What’s Wrong with the World

I think this might be a question of perspective. Serious critical theorists are not interested in supporting or even "fixing" the status quo; they want the status quo to radically change.

The defenders of the status quo are, then, conservative. Both liberals and self-identified conservatives fall under this catagory.

I guess it is the difference between thinking that society is nothing but an aggregate of different ideas and acting individuals and seeing it as a cohesive structure where everything is related to everything else. It's not a question that can be settled empirically.

It is perfectly possible to believe that the political status quo should be changed, radically or somewhat, or anything in between, to the left or to the right, without subordinating one's Shakespeare class, mathematics, constitutional interpretation, and everything else in the world to this end, and without dragging politics into every subject and seeing nothing as worthwhile in itself. The latter behavior turns all worthwhile human activities, with their normal, glorious, and _genuine_ diversity, into a mind-numbing politicized grey tapioca. No, thanks.

The overall point here about the horrific politicization of everything I agree with. I (perhaps unsurprisingly to Lydia) have a comment on this specific point though:

In fact, they [Bork and Scalia] get in trouble on the right as well on the grounds that they are "legal positivists."

That is true, but what is at issue in that criticism is precisely what it is to be a judge: it is the matter of professional integrity in the role of magistrate-as-magistrate, involving precisely the matter of what the positive law is and is not and what it does and does not entail. So the criticism of Scalia and Bork as legal positivists by some (including yours truly) isn't unrelated to the professional integrity of the role: it cuts right to the heart of it.

I think, Zippy, that your position on this point is a good deal more nuanced than that of some other conservatives. (Flattery will get me everywhere, right?) While I disagree with you about the role of the judge in extreme cases, I think there are two ways in which you are refraining from a full-scale insistence that judges come to conservative conclusions. First, as I understand you from other arguments, you think a judge should be reluctant to use his role to overturn a law on the grounds that it contradicts the natural law or to order a remedy not granted by law for the same reason. In other words, it's an extraordinary measure, on your view. Naturally, from my perspective, this makes your position less objectionable than if that weren't the case. Second, and relatedly, I think that you realize the value of a judge's merely interpreting and applying the law at times even when the outcomes this generates do not accord with the outcomes he thinks are best. In other words, you aren't just sitting around reading the news of some recent Supreme Court or other court decision and saying, like some conservatives, "Now, let's see if he's _really_ a conservative judge" based on the outcomes of his decisions.

What I would like to do here is sort of to push on that. I don't think I'll move you much, if at all, on the specifics, but I'd like to make a plea for seeing Bork's or Scalia's conclusions in cases where you disagree with them not as the result of some sort of stultifying or even insane formalism but rather as the result of their own conscientious attempts to be professionals of the highest integrity--a positive character trait rather than a negative one. I think it's possible to disagree with their evaluation of what professionalism requires of them in some given legal case while nevertheless thinking of what they are doing as *at one level* an admirable thing.

I'm trying to think of a parallel for this in my own case in some other profession, but I'm not very creative this afternoon. Maybe something will come to mind later.

I think it's possible to disagree with their evaluation of what professionalism requires of them in some given legal case while nevertheless thinking of what they are doing as *at one level* an admirable thing.

I do agree with that. What is at issue in this case is precsiely the substance of the profession. It is certainly true though that we can argue about what it means to do professional engineering work with an engineer who is himself committed to professional integrity. That is just as it should be, and if that is inherently conservative then so much the better for conservatism.

And yeah, the natural law guys probably wouldn't like me much either if there were any of them around to argue with me. As a general thing moral obligations arising from the positive law are the sort which could be otherwise, but which are contingently made to be thus rather than so by public authority for the sake of the common good. Think driving on the right, or the specific punishment for murder. Natural law obligations don't have that kind of contingency: they arise when to do other than what they require would itself be immoral (not that that cannot be a prudential determination of a sort: in some cases the mere physical capacity to act can oblige one to act even though there may be multiple possibilities pertaining to precisely how one acts). As a practical matter that may make the conclusions I reach in specific cases nearly identical to those of legal positivists, in particular since enforcement of the positive law is generally more a matter of selecting among prudential contingencies any of which could justly be otherwise. But only nearly identical, and when you start throwing in the roles of governors and other officials things start to diverge rather sharply, I think. I've been meaning to get around to thinking and writing some more on the subject, for my own navel-gazing edification if for no other reason.

Magnificent post, Lydia. May I say that I second Zippy's proposal that you be given the entire franchise?

Aw, gosh. Thanks, Paul.

Zippy, whenever you do more ruminating, it will be interesting to read.

I actually do think that the executive branch has much more latitude than is generally attributed to it. For one thing, executive officers can and should ignore silly court orders that aren't real legal interpretations. That idea _alone_--that the executive branch, too, gets to interpret the law and the state and federal constitutions--would make some revolutionary differences to outcomes.

It is perfectly possible to believe that the political status quo should be changed, radically or somewhat, or anything in between, to the left or to the right, without subordinating one's Shakespeare class, mathematics, constitutional interpretation, and everything else in the world to this end, and without dragging politics into every subject and seeing nothing as worthwhile in itself.

But it's not just the political status quo they want changed, right? It's a revolution in thought they're looking for. Everything from the rejection of the onto-theological foundations of western thought to the questioning of liberal democracy itself.

Thought doesn't need to be a ceaseless repetition of the same. I think that's the basic position of the folks you're speaking of.

And that means we must ceaselessly discuss "racism, sexism, and homophobia" or "phallic symbols" or "structures of oppression and hegemony" or....

when we discuss every subject? That's now what the whole gorgeous panoply of Western thought gets reduced to, in order to "reject the onto-theological foundations"?

Well, maybe so. Maybe, on their view, that's so. Then in that case, if the kind of revolution in thought they want is that nothing beautiful, valuable, or important in itself will be preserved, it will all be torn down, and this near-manic little round of boring obsessions will become the sum total of our thought and endeavour, surrounded by po-mo gibberish and nonsense, then they are what Neil Postman calls Visigoths, and we should fight them to the last ditch and the last gasp. That's certainly what I intend to do.

No, it doesn't mean endless discussion of anything. I've already had a similar discussion over at Right Reason. I guess I don't know what goes on in a majority of universities - maybe many profs are the caricatures you've constructed. But so what? This doesn't change the extraordinary depth, range and beauty of contemporary continential philosophy.

Sometimes I think that listening to "conservatives" speak about continential philosophy is exactly like listening to Richard Dawkins speak about religion.

"No, it doesn't mean endless discussion of anything."

That may be unintentionally more true than you realize.

Well and good. Then why don't you love my post, except for the negative reference at the beginning to critical theory? In other words, if the continental philosophy you advocate, with all its "extraordinary depth, range, and beauty," is entirely compatible with leaving Shakespeare and all the other greats in literature alone to be studied as they understood themselves, to be appreciated apolitically as they were before post-modernism ever came along, if it's fully compatible with apolitical legal theory, if it has nothing to do with dragging race, gender, class, the evils of colonialism, and sexual orientation (not to mention "finding" cutesy sexual allusions in every text that were never there) into all of the different ields, then why not tell me that you're _all in favor_ of the several apolitical essences of all these things, and that continental philosophy and "critical theory" and all the rest are just extra, separate areas of study with their own seperate excellences?

Well, because you aren't a liar. And because you know it isn't true. Because you realize quite well that a "complete revolution in thought" that involves the overturning of the "onto-theological foundations" really _doesn't_ have room for the beauties of these subjects as they were traditionally taught in an apolitical way. It isn't just a separate discipline of its own. It really is trying to overturn all the hierarchies, change the way every field is seen and understood, overthrow everything, and so on and so forth.

Mike, I actually empathize with your complaint, to a degree. The difficulty lies with the American interpreters of Continental thought, who too often reduce it to its most bombastic passages, its most out-there formulations, its most simplistic and contestable applications. If the bottom line of Foucault really is nothing more than an interminable discourse of liberation from various isms, isms which reflect the omnipresence of power and control, why bother? That sort of thing just leads to discussions of homosexuality as a transgressive blow against the power structures of heteronormativity. Who cares? In sum, American academics too often fail to do justice to Continental thought, and those who receive the most publicity are those articulating the most outlandish claims. It is scarcely to be wondered that conservatives turn away.

Then again, I am the one around here who, every now and again, likes to spend some time reading Nietzsche, and about Nietzsche.

Maximos, you can say this, though I'm rather sorry you should do so, _but_ I know for a fact that you have no ambition towards the "rejection of the onto-theological foundations of western thought." Very much to the contrary. And again, if people love the apolitical integrity of the professions, including academic disciplines like literature and philosophy, then why all this talk about overturning the status quo? Why the defense of calling "conservative" (apparently as a negative term) the professors who didn't politicize their classes _on the grounds that_ they were maintaining the "status quo"? In other words, Mike obviously is endorsing some sort of radical critical theory or other, though he hasn't explained exactly what it is, just that it is ostensibly profound and doesn't involve endlessly talking about anything. But it is about overturning the status quo (and not just, mind you, the political status quo), about undermining the onto-theological bases of western thought, and somehow is opposed to professors who don't politicize their academic classes. Then count me out, big time!

While I disagree with you about the role of the judge in extreme cases...

Just how do you two differ in these cases? An example would help.

Jeff, is there something in Foucault to which we should pay attention?

Here y'go, Bill. The long thread in which Zippy and I discussed legal positivism:

http://zippycatholic.blogspot.com/2007/04/justice-following-orders.html

It was a lot of fun. I think Crimson Catholic showed up (though I haven't read back through it).

What it comes down to is a fairly narrow band of disagreement concerning whether a judge could legitimately use his power qua judge to order some sort of remedy or hand down a decision contrary to the positive law where he believed the positive law to contravene the natural law. That's such a brief summary that I hope I haven't done Zippy an injustice in it. The thread had a lot more space for hashing.

I don't have time to re-read all that. So, concerning this: whether a judge could legitimately use his power qua judge to order some sort of remedy or hand down a decision contrary to the positive law where he believed the positive law to contravene the natural law.... I'm going to answer on instinct and say yes, he should; "instinct" means that I reserve the right to change my mind.

Of course, I have something quite different in mind than an affirmation of the totality of the postmodernist/poststructuralist/continental programme, to the extent that there exists one; I mean only that one cannot hope to grasp the logic of the modernity that remains the bete noir of conservatism absent an understanding of what supersedes modernism, and that one cannot understand postmodernism without understanding the modernism it requires as a shadow. Postmodernism informs us of precisely how modernism fails, and to pursue this critique to its limits is to undermine the political philosophies of modernity. If the modern subject is decentered, then political modernisms are without foundation; this, frankly, is a liberation for conservative thought - once we reach this point, it is all onto-theology, for or against. I would argue that it is a question of whose onto-theology, but the point is that clearing away the detritus of modernism enables us to fight to our strengths, instead of embracing a series of compromises that always ratchet leftward.

My remarks, of course, are political. Postmodernism as social thought is what happens when the disillusioning failure and incoherence of political modernism is felt, and then analyzed. Political modernism, the maximization of the autonomy of the individual, the monad, of his scope for self-articulation, is incoherent, as incoherent as logical positivism; the choice this leaves is between tradition and, well, nothing much.

Bill, to pull an example out of the hat, I'd suggest that Foucault's discussion of Bentham's Panopticon, for which he actually hoped to receive government funding - so that, as Sub-Regulus of the poor, he could regiment the schedules of his inmates, maximizing their productivity, and enriching himself, of course - is not all that bad. Perhaps - I write at a decade's remove of a reading of Foucault - his makes much more of it that it warrants, but in itself, it is illustrative of how the modern economic and social orders required a radical 'resocialization' of the masses, and how - even short of the Panopticon - this was a politically-driven process, and not a cloudless unfurling of human freedom. People accustomed to an agrarian life had to be forced to be "free".

Sometimes we think men mad because they drag into the light the squalid things we prefer to conceal.

Bill,

I argued that he shouldn't, because it would be a misuse of his power as a judge. In other words, he was made a judge on the understanding that his job was to interpret and apply laws passed by other people, so he's violating a kind of tacit agreement that's part of the definition of the job if he doesn't stick to that. That doesn't mean that he should cooperate in evil. If necessary--if it really got that bad as far as what laws he was asked to interpret and apply--he should recuse himself or quit his job. As you probably know, in virtually all (maybe all) of the cases that really get me riled up so far, I believe that the judges in question could have done the right thing _by_ properly interpreting and applying the positive law, or even just by shutting up and not pretending that the positive law (e.g. the Constitution) addresses some subject that it doesn't.

Maximos, without agreeing or disagreeing right here and now with what you've just said, I want to ask: Would you not agree, though, that what you are talking about can (even should) be left largely to one side when one is doing an enormous amount of extremely important and great stuff in the humanities, sciences, etc.?

Knowing what is happening to the program in which I was educated, I should certainly answer in the affirmative! Of course, each discipline in the humanities possesses its innate excellences, and cannot be what it is unless it is permitted to realize them. All I'm arguing is that there are conservative reasons for reading Continental philosophy, regardless of the implications most interpreters tease out of it; there are reasons for the occasional apoplexy on the hard left about the "dead ends" of postmodernist thought - it is susceptible of conservative applications, though more as a primer, in my opinion.

FWIW, the undertone of Foucault, of resistance to the totalizing regime of discipline, still presupposes something of the modern subject; a decentered subject cannot resist anything, inasmuch as it is a site of plural selves. Only if man possesses a determinate substance can he resist much of anything. Just thought I'd throw that out there.

There are two theses behind the style of thought being criticised here.

1. Everything is interonnected.
2. It is better to create than to repeat.

They aren't conclusions that can be argued for in logical form, anymore than their negations could be. To decide that repetition is better than creation is just as much a life stance or existential comportment as its opposition.

Examples. It is better to create your own perspective on Aristotle than it is to simply memorize his words and be able to repeat them on command. It is better to recognize that art - like Shakespeare - is both created and viewed from a particular perspective than it is to assume there is one "Shakespeare" that is eternally present and that has only one authorized articulation.

