am


Nancy:
You’re right to ask the question. But of course the American Catholic dodge is typically to simply deny that the Constitution conflicts with Catholic values, even if a legally authoritative interpretation of the Constitution (as in Roe v. Wade) says that it does. Catholic lower court judges are already in the pickle that you describe since they are bound to recognize and enforce a “right to abortion” as precedent even though they cannot consistently believe that such a thing actually exists.



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Jason

posted August 7, 2005 at 11:41 am


A judge, unlike a legislator, is a fact-finder. His job is to state facts: this is what American law says. It seems that would not conflict with his convictions as a Catholic Christian, even if he had to factually rule that American law or the Constitution permits an immoral action. Has the Church specifically addressed the role of judges, as she has of politicians in general?



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DarwinCatholic

posted August 7, 2005 at 2:11 pm


Celine,
The key, I think, is that those political conservatives who are saying that there should be no “religious test” against Catholic nominees do not maintain that Roe should be overturned because it is contrary to Catholic teaching, but rather that it should be overturned because it is bad constitutional law.
Now, although the argument that Roe was an example of outcome-based constitutional analysis (We’d really like to legalize abortion nationwide, how can we read that into the constitution?) is accepted by people of a wide variety of moral views regarding abortion, it is clearly those who actually believe abortion to be wrong who are most motivated to see the ruling reconsidered. (For example, I think the Brown vs. Board of Education decision was, though not as excessively as Roe, essentially a piece of judicial legislation — however since I’m more than happy to see segregation remain illegal, I wouldn’t do anything in particular to hurry a reexamination of it.)
In this sense, when politically conservative Catholics criticize justices like Kennedy or Brennan, although there is certainly a moral aspect to the criticism, their primary beef is (or at least should be) that those justices supported an “exercise of raw judicial power”. And conversely, politically conservative Catholics (and pro-life Catholics in general if they are being clever about it) should be more concerned about getting conservative jurists on the bench than specifically getting Catholics on the bench. An agnostic originalist would do us more good than a Catholic like justice Kennedy.



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David Kubiak

posted August 7, 2005 at 2:44 pm


Historically fear of Catholicism in American public life was fear of civic tyrrany, not entirely without foundation given the alliance of clericalism and reactionary monarchism in the 19th century. Insofar as it extended to morals, anti-Catholicism did not presume too high a standard, but too low — Catholics were sneaky, sexually loose, drunkards, etc. As others have said, there should be no absolute conflicts for a Supreme Court Justice, whose only duty is to the Constitution itself, since nothing in its text conflicts with essential Catholic teaching. It is only perverse interpretations that do. (Had Justice Scalia opposed capital punishment he would not have had to invoke the Pope for support, simply the fact that the death penalty can no longer be seen as a punishment that is not “unusual”.)
What a friend Mr. Roberts has in having Senator Durbin as an enemy. There are few politicians who appear so completely unaware of their feeble-mindedness.



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Caroline

posted August 7, 2005 at 3:04 pm


I was uneasy about Levinson’s description of Tradition in the Catholic sense. As a Catholic I accept Sacred Tradition but consider accumulated non sacred traditons optional. As I look around me, I notice that many Catholics are very very serious about the non sacred accumulations over the past 2000 years and look at me askance because I take a live and let live attitude toward them. My fear for my own faith is that before I die I will have to accept hoary non sacred traditions as Sacred Tradition. I wish I knew with certainty what is once and for all Sacred Tradition from which can come legitimate development and what is opinion, theological theory, folklore, etc. One can spin both the Constitution and the faith just so far and the “chewing gum” (pardon the image} just breaks.



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Nancy

posted August 7, 2005 at 3:07 pm


A great many people, including many people who favor abortion rights, think that Roe was bad law and should be overruled. I think so myself, and I would think so even if I favored abortion, maybe especially so. I believe that we need to have a national conversation on this subject, and the result of Roe has been that we just end up screaming at each other.
David is right, I believe. A Supreme Court Justice is charged to be certain that legal decisions and legislation all conform to the Constitution. (Thank you, John Marshall.) Since the there is nothing in the Constitution itself which is offensive to good morals or Catholic teaching, there should be no conflict between being a Catholic and serving on the Court.



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Bill

posted August 7, 2005 at 3:15 pm


Jason,
The job of judge is not primarily to be a fact-finder. Usually, the job of fact-finder is assigned to a jury. Rather, the job of the judge in our system is to determine what the law is. This is the essence of judicial review. Remember, as somebody once pointed out, the constitution is not a suicide pact. A posititve law which violates the natural law is a nullity and, since our system requires judges to say what the law is, judges in our system should declare the nullity of “laws” that are, in fact, nullities. There will always be prudential questions to be answered. The classic question involves whether prostitution should be aggressively suppressed in Paris or whether the harm done by such suppression would outweigh the good of extirpating immoral activity. But, the question of the moment, whether there can be considered to be a right to abortion, does not admit any such prudential deference, since the immoral act under consideration involves the murder of children. The approach you seem to suggest would require Catholics to privatize their faith and to ignore the reality of what is and is not legal. An honest and truthful jurisprudence may be objectionable to non-Catholics, but that hardly seems a reasonable basis to pretend that the truth is otherwise than it is.



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Jason

posted August 7, 2005 at 3:34 pm


Bill,
But it seems that’s just the point Celine was making.
As Catholics, we understand what a judge SHOULD be.
A person who accepts a nomination as judge in America, however, is expected to deliver what the American law and constitution say. He is promising to fulfill the expectations of the office, to leave his own opinions out, and to discern what the American law says. Ideally, we would like for judges to be able to trump American law with natural law. But I don’t think this is what is asked of them when they are nominated.
For example, obviously, the American permission of abortion is not a legitimate law, and if a judge were acting under the ideal of a Catholic judge, he would nullify it. As an American judge, however, his role is not to lecture American law on what is and is not just. His role is to accurately communicate what the law says.
Perhaps I’m mistaken and the American system does allow for personal activism as a judge (based on natural law). But assuming it doesn’t, as it doesn’t seem to, perhaps a Catholic cannot legitimately serve as a judge, as Celine says. Or else, to rule what American law says, even if American law is unjust, would not involve a cooperation in the unjust law. It would simply involve a factual presentation of what AMERICAN law is, leaving it to legislators to change it. I’m not a moralist, so I’m just hypothesizing.



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Bill

posted August 7, 2005 at 3:42 pm


Celine,
I agree with you that being a Catholic should make a difference in how a judge approaches the law and that many Catholics try to skirt this reality by crying, “Prejudice!” and “Religious bigotry!” However, I disagree with what I take to be your understanding that the Constititution somehow obligates one to be a legal positivist. This simply isn’t the case and it is not consistent with our history. Look at the case Pierce v. Society of Sisters, where the Supreme Court recognized the right of parents to send their children to private schools. Maybe there were other ways of justifiying the result the court reached, but what the court did was simply recognize the natural rights of parents to educate their children. (“Children are not mere creatures of the state.”) The court did not engage in a mechanized application of the do’s and dont’s of the Constitution, which would seem to require a contrary and unjust result.



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Bill

posted August 7, 2005 at 3:50 pm


Nancy,
A positivist reading of the Constitution (of the sort with which Justice Scalia would be comfortable) would say that there is no constitutional right to abortion, but that the constitution allows states to have permissive abortion laws. Clearly, such laws are contrary to the natural law and to Catholic teaching. As such, the Constitution would permit what is, in fact, forbidden and should create a difficulty for the legal positivist Catholic judge. This is precisely the difficulty that Scalia recognizes in his jurisprudence.



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Bill

posted August 7, 2005 at 3:58 pm


Justin,
I’m not saying that judges should impose their legislative preferences on unwilling majorities. What I am saying is that judges should enforce the objective natural law. Saying this, I recognize that there are erroneous opinions about what is included in the natural law. Ultimately, the final arbiter of the natural law is the Church. I recognize that this sits uneasily with our history which is rife with anti-Catholicism, but such history does not change reality or alter the proper role of a judge.



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Bill

posted August 7, 2005 at 3:59 pm


Oops, that should be Jason, not Justin. I apologize.



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catholic

posted August 7, 2005 at 4:22 pm


“Since the there is nothing in the Constitution itself which is offensive to good morals or Catholic teaching, there should be no conflict between being a Catholic and serving on the Court.”
It isn’t necessarily what is in the Constitution that opposes Catholic teaching, but what isn’t in it. The best example of this is protection for the unborn. If I take an “original intent” and “literalist” (read conservative) view, I cannot find protection for the fetus before quickening. (The laws at the time the Constitution was written held that abortion was legal until quickening. And even after quickening, abortion was not murder.) The only way I would be able to find protection before quickening would be to interpret the Constitution through some set of values (societal or religious) which did not hold at the time the Constitution was written and hence read into the law that which is not there.
I believe a Constitutional amendment is what we need to clarify the matter. Until then, I think there is at least one conflict between Catholic moral teaching and a conservative view of the Constitution.
peace



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Bill

posted August 7, 2005 at 4:39 pm


Catholic,
An amendment would clarify the matter, but it is not strictly necessary. As a stated above, the conflict you see is not with a “conservative” view of the constitution, but rather with a “positivist” view.



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catholic

posted August 7, 2005 at 4:53 pm


Bill, I just did a little internet search on legal positivism, so I almost understand what you are saying.
What percentage of judges would you say hold to legal positivism?
Seeing the distinction between legal positivism and natural law makes me think it entirely relevant to ask a judge about his religious beliefs, especially a Catholic, since it may have great relevance to his judicial philosophy.
peace



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Bill

posted August 7, 2005 at 5:32 pm


Catholic,
As for judges on the right, the “conservatives”, I’d say that just about all of them are legal positivists to one degree or another. They try to reign in liberal judges by saying that the role of the judge is quite limited and that a judge should basically defer to legislatures, except in those instances where there is some textual basis to thwart a democratically reached decision. Many of them would be hard pressed to justify the results reached in cases like Pierce (finding a parental right to send children to private schools) or Brown (finding that separate schools for blacks are inherently unequal), but they would almost unanimously uphold these cases as being part of the settled law. Liberals like Justice Brennan who believed in a “living Constitution” whose meaning is constantly changing could possibly be considered positivists to the extent they were actually bound to a constitution or to a democratically enacted statute. However, in practice, they are generally not constrained by anything other than their preferences. (Or as legal theorist Ronald Dworkin would have it, by their public “reasoning.”) Hence, the appeal to many of textualism or originalism. The problem I see with originalism is that, however well intentioned, it distorts the role of the judge and puts a misplaced faith in democratic majorities (or supermajorities). Essentially, it is a pact with the Devil. However, in the short to intermediate term, if Roe is to be overturned, it will be by originalist judges, not by natural law judges.
I don’t know that it is really necessary to ask a judge about his religious beliefs, but it amazes me the extent to which many conservatives are willing to accept a Supreme Court nominee like Roberts, who has studiously avoided articulating his judicial philosophy. I don’t have a TV, but I happened to see some of the Sunday morning public affairs programs this morning and the commentators on them were busy guessing whether Roberts would be more like Scalia or like O’Connor. I believe that it is outrageous that this has to be a matter of guesswork. The nominee should simply explain his philosophy and how he would apply it. If he were to do this, questions about his religious beliefs and the procedures he went through to adopt his children could be ignored.



