Two Remarks on Obergefell v. Hodges

#1

Justice Scalia, at the very beginning of his dissent in Obergefell v. Hodges, showed that he still is, and most likely will die, a legal positivist. Now, I have some sympathy for Justice Scalia’s position. Positive law is supposed to be about reaching logical conclusions. In any given case, the judge must ascertain what the applicable rule of law is and then apply it to the facts before him. Ideally, he should be able to summarize his ruling in a clear outline, with each conclusion following logically from the rules of law. The judge must also be able to justify the weight he gives to certain facts and his assessment of the various witnesses’ credibility in an intellectually coherent manner. Last Friday’s decision—as Justice Scalia is perfectly correct to point out—failed miserably as jurisprudence from the point of view of positive law; Justice Kennedy’s “rules of law” were, in Justice Scalia’s memorable insult, no more than “fortune cookie aphorisms."

However, Justice Scalia errs in foreswearing all notions of natural law or metaphysics, at the very beginning of his dissent. After all, where do the rules of law, the premises of our legal syllogisms come from? We lawyers are taught always to cite to the relevant authority, but we rarely admit that our citations to authority cannot regress ad infinitum. At some point we must discuss first principles. Justice Scalia’s solution to this conundrum is not the Catholic solution—he does not invoke natural law to supply him the premises for his arguments. Rather, he insisted last Friday, as he has throughout his career, that in a democracy these premises must be supplied by the people, as expressed in their legislation (Constitution and statutes). Vox populi, vox Dei is the supreme rule in Justice Scalia’s jurisprudence.

Justice Scalia’s solution, though, is false; it runs into two problems. First, it denies the fundamental insight of natural law that over and above positive law there is a transcendent justice which positive must respect; a positive law that contradicts this transcendent justice is null and void and cannot bind the individual conscience. Even though most Americans have a very skewed notion of this transcendent justice—and Justice Scalia is right to combat these errors aggressively—these same Americans are nevertheless correct in their intuition that an unjust law is no law at all, and that our nation’s highest court should say so.

Second, it is futile for Justice Scalia to protest against Justice Kennedy’s smuggling of quasi-metaphysical notions of freedom and equality into the Supreme Court’s jurisprudence when the 14th Amendment makes these same notions the very cornerstone of our law. Justice Scalia’s valiant efforts to limit the baleful influence of vague ideas of freedom and equality on America by resort to historical research and originalism have always been bound to fail because freedom and equality have been our dangerous ferment since the days of the Revolution. They have been acting throughout American history, sometimes quickly and sometimes slowly, but always there. Justice Scalia’s historical research ignores this fact.

In short, because of his own philosophical blinders—his legal positivism—and his own ideological commitments—to democracy—Justice Scalia will never actually address first principles, which was what our nation so needed to hear on Friday.

(Ed Peters makes a similar point in his post on Justice Scalia.)

#2

The Court’s decision in Obergefell v. Hodges also makes me ask whether ordinary legal processes are adequate for determining first principles. In fact, this gay “marriage” case illustrates perfectly why the answer to this question is “no.”

A cardinal rule of appellate litigation is that a reviewing judge is not supposed to consider any facts (except the most trivial) that are not contained in the record; likewise, the litigating attorneys may not refer to any facts (except the most trivial) outside the record, except by way of analogy. The record—for all you non-lawyers out there—is the documented proceedings and testimony taken in the trial court. It contains the parties’ pleadings, the sworn testimony recorded by the court reporters, and, in some cases, the physical evidence. Even in our increasingly digital age, all the case records I have ever dealt with in my law practice have been bound collections of paper documents. In other words, if litigating attorneys want the reviewing judges to consider certain facts, it must be introduced into evidence at trial properly and then included in the record. If something is not in the record, it does not exist for the judge and the attorneys.

But, when the question is as complex as the nature of marriage and its incompatibility with homosexuality, a question which could be studied over the course of an entire lifetime, how does a litigating attorney even begin to develop an adequate record and a reviewing judge to read and comprehend it? The issues involved are too complex and the required expertise too variegated for busy attorneys and judges to master these issues within their own lifetimes.

Our legal processes are well designed to deal with discrete incidents, but not with broad social policy or great philosophical issues. Nevertheless, if the law is to have a firm foundation, it must ultimately have recourse to philosophy. But woe to the nation that looks for answers to the most vexing questions of philosophy to Justice Kennedy.

