Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, August 31, 2011

More on natural law and judging: Baur replies to Arkes

The conversation continues.  Prof. Michael Baur wrote, here, about the role of natural law in the work of judges; Prof. Hadley Arkes responded, here; and now Prof. Baur replies (most of his reply is after the jump):  

. . . I am grateful to Rick Garnett for facilitating this discussion, and to Hadley Arkes for offering his own input and for inviting a further response from me.  I am pleased to join the company of those who find themselves in “heated agreement” with Prof. Arkes, but I would be even more pleased if we together might also convert at least some of this thermal energy into light.

 

Of central importance here is the question of whether one can affirm the soundness and contemporary relevance of natural law thinking, without thereby accepting what Judge O’Scannlain calls the “aggressive” natural law view.  According to Judge O’Scannlain, the “aggressive” natural law view is problematic since it would license judges to “legislate from the bench” (that is, it would license them to engage in illegitimate judicial activism or judicial law-making).  A central aim of my Fordham Law Review response was to show that the Judge was fundamentally correct to hold that one can affirm the soundness and contemporary relevance of natural law thinking, without thereby affirming what he calls the “aggressive” natural law view (however, as I also tried to show, I believe that Judge O’Scannlain’s articulation of his position could benefit from some further conceptual clarification).  Hadley Arkes, for his own part, apparently agrees with my basic point (that one can affirm the soundness and contemporary relevance of natural law thinking, without thereby being an “aggressive” natural law thinker); but he denies that he himself is an aggressive natural law thinker.  In my Fordham Law Review response, I expressed no judgment of my own about whether Judge O’Scannlain’s characterization of Arkes’s position (as an instance of “aggressive” natural law thinking) is in fact an accurate one.  However, I did observe (in footnote 3) that “[f]or Judge O’Scannlain, the work of Hadley Arkes qualifies as an example of ‘aggressive’ natural law theorizing”; and I referred to a passage from Prof. Arkes’s recent (2010) book that (among other passages) led Judge O’Scannlain to his particular characterization.

But apart from the question of whether or not Judge O’Scannlain is right to say that Prof. Arkes is an “aggressive” natural law thinker, it is probably fair to say that Prof. Arkes’s rhetorical manner can at times be spicy and aggressive.  This manner is on display when he suggests that I myself am guilty of affirming a self-refuting proposition.  For Prof. Arkes, this self-refuting proposition can apparently be expressed in the following form: “Everything is subject to a context of actual and concrete practices, except for this very proposition – or the truth-value of this very proposition – which I am now affirming and which is not subject to any context.”  Indeed, affirming a proposition of this kind would be performatively self-undermining.  But Prof. Arkes misunderstands me if he thinks that I was so unreflective (and so unfamiliar with the rich legacy of retortion-style arguments in the history of philosophy) to have engaged in this sort of self-contradiction.

Prof. Arkes attributes to me the view that “everything is subject to a context of actual and concrete practices.”  But my actual statement (which he duly notes, but apparently misunderstands) was the following: “[I]t is never the case that the norms on the basis of which judges (or we) may legitimately evaluate existing positive laws, can be given apart from the actual and concrete practices, interactions, and patterns of behavior (in short, the positings) that inform us and make us the social, linguistic, concept-wielding, and hence rational beings that we are.”  When I say here that moral norms can never be “given” apart from our actual and concrete practices (positings), I am making the basic Aristotelian-Thomistic (hylomorphic) point that the natural law (i.e., moral norms) can never be given (can never be present, can never be operative, can never be actualized), except in and through the actual and concrete practices (positings) that make us the rational beings that we are.  [Of course, we are rational beings also in the sense that we belong to a kind of being that possesses the potentiality to learn naturally (by virtue of a principle immanent in us, and not as a result of some force or directive imposed upon us from without) how to engage in activities that are uniquely the activities of rational beings; but we speak about this potentiality only in light of the actualities which manifest the potentiality, and so it is more fitting (at least from an Aristotelian-Thomistic point of view) to speak of the actuality (and not merely the potentiality) as that which “makes us” the rational beings that we are.]  My basic Aristotelian-Thomistic point here is a decidedly anti-Platonic point, insofar as it amounts to a denial of the view that moral norms which properly guide our conduct might somehow be given or exist (first) in some ideal world or in some disembodied mind, and then (subsequently) become known and “applied” by us in our actual, concrete practices.  On Aquinas’s account (putting aside Aristotle for the moment), our being subject to the natural is law is not to be construed as our being subject to a law that somehow exists apart from our own activity, in some Platonic heaven, and from which we might glean certain moral principles for the rational ordering of our lives.  Rather, our being subject to the natural law is better understood simply as our being subject to the norms of rationality insofar as we are the rational beings that we are (notice that the natural law is “natural” to us in the Aristotelian-Thomistic sense, which is to say that the natural law is not a set of rules or guidelines that we “read off” of from some source that is external to us; rather, it is simply the immanent set of norms that animates our thinking and doing as the rational beings that we are).  This natural law (our unique way of participating – as rational beings – in the divine ordering of the universe as a whole) is not given, present, or actual except in and through our own (rational) activity (that is, in and through our concrete and actual practices which make us the rational beings that we are).  And so if one had an especially active imagination regarding retortion-style arguments, one could show that any attempt to regard one’s own thinking as an exception to what I am calling my “basic Aristotelian-Thomistic point” would entangle the attempter in performative self-refutation.  The performatively self-refuting proposition could be expressed in something like the following form: “Even if every other instance in which the natural law is given, present, actual, and operative, is an instance of some concrete, actual practice by some human being acting as a rational being, there is one instance in which the natural law is not present this way, namely it is not present this way in my own concrete and actual practice of cogitating about the natural law here and now.”

