Tuesday, August 23, 2011
A few days ago, I linked to an essay by Prof. Michael Baur on natural law, positive law, and the role of judges. The essay was, among other things, a response to the recent work of Prof. Hadley Arkes, with whose work I'm sure MOJ readers are familiar. Hadley sent to me the following, which I am happy to post (with his permission):
A friend alerted me that my name was taken in vain in a recent exchange in the Mirror of Justice: My friend Rick Garnett had recommended a recent essay done by Michael Baur at Fordham in response to a lecture on natural law by another good friend, Judge Diarmuid O’Scannlain. O’Scannlain made the curious move in that lecture of identifying me with what he called an “aggressive” style of natural law reasoning---curious because he had reviewed my book, Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law, and if nothing else in my writing could have diverted him from that characterization of my “work,” there should have been ample refutation of that characterization in the chapter titled “A Good Word for the Legal Positivists.”
It may come as a surprise to Professor Baur that the position he offers as a sensible middle way, drawing on Aquinas, is one I had long encompassed in my own work—he might go back to my book The Philosopher in the City (Princeton, 1981), especially in the last two chapters, dealing with “Law, Morals and the Regulation of Vice.” But even if he had read only the most recent books, he would known that we were, as a colleague of mine says, in “heated agreement” on the arguments he was making. As I’ve made the point in the most recent and other books:
--The natural law has long made a place for the necessity of the positive law. We may understand a principle that bars us from driving at speeds that put life at hazard, but we need a regulation of the positive law to translate that principle into a measure that bears more precisely on the terrain and circumstances at hand (35 mph on a winding country road, 65 mph on the highway).
--It is a deep principle of the natural law that positive laws made in a lawful way should be obeyed, even when they are bad laws—until those laws can be changed in a lawful way. If there is something right in principle about government by consent, we should be obliged to respect the laws enacted by the legislators authorized to act until they can be changed through lawful means.
--There must be room for statesmen to make accommodations with an evil for the sake of compressing that evil. As Aquinas taught, we cannot obliterate all evil among human beings; the best we can do is compress evils to certain tolerable limits. Hence the accommodations with slavery made by the American Founders—accommodations, as Lincoln said, that were done with the hope of putting slavery “in the course of ultimate extinction.”
Professor Baur, sensible as he is, sounds rather like those intrepid explorers described by Chesterton: After a while at sea, they spot land, and discover that they’ve landed at … Brighton. Professor Baur offers an inspired middle way only to discover that he has landed at the spot that I’ve occupied, marked off, explained for many years.
It is curious also that Baur cites only one line of mine to illustrate what he calls that “aggressive” style of natural law:
[T]he task of judgment, in our constitutional law, persistently moves us away from the text, or from a gross description of the act [being judged], and it moves us to the commonsense understanding of the principles that guide these judgments: the principles that help us in making those distinctions between the things that are justified or unjustified.
The fire department blocks me from walking down the street to my apartment because it’s fighting a fire there. My liberty has been impeded, but my rights have not been impaired or denied, for that liberty was restricted with evident “justification.” The Constitution bars “unreasonable” searches and seizures. At every turn we are faced with the question of whether the law is restricting our freedom, taking our property or even our lives, with or without justification. Our judgments will turn on those principles we use to the measure the presence of an adequate justification; principles that lie outside the text. Surely it could not have passed Prof. Baur’s recognition that what he describes here as an “aggressive” use of natural law is indeed the work of the law, and moral judgment, every day, not only by lawyers but by ordinary folk, not burdened with law degrees.
And yet, the heart of the argument with Judge O’Scannlain is not altered in the least, but simply replicated by Prof. Baur. For what is this sensible “third way” that Rick Garnett finds in Baur’s addition to O’Scannlain? One way or another it involves an account of how judges might be authorized to invoke understandings of the natural law, whether or not they are valid, because the natural law is given some grounding in the positive law, and the distinct circumstances, in the polity in which we are living. Something of that kind? The authorization involves the articulation of this understanding, formed into a kind of rule to explain why a judge may be justified in invoking notions of natural law. Now, is it worth pointing out to Prof Baur that this construction he is offering is nowhere contained in the Constitution or the positive law? And yet it would apparently regard it as an understanding sound enough to guide the judges and the rest of us. I gather that he regards this understanding as something sensible in itself—as Alexander Hamilton would say, an understanding “which, antecedent to all reflection or combination, commands the assent of the mind.” Which is to say, it is one of the “first principles,” not at all dependent on the Constitution. We are back with the natural law, and the truth of the matter is that we never left it.
