Justice Scalia and First Things

[Scarberry, Mark]

As John Finnis points out in Natural Law and Natural Rights (OUP 1980),
natural law adherents recognize that unjust laws are in the broad sense
laws. I'm not sure Finnis makes the point explicitly, but it is clear that
he does not think that something is law just because sound morality would
require that the state adopt it as law. Rather, a law that violates moral
principles is not a law in the focal meaning of that term, and such an
unjust law is not a central case of the concept of law. A state should adopt
as law those rules that are for the common good and are thus moral. 
 
Positivists of course criticize the law if they see it as being immoral (see
HLA Hart, The Concept of Law (OUP 1961)), but they see the concept of law as
not including any necessary connection to morality. Natural law adherents
criticize immoral laws (and they call them "laws") because they do not
perform the function that laws are designed to perform, and thus they are
defective. For natural law adherents it is the concept of law that has a
necessary connection to morality; not every instance of law must have that
connection in order to fall within the broad category of law. As to the
morally binding status of positive law, I doubt there is much difference
between an HLA Hart and a John Finnis, except that one of them sees the
analysis as going forward outside the category of "law" and the other sees
it as going forward within the category of "law." Both of course agree with
Bentham (or was it Austin?) that a person who violates an immoral law is in
fact likely to be punished. Both would agree that at some point the judge
must, as a matter of morality, refuse to enforce immoral laws--and I think
they would agree that such a judge may have to resign rather than just
ignore the immoral law, because it is law, and because the judge probably
has taken an oath to uphold it. 
 
When a judge is determining what the law is, not what it should be, there is
no necessary connection between natural law/positivist divisions and the use
of morality. HLA Hart, for example, thinks that judges legislate in the
gaps--that they have discretion in many cases to reach a decision that is
the right decision. Thus he, as a positivist, is committed to use of
morality (broadly speaking) to determine what the law is. But Justice Scalia
does not see our system as giving him such discretion to implement his moral
or policy preferences. That does not make him a positivist. He can still say
that the rule of Roe v. Wade is defective morally and thus not in the full
focal sense of the term "law," even as he recognizes that in our system
lower courts are bound by it, because it is law. He could even say that a
morally better legal system would give wise judges the power to invalidate
immoral laws, but nevertheless conclude that ours does not. (Of course he
does not seem to think judges have better moral sense that legislators, and
thus he would be unlikely to think that judges should have that discretion.)
 
I hope that makes sense. Each time I look at these issues, I come away
thinking that the difference between positivism and natural law is much less
important than generally thought. The key, I think (though others may
understand these matters much more fully) is that natural law adherents,
like Finnis, see morality or the common good as a part of the design
function of law, and thus a law that does not further the common good is
defective, even though it is law. Law is best analyzed, not in a value-free
way, but in light of the values that the institution of law is designed to
serve. In the first chapter of Natural Law and Natural Rights, Finnis
explains all this, and he connects it with Max Weber's insights. I don't
know enough about Weber to know whether Finnis is interpreting him
correctly, but Finnis makes a strong argument that to try to analyze law
without first figuring out what it is for is to miss the point badly.
 
Mark S. Scarberry
Pepperdine University School of Law
 
 

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Thursday, March 09, 2006 8:54 AM
To: Franck, Matthew J; conlawprof at lists.ucla.edu
Subject: RE: RE: Justice Scalia and First Things


Re Matthew's message below:  Would Matt be less surprised (or even,
possibly, alarmed) if Scalia had never heard of, say, Ted Lowi, Robert Dahl,
David Mayhew, or other leading political scientists?  (I suppose another way
of asking this question is why we consider it tolerable for justices to cite
Madison and DeTocqueville as if they have the slightest relevance to
American society and government in 2006.)  Ditto if Scalia, the
self-professed originalist (at least on Mondays, Wednesdays, and Fridays,
were ignorant of, say, Gordon Wood, Jack Rakove (on the Founding period) or
Eric McKitrick or Eric Foner on Reconstruction?  How parochial do we allow
judges (and, for that matter, law professors) to be and still take them
seriously when they make assertions about theories of language, the
operation of American political institutions, or the historical context of
the Founding or Reconstruction?
 
Matt, of course, is a distinguished political scientist who is decidedly
non-parochial himself.  So the question is whether his seeming embrace of
Scalia's proud ignorance of John Searle is related simply to the perception
of the likely contribution that philosophers of linguistics have to make to
debates about textualism and original meaning.  
 
On the point about legal positivism, I requote from Scalia himself:  "the
positive law adopted by the American people and entrusted to the enforcement
of their courts...."  The most basic divided between legal positivism and
natural lawyers, as I understand it, is whether morality is a necessary
defining condition for regarding something as "law."  Legal positivists,
whatever their differences, all say no.  Scalia says no.  Therefore I put
him in the camp of legal positivists.  I'm not sure why Matt disbelieves in
my own self-description as a legal positivist.  I believe, for example, that
slavery was an entrenched part of American constitutional law.  I think that
Lincoln probably went too far when he said that a legislator was under a
duty to vote for the Fugitive Slave Law (yes, he really did say that), but I
think we are whistling past the cemetary to regard Dred Scott as an obvious
overreach with regard to what the Constitution "really meant" circa 1857.
For me that is good reason to support disdaining the Constitution and even,
for some, trying to overthrow it (as we overthrew the British Constitution
in 1776-83).  But at no point do I argue that because slavery was
horrendously immoral, it was not constitutional and subject to wide
varitieties of legal protection.  Does Matt disagree.
 
