The website "
Ordinary Times" published my post on judges making law to which contributor
Burt Likko replied. His was a very long and thoughtful reply. A taste:
Nor
is the notion of “common law” necessarily an outgrowth of the school of
philosophy identified as “natural law,” and “natural law” in turn is
not necessarily (although often is) associated with the notion of a
divine lawgiver. Rather, it is based on the idea that there is an
unchanging, transcendent core to the law, a core that is inextricably
intertwined with concepts of morality. So one might base a natural law
philosophy upon a Kantian categorical imperative, for instance. And a
natural lawyer might eschew the notion that precedents set by past
judges are binding upon future decisions, because future cases may
present different permutations of the intent of the parties and the
effects of the ruling in ways that the past case did not consider. A
positivist or a realist, meanwhile, might readily adhere to the notion
of binding precedent; the positivist awaiting instruction from the
sovereign to change the law before making a ruling contrary to precedent
and the realist determining that predictability of the legal system is
of greater importance to its users than effecting a fair outcome in the
individual case.
Antonin Scalia
himself occupies, and to a large degree personifies, the hybrid of
textualism and originalism associated with “conservative” jurisprudence
in the contemporary legal world. Recall that for him, the judicial act
of interpreting the law and applying it to a particular case sometimes
involves a search for the generally-accepted meaning of a word at the
time that a law was written. It’s interesting that he delves down into
semiotics in the article, as he doesn’t usually get quite that abstract
in his casting-about for an exposition on language and communication.
But this originalist-textualist position is at once vulnerable to two criticisms: ...
Read the rest
here.
5 comments:
We also must not forget that even were we to apply the originalist-textualist position Scalia advocates, we are back in the world of natural law, precisely because the authors of our foundational laws during the late Enlightenment were deeply steeped in the notion of natural law as a fundamental aspect of existence.
So?
As previously noted, Scalia thinks that the Constitution contemplates that governments CAN legislate morality, and it should be done by legislatures, not the judiciary.
We can use natural law, or materialism, or utilitarianism or relativism or whatever We the People democratically choose.
The problem is when Anthony Kennedy imposes his murky "mystery clause"
“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
as the only constitutionally permissible philosophy of law and government.
http://www.heritage.org/initiatives/rule-of-law/judicial-activism/cases/planned-parenthood-v-casey
And the subtext of Likko's babble (and all such babble) is the same: let's wing it and manufacture the verbal chaff which provides sufficient artifice to cover that we are just insisting on the result we want. Likko is pleased that the culture of the bar is such that such fraud will seldom be turned against anything he fancies.
New rule: You can't legislate morality, only its abolition.
Well, Mr. Likko has aspirations for the bench.
He would answer the two of you with a question, also asked by Judge Posner.
"What am I, a potted plant?"
He would answer the two of you with a question, also asked by Judge Posner.
"What am I, a potted plant?"
And my answer would be: "We'd be better off if you were".
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