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Celine

posted August 7, 2005 at 5:36 pm


Bill:
You cite Pierce v. Society of Sisters, which read into the Constitution a principle about the right of parents to educate their children in religion, as the sort of “natural law” decision that you like. The bitter irony of your argument, however, is that Pierce is the product of the Lockner-era Court that conservatives/originalists are all supposed to hate because it is seen as a precursor to the very sort of thing the Court did in Roe.
In fact, Roe v. Wade cited Pierce v. Society of Sisters in support of finding a right of privacy that includes abortion analogous to the concept of family privacy that Pierce discovered in the Constitution.
You are assuming that the Natural Law Catholics believe in will be the of the sort that others do. Lots of people, including Supreme Court Justices, believe in a species of Natural Law or Natural Rights that denies the State authority over the control our bodies to the degree that it cannot compel and unwilling woman to maintain a pregnancy. Once you start down the Natural Law path, the next question is: Whose Natural Law? And which version of Natural Law are Catholic judges obliged to follow?



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Bill

posted August 7, 2005 at 5:53 pm


Celine,
I don’t deny or minimize the possiblity that the court could missaply or misinterpret the content of the natural law or that it has done so in the past. What I am saying that the natural law is objective and that the authoritative interpreter of the natural law is the Catholic Church. The fact that the Chuck Shumers of the world could use a frank acknowledgement of this fact to say, “Aha! This violates the Wall of Separation between Church and State!” does not change the reality of it. Moving away from the realm of political machinations and sound bites for a moment, I think that it is time for Catholics to acknowledge that it is in no way improper for judges to give effect to the natural law. Indeed, this is a fundamental part of their job, even if they decide to shirk the responsiblity of doing it.



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Nancy

posted August 7, 2005 at 6:22 pm


Bill, your most recent is a lengthy and formalized version of “Catholics are Right And Everyone Else Is Wrong.”
Whereas this may well be true, you can perhaps see that this is not a persuasive “argument.”



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Liam

posted August 7, 2005 at 6:30 pm


The American understanding of separation of powers (legislative, executive and judicial) is fairly remote from the Roman understanding of a sovereign. It’s even attenuated from the British understanding of King-In-Parliament, where all three branches of government are bound up in the person of the sovereign.
So, much of classic Catholic teaching on the responsibilities of those in government does not exactly fit key-in-lock into the our understanding of a judge’s role as a mere articulator of law. So don’t assume that, because we think that as a positive constitutional matter, that the Church necessarily defers to such an understanding in ordinary and sticky situations.
Just like the Church hasn’t fully engaged the idea of popular sovereignty and how traditional moral theology of public acts is most aptly applied to popular government (which was certainly not unkownn to the Church in the past, but it was not as pervasive as it is now, and its self-understanding was more familial-tribal in model than our self-understanding).
I am not saying that the Church has no answers here; just that we should be careful not to assume one way or the other. It is quite possible to be between gears in doctrinal development and the practical application of moral theology. Caution is prudent, in such a case.



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Victor Morton

posted August 7, 2005 at 6:34 pm


What I am saying that the natural law is objective and that the authoritative interpreter of the natural law is the Catholic Church.
Either this fact is expressed in some institutional sense (the USCCB or some similar body, perhaps even the Vatican itself, as Super Supreme Court), and you have created a theocracy with the Church as ultimate holder of secular power — a stance impossible to reconcile with the last more than 100 years of the Church abjuring the institutional holding of secular power. Not to speak of its incompatibility with Catholic citizenship in non-confessional polities.
Or this fact is not expressed in some institutional sense, and it therefore is, for the purposes of a discussion of government, completely and totally irrelevant. Of no quiddity or importance or salience whatsoever. None.
The fact that the Chuck Shumers [sic] of the world could use a frank acknowledgement of this fact to say, “Aha! This violates the Wall of Separation between Church and State!” does not change the reality of it.
Until you see the difference between governing and philosophizing, you’ll never understand that “the reality of it” and 50 cents will get you a cup of coffee.



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Bill

posted August 7, 2005 at 6:58 pm


Nancy,
I’m not arguing a point, but rather I am merely stating conclusions in a context where I believe an understanding of much of Catholic teaching can be taken as a given. Natural law is accessible to all men, regardless of faith or lack thereof. An argument to a religiously diverse population in favor of natural law would walk people through the steps of how a person knows that murder is wrong, even if there were no statute prohibiting it and, more generally, of how there is a moral code inscribed in people’s hearts. There are certainly religiously neutral ways of arguing against the licitness of abortion, but ultimately I don’t think one can honestly refuse recourse to the Church as the final arbiter of the natural law. This may create difficulties in a Protestant or nonsectarian country such as ours, but I think even anti-Catholics acknowledge the truth of this reality, when you see groups like Dignity and Catholics for a Free Choice, whose only purpose is to subvert the Church’s articulation of the natural law, since these enemeies of the Church recognize that ultimately it is the articulation of the truth about the natural law by the Church that is the primary obstacle to achieving their perverse ends.



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Bill

posted August 7, 2005 at 7:20 pm


Really, Victor, quiddity?!
What I am saying is that it is vital for Catholics to recognize what their goals and ideals actually are. I, personally, would accept a Supreme Court nominee who was Nino Scalia, Jr., even while acknowledging the limitations of his approach to the law. But it is one thing to say that an originalist would be an acceptable Supreme Court justice under present circumstances and another to say that an originalist is somehow anything better than a concession to the perceived political climate. An inability to “philosophize” and to know what your goals actually are soon results in a failure to have any goals at all that may be distinguishable from whichever political group you have decided to hitch your wagon to.
As for claiming that acknowledging the authority of the Church to define the natural law somehow would turn a government into a theocracy, I think your assertion demonstrates how many well-intentioned Catholics can easily slip into the error that the mythical separation of Church and State is actually a good thing that may even be required of them to assent to as Catholics. Just because the Church may point out that a polity cannot licitly enact a permissive abortion law, much less proclaim a fundamental right to abortion, in no way renders a government that heeds that instruction a theocracy. It is merely a recognition that there are indeed limits to what majorities (or monarchs or oligarchs, etc., etc.) may licitly do.



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Victor Morton

posted August 7, 2005 at 7:34 pm


in no way renders a government that heeds that instruction a theocracy
If the Church “pointing out” (what DOES that mean exactly) this creates any legally “thing” (quid) or is in any way legally binding, then, yes it does [create a theocracy].
If it is not binding, then this situation is not different than the status quo, where the Church proposes, rather than imposes, and eschews secular power. (You are aware that abjuring secular power is the Church’s current teaching, no?)
It is merely a recognition that there are indeed limits to what majorities (or monarchs or oligarchs, etc., etc.) may licitly do.
And these limits have legal quiddity … how?



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Bill

posted August 7, 2005 at 8:26 pm


Victor,
The legal quiddity I respectfully suggest is thus:
The Church articulates definitively what the natural law is. I would be hard pressed to quote you chapter and verse, but on abortion, I would refer you initially to John Paul II’s Evangelium vitae. This is not to say that abortion was somehow consistent with the natural law prior to 1995, but that the Church resolved whatever honest doubts there may have been in this regard by 1995 (if indeed it did not do so in a definitive manner previously, which I imagine it had already done).
From your questions about what is and is not legally binding and about the limits of what governments can do, I’m concluding that you are failing to grasp the difference between actions a government may licitly undertake and those, although illicit, it may undertake and put into effect as if such actions were licit. For example, clearly there are permissive abortion laws in the US and elsewhere which are treated by various governments as if they were licit. However, these laws are not legal in the true sense any more than the laws providing for the extermination of Jews in Vichy France were legal in the true sense. The fact that injustice happens should not surprise anyone at this late date. However, merely because something is done under the color of law does not make it legal. If it did, we’d all be legal positivists. Acknowledging this reality hardly makes a government a theocracy. The pope is still not setting marginal tax rates or impeding crackpot No Child Left Behind legislation. Rather, the Church is merely saying that, while a state can make whatever laws it wishes, it cannot kill children.



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Liam

posted August 7, 2005 at 8:33 pm


“Rather, the Church is merely saying that, while a state can make whatever laws it wishes, it cannot kill children.”
Actually, I think that miscontrues what the Church is saying. Public funding excepting, is the state killing children per se? Rather, this is a more nuanced case of a sinful omission, whereby the state is failing to enact positive law that to protect prenatal persons.
An important distinction worth keeping in mind, especially because it underscores the state’s affirmative duties that it cannot shirk without risk of sin. This distinction thus does tend to rub against American understandings of the duty of the state.



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Bill

posted August 7, 2005 at 8:38 pm


Liam,
Point well taken. My underlying position on the enforceability of the natural law and on whether a state that recognized the natural law could be deemed a theocracy remains unchanged.



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Septimus

posted August 7, 2005 at 8:39 pm


The problem with Levinson’s clever and facile analysis is that he never accounts for Venerable Cardinal Newman’s theory of the development of doctrine. Just because Catholics aren’t “rigid” about Scripture doesn’t equal permission to make it say whatever one pleases.
Being clever, however, doesn’t make one smart.



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Septimus

posted August 7, 2005 at 8:43 pm


I must try to read my posts before actually posting them. Were my final two sentences in reverse order, my little comment would read better.
And I would prefer to describe Newman’s essay on the development of doctrine as more than “theory”; let us call it his “insight,” because it is a significant contribution, a very helpful one.



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Septimus

posted August 7, 2005 at 9:10 pm


Personally, I want to thank Victor for using the word “quiddity.” As one who gets curious stares and mocking responses from friends for using words they never heard (most recently, “piquancy”), I am encouraged.



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Bill

posted August 7, 2005 at 9:20 pm


Now, Victor, look what you’ve done!



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Ronny

posted August 7, 2005 at 9:50 pm


The best example of this is protection for the unborn. If I take an “original intent” and “literalist” (read conservative) view…
Perhaps someone has quibbled with this already and I missed it, but originalist and literalist interpretations are not the same thing. I have known of literalists (Scalia being the one I have in mind, I believe, but someone please correct me if I’m wrong) who have made a point of saying that they eschew attempts to determine original intent in their jurisprudence.



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Ronny

posted August 7, 2005 at 10:17 pm


BTW, I should nuance the above by saying that it is my understanding that there is also a difference between original intent and original meaning. The former seeks to determine what the minds and motives of the lawgivers were in making a law, whereas the latter looks only to the meaning of the words of the law itself at the time of its enactment. Thus, I suppose that the word originalist could be used to refer to both kinds of jurisprudence despite their differences in approach.



