Clueless on the Court

No one can escape the advocacy of right and wrong. It’s an inescapable concept. Some will call good evil and evil good (Isa. 5:20), but there is no way to hide from the inevitability of proposing that some things are good and other things are bad even if we disagree on what those things are. Others will claim to be moral relativists, but in practice they do believe in moral absolutes, especially when it comes to their person and property.

Supreme Court Justice Anthony Kennedy has recently said that the “rule of law” must be made clear if other nations are to follow our call for freedom.[1] Unfortunately, the court has not told us the foundational basis of law. If you remember the Clarence Thomas hearings, even natural law was discounted because there are a variety of natural law theories. This meant, according to Joseph Biden, “natural law reasoning must be dynamic, capable of change.”[2] I wonder if Senator Biden would be comfortable applying such an operating presupposition to the definition of murder and marriage? Of course, it’s already been done. Preborns can be murdered, and the courts, contrary to overwhelming public opposition, are hell-bent on redefining marriage so as to include some very unnatural relationships. There can be no rule of law in an evolving universe.

The problem goes deeper than the conservative-liberal culture wars. Ludwig von Mises (1883–1973), the patron saint of modern Libertarian thought, has the same foundational problem:

There is, however, no such thing as a perennial standard of what is just and what is unjust. Nature is alien to the idea of right and wrong. “Thou shalt not kill” is certainly not part of natural law. The characteristic feature of natural conditions is that one animal is intent upon killing other animals and that many species cannot preserve their own life except by killing others. The notion of right and wrong is a human device, a utilitarian precept designed to make social cooperation under the division of labor possible. All moral rules and human laws are means for the realization of definite ends. There is no method available for the appreciation of their goodness or badness other than to scrutinize their usefulness for the attainment of the ends chosen and aimed at.[3]

This utilitarian approach begs the question. Why is anything right or wrong in the first place? What is right and wrong? Where is the origin of the distinction? The late legal scholar Arthur A. Leff understood the problem, but he, too, was unable to offer an ultimate reason why anything was right or wrong: “ There arose a great number of schools of ethics—axiological, materialistic, evolutionary, intuitionist, situational, existential, and so on—but they all suffered the same fate: either they were seen to be ultimately premised on some intuition (buttressed or not by nose counts of those seemingly having the same intuitions), or they were more arbitrary than that, based solely on some ‘for the sake of the argument’ premise. I will put the current situation as sharply as possible: there is today no way of ‘proving’ that napalming babies is bad except by asserting it (in a louder and louder voice), or by defining it as so, early in one’s game, and then later slipping it through, in a whisper, as a conclusion. Now this is a fact of modern intellectual life so well and painfully known as to be one of the few which is simultaneously horrifying and banal.”[4]

Alan Dershowitz rejects “absolutes and divine endowments” as a source for defensible rights. He proposes “an experiential approach based on nurture rather than nature. This approach,” he says, “builds a theory from the bottom up, not from the top down. [5] Dershowitz continually talks about “rights” and “wrongs,” but he does not account for the concepts themselves or what makes something ultimately right or wrong. His “bottom” hangs in midair. He says that “there is widespread agreement that we never want to see a recurrence of” certain past atrocities, and “most reasonable people regard terrorism directed at civilians as unjust.”[6] So what? What if there is widespread agreement that these so-called atrocities are good for us and our planet?

John W. Robbins writes, in his critique of Ayn Rand’s Objectivist philosophy, “That the structure of knowledge that she erected, in which metaphysics depends on epistemology, ethics on both, and politics on all three . . . eliminated the possibility of both limited government and the laws of logic. She smuggled those ideas in from Christianity, whose structure, whose systematic philosophy, she rejected.”[7] Of course, she was not alone. Dershowitz, Mises, and Leff do the same thing, as do many of today’s ethicists who formulate a moral worldview from borrowed material.[8] Not only don’t they have any straw to make bricks (right and wrong), they don’t even have the clay (the concept of right and wrong)! As Rushdoony shows, there is no way to construct moral precepts from the operating assumptions of a naturalistic, matter-only worldview.

Thus natural man does have knowledge, but it is borrowed knowledge, stolen from the Christian-theistic pasture or range, yet natural man has no knowledge, because in terms of his principle—the ultimacy of his thinking—he can have none, and the knowledge he possesses is not truly his own. . . . The natural man has valid knowledge only as a thief possesses goods.[9]

Rushdoony is not saying that non-Christians don’t have knowledge of things, reason reasonably, or act justly. He contends that these supposed “self-evident truths” presuppose a transcendental starting point. Outside the biblical framework, if a person is consistent with his naturalistic presuppositions, morality is impossible. The reason there is little respect for the “rule of law” is because for decades now the world has been told that there is no such thing. Now that the world is living according to what they’ve been told, the guardians of law are flummoxed.

Endnotes:

[1] http://newsmax.com/archives/ic/2006/8/6/202459.shtml
[2] Joseph Biden, “ Law and Natural Law: Questions for Judge Thomas,” New York Times (September 8, 1991). For a critique of Biden’s self-contradictory thesis, see Phillip E. Johnson, “ Nihilism and the End of Law,” First Things 31 (March 1993), 19–25.
[3] Ludwig von Mises, Human Action: A Treatise on Economics, 3rd rev. ed. (Chicago, IL: Contemporary Books, Inc., 1966), 720. [4] Arthur Allen Leff, “Economic Analysis of Law: Some Realism About Nominalism,” Virginia Law Review [1974], 454–455). Also see Leff’s “Unspeakable Ethics, Unnatural Law,” Duke Law Journal (December 1979).
[5] Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights (New York: Basic Books, 2004), 6. [6] Dershowitz, Rights from Wrongs, 7. [7] John W. Robbins, Without a Prayer: Ayn Rand and the Close of Her System (Hobbs, New Mexico: The Trinity Foundation, 1997), 19. [8] Michael Shermer, The Science of Good and Evil (New York: Times Books, 2004).
[9] Rousas J. Rushdoony, By What Standard? An Analysis of the Philosophy of Cornelius Van Til (Philadelphia, PA: Presbyterian and Reformed, 1958), 24.