Before I go any further, I want to make explicit something that I only touched upon above. I have no experience with American universities, and I certainly don't know what goes on in them. Maybe they are a quagmire of ridiculous stereotypes. Whatever the empirical case may be, I still think we're arguing over the above theses. If American professors spend their lecture time making fun of Bushisms, than you have my sympathy.

What critical theorists are trying to do is root out what underlies perspectives. To say that all that work can be "left aside," Lydia, is only to accept older ways of thinking without even articulating them.

"1. Everything is interonnected.
2. It is better to create than to repeat."

Well, I think these are both false on their faces, except that #1 might be true in some sense utterly irrelevant to the subject at hand: E.g. God created everything other than himself; hence, everything is interconnected in the sense that everything that is not God was created by God. But in the sense I think you mean it, no. And as for the second, it's balderdash. If you can't take the trouble to appreciate the things other people have created--people far better than you are _at_ creating--because you're too busy "creating" for yourself, then you are impoverished.

The silly cliche about "simply memorizing Aristotle's words and repeating them on command" is unworthy of any academic. If you have no better notion of what it means to study an ancient philosopher (or a poet, an historian, or even a fellow human being) and understand him than either merely to memorize him and repeat him on command or to subject him to the tender ministrations of critical theory, then you are missing nearly everything that makes the humanities worthwhile.

Yes, there is "one Shakespeare." To begin with, he was a guy. A person. As real as you or I. He wrote plays and poetry. He lived in the 1500's and into the early 1600's. Second, there is a corpus of his work. There are, of course, textual variants within this, so that we don't always know which words he actually wrote, but there's enough that we do know to make a body of work that can be read and understood. And it is, in fact, worth reading and understanding. It doesn't just exist in our heads. We don't "create" it. "Only one authorized articulation"? What the dickens does that mean? Critics argue constantly about the meaning of various passages. That's no problem, and a scholar should be able to discuss these differences of opinion. But they are opinions _about_ something outside our own heads, or they are not worth the trees killed to make the paper to print them on, if they are just self-stimulating "creations of perspectives."

"Accept older ways of thinking without articulating them"? On the contrary, I am articulating them. I just disagree with you profoundly. Is what I think an opinion? Yes, indeed.

But it isn't a political opinion.

It is better to create than to repeat.

A teacher who comes to the classroom with this approach is suffering from terminal arrogance.

Lydia, how would this - in virtually all (maybe all) of the cases that really get me riled up so far, I believe that the judges in question could have done the right thing _by_ properly interpreting and applying the positive law - have applied in the Schiavo case?

Hey, Bill,

We discussed this once with Zippy, and as you'll recall he said it wasn't a good test case of the differences between him and me. There were so many places at which what I've said would apply to the Schiavo case that I can't even list them all: Judge Greer didn't seek "clear and convincing evidence" that she would wish to be dehydrated to death, though that was the legal standard. The state Supreme Court said that it was against the state constitution for the governor to be allowed by law to reinsert a feeding tube, so they struck down Terri's Law which had saved her life. There was nothing in the state constitution that justified this conclusion. They should not, legally should not, have struck down that law. _Since_ this is the case, and since the executive gets to interpret the constitution of his own state, too (as I said above), the governor would have been legally justified in ignoring the striking down of Terri's Law and continuing to keep her fed.

Those are just a few examples in that case. There are even more that cd. be given.

Well, I think these are both false on their faces, except that #1 might be true in some sense utterly irrelevant to the subject at hand: E.g. God created everything other than himself; hence, everything is interconnected in the sense that everything that is not God was created by God.

So popular entertainment and popular morality are not connected to each other in anyway? Popular notions of Evolution aren't connected to anything in culture? Be careful that you don't overstate your case, because I'm pretty sure that you'll readily argue for the interconnection of some things. All I'm insisting on is that the connections are both more pervasive and more subtle than you might be willing to grant.

If you can't take the trouble to appreciate the things other people have created--people far better than you are _at_ creating--because you're too busy "creating" for yourself, then you are impoverished.

What an odd accusation. It's almost as if you think I'm saying that we don't need to study others. If I thought that, why would I repeatedly argue for the value in studying certain philosophers?

"You have to have tradition within you to hate it properly." So said Adorno. Hate, in the sense of Jesus' "If you don't hate your family..."

The silly cliche about "simply memorizing Aristotle's words and repeating them on command" is unworthy of any academic.

Umm... why the polemic tone? I said X, and you seem to be saying "No, it's X, you idiot!"

The kind of interpretation I'm speaking of would be exemplified by Heidegger's Kant and the Problem of Metaphysics. The standard view of Kant is that of an epistemologist, that he was primarily and only searching for a foundation for mathematics. Heidegger, on the other hand, would insist that Kant was actually developing an ontology of the subject. Heidegger developed his own reading of Kant.

It's obvious this discussion is not going to go anywhere; we've strayed well into the land of ambiguity and idle chatter. If we're going to have a serious discussion about all this, a particular text needs to be chosen.

why the polemic tone?

I've wondered that. I'm beginning to think being right means being belligerent around here. I know this is off-topic, but it's a bit overbearing. Apparently you are an enemy if you are not an author. Polemics is more important than pedagogy when truth is the banner.

If we're going to have a serious discussion about all this, a particular text needs to be chosen.

Agreed.

I just finished reading some Dooyeweerd on the pretended autonomy of theoretical thought.

Aspects of experience
An indissoluble inner coherence binds the numerical to the spatial aspect, the latter to the aspect of mathematical movement, the aspect of movement to that of physical energy, which itself is the necessary basis of the aspect of organic life. The aspect of organic life has an inner connection with that of psychical feeling, the latter refers in its logical anticipation (the feeling of logical correctness or incorrectness) to the analytical-logical aspect. This is in turn connected with the historical, the linguistic, the aspect of social intercourse, the economic, the aesthetic, the jural, the moral aspects and that of faith. In this inter-modal cosmic coherence no single aspect stands by itself; every-one refers within and beyond itself to all the others.

"So popular entertainment and popular morality are not connected to each other in anyway? Popular notions of Evolution aren't connected to anything in culture?"

Huh? Mike, do you really not know that "Nothing is connected to anything else" does not follow from denying "everything is interconnected"?

Logic.

KW, that bit of abstruse prose could surely be written more comprehensibly. That, in fact, is one of the gravest problems with continental philosophy. But I see no argument there for the apparently desired conclusion--that logical thought is somehow not "independent." Is the argument supposed to be that because it's a rational animal (as Aristotle said), a creature with a physical body, doing the thinking, there is no such thing as direct apprehension of a priori truths? The inference is scarcely obvious.

But in any event, it's rather hard to see how we are to conclude from this that we cannot rightly discuss (say) English literature without discussing contemporary U.S. politics. After all, if you make the thesis that everything is interconnected sufficiently grand, it becomes practically pointless. We cannot possibly be obligated to discuss every subject while discussing every other subject, or we could never discuss anything. In other words, the claim that everything is interconnected becomes just an excuse to pull together some _particular_ subjects that one person wants to insist be discussed together and that someone else (like me) wants to keep apart.

I for one would appreciate a specific statement of just what MikeWC objects to in Lydia's post.

In other words, the claim that everything is interconnected becomes just an excuse to pull together some _particular_ subjects that one person wants to insist be discussed together and that someone else (like me) wants to keep apart.

Radical holism - that is, the refusal to think analytically at all - seems to me to be every bit as useless as radical reductionism. (Well, it is useless unless what you would like to do is stop talking and have a beer. Conversation-terminators are quite useful for that purpose).

I'm with Paul: what is the specific beef?

KW, that bit of abstruse prose could surely be written more comprehensibly.

Ha! Now I'd like to post an image of the pot and kettle. It isn't just a problem in continental philosophy.

But back to the point. Will you be answering Bill Luse? I think he's headed in the right direction.

I'm sorry, I just now reading your response above.

I don't recommend dissuading anyone the study of literature apart from contemporary U.S. politics if such a conversation helps understand the subject at hand.

There's a fad now to give us Aristotle and Kant through contemporary musicians, something I think usually ends with a greater satisfaction with the musician than understanding of the philosopher. But if the instructor can pull it off, pupils will have been able to see the light. We know the the real question is, what is the right direction?

In short, I would argue that integrity isn't a matter of being apolitical, per se.

Well, integrity isn't a matter of being apolitical in politics, or on a political blog! I'm _very_ political, myself. But it can be a matter of that in many other contexts.

By the way, I concur with the guys in saying that the real question for Mike is what he dislikes in the main post _besides_ the fact that I obviously don't like continental philosophy (which, by the way, I didn't name in those terms--I used "critical theory" instead).

It's of course no secret that I dislike continental philosophy. But if the continentalists would study their texts and leave the many other disciplines alone, rather than being radical post-modern overturners of "onto-theological bases," I'd leave them alone and just not bother with their texts. Pretty much the way I do with, oh, say, Buddhism or something. And continentalism does come in various shades of pushiness.

Now, the question is not whether we can find some particular continental philosophy text that some people think is saying something true and/or important. The question is what this has to do with conservatism and the integrity of the professions, the politicization of the professions, and so forth. If it _is_ supposed to be negatively related to my position on those subjects, then that's a locus of disagreement in this particular discussion. And then the argument for or against some particular thesis should be made.

Well, integrity isn't a matter of being apolitical in politics, or on a political blog! I'm _very_ political, myself. But it can be a matter of that in many other contexts.

May I suggest, then, to address the integrity of a profession, rather than all of them? One of the remarks I made over at rightreason.com is that the individual professions are more or less politically significant.

The other points were that the logical distinction between political and apolitical is a logical distinction; that the integrity of anything is vouchsafed in part by the culture of the polis; that a disruption of the societal order puts that integrity into jeopardy.

I would also entertain a broader notion of the political to recognize all societal relations, not just those between individual citizen and government. The university, for example, although it seems ravaged by all the causes you've noted, may only be using these as a means for profit in cash and recognition.

KW, what's your thesis and what's your argument? Is your thesis that _every_ profession is at least a little bit political, and that therefore there can be no point in bemoaning the politicization of the professions? Well, I think that's false. Nor does it follow from the claim--which is to some extent correct--that the relevance of politics to different professions may come in degrees. The legitimate relevance of contemporary politics to, say, the proper practice of nuclear physics remains highly questionable, in my opinion. And the same is true to a very great extent of the majority of the most valuable activities around.

Now, if you're going to define "politics" as "anything having to do with people's relations to each other," then that's a different matter. Obviously, the literature teacher shouldn't be nasty to his students nor the physicist to his assistants, and if you're going to say that that's a political proposition, you're welcome to do so, but we'll then be straying from the obviously intended meaning of "political" in the post.

I tried to respond to what you've said about how things get called into question and how this makes things more political than they were before (at least, this was what I took you to be saying) over at Right Reason. But let me say here, again: I do not concede that people can just _make_ something political by getting het up about it or by demanding that you do it or don't do it. The teaching of Milton doesn't suddenly _become_ political just because there are touchy feminists around.

This point reminds me of something the homosexual activists used to do at Vanderbilt University. Every year they would declare a certain day "jeans day," and the posters put up around campus said, "Wear jeans on ____ if you support gay rights." Guess what? They might have thought they could just make it the case that wearing or not wearing jeans was now a political act, but they couldn't.

You impute a thesis to me about every profession, just after I suggest that you address the integrity of one profession, rather than all of them?

No, I asked. You can just say, "No."

I guessed that this might be where you were going from the following facts:

a) You say this: "The individual professions are more or less politically significant." This might be taken to mean that all of the different individual professions have at least some degree of political significance.

b) You seem to think I've erred somewhere, and I'm trying to come up with a thesis that would contradict something I've said, or even would tend to do so.

Why do I not just stick to one profession? Because what I'm saying here applies to so many, because so many of those are important, and because the integrity of so many that should be apolitical is under attack. That's why.

Jeff, sorry to take so long getting back to you. I asked the question because I'm not inclined to listen to a man on any matter who advocates the decriminalization of "all consensual relations between adults and minors below the age of fifteen."

Lydia - Judge Greer didn't seek "clear and convincing evidence" that she would wish to be dehydrated to death, though that was the legal standard.

In fact, Florida State law permits such dehydration with or without 'clear and convincing' evidence, as long as a court-appointed guardian makes the request, and the diagnosis of 'hopeless' has been confirmed by medical authorities.

The state Supreme Court said that it was against the state constitution for the governor to be allowed by law to reinsert a feeding tube, so they struck down Terri's Law which had saved her life. There was nothing in the state constitution that justified this conclusion. They should not, legally should not, have struck down that law.

Actually, since Terri's Law contravened existing state law, it was not at all surprising that the Seven Dwarfs would strike it down. I knew they would, and they did. On a purely positive law basis, they were justified in doing so.

...and since the executive gets to interpret the constitution of his own state...

Maybe you know something I don't, but I've never heard of such a thing. In any case, the root of all evil was not a separation of powers issue, but a section of the Florida statutes that makes it legal to murder severely diabled people. This statute is given the umbrella of federal protection by the existence of Cruzan, which preceded it. That is why, in my previous writings on the subject, I have maintained that a judge of true integrity, on either the state or federal level, would have been one who neither resigned nor recused himself, but who stood up to say that "I find these proceedings repugnant to the laws of God and to any merciful concept of the dignity of human life; and the law of man...which allowed them to go forward to be hereby unconstitutional on the ground that an unjust law is no law at all."

Many, probably most, conservatives have reviled such counsel as 'judicial activism', while I call it a desperate (and probably futile) but upright attempt to return the law to its former condition, one in which innocents find its protection rather than its enmity. I would say the same of abortion law.

Bill, you may have legal info. that I don't have, but here is Judge Greer's own opinion:

http://abstractappeal.com/schiavo/trialctorder02-00.pdf

In it he expressly states that he is summarizing "the controlling legal authority in this area"--he says that it is the Browning case. He then also expressly says, "The Florida Supreme Court established the clear and convincing evidence test as a requirement..."