The Case of Dzhokhar Tsarnaev

Dzhokhar Tsarnaev is undoubtedly a murderer.  Barring an extremely improbable and convoluted revelation, he and his now-deceased brother Tamerlan are clearly responsible for the bombing in Boston which left three dead and scores wounded, as well as the subsequent murder of an MIT police officer.  The case against Dzhokhar Tsarnaev appears to be solid, and the punishment he will receive is likely to be severe, and justly so.

It curious, and troubling, then to see the legal contortions which have begun to surround this case.  The Justice Department's decided to invoke the so-called "public safety exception" and forego reading Mr. Tsarnaev - a US citizen- his Miranda rights or permitting an attorney to be present at his initial questioning until three days after his detention has garnered considerable media attention.  Some people, such as Adam Goodman, writing in The Atlantic, argue that the formal reading of the Miranda rights is not necessary, and he is probably correct.  But while this might justify some hasty questioning in the moments after arrest, it does not explain the intentional delay of this practice by several days.  Moreover, the claim that Miranda refers specifically to the admissibility of statements in court, and not to statements per se, defies common sense: information gained without one's attorney present may subsequently be used to shape questions even when he or she is.  I am no lawyer, but it would not surprise me for a judge to throw out not only statements given before the reading of rights, but some portion of those given afterward as well.

Moreover, the public safety exception exists to, well, protect public safety.  If police believe a live bomb has been planted somewhere, threatening lives, they may question a suspect on the spot.  In the first hours after Mr. Tsarnaev's detention this may have been a concern, but the practicality of this argument rapidly fades with time.  If after, say, 24 hours no bombs have exploded and none have been found, is there really a plausible concern about a pressing threat to public safety.

Today Mr. Tsarnaev was charged with the use of a weapon of mass destruction.  This is absurd.  The bombs he and his brother employed were simple in construction and did not involve nuclear, chemical, or biological weapons.  They were deadly, with all the attendant pain and sorrow that term rightly implies.  They were not, however, on a "massive" scale.  Pretending they were is an insult to intelligence and to those who have truly suffered from such devices.

Then there are the likes of Sen. Lindsey Graham, who claimed that Mr. Tsarnaev should be tried as an enemy combatant in a military tribunal.  The trial by jury has been the legal method of choice since the Fourth Lateran Council (AD 1215).  While Mr. Tsarnaev is of foreign birth, he is now a US citizen, and no evidence has come forward that he acted at the behest of a foreign power or entity.  Moreover, military tribunals are used for those who commit war crimes; while attacking innocent non-combatants qualifies as such, the very convening of such a tribunal would legitimize the notion that a state of war existed between the US and whatever entity the Tsarnaevs purport to represent, a claim they might care to make, but I do not. The administration was wise to overlook this line of approach.

Why have the Justice Department, Sen. Graham, and so many others, been at pains to warp this case?  The obvious answer is desire for an admixture of justice and vengeance.  The first is justifiable, the later understandable.  But let us consider, briefly, the alternative.  What if Mr. Tsarnaev were read his rights, with an attorney present, and charged with four counts of murder and at least 178 counts of attempted murder?  Is there any doubt that the evidence, presented in due process in a court of law, would not secure a conviction on enough of those charges to lock Mr. Tsarnaev away for the rest of his life several times over?  Why degrade the legal tradition of which we are so rightly proud with bizarre definitions and exceptions?

Perhaps Mr. Tsarnaev's fate is the rub; perhaps leaders from Sen. Graham to President Obama would like to see him executed, even at the cost of judicial procedure.  The Catholic Church teaches that the state justly holds the power to kill; the death of the elder Tsarnaev brother, though unfortunate, was within the legitimate functioning of the state for the preservation of society.  But, so far as I can see, there is no pressing concern that Dzhokhar Tsarnaev will escape from confinement and strike again.  Bloodless means should be sufficient to restrain him, and I hope he remains so restrained until the day his Maker calls him.

Reclaiming Metaphysics from the Mushy-Headed

One of the "problems" with a UD education is that the UD graduate likes to use certain "fancy" words that not many other people necessarily understand. (I write this as a UD graduate, but I'm sure anybody with a decent liberal arts education has encountered this problem too.) When he leaves "the bubble," he sometimes forgets that these words are not in everybody else's vocabulary. The careless UD graduate in his conversations occasionally lets drop a word which for him is rich in associations and encapsulates his point nicely but which only confuses his interlocutors; pretty soon he finds himself re-formulating his entire argument in order to make himself understood. One such fancy word is "metaphysics," and I recently ran up against the problem of trying to use the word in a conversation with someone from "outside the bubble."

