Arkes replies, on natural law and judging

Continuing the conversation with Prof. Baur, Hadley Arkes sends in this: 

    Rick Garnett and my friends on the Mirror of Justice have been kind enough to play the exchange between Professor Michael Baur and me under conditions that may resemble a chess game played over long distance and long intervals. . . .

    But we had something of importance we were both trying to think through.  And so let me omit the sword play, on who might have misunderstood, or misrepresented, whom—and try to recall the central questions that will remain, even if Professor Baur and I recede from the scene.   

 

 

My own reading was that Prof. Baur was quite right in seeing the dilemmas contained in Judge Diarmuid O’Scannlain’s lecture on natural law.   O’Scannlain wishes to take natural law quite seriously, but as a judge working within the constraints of a constitutional order he is wary of claiming the license to appeal to those deep principles of lawfulness, or natural law, those principles that may not be found in the text of the Constitution.  (They may be propositions like, “we presume innocence for the accused and put the burden of proof on those who declare him guilty and inflict punishment."  Or in the case O’Scannlain dealt with, it may closer to this point:   “that an innocent man has a right to fend off unjustified assaults;  and he may have then a right to employ a lethal weapon as the only practicable means of defending himself.” )   To get around the problem, O’Scannlain sought to describe conditions in which it would be more legitimate for the judge to make that appeal to that deeper principle.  He would seek some evidence that notable figures at the Founding had understood and articulated that principle. 

But my critique was this:   In order to establish the legitimacy of an appeal to the natural law, O’Scannlain has given us, in effect, a rule to tell us when that appeal becomes more or less legitimate.  But that rule,  as I pointed out, was nowhere contained in the positive law of the Constitution.   On what basis would we claim to “know” it and to credit it with an authority to guide our decisions?  The only explanation, I suggest, is that O’Scannlain regards the rule as something sensible in itself, something that may be grasped, as we say, per se nota.  Which is to say, it’s one of those propositions, as Alexander Hamilton says, “which, antecedent to all reflection and combination, commands the assent of the mind.” In other words, it is an axiom or first principle.  In order to evade the problem, O’Scannlain would simply give us another principle of the natural law.  We are back with the natural law,  because we had never left it.  In our search for things reasonable in themselves, we had never left the “laws of reason” that form the ground of the natural law.

          Baur seemed to recognize, for his own part, that O’Scannlain was caught in this fix:  To the extent that he was insisting on a connection to something in the positive law, he was indeed anchored and confined in the positive law.  To the extent that he would break out of that box by appealing to deep principles, principles that don’t depend for their validity on being mentioned in the text,  there is a danger that he would be falling into the same “aggressive” version natural law that O’Scannlain (with Baur’s acquiescence) attributes to me.

          If I understand him, Baur is seeking to offer a middle way around the problem.  The solution would be found in a wondrous mingling of the positive law and the natural law.  People making the positive law will be guided by common sense and principles of natural justice, and after a while they form a weave.  The judge who relies on that weave will always be connected with the positive law;  he will never be soaring free on his own, invoking the principles of natural law with their abstract clarity.

          But for several reasons, this construction, I think, will not solve the problem, and Prof Baur once again would find himself backing precisely into the same problem he finds in O’Scannlain.   Let me unfold the reasons.

          --Baur denies first that we can have access to those deep principles of the law apart from the concrete circumstances in which we live and make judgments:

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.

          This passage is bound to induce head-scratching among the devotees of Aristotle and Thomas I know.  For to say that a proposition cannot become “operative” or “actualized” without someone there to apply or enforce it is not the same as saying that it cannot be known.   Things like the Pythagorean Theorem could be known, as Karl Popper once pointed out, even if there was no Knower on the scene to know them.  Yes, we cannot have judges without a system of law arranged for their appointment.   But the proposition that “we don’t hold people blameworthy or responsible for acts they were powerless to affect”—that proposition will be there even if no judge is on the scene yet to apply it.

