Wednesday, October 06, 2004

Just Laws (part 3)

My brief response to Olivia's post:

1. I am assuming that there is such a thing as just and unjust laws (though I'm not assuming that just laws need be drawn from moral sources). Now, what I have not defined is the content of "just." One definition of just--a positive definition--would put my view and Holmes's view of the law in harmony. A natural law position, by contrast, would put our views in tension.

2. To your question, is the morality of a given philosophy that undergirds the law relevant to the purpose of the law--by which I take you to mean law qua law--I would have to answer yes. How could it not be? My baseline assumption here is that background philosophies themselves are both the efficient and final causes of law: that is, they help create the content of law, and create that content because they seek to have law play a particular role in human interaction and social ordering.

A philosophy, for example, that is utilitarian might define "free speech" and its importance in a given society differently than a philosophy that is focused on natural. The former might seek to simply maximize the ability of individuals to seek individual expression because that would serve the end of (to oversimplify) increasing pleasure and reducing pain; the latter might seek couple free expression with the need to teach virtue (man's summum bonum, so the argument would go).

Now, by asking whether an "immoral philosophy" can lead to a "just law," I may perhaps be looking through the lens of natural law. Even so, I don't think we can talk about a law being just or not unless we can talk about what end it serves, whether the end that it serves is just, and whether the means the law chooses to meet that end is just. These questions are answered, in part, by looking at the philosophical principles that undergird that law.

3. A point about Holmes specifically: I find it ironic that the leading exponent of legal positivism (or "realism")--that is, as Olivia points out, the idea that the law and moral judgments are really separate--should frame the First Amendment in terms of "ought"--a Kantian or Natural Law position--and not "is"--the positivist position. Holmes was not, in his great dissents in Abrams and Gitlow, accepting a positive view of free speech (in fact, he rejected the view he took in Schenck, where he suggested that the First Amendment only prohibits prior restraints because that's what Blackstone had in mind): he was framing the issue in moral terms. It's just that the morality he seems to draw from is, well, survival of the fittest. . .


Blogger Tom said...

Maybe I'm mising something here. Who defined Social Darwinism as an "immoral" philosophy? if it's really a social application of Darwin's laws (which I doubt), it's completely amoral. Darwin struggled hard to teach people that evolution doesn't make choices, and there is no moral content to it -- good or bad. it's just the mechanical process by which genes get sorted.

What passes too often for Social Darwinism is actually using misunderstood bits of lingo (e.g., "survival of the fittest") to justify protection of entrenched wealth and power, which has nothing to do with real Darwinism. Real Darwinism would be as happy to see mob rule as it is to see bark beetles destroying a majestic redwood.

Holmes's line on free speech gets any morailty it does from the fact that moral values such as maximizing human freedom in this case coincide with the scientific fact that the only way to test competing paradigms is to let them compete in the market/gene pool/news stand.

October 8, 2004 at 9:45 AM  
Anonymous Anonymous said...

is just law the same as natural law? and is legal positivism the same as rule of law? am getting all muddled and confused. thanks.
furthermore, do what extend can we say just law has helped to establish rule of law?

November 30, 2005 at 1:25 PM  
Anonymous Anonymous said...

To what extent can the ‘rule of law’ help to establish just law?

November 30, 2005 at 1:29 PM  

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