The unexpected death of Justice Scalia of the United States Supreme Court, over the weekend, has weaponised still further, if that were possible, the ongoing presidential campaign. Scalia was a towering judicial force and his loss is truly a national one for America. The tributes, both sincere and vindictive, which have already been paid to him have highlighted the various conservative corners which he so eloquently and intelligently fought over the course of his career.
But perhaps his most estimable quality, certainly the one which will be most keenly missed in public discourse, was his willingness to inject the full force of his mind and character into his opinions, often for the dissenting side of the court. His greatest legacy, which is sadly far from secure on either side of the Atlantic, is an eloquent and unflinching body of argument not against some specific judgment, but against the stifling embrace of the secular-left group-think which is the dominant, if minority, voice in public discourse today.
Scalia’s ultimate enemy was not any individual policy or school of thought, but the condescending argumentation of emotive superiority by which they were championed. His faultless logic and undeniable mastery of legal theory made his denunciations of lazy liberal argumentation impossible to dismiss. His intellectual honesty and commitment to his own conclusions have resulted in his receiving some confused treatment in the last few days, with conservative and liberal commentators offering contradictory assessments of his school of thought.
Scalia’s signature school of legal interpretation was “originalist”, that is, favouring a literal reading of the Constitution according to the mind of its authors in the context in which they wrote, and rejecting the notion that it was a “living, breathing document”, possessed of some animate spirit which keeps it ever contemporary in its provisions. He was a plain text man who read only the words on the page and refused to adapt them to what he, or others, thought they could or should say when applied to new and unforeseen situations.
Yet, those on the left often called Scalia, who was a devout Catholic, a danger to the separation of Church and State in the United States, and frequently referenced his professed belief in natural law.
Natural law, as a legal concept, goes as far back as the (pagan) Roman empire and before, and has nothing to do with the tenets of a particular creed. Indeed, in the Roman legal tradition there was, under the natural law, the concept of the ius commune, which observed that some laws existed always and everywhere, both within the “civilised” peoples within the empire, and the barbarian kingdoms without. Such laws and legal principles were held to be part of basic human justice and existed, and were enforced, alongside those which existed by mere fact of local or national legislation. This understanding of a higher notion of justice, which was common to all mankind, was the ancestor of what are today often invoked as “basic human rights”.
Yet, while Justice Scalia was not shy about denouncing laws which seemed in obvious violation of basic principles of natural justice, this was usually done as a philosophical, not judicial, argument. Scalia’s view was often, much to the chagrin of many social conservatives, that of a “positivist”, that is, he treated the law as having only that authority which the legislator gave it, and meaning only that which its words actually conveyed. He refused to embrue laws, even the Constitution, with any special philosophical subtext which could be transferred and applied to other situations not treated by the text itself.
Legal positivism cuts against the grain for most people at an emotional level. It leaves unenforceable the Jeffersonian self-evident truths of the equality of man, and the right to life, liberty and the pursuit of happiness, unless they be expressly codified in legislation. The exclusion from judicial consideration of unenumerated rights, like, for example to privacy, essentially vest the state with total power to concede, or revoke, basic freedoms. It is, in short, not the kind of methodology one would expect from someone who believes, as Scalia surely did, that man derives his dignity and rights from God, not the government. It can be, and often is, equally anathema for those of no particular religious belief: there is not more profoundly secular event in Western history than the French Revolution, which was a bloody crusade for les droits de l’homme with the cry of liberty, equality, and fraternity.
Yet part of the problem with living, as we do in the West, in an increasingly fractured and pluralistic society, is that there is no longer a common consensus around what basic human freedoms and rights are. Does the right to life include children, unborn or even, as has recently been discussed by medical ethicists, newly born? Does the concept of the family have innate legal rights, and what does “family” even mean anymore? Does freedom of speech extend to mockery and offence, or only polite discourse? The ius commune no longer exists within countries, let alone between them. When consensus is lost around what the common values of a society are, legal positivism is the only true safeguard against the values of the majority, or even a minority, being imposed upon society at large.
The crisis which we face as a society, here in Britain, is about what truths, if any, we all hold to be self-evident. These are existential questions which we each answer informed by our cultural heritage, our education, our family background and, in the vast majority of cases world-wide, our religion. Unfortunately, matters of faith and belief are effectively excluded from sensible public discourse. In the US, Republicans candidates are obliged to gush about their faith during the primary season, but this rarely makes it past the cornfields of Iowa. In Britain, MPs are allowed, even expected to be, passionate believers in the NHS or in the welfare state, but one who is a passionate believer in God is likely to find themselves publicly suspected of being slightly unhinged.
Politicians are happy to speak indistinctly about “British values”, but the impossible awkwardness of defining what these are, beyond vacuous words like “tolerance” and “respect”, shows how uncomfortable we are discussing what should be our deepest and proudest beliefs and where they come from. If, as a supposedly tolerant pluralistic society, we refuse to engage, at the level of public discourse, with the most fundamental sources of values in most people’s lives, how are we ever to forge or preserve any kind of meaningful cultural settlement on what our values are? In the absence of such public discussion and consensus, there is always a risk of the soft imposition of the values of those in a position to do so on the rest of us, against which the last defence is the letter of the law, devoid of all spirit.
This is not the society any of us truly wishes to live in, but until we are willing to publicly discuss our values with the same passion we currently reserve for junior doctors’ overtime pay, its the best, and fairest, we can hope for.
This page is available to subscribers. Click here to sign in or get access.