Sisk, Gregory C.
GCSISK at stthomas.edu
Mon Jan 16 18:57:11 PST 2006
To believe in natural law is not necessarily to assume that it is a proper
interpretive method for constitutional adjudication or that judges (at least
modern judges) are equipped to understand and apply natural law. Likewise,
to believe that natural law exists need not mean that one does not think it
best implemented by persuasive application through democratic discourse
rather than invitation of a judicial decree. And most of the natural law
theorists of which I am aware appreciate that our society has so lost touch
with the theoretical (and theological) underpinnings of natural law such
that invocation of it in litigation is unlikely to be anything more than an
expression of a policy preference.
From: Sanford Levinson [mailto:SLevinson at law.utexas.edu]
Sent: Mon 1/16/2006 4:43 PM
To: lesl at udel.edu; lawcourts-l at usc.edu
Cc: CONLAWPROF at lists.ucla.edu
Subject: RE: foreign sources
I am curious how proponents of natural law justify refusing to look at
sources ranging from philosophy to foreign legal materials in order to
determine what is "cruel." If the argument is that "cruelty" is to be
determined only by reference to "internal" American legal materials
(whatever exactly that might mean), then isn't the putative natural
lawyer in fact adopting a straight out relativistic postivism, whereby
the meaning "cruel" (and, presumably, "just" and "unjust" etc.) are
entirely functions of who has the power in a given political system.
(Thrasymacus, anyone?) Or is the argument, as we positivists would
assert, that there is no necessary connection between law and morality,
that "law" is in fact simply a reflection of the views of those with
power, and, therefore, that NO legal system, most definitely including
our own, is entitled to what Madison called "veneration" inasmuch as
"veneration" should be given only to that which passes some plausible
test of being moral. (A posting in honor of Martin Luther King's
Would a declaration by the President, even assuming he has Article II
powers to do so, that what the rest of the world believes is "torture"
really isn't "torture" at all be despositive of what anyone other than a
highly positivist lawyer must assign as the meaning of torture?
Or is the President really Humpty Dumpty, able in signing statements,
and with the assistance of friendly lawyers in the OLC, to declare that
words, including words freighted with moral resonance, mean only
whatever he deems them to mean?
From: owner-lawcourts-l at usc.edu [mailto:owner-lawcourts-l at usc.edu] On
Behalf Of Leslie Goldstein
Sent: Monday, January 16, 2006 3:21 PM
To: lawcourts-l at usc.edu
Subject: foreign sources
Greg Sisk wrote:
>While as a matter of public policy, and frankly of moral urgency, I do
>think world trends on the death penalty to be a powerful statement, I
>cannot agree that the meaning of the United States Constitution can
>hinge on such foreign developments.
The U.S.Constitution forbids punishments that are "cruel and unusual."
It seems to me that looking to the rest of the civilized world to see
what it views as "cruel and unusual" in the way of punishment makes no
less sense than it did for lawyer Brandeis to point to the laws of
England, France, Switzerland, Austria, Holland , Italy and Germany in
arguing that hours limitations for female laborers was not "irrational"
in the Muller v. Oregon case (see lengthy footnote of Justice Brewer) or
for Justice Holmes to do the same for the laws of Great Britain and
Canada as to the reasonableness of minimum wage laws for women. Both of
the instances I cite also refer to the laws of several of the
U.S.states. It should be, I believe, obvious that such citation does
not imply authoritativeness of state law over the federal constitution.
All it says is that practice in lots of other legislatures or other
courts of civilized places might be somewhere to look for evidence of
what people find "reasonable" or "unusually cruel." It matters that the
places looked to be widely viewed as "civilized" by Americans; one would
not look to the regime of the Taliban to decide what is cruel and
unusual punishment. (Just as one wishes our government would avoid
torture-like practices used by other govts that we used to condemn as
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