After a lecture event sponsored by a certain libertarian-conservative student group, I went out for a drink with some other members of the group. In the ensuing discussion, I told a libertarian that one of my disagreements with libertarians is that they draw too rigid a distinction between the individual's private life and the public realm, and that this stark dichotomy has its roots in libertarians' arbitrary distinction between ethics and politics, on the one hand, and metaphysics on the other. I thought I had made my point relatively clear, but when my libertarian interlocutor heard the word "metaphysics" come out of my mouth, he looked at me as if I had just grown a nose in the middle of my forehead. He was under the impression that I was referring to old ladies with crystal balls charging me a few dollars to read my fortune, or maybe to some New Age fad. He thought I had a head full of mush!

When I saw his face, I hastened to explain that I was talking about a branch of philosophy. He replied, "I have zero background in philosophy. Why don't you just say 'reason' or 'logic'?" For half a second I entertained the idea of explaining that logic and metaphysics are distinct branches of philosophy, and for another half-second I considered mentioning something about "the study of being," but then I remembered that I had a train to catch. So, I just answered, "Yes, reason!" Of course, his conception of reason was probably a purely modern, instrumental conception of reason...but that was a discussion for another night.

Do so few people understand what "metaphysics" really means? What will happen to public discourse when members of a "learned profession" (yes, I actually am referring to lawyers) who believe they have a special calling to study and resolve the most pressing questions concerning men's relations with one another have no clue what "metaphysics" means?

It probably was always the case that the majority of lawyers were not familiar with philosophy. But, to hear such an open avowal of ignorance from someone who appeared to be interested in larger questions of philosophy was frightening. It wasn't so much his ignorance that frightened me, though, as his lack of shame at his own ignorance.

This ignorance and this lack of shame do not bode well for public discourse. We are left, then, with only one choice: We must reclaim the word "metaphysics" from the mushy-headed!

Property & Leisure: Aristotle vs. Locke

There have been moments in my education when I realize that even though I spent a lot of time on a subject, I really only scratched the surface of the subject. I recently had that experience, while reading Aristotle's Politics, with the subject of property.

Like every other law student in America, I struggled through a pretty complicated course on real property in my first year. After spending a semester learning the basic concepts of property law, such as the different types of estates and co-ownership, as well as restrictions on land use (e.g., zoning and real covenants), I figured that I had a pretty good grasp on the subject. Moreover, most of these concepts are not just taught to first-year law students, but really are essential concepts for many practicing lawyers today. These concepts for the most part fit with certain theories about the nature of property which are shared by most people today and which were announced at the beginning of the course. The theory that guided discussion in my class was John Locke's labor theory of property: "Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property" (Second Treatise on Government, Chapter 5, Section 27). Locke's basic idea is that property is something man creates through his labor; what each individual contributes to a thing is what makes it his property.

But, there were times during the course when more archaic, less "enlightened" views of property made an appearance. Those concepts also tended to be the hardest to understand. One such concept was a type of estate called the fee tail (now abolished in most jurisdictions), which placed severe restrictions on which heirs in future generations could inherit the property. The fee tail's purpose was to keep large estates intact and in the family, and was used mostly by the landed classes. (The fee tail was actually the cause of the Bennets' prospective penury in Pride and Prejudice.)

The second archaic doctrine was the rule against perpetuities, which was designed to counteract the dead hand controlling the fates of estates for generations into the future. Though these rules served opposite purposes--the fee tail preserved estates by restricting heirs' ability to sell the land or name his own heirs, while the rule against perpetuities prevented land owners from restricting their heirs' powers too much--they were both evidence of a very different understanding of property. According to this older understanding, property is much more stabile, it is something that pre-exists us, that needs to be preserved by the current generation and then passed onto the next generation--it is not something each man creates anew through his labor.

This older understanding of the nature of property is first attested to, in theoretical form, as far I know, by Aristotle. In a section of the Politics where he discusses the characteristics of a democracy made up mostly of yeoman farmers, Aristotle writes that "owing to [the farmers'] not having much property [οὐσία], they are without leisure [ἄσχολος]" (Bk. VI.2.1; 1318b11), and therefore do not have much time to engage in politics. What I find intriguing--and contrary to so much of what I learned in my course on property--is that Aristotle describes property here not in terms of its origin (as Locke does), but in terms of its purpose, its end [τέλος]. Property is what is capable of making a man self-sufficient thus giving him leisure to devote himself to more important pursuits, such as politics or philosophy.