This point was brought up again and again in the discussions of the legal aspects at the time. The 2nd District Court of Appeals expressly stated and emphasized at length that the wishes that were being carried out were *Terri's own wishes* and that they would be enforced upon _any legal guardian_ she happened to have, given the court findings of "clear and convincing evidence." Legally, the fiction was that, because Judge Greer had established this by "clear and convincing evidence" at the initial court level, she was in essence taking the feeding tube out herself!

Moreover, later state laws can contravene all or parts of earlier state laws, though not state constitutions. Even if there was an earlier state law allowing a guardian to have a feeding tube removed, Terri's Law would then be, in effect, an amendment thereto. The argument by the State Supreme Court was not that it contravened statutory law but rather that it contravened the separation of powers set out in the state constitution by giving too much power to the executive branch! This was absurd. They also argued that, since a court order had been given for her death, the separation of powers somehow required that court orders be set in stone and that no subsequent act of any other branch of the government could contravene the final effectiveness of a court order. There was nothing that said this in the state constitution, and bloggers at the time brought up plenty of obvious counterexamples. The Magnificent Seven simply claimed to get it from the abstract concept of the separation of powers!

As for Cruzan, the only good thing one can find to say about it is that it _permits_ states to have a "clear and convincing evidence" standard, which Florida's Browning decision _claimed_ to uphold. Cruzan was based on the supposed right of people to refuse "treatments" for themselves. We all know that this is a legal fiction, but it does mean that the states are not required by Cruzan to allow somebody else to make the decision _without_ any evidence as to the person's own wishes. The states _may_ require such evidence, and apparently Browning--which Judge Greer called the "controlling legal authority" in Terri's case--did.

What is possible is that a new Florida state law had been passed that loosened this standard between the time of Judge Greer's initial decision and Terri's death. That seems implausible, though, as it seems that Michael would simply have made a new application under the new law. But in any event, the law/precedent that was supposedly being followed in her case supposedly did require clear and convincing evidence that this was her own wish, and that was a keynote of the case from start to finish.

I know, Bill, that you were talking on your own blog about a particular person (I can't recall his name, but I believe he was a priest) who wrote on this subject, and you indicated then that what I was saying reminded you of what he had been saying. My impression from your summary was that he, too, did not regard her murder as having been carried out legally.

As to the executive's having the right to interpret the constitution for himself, that is an area in which I disagree with some other conservatives. The idea that the judiciary branch must and should be the sole and final arbiter of the meaning of the constitution (at the state or federal level) is by no means set in stone, and I think it is legally questionable and the source of many unnecessary evils.

But I have even _more_ bullets in my gun, here: Terri was subpoenaed by the U.S. Congress. A subpoena carries protections. Federal marshalls could and should legally have been sent out to rescue her after the subpoena was issued and Judge Greer continued to order her dehydration. Or try this one on for size: By some minor legal mix-up, there was a period of some three hours after one of Judge Greer's court orders had expired when her dehydration was not ordered by any court order. Governor Bush sent state troopers to rescue her, but on their way they called ahead to the sheriffs' men there to tell them what was up. The sheriffs' men said (as they were by no means legally required to say, since the court order had expired) that they would resist her being taken away! The state troopers backed off. This little-known story was on Yahoo news, not even on some conservative blog. Unfortunately, I didn't save the URL.

The Fl. Supreme Court no doubt erred in its reasoning as to why it struck down Terri's law. What I'm saying is that if it had used a different kind of reasoning, it could still have done so and done so legitimately (under positive law). And the Browning case must have been decided subsequent to the initial legislation, although I don't know why, since the laws on the books were already quite permissive and Browning would seem to be a constriction of that. (I am also quite aware of Bush sending the troopers in, and his subsequent cowardice, so don't worry about the link.)

My impression from your summary was that he, too, [the priest] did not regard her murder as having been carried out legally.

Probably it was not. But it could have been, without all the shenanigans that outrage you. What I am asking you to suppose is that all the particulars of the positive law had been met to any reasonable person's expectations, but that you found the results morally abhorrent; e.g., suppose that Terri had left clear and convincing evidence that she wished someone to pull that tube, and that the legislature had refused to enact Terri's law. My stance is that a judge of integrity would attempt to interrupt the death march by refusing to acknowledge any law or judicial decision that grants to the state (or any of its citizens) a right to murder its subjects. In other words, I still maintain that the root of all evil was a law on the books that upheld the judiciary's apparent indifference to Terri's fate, and all their machinations to achieve that end.

I've never studied, or even read the Florida constitution, but I do think a general principle of republican theory holds that the Executive does indeed have some power of constitutional interpretation. The executive does not possess potential of an almost democratic vindication of justice like the old monarchs, who were idealized as champions of the poor and oppressed, but there is still some sense in which the office entails a bit of authority to shield the vulnerable from wicked law.

So maybe (at least in republican theory) Bill and Terri's savior should, legally, have been the Governor.

Mike is correct: it is imperative that a particular text be discussed. For my part, I suspect that there has been a certain amount of overstatement in this thread. Conservatives have no difficulty in conceding that, for example, J.S. Mill was not a disinterested political philosopher, but one motivated by an antipathy for the Christian civilization that was known to him, whose political thought, to the extent of its reflection in policy, was calculated to subvert that civilization. Some conservatives, at least, have no difficulty in conceding that Locke was not that disinterested political philosopher, assiduously striving for the truth of man's rights, and the nature of political authority, but rather an apologist for the Whig ascendancy, and a whitewasher of the era of the enclosures. More generally, conservatives have no difficulty in perceiving that the moral commitments of their adversaries often shape their productions; it stands to reason that Foucault's moral corruptions influenced his History of Sexuality.

Why this sort of cross-fertilization would not occur in other fields is not exactly clear to me. Any Christian or conservative who has read any Reformed thinkers on culture will have to acknowledge that this type of analysis is a staple of the genre. To be sure, it remains a matter of the textual and historical evidence, but we are not going to be dealing with "The Faerie Queene as Key to the Geopolitical Machinations of Dick Cheney and Paul Wolfowitz". However, are we really going to argue that there is no political content in any of the poems of Yeats, or Eliot, for example?

I believe that I have an intuitive handle on what Lydia objects to, and I find it objectionable myself. But these objectionable forays into pseudo-scholarship violate the boundaries and inherent goods of the disciplines because they mishandle the actual evidence, whatever that may be. Hence, we really ought to discuss a discrete text. Mike?

Bill,

I'll say more later--prob. tomorrow--on the hypothetical case you raise. (I still disagree about the Supreme Court in the real case. Again--one positive statutory law can of course supersede an earlier one.) I'll just say here that _nothing_ I've said precludes major civil disobedience on the part of private citizens. I think all the private citizens involved should have protected Terri--from the doctors and nurses at hospice on down. There's no such thing as a "professional citizen" such that citizenly integrity requires you to obey wicked court orders. And there was no moral requirement for the judges to issue those court orders, nor would there be in any hypothetical. The judge can always quit and go join the protestors.

Paul, when I say that the executive has the right to interpret the state constitution (or federal, if he's the federal executive), I don't actually have in mind anything specific about protecting citizens from wicked laws, though that might arise if the wicked laws were also unconstitutional. What I chiefly have in mind is ignoring court orders and judicial opinions that arise from a twisting of the meaning of the constitution. Again, as I've said above, this alone would make an enormous difference in practice. Suppose, for example, that every President and governor had said of Roe v. Wade, "The court has made its ruling. Let it enforce it." The executives of the states would--knowing Roe to be totally bogus as constitutional interpretation--have gone on arresting abortionists according to the laws on the books in their states. And the federal executives would not have sent in the marshalls to rescue the abortionists from jail. The Supreme court couldn't do a thing about it.

Maximos, I want to emphasize yet again that my thesis here was not, "All continental philosophy is junk." I actually may think that _true_, mind you, but that wasn't what I wanted to defend here. What I'd rather see myself from Mike is a specific _statement_ as to what he thinks I believe about the integrity of the professions that is _incorrect_.

As for your example, well, yes, of course you discuss political issues insofar as that is really *what the text is about*. Heck, Book V of the Faerie Queene is all about 16th Century Englisn politics vis a vis Ireland. (And a darned boring book of the Faerie Queene it is, too!) But explaining that to the students has nothing to do with politicization. Now, if one then went on a rant about how Northern Ireland nowadays _should_ be reunited with Southern Ireland, how the IRA has some good points, and so on and so forth, _that_ would be politicizing.

Thank you, Maximos and Bill.

A discussion of a specific profession or a specific text will help clarify what we are up against.

Bill, I understand your perspective on Foucault, since I have long been aware of that fact concerning his advocacy; in fact, it came up when Foucault was discussed back in my college days. I would anticipate such predilections to have been influential in the composition of The History of Sexuality. I don't know how such manifest depravity could have impacted the treatment of Bentham, though perhaps that is not your point. I do respect the aversion.

Bill,

You ask what I think would be right for a judge to do if all the legal requirements in some case and in some state were really met and someone applied to dehydrate a person to death. Perhaps the even more relevant question is what I think it would be wrong to do. I certainly do _not_ think it would be wrong for the judge to refuse in one way or another to cooperate with the murder of the person. In fact, it seems to me that the obviously right thing would be for the judge either to recuse himself for that one case or, if for some reason that was not an option or that sort of case were likely to come up often, to quit being a judge altogether. And if he wanted to give the speech you suggest as part of his reason, "I refuse to be a party to this because..."--something along those lines--then I think that would be fine, too.

I am never saying that professional integrity requires that one do evil.

So what am I saying would be breach of judicial integrity in that case? I think it would in that scenario be a breach of judicial integrity for him, knowing that this was directly contrary to all the relevant positive law, to issue a court order that the person be protected. In other words, he should not use the power and authority that were given him as a judge in a direct attempt qua judge to contravene the law. That's because I view him as having received that power only on the understanding that he would use it only within the positive law. So it would be a kind of cheating for him to try to issue court orders contrary to it or outside of the authority granted to him by it.

In the case of abortion law, scenarios are harder to come up with, because unfortunately while born people can sue for having been arrested under existing abortion laws, and thus can try to get them overturned, it's harder to think of a scenario where a judge would even have the opportunity to require on behalf of the unborn child that abortion law be stricter. Judges can only rule on the cases before them.

So to give an example that concerns the possibility of striking down an unjust law, I'll use this: Suppose that parents sue their state in federal court over compulsory school attendance laws on the grounds that they have a fundamental right to control the upbringing of their child. In other words, they sue to have these laws struck down and for the declaration of a right to home school. Suppose that I'm a federal judge and that I believe that in fact the laws requiring attendance at public school are indeed very wrong. Unfortunately, there's nothing in federal law or the federal constitution that makes them illegal. What would be contrary to professional integrity would be for me to declare that nonetheless these laws must not be enforced against the parents, that they must be regarded as null, because they contravene the unwritten natural law which gives parents a fundamental right to control their children's education. And it would be contrary to professional integrity for me to order some sort of remedy--the parents must be let out of jail, fines must be refunded to them with interest, etc.--on this basis. Again, this would be using my power qua judge to enforce something that I was not given the power to enforce. It would be going beyond the power I was granted in being given the job, while at the same time trying to use the prestige and authority of the job for a purpose I deem right.

I want to reiterate that none of this says anything against civil disobedience by private citizens in any of these areas.

KW, if you have specific examples of things you think would _not_ be wrongful politicizing that you think I _would_ condemn as such, you're welcome to bring them forward. I've already expressed, on the brief RR thread, dubiousness about the relevance of the oppression of disenfranchised women to the history of characterization in the short story! Of course, again, I haven't read the book in question, but that does I'm afraid sound like the sort of dragging in of politics that I deplore. I'm sorry if this bothers you, but I think it would be more appropriate for you to bring up your own supposed counterexamples to the thesis that politicization of English teaching is a bad thing. For goodness' sake--the politicization of English classes is a byword!

As you see, I am in no way unwilling to address the highly specific issues Bill is raising about professional integrity and politicization in legal theory. In fact, I've thought a lot about them and find them very interesting.

Maximos, re Locke--I've not studied his political writings, and I assume that's what you're referring to, so I can't comment on the "Whig version of history." But if someone starts telling me that he's sneakily advocating the Whig version of history in his discussions of innate ideas, the direct apprehension of the connections between ideas, or nominal essences, I'm going to be very skeptical indeed and feel that this is off-track as far as studying Locke's philosophy.

Lydia,
(I still disagree about the Supreme Court in the real case. Again--one positive statutory law can of course supersede an earlier one.)

Probably you've been over this question with Zippy elsewhere, but do you acknowledge the existence of a natural law that supersedes all positive laws?

Brandon, in one sense I do--that is, in the sense that it's always wrong to break the natural law, and it's always wrong to cooperate materially in the breaking of the natural law. The question conerns whether just because you have the name "judge" for your job it is now your job to enforce the natural law. I contend that this is not the case, that your job named "judge" gives you qua judge only the prerogative to use your power as judge to enforce the positive law. This doesn't mean that you can be obligated by your job to disobey the natural law. It means that your power in that job is not supposed to be used to contravene the positive law in pursuance of the natural law. But if you believe it to be your duty to fight directly for the natural law over the positive law, then you can always quit your job as judge and go and engage in civil disobedience as a private citizen to fight against injustices perpetrated by the enforcement of the positive law. In fact, if everybody did this, horrible laws that require murder and such-like (as in the case of requiring the dehydration of innocents) would never be carried out.

Huh? Mike, do you really not know that "Nothing is connected to anything else" does not follow from denying "everything is interconnected"?

I'm pretty sure my paragraph taken as a whole accounts for this.

KW, that bit of abstruse prose could surely be written more comprehensibly. That, in fact, is one of the gravest problems with continental philosophy.

Dooyeweerd was a reformed Calvinist. Not exactly a German metaphysician.

KW, are you suggesting we read something by Dooyeweerd? His stuff can be pretty hard to find. I know it's not in my university's library.

