Friday, November 16, 2007

The “Fruits” of Legal Positivism: Utilitarianism in Action

by Dr. John P. Hubert
09 December 2005
First Published by Intellectual

For over 60 years, the United States Supreme Court has progressively departed from what was primarily a Natural Law-based understanding of its role in constitutional interpretation.

Many Americans have wondered about the unseemly charade that transpires whenever a nomination is made to the U.S. Supreme Court. High profile members of each political party make the usual inane comments about the judicial “mainstream” -- whatever that is -- and the need to insure “balance” on the court as if it were the legislative branch. One or the other party usually accuses the other of nominating an “extremist” -- understood as anyone with whom they disagree. It seems as if the object is to nominate a “blank slate” in order to avoid a lengthy and partisan fight. The nominees’ previous judicial opinions academic writings and speeches are “mined” for evidence of unsuitability. The two latest nominees (Chief Justice John Roberts and Harriet Miers) represent this new “blank slate” philosophy in action; both having been referred to as “stealth” selections. Each lacks a public record on the so-called contemporary hot button social issues. This is short-hand for; failing to take a public stance on moral issues foundational to the civil law. In other words, the candidates who are now being nominated to the highest court in the land are individuals who either have no opinions on moral issues as they relate to the law or purposely remained silent despite having them, presumably to position themselves for career advancement. The former suggests moral or intellectual impoverishment, the latter a degree of utilitarian -- ends justify the means -- cunning which frankly is extremely worrisome.

Utilitarian Calculus in Action

The notion that in order to successfully ascend to the U.S. Supreme Court one must purposely (premeditatedly) remain mute at a time when the civil law has never been more adverse to the Natural Law and the principles of the Judeo-Christian ethic is Machiavellian in the extreme. Such a candidate should be accused of being simply untenable.i While demonstrating amazing resourcefulness that individual has also evinced a frightening degree of moral turpitude. Ostensibly, for several decades post-Roe brilliant social conservatives and liberals with an interest in jurisprudence became wise to the nature of the game being played. They were apparently facile enough to recognize that being candid and forthright about their so-called deeply held convictions (code for moral and religious views) was a prescription for professional non-advancement. In typical utilitarian fashion, they did from their perspective the only logical thing -- “played the game.”

Had they applied the relevant Aristotelian or Thomistic moral philosophy rather than utilitarianism (Millsian, Hobbesian, Holmesian), they would have recognized the bankruptcy of employing a morally illicit means in the accomplishment of a potentially good end. Instead of meeting the perfidy head-on, which was obvious and apparent by the latter half of 20th century Supreme Court jurisprudence,ii too many of the best and brightest simply agreed to play by the new rules in which the ends were allowed to justify virtually any means whether morally licit or not.

This new Utilitarian calculus was nothing more than the personal application of a philosophy which had already been embraced in the judicial realm. That philosophy is Legal Positivism or pragmatism -- developed by Oliver Wendell Holmes and those who followed.iii It is based entirely on a Secularist worldview in which the controlling moral philosophy is utilitarian.iv Fundamentally it also means that American Jurisprudence is now held hostage to an alien judicial philosophy based not on the Natural Law or the Judeo-Christian ethic, but rather on the post-Enlightenment philosophies of Mill, Hume, Rousseau, Locke, Hobbes and Darwin.

Constantly Evolving Moral Code

Legal Positivism reduced to the lowest common denominator is the application of Darwinian Natural Selection (survival of the fittest) to a constantly changing moral code based on personal preference or “choice” in the realm of the civil law. Under this rubric, moral absolutesv do not really exist, since morality in general is determined by what is socially acceptable at a given period of time in history. What is verboten today can be made acceptable tomorrow through the ballot box, the courts, or social conditioning. Thus American civil law has held that some human beings may be considered property in one historical period and not in another, or that embryonic human beings or those in-utero are to be considered worthy of protection under some circumstances but in others nothing more than personal property to be disposed of for the sake of expediency when unwanted pregnancy occurs. For example, why it is legal for a woman to kill her unborn child -- and yet if a man kills his pregnant wife, he can be charged with “double homicide” and if convicted sentenced to the death penalty?

