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| | | Should We Bother with “Natural Law?”: A Love Letter, from the Levant | |
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< | Theories of natural law hold that the world and the law follow fundamental rules of justice that are eternally morally correct. Those who unironically call themselves “legal realists” counter claim that values are variable, and that what is ruled to be fair true or moral turns only on the perspective of the relevant lawmaker. I posit, however, that even the most seemingly clearcut manifestations of legal realism (such as two judges ruling differently on the same set of facts), are never completely devoid of the fantasy of natural law. Accordingly, I propose that even though we know natural law does not palpably exist, we should, and in fact do, pretend it does. | >
> | Theories of natural law hold that the world and the law follow fundamental rules of justice that are eternally morally correct.
Whose definition is th8i? It's unrecognizeable, owing primrily to the absence of "nature."
Those who unironically call themselves “legal realists” counter claim that values are variable, and that what is ruled to be fair true or moral turns only on the perspective of the relevant lawmaker.
No. It's correct to say that legal realism and natural law theories are at odds, but this doesn't locate the difference. Some analysis of other peoples' actual ideas (Holmes, for example, whose hostility to natural law is that it gets you killed.)
I posit, however, that even the most seemingly clearcut manifestations of legal realism (such as two judges ruling differently on the same set of facts), are never completely devoid of the fantasy of natural law. Accordingly, I propose that even though we know natural law does not palpably exist, we should, and in fact do, pretend it does. | | | To claim that lawmaking is practically unconcerned with morality is erroneous and deceiving, as we all know, experience and sense. Woven into laws are compromises on efficiency and logic in the furtherance of liberty or equality. It is fine to concede that universal morality is a sham, but we do, in practice, ground much of our legal systems in this faith. Thus, it’s worth defining what it is or what it should be. For even if morality cannot be objective, I still think it a worthy venture to define justice; to put our finger on what we mean when we call something “just” or “unjust.” | | | It’s difficult to articulate why equality is worthwhile. In stubbornly resisting the urge to resort to efficiency arguments about mobility and growth, I am left with timid ambition that to cite compassion and to raise love is sufficient, convincing, and true. Legal realism and rejection of the natural law of equality are grounded in the assumption that society is nothing but the sum total of individuals; that nothing transcendental or metaphysical binds us together. We innately, even if timidly, know that’s not true. The lazy and glum narrative that we are inherently individualistic is overstated and disenchanting. There is no account for why we attempt to define, care about, write about, and talk about justice as we do if not because we are inherently concerned with being benevolent.
Despite my romanticism, I do concede that natural law does not objectively exist. But we should continue defining it and studying it; pretending that is does. Individualism is a viral, self-fulfilling prophecy. When we hold that society is but a struggle to contain an underlying selfish and evil human nature, it shapes the way we relate to each other. As a society, if we subscribe to the theory of inevitable individualism, we condemn and limit ourselves to trying to manage individualism. Managing individualism shouldn’t be out priority or structural basis, because our individualism is not the sum total of who we are, for we are actually, (maybe even naturally?), more cooperative than selfish. Perhaps we can ground the objectivity of the natural law of justice not in truth of the universe, but in truth of humans. I believe sincerely that metaphysical love and inborn communism exist deep in our nature. They are true and natural. They are the natural law.
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How is it possible to write about more than 2,500 years of intellectual history (history of ideas to be precise) without naming a thinker, quoting a text, or referring to a scholar? Where are Aristotle, Cicero, Aquinas, or Thomas Jefferson? Adam Smith, Mary Ann Glendon, Oliver Wendell Holmes, Wendy Brown?
Draft One was about a case that was never quoted or analyzed, encountered emotionally. Draft Two was about one article by Garretrt Hardin, but it never quoted the text or squarely dealt with its primary idea, ignored its context and misrepresented the field of inquiry it was analkzing. This is draft Three, a declamation about one of the most complex ideas in the human canon that is unmoored from text altogether, substituting emotional resonance for close engagement.
Essay Two is a beautiful exercise in emotional resonance, taking everything entirely personally. There's a pattern. We should meet it squarely. To succeed in law school and in law practice, others of your powers need to be fully engaged. They are present, but here unused. You and we need them now.
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