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Victor Morton

posted August 7, 2005 at 11:00 pm


From your questions about what is and is not legally binding and about the limits of what governments can do, I’m concluding that you are failing to grasp the difference between actions a government may licitly undertake and those, although illicit, it may undertake and put into effect as if such actions were licit.
Um, no, Bill. I grasp it quite perfectly. Indeed the distinction between law and morality, between “is” and “ought,” is the very centerpiece of what I’m arguing. But precisely BECAUSE that distinction exists, there is no such thing as “actions … it may undertake and put into effect as if such actions were licit.”
Either you’re using the word “licit” in a legal sense, in which case the statement is tautologically true (“everything the law does is legal”). Or you’re using the word “licit” in its moral sense, in which case the set is empty for a different reason. No legal positivist worth his salt would say that “actions … put into effect” under the cover of law are, on that basis, moral or right. I have nowhere defended (nor would I defend) the morality of permissive abortion laws or permissive contraception laws or homosexual “marriages” or Jew-deportation laws or whatever example tickles your fancy.
For example, clearly there are permissive abortion laws in the US and elsewhere which are treated by various governments as if they were licit. However, these laws are not legal in the true sense any more than the laws providing for the extermination of Jews in Vichy France were legal in the true sense.
The laws you mention (and yes, even the Jew extermination laws) are legally licit. All laws are, by definition, legally licit (analysis above). What I’m not sure you’re seeing about us legal positivists is that we would not say that anything follows from that about its moral licitness. We would say unjust laws bind government functionaries qua government functionaries (though not binding on the actions of government functionaries qua men, or to use noted legal positivist Thomas Aquinas’ formulation — not binding in conscience). Some laws even should be disobeyed, a distinction Thomas himself even made the distinction between an unjust law that should be obeyed anyway (though he says they’re never binding in conscience) and one that must never be obeyed (mandatory worship of idols is his example). But such laws cannot be disobeyed under the cover of law — which is contradictory in terms.
Keep in mind, Bill, that legal positivism is merely a theory of government structure, it has nothing at all to say about morality as such or the substantive content of law. If you wish to say that this is empty proceduralism and that a corrupt and vicious society can be poured into a positivist pot as easily as a good and virtuous one, you would have a serious point. I could only shrug and say that I prefer the inevitable consequence of laws not being significantly better or worse than the character of the people, to laws being the decrees of an unaccountable clerisy whether with black robes or crooks and mitres. (And those in fact are the choices; this is basically Aristotle’s argument for a mixed regime against Plato’s rule by philosopher-kings.)
However, merely because something is done under the color of law does not make it legal.
That’s EXACTLY what the color of law does — make something legal. Why is that bad since nobody is saying that would make it moral, and no legal positivist ever would?
Acknowledging this reality hardly makes a government a theocracy.
What does “acknowledging this reality” mean? You’re being very vague about how natural law as definitively pronounced by the Church can be enforced as a legal matter. And yes, giving the Church an institutional role in determining positive law is pretty much the definition of a theocracy. And contrary to the Church’s own eschewal of institutional secular power in modern times, a point I have repeatedly made and on which you have been silent. Obviously, the theocracy can be more or less intrusive in the details — from the Rushdoonyite crazies to the merely negative veto power of making the USCCB a Super Supreme Court (though I think the power would go to their heads within a generation, just as it did the robed clerisy of the Warren and subsequent eras). But that’s just detail.



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Zippy

posted August 7, 2005 at 11:42 pm


Victor presents what he seems to see as two mutually exhaustive options that follow from the natural law being objective:
Either this fact is expressed in some institutional sense…
Or this fact is not expressed in some institutional sense, and it therefore is, for the purposes of a discussion of government, completely and totally irrelevant. Of no quiddity or importance or salience whatsoever. None.
In the second case the natural law being objective is no more and no less relevant than (for example) the rules of logic being objective. Claiming that the natural law is of no legal quiddity is precisely the same as claiming that rationality itself is of no legal quiddity, if we have stipulated that the natural law is objective. People disagree about the conclusions of reason all the time, but to conclude from the fact of disagreement that reason itself is therefore irrelevant is precisely what positivism gets you.
The rules of basic rationality are not formally expressed in some textual or institutional sense; yet somehow they still have relevance in legal reasoning.



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David Kubiak

posted August 7, 2005 at 11:47 pm


I think it would be entirely possible through application of original intent analysis to say modern science has shown us that life begins at conception and therefore constitutional protection of it is mandatory. We already have the truly bizzare situation of convicting people for the murder of two people if they kill a pregnant woman, while at the same time allowing unlimited abortion. The law, quite apart from what the Catholic Church teaches, is self-contradictory in this matter, suggesting that it would not take a specfically Catholic analysis to overturn Roe.
A constitutional amdendment seems to me impossible so long as polls consistently show that the majority of the country is in favor of legalized early term abortions.



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Zippy

posted August 8, 2005 at 8:12 am


I wrote:
The rules of basic rationality are not formally expressed in some textual or institutional sense; yet somehow they still have relevance in legal reasoning.
Notice too where insisting that the natural law has no quiddity gets you: suddenly reason itself is irrelevant and everything reduces to a raw contest of wills. In other words, positivism and postmodernism are two sides of the same coin. Positivism attempts to bring rational hygiene into an arena of competing points of view by conceding quiddity only to formal constructs, and the result is that rationality itself is banished entirely.



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Donald R. McClarey

posted August 8, 2005 at 8:18 am


To all the posters who would like to have federal judges use natural law in reaching their decisions, all they need to do is to have a constitional amendment passed allowing judges to use their views of natural law to interpret the constition. I would pay to hear the congressional debates on that one!



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Zippy

posted August 8, 2005 at 8:34 am


To all the posters who would like to have federal judges use natural law in reaching their decisions, all they need to do is to have a constitional amendment passed allowing judges to use their views of natural law to interpret the constition.
Actually that isn’t necessary at all. Positivists attempt to present positivism as the only allowed and only rational jurisprudence, but the reality is that it is a novelty and that the law has never been interpreted in a positivist manner by the courts in the West. Positivists are free to argue that their novel approach should be used, but anti-positivists are just as free to point out that positivism is fundamentally irrational.
And if positivists think that legal positivism should be required, it is more than a little ironic that they don’t insist on an amendment to that effect themselves. This is quite parallel to protestants who insist on sola scriptura and ignore the fact that sola scriptura isn’t in Scripture.



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Donald R. McClarey

posted August 8, 2005 at 9:08 am


Zippy, the Constitution grants all the powers that the Judiciary possesses. They do not have the power to use natural law, or any other formulation that boils down to the judge doing whatever he feels like, in interpreting the Constitution. Some judges do this anyway, but it is in clear violation of the plain text of the Constitution, and a betrayal of their judicial oaths. Judges are not arbitrary kings, and a wooly concept such as natural law, which gives endless discretion to judges, gives them the power to act like arbitrary kings and do as they please.



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Nancy

posted August 8, 2005 at 9:29 am


I’m still struggling with this one.
We’re talking about government here, not about the Judgment Throne of God. And that we are talking about government introduces a new level of discussion.
Because something is morally wrong, even gravely morally wrong, does not necessarily mean that it should be illegal, that the machinery of the State should be invoked to pursue and punish it. Hundreds of examples of grave moral wrongs which arguably should not be illegal, or which are not in fact in this country illegal, leap to mind. Adultery. Prostitution. Fornication.
The list used to be quite a bit longer. Our ancestors did not feel that the State ought to, or could effectively, stick its nose into every crevace of our lives. Wife-beating, for example, (or husband beating for that matter) was not illegal in former times, nor was the rape of one’s wife. The law, it was felt, was out of place trying to regulate the relationship between spouses.
Isn’t it possible to argue – and hasn’t this argument been made? – that abortion, while a grave evil, is not amenable to the oversight of the State? Women have been aborting themselves since the dawn of intelligence, probably. My grandmother did it with the legendary coat hanger.
That this is disgusting (to say the least) is obvious. So are some of these other grave wrongs.
The real question on abortion is not, for example, “When does life begin?” No sane person argues that somehow in the development process dead matter becomes alive. Nor, “when is the conceptus human?” He or she was always human, what else? The real question is, “When should we/can we extend the protection of the State to this new individual?” I need not remind the learned here that ancient societies, perhaps moved by very high infant mortality, did not protect the newborn even if he or she were born gravely disabled or simply unwanted. Partly this might have been because considering the circumstances, and considering the rather limited resources of the State, such protection was, as a practical matter, impossible. (They had their hands full with the murder of adults, and didn’t always sanction that even.)
Wouldn’t it be possible for a Catholic to believe that abortion is indeed gravely wrong, but at the same time to believe that for reasons of practicality, if for no other reasons, early abortion is not a practical or possible area for State action?



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Zippy

posted August 8, 2005 at 9:29 am


So somewhere in the Constitution it must say something to the following effect:
“Legal positivist jurisprudence is required of judges in the exercise of their duties. The natural law jurisprudence heretofore practiced in the Anglo-Saxon legal system is hereby specifically prohibited.”
What article and section is that?



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Ronny

posted August 8, 2005 at 9:30 am


Seeing as “theocracy” keeps getting mentioned with ominous overtones in this thread, here is the OED definition of the word.
A form of government in which God (or a deity) is recognized as the king or immediate ruler, and his laws are taken as the statute-book of the kingdom, these laws being usually administered by a priestly order as his ministers and agents; hence (loosely) a system of government by a sacerdotal order, claiming a divine commission; also, a state so governed: esp. applied to the commonwealth of Israel from the exodus to the election of Saul as king.
I think this word is being a little too loosely in some of the above posts.



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Zippy

posted August 8, 2005 at 9:32 am


Sorry, meant to link here.
There is no positive law that requires legal positivism. Which is really quite ironic, when you think about it.



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Ronny

posted August 8, 2005 at 9:35 am


Isn’t it possible to argue – and hasn’t this argument been made? – that abortion, while a grave evil, is not amenable to the oversight of the State?
Yes, this argument has been made, and the response is that the state’s commitment to defending the lives of its citizens is more fundamental than any of the other protections it affords.



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Zippy

posted August 8, 2005 at 9:39 am


Legal positivists who want to have their approach enshrined in positive law ought to go through the amendment process to accomplish their goal; they shouldn’t ask that it be legislated into effect by judges who claim to see it implicity in the emanations and penumbras of the constitution.



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Donald R. McClarey

posted August 8, 2005 at 9:46 am


“So somewhere in the Constitution it must say something to the following effect:
“Legal positivist jurisprudence is required of judges in the exercise of their duties. The natural law jurisprudence heretofore practiced in the Anglo-Saxon legal system is hereby specifically prohibited.”
What article and section is that?”
Zippy, the Constitution vests limited powers in the federal government including courts. It is a government based on a written Constitution, not an unwritten Constitution such as existed in Great Britain. The type of power you wish judges to have would have involved the framers in Article III adding the following section: “Ignore all other sections of the Constitution. Judges will have the power to make their decisions based on natural law. They will have all the real power under this new government and be the actual rulers of the United States of America.”



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Nancy

posted August 8, 2005 at 9:47 am


Yes, this argument has been made, and the response is that the state’s commitment to defending the lives of its citizens is more fundamental than any of the other protections it affords.
That it is “fundamental” does not make it possible, practical or appropriate.
Anyway, “protecting the lives of its citizens” is not the most fundamental purpose of the law. The most fundamental purpose of the law is keeping order. To that end some lives have always been subordinate. And still are. Eg, capital punishment. In former times there were more exceptions, for example, the formal duel.
A friend of mine, here in California, under unusual circumstances, has been instructed, by the sheriff, to shoot a certain man on sight. This is in the interest of keeping order, and this is, in my opinion, the correct instruction under these circumstances.



