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Friday, January 8th, 2010


Noted Catholic and right winger Scalia was recently asked – in his rephrasing of the question:

Why shouldn’t we follow the unamininty of the world [regarding] assisted suicide…homosexual sodomy…abortion…[&tc]?

His response was rather odd. He argues that judges don’t have any special expertise to decide these issues, therefore they should be decided by the people. (This part isn’t odd. It makes sense to me, though with some caveats.) But then he goes on to incorporate this with his belief in natural law:

I believe in natural law, but I believe that in democratic political instituions,  it’s up to the people to decide what they think natural law demands…Because we all disagree on natural law. Why say whatever a bunch of judges think is the answer? That makes no sense in a democracy. There are no clear judicial answers to these questions. And since there aren’t it seems to be it’s the kind of a thing that in a democracy we debate with one another and we ask the people what do you think natural law requires.

Here’s where he’s lost me. Because the primary precepts of natural law should be evident to every rational human being* – regardless of religion. Hell, it should be evident to animals – so evident that they act in accordance with it naturally. Thus we all shouldn’t “disagree on natural law.” We should tend to agree – and we should actually agree if we act according to our natures. Thus, the opinions of other people in the world actually does provide evidence of natural law – though it could be attempted to be explained away as some mass perversion.

I don’t disagree with the position Scalia is defending – that these contentious social issues should when possible be decided by the more democratic political institutions rather than the judiciary (although the judiciary has tended to follow public opinions) – but I find his argument itself puzzling. I think these issues should be decided by the more social institutions because I believe they are social decisions primarily. Scalia seems to be arguing that these are governed by natural law – which, given the role we have given judges to extrapolate from current law and apply it to specific situations, is exactly what they would need to be doing with natural law. “Joe Sixpack” – to use that derogatory phrase Scalia and Palin like so much – may know natural law as he knows the rules of the road. But we entrust judges with applying the rules of the road with rationality tempered by wisdom. They don’t always – but that’s their job. Their experience taking a set of rules that are knowable and applying them to specific situations is exactly the type of experience that “Joe Sixpack” doesn’t have – and would make judges more expect.

But – and here I speculate – it doesn’t seem Scalia believes in natural law as the term was created by Thomas Aquinas. (N.B. I haven’t kept up-to-date on modern day natural law theory, so if any informed readers could inform me if modern day Thomists have entirely eviscerated Aquinas’s definition with some work-around, let me know.) Instead he believes that issues like “assisted suicide…homosexual sodomy…abortion” &tc are inherently political. Thus, they should be decided by the political institutions rather than judicial ones. This undermines the case made by Robert P. George (along with many members of the Catholic Church hierarchy) regarding why the church must take political stands on issues involving natural law (where it happens to agree with the Republican Party.)

* As Aquinas wrote in the Summa Theologica: “[W]e must say that the natural law, as to general principles, is the same for all, both as to rectitude and as to knowledge.”

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Dripping With Contempt

Monday, December 15th, 2008

Dahlia Lithwick observing Justice Scalia at oral arguments on Iqbal v. Ashcroft:

Scalia then points out that the ability of the attorney general and FBI director to do their jobs should not be dependent on the discretion of a district court judge. He pronounces district court judge the way you or I might say serial wife-beater.

There’s a reason she’s my favorite writer on legal issues.

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