But in any event, it's rather hard to see how we are to conclude from this that we cannot rightly discuss (say) English literature without discussing contemporary U.S. politics.

Does this commonly happen? Like I said, if your English profs are spending their lecture time making fun of Bushisms, you have my sympathy. It is one thing to waste English class time with political science; it is another to look for the gender or class politics in a particular work.

I for one would appreciate a specific statement of just what MikeWC objects to in Lydia's post.

That "professional integrity" can only be maintained by the endless repetition of traditional scholarship. That any sort of academic work can carry on without discussions of the relationship between power and knowledge without being blind to its own functions. That the attempts to deal with these issues by critical theorists are trivial or pushy or corrupting.

Go back to my original response. I am not arguing that Lydia is wrong. (I.e., I said the discussion could not be settled empirically) I am not attempting to refute her. My first post was an attempt to offer an explanation for why "liberals" can be labeled "conservatives," and from that point I've just been trying to point out the (needless) limitations of "conservative" thought.

The teaching of Milton doesn't suddenly _become_ political just because there are touchy feminists around.

This is a good example of what I'm trying to point out. "Touchy feminists" are just the folks that seek out the implied notions of sex and gender in various cultural forms. Sometimes they even do it with Milton! It's a perfectly legitimate academic pursuit.

Hence, we really ought to discuss a discrete text. Mike?

I'm not sure what a proper text would be. I'm really only capable of speaking off the top of my head about modern or contemporary philosphy; not so much critical theory. Foucault might the obvious choice, especially the first Sexuality book.

The History of Sexuality would probably be a poor selection, for reasons which this comment thread has made plain; we'd end up talking about Foucault's proclivities more than about the methods and claims of critical theory or continental philosophy.

Uh, that would be a failing on the part of the participants.

Opinions may vary, but since this is a worthwhile topic, we'd best come up with a different text.

KW, are you suggesting we read something by Dooyeweerd? His stuff can be pretty hard to find. I know it's not in my university's library.

No, sorry, not as a base text. The citation was only there to address the contemporary problem of the autonomy of ideas and actions.

Chaps, I've been trying to find a way of implying this without coming out and saying it, but...

I have no intention of heading off to the library and checking out a piece of postmodernism or continental philosophy in order to continue interacting on this thread. I did my time with that stuff back in grad school and have no duty to do so anymore.

Instead, I'll try to do some responding to Mike's perspective and also continue giving Mike the opportunity of saying more this way:

1) He objects to what he takes to be my implication that "any sort of academic work can carry on without discussions of the relationship between power and knowledge without being blind to its own functions."

2) "This is a good example of what I'm trying to point out. 'Touchy feminists' are just the folks that seek out the implied notions of sex and gender in various cultural forms. Sometimes they even do it with Milton! It's a perfectly legitimate academic pursuit."

Ad #1: Yes, actually, plenty of academic work can carry on very well without discussions of the relationship between power and knowledge. And should. It really _isn't_ all about power, and the idea that there are these "power structures" that somehow are so important to dig up hiding behind every discipline is a major part of the problem in the academy today. So Mike and I disagree here. If he would like to provide an _argument_ that there are _no_ areas of academic work that cannot carry on well without "discussions of the relationship between knowledge and power," I invite him to offer such an argument.

Ad #2: Milton's notions of sex and gender (I have _Paradise Lost_ in mind) aren't implied. They're stated. Very clearly. It doesn't take a brain surgeon or a critical theorist to tease them out of some deep Freudian hiding place. The problem is with treating them a) as the most important part of the work, b) as pervasive in parts of the work that are clearly about some entirely different subject, and c) as chiefly important insofar as they relate to modern feminist ideas of what the relations of men and women should be. This last, indeed, is one of the most tiresome aspects of feminist approaches to literature--the endless implication that someone is either _bad_ because he advocates or somehow gives aid and comfort to traditional notions of gender roles or is _good_ because (appearances to the contrary notwithstanding), he is subtly, ironically, challenging traditional gender ideas. Very few things get more boring more quickly, even (perhaps especially) when they aren't stated nearly as clearly as that but are all bound up in jargon about "power structures," "hegemony," "hierarchies,"
"discourses," "metanarratives," and all the rest of the jazz. And such things certainly are not legitimate academic pursuits.

Opinions may vary, but since this is a worthwhile topic, we'd best come up with a different text.

Alain Badiou's Infinite Thought has some good essays on how philosophy interacts with art, science, politics and love. It doesn't quite fit what we've been speaking of here, though. Do you have a suggestion?

If you're not up for it, Lydia, that's fine. I just think that from this point, we're all just going to be repeating ourselves. All we've really been able to talk about so far is our vague perceptions of what goes on in the academy; my suggestion about choosing a book would help us anchor the discussion in something that we can actually point to.

I might have been unclear in my previous post, so I'll restate a few things.

If he would like to provide an _argument_ that there are _no_ areas of academic work that cannot carry on well without "discussions of the relationship between knowledge and power," I invite him to offer such an argument.

I didn't say they couldn't "carry on well," right? I said that they'd be blind to certain ontological concerns.

Power isn't coercion or manipulation, it's a productive force. A shaping force. It opens up and closes off possibilities. Defined in this way, yes, power is everywhere.

I only mentioned Milton because you did first; I assumed it was a random example on your part. It only functions as an arbitrary example in my post. Sorry if that wasn't clear.

Very few things get more boring more quickly, even (perhaps especially) when they aren't stated nearly as clearly as that but are all bound up in jargon about "power structures," "hegemony," "hierarchies," "discourses," "metanarratives," and all the rest of the jazz.

There's a difference between a lack of interest in a particular field and knocking stuff you don't really understand. I don't mean to sound elitist here. I have no knowledge of and no urge to study analytic philosophy, so it is a topic I stay silent on. Do you know what onto-theology is? If not, why use the phrase in such a contemptuous way?

The question conerns whether just because you have the name "judge" for your job it is now your job to enforce the natural law.

It seems that you consider the role of "judge" to be a positively-defined role, instead of being a naturally-defined role?

Brandon,

Yes, that's right. I consider judgeship to be a role in the specific system of law that actually obtains at a place or time. I don't think of being a judge as something like "being a mother." If it were the latter it wd. be more like "being a just ruler." But the trouble is that a just ruler can take different forms depending on the form of government. It's one thing to be a just ruler as a king, another as a common-law judge in England in the 1500's (there, actually, a representative of the king), and another still to be a state or federal supreme court judge in the United States. In fact, I'd argue that the last of these _isn't_ a direct and personal ruler.

MikeWC,

You summarize your objection to Lydia's original post in these words:

That any sort of academic work can carry on without discussions of the relationship between power and knowledge without being blind to its own functions. That the attempts to deal with these issues by critical theorists are trivial or pushy or corrupting.

The warped definition of "power" you give in your last post is an example of the way that continental thought systematically distorts whatever it touches. A good exercise, if you're up for it, is to try to restate something like

"Power isn't coercion or manipulation, it's a productive force. A shaping force. It opens up and closes off possibilities"

in a form that is absolutely stripped of jargon and explain it clearly. One gets you ten that this cannot be done without the resulting statement suffering from one of three problems: (1) No reasonable person can see how it could be what was intended by the original statement, (2) it is manifestly false, or (3) it is trivial.

In my grad student days, surrounded by continental philosophers on every side, I repeatedly challenged people to try to restate their oracular pronouncements, to explain what they mean. Probably the most honest answer I got during the whole period was from a fellow student who, when challenged to do this with a piece of Heidegger that he was quoting, paused, then said, "I don't know ... but it's really profound!"

Hey! I'll make this easier for you. You don't have to do the restatement on a piece of Lyotard or Deluze: you can just do it with this piece of writing from a recent post at your own blog:

The final aspect of being in is discourse. This isn’t language - it is the ontological condition of language. That which is disclosed by attunement and understanding is articulated by discourse. Discourse is a shared event; the listener understands the speaker because they are articulating meaning that is already there. Spoken disclosure is to share what is disclosed.

It’s already been said that Da-sein is dispersed into the they and thrown into possibilities. Da-sein is thrown into the they. The they has its own modes of understanding and interpretation. These are idle talk, curiosity and ambiguity.

There's lots of jargon, I know. There are two things that need to be kept in mind, though; philosophers have been developing new, jargony vocabularies going all the way back to Plato. We're all used to reading Plato and Aristotle, and our culture is steeped in their ways of thinking.

But when they first started writing? When Plato was busting open a whole new kind of metaphysics, an entirely new language for speaking about the world? See Aristophanes The Clouds. Socrates spoke blather in the eyes of many people.

The portion you've quoted was from an oral assignment - I had to boil down the first half of Being and Time into a one hour lecture. When I began speaking, I said that Being and Time was not structured in a traditional way, i.e. concept A leads to concept B leads to concept C. I argued that it was more of a spiral. I drew a spiral on the blackboard, and then erased the right hand side of it. I did that to show the inevitable inadequacy of my presentation; I was only going to be able to speak about half the spiral, and so it would inevitably sound incomplete.

What you want me to do is break down the spiral into small pieces and analyze them. Give a definition for "discourse" and "attunement" and turn it all into a series of formulas. That sort of thing is like taking a small piece of a spiral on its own; it would just look like a curved line and would lose its whole significance.

That being said, friends and family members ask about what I study all the time and I have to find a way to articulate it to them. I want to be able to talk about my studies with them, so I find a way. However, I don't start in the middle of the story. I start on the outside of the spiral and work my way in. Still artificial, but not impossible.

In other words, don't start with part 4 or 5. Start at the beginning, and when you don't understand something, ask a question then.

Brandon:
...the existence of a natural law that supersedes all positive laws?

I would prefer to say "a natural law which provides the basis for all positive law".

I don't think that "judge" is or even can be a strictly positively-defined role. A judge's role is to interpret and apply; interpretation and application are natural functions of reason. The very notion of a judge as a strictly and solely positively defined role is self-contradictory, in that it excludes the very possibility of the role - interpretation and application of the law (or anything else) using reason - in its premeses.

Weird thought experiment, Zippy: (It's a little late. I hope this isn't just obscuring.)

Suppose that you are bilingual and that you have in front of you a manual of military protocols written in language A, which you speak. (I have no idea whether such manuals actually exist. This is made up.) It includes all sorts of policies that soldiers are to carry out in various scenarios. You meet a guy who speaks only language B, which you also speak, and who is studying military strategies and protocols. He asks you (or hires you) to sit with him and read aloud from this manual, translating it into his language as you go along and explaining to him further the parts that he doesn't understand when they refer to military situations, equipment, and such, with which he isn't familiar. You're also an expert in that sort of stuff.

Suppose you come to a part of the book where it gives as a protocol a directive to shoot down a civilian aircraft in a situation like the one we discussed on the other thread, or directs soldiers to do something else manifestly wrong.

Do you refuse to translate that part? If you do so, are you carrying out your role _as translator_, or are you just refusing to carry out that role? Would it be okay for you to leave that part out and not tell him, or even to pretend to translate it but to put something else in instead? And in particular, is it really part of your job _as translator and explainer_ to tell him that ethically this is wrong? It may certainly be part of your job as one human being speaking to another, but it isn't true (IMO) that you somehow aren't able to do your translator's job at all if you just translate and explain and say nothing about the wrongness of what it's directing.

In other words, the translator's job per se really is just positively defined. It may be perfectly okay for you to discuss the ethical issues with him, it may even be something you should do, but it isn't _part of your job_.

In other words, just because a job involves language and explication, it doesn't follow that the job, narrowly and specifically defined, can't be purely positively defined.

In other words, just because a job involves language and explication, it doesn't follow that the job, narrowly and specifically defined, can't be purely positively defined.

That is possible, though I am sure debatable: if translation can be purely positively defined then the day will come when a computer will do it perfectly. There are a great many opinions, at present, about the plausibility of such an eventuality.

But in any event the job of a judge is not merely and strictly to express explicitly in one language what is explicitly stated in another. So even if it is possible for some roles to be strictly positively defined, it isn't possible for the role of judge to be strictly positively defined.

Power isn't coercion or manipulation, it's a productive force. A shaping force. It opens up and closes off possibilities. Defined in this way, yes, power is everywhere.

If power is simply whatever opens up and closes off possibilities everywhere then haven't we reduced our discourse on power to idle talk?

If power is simply whatever opens up and closes off possibilities everywhere then haven't we reduced our discourse on power to idle talk?

Umm... are you saying that definition is a tautology? I don't understand.

"If translation can be purely positively defined then the day will come when a computer will do it perfectly."

I don't think that's true. Consider teaching: You can define positively the job of teaching someone to swim, but it's highly implausible that a computer will ever be the perfect swimming teacher.

Similarly, if you are a lawyer and someone hires you to explain to him *what the positive law is* on end-of-life issues in your state, this job is positively defined, whether the laws of the state are good or evil. And it's highly plausible that a computer couldn't do nearly as good a job as a human being can at making the man understand what the laws say, and certainly his understanding is itself something no computer could do, but this doesn't mean that if the law on dehydration is just like the one Bill described above it somehow ceases to exist or cannot be understood or explained because it is contrary to the natural law. It _is_ contrary to the natural law, but it's perfectly possible to understand something like, "If a person's diagnosis of 'hopeless' is confirmed by such-and-such many doctors, and if the guardian applies to have the person dehydrated to death, then it must be allowed." So conformity to the natural law isn't the condition for the possibility of that bit of positive law. It could be in place and a bunch of people could a) comprehend it and b) follow it, even though it is wrong.

You can define positively the job of teaching someone to swim, but it's highly implausible that a computer will ever be the perfect swimming teacher.

So nature is completely excluded from the process? I have a feeling that "positively defined" isn't positively defined in this discussion.

I have the same surreal experience when trying to take either positivist assertions or postmodern assertions seriously. As Tim described it above, when one takes the proposition seriously and attempts to explain it in a way free of jargon, "...this cannot be done without the resulting statement suffering from one of three problems: (1) No reasonable person can see how it could be what was intended by the original statement, (2) it is manifestly false, or (3) it is trivial."