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Ronny

posted August 8, 2005 at 9:52 am


As a follow-up to my last post, here is Pope John Paul II making the same point at more length:
Certainly the purpose of civil law is different and more limited in scope than that of the moral law. But “in no sphere of life can the civil law take the place of conscience or dictate norms concerning things which are outside its competence”, which is that of ensuring the common good of people through the recognition and defence of their fundamental rights, and the promotion of peace and of public morality. The real purpose of civil law is to guarantee an ordered social coexistence in true justice, so that all may “lead a quiet and peaceable life, godly and respectful in every way” (1 Tim 2:2). Precisely for this reason, civil law must ensure that all members of society enjoy respect for certain fundamental rights which innately belong to the person, rights which every positive law must recognize and guarantee. First and fundamental among these is the inviolable right to life of every innocent human being. While public authority can sometimes choose not to put a stop to something which-were it prohibited- would cause more serious harm, it can never presume to legitimize as a right of individuals-even if they are the majority of the members of society-an offence against other persons caused by the disregard of so fundamental a right as the right to life. The legal toleration of abortion or of euthanasia can in no way claim to be based on respect for the conscience of others, precisely because society has the right and the duty to protect itself against the abuses which can occur in the name of conscience and under the pretext of freedom.
— from Evangelium Vitae 71



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David R.

posted August 8, 2005 at 10:06 am


It seems to me that natural law covers everything, from lying to genocide. What we are concerned with is not upholding a constituion that allows people to lie about where they were last night, but a constitution that supposedly permits the mass murder of the unborn.
Isn’t there a degree involved here? Is there a tradition of allowing judges and states to permit minor violations of natural law, while demanding that gross violations of natural law be remedied?
I mean, we hanged judges from Nazi Germany who merely followed the law as it was during the time of Hitler.



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Ronny

posted August 8, 2005 at 10:28 am


David R.,
Isn’t there a degree involved here? Is there a tradition of allowing judges and states to permit minor violations of natural law, while demanding that gross violations of natural law be remedied?
Certainly — Aquinas himself said that while the positive law should gradually seek to instill virtue in the populace, it need not or cannot proscribe all vices, but it must at least proscribe those that cause grave harm to others.
As stated above (90, A1,2), law is framed as a rule or measure of human acts. Now a measure should be homogeneous with that which it measures, as stated in Metaph. x, text. 3,4, since different things are measured by different measures. Wherefore laws imposed on men should also be in keeping with their condition, for, as Isidore says (Etym. v, 21), law should be “possible both according to nature, and according to the customs of the country.” Now possibility or faculty of action is due to an interior habit or disposition: since the same thing is not possible to one who has not a virtuous habit, as is possible to one who has. Thus the same is not possible to a child as to a full-grown man: for which reason the law for children is not the same as for adults, since many things are permitted to children, which in an adult are punished by law or at any rate are open to blame. In like manner many things are permissible to men not perfect in virtue, which would be intolerable in a virtuous man.
Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like.

— from Summ Theologica IaIIae, Q. 96, a. 2, r.



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Bill

posted August 8, 2005 at 10:32 am


Victor,
Your attempt to avoid “philosophizing” has left you with an impoverished understanding of what the law is. As Zippy points out, law for the positivist is reduced to the willfulness of the strongest. You are left with no principled basis for explaining precisely why you believe that positive law has the privileged status you claim for it. It seems you can only say, “What is, is and you will be punished if you do not comply.” However, such a view doesn’t seem to admit any distinction between positive law and tyranny.
Your fall-back position seems to be that you prefer a state where laws were made by “the people” to a state ruled by philosopher-kings. As a practical matter, your preferred state may indeed produce laws more in accordance with morality. However, you still haven’t addressed the fundamental issue of what precisely the law is. You still haven’t attempted to account for first principles.
If you don’t like the term “natural law,” preferring instead the term “morality,” I guess my question for you is “What is the quiddity of morality?” Is morality merely the arbitrary will of God? Is the only connection between the law and morality that which “the people” choose to create?
As for enforceability of the natural law, I know you reject the idea, but I am surprised that you seem genuinely not to understand how an acknowledgement of the natural law can be anything other than a theocracy. As the case of the right to abortion in the US demonstrates, enforcement is not a sine qua non of the natural law. Injustice happens and there is not much the Church can do to compel moral action. But simply because injustice happens does not mean that the procedural pretext for that injustice merits the title of law any more than the process by which Fidel Castro is regularly proclaimed the leader of Cuba merits the title of election. Deposition by the US Marines or by the Swiss Guards is not necessary for an acknowldegement that Fidel was not truly elected. Similarly, prosecution of abortionists is not required for an acknowledgement that abortion is not licit, or legal, if you prefer.



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Bill

posted August 8, 2005 at 10:45 am


Donald,
A strict textualism does not get you judicial review, the very procedure pro-life textualists hope the Court will use to overturn Roe. Also, acknowledging the “quiddity” of the natural law, as some would have it, does not imply that a judge should “ignore all sections of the Constitution,” as you suggest.



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Bill

posted August 8, 2005 at 10:53 am


Ronny,
I agree with your statement (and those of John Paul and St. Thomas) about the role of prudential considerations in the application of the natural law.



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Mike Petrik

posted August 8, 2005 at 10:58 am


Bill,
If the Constitution was amended to explicitly provide a right to abortion, am I correct to assume that in your view a Supreme Court Justice must disregard such an amendment as being inimical to Natural Law? If so, doesn’t it follow that the Constitution is not the supreme law of the land, but Natural Law is? And more precisely, doesn’t that place the power of determining Natural Law in the hands of the judiciary rather than the people? Do you think that such a power is consistent with self-government? I am assuming, of course, that Natural Law is an objective truth — which it is. But I am also assuming that its meaning and contours are not the subject of common agreement, even among students of Natural Law, simply as a function of human imperfection. Of course, positive law is imperfectly knowable as well, but isn’t it reasonably plain that licensing judges to apply unwritten law handed down from God is a lot more dangerous and a lot more incompatable with self-government than licensing them to decipher written law agreed upon by the people they serve? Ultimately, doesn’t such a system essentially render the legislature as simply advisory in nature?



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David R.

posted August 8, 2005 at 11:17 am


Mike
I think that if the Constitution obligated a Catholic judge to strike down laws restricting abortion (through amendment or whatever) he would be obliged to either recuse or ignore that amendment. If that means he can’t be a judge on the Supreme Court, it is not evidence of the failure of principles of natural law, but evidence of the failure of our culture, and a failure of those who should be speaking out for the right to life of all human beings.
I think that Ronny is right to point out that there is a dividing line with what natural law principles must be followed versus those outside of the practical reach of the law. I think what your suggesting is that natural law, because it is subject to interpretation, should never come into play. But for a society to continue to exist, it must agree on the most fundamental principles of natural law. Sadly, in the area of abortion, people can’t even agree on the most basic principle that innocent human life must be protected at all stages.



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Victor Morton

posted August 8, 2005 at 11:38 am


Ronny:
Regarding the definition of theocracy, at least in my posts, I believe I was using it in accord with OED.
“His laws are taken as the statute-book of the kingdom” seems roughly the same as Bill’s claim that natural law is always already law and needs no positive promulgation.
And “usually administered by a priestly order as his ministers and agents” and/or “a system of government by a sacerdotal order, claiming a divine commission” seems to be met by Bill’s claim that the Church is the authoritative interprter of natural law. Certainly, when I have pointed out that this would require the USCCB or the Vatican having a formal governing role to be made good as a legal proposition (i.e., a “-cracy”), he has not denied that point.



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Bill

posted August 8, 2005 at 12:08 pm


Mike,
I do maintain that a pro-abortion constitutional amendment would be a nullity, just as I would of a pro-abortion statute or a pro-abortion court interpretation of ambiguous constitutional language. Clearly, such an approach is counter-majoritarian in that regard, but, of course, I am not trying to uphold collective opinion, but what you and I both recognize is true.
Moreover, I think the implication of your questions greatly overstates the counter-majoritarian difficulty of my approach. In a sense, the Constitution is the “supreme law of the land,” in that it is supreme to the extent it is consistent with the natural law. Ultimately, as the above example demonstrates, the natural law would trump the text of the Constitution, but this is necessarily so, given what law actually is. Judges have a lot of discretion, but that hardly vitiates “self-government,” only the false notion put forward in the plurality opinion in Casey that individuals can create their own reality. The vast majority of cases before a judge will not implicate issues of natural law. Clearly, legislatures are more than “advisory in nature” and there remain checks and balances in the constitutional system. I think it is fair to conclude that any people who could and would create a pro-abortion constitutional amendment could and would impeach and remove a federal judge who thwarted their will.
I’m not suggesting that judges be “licensed” with any new powers. Judges have the authority to invalidate legislation on natural law grounds (see Pierce v. Society of Sisters) and have exercised it routinely in our system of government, even if they have not always done so wisely or justly. It is inherent in the job of a judge to say what the law is (see, e.g., judicial review). A frank and honest acknowledgement of the authority of the natural law would, I believe, have the salutory effect of getting legislatures (and “the people”) more serious about considerations of legality and constitutionality, so that perhaps some of these questions about natural law could be resolved appropriately without litigation before the courts.



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Victor Morton

posted August 8, 2005 at 12:09 pm


“What is, is and you will be punished if you do not comply” … doesn’t seem to admit any distinction between positive law and tyranny.
Geometry doesn’t itself acknowledge distinctions between “orange” and “blue” either. “Tyranny” is either a type of government structure (the rule of one) or a decription of the scope of the government’s power (all-encompassing). It is not a philosophy of law as such.
you still haven’t addressed the fundamental issue of what precisely the law is.
You think not? Oh well, here it is: “law is whatever is in the legal codes as duly promulgated by the legitimate sovereign.”
I guess my question for you is “What is the quiddity of morality?” Is morality merely the arbitrary will of God?
Take out the word “arbitrary,” and I’d have no problem with that. Morality is the commands of God and/or his legitimate representatives (i.e., the Church) on what men ought to do. Its ultimate enforcement is divine providence, partly in this life but mostly in the next.
Is the only connection between the law and morality that which “the people” choose to create?
Not even that. “What the people choose to create” has nothing whatsoever to do with morality proper.
I am surprised that you seem genuinely not to understand how an acknowledgement of the natural law can be anything other than a theocracy.
Oh, I understand it quite well. As I’ve already said, either this “acknowledgement” (a very vague term) has legal force and standing (in which case you have a theocracy, though admittedly with the details unclear on how powerful it will be) or it does not (in which case, it is legally irrelevant as a matter of jurisprudence). Why is this parsing wrong? What does your repeatedly used term “acknowledgement” mean exactly, in a legal-jurisprudential context (i.e., what we’re supposedly discussing)?
As the case of the right to abortion in the US demonstrates, enforcement is not a sine qua non of the natural law.
Then natural law has no legal force, as in enFORCEment, or standing. Or if, as you put it later, there is no prosecution of abortionists, then abortion is, in fact, legal.
Injustice happens and there is not much the Church can do to compel moral action.
But if judges must find according to natural law, regardless of positive law, and if, to cite something you said in another thread, a sound understanding of natural law should be a judicial litmus test, and if natural law is authoritatively defined by the Church … then this fact you note in the last clause is something you wish to change.
But simply because injustice happens does not mean that the procedural pretext for that injustice merits the title of law any more than the process by which Fidel Castro is regularly proclaimed the leader of Cuba merits the title of election.
You are putting far too much more moral weight into “merits the title of law.” It seems you want the law to do the job of morality — say what ought to be — and for no purpose that I can discern other than to have the legalistic ability to deny that Fidel Castro was elected. As if that point matters? Or even conceivably could matter in a situation where Castro’s power was seriously in doubt?



