Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, December 24, 2012

The intelligent part

By way of reply to Rick's agreeable disagreement with me, my point was that the ideal is for intellectus to rule, indeed to rule and measure.  To clarify and amplify my earlier point, the ideal is for the human ruling mind to be measured and ruled by higher law, both natural and divine, and thus to create human law to give effect to higher law.  Separation of powers and checks and balances are certainly better than some alternatives -- and they can indeed sometimes deliver human law that gives effect to higher law, but they are not the ideal.  

Not only that.  I don't doubt that some people embrace separation of powers and checks and balances out of "humility and caution," but others, including many of the Framers, embraced them exactly because they denied the ideal on pseudo-philosopohical and pseudo-theological grounds.  They denied, more specifically, that we can know what man is, and not knowing what man is, we do not know that he enjoys an intellectus that can know the higher law that is a participation in the Eternal Law. What such nescient and denying Framers were left with was (to borrow a phrase from Russ Hittinger) "a thermodynamics of power."  And what that has delivered, more than two hundred years later, is Lawrence, a legally enforceable right not to be ruled and measured, but to invent yourself (limited only by the harm principle). That is not intellectus at work, it's pure voluntas.  

I don't suggest that Lawrence was inevitable, only that, though neo-cons don't like to admit as much, it reflects core elements of many of the Framers' Lockean commitments; for them, the question of man's summum bonum is (as Pangle says of it for Locke) "perfectly idle."  To repeat, checks and balances may in certain circumstances be a way to give effect to higher law, but it is not the ideal.  And its essential defect is this: with checks and balances as the fundamental organizing principle, what we have is a state that in a self-conscious and principled way cannot think, it can only bicker.  Yes, individual members of our government can think, at least in principle; but the fruits of their intellectus then get thrown into that thermodynamics of power.  

A Christian king can think, if only we could find one.  We cannot find one because we have a Constitution that rejects the ideal.  

I have addressed some of these issues here, and I address others among them in a forthcoming paper 'The Pursuit of Happiness' Comes Home to Roost: Same-Sex Union, the Summum Bonum, and Equality.


Brennan, Patrick | Permalink

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