One cannot explain what the positive law is without presupposing, either explicitly or implicitly, the natural law upon which it rests. This applies even when the positive law is "sick": you can't even describe cancer unless you have started with presupposed understandings of what it means to be healthy.

It _is_ contrary to the natural law, but it's perfectly possible to understand something like, "If a person's diagnosis of 'hopeless' is confirmed by such-and-such many doctors, and if the guardian applies to have the person dehydrated to death, then it must be allowed."

No it isn't. Because as a matter of fact it musn't be allowed. Laws make "ought" statements, and a statement that something which in fact ought not be done ought to be done is self-contradictory. It may look rational, but it isn't. Plenty of assertions look perfectly rational but in fact are not.

I don't understand.

That is sort of odd, because I tried to read through the parts on your web site and respond using the terminology you defined. It seems to me that you describe the discursive category - idle talk - into which your concept of "power" fits perfectly when you said:

...but the mark of idle talk is that it does not go back to the original disclosure. It is discourse that only offers the most average, levelled down understanding. It’s almost like speaking for the sake of speaking; it has no relation to the being being spoken of. It’s like gossip, or “passing the word alone.” Because idle talk offers a leveled down understanding, it can understand everything. Quantum physics? No problem. I watched What the bleep do we know. Chaos theory? No problem. I watched Jurassic Park. It’s not about deception... it’s just rootless talk.

There's nothing about that definition of power that is more or less idle chatter than anything else in this thread.

Lydia: on a certain level even most false and irrational statements are "understandable". The statement "2 + 2 = 5" is understandable in this way. But what ought or ought not be done is a question of fact. No positive assertion can make it the case that X ought to be done when in fact X ought not be done.

What if you take "must" to mean simply "is ordered to"? When Cheney told them to shoot down the plane, he had of course decided that it was not morally wrong to do so. But the order was an imperative: "Shoot down the plane." I can unjustly order that one of my kids go without dessert when she hasn't actually done anything wrong. I'm doing something wrong, but the statement, "You get no dessert tonight" is perfectly meaningful, though I shouldn't make it. Everyone understands that if my will is done in that case, the child _won't_ get any dessert. Similarly, if a legislature writes a positive law like that, and the legislature's will is carried out in the concrete case, the person will have water withdrawn and will die. It's not like we can't understand what it means just because it's an evil command.

I don't _think_ I'm using any jargon here. I'm just saying that I think we can all understand what is meant by the text of a wrongful law. We know what is meant by that law Bill described, and this is evident because we know what will happen if the will of the legislature is carried out. We can picture it, describe it, and we can even do it (though we shouldn't). If it couldn't be understood, how could it be either obeyed or criticized?

Now, you may say that this is trivial. I might even agree. But I'm only emphasizing something so apparently trivial because you have seemed to deny it a couple of different times, in statements to the effect that, e.g., the natural law is the condition for the possibility of the positive law. There's an ordinary, even a trivial, sense in which that isn't true. You can have all sorts of positive laws, good, bad, and ugly, and even if they contradict the natural law, people can still comprehend the words of the law-maker(s) when they order that such-and-such be done in such-and-such a situation. People can then either obey it, enforce it, or defy it in one way or another.

"No positive assertion can make it the case that X ought to be done when in fact X ought not be done."

I completely agree. We're at one entirely on that. Then the question is just how you go about fighting it.

There's nothing about that definition of power that is more or less idle chatter than anything else in this thread.

Sure there is. For one thing, there is no reference in that definition of power to any person with authority - legitimate or otherwise - making a choice. Leaving that out "flattens" the definition to encompass pretty much anything at all which isolates one region of universal phase space from another. Any time a category of any sort arises, that is by definition an exercise of "power". At least as far as I can tell. The definition of power encompasses everything; therefore it says nothing. Idle talk, at least as I (admittedly cursorily) read the modes of discourse of "the they".

There are a number of things for a metaphysical realist like myself to like at your site, don't get me wrong. For example: "Discourse is a shared event; the listener understands the speaker because they are articulating meaning that is already there. Spoken disclosure is to share what is disclosed."

Language ain't reality. But the way you are using the term "power", as far as I can tell, is without reference to the reality that I understand power to be. That is - again only if I am reading you correctly - the very definition of idle talk.

What if you take "must" to mean simply "is ordered to"?

It doesn't mean that though, unless we conflate false orders - orders which must be disobeyed - with true ones which must be obeyed. The legislature might will two plus two to equal five, and we can even understand - in a sense - what the legislature is attempting to will. But that willing doesn't make it so: it doesn't make it the case that X ought to be done, or that two plus two is five.

I agree with Jim Kalb's observation that the reason leftists think that the integrity of the professions is "conservative" is because of antiessentialism. And legal positivism is an antiessentialist view of the role of judge: a view of the judge as simply an instrument of the will of the legislature with no essence qua judge of his own.

Even if such a view is coherent - stipulated to reduce the level of argument - that view is not the only possible view, and indeed is a bizarre modern view very much out of step with the tradition of Western Christendom.

I don't think the legislature is so much willing that 2 + 2 = 5 (e.g. that it is right to do something that it's wrong to do) so much as willing that we _act_ as if something is right to do that is actually wrong. Which just means it's willing that, under such-and-such circumstances, you do such-and-such.

Now, that's a possible state of affairs--that is, it isn't nonsense or meaningless that people should carry out those acts under those circumstances. Unfortunately, really, because if it were logically impossible, we wouldn't have to worry about it! It would never happen!

I'm quite willing to admit that I have an anti-essentialist view of the role of a judge. Just like I have an anti-essentialist view of the role of an auto mechanic or any other garden-variety job. That was what I meant when I told Branden that I don't take "being a judge" to be like as "being a mother."

And I think one reason that this _is_ a coherent view is because it's perfectly legitimate (and probably even correct as far as what the legislature intends and is understood to be doing) to take positive laws to be declarations of will--imperatives, in other words. Now, they can indeed be evil or good commands. But what they are commanding us to do is comprehensible even if the command is evil.

I think that the reason a purely positively defined role for a judge is relatively new historically is because of the gradual diminution of common law, the development of the concept of the separation of powers, and the reduction of the role of judge as "just ruler"--as a direct, personal ruler or "wise man of the village," so to speak.

There still are areas of law where judges are expected to act in this way. In fact, I'm still trying to find out what all of those are. Some people tell me one thing, some another. One I do know about is family law, where judges decide what custody decisions are "in the best interests" of the children. But I would argue that the judge knows when he is working in an area like that and when he isn't. It would, for example, be perfectly possible for the _positive_ law regarding end-of-life care to designate that the court will decide whether withdrawal of nutrition and hydration is "in the person's best interests." In that case, I would have no problem whatsoever with a given judge's never allowing anyone's feeding tube to be withdrawn and ordering protection for threatened people, etc. I would applaud it, in fact. Then he would be acting directly within his granted powers of discretion.

But Bill asked me to imagine a case where the positive law didn't allow the judge any such wiggle room, where it was very cut and dried, and where the application to the case in question was also cut and dried. My position is that in that case authority has been withheld from the judge to act as "wise man" or "personal ruler." His job as judge is simply applying the positive law to the case at hand.

Or not. If he believes that doing so would be an act of material cooperation with evil, then he should refuse to issue the relevant orders. Whether that would involve stepping down altogether or merely recusing himself from that case, I don't know. I don't know all the ins and outs of recusing vs. quitting.

But I do know that he would not be acting as a judge in refusing to cooperate. He would be _refusing_ to act as a judge.

I'm quite willing to admit that I have an anti-essentialist view of the role of a judge. Just like I have an anti-essentialist view of the role of an auto mechanic or any other garden-variety job.

We definitely disagree. I think than no role - neither judge, mechanic, nor gardner - carries with it a license to violate the laws of nature. Sure, orders can be given which violate the laws of nature. The mechanic can be ordered to fix the unfixable. But it is all the same: comprehensibility of a counterfactual proposition doesn't transform it into a factual proposition. Being ordered to do something wrong doesn't - literally can't - create an actual obligation to do wrong.

But I do know that he would not be acting as a judge in refusing to cooperate. He would be _refusing_ to act as a judge.

Well, he is refusing to act as judge[prime], which is a new term that legal positivists are using, utterly distinct from the role of judge as traditionally understood in Christendom. "Judge" to a legal positivist is like "power" to a postmodern: it is just what he says it is, nothing more, nothing less.

"Being ordered to do something wrong doesn't - literally can't - create an actual obligation to do wrong."

I've already agreed with this heartily. I agree again, equally heartily.

"'Judge' to a legal positivist is like 'power' to a postmodern: it is just what he says it is, nothing more, nothing less."

At least when I use a word in a way different from the way someone else is using it, I can explain clearly how I'm using it. You may think it's a weird usage, but I _think_ I've made it comprehensible.

Zippy,
I would prefer to say "a natural law which provides the basis for all positive law".

Well, okay, but by "provides the basis for", I would mean that when the positive law provides a contradiction to the natural law, the natural law takes precedence. Which is what I meant by "supersedes".

Lydia,

I don't think that "teacher" is a positively defined role. I don't think you do either, with as much as you support homeschooling... If the concept of "teacher" were something that you could positively define, then all you would need to do would be to find a school system (e.g., parochial) that defined the role to your liking and then send your kids there. But since the natural role of parent is the primary basis for the natural role of teacher, then homeschooling makes sense, even if there are good parochial/private schools in your geographical location.

This isn't said well, but I find myself rhetorically out of my league on this 'blog, so my best efforts can't compare to what you guys churn out all the time.

Brandon, I didn't mean that "teacher" of _anything_ can be positively defined. I was just trying to counter-example Zippy's apparent claim that if a computer can't do it, it can't be positively defined. So I thought of the example of a teacher of a skill. A computer can't teach a skill, but when I hire somebody to teach my kid to swim, I'm not hiring him (or her, usually) to teach my kid the natural law!

I want to add that as a prudential and practical matter I actually think it's _good_ for judges to be bound by positive law. In the end of life situation what I'd prefer is a positive law that you can't dehydrate people to death, with no judicial discretion. I don't _want_ to turn that over to a judge to decide on a case by case basis. We keep imagining here a situation where the positive law is bad and the judge is good. More often it happens the other way around. And in any event, there are more legislators that have to agree to a positive law than just one (as in the case where a judge decides) so one can hope that this will provide a system of checks and balances and make it harder to pass evil laws.

I was just trying to counter-example Zippy's apparent claim that if a computer can't do it, it can't be positively defined.

I guess I didn't get that the first time through. That counterexample seems to be contingent upon the limitations of current computers though. If a task can be positively defined then a robot can at least in principle do it: doing a positively-defined task is merely a matter of carrying out the explicitly stated will of some programmer (legislature). And that, as far as I can tell, is how Lydia sees the role of judge[prime]: not as interpreting what enforceable legal obligations apply to particular cases, but as mindlessly carrying out the explicit will of the legislature, whatever that will happens to be.

Brandon: the reason I find that language awkward is that saying that the natural law supersedes positive law is like saying that mathematics supersedes accounting rules. It is true in a way, but backwards. If the FASB attempted to assert an accounting rule which violates mathematical laws, it isn't that the mathematical laws would supersede the FASB rule: it is that the FASB would be spouting nonsense, because accounting rules are grounded in mathematics. When the legislature attempts to make a positive rule which violates the natural law, it is spouting nonsense, because the rule so created does not in fact assert an actual moral obligation (it can't, by definition). Legal positivism - because it views the judge as a mindless robot the purpose of which is to carry out the plenary will of the legislature (or constitutional framers, or whomever) would have the judge/accountant ignore the fact that a nonsensical instruction has been given and proceed mindlessly through whatever formal procedures result from the self-contradiction: follow whatever local orbit happens to obtain. So when the accounting procedure results in transferring an infinite amount of money into my bank account the accountant should just go with it: don't question the math.

Lydia,

See, I think that one of the problems with the mass-education system is that too many people think that teaching can be positively defined, so that if you have the magic worksheet, or the magic standardized test, then all kids can learn the skill. In reality, I don't think that even teaching someone to swim (or any other skill) can be positively defined, because of the necessity of personalizing the lesson for each individual student. Not to say that there's some sort of natural concept of "swimming coach", but that there is a natural concept of "teacher" which can be applied to any skill/knowledge.

In the end of life situation what I'd prefer is a positive law that you can't dehydrate people to death, with no judicial discretion.

But in the absence of that positive law, or in the face of a positive law that defines an unborn child as a non-human, or the positive law that defines a black man as 3/5ths of the humanity of a white man, those positive laws are -- at least the way I understand Zippy -- not laws at all. Just like if Congress passes a law that says baseballs must fall upwards on Tuesdays. (It seems that is a children's book with a king who did something similar, but the specifics of the story escapes me at the moment). So the judge for a case where someone threw a baseball it fell would not be doing his job as a judge by recusing himself from the case, because that particular law is not a valid law.

I wrote:

So when the accounting procedure results in transferring an infinite amount of money into my bank account the accountant should just go with it: don't question the math.

In fairness to Lydia, this isn't quite what she says. What she says is that when the accountant (assuming that the job of accountant is positively defined) refuses to go along with the mathematics-violating rules of the FASB - which he may well have to do - he is no longer acting -qua- accountant, but as a private citizen. Mathematical consistency of the work is not a part of the integrity of the profession of accountant.

I disagree. In fact I think the integrity of the professions is inextricably bound up with the epistemic foundations of those professions; that anti-essentialism with respect to professions is to reduce professionalism to a matter of following a robotic program to carry out the arbitrary will of some rule-making programmer(s). The integrity of the professions is a human integrity; a human integrity which cannot be reduced to robotics.

That isn't to say that there are no useful tasks which can be performed by robots. But the professionalism-qua-professionalism, the professional integrity of the endeavor in any task of that sort - if there is any - does not subsist in the robot. Positivism empties all integrity from a profession, it doesn't preserve professional integrity.

doing a positively-defined task is merely a matter of carrying out the explicitly stated will of some programmer (legislature).