Locke and Aristotle represent two very different views of property. The fundamental distinction between Locke and Aristotle can be summarized in the distinction between the words "creation" and "trust." In a Lockean world, where property depends on man's creative labor, if man is to have any property, man must be constantly striving to create property and value, which is usually done today through commerce. This encourages, I suspect, a certain restlessness in a man's relation to his property, and perhaps also a certain acquisitiveness. Even if a man is already rich from commerce, he needs to keep trading and manufacturing; he never has anything like a landed estate that he can fall back on. For Aristotle, on the other hand, acquisitiveness (πλεονεξία/pleonexia) is explicitly condemned as a vice. While it is certainly true that a man must cultivate his property in order to attain self-sufficiency, man's labor does not, strictly speaking, create the property's value. The property's value is more like that of a trust, which needs to be protected by a prudent steward. Once the steward (trustee) does this, he can then allow himself some ease and use his leisure to pursue other, more worthy objects.

Finally, just to complicate matters: While I certainly prefer leisure to acquisitiveness, and thus prefer Aristotle to Locke in this matter, that is not the only question to consider when examining different systems of land tenure. For instance, the older system, such as England had in the Middle Ages (with the fee tail and primogeniture), tended to create a class of sons who could not inherit property. In many cases, these sons either left their families to make a living for themselves, or else many chose to stay at home but remain unmarried. It must be acknowledged, then, that each system has its advantages and disadvantages.

Snow Jobs and the Law

Conducting legal research isn't always the most exciting activity. Appellate judges aren't usually renowned for their lively writing style. Often they are constrained by the required use of technical legal terms. For instance, if an appeal revolves around the doctrine of equitable estoppel (sometimes known as estoppel in pais, if that makes it any clearer) or interpreting a novation agreement, there's simply no way to avoid using some rather arcane language.

But, the speech of trial judges tends to be more colorful--especially in criminal courts, where the defendant are not always the best-mannered, and the judges are more prone to lose their temper.

What happens, then, when an appellate judge is confronted with some decidedly non-legal language coming from a trial judge? It is often quite amusing to read the appellate judge explain terms whose meaning is evident to all, but which still need to be explained in the legal context.

Here's a good example I found recently, from a case involving a man who was arrested for battery. He told the trial judge that he couldn't make the $150 bail, but he still wanted to be released on personal recognizance so that he could hire his own attorney. Apparently, the trial judge didn't believe the man's story that he couldn't afford $150 bail, but could afford a private defense attorney. Here's how the appellate judge explained the trial judge's language:

In denial of defendant's motion for reduction of bail, the trial judge categorized defendant's request as a "snow job". . . Although the term "snow job" is not generally recognized in legal circles, it accurately expressed the trial court's belief that the defendant's argument was without merit. (People v. Hayes, 37 Ill.App.3d 772, 776 (1st Dist. 1976))

Natural Law Theory: George and Arendt

The St. Thomas law school recently hosted Robert P. George, fellow at Princeton and natural law theorist, to receive the Humanae Dignitatis award and speak on “Natural Law, God, and Human Dignity.” His theory of natural law is that it is only known to us humans when we experience it. Knowledge of natural law is not innate, but rather experienced – something that we do rather than that is done to us. Through experience, we come to understand basic moral norms of natural law. The one he cited was a variation of Kant’s Categorical Imperative: Act so that your action furthers the fundamental reason for man’s existence. Virtue he defined as the habit of acting in accordance with these moral norms.

Yet he did not seem to answer what sort of experience we must make. While it might be assumed that man will always act reasonably, and therefore always act in pursuit of his good, George also noted that whole societies have been misled as to the nature of the good and yet have continued to act entirely reasonably. In fact, as Hannah Arendt describes in her study The Banality of Evil: Eichmann in Jerusalem, the entire German society in World War II seemed to have turned conscience on its head, and accepted that state of affairs. She writes: “[C]onscience as such had apparently got lost in Germany, and this to a point where people hardly remembered it and had ceased to realize that the surprising ‘new set of German values’ was not shared by the outside world.”

