I’m with John Yoo in this debate. I think what makes a law "law" is that it is the command of a sovereign backed by the prospect of sovereign force. In a land where there are only warlords and bandits, there is certainly no "law," whether you premise it on positivism or natural law. It is war against all, and the only natural right is might.
That does not mean I reject as worthless the natural law tradition or its Lockean version. The Founders were motivated by intuitions of morality and justice they attributed to natural law, natural right, and "justice" writ large. And these intuitions were shared to a remarkable degree among them and their society. But the work of the Constitution Convention was to fashion these intuitions into a foundational “law.” The effort succeeded, and John Yoo and I are quite happy with the result. Even from a consequentialist perspective, the results over 250 years have been extraordinary.
The Founders could not anticipate every issue and every context, and their moral intuitions and natural law outlook are no longer shared widely in our society. One of the commenters illustrates the point: In many states the murder of a pregnant woman is also treated as the murder of the fetus she carries, the fetus being considered a human life. At the same time, the state says it is legal to abort that very same pregnancy, that very same fetus, who is not considered a human life. Do we contradict ourselves? Very well, then we contradict ourselves. (We are large, we contain multitudes).
I cannot think that a judge could or should rule against slavery or abortion in a jurisdiction that authorized it on the ground that the law was not really a "law" given the "brooding omnipresence" of natural law. At least the appellate court will likely see it that way. His opinion can argue that the law is unjust and ought to be different, and end in a a terse and unhappy statement of the prescribed result, but I think that is the best he can hope to do. And in cases where the law is not so clear — such as Dred Scott, where a slave escaped to a free territory, or in a state that treats a fetus like a kind of Schrodinger's cat — conflicting laws may give the judge some elbow room to engage his moral intuitions.
It seems to me that holders of natural law (which includes me) are bound by the written law in an orderly nation. Otherwise, the left with their radical ideology, are free to foist their beliefs on the constitution.
John's abortion and slavery hypotheticals are examples where it not only takes a constitution to enforce a law, but also consent of the governed.
It doesn't matter if in the pre-civil war era a judge, and eventually the US Supreme Court, outlawed slavery. That would have changed nothing other than accelerating the start of the US Civil War. And after four bloody and costly years of conflict whites, in both the South and the North, were not ready to live in a society that accorded equal rights to blacks. (Just as the 1964 and 1965 civil rights acts did not instantaneously eliminate continued racial and other forms discrimination.)
The same holds true today with abortion. A state could outlaw it with or without any provisions about maternal health. That would not eliminate women in that state from obtaining an abortion - those who believe its still their right will either travel to where it is legal or obtain one from a practitioner in her state who is willing to ignore the law. And that woman will be supported by many organizations in her pursuit to violate an antiabortion law.
It's a red herring to base this philosophical discussion on bright line social/morale issues where no consensus exists and adherence to a law requires winning hearts and minds. Abortion will end when a society embraces the concept of life that begins at conception and not a day before.
That there is hypocrisy present in a society governed by a natural law endowed legal framework should not be a shock.
We are the country that went to war against Hitler with an army that was not integrated. Should we have paused and attempted to build a highly effective integrated fighting force before we condemned Hitler and mounted a massive effort to defeat him? Should we have ensured all of our universities eliminated all of their discriminatory acceptance practices before we recruited scientists to build an atomic bomb needed to defeat Japan?
America was launched on a path to exceptionalism not because we were exceptional human beings, but that our founders created a morally informed constitutional framework that would continue to guide us on a path to exceptionalism.
I ran across the following concerning the principle of “Reasonable Doubt:” morality vs. “positivism:”
This file appears to be an excerpt from an academic article or book chapter discussing the origins and history of the "reasonable doubt" standard in criminal law. Here are the key points:
1. The "reasonable doubt" standard is a fundamental part of American criminal law, but its origins and meaning are often misunderstood.
2. The author argues that the original purpose of the "reasonable doubt" standard was not to protect the accused, but to protect the souls of jurors from damnation.
3. In pre-modern Christian theology, judges and jurors who convicted an innocent person were at risk of committing a mortal sin. The "reasonable doubt" standard was developed to reassure jurors that they could convict without risking their salvation, as long as their doubts were not "reasonable."
4. The concept emerged in the 1770s and 1780s in response to jurors' reluctance to convict due to religious fears.
5. The author argues that understanding this historical context is crucial to grasping why the standard seems confusing today - it's being asked to serve a different function than it was originally designed for.
6. The article discusses the distinction between "proof procedures" (aimed at achieving certainty) and "moral comfort procedures" (aimed at relieving moral anxieties of judges and jurors).
7. It traces the development of these ideas through medieval and early modern Christian theology, continental European law, and English common law.
8. The author critiques other historians' interpretations of the origins of "reasonable doubt" and argues for a deeper understanding of its religious and moral roots.
The excerpt provides a detailed historical and theological background to support the author's thesis about the true origins and purpose of the "reasonable doubt" standard.
