Comments(0)
I found this blog entry, and it refers to the appropriate Socratic reading, if you’re interested. http://prawfsblawg.blogs.com/prawfsblawg/2008/07/socrates-and-ob.html Apparently there’s contradictory material, also Socratic, but this is the main area, I think, for most scholars.
Comments(0)
Extreme thanks to Mike Bietz for providing Victory Brief’s material on the topic when it was the NFL Finals resolution a few years ago.
Comments(0)
This is in a comment, but it should have its own entry. There’s plenty here to chew on.
—-
I have to disagree mostly completely with what Napolitano states in this article. The thesis of my contention here is that ultimately, what is called “natural law” is fundamentally arbitrary. Napolitano, and many prominent philosophers in history, claim that humans have inalienable rights to things like life and liberty. I do not debate the stance that this is a good thing for humanity – it is a good thing when people have the right to life. However, to claim that these are effected by the existence of nature is without justification at all – what part of my being born guarantees that I should have the positive right to life (or at least, the negative right to not have my life taken away)? Is there some universal law that says I have the right to liberty? Of course not – these are human constructs. People who talk about natural law are muddying the waters of the argument (cleverly, I must admit); we must not forget these “natural” laws could not exist without humans, and obviously would have no effect without reasoning, self-aware beings to understand (and enforce) them. So, to claim them as existing a priori is simply a falsehood.
Worst of all, Napolitano calls them “God-given” rights. I will admit that I am no fan of religion, but even from an unbiased perspective, this is utterly flawed on two levels. The first is that the very religion he adheres to is the same one that has historically restricted the rights of individuals – the Christian Bible has quotes in it that directly permit slavery and the condemnation of “unnatural” people, such as homosexuals. How can one logically support both the idea of God-given rights for all, equally, and also support the denial of marriage to homosexuals? Of course, this is another debate entirely, and it’s possible I’m conflating his ideas with the standard American Christian stances. Additionally, assuming God does exist, how can Napolitano (or any human) possibly presume to know what rights God gave to us, if any at all? It seems a bit arrogant, to me.
In a democratically elected government, which represents the people equally, I posit that any law enacted is a just law. The government is simply a collection of citizens with the charge of organizing resources and enforcing legislation, including the protection of all the citizens in the body politic. The key facet of this to keep in mind is that the government has to represent the people. This cannot be the case if some people are not allowed to vote or hold public office. Thus, prior to 1920, I would argue that the United States government was not a just one. However, now that each citizen of the United States has equal representation in the government, we Americans have a just government. This implies that any law enacted is just.
A brief discussion on justice is warranted, and relates to my opening comments. Justice has always been socially defined. There have been some pseudo-constants, such as that murder is wrong, but not too long ago women could not vote, and most people of today would say that that is unjust. The fact that the law has changed since 1789 implies directly that our collective conception of justice has changed. Napolitano would claim that there is some external system of justice, which operates independent of the capricious nature of humanity. Initially I responded to this by pointing out that this is inherently impossible. To this I add the contention that if natural law is immutable and must be followed at all times, this directly causes any government to lose its validity. This follows from the definition of a democratic government – one that represents its people. If the majority of people support a law legitimizing murder, Napolitano would advocate that the government must not enact the law, as it would endanger the right to life. However, in doing so, the government has now failed to adequately represent its citizens, and is thus an illegitimate government. In this sense, we face a paradox engendered by the upholding of natural law – if the collective society disagrees with it, the government is caught in contradiction. I advocate the solution to this issue of resorting to positivism.
This is not inherently problematic. If the majority of the citizens believe a given action is just, then by definition, it is just. No other conception of justice makes sense, as shown above. Opponents will point out that this resulted in slavery, or worse, the Holocaust. However, these were not the actions of just governments. At the time of those atrocities, the governments did not represent the people whose rights they infringed upon. This makes the United States, pre-19th Amendment, not a fair, democratically elected goverment, representing all the people under its jurisdiction. This is the crux of this argument – the United States claimed to have sovereignty over African Americans, yet these people had no say in the government. Thus, the government was not a just one. I assume no one will argue me on this point, simply on the warrants for this claim.
Another way of illustrating the fact that there is no injustice in this type of fair government is the fact that it’s democratically elected. Even if the government could conceivably enact an unjust law (and my thesis is that it inherently cannot), if it were in fact undesirable, the populace would simply elect new politicians that do not support such a law. In this way the system is self-correcting. Again, one might argue that in practice there are roadblocks to this type of correction, but I would argue it is moot anyway.