I think Kubrick and Clarke showed us how well that can work.

the reason I find that language awkward is that saying that the natural law supersedes positive law is like saying that mathematics supersedes accounting rules.

Yeah, your way of saying it does make more sense. Like I said, I'm rhetorically way out of my league when I post here.

Doh! "Kubrick and Clarke" was supposed to link to: http://www.imdb.com/title/tt0062622/

I'm rhetorically way out of my league when I post here.

Not too bad. Strunk & White says leaving off with double negatives has you in a good league. Besides, you make an excellent point about the nuance of being a teacher. I like A. J. Knock's description: it's "something between Amos and the Almighty." What is positively defined is only one side of the coin. As St. Paul astutely observed, the letter kills, the spirit gives life.

Our job is to see through the letter, through the law, and even through the natural law.

I should address this point:

At least when I use a word in a way different from the way someone else is using it, I can explain clearly how I'm using it. You may think it's a weird usage, but I _think_ I've made it comprehensible.

I think Mike's use of the term "power" is a weird usage, but it isn't incomprehensible. It just doesn't have any clear relation to the reality that I attach to the word "power", just as the function you refer to as "judge" has no clear relation to the reality I understand the interpretation and application of the law to particular cases to be. His notion of power leaves off the essential fact that power is an exercise of the will by some particular authority, for example; so while "power" to him carries some surface resemblance to power (after all, power does close off certain possibilities in favor of others) it isn't power. Your notion of judging leaves off the essential fact that every judgement in law is a judgement that a certain act ought to be carried out; so while "judge" for you carries some resemblance to the profession of judge (after all, it does involve actual decisions carried out in courtrooms) it isn't the profession of judge. I think that his attempt to leave off the exercise of the will of some authority in his notion of "power" results in an incorect use of the term: he ought not use the term "power" since power is not his true referent. I think that your attempt to leave off the oughtness of prescriptions of positive law - every prescription of positive law without exception - results in a similarly (objectively) confused understanding of what a judge is.

He seems to have disengaged from this discussion, but at present I am under the impression that I understood him perfectly. From my perspective at least it doesn't appear to be a matter of not understanding what I view to be incorrect usage of terms: I think I understand, and I think the terms are used incorrectly.

Zippy, I don't think non-standard but well-defined term usage is by any means the central problem with post-modernism, but I won't go there right now. In any event, the role of judges is an extremely live issue in the U.S. right now, and my usage is actually not something I invented out of my own head. Conservatives have been deploring "legislating from the bench" for a generation now, or more. In fact, there are plenty of people who would disagree with me on the other side, holding that "the rule of law" is this sacred thing such that everybody _does_ have to obey and enforce an unjust law, no matter how bad it is. At least I'm taking a clear stand that nobody can be obligated to do wrong by force of law.

Now, let's look at what we agree about: We agree that you literally can't make someone obligated to do something wrong by putting it into a law. To my mind, _that's_ the truth in the saying that an unjust law is no law. It's a way of saying that an unjust law doesn't carry normative force. With that I agree.

The problem comes when we try to go farther and say that an unjust law is strictly speaking *unreal*. Now literally speaking, this is obviously false. It exists physically in the form of words in a book. But more importantly, it is real in the sense that the states of affairs it orders *can come about* and that once it has been passed it really is part of the legal system of that country or state that people are being ordered to make such a state of affairs come about under those circumstances. I'm being given analogies here to making it the case that 2 + 2 = 5, fixing the unfixable, or transferring infinite amounts of money. But these analogies just don't work. Telling somebody, "Kill an innocent person" isn't literally like telling somebody, "Fix the unfixable" or "Transfer an infinite amount of money to a bank account," because it *isn't impossible* to kill an innocent person. It's _wrong_, but it isn't impossible! People do it all the time. They shouldn't, but they do. The state of affairs that an unjust law or an evil command tells you to bring about isn't an impossible state of affairs. It's just one you shouldn't bring about.

The difference of opinion, again, is that I think you guys want to treat a judge as somebody who is supposed to "make the good stuff happen" and "stop the bad stuff." Now, practically speaking, I think you actually wouldn't like a country that was run directly by individual judges, especially if they are unelected, going around acting as small personal rulers in your counties and telling everybody to do the things they think right and not do the things they think wrong, with their power unlimited by the declarations of positive law. That would be pretty much the end of democracy. Judges would then be small local potentates or "village rulers."

But suddenly when we imagine a really _bad_ positive law, it isn't sufficient for you guys to agree with me as far as we do agree--namely, that the judge shouldn't be a party to its being carried out. No, you want it to go farther. Now, suddenly, you imagine that the judge is _good_ and that he's supposed to start being a local personal ruler and is supposed to enact the good and stop the bad. But why does he just suddenly get to assume this power at that moment if most of the time he's doing that stuff you deride as "mechanical" and enforcing the positive law? Well, because _this_ time the law is really _bad_.

Now, we could just leave it at that: You think that when the law is really bad, the judge should order the sheriff's men go out and protect people from it, and he should hope they'll listen to him because he's the judge. Sort of a game of bluff. (Because if they realize that he's going outside his legally granted authority, they may start worrying that he's really not authorized to tell them to do this and that they might get in trouble.) I don't think he should try to use his power as judge that way. End of discussion.

But if you want to _argue_ that he should do this on the grounds that an unjust law can't exist, then I feel bound to point out to you that an unjust law _can_ exist and that your analogies are faulty.

Now, on what I mean by a role's being "positively defined": I don't mean that it's something a robot can do. I don't mean that it's mechanical. What I meant when I said "yes" to that question of Brandon's is just that I believe the role of a judge is defined by the manmade "rules of the game" that obtain in the particular legal system he's part of, rather than being defined by nature or by God. That doesn't mean he should or may morally go _against_ nature or God in his positive actions. It just means that the positive powers he has qua judge, the power to order people about, to order remedies, or (on the supreme court) to strike down laws as unconstitutional, is defned by the set-up in a given society. The analogy to an auto mechanic would be that he's not supposed to do work on my car that I don't authorize. If he finds something further that he thinks needs to be done beyond what we already discussed, he's supposed to phone me up, give me an estimate, and get my agreement. His _power_, his _authority in the job_, is given by a set of human agreements. If I came and found that he'd taken my whole car apart and was going to charge me for it, without my consent, I'd be furious. And it wouldn't help for him to say, "But it's part of my divinely ordained role as auto mechanic that I'm supposed to do whatever your car _really needs_."

Some jobs aren't like that. My job as mother was given to me by God and nature when I became pregnant, and its duties and power also flow naturally from the mother-child relationship that arises in the natural course of things and that can be seen by the natural light. The same with fatherhood. And there can even be mixtures--jobs that are partly naturally defined and partly positively defined. Even the job of judge, as I've pointed out, has areas in which, by positive law and/or long custom, the judge is understood and expected to decide what is in someone's best interests. And what _is_ in the person's best interests will obviously take us straight to matters of nature and ethics. But, again, I was asked to give my opinion on a case where the positive law had expressly taken that sort of decision out of a judge's hands.

Telling somebody, "Kill an innocent person" isn't literally like telling somebody, "Fix the unfixable" or "Transfer an infinite amount of money to a bank account," because it *isn't impossible* to kill an innocent person.

Right. But laws are not assertions of that sort. A law's existence as a law is its normative force. If it has no normative force then it isn't really a law; it merely pretends to lawfulness.

An unjust law can have "existence" of a sort just as a false mathematical proposition can have existence. And when people treat falsehoods as if they were true, that does indeed have consequences. But a law which actually carries normative force is a different animal from a falsehood with no normative force.

But why does he just suddenly get to assume this power at that moment if most of the time he's doing that stuff you deride as "mechanical" and enforcing the positive law?

I don't buy in the first place the premise that enforcing the positive law is a mechanical process. Human judgement pretty much always comes into play, or "always enough" that the notion of there being any such thing as a judge without judgement doesn't make any sense.

It just means that the positive powers he has qua judge, the power to order people about, to order remedies, or (on the supreme court) to strike down laws as unconstitutional, is defned by the set-up in a given society.

I agree with this as long as "the set-up in a given society" presupposes the natural law upon which all of its normative force rests, and without which it has no normative force.

I do understand the practical concern of putting too much power into the hands of judges. A great deal of mischief has been worked in Western society by adopting false solutions to the problem of too much (perceived or actual) power in the hands of some particular persons. One remedy - we've discussed this before - would be to limit the judge's decision authority to the actual particular cases he decides. But pretending that the positive law is something that it isn't - pretending that it exists in some normative sense, any normative sense at all, as a thing autonomous from the natural law - isn't an acceptable solution, because a lie is never an acceptable substitute for the truth. And the way I understand the law - what the law is in its essence, independent of what anyone would like to think that it is - renders legal positivism a simple falsehood.

Suppose Roe v. Wade is overturned and your state passes a very strong abortion law, also very clear and straightforward, that makes it illegal for the entirety of pregnancy. And suppose a pregnant woman gets together with an abortionist and brings suit against the state saying that it violates the natural law on which the authority of the state's positive law is based for her to be prohibited from "controlling her own body." Hence, she argues, the abortion law of the state is unjust and is no law at all. Suppose she finds a judge to agree with her, and that the remedy he orders, which we'll say is just for that one particular case, is that no one shall interfere with the child's being killed, the prosecutor may not prosecute the abortionist for that abortion under the state law.

Now, you know that at this point that judge's domain is going to become a sort of "abortion safe haven." As many abortionists as can squeeze into that town will squeeze, and he'll just rule, case after case, that the abortion must be allowed to go through. And let's suppose for the sake of the illustration that, if the attorney general does try to ignore him and prosecute, the criminal trial would be held in his jurisdiction, too, because that's where the crime will have taken place, and he'll just throw out the case each time, case by case.

Do we say about that _simply_ that it's wrong to do because his perception of the natural law is totally wrong? I mean, obviously, that's true. But don't we _also_ want to say that there is a procedural problem, because he isn't just supposed to be defying the perfectly clear positive law and using his power as a judge to shield people from prosecution?

Would we try to get him thrown out as judge merely because his perception of the natural law is totally messed up or also because he's acting like a dictator?

Here's a funny verbal question that may shed some light: Suppose, Zippy, that you're a lawyer in a state with the law Bill outlined, or in a state with a very liberal abortion law. And suppose somebody comes to you and says, "I'd like you to tell me what the law is on withdrawal of fluids [or abortion] in this state." How do you verbally talk about it? I mean, if you say to him, "Well, abortion is legal in this state through such-and-such a month in a clinic, then after that it has to be done in a hospital..." or whatever, aren't you speaking as if that _really is a law_? It would seem that even in order to carry out such ordinary conversations, we need _some_ usage of the term "law" that enables us to talk about something's "being legal in this state" even when it absolutely shouldn't be in terms of the natural law, or something's "being required by the law of this state" even if it's a very bad thing, and so forth.

I don't mind our having two senses of "law." It's probably a good idea. I've been trying to use "positive law" and "natural law" for those two senses. But why can't that just clear the whole thing up as far as the logical question of whether an unjust law is no law?

Do we say about that _simply_ that it's wrong to do because his perception of the natural law is totally wrong?

I don't presume to speak for Zippy, but I'd be happy saying simply that.

I agree that there are all sorts of practical problems with judging and judges. But I don't think that a just judge, rendering just judgments according to the positive and natural law is a problem.

I agree that I don't know of any way that any US jurisdiction would be able to eliminate a judge basd on his misunderstanding of the natural law, but I do belive that the role of judge involves rendering just judgment according to the positive and natural law, not simply the positive law, and thereby giving him recourse only to recusing himself when he believes that any particular positive law conflicts with the natural law.

Lydia,

Because, basically your example is happening in the gay "marriage" legislation. If a particular judge agrees to witness the "marriage" of a same-sex couple, no matter how much the positive law gives him the authority to do this, I'm sorry but that's not a valid marriage, in the natural sense of the concept. I don't think that there have been violations of positive law in any of those state that have or are trying to have gay "marriage" amendments, and I think that we start on the defensive if we ar limited to the procedural when combating this movement.

By defining what it is that we mean by marriage, the gay "marriage" concept is seen to be anything but authentic marriage. The fact that hetrosexual -- and even Christian -- couples have weakened the public understanding of the natural concept of marriage by contracepting and allowing divorce means that Christians are left to whine about procedures and voting for particular politicians instead of being able to claim the actual authentic meaning of marriage.

Hold on just a minute, Branden:

First of all, I never, ever said that voters and citizens cannot use natural law concepts or evaluate or respond to political situations based on natural law concepts. In fact, I've _explicitly_ disavowed this position by in effect endorsing civil disobedience. (I feel like I've gotten _no_ "points" for this as a conservative, despite the fact that I'd be howled down as an anarchist for it amongst the more hidebound of the people y'all would call "positivists.")

I never, ever said that there is no such thing as a natural concept of marriage, nor does that follow from anything I've said, and I never would imply that you have to refer to some same-sex couple as "married" if they have a marriage license or a civil union license. I am scrupulous never to do so myself, and I have been outraged at hearing that Condoleezza Rice referred to the mother of the civil union partner of someone she was addressing as "your mother-in-law." I think we should fight all such matters tooth and nail in our speech and actions, and speech on these matters is very important.

So what do you mean that we can't "claim the authentic concept of marriage"? I can give you example after example of how we can and should do that. Example: Employers should refuse to grant spousal benefits for gay partners in civil unions or in so-called "gay marriages" regardless of state law. This will probably mean that they will be shut down by lawsuits, but so be it. Example: People who issue marriage licenses should walk off their jobs en masse in protest in such states, leaving the offices unstaffed. Example: Christian schools should refuse to treat both partners in such a union as the child's parents. One should have to be chosen, and if the couple is lesbian and the child is the biological child of one but not the other, only the biological child should be recognized in parent-teacher conferences, etc. More sensibly yet, Christian schools should refuse to admit children in the custody of homosexuals. Example: People who offer wedding services--photography, wedding planning, wedding cakes, etc.--should refuse absolutely to offer such services to homosexual couples for their "unions," even if this gets them driven out of business by lawsuits.