          Prof.  Baur here comes curiously close to that line that came, as I recall,  from Joseph de Maistre: that he did not know of “man” and “the rights of man.” That was all too abstract.  He could know men only in particular settings.  He could know Frenchmen and Germans, but not “man.”  In striking contrast, we have that petition submitted by a group of black slaves to the government of Massachusetts in 1774:

[W]e have in common with all other men a natural right to our freedoms without being deprived of them by our fellow men, as we are a freeborn people, and have never forfeited this blessing by any compact or agreement whatever. … . We therefore beg … that we may obtain our natural right,  our freedoms, and our children be set at liberty at the year of twenty-one.

          Were these men, no doubt wanting in formal education, just deluded in thinking that they could conceive of human  beings as bearers of rights quite detached from that set of “actual and concrete practices,” from those circumstances and the conventions of contract, in which they happen to be living?

          Part of my response to Prof. Baur was that, in contriving his interesting account or theory, he was once again offering for our guidance an understanding not set down explicitly in the positive law.  In his response he reiterated this line from his commentary in the Fordham law review:

[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.

 

          Prof.  Baur states with the sweeping force of a principle that “it is never the case”—never the case that we can know things “apart from the actual and concrete practices, interactions … that inform us.”  But he doesn’t tell us just what set of “actual and concrete practices,  interactions”  give rises to that proposition he is proclaiming now with the force of a principle.   My own  surmise is that this is a proposition that he expects will hold true in all settings, even when the concrete practices and circumstances in any place are strikingly from the ones he has known in his own life.  It strikes me that he is offering a principle then that will be utterly invariant by shifts in locales and circumstances.  Now, if I’ve misread him, I’d like to know how. I credit Prof. Baur’s report that he is as alert as anyone else to “self-refuting” arguments. But even people quite alert to these things may find themselves falling at times into constructions that are self-contradictory.  It happens to be the best of us.

          Finally:  Let me assume, for the sake of argument, that Prof Baur has not backed himself into the axioms of reason and the natural law;  let me assume that he is right—that our experience gives us that wondrous amalgam of the positive law infused with principles of the natural law.   With this happy construction the judge can invoke the moral reasoning of the natural law with the trust that his argument is somehow embedded in the positive law, and that he is not doing something that turns the positive law upside down.  But let us consider then as a hard case the matter of racial segregation and interracial marriage.  We know that the Fourteenth Amendment was not widely understood to bar racial segregation in schools.  And Lyman Trumbull, who managed that Amendment in the Senate, assured his colleagues up and down that nothing in that new Amendment would challenge those laws in Illinois as well as Mississippi that barred marriage across racial lines.  The point has been made that the same Congress that passed that Amendment had plenary control over the District of Columbia, and yet it did not use that power to remove racial segregation in the public schools.  It seems quite implausible then that men who framed and voted for that Amendment understood that it could command the racial integration of schools in Topeka.   Judge Brown in the Plessy case looked  for guidance from other courts, and not merely from  courts in the South.   He found that judges even in the North did not think that the Fourteenth  Amendment disallowed racially segregated schools.

          The positive law then seemed to be quite firmly settled on the matter of racial integration and the barring of interracial marriage as arrangements quite legitimate under the Fourteenth Amendment.   Now the problem for Prof. Baur:  How could the judges of our own day justify the overturning of these understandings, long settled in the positive law, unless they make an appeal to the deep principles that could establish the wrong of racial discrimination.  Of course the judges never did exactly explain that principle, and that has itself been a source of other distortions in our jurisprudence.   But even if we supposed that the deeper understanding was contained, buried, somewhere in the positive law, the reasoning that extracts it must surely be reasoning that runs, in a demanding way, to the root of first principles.  We would “doing” natural law, even as we pretend that we are simply excavating in the thick deposits of the positive law.

          I assume that Baur would be with me on overriding  the long-settled positive law on racial segregation.  And so I could only wonder:  where would we possibly be at odds on this matter of the natural law? . . .