Supporting her theory was the fact that Adolf Eichmann, the architect of the “Final Solution,” was an ordinary man with an ordinary sense of morality, who had initially experienced great aversion to the idea of “liquidating” the Jews. Until that order was given, he had simply assumed the “Solution” was to make Germany judenrein by expelling, exporting, and otherwise physically removing Jews from the country.

He felt these twinges of conscience for approximately 10 weeks, Arendt reports. At the end of that time, he attended the conference at Wannsee, devoted to the particulars of the Final Solution. Everyone, without exception, states Arendt, spoke as though the immorality of the plan was not even in question: it was a nonissue. Since his superiors had adopted this position, and, indeed, everyone Eichmann knew, he gave it no further thought. (Eichmann stated that no one, not even the local religious leaders, ever pointed out to him the evil he was engaging in. Instead, they worked within the “law,” obtaining “exceptions,” but never directly challenging the law.) Eichmann had corrupted Kant’s principle (“act so the principle of your action can become the principle for general laws”) to mean “Act so that the Fuehrer, if he knew what you were doing, would approve.” Hitler’s will was substituted for Eichmann’s and was regarded throughout Germany as having the force of law.

The horrors of the Holocaust are well-known. Following the end of World War II, at the Nuremberg Trials, international law began to adopt a minimum moral standard that would apply regardless of what the law of the individual country had been at the time the crime had been committed. The source of this moral standard was to be what all nations regarded as moral. But, again, there remained the question, which is coming back in the recent debates about medical conscience clauses, whether the conscience can be relied upon to define an objective morality, or whether, particularly if knowledge of morality is predicated on experience and habits of acting, conscience is simply relative and dependent on individual experience, cultural norms, and other subjective and changeable criteria. If the latter, there is no guaranty that something like the Holocaust will not happen again.

Is Anything in Life Not Economic?

In my Constitutional Law class the other day I came across a rather troubling idea: that nothing in life is not economic in nature, or--if you just shuddered at the sight of a double negative--that everything in life is economic in nature.

Let me back up a second and explain how such a preposterous notion came up in a class on the Constitution. There is a clause in the Constitution called the Commerce Clause (Art. I, § 8, cl. 3), which gives Congress the power to regulate "commerce...among the several states." At the beginning of this nation's history, this clause was interpreted rather narrowly. "Commerce" meant essentially only merchant and trading activity, and was usually distinguished from manufacturing, farming, and producing goods for sale. But, over time lawyers started playing fast and loose with the definitions (I know, you simply can't believe that). The Commerce Clause soon encompassed not only commerce but also manufacturing and production.

That's a pretty broad definition of commerce, isn't it? Well, you ain't seen nothing yet. During the New Deal, commerce came to include anything that "in the aggregate might have a substantial effect" on commerce. Pretty soon lawyers and judges were simply using "economic regulation" as a shorthand reference for Congress' power to regulate commerce. And, what's more appalling, these same lawyers and judges were allowing Congress to regulate everything in sight, on the grounds that everything in life is economic.

Fortunately, the Supreme Court appears to have put a stop to some of this insanity in two recent cases (United States v. Lopez and United States v. Morrison) and ruled that Congress cannot declare everything economic and then regulate it. In Lopez, the Supreme Court held that the federal government did not have power under the Commerce Clause to outlaw guns in school zones. It's not that the Supreme Court was in favor of guns in schools; it's just that it's a simple non-economic criminal matter for the states to handle. But--the government's lawyers pleaded--if you allow guns into one school in Texas, that can affect the way students there behave; and if those students don't behave well, they won't perform well academically; and if they don't perform well academically, they won't get good enough jobs; and that in the long run, repeated thousands of times, will affect interstate commerce. A simple crime by a dumb teenager has been transformed (by crafty lawyers) into an assault on the economic foundations of America.

But, how did we get to the point where many of the brightest people in the land think that carrying a gun in a school is an economic activity? It's more than just a devious tactic employed by lawyers to win cases. On the contrary, it has been theoretically justified by many thinkers, and reflects the course of society in the last 250 years. At first blush, it may remind you of Karl Marx's economic determinism. But this idea has also been advanced by at least one leading contemporary legal scholar, who is usually (though, in my opinion, mistakenly) considered a free market zealot. Judge Richard Posner, the maven of the Law and Economics movement, has defined crime in purely economic terms as the "coercive transfer of either wealth or utility from victim to wrongdoer." The word "utility" is telling. It should remind you of the theory of utilitarianism, first systematically articulated and named by Jeremy Bentham and John Stuart Mill. What Posner (and many modern libertarians) have contributed to Bentham's and Mill's theories is an emphasis on modern economic analysis as a way of determining the "aggregate social value" of an activity. Economics no longer examines individual choices, but arrogates to itself the right to judge everything in society.