Americans should understand that for over 60 years, the United States Supreme Court has progressively departed from what was primarily a Natural Law-based understanding of its role in constitutional interpretation. That construct utilized the constitution as written, relying on the so-called original intent or a strict constructionist interpretation as a template upon which the tenets of the Natural Law were traced. For almost 100 years, the USSC has embraced Legal Positivism, in which no immutable moral principles are recognized, including the first and second principles of the Natural Law (do good/ avoid evil and treat your neighbor fairly). The only unifying principle allowed to permeate legal positivism is personal autonomy or choice, itself an expression of survival of the fittest (read selfishness) which has become the new judicial rallying cry. Thus it follows that virtually any new social/cultural experiment can be codified into law by the Supreme Court even if such a law could never be passed by the representatives of the people who still adhere largely to the principles of the Natural Law and the Judeo-Christian Ethic. Why? Because the court is simply not restrained or controlled by the observance of any moral absolutes such as; “it is always and everywhere wrong to purposely kill an innocent human being.” Rather, the United States Supreme Court has progressively indicated either by formal rule or by refusal to review certain lower court cases, that it is perfectly legal to kill some human beings for reasons of utility/expediency. This is especially true of the weakest and least powerful among us, including the unborn, infirm, disabled or retarded.

Circus of the Absurd

It should not be surprising then, that all manner of contradictory and illogical rulings have emanated from the Supreme Court in the wake of the full acceptance of legal positivism as an over-arching (foundational) judicial worldview. This alone should have been enough to demonstrate its total lack of foundation. But alas it has not been. Instead we are treated to what can only be charitably called the “circus of the absurd,” in which a nominee for the U.S. Supreme Court is paraded before a group of Senate Judiciary Committee interlocutors attempting to discharge their constitutional duty to “advise and consent.” These public displays of intellectual dishonesty disparage the very constitution in whose name they are held. Senators on both sides of the aisle slyly engage in a delicate dance in an attempt to determine who is best able to entice the nominee into divulging what if divulged would lead to their being rejected. One side prosecutes, the other defends. The nominee tries valiantly to sound intelligent, humble and duly respectful without divulging anything of substance. There is simply no chance at all that the nominee will inform the American public of what he/she actually thinks is always and everywhere true, timeless and applicable with respect to the Natural (moral) Law upon which the civil law should be based in order to be Instead, the nominee may dutifully discuss his/her understanding of “original intent,” will likely refer to the importance of past precedent (stare decisis) and regurgitate the conceptual reasons for which a given law’s precedent could be reversed but avoid like the plague any comments regarding concepts, issues or cases which could conceivably come before the court. This would be laughable were it not so serious. Virtually anything could come before the Supreme Court and often does. The nominee is able to totally avoid a discussion of consequential matters while confining comments to second order largely procedural (trial tactic) questions of interest to lawyers and appellate court judges only.

Stare Decisis, a Convenient Ruse

It is worth reviewing that stare decisis is a concept in the law which literally means “to stand by things decided.” This tired old phrase from the common law is always trotted out at the time of Supreme Court nominations. The idea is that once something becomes decided by the Supreme Court it has become precedent that is in a sense “settled,” such that future courts should show due deference to it as if it is “written in stone.” The concept is “over-hyped,” however, when one looks at the history of the Supreme Court ,which has on numerous occasions overturned precedent in an attempt to either recognize newly identified “rights” or rectify historical “wrongs” (e.g. overturning of Dred Scott v. Sanford, which held that African Americans were property, newly recognized and invented human rights, e.g. Roe v. Wade, which for the first time held that women have a right to unrestricted abortion despite state laws which prohibit same, or Lawrence v. Texas, which found a new constitutional right to engage in sodomy, effectively overturning Bowers v. Hardwick, which was “settled law” and thus should have served as precedent.)vii