I recognize that there is a strain even within natural law thinking, ably
developed by Robbie George in Making Men Moral, of what might be labeled
"prudentialism," whereby one tolerates immoral laws on the grounds that the
society isn't yet "ready" for the full transition to a full-scale moral
order.  But I see nothing in Scalia's analysis that links him to this
tradition (as by saying, e.g., that "the time isn't right to declare that
fetuses are affirmatively protected by the Fourteenth Amendment, but perhaps
the Court will be able to move to the (theoretically correct) understanding
of the Constitution in 25 years or so").
 
sandy
 
nck, Matthew J [mailto:mfranck at RADFORD.EDU]
Sent: Wed 3/8/2006 4:25 PM
To: Sanford Levinson; conlawprof at lists.ucla.edu
Subject: RE: RE: Justice Scalia and First Things



I'll bite.  First, I am neither surprised nor the least bit alarmed that
Scalia has never heard of John Searle.  I have heard of Searle, but "heard
of him" is about all I can say, and I speak as the spouse of a communication
scholar.  I know I have never read a book by him, and if I have read an
article, it was not memorable.  This is perhaps a confession of a terrible
intellectual deficiency on my part, but I cannot even now, after reading
Sandy's tribute to him, speak of a felt need to go out and read John Searle.
I am sure he would say the same of me.

 

More generally, I think the admission Sandy finds so shocking in Scalia was
actually kind of refreshing.  Maybe Scalia now intends to read John Searle,
but somehow I doubt it.  And if he thinks that the last century or so of
academic philosophy has not had a healthy effect on the study and practice
of the law, I would have to say that I have much the same sense of things.
Perhaps John Searle could persuade me otherwise; perhaps Sandy could
persuade me that he could.  But while I am open to the possibility, I am
skeptical.

 

As for Scalia's crack that Searle probably hasn't heard of him either, this
is no doubt a joke on several levels.  A little ironic (pretense at)
self-deprecation, with a dash of a hint that academic philosophers have
their heads too much in some other place to notice someone so "ordinary" yet
so important as a Supreme Court justice.  Ha!  It got a chuckle out of me,
anyway.

 

But a final point brings me to something I think I can claim to know a
little something about.  Why, Sandy, do you think that because Scalia
refuses to bring any beliefs he might hold about natural law to bear on his
constitutional decision-making, he must therefore be a legal positivist?
Isn't that a fairly evident non sequitur?

 

Why, for that matter, do you think you are yourself a positivist?  I have
heard and seen a great many people talk the talk of being legal positivists,
but, to adapt an old saying, there aren't any in foxholes.  I will do you
the honor of saying that I do not believe you are a positivist.  Why do you
think you are?

 

Matt

***************************
Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail  <mailto:mfranck at radford.edu> mfranck at radford.edu
www.radford.edu/~mfranck
***************************

 

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Wednesday, March 08, 2006 2:42 PM
To: conlawprof at lists.ucla.edu
Subject: RE: RE: Justice Scalia and First Things

 

I strongly recommend an exchange in the letters-to-the-editor column in Feb.
2006 First Things, by three respondents to a review that Justice Scalia had
written of Steve Smith's recent book.  John B. Allen offers an extremely
sophisticated philosophical critique of Scalia's theory of language (even
though he is generally sympathetic to Scalia's judicial politics), which
draws the following comment from Scalia:  "I . . . have never even heard of
John Searle (as he has not, I suppose, of me)."  I confess to being
surprised that Scalia, who professes to be a "textualist," would never even
have heard of the leading American philosopher of speech acts, given that he
publishes widely in such fora as the New York Review of Books.  Or, if it is
just too silly to imagine that a conservative would read the NYRB, I would
have thought that some philosopher friend of Scalia, knowing that he is
interested in the properties of textualism and original meaning, might have
told him, "There's this philosopher at Berkeley who is the leading writer on
such subjects, and you might read him before, say, you give the Tanner
lectures at Princeton, where audiences might expect a certain level of
intellectual sophistication when opining on the nature of speech."  I could
understand Scalia's professing ignorance about, say, Saul Kripke or Donald
Davidson, but his ignorance of Searle says something interesting, at least
to me, about the huge chasm between even those judges who come out of the
legal academy and the rest of the university.  

 

Incidentally, Scalia's parenthetical itself raises interesting interpretive
questions, since it is inconceivable that Professor Searle "has not [heard]
of [Scalia]."  Scalia sharply rejects any notions of "utterer's intent" as
against the "public meaning" available to an audience.  But Scalia can't
really believe that Searle has not heard of him.  Even if Scalia were
unusually modest, it would still be foolish beyond belief (literally) if
Scalia thought that Searle was so ignorant (especially after being informed
that Searle is extremely interested in theories of language).  So what,
exactly, is he intending to convey by the parenthetical, and how, exactly,
would we figure that out?

 

The other two respondents take Scalia to task for not reading "persons" to
protect fetuses (and therefore, as a constitutional matter, to prohibit
states from allowing abortion).  Although he indicates that he believes that
states have a constitutional right to do so, he reveals himself, once more,
to be a legal positivist, distinguishing very sharply between natural law
and "the positive law adopted by the American people and entrusted to the
enforcement of their courts...."  I do not mean this as a criticism of
Justice Scalia, being a positivist myself.  But it raises once again what is
the operational importance of being a "Catholic justice."  Though, recall,
Scalia has written, in First Things, that he would feel compelled to resign
if the Church ever comes out four-square against capital punishment and
requires absolute non-collaboration with the practice.  (Presumably,
upholding a state's right, arguendo, to tolerate the murder of an innocent
does not count as sufficient collaboration.)

 

sandy

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20060309/29ee8bd3/attachment.html