Beyond Brennan’s Blooper

An unlikely portal to update our series on natural law

The embarrassment of CBS News’s Margaret Brennan thinking that “weaponized” free speech was the road to Nazism tells us that the problem with the media today is not just that journalists are liberal. Rather, it is evident that leading media figures are mind-numbingly stupid. Never mind an ignorance of history. That could be forgiven, since history is so poorly taught these days. What was on display with Brennan’s jaw-dropper was a highly trained incapacity to think, another indication of how badly higher education is failing its civic function.

Brennan, Hart, Bentham, and Jefferson

More specifically, it indicates that people who fashion themselves to be liberal have given up on one of the core principles of the liberal tradition as understood by Thomas Jefferson and John Stuart Mill—that truth is the best defense against error, though this only works so long as people are free to express their views. The right of conscience embedded in our First Amendment isn’t worth much if you aren’t free to worship as you wish, assemble with like-minded people, and express your thoughts.

There is no need to pile on to the hapless Brennan, nor suggest she pick up a history book. I suspect she is uneducable. However, the episode opens up an unexpected portal to one of our favorite subjects here—natural law!

When I heard Brennan’s Blooper one of the first things that came to mind was a discussion of post-war German legal entanglements that bear on the problem of speech and censorship in H.L.A. Hart’s famous 1958 Harvard Law Review article on “Positivism and the Separation of Law and Morals.” In defending Utilitarian legal positivism Hart was especially sensitive to those jurists, many of them German, who concluded that positivism had contributed to the disaster of Nazism, and indeed some German positivists recanted their positivism and embraced a return to the natural law tradition. Although one might think the extreme case of the abuse of law under Nazism might prompt a narrow exception or qualification of positivism, Hart wouldn’t yield an inch, and he labored mightily to convolute the issue. Extremism in defense of positivism is no vice apparently, even against extreme circumstances.

Hart took note of a specific case in Germany that succinctly exposes Margaret Brennan’s ignorance:

In I944 a woman, wishing to be rid of her husband, denounced him to the authorities for insulting remarks he had made about Hitler while home on leave from the German army. The wife was under no legal duty to report his acts, though what he had said was apparently in violation of statutes making it illegal to make statements detrimental to the government of the Third Reich or to impair by any means the military defense of the German people. The husband was arrested and sentenced to death, apparently pursuant to these statutes, though he was not executed but was sent to the front. [Emphasis added, for the slow-witted at CBS News.]

In 1949 the wife was prosecuted under an older German statute (dating to 1871) that made it a crime to unlawfully deprive a person of their freedom, rejecting the wife’s positivist defense that ratting out her husband was done according to the law in force at the time and therefore no crime at all. The court nullified the Nazi statute because it "was contrary to the sound conscience and sense of justice of all decent human beings." Hart was not persuaded:

This reasoning was followed in many cases which have been hailed as a triumph of the doctrines of natural law and as signaling the overthrow of positivism. The unqualified satisfaction with this result seems to me to be hysteria. Many of us might applaud the objective—that of punishing a woman for an outrageously immoral act—but this was secured only by declaring a statute established since I934 not to have the force of law, and at least the wisdom of this course must be doubted.

Hart suggests there were two possible positivist remedies to this obvious “injustice” (I insist that to be consistent, Hart and other positivists should be required to put any mention of justice or injustice in scare quotes, since their premise is lack of any objective basis for justice). The first is that the court could simply let the wife go unpunished. But this act of judicial nullification is too embarrassing for Hart to embrace. But his second and preferred remedy is worse: let’s just pass an ex post facto law!

The other was to face the fact that if the woman were to be punished it must be pursuant to the introduction of a frankly retrospective law and with a full consciousness of what was sacrificed in securing her punishment in this way. Odious as retrospective criminal legislation and punishment may be, to have pursued it openly in this case would at least have had the merits of candour. It would have made plain that in punishing the woman a choice had to be made between two evils, that of leaving her unpunished and that of sacrificing a very precious principle of morality endorsed by most legal systems. . . We might punish the woman under a new retrospective law and declare overtly that we were doing something inconsistent with our principles as the lesser of two evils; or we might allow the case to pass as one in which we do not point out precisely where we sacrifice such a principle.

Well, so much for the ex post facto clause in our Constitution! We can see in Hart’s justification (heh) for his unyielding positivism that he is simply desperate to avoid admitting the fundamental objection to positivism by recurring to problems of the natural law tradition that Aquinas noted.

Hart writes:

Surely if we have learned anything from the history of morals it is that the thing to do with a moral quandary is not to hide it. Like nettles, the occasions when life forces us to choose between the lesser of two evils must be grasped with the consciousness that they are what they are. The vice of this use of the principle that, at certain limiting points, what is utterly immoral cannot be law or lawful is that it will serve to cloak the true nature of the problems with which we are faced and will encourage the romantic optimism that all the values we cherish ultimately will fit into a single system, that no one of them has to be sacrificed or compromised to accommodate another.