Moreover, though I haven't read the Constitution of the State of Massachusetts, let's not forget that it was the State Supreme Court who insisted on "finding" a right to gay marriage in a constitution that was never before thought to contain such a right. I suspect it didn't contain it, in any ordinary interpretation of the *positive law* contained in that document. If this is correct, then there most certainly _was_ a violation of the positive law--the lying "interpretation" rendered by the Massachusetts Supreme Court. And Mitt Romney should therefore have issued an executive order that no marriage licenses be issued to homosexual couples. He would, if my guess about the radical misinterpretation of the state constitution is correct, have been entirely within his positive _legal_ rights in defying the court. Instead, he made appeal after appeal _to the court_ but refused to create a "constitutional crisis" by defying the court directly. I repeat: I do not accept the idea that the executive branch has no right to interpret the constitution for itself and that the judicial branch is the final authority on such interpretive matters.

Let me tell you something: It isn't the _judges_ that need to be acting according to the natural law and against the positive law in the gay marriage fiasco. Sometimes I don't think people even "follow the ball" as to how these things come about. The judges are the ones causing the problem. It's the legislatures and executive branches that think they are bound to listen to their Robed Masters even if they say the Constitution means that Mickey Mouse is President who seem to lack the spine to stand up to this. The Massachusetts state legislature couldn't even muster the votes to put a marriage protection amendment on the ballot and send it to the people! And you think we can help matters by telling judges they should have _more_ power?

Moreover, this isn't "whining about procedures." Good heavens! Don't you care *at all* when justices of supreme courts tell manifest _lies_ about what is contained in those documents just as a power move to ram through their own agendas? Or do only outcomes matter?

I'm not sure to what states you're referring regarding "gay marriage amendments." Are you talking about states that are trying to have amendments to _stop_ gay marriage? I'm not aware of any states that are passing amendments to _have_ gay marriage. In fact, by my recollection, even the civil unions (in Vermont for example) have been rammed through by the courts.

Now, you know that at this point that judge's domain is going to become a sort of "abortion safe haven."

Evil will always find a way to take shelter in falsehood. Your scenario raises a practical issue involving the abuse of power. Practical issues about telling lies and abusing power are of a different order from the question of the fundamental nature of the law itself: a fundamental nature which is not amenable to arbitrary reconstruction as whatever we decide we want it to be for whatever instrumental reasons we choose.

Furthermore, it isn't at all obvious to me that a judge who decides to abuse his power in some particular case is going to be easier to deal with under a positivist understanding of the nature of the law. Under a natural law jurisprudence such a judge could still find himself suspended from a gibbet one day, whereas under a positivist understanding of law there may be literally no recourse in the case of judicial murder. After all, a judge who commits judicial murder often violates no explicit law. There isn't anything in the nature of that particular flavor of Neuremberg defense which would save him from the gallows under a natural law jurisprudence.

Would we try to get him thrown out as judge merely because his perception of the natural law is totally messed up or also because he's acting like a dictator?

A judge (or jury in the case of criminal trials) is a dictator on the particular matter in front of him (them), until such time as his decision is appealed, etc. As a dictator on the particular matter he has responsibilities; responsibilities which he may well get wrong without culpability or which he may abuse intentionally. That's the breaks. This is the nature of human beings possessing authority, always and everywhere. This is no less true under a positivist understanding of the law: if a judge chooses to exercise his power in a way that is irrational or immoral, the only recourse is to whatever other judges or procedures are in place to deal with that kind of circumstance.

It has always puzzled me - since first deeply pondering Bork's The Tempting of America many years ago - that so many "conservatives" in the modern day think that there is some procedural magic bullet which can end the possibility that a judge will do something wrong (either willfully or unintentionally). It just isn't so.

There is a problem with the separation of powers as presently conceived, precisely because a judge's application of the law to a particular matter is - in the case of judicial review - extrapolated into a general abstraction covering all cases everywhere. You can thank Marbury and Madison for that. But that is an entirely different issue from answering the question of what is the nature of the law. If separation of powers is broken as a practical matter, by all means lets fix it. But lets not fix it by telling ourselves lies about the fundamental nature of the thing we are fixing.

As to how I describe legal matters when I am asked (which I am on occasion, even though I am not a lawyer): I attempt to answer the question that the person believes himself to be asking. If I am asked a question about the nature of the law, jurisprudence, judicial review, etc I tend to have discussions like this one. If I am asked what the impact of Sarbanes-Oxley compliance is likely to be on the compensation practices in a particular industry, I answer the question in the spirit in which it was asked. I don't see how answering the question I am being asked in colloquial conversation in any way undermines my understanding of the fundamental nature of the law. In the lines of work in which I have been involved, people often act in predictably irrational ways. Doing the predicting doesn't constitute an endorsement of the irrationality.

Lydia,

I never meant to suggest that you weren't aware that there is a natural definition of marriage. I only brought up the gay "marriage" point because it seemed to me that you were constructing a hypothetical situation surrounding abortion laws that was exactly being carried out.

I am in 100% agreement with you with regard to what civil disobedience should take place. The case of Catholic Charities in Boston is a prime example, and I hope they continue to persevere (I haven't heard anything for a while, but they were being sued because they refused to place children with homosexual couples). I also don't think that adoption agencies shouldn't place children with divorced and invalidly remarried couples. However, at this point the pragmatist (the same one that doesn't know how to ensure that judges only judge justly) side of me says that with cases like Bai McFarlane and another one that Zippy has written about on his own 'blog, it's pretty difficult to tell an authentic re-married person from a invalidly re-married one. I don't know how to justly resolve that question in the real world.

I don't know the specifics of the Mass. law, but I suspect that it is possible to write a positive law that re-defines marriage any way that you want to. That's not what concerns me. What concerns me is that the Christian Churches (and I include my own Roman Catholic Church in this, but there are others that have been worse) have been lax in defending and defining the actual natural aspect (reality) of marriage to the point that the secular world has been able to take it all the way to the obvious logical conclusion. If contraceptives are okay in a marriage, then you are in essence endorsing mutual masturbation. If that's okay, then what's the functional difference between that and homosexuality? Okay, the unitive aspect of the marriage act is also thwarted by homosexual activity, in addition to the procreative aspect, but the two aspects of the marriage act is one of the primary things that has not been well defined. And by allowing divorce, we loose the ability to proclaim that the unity of the marriage covenant is everlasting. Permanence, unity, and procreation are all gone; what's left to defend?: Tax breaks for jointly filing partners, health care benefits and next of kin decisions, which is what the gay "marriage" folk are arguing for.

Gov. Romney might have been within his positively defined role as governor to have denied homosexual "marriage" certificates, but I didn't think that infractions of the positive responsibilities were what we were discussing here. I thought the discussion was whether or not the natural law had binding authority on professions. We all agree that when an authority has an infraction of a just positive law, that is a problem. The thing is, that I don't think that there is any conclusive way to defined positively that marriage is only a man and a woman. That is something that could be redefined by a particular group, just as you can define positively that a black man has only 3/5ths of the voting power that a white man does, or that a woman doesn't have any right to vote at all. These things can be positively defined any way that you want, even in a democratic society, but that doesn't change the reality of who we are as mankind.

As far as getting "points" as a conservative, maybe I haven't been clear: in spite of enjoying to read much of what you guys write, I don't consider myself a political conservative. I think that civil disobedience is often and in some circumstances the only licit course of events. So, if I haven't been giving you "points", it's because I agree wholeheartily with your position, and have very little time for those who don't. (N.B.: , I don't consider myself a political liberal either, and I don't even really know how to define myself within Fr. Timothy Radcliffe's "communion Catholic" and "kingdom Catholic" dichotomy, and I can't even begin to think how those categories would commute to a Protestant worldview).

The people I consider to be "whining about procedures" are the ones who seem to put all their hopes in electing a "strict Consitutionalist" in order to end abortion, even if it means that he is a personal financial supporter of the country's largest abortion provider. That's missing the prairie for the corn (I don't have many forests around here, but we've got a lot of corn right now), and I believe it is the direct result of thinking that the only thing that matters is changing the laws. (It's also the result of a society who hasn't been doing enough praying and fasting, which I suppose is one of my contributions to the problem). In my opinion, the laws are only a dim reflection of the reality they are trying to convey. (Yes, I believe that even arbitrary laws, like "you must drive on the right hand side of the road", convey some sort of divine reality).

I also don't think that adoption agencies shouldn't place children...

I knew it wouldn't be too long before I started using double negatives... obviously I meant: "don't think adoption agencies should place children"

Also, when I wrote: the two aspects of the marriage act is one of the primary things that has not been well defined, I mean that it hasn't been clearly described to the secular world.

Brandon, I agree that any definition in positive law can be changed. So, yes, you can write a law that defines marriage as exclusively between one man and one woman. My state has now built that into its state constitution. But you're right that it could in theory be changed later by a later amendment to the state constitution that would have an unnatural definition. (Digression: You should drop the one about the 3/5 compromise, for accuracy in history's sake. It had nothing to do with voting power. The slaves couldn't have voted even if they had been counted fully for census purposes, and counting them fully for census purposes would only have given more power to the slave owners by giving them more representatives in Congress. Meanwhile, the slaves would still have been slaves and not voting at all. The 3/5 issue never had anything to do with equality for black people.)

But isn't it better to have the positive law and to have individual human power restrained within it than to give one group of people nearly unlimited power to mess up and abrogate the natural law? Then at least we ordinary blokes can try to pass positive laws that _are_ a reflection of the natural law, and to change those that aren't.

No one is claiming magical power for the positive law. I'm just saying that judges should stay inside it or stop being judges, because otherwise they are acting as despots and not fulfilling a role within the democratic system set up. With all its faults, I still think the system of checks and balances we've got is better prudentially than the alternatives. And as a purely predictive matter, I certainly don't think that telling judges they need to do _more_ of imposing their ideas of the natural law over putatively unjust positive laws is going to help matters. As I've said before, what we really need is some legislatures and executives who have less respect for judges and are prepared to ignore them. Then we might actually get some good done. Again, think what a radical thing it would be if the President and all the state governors, attorneys general, legislatures, and state judges simply pretended that Roe v. Wade was never handed down. Just let that sink in for a moment. Then we could get going and start passing and enforcing laws to protect the unborn. There are still states that would do so. It's not "the only thing that matters," but it's one of the things that matter.

By the way, I couldn't agree with you more about Giuliani, to whom you allude. As one of my colleagues on here has said, I wouldn't vote for him at gunpoint. And that's *on top of* the fact that he's a liar and would certainly not give us even the chance we had with Bush (which wasn't much, honestly) of getting justices appointed who would overturn Roe. Rudy is just playing the conservatives for fools.

No one is claiming magical power for the positive law. I'm just saying that judges should stay inside it or stop being judges, ...

In a sense we agree. That is, we agree about the statement of the proposition, but we don't agree about the proposition because we don't agree about what the positive law is. As far as I can tell, for you it is possible for the positive law to have normative force - directing the actions of the judge - even when it asserts something contrary to natural law. In my understanding that isn't possible: it literally isn't possible for the positive law to obligate the judge to act (including failures to act) in a way contrary to natural law, since the very concept of a moral requirement to do wrong is self-contradictory.

Digression: You should drop the one about the 3/5 compromise, for accuracy in history's sake.

Fair enough, but by voting power, I was referring to the voting power of the state within Congress. (I was raised in Virginia; in the Civil War unit in my history class, the South was called "we"). My only point to the example was that we have had infractions on the natural law by the positive law for as long as we have been a country; the women's suffrage is perhaps a better example, although I'll admit that I don't think that there is anything in the natural law that says that people need to vote in a just government. A monarchy can also be justly run, which is also one of my points: judges judging justly threaten no one. The only thing that threatens the moral fabric of society is judges judging unjustly. And, I still maintain that the fault for the homosexual "marriage" fiasco of the legislature rests firmly in the lap of Christians, not the judges. It seems to me that the judges and legislatures have been just following the will of the people, which is the root of a democratic society. The fact that the will of the people is out of line with the natural law is in my view the actual problem.

Again, think what a radical thing it would be if the President and all the state governors, attorneys general, legislatures, and state judges simply pretended that Roe v. Wade was never handed down.

But wouldn't they be ignoring the positive elements of their roles as president, governor, etc? The positive law of Roe vs. Wade exists on the books. For them to deny it's normative force because it is in violation of the natural law is exactly what I've been saying that should happen. If that's what you think should happen, then we are in complete, 100%, total, full, agreement. And I think that the same principle holds for judges, because I don't see a fundamental difference between the different roles involved; they are all subject to the natural law.

No, I don't think I've said anything that implies that positive law can have normative force contrary to the natural law. In fact, I've agreed with you again and again that it can't.

Where I think we disagree is that you think that for a law to be part of the positive law _equals_ its having normative force. I distinguish, for clarity's sake, positive law from natural law for the very purpose of keeping that issue straight. For it to be part of the positive law is just for it to be written, passed, set down (whatever) according to the procedures of the jurisdiction in question and then to be part of the legal "set-up" of that jurisdiction--the rules of the game, as it were. But such positive enactments may have many different qualities. They may be wise or foolish, somewhat good and somewhat bad, totally bad, entirely good, and so forth. Consider the point often made in Catholic discussions of laws that would be _bad_ if enacted in a situation where they made the unborn less protected but _good_ if enacted in a situation that makes them more protected. E.g. A law that says you get thrown in jail if you abort a child after the first trimester. Now, this makes sense because such a law isn't the moral proposition, "It's okay to abort children in the first trimester" nor even, for that matter, "It's evil to abort children after the first trimester." I take it to be an imperative: "Do not abort children after the first trimester; authorities, do such-and-such to anybody who aborts a child after the first trimester."