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Donald R. McClarey

posted August 8, 2005 at 12:09 pm


Donald,
“A strict textualism does not get you judicial review, the very procedure pro-life textualists hope the Court will use to overturn Roe. Also, acknowledging the “quiddity” of the natural law, as some would have it, does not imply that a judge should “ignore all sections of the Constitution,” as you suggest.”
Bill, without judicial review, of course, we would not have had Roe in the first place. Agreed that the text of the Constitution does not call for judicial review, although most of the Framers, including the authors of the Federalist papers, assumed that something like judicial review would be undertaken by the courts. I am not a big fan of Marbury v. Madison, but I realize reopening the question of judicial review at this date would be an invitation to chaos.
Of course a judge using natural law could ignore provisions of the Constitution that do not comport with natural law. I believe that most natural law theorists would hold that a judge would have a duty to do so, since obviously there is no higher law, other than law explicitly set forth by God, than natural law. How would the judge determine whether a part of the Constitution does not comport with natural law? Why, he would determine the question based upon his own view of what the natural law is. What if his view doesn’t comport with the view of a majority of his fellow citizens? Tough for the fellow citizens. That is no way to run a representative republic.



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Victor Morton

posted August 8, 2005 at 12:16 pm


You’re not nearly radical enough, Donald:
What if his view doesn’t comport with the view of a majority of his fellow citizens? Tough for the fellow citizens. That is no way to run a representative republic.
… is obviously accurate as far as it goes. But I would add the following.
What if his view doesn’t comport with the objective content of natural law? Equally tough for the fellow citizens. That is no way to run a government of any sort if you want it to be more in accord with morality.



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Ronny

posted August 8, 2005 at 12:24 pm


Victor,
I can’t speak for Bill, but I can imagine various forms of governmental recognition of the authority of the Church, Church teaching or natural law that do not amount to theocracy. A government in which all of the public servants are comprised of laypersons who have no corresponding authority within the structure and governance of the Church itself, who follow a code of duly enacted positive law that is distinct from divine or ecclesiastical law, and who refer to Church teaching as an authority only through some established mechanism in the course of resolving certain kinds of disputes does not a theocracy make.
I am not making any particular recommendation for the United States by pointing this out, by the way. Argue, if you will, against the practicality or even prudence of somehow acknowledging Church teaching or natural law in the laws of this country. Just don’t call it a theocracy when it’s not. Otherwise, it is just an empty slogan like the one in this classic pro-abort anthem:
Get your laws off me. I’m not your property. Don’t plan my family. I’ll plan my own. I don’t want to be in your theocracy. Remember liberty. Remember Roe.



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Donald R. McClarey

posted August 8, 2005 at 12:33 pm


“What if his view doesn’t comport with the objective content of natural law? Equally tough for the fellow citizens. That is no way to run a government of any sort if you want it to be more in accord with morality.”
Excellent point Victor. From the dozens of judges I have known personally, most of them bright, almost all of them well-meaning, I can think of none of them that gave any evidence of any special charism allowing them to discern natural law better than anyone else.



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Zippy

posted August 8, 2005 at 1:02 pm


Zippy, the Constitution vests limited powers in the federal government including courts.
In other words, you can’t find the place in the Constitution where it explicitly requires legal positivism, but you think that positivism is an emanation or penumbra of Article I, Section 8?
From the dozens of judges I have known personally, most of them bright, almost all of them well-meaning, I can think of none of them that gave any evidence of any special charism allowing them to discern natural law better than anyone else.
The ability to dispassionately and objectively use reason is not a special charism, it is a prerequisite to the concept of a judiciary in the first place. That may point to a fundamental problem in how people conceive of a judiciary and its proper role, but it certainly does not point to a rejection of reason.



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Ronny

posted August 8, 2005 at 1:09 pm


I find Victor’s definition of law interesting in the respects in which it differs from Thomas Aquinas':
Victor’s definition of law — “law is whatever is in the legal codes as duly promulgated by the legitimate sovereign.”
Aquinas’s definition of law — “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”
Aquinas’ definition contains everything that Victor’s does — an ordinance enacted by the proper authority and subsequently promulgated — but adds that it is a determination of reason for the sake of the common good. Victor could have left these out because he assumes them, but it is not clear.
If deliberate, then Victor’s lack of reference to reason or the common good are significant in light of his understanding of morality as “the will of God” or “the commands of God and/or his legitimate representatives (i.e., the Church) on what men ought to do.” Put together, law and morality understood in these ways results in divine command theory: the good is simply what God wills to be good. Moreover, what God wills to be good bears no intrinsic connection to reason, and thus the natural order does not bear the imprint of any natural law that is discernible by the exercise of reason. Finally, were God to will that the good now be bad, it would be a moral law that we would be bound to obey.
Sounds not unlike legal positivism.



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Donald R. McClarey

posted August 8, 2005 at 1:18 pm


Zippy, your idea that judges can use natural law to negate the Constitution is at war with the entire text of the Constitution. Judges using natural law would shred the Constitution and render it a nullity.
As for your comment about judges being able to discern natural law through reason alone, that is risible. If that were the case, then there would be no disagreement as to the content of natural law. That is obviously not the case. I believe that what you discern to be self-evident natural law, for example, would probably not coincide with how Justice Souter would view natural law. Hard enough to keep Justices from writing their own value preferences into the text of a written Constitution. It takes no charism of prophecy to predict that they would run riot with a fuzzy concept to guide them such as natural law. I assume that natural law, in this country, would quickly become whatever five justices believe that it should be in any particular case.



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Mike Petrik

posted August 8, 2005 at 2:23 pm


I agree, Donald. Judges already have too much practical power to contort written law into their own policy preferences. Allowing them to use unwritten law as a trump card would serve to extend this power to the point of risking the very collapse our system of self-goverment.
Roe v. Wade proves that the legal remedies for judicial abuse are less than adequate. While judicial review is probably a necessary consequence of a written constitution, it seems imprudent to me to entrust judges with the power to apply unwritten laws. While I agree that Natural Law is an objective truth, man’s imperfections simply do not allow entrusting our judiciary branch with its determination and application. The very nature of Natural Law (written on the hearts of men) suggests that it better rests with the people acting through their legislatures.



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Zippy

posted August 8, 2005 at 2:28 pm


Judges using natural law would shred the Constitution and render it a nullity.
You don’t seem to understand that the natural law carries thousands of years of tradition with it, and that positivism is a relatively new novelty (and in my own opinion is an outgrowth of sola scriptura, at least in terms of explaining its current popularity within neoconservatism). It would certainly come as a surprise to Acquinas, Thomas More, Blackstone, and many of the Founding Fathers that using the natural law would render the positive lawin general a nullity. They would probably view that claim as akin to someone saying that insisting on the use of the laws of logic would render the constitution a nullity.
In fact, in the law and in other areas postivism eliminates the truth and replaces it with arbitrary will: the exact opposite of what positivists seem to desire as a result of their programme, but its true result nonetheless.
And in any case, I reiterate that for a constitutional positivist to refuse to show the explicit grounding of constitutional positivism in the text of the constitution is self-contradictory. Constitutional positivists seem to find legal positivism in the emanations and penumbras of the constitution, since they refuse to show where it is in the text itself. Why should we believe them, especially given the self-contradiction?



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Zippy

posted August 8, 2005 at 2:31 pm


I agree, Donald. Judges already have too much practical power to contort written law into their own policy preferences.
So pass an amendment to have legal positivism written explicitly into the constitution. (And watch the resultant descent into irrationality). Because it isn’t explicitly in there right now.



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Mike Petrik

posted August 8, 2005 at 2:33 pm


Zippy is correct. Nowhere does the Constitution say that its provisions are supreme over Natural Law. Of course, it doesn’t say it they are supreme over UN Law either, or Jewish Law, or French Law.



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Bill

posted August 8, 2005 at 2:45 pm


Victor,
You say that, for you, “law is whatever is in the legal codes as duly promulgated by the legitimate sovereign.” However, the issue isn’t as simple as you would seemingly have it. You need to explain what you mean by “duly promulgated” and why you think that matters. You need to explain what sorts of purported sovereigns really are “legitimate” and why the notion of legitimacy matters.
As I see it, your positivist stance does not allow you to account for any distinction between a valid positive law and one that was the product of what I called tyranny above, by which I meant an improper usurpation of legislative authority. As Zippy pointed out above, positivism reduces law to the willfulness of the strongest. Or, as you have indicated, it’s all about “enFORCEment.” However, this view doesn’t provide any reasoned basis to respect or uphold the law. By the terms you have set, there is no reason to prefer procedures specified by the Constitution to a coup d’etat, your remarks about “duly promulgated” and “legitimate sovereign” notwithstanding.



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Mike Petrik

posted August 8, 2005 at 2:49 pm


Bill,
If you want to see the law reduced to “the willfullness of the strongest,” simply entrust our substantially unchecked judicial branch with a license to discern and apply unwritten natural law.



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Zippy

posted August 8, 2005 at 3:08 pm


Of course, it doesn’t say it they are supreme over UN Law either, or Jewish Law, or French Law.
Actually it does.
One thing it doesn’t say explicitly is that it is to be interpreted by judges according to a positivist jurisprudence. (This isn’t surprising. The constitution doesn’t say much of anything explicitly about judicial philosophy. It just says where as a matter of formal arrangement “the Judicial power” will reside, assuming that we know and agree on what “the Judicial power” means – possibly a bad assumption.)
In order to get positivism from the constitution you have to find it in emanations and penumbras.



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Bill

posted August 8, 2005 at 3:28 pm


Mike,
Yours is a strange argument. You recognize the validity of the natural law, but you prefer that judges not actually perform their job and say what the law really is and instead you recommend that they pretend that nullities are, in fact, laws, all because you think that judges may do their job badly. However, your minimalist vision of judges does not comport with the role of the judge in our system of government. Certainly, the constitution puts no such a priori constraint on judges. You seem to have a blind faith in democratic majorities that leaves you advocating for what you know to be legal fictions. Victor and others may say that there is no connection between “morality” or natural law and positive law, but you are supposed to know better.



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Donald R. McClarey

posted August 8, 2005 at 3:53 pm


“You don’t seem to understand that the natural law carries thousands of years of tradition with it, and that positivism is a relatively new novelty (and in my own opinion is an outgrowth of sola scriptura, at least in terms of explaining its current popularity within neoconservatism). It would certainly come as a surprise to Acquinas, Thomas More, Blackstone, and many of the Founding Fathers that using the natural law would render the positive lawin general a nullity.”
Zippy, your citations of Saint Thomas More and Blackstone are quite curious. You do realize that in England Parliament is supreme? Parliament can pass any law it wishes, and the courts have no choice but to apply the law as passed by Parliament. Appellate decisions are routinely reversed by Parliament as to future applicability. England is a positivist’s heaven. There is no restraint on the power of Parliament.
As to natural law, it’s history largely consists of acrid disagreements as to how it plays itself out in a practical context. If you are going to say that judges may use natural law in rendering their decisions you are in effect stating that judges may decide cases based upon their own views of justice and then use the airy phrase “natural law” to lend weight to their personal preference.



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Zippy

posted August 8, 2005 at 4:01 pm


Zippy, your citations of Saint Thomas More and Blackstone are quite curious. You do realize that in England Parliament is supreme
I don’t see how your first statement is in any way connected to your second, even if we were to assume for the sake of argument that your second is true.
Here is Blackstone:
“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.”



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Zippy

posted August 8, 2005 at 4:10 pm


If you are going to say that judges may use natural law in rendering their decisions you are in effect stating that judges may decide cases based upon their own views of justice and then use the airy phrase “natural law” to lend weight to their personal preference.
Replace the term “natural law” with “reason” and give it a re-read. Positivists are schizophrenic about judges: they want judges to use their reason to render objective, dispassionate, authoritative judgements and at the same time they don’t want judges to use their reason to render objective, dispassionate, authoritative judgements.
Far be it from me to say that there is nothing wrong with the modern judiciary. But the fact that it has not wholeheartedly embraced positivist irrationalism is not one of the things wrong with it.