By saying “choosing between the lesser of two evils,” Hart is admitting that it is possible to recognize evils, and that it is possible to reach judgments about which is greater and lesser!

For if we . . . make our protest against evil law in the form of an assertion that certain rules cannot be law because of their moral iniquity, we confuse one of the most powerful, because it is the simplest, forms of moral criticism. If with the Utilitarians we speak plainly, we say that laws may be law but too evil to be obeyed. This is a moral condemnation which everyone can understand and it makes an immediate and obvious claim to moral attention. If, on the other hand, we formulate our objection as an assertion that these evil things are not law, here is an assertion which many people do not believe, and if they are disposed to consider it at all, it would seem to raise a whole host of philosophical issues before it can be accepted. So perhaps the most important single lesson to be learned from this form of the denial of the Utilitarian distinction is the one that the Utilitarians were most concerned to teach: when we have the ample resources of plain speech we must not present the moral criticism of institutions as propositions of a disputable philosophy.

So much for the central argument of Martin Luther King’s justly famous “Letter from the Birmingham Jail,” in which King says “I would agree with St. Augustine that ‘an unjust law is no law at all.’”

Hart essentially says that we can’t make an appeal to natural law because people disagree about it. Here Hart falls prey to the paradox that Leo Strauss explains in Natural Right and History—namely, that disagreements about justice actually point to the existence of fundamental justice. It is worth taking in Strauss’s refutation of Hart’s unwillingness to do any heavy lifting:

Differences regarding things which are unquestionably conventional do not arouse serious perplexities, whereas differences regarding the principles of right and wrong necessarily do. The disagreement regarding the principles of justice thus seems to reveal a genuine perplexity aroused by a divination or insufficient grasp of natural right—a perplexity caused by something self-subsistent or natural that eludes human grasp. This suspicion could be confirmed by a fact which, at first glance, seems to speak decisively in favor of conventionalism. Everywhere it is said that it is just to do what the law commands or that the just is identical with the legal, i.e., with what human beings establish as legal or agree to regard as legal.

At this point Strauss has stated Hart’s position, which is where Hart stops thinking because it is simply too hard. But the immediate sequel reveals Hart’s laziness and superficiality:

Yet does this not imply that there is a measure of universal agreement in regard to justice? It is true that, on reflection, people deny that the just is simply identical with the legal, for they speak of “unjust” laws. But does not the unreflective universal agreement point to the workings of nature? And does not the untenable character of universal belief in the identity of the just with the legal indicate that the legal, while not being identical with the just, reflects natural right more or less dimly?

To be sure, natural law may be of very limited use on many practical questions, such as the regulation of property. But by picking on a relatively minor case involving a disillusioned wife Hart trivializes larger categories, such as how Germany unwound the unjust confiscation of Jewish property during the Nazi regime. Rather than enact a positivist retrospective law as Hart would approve, the German Basic Law of 1955 (Germany’s new postwar constitution) contains this clause which foreclosed all appeal to the positive laws enacted by the Nazi regime as happened in the case of the disillusioned wife:

“These laws of confiscation [referring to laws passed to seize property], though clothed in the formal rules of law, are an extremely grave violation of the supra-positive principle of equality before the law, as well as of the supra-positive guarantee of any legal order which must remain inviolable. [These provisions] were, and are, by reason of their unjust content, and their violation of the basic demands of any legal order, null and void. This law could not, even at or during the time of the Nazi regime, produce any legitimate legal effect.”

Hart’s struggles with the extreme case of Nazi law parallel the moral confusion of those 19^th century American jurists (such as Chief Justice Roger Taney) who confused positive law and natural law when it came to defining the legal personhood of blacks, whether slave or free. (See the previous installment of this series on this point.)

Here we should note just how poorly Hart’s Utilitarian philosophy of law matches up with, say, the understanding of Lincoln or Jefferson:

Some, I know, find the political and moral insight of the Utilitarians a very simple one, but we should not mistake this simplicity for superficiality nor forget how favorably their simplicities compare with the profundities of other thinkers. Take only one example: Bentham on slavery. He says the question at issue is not whether those who are held as slaves can reason, but simply whether they suffer. Does this not compare well with the discussion of the question in terms of whether or not there are some men whom Nature has fitted only to be the living instruments of others? We owe it to Bentham more than anyone else that we have stopped discussing this and similar questions of social policy in that form. [Emphasis added.]

Let us recall that the Jeremy Bentham, the godfather of Utilitarianism in philosophy and law, called natural rights “nonsense on stilts.” And by using “suffering” as the main criteria for a judgment about the possible wrongness of slavery (Richard Rorty, call your office), he surrenders any argument against those benevolent slaveowners who treated their chattel property (under positive law!) well. I’ll give Thomas Jefferson the last word:

The general spread of the light of science has already laid open to every view, the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God. These are grounds of hope for others. for ourselves, let the annual return of this day forever refresh our recollections of these rights, and an undiminished devotion to them.

I’ll go with Jefferson over Bentham and Hart. Margaret Brennan doubtless thinks Jefferson was some kind of crypto-Nazi because he favored freedom of speech or something.