Religion and Justice

I have long wondered why so many judges speak of “justice” as if they understood what the word meant. As I have observed at other times and in other ways, “I don’t do justice, I do law.” This brought me to another question: Does my ignorance of the meaning of “justice” arise from my lack of religious belief?

I want to be clear. I deeply admired the late Christopher Hitchens both for his writing and his courage. His book God Is Not Great: How Religion Poisons Everything (2007) impressed me. His contention that organised religion is “violent, irrational, intolerant, allied to racism, tribalism, and bigotry, invested in ignorance and hostile to free inquiry, contemptuous of women and coercive toward children” and that accordingly it “ought to have a great deal on its conscience” strikes me as historically and factually accurate. But, unlike Hitchens, I don’t claim to be an atheist–I don’t hate religion or have any need to deny it. I suppose you might call me an agnostic, but I don’t like that word very much either. Truth is, I don’t care about religion and I don’t think much about it. Never have. Thus, I shy away from descriptions about my lack of faith, not because I fear the consequences, but because such things bore me.

Back to my statement about “not doing justice” and instead doing law. Warren Urbom, perhaps the greatest federal trial judge of the 20th century, once asked me about that statement some months after I first made it to a group of federal public defenders. He came to see me in my office precisely because he was very troubled by what I had said. He was not critical of me, he simply wanted me to explain myself. I did my best, but I could see confusion written all over Warren’s gentle face. Remember, he wrote a great book entitled, “Called to Justice: The Life of a Federal Trial Judge (Law in the American West), University of Nebraska Press (October 1, 2012). For Warren, there was no distinction between law and justice. With his deep and abiding Methodist faith, he could not imagine it being otherwise. And that brings me to the point of this post.

Judges who claim to know justice are almost invariably men and women of faith. Now, I don’t mean to suggest that their faith dictates their legal opinions in any overt way.  For example, I think it absurd to claim that the decision of a highly rational federal judge like Judge Urbom comes from the pages of a particular scripture. It is much more subtle. Like Warren, the religious judge strives for justice in all things and does so without thinking–it is as much a part of the judge as his or her DNA.

You ask: So what?  Like Captain Obvious, the connection between religion and justice, so obvious to others, is a revelation to me. It helps me understand the certainty that so many great judges express when they write or speak about justice. It also explains why I shudder slightly at the thought.

RGK

 

59 responses

  1. So, how do you charge a jury in a criminal case as to what they must find before rendering a verdict? The answer to that question will tell you the difference between law and justice.

  2. Judge,

    I find it no coincidence you are writing this post today. As a woman of faith, I have tempered ALL my views based on what I believe to be Truth – the Word of God. Not only do I consider the Word, but I also consider revelation during times of meditation and contemplation. I have experienced moments of knowledge that I KNOW I didn’t have knowledge of (if that makes any sense to you).

    As a Christian who has walked the path AND fallen from the path (we all face trails in life that make us question our faith), I must say I would rather live WITH HIM than without Him. Honestly, my life simply “works better” with Him in it.

    In our world, individuals with faith, in my opinion, are viewed as ignorant or uneducated (I am NOT referring to your article, but my own personal encounters). To that statement, I strongly disagree. As you so wonderfully stated above – ethics and justice are two entirely different subjects.

    After reading your post “A Do Nothing Supreme Court,” I found myself impressed that you were able to easily separate the law from any personal opinion. You have challenged me to do the same!

    If you are ever bored and would like to read my blog (it contains a lot of “faith” articles), I would be honored. my link: http://theresahaskinssharinglife.wordpress.com/. Of particular interest may be blogs posted this year – 2014. Long story short, I was adopted as an infant and this year (at the age of 51) social services was able to locate my birth mother. There is NO DOUBT in my mind that God has been in control of my entire life – and I will give Him the honor He deserves.

    I really enjoy reading your blog and will continue to do so – as you challenge my legal knowledge and assist me in becoming better at what I do (labor and employee relations specialist for the US Navy).

  3. I think there’s a third way, besides law and justice. Call it compassion, for want of another word, which you have a firm grasp of, Judge.

  4. Judge:
    As a proud atheist who is also an adjudicator, I view justice quite simply: giving to each individual that which they truly deserve. No more and no less. Your professed agnosticism does not bar the true administration of same as my definition is entirely secular in nature. But kudos to you for having the moral courage (in public, no less!) to ask this question.
    Robert

  5. Faith teaches me that in a World presenting so much evidence to the contrary,. life has meaning that I do not impose on it, that there is meaning beyond the hows of science, a realm that answers my why questions. That leads me to believe that our moral vocabulary reflects more than our preferences and that there are right answers to questions about right and wrong or justice and injustice. However, I am profoundly skeptical of a lot of my own answers, which I know our products of time, place, and personal history. I know gross injustice and cruelty when I see them but most issues of lawyering and judging leave room for debate with no shock to the conscience. Our legal tradition makes enough moral sense that I am content to do law and hope for justice..
    On the other hand the tradition of treating issues of fairness and justice as questions of taste, as in the judge imposing his own values talk is nonsense, most judges are not that clever. The value debates in Con Law for example are debates within a shared legal and moral tradition. Faith in democracy without belief in a sense of shared values strikes me as folly, the rise of constitutionalism in Europe reflect a memory of how evil democracy can become.
    In the end I share your fear of judicial activism though I share Thayer’s view that in the constitutional area it encourages an infantile politics and political posturing. When I become too sure I remind myself of Holmes line that time has upset many fighting faith, and I work out my ego inflation by writing comments like this.