I think that there may be another distraction in play. Shouldn't the discussion be distinct about what a Legislature could create as a law, what an Executive might interpret to be law, and what a Judge might decide?
And yet another - John Yoo provided an hypotheitcal example for antebellum slavery that was both false and the opposite of what did occur in Dred Scott. In a comment, I made a poorly explained example of something that did occur: local magistrates in Northern States occasionally prevented and hindered Southern slave bounty hunters from removing escaped and manumitted blacks from their Juridictions, despite the Runaway slave act. The basis was often that the Federal law was superseded by local law, by procedure, or by the particular judge or magistrate's personal belief that the captured person's rights exceeded the authority of the Federal statute. Forgotten and ignored, such local anti-slavery rulings were not lawful, but made on the basis of one or the other guideline of Natural law.
I’m not as informed on the matter of natural law -v-positive law as Steve, John and Lucretia but I find this debate interesting. Am I off base in thinking that our founders believed the natural law would properly inform positive law? And that anything less would lead to tyranny.
It would be most helpful if you could post your own short definitions of Natural Law and separately Positivism. It would help me, and possibly others, separate the arguments more cleanly. Forced busing, Abortion, the Chattels of Dred Scott, Slavery etc....things that don't appear in the text of the constitution but are found there by some none the less. Thank You
It seems to me that the left's abortion mantra: "my body, my choice" embeds a pro-slavery view.
Specifically, once the egg is fertilized the reality that the DNA in that clump of cells is different from the mother's testifies to the fact that it is not part of her body and belongs, instead, to the future human to be born from it. Ignore the years between first division and adult, and what you see is the mother hosting another person during gestation - and therefore claiming the fetus as property to be disposed of at will treats the future person as a slave.
With that in mind, I consider it obvious that natural law outlaws slavery and therefore abortion - but note further that it does not outlaw either killing or imprisonment in defence of either the self or society; so abortion can be acceptable under some circumstances - and so can machine gunning an enemy encampment.
But does natural law trump either the constitution as written or states rights? History says an easy majority of the founders thought so - remember they allowed slavery on a temporary basis only as means of getting some very rich southern landowners (proto-democrats all) on board with the revolution against the King - but I have no idea what parsing the law as it has evolved would show.
PS — Keep this debate going, it is getting quite interesting.
I’m with John Yoo in this debate. I think what makes a law "law" is that it is the command of a sovereign backed by the prospect of sovereign force. In a land where there are only warlords and bandits, there is certainly no "law," whether you premise it on positivism or natural law. It is war against all, and the only natural right is might.
That does not mean I reject as worthless the natural law tradition or its Lockean version. The Founders were motivated by intuitions of morality and justice they attributed to natural law, natural right, and "justice" writ large. And these intuitions were shared to a remarkable degree among them and their society. But the work of the Constitution Convention was to fashion these intuitions into a foundational “law.” The effort succeeded, and John Yoo and I are quite happy with the result. Even from a consequentialist perspective, the results over 250 years have been extraordinary.
The Founders could not anticipate every issue and every context, and their moral intuitions and natural law outlook are no longer shared widely in our society. One of the commenters illustrates the point: In many states the murder of a pregnant woman is also treated as the murder of the fetus she carries, the fetus being considered a human life. At the same time, the state says it is legal to abort that very same pregnancy, that very same fetus, who is not considered a human life. Do we contradict ourselves? Very well, then we contradict ourselves. (We are large, we contain multitudes).
I cannot think that a judge could or should rule against slavery or abortion in a jurisdiction that authorized it on the ground that the law was not really a "law" given the "brooding omnipresence" of natural law. At least the appellate court will likely see it that way. His opinion can argue that the law is unjust and ought to be different, and end in a a terse and unhappy statement of the prescribed result, but I think that is the best he can hope to do. And in cases where the law is not so clear — such as Dred Scott, where a slave escaped to a free territory, or in a state that treats a fetus like a kind of Schrodinger's cat — conflicting laws may give the judge some elbow room to engage his moral intuitions.
It seems to me that holders of natural law (which includes me) are bound by the written law in an orderly nation. Otherwise, the left with their radical ideology, are free to foist their beliefs on the constitution.
John's abortion and slavery hypotheticals are examples where it not only takes a constitution to enforce a law, but also consent of the governed.
It doesn't matter if in the pre-civil war era a judge, and eventually the US Supreme Court, outlawed slavery. That would have changed nothing other than accelerating the start of the US Civil War. And after four bloody and costly years of conflict whites, in both the South and the North, were not ready to live in a society that accorded equal rights to blacks. (Just as the 1964 and 1965 civil rights acts did not instantaneously eliminate continued racial and other forms discrimination.)
The same holds true today with abortion. A state could outlaw it with or without any provisions about maternal health. That would not eliminate women in that state from obtaining an abortion - those who believe its still their right will either travel to where it is legal or obtain one from a practitioner in her state who is willing to ignore the law. And that woman will be supported by many organizations in her pursuit to violate an antiabortion law.
