Natural Law

I’ve said that the problems of the justice system in the United States, both for civil and criminal cases, run very deep, and one of the main sources of trouble is a reflexive hostility to what is called ‘natural law‘.

Interesting discussion from the other day hosted by Judge Kopf at his blog, Hercules and the Umpire, about the death penalty.  Interesting not least because it wasn’t just about the death penalty, but also Judge Kopf’s rejection of natural law.

There is a line of reasoning by which the political concept of “pluralism” degenerates into rejecting natural law that is peculiarly American and is perfectly illustrated by Judge Kopf.  It’s largely derived from Thomas Hobbes’ political philosophy.  And indeed Judge Kopf mentions Hobbes specifically in his post describing his thinking about the death penalty.

The first thing to be said about this is that in the long history of what is often termed western thought Hobbes is barely a footnote, not to be taken seriously as a launchpad for anything that could be remotely described as a “school of thought”.  He was not, properly speaking, a philosopher.  Even a cursory comparison of his writings and ideas with those of Plato, or Aristotle, or DesCartes, or David Hume or Kant or Leibniz or Hegel or indeed dozens of others I and nearly any other somewhat educated person could rattle off (Edmund Husserl and phenomenology, anyone?) will demonstrate beyond any debate how relatively mundane Hobbes is, in a totally different – and clearly lesser – league.  Any semi-serious undergraduate student of western philosophy in his second year of study would regard Hobbes as little more than an amusement or distraction, intellectually speaking.

Put simply, it’s a profound intellectual error to base any kind of outlook on the world, or an analysis of any serious issue, on Hobbes.  He simply doesn’t have the depth, the intellectual gravitas.  It’s like basing your opinions about roadrunners on the cartoon.  And since Judge Kopf actually went to the trouble of including Hobbes’ portrait in his death penalty essay:

The only depth that follows in Judge Kopf’s analysis after making this mistake is the kind when you are further down the rabbit hole.  For the love of God, he starts bringing up Oliver Wendell Holmes as some kind of ‘theorist’.  Ugh:

The positive law theorists (like Hobbes and Holmes*) would say “yes, it is just”–so long the judge acts pursuant to the law. To them (and probably me) there is no justice without law. Legal positivists believe (a) Justice and injustice are dependent on positive law; (b) Law itself is independent of justice; (c) Justice consists in conformity to positive law; (d) Justice, apart from legality, is merely a subjective [individual] norm; (e) Justice is obligatory ultimately only because of legal and political sanctions; and (f) The virtue of justice is identical with obedience.

At least Holmes had the excuse of extremely traumatic experiences in the Civil War, but the point – well, one point – is that while Hobbes can barely make it onto the most expansive possible list of thinkers in the history of western thought one might give the slightest consideration to, Holmes doesn’t even make that list.  The only reason anyone outside of lawyers has ever even heard of him is that damn unforgettable name.  His most important ‘contribution’ as a judge was to place his imprimatur on Alger Hiss, who of course turned out to be a communist, a spy and a perjurer.  I often call Alger Hiss the most important but obscure American political figure of the 20th century.  And I don’t mean that in a good way.  But in any case I find his association with Holmes endlessly amusing.

I guess the bottom line here is that there’s a lot to be said about the death penalty but if somebody brings up Hobbes or Holmes you might as well absent yourself from the discussion and turn on the TV.

Not a suggestion I’d normally make.

Of course it’s not as if Judge Kopf doesn’t have a lot of company.  Contemporary judges might rightly be called liberal or conservative, but the vast majority bristle at the notion of natural law, and that includes Scalia.  But maybe not Justice Thomas:

In 1991, shortly before Supreme Court Justice Clarence Thomas’s Senate confirmation hearings, Harvard Law School professor Laurence H. Tribe wrote in The New York Times that Thomas was “the first Supreme Court nominee in 50 years to maintain that natural law should be readily consulted in constitutional interpretation.” Thomas was repeatedly grilled on this point during the hearings that followed. Though he acknowledged that the Constitution is “[t]he positive law,” he added, “We look at natural law beliefs of the Founders as a background to our Constitution.”

So there’s that, then.

Now, there are intellectually respectable reasons to question or maybe even reject natural law.  In my view they’re all wrong, but they might be intellectually respectable.  But rejecting natural law “because Hobbes” is like rejecting high school physics “because Curly“.  It may well be, as Judge Kopf says. that he’ll always come to an impasse with natural law adherents, but how you get to the impasse can be important.  Intellectually, I mean.

Does that make all this merely an intellectual exercise?  Not if the subject is the death penalty and you’re a judge.  Or for that matter a lawyer.

Besides, what’s wrong with an entirely intellectual exercise?  Oh, I forgot:  there’s a strong strain of anti-intellectualism in the American political arena, of which a devotion to Hobbes is a part.  Or maybe a product.

And the reflexive hostility to natural law is part of the peculiar American brand of anti-catholicism as well. Even if a lot of Catholics go along.

So maybe this makes clear how deep the divide really is between someone like Judge Kopf and someone like me.  We barely speak the same language, really.  And that’s one big reason why, for me……juries.  People – other than judges – naturally believe in and understand natural law.  Because it’s natural.

Duh.