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Mike Petrik

posted August 8, 2005 at 4:48 pm


Zippy,
I guess I missed that explicit provision. I even searched for the words UN, French and Jewish and came up empty.
Bill,
You assume that judges have the task of applying “law” outside of man-made positive law, even to the point of treating constitutional law as a nullity, but you have no basis whatsoever for that assumption. The salient question presented is not whether natural law exists, because of course it does; but who gets to determine its substance — the people via enacting positive laws in accordance with what they believe to be natural law, or judges via applying what they believe to be natural law notwithstanding contrary views held by the people. Neither answer is prima facie “strange.” But my answer is more consistent with the notion self-government under a constitutional republic as well as more practical given man’s imperfections as rightly understood by our Framers. Admittedly, no approach is perfect, but there is no warrant for a judge to ignore a written constitutional provision in favor of his understanding of natural law, and that is precisely what your position would require to the extent a judge perceives the two to be in conflict.
Finally, of course I have no blind faith in democratic majorities; nor do I have blind faith in undemocratic judges. Our system, however, places the lawmaking function in the legislature subject to a written constitution. Our Framers, therefore, displayed greater trust in democratic majorities subject to a written constitution that can be amended by supermajorities than they did in the judiciary. Our Framers were right in this respect. If for no other reason than the mistakes of the people are more easily corrected by the people. Mistakes by judges can only be corrected by judges. Government by judges is not self-government.



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Donald R. McClarey

posted August 8, 2005 at 5:33 pm


“Here is Blackstone:
“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.”
Zippy I have read Blackstone several times. He is as relevant to modern Britain as is his maxim “That the king can do no wrong is a necessary and fundamental principle of the English constitution.” I wonder what principle of natural law was being pondered when that particular maxim was arrived at over the centuries in England?
“Replace the term “natural law” with “reason” and give it a re-read. Positivists are schizophrenic about judges: they want judges to use their reason to render objective, dispassionate, authoritative judgements and at the same time they don’t want judges to use their reason to render objective, dispassionate, authoritative judgements.”
Nonsense on stilts, with apologies to Bentham. I want judges that adhere strictly to the statutes and, above all, the constitutions that are created by the representatives of the People. God save us from judges who use their black robes as a license to ignore the law as written and impose their own views of right and wrong. That is a job for a Platonic guardian, and not a judge in a free state. Natural law, if it were adopted by the courts, would serve merely as a license for judges to act as super legislators.



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Mike Petrik

posted August 8, 2005 at 5:42 pm


Of course, I agree Don. Bill and Zippy seem to think that because Natural Law is objective judges can determine it with the same degree of fidelity as positive law, which is also objective. There are two problems with this. First, written law allows for a greater degre of consensus and certainty as to its content and meaning than does unwritten law. Second, it places the task of determining the unwritten natural law in the hands of the few rather than the many. While neither option ensures perfection — indeed, either option will yield ample error — only one is consistent with both self-government as well as the precept that natural law is written onto the hearts of men.



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tamanend

posted August 8, 2005 at 8:10 pm


A question (or two):
Mike and the others have done an excellent (if perhaps futile) job of explaining the undemocratic and anti-constitutional implications of the position taken by Zippy et al. What no one has yet pointed out is, exucse me, the only slightly less jaw dropping assumption of the beneficance and competance of the Church as a political body (apart from a religious or even humanitarian one) this arguement has to make in order to be logically defensible even on its own terms of acceptance of that authority – an assumtion which flies in such a mountain of historical evidence to the contrary, from a millenia ago to last week, that even from the most devout and casual observer surely must yeild at least a profound suspicion.
In other words even if it is true, as has been said here, that “natural law is objective and that the authoritative interpreter of the natural law is the Catholic Church” has not the Church proved itself again and again to be profoundly bad at exercising this role in, at the very least, the way in which it would be necessary what is being advocated here to be workable; ie in interpreting the ‘natural law’ in terms of a specific governing philosophy, of practical political recomendations that square it with ‘human’ law?
Is it only the luck of my occasional visits or is not one of the greater themes of the devoutly Catholic blog where this conversation is taking place a deep disappointment with corruption, inclarity, cowardice, expediency and other failures of edict and example on the part of the Church to carry out this very task?



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Zippy

posted August 8, 2005 at 10:30 pm


Bill and Zippy seem to think that because Natural Law is objective judges can determine it with the same degree of fidelity as positive law, which is also objective.
Mike and Donald seem to think that the positive law is intelligible and coherent without first presupposing the natural law from which it arises. It is a common assumption in the modern age, but it is absolutely and utterly false: as false as the presupposition that the Bible as text is intelligible independent of the Deposit of the Faith from which it arises. The positive law and the natural law cannot be separated in this way, yielding intelligible but separate stand-alone entities. Most of the people in this discussion seem to have assumed (falsely) that they can be intelligibly separated. But to attempt to separate the positive law from the natural law is no more coherent than an attempt to separate the positive law and the laws of logic. The positive law literally falls into rational incoherence in either case.
This is true of any formal text whatsoever that is taken to be complete in itself under some rational hermeneutic (with a few irrelevant technical exceptions).
In reply to Tamanend, people seem to have assumed that Bill and I hold to the same interpretation of the role of the Church vis-a-vis her relation to natural law and the exercise of political power, but that is far from obvious to me. I don’t even know what Bill’s understanding is, based on this limited discussion.



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Zippy

posted August 8, 2005 at 10:55 pm


Zippy I have read Blackstone several times. He is as relevant to modern Britain as is his maxim …
The reason I brought up Blackstone and all the others wasn’t to invoke them as authorities. It was to point out that natural law jurisprudence had a long, respected pedigree at the time of the founding of America. If the framers of the constitution had intended to rule it out and require legal positivism it would have been literally self-contradictory for them to fail to make that requirement explicit.



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Bill

posted August 9, 2005 at 8:47 am


Mike,
In our system of government, judges have the job of interpreting the law and, ultimately, of saying what the law is. This is what judicial review is all about. So it is indeed “strange” that someone such as yourself, who acknowledges the authority of the natural law, would say that the people, who have the job of saying what the law is, should ignore the undisputed nullity of a purported law and should instead pretend that the nullity was, in fact, law. It is of no avail for you to claim that you are only trying to respect the “lawmaking” role of legislatures. No one is disputing the lawmaking role of legislatures or is trying to impinge on “self-government.” No one is suggesting that judges legislate their policy preferences from the bench. And, in the present instance at least, no one is suggesting that the will of those demigods you call the Framers be contravened. The issue is whether or not judges should actually do their job and state what the law is in the cases argued before them, as the Supreme Court did in Pierce v. Society of Sisters. I am answering in the affirmative, although I acknowledge that judges can make mistakes or can even be willful. That you do not recognize the validity of what the Court already does (albeit under other names) and try to make this an issue of merely respecting legislatures is why I have said previously that I do not think you take natural law very seriously.



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Bill

posted August 9, 2005 at 8:52 am


Tamanend,
You seem unhappy with the Church. Be that as it may, has the Church interpreted the natural law in any way you think is mistaken?



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Mike Petrik

posted August 9, 2005 at 9:18 am


Bill and Zippy,
I have acknowledged a limited role for natural law reasoning by judges in situations where positive law is genuinely silent. Indeed, arguably our common law tradition is at least in part an expression of the natural law impulse. But I do not think that judges are entitled to trump the positive law expressions of the people with their own private understandings of natural law.
And I do take natural law quite seriously, but I understand its relationship with positive law to be analogous to that of “ought” and “is.” In general, I do not think that a police officer is entitled to arrest an abortionist or a woman procuring an abortion under current American law. You disagree. Fair enough. Similarly, I think a judge is bound by positive law, including our constitution, even when it is inconsistent with natural law. But you disagree and say that express and unambiguous statutes, indeed even constitutional provisions, must be ignored as nullities in favor of a judge’s understanding of natural law. Fair enough. But if you think that such arrests and judicial activism would be consistent with the rule of law then we just disagree.
Finally, Pierce is wrongly decided, or at least wrongly reasoned. And for every Pierce there is a Roe, a Griswold, and a Dred Scott.



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Zippy

posted August 9, 2005 at 9:42 am


In general, I do not think that a police officer is entitled to arrest an abortionist or a woman procuring an abortion under current American law.
I think that if the police officer is authorized to do so by local law, the Supreme Court has no legitimate power to interfere based on a fictional right to abortion, yes.
But you disagree and say that express and unambiguous statutes, indeed even constitutional provisions, must be ignored as nullities in favor of a judge’s understanding of natural law.
What do you see as the responsibility of a judge when a positive law is logically contradictory? That is, what should a judge do if the law says “X must not be prohibited. X is prohibited”?
Should he resign and pass the case on to someone who is willing to ignore the laws of logic and interpret that positive law as having meaning, even though it doesn’t? Or should he treat that positive law as a nullity?
But if you think that such arrests and judicial activism would be consistent with the rule of law then we just disagree.
I understand. You (along with most American political conservatives) view positivism as the only jurisprudence consistent with the rule of law. But in fact, positivism destroys the rule of law from within (as does any rejection of rationality).
If positivism is the only jurisprudence consistent with the rule of law, and yet positivism has quite literally never been the dominant jurisprudence anywhere, does that mean that in all of human history up to now there has been no rule of law?



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Mike Petrik

posted August 9, 2005 at 10:12 am


Zippy,
I don’t understand the relevance of your first response. Are you taking issue with my characterization of your position? Wouldn’t you reach the same conclusion as to the abortionist and mother even in New York which had legalized abortion prior to Roe?
There are appropriate mechanisms employed by judges to resolve contradictory provisions. For example, judges will normally defer to the provision enacted last, accepting the implication that that provision must have repealed the earlier contradictory provision by implication. If these mechanisms cannot resolve the contradiction, I have no problem with a judge using natural law as a tool to resolve the case.
Zippy, I respect your position. It is very well thought through. I just disagree with it. I think that if a citizen cannot rely on the written law in making decisions as to his conduct then we do not have the rule of law. As a practical matter we just have a plutocracy of judges. Our system of government pre-supposes man’s imperfections and consequently does not assign this kind of power to judges precisely because the governed do not believe that judges have a wisdom as to the law written on the hearts of men that is superior to their own.



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Zippy

posted August 9, 2005 at 10:15 am


I wrote:
What do you see as the responsibility of a judge when a positive law is logically contradictory? That is, what should a judge do if the law says “X must not be prohibited. X is prohibited”?
The reason I ask, by the way, is because if you are like most people you will allow the laws of logic to trump positive law. That is, you will treat logic as having a greater and prerequisite authority to the text: you will rightly treat the text as meaningless unless it conforms to the basic rules of logic. But if you are a positivist you will not allow reason in general to precede (and therefore in a sense trump) the text, just logic. And the reason you will restrict the trump card to logic alone and exclude the natural law is that legal positivism is a form of logical positivism applied to the legal domain.
Seventy-five or so years ago a very introverted and obsessively rigorous Platonist logician named Kurt Godel demonstrated conclusively that logical positivism is self-contradictory. But Scalia has not yet gotten the memo.



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Zippy

posted August 9, 2005 at 10:19 am


Wouldn’t you reach the same conclusion as to the abortionist and mother even in New York which had legalized abortion prior to Roe?
No. A police officer acting alone is not morally authorized to arrest people for violations of the natural law, in my understanding.