So, is there anything that's not economic in nature? Can we prove the utilitarians wrong? I think many readers of this post (if indeed there are many readers of this post) would automatically name examples of non-economic activities such as art or love. And they would of course be right. But, what about blogging? As one cynical website explains blogging: "Never before have so many people with so little to say said so much to so few." Doesn't that prove that blogging has no real utility, and therefore isn't economic in nature?

I think that we here at the Guild Review should transform this cynical witticism into a joyful affirmation of blogging, and of non-economic activity in general. We do it because it's useless--we do it because it's not economic!

Etymological Reflection

In a field where the exact meaning of a word is crucial, it comes as perhaps no surprise that Roman students of law used to begin with a study of the word "law", or "jus", in Latin. While this lengthy etymology copied here is taken from a very old (the style of writing betrays its age) treatise on Canon Law, it serves as an apt reflection on the meaning and purpose of any kind of law.


Law: Jus

"[Justinian’s] Digest begins with this extract from the writings of Ulpian: “He who undertakes the study of the law should first understand the origin of the term ‘law’.”

The Latin word jus, for which we have no exact English equivalent, is derived:

(a) from justitia or justum (the state of justness). Thus Ulpian (1 D. I, 1) defined jus as ars boni et aequi, the art of all that is good and equitable; and St. Isidore (560-636), whose definition of jus Gratian adopted, says… “jus is so called because it is just”.

(b) Or it comes from the word jusum, or jubere, because jus means that which is commanded, namely, a law, an order, first called by the ancients jousa, and later jura. Thus, in the patrician state the laws voted on by the Roman people … received the name jussa. The chief, termed Rex, proposed laws to the people for their acceptance as follows: “Declare your will, give your command, Citizens,” or “Declare your will, give your assent, Citizens”, as the words originally meant. The Latin term for citizens was Quirites. An affirmative response was expressed by the letters U.R. (i.e., Uti rogas, I vote as you propose), and a negative reply by the letters A.Q.R. (i.e., Ante quo rogas, I vote as before your proposal). This was incorrectly interpreted by some to mean antiqua probo (i.e., I vote for the old law).

Several of the modern philologists go further and trace the derivation of the Latin word jus from other languages:

(c) Some maintain that it comes from the Indo-European or the Sanscrit root yu, which contains the idea of a bond, a tie, or a union, as in the Latin words conjux, conjungere, juxta, jumentum, jurare, and in Greek έυγόν, a yoke, and έεύγνυμι, to join. For jus is the bond whereby men are made subject to God, and one man is bound to another.

(d) Still others say that the word jus comes from the primitive Sanscrit or Vedic, Yos, which signifies what is good, what is holy, something pertaining to divinity. The reason is that right or law in the abstract comes from the divinity, and in ancient times it was the duty of priests in particular to pass laws, jus being closely connected with religion. Accordingly, Grotius and Vico, at once philosophers and jurists, considered the term jus as deriving from the Greek Zeus, which is the ancient form of the name Jupiter.

(e) In Greek, jus, justitia are designated by the word δίχη, and justum by the term δίχαιον. These words take their origin from the Indo-European dik which means to show, or to indicate, because jus is the index or rule of action.

(f) In modern languages, jus is designated by the terms diritto, droit, derecho, recht, right, and signifies that which follows a straight course, possibly from the Sanscrit root rgu denoting that which does not deviate from the true standard. In moral matters it signifies the rule of rectitude and probity. In this sense, then, jus is the same as “the standard of what is just and unjust”, after the analogy of the geometricians’ line or the builders’ plumb.

To sum up: Jus essentially consists in this: it is what is just or good, what is commanded, namely lex, what is holy and pertaining to God, what is straight and not devious; or finally, jus is that which indicates and constitutes a rule of conduct. Its meanings are many, the thing is one. For it portrays that the thing (jus) has its origin in God, the Eternal law, which alone is the sure and right norm of action."

