Monday, January 12, 2015
I begin by thanking our friend and Mirror of Justice colleague Professor Michael Moreland for bringing to our attention news of the death of Walter Berns. He came to my undergraduate alma mater (Georgetown) to begin his late teaching career after I received my bachelor’s degree. I should like to have studied with him and learned from him. Several of my teachers who have also since gone home to God would speak enthusiastically about him to me thereby complicating my regret. One of the elements of Michael’s posting that caught my particular attention was the passage in which Berns brings up the matter of law and morality and whether there is a nexus between the two. On this subject I would like to offer a few thoughts today.
Berns, like others, was on to something. A little over a year ago I was to deliver the annual Murray Lecture at Loyola University Chicago in November of 2013. While the lecture was not delivered due to my having a prolonged hospitalization around that time, the editors of the Law Journal graciously published the lecture as they had done with all the previous Murray Lectures. The 2013 lecture was entitled “The Law as a Moral Enterprise”. I debated with myself if the title should have been “The Law Is a Moral Enterprise” but went with the designation chosen. The lecture is HERE: Download 46LoyUChiLJ293.
In the lecture, I wrestled with a notion that has attracted the attention of Berns and others, such as Lon Fuller and H. L. A. Hart. My view is that the law is frequently a moral enterprise if the adjective moral and the noun morality are understood to mean those matters involving human character and behavior necessitating a distinction and choice between what is right and what is wrong; what is good and what is evil. Those that rely on the position that you cannot legislate morality ever are, in my view, wrong. By way of illustrating my point, the civil laws dealing with murder, adultery, theft, and perjury require those who are subject to these laws to make distinctions between right and wrong; between good versus evil. These kinds of civil laws regulate the moral choices made by those subject to the law. By the way, the types of law just mentioned appear in the God’s law as well, but I digress.
But there are even some civil laws which, while facially neutral in a moral sense, nonetheless have a moral foundation if the analyst digs deeply enough to discover the connection. For example, civil laws necessitating that motorists drive their motor vehicles on the right side of streets having two-way travel (as they do in the US) or on the left side (as they do in the UK), at first blush, appear to be morally neutral. However, one can eventually see a moral element contained in these facially neutral laws which necessitate a choice between keeping the roads safe by mandating a uniform manner of travel. This choice is a moral one designed to protect people rather than to endanger people. Another example follows: while there is not much wrong in having a wee dram to drink at a social gathering and then to drive home, there is something terribly wrong in allowing motorists to drive while under the influence. Hence the civil law again requires the citizenry or subjects of the law to pursue the good and the right and to avoid the evil or wrong by limiting how much alcohol is consumed before taking to the wheel. These laws again deal with exercises necessitating people to make the moral choice.
As I intend to keep today’s post brief, allow me to conclude with a passage from the 18th century English polemicist and essayist who used the nom de plume Junius. In his January 1772 letter to the Lord Chief Justice Mansfield, he asserts the following in a passage dealing with the meaning and intent of the legislature,
To investigate a question of law, demands some labour and attention, though very little genius or sagacity. As a practical profession, the study of the law requires but a moderate portion of abilities. The learning of a pleader is usually upon a level with his integrity. The indiscriminate defence of right and wrong contracts the understanding, while it corrupts the heart. Subtlety is soon mistaken for wisdom, and impunity for virtue. If there be any instances upon record (as some there are undoubtedly, of genius and morality united in a lawyer) they are distinguished by their singularity, and operate as exceptions.
These words of Junius may well be a helpful catalyst useful for those of us who are interested in the law as teachers or practitioners or citizens; in the need to make good moral choices; in the desire to practice virtue; and, of course, in the pursuit of developing Catholic legal theory. With this in mind, the intersection of the moral and the legal may become more of the rule rather than the exception as hinted to by Junius.