Monday, April 20, 2015

Likko on My Post About Judges Making Law

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:

Tom Van Dyke said...

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




Art Deco said...

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.

Tom Van Dyke said...

New rule: You can't legislate morality, only its abolition.

Jonathan Rowe said...

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?"

Art Deco said...

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".