Authority and Custom: No More Etymology

I must thank Aaron for a comment he made regarding my post on authority and power. He suggested that I think about the importance of the will and man’s fallen nature, in relation to authority. I will take him up on the offer, albeit indirectly, but decline his (hopefully only joking) invitation to do more etymology.

In my last post I emphasized that, in order to be effective, authority must be coupled with power. For example, when trying to figure out whether a given state has effective authority, it is useful to ask of its legal system: “Can this state enforce its judgments?” In other words, when a judge in this state declares by his legitimate authority that a man has committed a crime, it is not enough simply to make a declaration; he must have power to incarcerate the criminal. If the people recognize the state’s authority, the state will be able to use its power to prosecute and imprison criminals. Unfortunately, in our fallen state, such use of power by legitimate authorities will always be necessary at times.

However, authority must also speak to reason; indeed authority is even more effective when it speaks to reason. Authority must be able to convert its dictates into something more powerful than force. In an individual, that something is called sensibility, but in a group it is called custom. What prompted this idea was the following aphorism:

Man today oscillates between the sterile rigidity of law and the vulgar disorder of instinct. He is ignorant of discipline, courtesy, and good taste.

Gómez Dávila depicts two extreme situations in the first sentence. In the first situation there is authority which only has power over the will. The law has the power to punish, and so people fear the law, but they do not love it. Here fear is not the beginning of wisdom. The second situation is when there is not authority at all. Everybody does as he pleases, and nobody can stop him.

In the second sentence, though, Gómez Dávila calls for a golden mean, where authority appeals to the reason of each individual and induces him to discipline himself, to act courteously to others, and to restrain his passions. When individuals have internalized authority, it becomes a sensibility. Men begin to think in accordance with authority, not out of fear but because they have begun to understand it. More importantly, it has become a habit. When this sensibility spreads to many individuals, it becomes a general custom. Finally, we should keep in mind that authority, in the form of custom, is supposed to lead to human flourishing. It should not be sterile or rigid. On the contrary, it should lead to discipline, courtesy, and good taste. These virtues are the marks of true freedom and are the foundation of achievement. Finally, the need for the authority to wield overbearing power disappears.

In case you are inclined to dismiss this as some kind of utopian day-dream, or a nostalgic longing for the “good old days,” I would respond that discipline, courtesy, and good taste are actually very practical. For example, they are essential to the smooth functioning of our legal system. We Americans are known for our litigiousness. At first glance this seems to be a good thing—we acknowledge the authority of the courts and don't engage in private blood feuds. However, our love of lawsuits entails problems of its own. To begin with, the sheer number of lawsuits and appeals slows down the administration of justice. There are a limited number of judges with a limited number of hours in a day available to deal with all these disputes. When too many citizens sue, this means that cases take longer to be resolved, that judges can’t devote as much time to the significant and difficult cases, etc. That explains why all trial judges wish that parties and lawyers displayed much more discipline and courtesy (what they usually call “common sense”) and settle on terms acceptable to all, rather than force judges to impose terms which will probably end up pleasing no one.

This suggests a second point: The law is often a very Procrustean tool. It often pits two goods against each other, and forces one party to choose one. Or, it imposes what seems like an unreasonable solution to all. (For an example of just such a lose-lose situation, see this article.) At the end of a lawsuit, one party is almost always going to be displeased; but if parties refuse to settle, usually both parties end up displeased.

The lesson to be learned, then, is that authority with only power over the will is almost as much of a curse as the complete absence of authority. Authority must be internalized, first in the form of reasoned acceptance, and then in the form of individual sensibility and general custom.

Personal Authority (Part I)

Last Friday one of my law school classes took a field trip to the federal Court of Appeals for the 7th Circuit in Chicago to hear oral arguments. The second case of the morning involved a woman who was suing her health insurance company for breach of contract. The key issue was whether the insurance company had actually authorized the surgery. This may sound like an easy factual question to resolve—just look for a letter or some other record—but what made it difficult was the fact that even though the insurance policy seemed to state that it did not cover surgeries related to the woman’s condition, this policy was nearly impossible to decipher, a customer representative gave oral authorization for the surgery in question, and the insurance company had approved a surgery relating to the same condition just a year earlier.

The insurance company’s lawyer tried to make the case that this was an ordinary insurance policy; she even said to the three judges that this 50-page contract was probably just like their health insurance policy. This move backfired, however. All three judges looked rather uncomfortable at this comparison, and one of the judges even asked: “But, counsel, what about the ordinary person reading this contract? Would he know that this procedure wasn’t covered?” From then on, the judges’ questions seemed to indicate that they wanted to rule in the woman’s favor.