Reflective of this state of mind is this telling passage from Professor Baur as he tries to crystallize his argument:
[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.
Everything is subject to a context of “actual and concrete practices”—except this proposition itself. This understanding, so critical to Baur’s argument, is never itself subject to a context. Evidently it is to be taken as true under all conditions. We are back again to first principles.
The question emerging from all of this then: How often is it necessary to keep backing into self-refuting propositions, before that recognition finally dawns? And as it dawns, commentators may recognize that, as they seek to resist the “laws of reason” that form the ground of natural law, they keep backing into those same laws as they try to fashion their own arguments. They keep landing at Brighton. The surprise, yet to dawn for them, is that they have never left the natural law.
The readers of the Mirror of Justice, instead of relying on other accounts, may be interested in seeing my own response to Judge O’Scannlain. It will be part of the “Natural Law Manifesto,” a talk I gave in Washington on June 4th, as we inaugurated our new Center for Natural Law in Washington, under the sponsorship of the Claremont Institute. The fuller text will appear in the Claremont Review, but it will be available also, with those footnotes we esteem and dread, in an upcoming issue of the Notre Dame Law [Review].
I'll invite Prof. Baur to respond in detail (or, perhaps, to Robby, to weigh in).
Prof. Richard Epstein writes, here, that Warren Buffett is like the Pope . . . in being misguided about morality and the market economy. He writes:
A successful and sustainable political order requires stable legal and economic policies that reward innovation, spur growth, and maximize the ability of rich and poor alike to enter into voluntary arrangements. Limited government, low rates of taxation, and strong property rights are the guiding principles.
Unfortunately, many spiritual and economic leaders are working overtime to push social policy in the exact opposite direction. At the top of the list are two prominent figures: Pope Benedict XVI and financier Warren Buffett. . . .
The archbishop-designate of Philadelphia, Charles Chaput, has a worth-reading essay on religious freedom -- which is adapated from his remarks at World Youth Day in Spain -- over at the First Things blog. He writes, among other things:
. . . Freedom of religion presumes two things.
First, “freedom of religion” presumes that people have free will as part of their basic human dignity. And because they can freely reason and choose, people will often disagree about the nature of God and the best path to knowing him. Some people will choose to not believe in God at all—and they have a right to their unbelief.
Second, “freedom of religion” presumes that questions about God, eternity and the purpose of human life really do have vital importance for human happiness. And therefore people should have the freedom to pursue and to live out the answers they find to those basic questions without government interference.
Freedom of religion cannot coexist with freedom from religion. Forcing religious faith out of a nation’s public square and out of a country’s public debates does not serve democracy. It doesn’t serve real tolerance or pluralism. What it does do is impose a kind of unofficial state atheism. To put it another way, if we ban Christian Churches or other religious communities from taking an active role in our nation’s civic life, we’re really just enforcing a new kind of state-sponsored intolerance—a religion without God. . . .
Following up on recent posts by Lisa, Richard, and me -- about protecting the vulnerable through U.S. law, about our Vice President's apparently non-judgmental attitude toward China's one-child policy, and about chilling developments in Denmark -- here's Charlie Camosy, at the Catholic Moral Theology blog, on "The End of Love: When Killing the Most Vulnerable Becomes a Good." He notes that "[w]e are refusing to love the most vulnerable and are instead abandoning them in the most dramatic way possible."
I am pleased to announce the launch of CLR Forum, the new on-line resource of the Center for Law and Religion (CLR) at St. John’s University School of Law. CLR Forum is a source of information and commentary for scholars and others who are interested in law and religion. It offers the following features:
- Scholarship Roundup -- a comprehensive compilation of new law and religion scholarship, including:
Articles – recently published U.S., foreign, and comparative articles;
Books – the newest books in law and religion; and
Conferences – a list of upcoming conferences.