Unfortunately however, throughout the confirmation process during which the nominee appears at length before the Senate Judiciary Committee, there will be no discussion of the basis on which legitimate civil laws can be constructed.viii All such first-order philosophical questions will be rejected as “deeply held and personal,” that is, “religious,” rather than foundational or philosophically obligatory. Thus, lawyers and Supreme Court Justices become tacticians lacking in an overarching (organizing principle) or philosophical construct. Yet, in practice there is an organizing principle; Legal Positivism, which is essentially denied due to the fact that such questions are labeled religious and not philosophical, a convenient “sleight of hand” that. This is how a utilitarian judicial philosophy steeped in rabid autonomy has been foisted on the American public unknowingly. Few recognize that it bears no resemblance to the Judeo-Christian ethic which many still adhere to and practice.

Furthermore, it is assumed that if Congress passes a law, the USSC has the right to determine whether it is constitutional and morally permissible, as if the two were synonymous. It is simply presumed a priori that nothing which the court could declare constitutional for whatever reason could ever be immoral, despite obvious examples to the contrary. The entire process becomes an exercise in debate over second order questions without any first order foundation. Put differently, there is no transcendent -- in the metaphysical sense -- referent by which the moral licitness of a given law can be compared. Laws become whatever society at a given point in history wants them to be. The function of the Supreme Court then becomes one of “divining” what Americans presently think, feel or want, what common assumptions they have become accustomed to making and so on. Then a majority of Justices create a way or tactic -- whether logically coherent or not - -to justify the conclusion which they have already made. In the process, to a greater or lesser degree they attempt to demonstrate how the Constitution actually contains the warrant for their findings.

What is totally overlooked in the above scenario is that the moral licitness of any law is a totally separate question from whether it is constitutional; irrespective of whether it is or is not consistent with “original constitutional intent.” The original intent of a given law may always have been morally illicit from the perspective of the Natural Law, the Judeo-Christian Ethic, and the common morality. It may even have been immoral by virtue of any other applicable moral philosophy -- even utilitarianism. For example, slavery was arguably immoral by the Natural Law/Judeo-Christian Ethic, but yet was not originally considered unconstitutional. It is difficult today for most people to believe that African-Americans were once considered property. Slavery was codified in law, however, because even from the beginning of the American experiment, the civil law was not based entirely on the Natural Law. Utilitarian moral thinking began very early to insinuate its way from the Continent into the colonial experience.

We are left to believe, according to the tenets of legal positivism, that during the period in question, slavery was permissible and constitutional because it was commonly accepted, economically based and people were accustomed to it. At a later date, the “situation” changed and a different set of assumptions obtained. It also means that if in the future it becomes expedient for slavery to once again exist, the Supreme Court could again reverse itself and legalize slavery based on race, religion, class or any other criterion thought to be of utility. The reason this is so is that there are no absolute moral proscriptions which undergird the civil law according to the rubrics of legal positivism. One wonders how many Americans realize that the laws under which we live amount to nothing more than personal societal preferences or choices which vary from place to place and time to time. Such a situation is patently absurd.

It is simply moronic to believe that constitutional law exists without a pre-philosophy, a set of fundamental assumptions or overarching principle(s). Every discipline has a set of so-called pre-philosophical assumptions, also known as first-order philosophical questions/presumptions. For example, the question of what the law is in a metaphysical sense actually involves a first order philosophical question and is not a legal question at all. Every Senator who serves as an interlocutor on the Judiciary Committee and each USSC nominee who appears in the confirmation process have a “pre-philosophy” with regard to what the civil law should be grounded in, as well as a specific judicial/constitutional philosophy (e.g. original intent vs: an evolving constitutional standard). It unfortunately has become acceptable to simply deny this (as Judge John Roberts did at his confirmation hearing), as if the Supreme Court is able to divine the proper ruling virtually out of “thin air” without regard to first principles.

