The Nature of Law

With all of the action going on down south on who should succeed justice Sandra Day O'Connor to the U.S. Supreme Court, it's a good time to reflect on what the Law is, what we expect from it, and why it is such a compelling subject. At Right Reason, Edward Fesser defends GEM Anscombe from Simon Blackburn and in so doing, offers a succinct description of the Natural Law tradition:

since the natures of things are just the forms in which they participate, and forms are, on the classical metaphysical picture in question, eternal in the way that mathematical truths have traditionally been taken to be, there is a sense in which the moral truths entailed by our having a certain form are necessary truths. Of course, that we exist at all is not a necessary truth, but a contingent one; and of course, it is also true that there could have been creatures that were like us in some respects but not others. But given that we do in fact exist, and that we have the specific characteristics we do in fact have, that certain things are morally allowable for us and certain other things morally forbidden by virtue of our having the natures we do is true of necessity. That’s just what it means for it to be part of our nature that certain things are good for us and other things bad. (Of course, this does not mean that there aren't some things whose moral status is contingent, only that the core of moral truths is not. The specific way in which certain necessary moral truths get applied to contingent concrete circumstances will in some cases vary from time to time and place to place, so that certain secondary moral principles, which govern how we apply the primary ones, might be changeable.) Finally, I want to note also that there is a strand within the classical theological tradition according to which, contra Plato, the forms do not exist independently of any mind whatsoever. For while they do not depend on our minds for their existence, they do nevertheless exist eternally within the divine mind. And that means that while there is a sense in which they depend on God for their existence, they do not depend on Him in the sense in which contingent things do. For example, it is not as if they did not exist at one point in time, and then were brought into existence at some later point. Rather, they have existed always and necessarily, because they have always and necessarily been the objects of divine contemplation. And this is as true of the form that determines our nature, and the moral truths that follow from our nature, as it is of any other form. The idea behind this view, which goes back at least to Augustine, is that while the Platonist is right to hold that truths about the forms, being necessary truths, cannot depend on finite and contingent minds like ours, the anti-Platonist is also right to hold that any proposition can only exist as entertained by some mind or other. The only way to reconcile these claims is to hold that truths about the forms exist as entertained by the infinite mind of a necessary being.

Keep this understanding of Nature of Law in mind when you read Ann Althouse's musings on a statement by Michael Luttig, who is widely seen as a conservative contender for O'Connor's seat.

Quite clearly, Luttig is not saying that there is a such thing as super-stare decisis. He's a Court of Appeals judge bound by Supreme Court precedent and subject to Supreme Court review. He's paying attention to what that Supreme Court has written about abortion rights, and he's reading the Court to have intended Casey to serve as an especially strong precedent. In making up a new term, Luttig may have even been subtly mocking the Casey Court. How does a majority in one case get the power to imbue its decision with extra weight? You can intend to give your case super powers but have you succeeded? Saying it's super powerful doesn't make it so. It is up to the later Court to decide whether to overturn that precedent. Will the fact that the Court that decided it meant to make it more powerful matter? That's the aspect of Casey that Luttig chose to point out: the Court claimed special power for it. He, as an inferior court judge, must go along with such things, regardless of what he really thinks.

The question here is on the Nature of what constitutes a binding authority. Civil disobedience fans take note: The Liberal opinion here, namely that rights, once given, cannot be taken away, places supreme authority in the court in a very direct way, in the people who nominate them in an indirect way, and the people themselves it leaves little to nothing. The court is bound by precedent, it is true, but then people who lean left on court issues have a tendency to allow a great deal of creativity in the interpretation of precedent. In other words, the very people who who see the court as being invested with the most sweeping powers of authority also tend to be those to give it the longest leash. There tends to be an assumption that granting rights can never be a bad thing, and / or that rights do not come into conflict. It's like saying that granting the right to kill other people for food (cannibalism) is a good thing and no threat to anyone else. Of course Liberal justices do not say such things but one can and ought to be concerned about what can be inferred from a statement as much as one can with what a statement actually says. As Fesser writes:

There is nothing incoherent in the thinking of someone who has never consciously entertained modus ponens as an abstract rule of inference, but who nevertheless believes that Socrates is mortal because he knows that Socrates is a man and that all men are mortal. His thinking becomes incoherent only if he consciously entertains and rejects modus ponens while continuing to make the same inferences he always has. You don't have to be a logician to think coherently, even if you do have to avoid explicitly denying truths of logic.

If Luttig is right and the Casey court intended its ruling to be especially binding, it has placed itself in the position of grandstanding about the expansion and surety of rights while placing all such rights in terrible jeopardy. They are in jeopardy because no court and no human person can create or guarantee a thing like a right. That is what is contained in the Fesser quote I lead off with and reflection and experience ought to show the rightness of it. Suppose a court ruled that the government has the right to seize your house for what it deems to be the "greater good." This, I understand, some US court recently did! Suppose further that the ruling suggests that the court holds its ruling to be especially binding and precedent setting. It has "expanded" rights but obviously - and I hope it's obvious - a ruling like that expands the scope and power of the government to infringe on its people. Under "no rollback of rights" how can people hope to oppose and seek to overturn such a law? What criterion will they hold up to show its injustice? If you want to draw a distinction and say that only increasing individual rights is an unalloyed good, I do not see how it alters the question. Change the property seizure situation so that the right to seizure belongs to an individual and you haven't balanced the situation a whit. Under a Natural Law view, only those laws that are just are binding. Their binding nature comes not from the barrel of a gun - as does any law whose authority rests solely on a court and the police who do its bidding - but from their participation in God's law. There needn't be anything threatening about this to a non Christian because the argument makes no claim about the nature of the divinity in question. This argument also allows that governments and courts can err in understanding both the nature of Natural Law and in grasping the full implications of its own rulings. It allows - and in fact obligates citizens to oppose laws that they deem injust. Althouse raises the Liberal objection here:

But there is more to Casey than the mere assertion that the Justices intend it to have extra weight... the reason [is] embodied in the phrase "Liberty finds no refuge in a jurisprudence of doubt." Part of having rights is the sense of permanence. It is not just that courts in the past have protected this right, but that the right will continue to exist in the future. A right is not a transitory thing. In this view, the super power of Casey lies not in the Court's intent to make it a "superprecedent," but in the soundness of that reasoning. Judge Luttig's opinion has nothing to say about that.

With respect to Althouse, I think there's an error here. Luttig raises the point that the court's ruling has been questioned for nineteen years, suggesting that 1) this law is in fact far from sound and, 2) that there exist boundaries that make it a real challenge to alter the law. If the cost of fighting the law is reasonably high, we cannot reasonably take the view that our rights "hang by a thread." Each person has to decide if the questioning of a ruling has merit or not and if they decide that it is lacking, then there is an obligation to act against it and to bear the costs of doing so. There is bound to be a degree of conflict in a society with an ongoing discussion of Natural Right taking place and we should not back away from it. The alternative is to create a desert and call it peace. The debate - the ongoing conflict, if you will - refines and refines and refines our thinking about what justice is. How could we ever hope to create a just society without it?