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Mike Petrik

posted August 9, 2005 at 10:28 am


Fair enough, Zippy. I thought you had previously said the opposite, but I obviously confused you with Al or Bill.



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Zippy

posted August 9, 2005 at 10:48 am


To be as clear as possible, the police officer is not morally empowered to enforce the natural law, absent positive law, because his (and a judge’s) legitimate powers and duties are always mediated by positive law. But he is also prohibited from violating the natural law even if the positive law attempts to require it of him: e.g., if the positive law asserts that he must summarily shoot nonviolent protestors, or if it requires him to shield an abortionist from some other lawful authority, then that positive law is null and void as contrary to the natural law. The Neuremberg defense is no excuse.



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Mike Petrik

posted August 9, 2005 at 11:13 am


Zippy,
On that we are not that far apart. I agree that no one, including a judge, is morally empowered to violate natural law. Where we seem to disagree is whether a judge is in ipso facto violation of natural law whenever he applies positive law that conflicts with natural law. I submit that such occasions are not always violations of natural law in themselves, but can be if they involve a material cooperation with evil. For example, for a judge to say that our constitution does not afford protection of the unborn (but should) is not a violation of natural law. I realize that reasonable arguments can be made to the effect that our constitution does in fact confer such protection, but my point is not to debate those arguments but only to acknowledge that a judge’s unwillingness to exceed his mandate by convicting a person of violating an unwritten natural law is no more an ipso facto violation of natural law than a constable’s unwillingness to exceed his mandate by arresting a person for violating an unwritten natural law.



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Bill

posted August 9, 2005 at 12:43 pm


Mike,
I don’t know where you got that red herring about police officers. I certainly didn’t suggest it.
But getting back to the proper role of judges, the analogy you make between positive law/natural law and is/ought seems to indicate that your position is indistinguishable from Victor’s — i.e., that, although there may be something called “morality,” there is no natural law in any substantive sense. As such, the difficulties Victor has in justifying his position would seem attributable to your position as well. Essentially, you do not seem to have any principled basis for upholding the rule of law.



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Zippy

posted August 9, 2005 at 1:26 pm


Where we seem to disagree is whether a judge is in ipso facto violation of natural law whenever he applies positive law that conflicts with natural law.
Well, I agree that as a prudential matter involving material cooperation with evil a judge might licitly choose to enforce a particular positive law which violates the natural law in a relatively minor way.
It does seem that we disagree in specific cases though, as when Judge Roberts said that he would have no personal problem enforcing Roe vs. Wade as an appellate judge. And those differences do appear to arise from my natural law commitments and your positivist ones.
…but only to acknowledge that a judge’s unwillingness to exceed his mandate by convicting a person of violating an unwritten natural law…
Several times though I have said that a judge does not have the legitimate authority to convict and punish someone solely for a violation of the natural law. That is entirely different from enforcing Roe as an appellate judge, which would involve interfering with other legitimate authorities which are attempting to protect the unborn, not trying and convicting on a solely natural law basis.
To take another concrete and recent example, the police who used armed resistance to prevent the governor of Florida from feeding Terri Schiavo did not have the legitimate authority to do so, even if the positive law attempted to assert that they did.



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Mike Petrik

posted August 9, 2005 at 1:31 pm


Bill,
I certainly think that natural law exists, but it exists on a higher plane than positive law. And it is enforceable on a higher plane as well. The duty of a government is to understand natural law and enact positive laws that are reflective of natural law, although man’s imperfect nature will never permit a pure reflection. In a government of the self-governed the duty to discern and enforce natural law rests with the people. Judges are the agents of the governed and are licensed by them to apply the positive laws that they create and are given no license to substitute their own understanding of natural law for that of the governed. As I said before, the governed do not believe that judges possess a wisdom as to the law written on the hearts of men that is superior to their own. This belief is well-grounded in my opinion.
The real question is not whether natural law exists — of course it does. The real question is who is assigned of making its determiniation under our system of government. Someone must decide, and that someone will inevitably be flawed. It is my position that that someone is the people through making constitutional and statutory laws rather than the judiciary through deciding cases.
Finally, I do agree that the Neuremberg defense is invalid. If one believes that following positive law would require him to violate natural law, he must violate positive law and accept the consequences. I do not believe, however, that a judge typically violates natural law when he declares what the positive law is even when he believes that such positive law is deficient or incompatable with natural law.
I appreciate the fact that you and I will not agree on this. Barring a bizarre failure to communicate, that means one of is wrong or we are both wrong. Given my limitations I am perfectly prepared to believe that I am the one wrong here, but if so I am wrong in good faith. It has happened before and will happen again.



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Mike Petrik

posted August 9, 2005 at 1:45 pm


Zippy,
As for Roe I largely agree but for a different reason. Roe is wrongly decided on positive law grounds, so an appellate judge would be within his rights to set aside stare decisis and refuse to enforce it. This may be unwise, however, insomuch as he will be reversed on appeal and such reversal only strengthens the stare decisis impact of Roe.
Our disagreement is really crystalized in the case of an explicit constitutional amendment recognizing a right to abortion. I would hold that a judge must determine whether acknowledging this amendment would be a material cooperation with evil such that it would itself be a violation of natural law. Frankly, I’m not sure. But if it is I would have him recuse; you would have him disregard the plain text in favor of the unwritten law. As I have said in the past I respect greatly your point of view. But I disagree with it.



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Zippy

posted August 9, 2005 at 2:09 pm


But if it is I would have him recuse; you would have him disregard the plain text in favor of the unwritten law.
I am not entirely convinced that the communication is perfectly clear yet, but that is possible.
“In favor of” seems to imply that two like things are being compared and one chosen over the other, though, and that isn’t an accurate description of the reality. One doesn’t choose the laws of logic “in favor of” the positive law when the positive law contradicts itself and thereby becomes (in the specific instance) null. It is just that if the positive law attempts to willfully reject the laws of logic it becomes nonsense.
I would have him treat it the same way he would treat any literally irrational assertion from the positive law and disregard it, yes. This would not confer upon him a legitimate power to arrest people for having abortions though, absent some other express authorization. A “right to an abortion” is a nullity, a nonsense statement; it is not a specific charter for federal judges to invent anti-abortion laws or to extra-jurisdictionally enforce state anti-abortion laws.
It is true that positivism can be invoked against Roe, but that is because (as in positivist a.k.a. sola scriptura Christianity) positivism can be invoked against anything at all, or its opposite.
You don’t seem to have considered the possibility that positivism is in fact irrational, even though it has the appearance of being rational, and what that irrationality would imply if it were the case (which I claim it in fact is).



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Zippy

posted August 9, 2005 at 2:35 pm


Mike: In other words, if we are communicating clearly I understand the difference between us to be that you believe positivism to be rational and you favor it; whereas I understand positivism to be quite literally irrational. At the end of the day nobody is a consistent positivist (on either the law or the Scriptures) because there is no such thing as a consistent positivist. Everyone ultimately falls back upon some natural law understanding or other, whether acknowledged or not. The function legal positivism performs is to send the natural law underground (just as the function of positivism in general is to send metaphysics underground) so that it cannot be discussed: it must simultaneously be invoked and at the same time we must deny that we are invoking it. And sending the natural law underground has the effect of making the law arbitrary: instead of being constrained by what is true, legal reasoning simply reflects what various people will.
That is where Victor’s “the law is not about philosophy” positivism takes you.



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Liam

posted August 9, 2005 at 3:41 pm


Because, in a sense, “natural law” supplies assumptions that are predicates on which positivism invisibly relies.
As I have noted before, American federal jurisprudence is opportunistic in its appeals to positivism and natural law. And has been since the 1790s. And state jurisprudence is even less positivist.



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Donald R. McClarey

posted August 9, 2005 at 4:19 pm


“It is true that positivism can be invoked against Roe, but that is because (as in positivist a.k.a. sola scriptura Christianity) positivism can be invoked against anything at all, or its opposite.”
Just as natural law can be invoked against anything and its opposite, and much easier, since natural law is an inherently fuzzy concept and the appliction of natural law in any concrete situation depends upon the ability of the judge to discern what the unwritten natural law is. If judges are able to twist written statutes and constitutions to outcomes plainly contrary to the clear meaning of the statute and constitution, it takes no imagination to guess how a concept such as natural law will be utilized.



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Victor Morton

posted August 9, 2005 at 7:52 pm


Bill:
Do not, repeat NOT, confuse disinterest in continuing a thread that probably only the participants are still reading with “difficulties … in justifying his position.” Just don’t.
You need to explain what you mean by “duly promulgated”
Pretty much what Thomas means. Passed by the competent body (the legislature, the majlis, the king, the Nine Robed Guardians) as empowered by the polity’s constituting documents (either a Constitution, a written tradition, or common law) according to the rules established either in those documents or by that body (majority of Congress w/president’s OK; 2/3 of Congress regardless of president; 5 of 9 justices … whatever).
and why you think that matters.
Because without agreement on the competent body, you have anarchy, with every man a (natural) law unto himself. Without due notice, people can’t match their conduct to the law’s requirements. Without a promulgation requirement, there’s really no need for positive law at all (and no natural-law theorist has ever taught that. In fact, positive law is redundant particularly if one believes in some natural law that men supposedly all know.)
You need to explain what sorts of purported sovereigns really are “legitimate”
Those accepted as legitimate by the ruled, usually because they effectively secure peace and maintain a monopoly on organized force. “Acceptance” and “legitimacy” are a two-sided coin — each feeds into the other (the government is legitimate because it is accepted, and generally accepted because it’s seen as legitimate). This acceptance can be based on love or fear, which again in the real world, tend to flow into one another. In general, in an established stable regime, love is stronger; in a founding situation, fear is stronger. But fear (based on a monopoly of organized violence) can never be wholly dispensed with.
and why the notion of legitimacy matters.
Oh, you’re really grasping at straws with this one. Legitimacy is what distinguishes government from brigandage, pirates and gangs.
As I see it, your positivist stance does not allow you to account for any distinction between a valid positive law and one that was the product of what I called tyranny above.
It doesn’t recognize any legally relevant distinction for a jurist between … Do not take legal positivism to mean anything more than that.
By the terms you have set, there is no reason to prefer procedures specified by the Constitution to a coup d’etat, your remarks about “duly promulgated” and “legitimate sovereign” notwithstanding.
These points (and the rest of that last graf) are essentially legislative and founding questions. Not relevant for a jurist.



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Zippy

posted August 9, 2005 at 7:57 pm


Just as natural law can be invoked against anything and its opposite,…
No, it can’t be, if it is objective (as the Catholic Church dogmatically asserts and reason independently affirms). Or at least it can’t be twisted any more than the objective rules of logic or the objective facts of nature can be twisted, both of which we have to trust judges to evaluate dispassionately and objectively.
If judges are able to twist written statutes and constitutions to outcomes plainly contrary to the clear meaning of the statute and constitution, it takes no imagination to guess how a concept such as natural law will be utilized.
The reason that sounds so much like sola scriptura protestantism is because they are both founded in textual positivism. What protestants and legal positivists do not yet appreciate is that it isn’t that there are two rational possibilities about which people can reasonably disagree. There is in fact a rational option and an irrational option, the latter being positivism. It isn’t that there are two legitimate approaches – natural law or positivism – and that the choice between them is a matter of practical preference: it is that practical matters don’t even come into play because the positivist approach isn’t just imprudent, it is ultimately self-contradictory. Provably so, as it turns out.
…it takes no imagination to guess how a concept such as natural law will be utilized.
And protestantism flees from the epistemic implications of Catholicism and into the arms of irrationalism precisely because of this sort of (well founded, given human nature) distrust. Out of the frying pan and into the fire, if you will.



