Tuesday, October 05, 2004

Framing the Law / Ethics Dialogue

Can an immoral philosophy lead to a just law?

Since Holmes and his legal philosophy serve as the context for the Social Darwinism example below, I thought I'd add a couple thoughts (we're discussing Holmes in my Readings course).

1) To borrow from Weistart, the above question rests on the baseline assumption that law and morality can, to a certain extent, be conflated. That is, an analysis of one can legitimately borrow from the language of the other (and therefore, it's appropriate to apply a moral hermeneutic to the law). However, Holmes (as far as I can tell), viewed law as distinct from moral issues. In Powell/Purdy's Ethics course, we're reading Holmes' "The Path of the Law," and in it, he writes:

"[I]t is certain that many laws have been enforced in the past, and it is likely that some are enforced now, which are condemned by the most enlightened opinion of the time, or which at alle vents pass the limit of interference as many consciences would draw it. Manifestly, therefore, nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law."

The bifurcation that Holmes draws between moral conscience and legal dictum is a stark one, and it makes me wonder: can we really ask whether an immoral philosophy leads to a just law without asking, more fundamentally, whether an immoral philosophy is relevant to the telos of the law? Friends of mine would know how I would answer that question -- but for the sake of sound analysis, I think we need to recognize the epistemological question that underlies the (great) question that Chris raises.

2) Epistemology aside, however, while I agree that Social Darwinism as a legal philosophy is problematic, I don't know if I necessarily see Social Darwinism as manifest in free speech in the same way. For example, the main reason I take issue with Social Darwinism (or indeed, any post-Enlightenment, uber-individualistic legal theory) is because of the way it posits the individual, as opposed to the community, as the "subject" of the law and its accompanying language. In that context, law is effectively a composition of individual rights and freedoms, which arguably costs us a perspective on the law as a body politic that serves community interests. My opposition to Social Darwinism as legal philosophy, therefore, is very much an "embodied" opposition -- I disagree with the way it eviscerates our legal dialogue of important (I believe) principles such as community, sacrifice, or the (common) Good.

That said, I don't necessarily find the Social Darwinism in Holmes' comment re: free speech to be all that problematic. After all, it is not ideas/expressions that can/should engage in community with one another, but people. Shouldn't a different analysis apply?

By the way, anyone want to blog about law/theology? I'd be more apt to comment. ;) I have embarassinly little to say about substantive law. The shame!

5 Comments:

Anonymous Anonymous said...

Isn't Social Darwinism a philosophy that systematizes social interaction--thus putting, by definition, society (and not the individual) at the center? If so, do you you have the same kinds of problems with Social Darwinism as you indicate you do in your post?

October 5, 2004 at 8:38 PM  
Blogger Liv said...

Good question, Anonymous! (By the way, I'm open to critique from named sources as well! :))

Others might debate this point with me, but I would submit that simply because a philosophy "systematizes social interaction" (and ultimately makes certain claims that implicate society as a whole) does not mean that *community* (which I defend in a somewhat artificial dichotomy over and against the *individual*) is the "center" of that philosophy.

With that in mind, I maintain that the individual, and not the community, remains the analytical issue at the heart of Social Darwinism. It's precisely that emphasis that allows us to talk of things like the "selfish gene" or self-preservation of the strong at the cost of the weak.

By contrast, when I speak of "community," I do assume a certain commonality of interest within a given group of people. For example, my theological tradition conceives of the Church as an example of community-- members who are bound by common interests and engaged toward a common Good. For that reason, I'm loath to describe Social Darwinism as foundational for community (though it certainly achieves broadly societal ends)-- the adversarial, win-loss, weak-strong economy of scarcity that defines Social Darwinism doesn't foster what I imagine to be community.

I don't know if I've fully answered your question, and certainly don't presume to have answered it as effectively as is probably warranted. :) But those are my initial thoughts.

Ok must go back to studying now. Chris, this is why I can't start posting!!! I'll never finish my actual work!!!

October 5, 2004 at 9:09 PM  
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