Consider this statement in Napolitano’s article: “Under positivism, so long as the legislature in a democracy was validly elected and followed its own rules in enacting a law, the law is valid and enforceable no matter what it says.” He then continues to use that to point out that this is the foundation upon which Dred Scott v. Sandford becomes justified. This is a flawed argument, however. The legislature in this democracy was not validly elected, because some members of the democracy were not represented (i.e., did not – more importantly, could not – take part in the election process).
Napolitano asks this question: “Should social change be effectuated by an unelected judiciary or through the democratic processes embedded in our constitutional system? Should it perturb us when change is spurred by appointed judges, even if we find the change liberating? Or should it bother us when judges do not use their power to strike down laws that are consistent with positive law but inconsistent with natural law?” He then later, seemingly rhetorically, answers that by stating: “The Court should have struck down slavery. But it had little, if any, positive law with which to justify such a move, given the explicit slavery provisions in the Constitution. The Court would have had to base such a decision wholly on natural law.” But he is incorrect. The Court should not have struck down slavery. Congress should have struck down slavery! It is not the job of the judiciary to effect social change, this much is clear. In our history this has often occurred – but to claim it is the duty of the judiciary to effect social change when no other body is doing it is judicial activism of the most rarefied (and worst) kind. Our government was built on a system of checks and balances. If the majority of our government (and, in fact, society) believes segregation is just, the Courts ought not have the power to “legislate from the bench.” The inherent problem with Napolitano’s argument is that he is advocating judicial activism – but only if the justices work to enforce natural law. But how does Napolitano feel about, say, Roe v. Wade? Napolitano apparently describes himself as being “pro-life,” and from his article is apparent he believes life should always be protected by the government. So, does it not seem hypocritical on his part to advocate the Court striking down slavery in Dred Scott, when he would almost certainly find the Court ruling that abortion is legal to be incorrect and unjustified? To illustrate this, consider one of his last comments:
“Is it the role of the courts to sidestep the positive law of the land when natural law is violated? My own view is an unequivocal yes. The standard should be an unmistakable deference to liberty.”
So, then, how can we possibly reach anything other than a paradox when considering the abortion debate? We are faced with considering the liberty of the fetus versus the liberty of the mother (who presumably wants to abort). Napolitano advocates that, regardless of public opinion, the Court should err on the side of natural law. However, natural law, as he posits it, dictates that we cannot violate the right to liberty of the mother. Pro-lifers might say that when faced with the choice between the right to life and the right to liberty, the former should always take precedence. Even if this is true, it still underscores the relation to Dred Scott – people living in the antebellum South probably advocated that African Americans were a danger to the life of their white owners. Such a ridiculous argument, under Napolitano’s scope, would justify the decision in Dred Scott (since the right to life outweighs the right to liberty, and if the life of even one white person would be threatened as a result of freeing slaves, we would not be protecting the right to life of white slaveowners), indicating why it is problematic.
Do not think I am defending the Dred Scott decision. To be honest, I am not enough of a legal scholar to say one way or the other whether the decision was properly grounded in the Constitution. All I can say is that my discussion does not apply to any one instantiation of democracy in particular, but rather to the theory of democracies in general. In this approach, it seems clear that the government is not a just representation of its citizens when some cannot vote, or are legally enslaved. Thus, much of what Napolitano states is somewhat pointless – the government itself was not just at the time of the decision, rendering moot questions about whether the decision was just. However, even on a second level Napolitano errs, as his argument that the Court should always seek to uphold natural law is paradoxical, anti-democratic, and counterintuitive. It seems clear, at least to me, that while the conception of natural rights may be useful in some instances, they cannot be considered when discussing the theory of justice in government. Simply put, if the government is justly elected and is a fair and equal representation of its constituents, then the laws it enacts must be just, since society defines justice and the government represents society.
Comments(1)
Lots of useful stuff here comparing positive law with natural law, quotes from everyone from Aquinas to MLK, etc. http://www.reason.com/news/show/133478.html
Comments(1)
C.C. posted these two to my Facebook wall, and they’re interesting.
http://downloads.pfdebate.
http://www.publicformula.c
I read at them quickly, and my first immediate reaction was that this might be the best possible wording (not to mention some made-to-order materials). Next up I want to read them slowly.
—menick