It's a red herring to base this philosophical discussion on bright line social/morale issues where no consensus exists and adherence to a law requires winning hearts and minds. Abortion will end when a society embraces the concept of life that begins at conception and not a day before.
That there is hypocrisy present in a society governed by a natural law endowed legal framework should not be a shock.
We are the country that went to war against Hitler with an army that was not integrated. Should we have paused and attempted to build a highly effective integrated fighting force before we condemned Hitler and mounted a massive effort to defeat him? Should we have ensured all of our universities eliminated all of their discriminatory acceptance practices before we recruited scientists to build an atomic bomb needed to defeat Japan?
America was launched on a path to exceptionalism not because we were exceptional human beings, but that our founders created a morally informed constitutional framework that would continue to guide us on a path to exceptionalism.
I ran across the following concerning the principle of “Reasonable Doubt:” morality vs. “positivism:”
This file appears to be an excerpt from an academic article or book chapter discussing the origins and history of the "reasonable doubt" standard in criminal law. Here are the key points:
1. The "reasonable doubt" standard is a fundamental part of American criminal law, but its origins and meaning are often misunderstood.
2. The author argues that the original purpose of the "reasonable doubt" standard was not to protect the accused, but to protect the souls of jurors from damnation.
3. In pre-modern Christian theology, judges and jurors who convicted an innocent person were at risk of committing a mortal sin. The "reasonable doubt" standard was developed to reassure jurors that they could convict without risking their salvation, as long as their doubts were not "reasonable."
4. The concept emerged in the 1770s and 1780s in response to jurors' reluctance to convict due to religious fears.
5. The author argues that understanding this historical context is crucial to grasping why the standard seems confusing today - it's being asked to serve a different function than it was originally designed for.
6. The article discusses the distinction between "proof procedures" (aimed at achieving certainty) and "moral comfort procedures" (aimed at relieving moral anxieties of judges and jurors).
7. It traces the development of these ideas through medieval and early modern Christian theology, continental European law, and English common law.
8. The author critiques other historians' interpretations of the origins of "reasonable doubt" and argues for a deeper understanding of its religious and moral roots.
The excerpt provides a detailed historical and theological background to support the author's thesis about the true origins and purpose of the "reasonable doubt" standard.
Sources
[1] Whitman__Origins_of_Reasonable_Doubt1.pdf https://ppl-ai-file-upload.s3.amazonaws.com/web/direct-files/42129028/9204338e-84c6-4c7d-b6b7-74b125d228b2/Whitman__Origins_of_Reasonable_Doubt1.pdf
Good work separating the wheat from the strawman.
I think that there may be another distraction in play. Shouldn't the discussion be distinct about what a Legislature could create as a law, what an Executive might interpret to be law, and what a Judge might decide?
And yet another - John Yoo provided an hypotheitcal example for antebellum slavery that was both false and the opposite of what did occur in Dred Scott. In a comment, I made a poorly explained example of something that did occur: local magistrates in Northern States occasionally prevented and hindered Southern slave bounty hunters from removing escaped and manumitted blacks from their Juridictions, despite the Runaway slave act. The basis was often that the Federal law was superseded by local law, by procedure, or by the particular judge or magistrate's personal belief that the captured person's rights exceeded the authority of the Federal statute. Forgotten and ignored, such local anti-slavery rulings were not lawful, but made on the basis of one or the other guideline of Natural law.
I’m not as informed on the matter of natural law -v-positive law as Steve, John and Lucretia but I find this debate interesting. Am I off base in thinking that our founders believed the natural law would properly inform positive law? And that anything less would lead to tyranny.
Steven,
It would be most helpful if you could post your own short definitions of Natural Law and separately Positivism. It would help me, and possibly others, separate the arguments more cleanly. Forced busing, Abortion, the Chattels of Dred Scott, Slavery etc....things that don't appear in the text of the constitution but are found there by some none the less. Thank You
It seems to me that the left's abortion mantra: "my body, my choice" embeds a pro-slavery view.
Specifically, once the egg is fertilized the reality that the DNA in that clump of cells is different from the mother's testifies to the fact that it is not part of her body and belongs, instead, to the future human to be born from it. Ignore the years between first division and adult, and what you see is the mother hosting another person during gestation - and therefore claiming the fetus as property to be disposed of at will treats the future person as a slave.
With that in mind, I consider it obvious that natural law outlaws slavery and therefore abortion - but note further that it does not outlaw either killing or imprisonment in defence of either the self or society; so abortion can be acceptable under some circumstances - and so can machine gunning an enemy encampment.
But does natural law trump either the constitution as written or states rights? History says an easy majority of the founders thought so - remember they allowed slavery on a temporary basis only as means of getting some very rich southern landowners (proto-democrats all) on board with the revolution against the King - but I have no idea what parsing the law as it has evolved would show.