In his response, Prof. Arkes suggests that my thinking on the topic is much like the thinking of Chesterton’s English yachtsman, who believed that he was planting the British flag at some foreign temple, when in fact he was only returning to the Pavilion at Brighton.  In one respect, Prof. Arkes’s use of Chesterton’s metaphor is not quite fitting; for as long as I have been thinking about these issues, I have always known that I am very much in the vicinity of Prof. Arkes (the Brighton Pavilion) when it comes to the point that he wishes to illustrate with Chesterton’s metaphor (namely, the point regarding the inescapability of our reliance on moral principles – the natural law – when we make judgments about what is to be done in any situation).  But in another respect, Prof. Arkes’s use of the metaphor may be fitting, after all.  For the Brighton Pavilion, as majestic as it is, is often shrouded in fog and difficult to discern, even by those who know it and love it the best.  At times in his writing, Prof. Arkes makes use of locutions which would easily lead one to believe that, for Prof. Arkes, the relation between the natural law (on the one hand) and human/positive law (on the other hand) is a relation between one thing which serves as a standard/blueprint/model, and some other thing which is the thing to be measured up against that standard/blueprint/model.  Hence his frequent use of language suggesting that we need to move “beyond” the text or “outside” the text of the positive law or human law.  But Thomas Aquinas, for one, would have regarded this sort of language as misleading (at best), or perhaps even confused (at worst).  For Aquinas, the relation between (a) natural law and (b) human/positive law is not a relation between (1) one thing which is a standard/blueprint/model and (2) another thing which is measured up against that standard/blueprint/model; rather, it is a relation between (i) the way that the eternal law is in us simply insofar as our activity is the activity of rational creatures (ordered orderers) as such, and (ii) the way that the eternal law is in us insofar as our activity, more specifically, is the activity of making or instituting orderings which themselves count as law for other rational beings.  In other words, for Aquinas, the terms “natural law” and “human/positive” law do not refer to two different things, even though these terms do mean different things.  For Aquinas, the terms “natural law” and “positive/human law” have two different meanings, but only one referent (in much the same way that the phrase “that mammal over there” and the phrase “that dog over there” can have two different meanings, but only one referent).  Thus on Aquinas’s account, the relation between natural law and positive/human law is not a relation between one referent and some other referent that is separate from the first referent; rather, it is a relation between one thing (natural law) and a further specification (human law) which is a specification of the very same thing (natural law).  To Aquinas, the recommendation that jurists assess the positive law by moving “beyond” it to the natural law (as if “the natural law” as such were a supervening entity that could somehow exist apart from its being actualized or specified in some particular human positing or action), is about as sensible as the recommendation that veterinarians assess their canine patients by moving “beyond” the dog to the mammal (as if “the mammal” as such were a supervening entity that could somehow exist on its own, apart from its being actualized or specified in some particular species such as “dog”).  Rather than talking about the need to move “beyond” the text or “outside” the text of the positive law (rather than engaging in what can easily sound like dangerous “aggressive” natural law thinking), I suggest that one talk instead about apprehending the rational principles that are immanent in (that immanently animate and that find specification in) the positive law as such.  This Aristotelian-Thomistic approach, I believe, is one that can show us precisely how we might successfully avoid legal positivism (on the one hand) and aggressive natural law thinking (on the other hand).

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