- Commentary by members of the CLR, including its student fellows, on law and religion issues in the news and around the web.
- Links – a helpful list of links to law and religion research centers, blogs, and religion news sites.
Mark and I hope this will be a useful resource for folks interested in these issues, and we are eager to know what you think. Please contact us to share your thoughts.
Monday, August 22, 2011
An essay in today's Globe & Mail by Margaret Somerville, the founding director of the Centre for Medicine, Ethics and Law at McGill University, ('Deselecting' our Children) begins:
Here’s a recent Danish headline: “Plans to make Denmark a Down syndrome-free perfect society.” The Danes want to promote aborting fetuses with Down syndrome, so their society will be free of such people around 2030. One bioethicist describes it as a “fantastic achievement.”
Godwin's Law be damned -- didn't humanity learn anything from Nazi Germany?
I join Richard in recommending Carter Snead's opening essay in Public Discourse's series "Liberty, Justice, and the Common Good: Political Principles for 2012 and Beyond." The whole series looks excellent -- check out the program.
Carter's piece includes a paragraph that I think goes to the heart of why the "life" issues continue to be so central to so much of political debate. It explains, I think, why pro-lifers sometimes get tagged with being obsessively single-issued -- this one issue does, in fact, drive our perspectives on so much else. Carter writes:
At bottom, the “life issues”—including especially the conflicts over abortion and embryo-destructive research—involve the deepest and most fundamental public questions for a nation committed to liberty, equality, and justice. That is, the basic question in this context is who counts as a member of the human community entitled to moral concern and the basic protection of the law? Who counts as “one of us”? Equally important is the related question of who decides, and according to what sort of criteria? These are not narrow concerns commanding only the attention of a small number of highly motivated activists at the fringes of our society. Indeed, it is hard to imagine a public matter that is more important than this “question of membership.”
I just now saw a new paper on SSRN that puts this question into the context of the UN's Convention on the Rights of Persons with Disabilities. It's by Michael Neil, a graduate student at the School of International Studies at the University of Denver: "Reasonably Confused: Human Rights and Intellectual Disability". I haven't read the paper yet, but the chilling final sentence in support of Carter's point seems like a very real question, not just rhetorical hyperbole: "Can we include all of our family members and neighbors without fear of our system imploding?"
Here's the abstract:
In a conversation I recently had with Laura Hershey, friend, disability rights advocate, and participant in the Convention on the Rights of Persons with Disabilities, I brought up the problem of rights, personhood, and rationality. I wanted to know why, when the working group, of which she was a member, designed the CRPD, they did not implicitly address the redefinition of the notion of personhood to describe the status of all human beings, without consideration for reasoning ability. She was surprised that I would suggest any implicit exclusion existed or that people without the ability to reason currently hang in limbo within important primary human rights documents. Her understanding was that the Universal Declaration of Human Rights, true to its name, was universal in its scope and that the CRPD followed in its sentiment.
Unfortunately, for her view, the UDHR, in Article 1, states, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience (italics the author’s) …” Political theory, from Socrates to Rawls, has conflated reason with recognition and inclusion in the political system. The UDHR is irreconciled on the status of people with severe intellectual impairment. Even as Article 1 defines human beings in terms of rationality, the Preamble states, “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world…” Similarly, Article 2 states, “Everyone is entitled to all of the rights and freedoms set forth in this Declaration, without distinction of any kind…” The unaddressed questions are, “What does the term “human family” mean?” “Does “everyone” really mean everyone?” and “Is there a difference between human being and person?”
This work will address the various historical meanings of personhood, including person as Homo sapiens, rational chooser, or contributor, and investigate what recognition of the eight-hundred pound gorilla might mean. Are the universality of human rights and the primacy of reason incompatible? Can a third position emerge that acknowledges reason as a “light of the world” and a “chief glory of man” while also acknowledging relational abilities, demonstrated by people with severe cognitive impairment as equally essential aspects of what it is to be human? Can we include all of our family members and neighbors without fear of our system imploding?