Now, this imperative understanding of laws means that of course something can be part of the positive law even if it's wrong. (Suppose it says, "Anyone going to Mass shall have his head cut off.") Such a law is just part of the system of commands enacted in that jurisdiction that has various logical relations and such. One of the logical consequences of the system is that, if the commands are carried out, certain things will be done and other things won't be done. That's it.

If the judge is given no discretion by a particular bit of the positive law (which is what we're imagining), then what that means is that if he's fulfilling his role within that system, he will interpret and apply that command to the situation before him. This says by itself nothing about the moral rightness or wrongness (which may be partial or total) of the command in question.

But suppose it's totally evil, like the command about chopping off people's heads for going to mass. Then I agree that it has no normative force on anyone. That is to say, no one--judge, jury, citizens--is obligated by the fact that it was enacted to further in any way the end of cutting off someone's head for going to Mass. In fact, it would be completely wrong for them to carry it out. All the judges should recuse themselves or quit in protest. People chosen for jury duty should refuse to participate in trying people under it. And so forth.

But what a judge shouldn't do is sit on the bench, have the person brought before him, and say, "As a judge, I hereby dismiss this case and order that you be released and troubled no more, because this is an evil law." In other words, he shouldn't try to use his power qua judge to get the person left alone.

Now if everybody, including the attorney general, is refusing to go along with this law, the people attending Mass will be perfectly safe. No one will arrest them, for example, or bring them before the judge in the first place. In other words, if everybody recognizes that the wrongful command doesn't oblige them to obey it, no one will be harmed by it.

So I don't believe I'm giving an evil command normative force. I'm just asserting that the judge's power to order that things be done, his power to make things happen, is by definition a power _within_ the legal system, so that he is not supposed to try to get people to obey him _because he's the judge_ in order to subvert the system. Of course, he can lecture people on the evil of this law. And he shouldn't participate in enforcing it. But his lectures should take place with his robe off, as it were.

The fact that the will of the people is out of line with the natural law is in my view the actual problem.

Mine too. A little time spent watching cable TV, or hanging out in a college dorm, or standing by the water cooler in the average office, or (God help you) standing in line for a ride at a theme park counting the "tramp stamp" top-of-the-thong tatoos - and observing the age and status of the tramp stamped - should conclusively convince anyone.

They do feed off each other. Bad policy both reflects and shapes bad morals. But again - and practical concerns be damned on this point - we aren't going to fix anything by lying to ourselves about the fundamental nature of the thing we are fixing (though I realize that doing so is a time honored American tradition). It isn't possible for the positive law to make it morally obligatory for a judge-qua-judge to do moral wrong. The very notion is self-contradictory, with all that that implies.

But isn't it better to have the positive law and to have individual human power restrained within it than to give one group of people nearly unlimited power to mess up and abrogate the natural law?

I think this is our main point of dispute. I'm not sure that it is better, I guess because I don't have a whole lot of respect for the positive law to reflect the natural law. And in history, whenever things get too far out of step, there have been courageous people who have had the ability to step in and do something about it.

Chasing after the positive law seems to me like we're still standing on the hill, looking up at the empty sky asking: "Are you now going to restore the kingdom to Israel?"

I'm not saying that it's not important to get just laws passed, but it seems that some people are placing too much of their hope in the political realm, which is but a dim reflection of where true power comes from.

So I don't believe I'm giving an evil command normative force. I'm just asserting that the judge's power to order that things be done, his power to make things happen, is by definition a power _within_ the legal system, so that he is not supposed to try to get people to obey him _because he's the judge_ in order to subvert the system.

Well, you seem to be presuming that a judge's refusal to do evil - including refusing to pass off the beheading of mass-goers in the particular case in front of him onto a judge more amenable to doing so, and instead doing the right thing and ordering the mass-goers standing before him pleading their case set free - is subverting the system rather than preserving it. I disagree. The judge - qua judge - isn't the guy doing wrong and subverting the rule of law in that case. If the legislature passes a wicked law requiring the beheading of mass-goers it is the legislature which is subverting the system, not judges who refuse to treat a wicked law as having normative force (at the very least enough normative force to make the judge recuse himself instead of making a just decision on the particular case).

Brandon, I'm an inveterate pessimist. (So, note to Zippy, is/was Robert Bork. I don't think he thought _anything_ was a magic bullet.) I'm not placing much hope in anything. I'm just saying what I think is the wisest form of government.

I disagree that the judges in Massachusetts were following the will of the people. The people of Mass were very upset about it and tried to think of every sort of way to get around it, except defying the judges. And Roe struck down the laws of all 50 states to one degree or another, so, no, Roe was not an expression of the will of the people, especially not at the time.

Now, to clarify what I said about ignoring Roe: Judicial precedents are not laws. If I knew how to use html, I'd bold that. Instead, I'll say it again: Judicial precedents are not laws. They are supposedly interpretations of the law. Roe IS NOT part of the positive law. People say it is, people repeat that, people use the phrase "law of the land." They're all wrong. The judges in Roe lied and said they were finding stuff in the U.S. Constitution that wasn't there. Their only power to strike down the laws of the states came, in my view (and in most people's) from interpretations of the U.S. Constitution or federal statutory law. In this case, there was no relevant federal statutory law, and no one said there was. _They_ said the laws of the states were unconstitutional. They were making this up. As constitutional interpretation, Roe is rubbish. (That's putting it delicately.) Everyone knows this, even liberals, which is why they say "stare decisis" like it's a mantra.

So _I_ say that Roe was a subversion of positive law. Interpretive precedents are never positive law in and of themselves anyway, as I use the term, but they can be accurate interpretations of positive statutory law. Roe wasn't even that. It involved a) overturning the positive laws of the states on the basis of b) a lying pretense at interpreting the U.S. Constitution.

Hence, it's fair game to be ignored by everyone, who will be within his _positive legal rights_ to do so, _not_ because Roe was contrary to the natural law (though it was) but because it was a blatantly nonsensical pretense at interpreting the U.S. Constitution.

See how radical that view of the separation of powers is? Gives us a lot more checks and balances to stop bad guys. Not infallible, by any means, but I maintain, helpful.

Zippy, I think one part of our disagreement comes in that you take the judge who recuses himself or quits to be "passing off" the people to some other judge who will then enforce the law. I don't. I take him merely to be refusing to be complicitous in enforcing an evil law.

One way of understanding why I think he'd be doing wrong to order their release is that he wouldn't even have them before him in the first place were it not for the positive law in question. In other words, his whole access to the situation comes by way of the law as set down. If the people were never arrested, he wouldn't have to say a word about it or do anything about it, and indeed he would have no opportunity qua judge either to resist or to enforce the law. So it is the set-down law that even puts him in the picture. That, it seems to me, supports my contention that his authority to order people to do stuff in the situation is circumscribed by the relevant statute that puts him in the picture in the first place.

Zippy, I think one part of our disagreement comes in that you take the judge who recuses himself or quits to be "passing off" the people to some other judge who will then enforce the law. I don't. I take him merely to be refusing to be complicitous in enforcing an evil law.

Well, yes. In a way, what you've done is license the judge in such a way that he can never commit evil by omission when the will of the legislature conflicts with the natural law. You are simply ruling it out of school a priori: the judge's duty -qua- judge is to the rarified will of the legislature, not to the law, by definition.

Unfortunately, you aren't in any position to grant that plenary license.

A moral duty to act in a certain manner - the integrity of any profession - can never rest solely on the arbitrary will of any person or persons. Will's can be disordered, can attempt to command evil acts or evil inaction, can attempt to command in a way contrary to the professional integrity of the professional they command. (I say "attempt" because a command is an assertion with normative force, and evil never has normative force of any kind). Even "slave" as a profession can never rest, in its integrity, on pure obedience to the arbitrary will of a master in every conceivable case. And the matter of the profession of "slave" is not the law itself, as it is in the case of a judge.

In other words, his whole access to the situation comes by way of the law as set down. If the people were never arrested, he wouldn't have to say a word about it or do anything about it, and indeed he would have no opportunity qua judge either to resist or to enforce the law.

That is just the genetic fallacy, as far as I can tell. I don't see why the history of how the case came before him in particular is relevant in any way (as long as he wasn't personally involved somehow) to his moral obligations -qua- judge now that the case is before him.

I disagree that the judges in Massachusetts were following the will of the people.

I didn't say that they were following the will of the majority of the people, just the will of the loudest people. That, in my opinion, is what our positive laws are made of: the will of the loudest people; the ones who can raise the most money to lobby the people that making the laws.

My point is that setting our hopes in the Constitution (which was written, by the way, by a whole bunch of well-educated people but a horrible understanding of theology -- heretics, if you will: have you ever read Thomas Jefferson's Bible?) is like making a house literally on sand. Because the US Constitution can and has changed frequently. The pragmatic side is to change the culture and allow the laws to follow. (St. Louis de Montefort has a story about the reform of a monastery in his Secret of the Rosary that comes about in this exact way).

(Oh, to bold, you can enclose whatever you want bolded in html commands like this: <b>bolded text</b> The "slash" means "off". Italics uses an "i" instead of a "b").

"The pragmatic side is to change the culture and allow the laws to follow."

Again, I'm not very hopeful about much of anything. But as to this pragmatic advice, it *won't work* if the judges can just ignore the majority of the people and be heeded. It's a lot easier to change the minds of the majority of the people than the minds of the loudest people. And to my mind, "loudest" isn't even the group we need to worry about. It's what Sowell calls "the anointed" and Bork calls "the chattering classes." _They_ aren't going to be amenable to cultural change. They're too busy pulling the culture in the wrong direction themselves. They have their own agenda. My advice is to give them less influence than a judge-run country gives them. Again, democracy isn't required by the natural law, but it has a lot of practical advantages, the chief of which is that it slows the progress of evil. The whole history of the accelerated progress of evil in our country in the last 60 years is the history of the suppression of democracy by liberals who got into positions where everybody felt like they had to listen to them and who then told lies about the meaning of our founding document. Is our founding document holy? No, but it's a heck of a lot better than the nonsense the Supreme Court claims to have found in it by a process like reading sheep entrails! Believe me: If we'd stuck to what Jefferson and Madison wrote--whatever their theology--we wouldn't be hurtling downwards at such a rate. Do you think it didn't teach people something to tell them for 30-plus years that murdering their unborn children is a "constitutional right"? You bet it did. They think if the court says it's in the constitution then it must be okay--sacred, even.

And I can't help wondering: Zippy has agreed with me elsewhere that judges shouldn't claim that something is in the constitution when it isn't. If I understand him correctly, he thinks this is so even when a bit of the real natural law applies to some case but isn't mentioned in the Constitution. If the Supreme Court had said, "A woman's right to abort her child isn't anywhere in the U.S. Constitution, but we declare the laws of the states null because they are contrary to our understanding of the natural law," would anyone have listened to them? Mere honesty might help a lot here.

Mere honesty might help a lot here.

Oh, I agree with that. If a judge invokes the natural law he ought to be forthright about the fact that that is what he is doing, and not pretend that he is reading it from the positive law. That is what pretending that everything has to rest on the positive law as a thing-in-itself gets you, in my view: a constant stream of lies about what "intent" lies beneath explicit texts, as if explicit intent were all that carries authority. Then when the positivist locomotive runs out of steam you get postmodernism w.r.t. the canonical texts.

Part of the problem is in the notion that the just powers of a government derive from the consent - that is, the will - of the governed. They don't. The just powers of any government derive from the natural law, and the natural law isn't something that people (or "the people") get to make in the image of their own arbitrary will, whatever that will happens to be. In fact I view the "consent of the governed" heresy to be a positivist perversion of the legitimate imperatives of subsidiarity. Subsidiarity requires a level of local sovereignity where it is possible for it to obtain and the representation of local interests at higher heirarchical levels. "Consent of the governed" perverts this into a channelling of wills.

And on the practical level there shouldn't be any such thing as judicial review - the blanket striking down of laws for all cases everywhere as opposed to disposing of a particular case. And I agree with you that precedent isn't (or shouldn't be) generalized to be considered the same kind of thing as a law passed by the legislature, because it clearly isn't the same kind of thing.

But as to this pragmatic advice, it *won't work* if the judges can just ignore the majority of the people and be heeded.

But, as the culture changes, then the judges will eventually be replaced by people who do get it. Because the judges are part of society as well. Eventually, even the "chattering classes" will be replaced. It might take a generation or two, but from what I understand, they are reproducing at a lower-than-replacement rate, so as long as we teach our children to do right it won't be more than three generations.

Brandon, now I'm the one who thinks you are too optimistic. I don't believe this will happen. The change for the worse happened from the top down at a time when the culture itself was much better than it is now, and when already the good guys were out-reproducing the bad guys. It only takes 9 men in black to screw it all up, as long as everybody treats their pronouncements as binding. If you think you are going to _eliminate_ the left avant garde edge of the culture by sheer reproduction, you are wrong. There will always be some of them, and somehow, they always seem to manage to find their way into the corridors of power.

The other part of the problem is that the good guys making the babies send their kids to the schools and colleges dominated by the perspective of the liberal chattering classes. Think of your local Catholic school. All these great people producing anywhere from 3 to 12 children, far more than replacement rate, and allowing all the non-reproducing liberals to reproduce themselves intellectually in the children of others. It's been going on for a long time and isn't going to stop any time soon. Even too many home schoolers just go deep into debt and send their kids off to a residential secular college somewhere to be acculturated.

The other part of the problem is that the good guys making the babies send their kids to the schools and colleges dominated by the perspective of the liberal chattering classes.

Agreed. Especially the mass-education that passes for the public and even what passes for some parochial schools.

And maybe I am overstating my optimism, but I do have an optimistic outlook with regard to the "unwashed masses" of the general public. And how a changed culture can overcome unjust laws, even without having to remove them from the books.

I guess I'm not interested in saving the country through changing the laws, and I don't think that the Gospel message exhorts us to do so. Nor do I think this is the most effective way of helping individual souls work out their salvation, which should be after all the goal of a justly ordered society.