  6. Thank you for the thoughtful observation — it is especially valuable because of your willingness to acknowledge the difficult task of understanding the mind of others. Your post recognizes a basic difference between you and Judge Urborn without implying your superiority — another difficult task.

    Like you, I enjoy Hitchens’ writing, though at some point I grew tired of reading observations that are well-written, completely accurate, and of no consequence. Hitchens’ provocative language and rhetoric is perhaps one of the best examples of “preaching to the choir” I can imagine.

    One way of thinking about the difference between serving law versus justice is to consider how an Article III judge might behave when called upon to enforce a law that is unquestionably unjust (at least in the judge’s mind). My sense is that a judge committed to law would have little difficulty accomplishing this task (though the judge might be seriously troubled by the law at issue). On the other hand, I struggle to see how a judge pursuing justice could do so and simultaneously serve the purposes of the judiciary. Of course, this may be an illustration of my ignorance. I would welcome any thoughts about how to work as an instrument of the law while attempting to do justice.

    You suggest that Judge Urborn might reject the premise — possibly believing that there is no distinction between law and justice. That suggests that justice is as malleable as the law, which I had never considered. Is that what you mean to say?

  7. As I’ve said repeatedly (on the blog and elsewhere), I don’t know what Justice is.

    And in a world where we can’t agree about whether the government should get to kill folks convicted of crimes or whether everyone’s entitled to health care or whether the government should be in the business of deciding whether two people of the same sex should be allowed to marry each other (or what that governmental decision should be if there should be one), it’s hard to imagine that even the folks who pretend to know what justice is would agree with each other.

    That much said, I think I have a pretty good handle on injustice, which too often I think is supported by a formalistic legalism.

    And while I’m comfortable calling myself an atheist, I believe deeply in mercy and grace. Whatever Justice might be, I think they’re something very different.

  8. DBS,

    I believe that “law” is less malleable than “justice,” at least Anglo-American law. “Justice,” on the other hand, is dependent upon on the numerous philosophical or religious meanings of the term. Stated more simply, law, properly understood, depends far less on the normative beliefs of the judge than does justice.

    In the end, I do not see the job of an American federal judge to do “justice” but rather to determine and apply the “law” regardless of whether the outcome is just or unjust as measured by the idiosyncratic meaning of the word “justice.”

    I hope this helps you understand my view. All the best.

    RGK

    PS I am reluctant to speak for Judge Urbom.

  9. repentinglawyer,

    Eloquently put. Although I don’t think you intended it, I am chastened (although not persuaded) by your comment. All the best.

    RGK

  10. Theresa,

    Thanks ever so much for your heartfelt comment. I don’t deny the validity of your faith just as I do not embrace it either. All the best.

    RGK

  11. Dear Robert,

    Thanks for your kindness. However, at my age and stage of life, very little I do requires courage. That is particularly true of this post.

    All the best.

    RGK

  12. Judge, pardon me, but you’re confused again.

    Plato’s Republic could sensibly be called the seminal text of western civilization. The question it dealt with from beginning to end was “What is Justice?” It was not the work of a religious man, or at any rate certainly not a Christian man, since it predates Christianity.

    Questions of what is or is not justice in this or that case are questions of reason, not faith. It might be described as “metaphysical” reasoning, which to a positivist such as yourself is a term of disparagement, but I should think even to a positivist questions of justice cannot fairly be said to have been derived from religion. As a matter of plain historical fact that’s not so.

    I think renouncing the obligation to achieve justice is a disturbing approach for a judge to take. In fact if I were running things it would be disqualifying, not that there’s any danger of me running things. Or running anything, for that matter.

    If you think there’s no such thing as justice how do you interpret the prosecutor’s ethical obligation to do justice? You must view that obligation as just so much mumbo-jumbo. Don’t you regard that, at least, as a serious problem for you as a judge?

  13. Jeff,

    Fascinating point. Without intending to get too deeply into the matter, the trials of the German judges after WWII essentially rested on that very point. German judges may not have had a universally recognized obligation to be just, but they did have a universally recognized obligation not to be unjust. All the best.