Roe: The Legalization of Murder as a Case in point

Ultimately what the court did in Roe was find a poorly reasoned way in which to legalize the indefensible “right” (nothing more than a claim or demand since it is not grounded in the Natural Law) to kill an unborn child due only to its location (within the body of the mother) in space, in order to provide back-up for failed or omitted contraception. The case was founded on the principle of rabid personal autonomyix (unbridled freedom to do as we please with our own bodies) which is the sine-quê-non of Secularist moral philosophy in general and that of legal positivism in particular. Nothing but social convention stops the Court from declaring that “undesirable” human beings (retarded, disabled or otherwise challenged or unwanted) who simply utilize too many economic and other resources -- should be killed in order for the “chosen fit” to preserve their own preferential status and autonomy. Roe v. Wade is an example of a USSC ruling which is without doubt ungrounded in any intellectually defensible principle. It epitomizes the utilitarian approach which is fundamental to legal positivism.

Social Darwinism Replaces Transcendent Truths

What we have done then as a culture over the past half century is to codify in the civil law, a legal system which is not only productive of illogical and contradictory rulings, but one which is totally arbitrary and grounded in the principles of social Darwinism rather than immutable truths. Decades ago it was incumbent upon those who understood -- that the USSC was attempting to radically alter the moral philosophical basis which had been foundational to the U.S. constitutional system -- to rise up and object in the strongest terms rather than remaining mute by “playing the game.” Had this been done in the mid-twentieth century, the present deceptive system for confirming a Supreme Court Justice would not exist. The result of failing to do so has meant that the entire process is now nothing more than a pretense in which interested candidates must either actively or passively agree to be involved in evil as a means to the potentially good end of being placed on the Supreme Court, the very definition of Utilitarianism.x Such a circumstance is incompatible with the truth that should be at the foundational center of justice and is not simply a matter of the Supreme Court legislating from the bench. Legislating by the rule of the majority in a way which is contrary to the Natural Law is also immoral. Rather than fairness, consistency and equality before the law, the present system is capricious and inherently unjust. It typifies a “might makes right” mentality achieved either through a tyranny of the majority at the ballot box, the appellate court or Supreme Court level as demonstrated in 5-4 decisions. Truth is the very last thing which is served under such a system and once truth is sacrificed at the alter of expediency, justice is vacated as well.

With respect to the USSC, the issue is not judicial activism alone (the court usurping the role of the legislature), nor is it a failure to adhere to stare decisis, original intent or a Strict Constructionist methodology. It is the failure of both the legislative and the judicial branches (but especially the USSC) to adhere to the immutable principles of the Natural Law as codified in the Judeo-Christian Ethic. Until this issue can be discussed vis-a-vis the foundational philosophical problem that it is; rather than the straw man indictment which labels it “a private or deeply held religious belief,” our laws will remain unjust and no one in America will be safe from tyranny. The fact that our laws are no longer based on the common morality which flows from the Natural Law as historically contained in the Judeo-Christian ethic is ultimately a philosophical not fundamentally religious problem. Once this is widely recognized we can then make progress in reforming the U. S. Supreme Court, something all true conservatives should be interested in.


i. What is the chance that an intelligent person has never discussed with anyone or written about the many “hot-button” social issues of the day, particularly one who is well educated in the law? To ask the American public to believe a qualified candidate has such a “blank-slate” is simply incredible.

ii. Legal positivism began to grow in importance in the early half of the 20th century. It is there that the traditional jurisprudence, based on the Judeo-Christian common morality was undermined. See Robert Bork. Slouching Toward Gomorrah: Modern Liberalism and American Decline. (New York: Regan Books, Harper Collins Publishers, 1996), chapter 6. Justices Holmes and Brandeis began legal pragmatism by severing the Natural Law from American jurisprudence. See references below in number 3.