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Zippy

posted August 9, 2005 at 8:06 pm


These points (and the rest of that last graf) are essentially legislative and founding questions. Not relevant for a jurist.
And this is explicitly stated in the constitution exactly where? And if it isn’t, why would you think it advisable to implement it by judicial fiat instead of via an amendment to the constitution? Wouldn’t implementing positivism by fiat undermine the very legal principle you are attempting to establish? I mean, isn’t the whole point supposed to be that principles are to be derived from the explicit text, not established by fiat (particularly in the face of established contrary tradition)?
As an aside, personally I find these threads more interesting as participation is naturally reduced to those who are really interested in and motivated about the specific topic.



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Zippy

posted August 9, 2005 at 8:23 pm


Because, in a sense, “natural law” supplies assumptions that are predicates on which positivism invisibly relies.
Yes, exactly, and at the same time positivism has to explicitly deny that it is relying upon them, because that is what positivism itself means: that the natural law is subordinate to the text (unlike the laws of logic, which are prerequisite) in the proper construction of the positive law.



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Bill

posted August 9, 2005 at 8:58 pm


Victor,
Any confusion I may have had seems to have been over a distinction without a difference. You are still holding out a paradigm of law as Triumph of the Will. When I storm the Supreme Court with my band of Swiss Guards and install nine Catholic natural law jurists, I hope you will have the grace to concede their legitimacy and to accept their duly promulgated decisions.



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Donald R. McClarey

posted August 9, 2005 at 8:59 pm


“No, it can’t be, if it is objective (as the Catholic Church dogmatically asserts and reason independently affirms).”
Of course it can Zippy! That is a self-event fact. Even Catholic theologians have been unable to agree on many applications of natural law. The vast majority of the judges in this country applying natural law jurisprudence would not be Catholic and none of them would be theologians. How in the world would you expect them to possibly agree with the position of the Church on the content of natural law? You can state that the natural law is self-evident to every man through the use of reason, but that is simply not true. To pretend otherwise is to live in a cloud cuckoo-land where wishes take precedence over cold facts.



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Bill

posted August 9, 2005 at 9:11 pm


Mike,
A couple of final thoughts for consideration:
First, when you mention that you view positive law and natural law as operating on different “planes,” do you think that there is any intersection between those two planes and, if so, what is it?
Second, do you really believe that it is clear that judges are only charged with mechanistically applying positive law, and if so, what is the basis for that belief?



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Zippy

posted August 9, 2005 at 9:21 pm


Of course it can Zippy! That is a self-event fact.
There is a fundamental difference between being able to misconstrue something objective and come to a wrong conclusion (something you can’t rule out no matter how much you want to) and something being fundamentally irrational, and therefore providing the cover of apparent truth for any proposition whatsoever. We have to live with the former: there is no escaping it this side of eternity. But the latter is just a form of lie, and it is our duty to oppose it.
It is clearly possible for people to make mistakes in figuring out the natural law (as with anything). But there is no true positivist sense of any text to figure out. I am assuming that you are not saying that for practical reasons we should intentionally embrace a falsehood and reject what is true; and from that assumption I conclude that you have not yet seen how deep the positivist rabbit hole goes.
You can state that the natural law is self-evident to every man through the use of reason, but that is simply not true.
I have never said any such thing, and I find the claim you ascribe to me self-evidently ridiculous. I (and the Catholic Church) do say that the natural law is objective, and in principle knowable to every man using right reason. Even the laws of logic are far from self-evident; but we wouldn’t want to banish them from legal reasoning, would we? There is a big difference between a transparent truth in particular and objective truth in general. Many objective truths – including the objective truth that positivism is self-contradictory – are a long way from transparent.



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Victor Morton

posted August 9, 2005 at 9:23 pm


When I storm the Supreme Court with my band of Swiss Guards and install nine Catholic natural law jurists, I hope you will have the grace to concede their legitimacy and to accept their duly promulgated decisions.
Legitimacy? If you can persuade the people to follow you, be my guest.
And natural law jurists’ decisions would only be legitimate if they followed the law as written, not as they wished it to be written. The problem with “checks and balances” at this moment, though, is that the elected branches are not willing to check the courts, i.e., the legislature and executive have de facto ceded legitimacy to the courts. A few judge impeachments and an Andrew Jackson moment or two and you’d see a lot fewer Caseys, Romers, Lawrences, and Ropers.
By the way, Leni Riefenstahl movies ARE awesome.



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Bill

posted August 9, 2005 at 9:36 pm


Victor,
You haven’t left yourself any basis to insist “natural law jurists’ decisions would only be legitimate if they followed the law as written, not as they wished it to be written.” By your reckoning, their decisions would be legitimate to whatever extent they are “enFORCEd.” Unless you can muster some hard-core Second Amendment folks to dispute the issue, I think you need to concede the legiticmacy of Casey, et al. as well.



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Victor Morton

posted August 9, 2005 at 9:46 pm


You haven’t left yourself any basis to insist “natural law jurists’ decisions would only be legitimate if they followed the law as written, not as they wished it to be written.”
Because their decisions only have the force of law to the extent they follow the law (is this really such a hard concept to grasp … and does any natural-law jurisprude really want to make an issue out of this, given how much slippier a concept unwritten law is always and necessarily versus written law). In other words, “Antonin Scalia” can do and say whatever he likes. Only as “Justice Scalia” does he have vested authority, and that only under the Constitution, which is the supreme law and which creates “Justice Scalia.” So “Justice Scalia” must act according to the law that creates him.
And yes Casey et al, abominable as they are, are settled law (until unsettled). This is not unrelated to the elected branches acting like poodles and refusing Andrew Jackson moments, not being willing to impeach judges or restrict court jurisdiction. I confess not seeing why you think this some great concession. The basic theory of checks and balances says that each branch will follow the law from (among other things) fear of being checked by the other branches if they overstep their bounds.



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Bill

posted August 9, 2005 at 10:00 pm


Victor,
“Decisions only have the force of law to the extent they follow the law” really should be my line. Are you suggesting now that, say, a president who declares a war without a declaration of war as prescribed by the Constitution would be acting illegitimately, even if there is no hue and cry from Congress, the Courts or the American people? What if his declaration is enFORCEd by F-16s and tomahawk missiles?



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Victor Morton

posted August 9, 2005 at 10:08 pm


“Decisions only have the force of law to the extent they follow the law” really should be my line.
No, because “the law” is only what is written.
But if a president were to do what you describe, the other branches did not stop him, and the federal bureaucracy cooperated (specifically mostly the military in this hypothetical, but others would need to accept it too), then his actions would have the force of de facto law, and over time these become acknowledged as legitimate (as the Great Treason of 1776 eventually became legitimate too.)



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Bill

posted August 9, 2005 at 10:19 pm


Victor,
Don’t you realize that you are not describing any principled difference by talking about “force of law” and “force of de facto law.” You have no basis to try to constrain my natural law judges by saying that their decisions would be legitimate only “if they followed the law as written.” You would seem FORCEd to acknowledge as legitimate whatever my natural law judges could get away with, regardless of whether or not their decisions were based on the positive law, the natural law or simply their own whims and preferences.



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Victor Morton

posted August 9, 2005 at 10:34 pm


You have no basis to try to constrain my natural law judges by saying that their decisions would be legitimate only “if they followed the law as written.”
I have given you a basis, which you have ignored — that “Justice Scalia” (or “Justice Bill”) does not exist outside the Constitution that vests him.
You would seem FORCEd to acknowledge as legitimate whatever my natural law judges could get away with, regardless of whether or not their decisions were based on the positive law, the natural law or simply their own whims and preferences.
This differs from the Warren-on Courts status quo … how?
Look, Bill, you are demanding a legal remedy to what is a political question — how to enforce checks and balances and rein in a branch that is overstepping its legal bounds. There will never a legal remedy to counterlegal action, because legal remedies presuppose the law, which has already been suspended in your hypothetical. You’re also not doing yourself favors by pushing the issue with regime-crisis term hypotheticals. Again, law (and this is true no matter the theory of law) only determines behavior in the normal situation, not matters in extremis. If a regime is in crisis, the branches are openly undercutting one another and regime loyalty is dead, well — you have Fort Sumter, Boris Yeltsin climbing on top of a tank. What Locke called the appeal to heaven, meaning the end of government and reversion to the state of nature until a legitimate government can be established.



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Victor Morton

posted August 9, 2005 at 10:39 pm


Or to put it another way … in a regime-crisis situation, legal positivism has nothing to say. Because “law” has nothing to say. This would be no less true if every court in the country had Franciscan and Christendom honors grads flawlessly and perfectly applying natural-law jurisprudence. Regime crises are not determined by legal briefs.



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Zippy

posted August 10, 2005 at 8:07 am


There will never a legal remedy to counterlegal action, because legal remedies presuppose the law, …
I don’t know why you would want to rule out legal remedies. Doing so seems to rule out the possibility of things going from worse to better. For example, what is impeachment but a legal remedy to counterlegal action?
But you’ve done a good job putting the kibosh on all the objections to natural law jurisprudence based in the fact that it can be abused.



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Bill

posted August 10, 2005 at 8:42 am


Victor,
Any deviation from the positive law, even those far less dramatic than Boris Yeltsin on a tank, fits the definition of what you have called a “regime-crisis situation.” My point is generally what you have said, that “in a regime-crisis situation, legal positivism has nothing to say.” You may be unhappy with Warren court decisions, but how can you even intimate that they are somehow not legitimate based on their not complying with your view of the requirements of a document that arose out of the “Great Treason of 1776?” The mere fact that the “right to privacy” has been enFORCEd makes it legitimate under the vision you have set forth. By your standard, one can only determine legitimacy retrospectively and then only do so by acknowldeging whatever has prevailed. That’s why I say that objective law, written or otherwise, cannot matter for you. The only thing that matters is the ability to impose one’s will.



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Victor Morton

posted August 10, 2005 at 11:55 am


That’s why I say that objective law, written or otherwise, cannot matter for you. The only thing that matters is the ability to impose one’s will.
No, Bill, the only thing that “matters” to me is to be properly understood.
Discussion with natural law types, I have thus decided, is fruitless because they cannot see outside themselves. They so identify their position with reality as such and reason as such, that they literally cannot understand what people who disagree with them are saying.



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Victor Morton

posted August 10, 2005 at 12:00 pm


Any deviation from the positive law, even those far less dramatic than Boris Yeltsin on a tank, fits the definition of what you have called a “regime-crisis situation.”
This is also so obviously wrong as not even to merit a response.



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Zippy

posted August 10, 2005 at 6:26 pm


They so identify their position with reality as such and reason as such, that they literally cannot understand what people who disagree with them are saying.
That is cute, but it doesn’t change the fact that logical positivism (of which legal positivism and biblical positivism are forms) is self-contradictory. Which doesn’t keep positivists from so identifying their position with reality as such and reason as such that they literally cannot understand what people who disagree with them are saying.



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Bill

posted August 10, 2005 at 9:26 pm


Victor,
Your position has been “properly understood,” if not by you, then at least by me. Not that I would make the mistake of assuming that your failure to proffer a substantive response is at all due to your inability to come up with one.



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