This made me wonder about two things. First, these three federal appellate judges appeared not to have read their own health insurance policies. They seemed uneasy—if I may extrapolate a bit from their reactions—with the realization that some of the most important aspects of our lives are governed by contracts and regulations which even the finest legal minds in the nation have a hard time understanding. Health insurance, taxes, Social Security, probate, etc., these are all areas of law whose details are nearly incomprehensible to a non-specialist.

Second, lurking behind all this was the question whether a mere customer service representative can speak for the insurance company and whether a patient should rely on that representative’s word. This is a completely natural question for a vast bureaucracy, such as an insurance company or a government agency. When an organization is made up of thousands of people, many of whom do little more than answer phones and look up answers to simple questions on their computers, it’s obvious that not everyone can speak with authority for the entire organization. But, who speaks with authority then?

These two considerations, I would submit, point to the conclusion that one of the main problems with modern bureaucracy lies in the anonymity of authority. Authority is nowhere to be seen. When we deal with authority, we naturally look for a person to exercise that authority. But that’s simply not how the world works today. Rather, today we try to compensate for this lack of personal authority by weaving an ever denser web of contractual and regulatory obligations to give the appearance of authority, but don’t really succeed.

This is not to say that we should breach all our contracts or disregard state and federal regulations. All this means is that in a world of impersonal bureaucracy, supported by impersonal law, we will remain deeply dissatisfied because of the lack of personal authority. Laws and contracts are not enough, and can often make us unhappy, but it’s nearly impossible to rebel against just a law. Rebels and revolutionaries understand this quite well. They don’t fight against abstractions. What did American colonists do to protest the Stamp Act? They went out and tar-and-feathered the first British official they could find. What did they do to protest the taxes on tea? They dumped crates of tea into Boston harbor. Even today, when members of one political party in Congress express their opposition to a particular bill, they denounce “Senator X’s bill” or “President Y’s proposal.” The ad hominem attack may be bad logic, but it’s indispensable to the way people think. Authority needs to be personal.

Part II tomorrow...

Born Alive Truth

BornAliveTruth.org

(Props to Thomas Peters, aka The American Papist, for his post on this video.)

Why I Hate Shots

I graduated from college a couple years ago and have been working since then, so I had forgotten about a lot of the silly things we have to do when registering for classes at a new school. How many times do I have to make a new password to log onto a university website designed specifically for registration that will certainly crash at the beginning of registration?

Well, I had forgotten about all this rigamarole until this summer, when I had to get ready to start law school this fall. And I had completely forgotten about shots--until I received a letter in the mail telling me to get a tetanus shot.

And this rude reminder got me thinking (that's where you, dear reader, are supposed to roll your eyes) about the school's and government's justification for this coercion.

First of all, why do I speak of "coercion"? Quite simply, because I was not allowed to register for classes until I prove that I had received a tetanus booster within the last ten years. I was forced to go a doctor and have him sign a sheet verifying that he had given me a tetanus booster. (I suppose I could have just forged the doctor's signature. . .)

More importantly, a question came to mind which, I think, might challenge the way most people today think of politics: Why on earth do a law school and the government need to make sure I have had a tetanus booster? Why can I not make the decision myself?

We are not speaking of a communicable disease here. I might be able to understand it if the school made me get a tetanus shot so I wouldn't spread the disease to other people, but the only way I can think of spreading tetanus to my classmates is to run around stabbing them with a rusty nail. We are also not dealing with an environment where tetanus is a constant threat. If I were enlisting in the army, I could understand that the government would make me get a tetanus shot because I would in all likelihood be serving in some a filthy, unhygienic part of the world. (Now, I know a lot of you think law is a dirty business. . .) Granted, tetanus is a horrible disease. But, if I ever step on a rusty nail, I hope I should have the sense to clean the wound up and go to a doctor.

Maybe some of you can find a compelling reason why the government and a university should force me to get a tetanus booster. I can't. My question remains: What vital interest does the government have in making me get a tetanus booster, and why should the law school be so eager to do the government's bidding? What ever happened to personal responsibility and the acceptance of risks in life? I would venture to propose that most people secretly enjoy having the government take the risk out of life, because responsibility is a real burden. But that's only a guess.