iii. Note that Justices Oliver Wendell Holmes and Louis Brandeis were influenced by J.S. Mill’s essay On Liberty and saw in his discussion of individual freedom or autonomy, a basis for the so-called “right of privacy” which the court progressively drew more and more broadly. For background see Mary Ann Glendon. Rights Talk: The Impoverishment of Political Discourse. (New York: The Free Press, 1991, p. 54. Justice Holmes advocated nearly total separation of law and morality as have subsequent Supreme Courts. Also see Glendon pp. 85-87 for a discussion of the role that Thomas Hobbes and John Austin played as forbearers of the American (Holmesian) approach, (anti-Natural Law stance); See also Oliver Wendell Holmes, Jr., “The Path of the Law,” 10 Harvard Law Review 457, 458-459, 1897 and Oliver Wendell Holmes, Jr., “Natural Law,” 32 Harvard Law Review 40, 41-42, 1918.

iv. See my “The Rise of Secularism and the Contemporary Culture War” at for a discussion of the two contemporary worldviews which vie for control of the public square and the role of utilitarianism in the Secularist worldview.

v. Acts which are per se, and in themselves, independent of circumstances, always seriously wrong by reason of their object (means). See John Finnis. Moral Absolutes: Tradition, Revision, and Truth. Washington, D.C.: (The Catholic University of America Press, 1991), pp. 1-3 For example; all killing of unborn infants as a “means” to an end

vi. The principles of the Natural Law are immutable and applicable always and everywhere whether recognized or not. Failure to observe them always leads to chaos. For an excellent review of Natural Law and Natural Rights see: John Finnis. Natural Law and Natural Rights. (Oxford: Oxford University Press, 2002) paper back edition, pp. 18-32 set out the rationale for the immutability of Natural Law as does C.S. Lewis in his Mere Christianity in which he refers to the immutable principles of the Natural Law as the Tau.

vii. Tony Perkins, “Stare Decisis: (stah-ree duh-sigh-sis) n.” Family Research Council, July 28, 2005. “The 1986 Supreme Court case upholding state sodomy laws, Bowers v. Hardwick, was ‘settled law’ until the 2003 Supreme Court roster, in Lawrence v. Texas, found a constitutional right to sodomy. The 1857 Supreme Court in Dred Scott v. Sanford decided that all African Americans are property and thus not citizens. Would Senators Leahy and Schumer, if they lived in the 1850's, honestly argue that Dred Scott was ‘settled law’? Those who believe in a constantly evolving Constitution might be the very worst people to ask if the law is actually settled on anything. By treating court opinions as though they are permanent law, we become unwitting abettors in ceding legislative powers to judicial officials. More importantly, the questioning of judicial nominees on topics that are very likely to reappear before them if confirmed is unconscionable.”

viii. The closest the Judiciary Committee comes to such a discussion relates to the questions which revolve around the constitutional roles of the Supreme Court vs.: the Legislative branch. The question of what to do if civil law is incompatible with the Natural Law (a concept never acknowledged) is simply never addressed as if such a circumstance is impossible. It is simply “assumed” that the Constitution has come to us from on-high and therefore could not possibly allow for immoral or unethical practices. The “trick” is to constantly alter what it actually says in order to conform to evolving societal standards.

ix. Had the USSC recognized the first two principles of the Natural Law and the Judeo-Christian common morality which includes an absolute proscription against purposely killing the innocent, Roe v. Wade would have been impossible since purposely killing the innocent is always and everywhere wrong under all circumstances. Roe repudiates the notion of acts which are evil on the basis of their objects despite intent or circumstances. See Mary Ann Glendon. Rights Talk: The Impoverishment of Political Discourse. (New York: The Free Press, 1991, pp.47-75 for a discussion of “rights” specifically the “right to privacy” and the concept of individual autonomy upon which it is based, and pp. 58-60 for a discussion of Roe v. Wade as an example of rabid personal autonomy overtaking the new judicial concept of “individual” as opposed to family “right to privacy.”

x. Utilitarianism is an inadequately powerful moral philosophy by which to structure human interaction.