    RGK

  14. JMRJ,

    Since you rely on Plato and The Republic, I assume you realize that Plato’s conception of justice was very, very different than any of the common notions of “justice” that are in vogue now. I assume therefore that you are not suggesting the adoption of the Platonic conception of justice.

    As for ethical rules, I enforce them just the way I enforce other legal rules. I apply legal reasoning to the rules and to the facts. I don’t need “justice” as a guide.

    All the best.

    RGK

  15. mswales,

    The rejection of “justice” as an achievable goal does not require the rejection of empathy. Thanks for recognizing the difference.

    All the best.

    RGK

  16. Judge,

    For an extra-judicial contemporary view of justice, look at Professor Michael Sandel’s book “Justice: What’s the Right Thing to Do?” Confirming your comment, Plato gets only a passing reference, while Aristotle gets a chapter.

    And, just as aside, what’s a federal judge — who wants to dispense law rather than justice — to do with FRCP 1, which requires the judge “to secure the just, speedy, and inexpensive determination of every action”? How does the judge dispense justice when commanded by the law (or court rule) to do so?

    All the best,
    JKH

  17. Try coming up with an agreed definition of religion before buying Hitchens religion and violence thesis , it probably can not be done, religion is too variable across time and the context of the violence too important, eg the role France played in the wars of religion.. Even the role of reason in the life of faith is an issue in contest despite Scalia’s view in the Beard Argument that religious commands are categorical and not subject to reason. On the other hand what the Brits called bloody mindedness is real and dangerous. That we have a shared sense of injustice helps, but what perhaps help more is to recognize that the are ideas of justice built into the common law tradition, which do not turn us lose in the great books in search of definitions. The Canadian political philosopher use to speak about English Speaking Justice. If we do not focus on the hot button issues like ACA, cap. punishment, and abortion we might find American Speaking Justice though with dialects.
    Along with his rosary we put the Spirit of Liberty in my Dad’s coffin because he loved Hand’s definition of that Spirit as the Spirit that is not too sure its right. Church say amen.

  18. This is a bit off topic, but did Hitchens mean to include Quakers in his dis of religion? My family ancestors were Quakers. His view just doesn’t mesh with my understanding of Quaker beliefs and practice.

  19. RNJ, of course I don’t speak for Hitchens, but I think it’s fair to say he thought all whose actions are guided by a belief in (as he put it) “three invisible men in the sky” were worthy of his scorn. I think his actual views were a bit more nuanced than the confrontational notions in his articles, however. For instance, he responded in an interview as follows:

    But are all religions equally reprehensible from a moral standpoint?
    Yes, I think so. If not morally, intellectually reprehensible. They all say you should surrender reason to faith, which is what I think the original problem is. Obviously a Quaker is not a jihadist. Quakers don’t preach anything evil. But they preach non-resistance to evil, however, which I think is an evil notion, but it’s not the same as putting a bomb in a girl’s school in Belgium. The surrender of reason to faith is what leads to those bombs going off in Belgium, so I’m opposed to any of those surrenders.

    Also, I recall that at one point he was sending his daughter to a private school that claimed to be based upon Quaker principles (though I’m not certain about that). So you’ll have to reach your own conclusions about how he might have answered your question.

  20. Well, Judge, be fair. Without agreeing or disagreeing with any contemporary notion of justice, or Plato’s for that matter, that’s not the point. It’s one thing to say that notions of justice differ, it’s another to say that the very idea is unintelligible and never susceptible of an answer, metaphysical or otherwise. Your position is the latter.

    In a very simple situation it’s clear enough: let’s say I ding a parked car in a parking lot. It is obviously unjust not to leave a note and obviously just to do so. The fact that situations get more complicated where answers are not so clear doesn’t invalidate the idea itself, it just makes things more difficult.

    Ultimately questions of epistemology are involved. In that vein, why would you place any value upon “reasoning”, legal or otherwise? Reason is as metaphysically mysterious as justice. Seems to be innate and inexplicable, but we use it all the time.

    In philosophy or poli-sci classes there are no consequences to opinions about this subject, but in courtrooms there are.

  21. Traditional Christianity has never maintained that reason should be surrendered to faith, although different sects may talk that way. I can’t speak for any other religions.

  22. Judge, I appreciate the candor of your post. How does the idea of “I don’t do justice, I do law” translate in the sentencing context? As a former federal prosecutor, I always thought the s.3553 factors aspired to articulate those factors that could guide a “just” sentence. Does “I don’t do justice, I do law” favor the quasi-empirical, calculator-like approach of the Sentencing Guidelines?

  23. JMRJ that is a bit of an overstatement the emphasis on Divine inscrutability and epistemic falleness in the Reformed tradition, for example requires that reason make no independent claim against revelation. The most famous modern example is Barth’s no to Emile Brunner on Natural Law. More generally the Divine Command theory, at least in the voluntarist tradition tends to that view. Scalia’s remarks are exemplary of that trend in some Catholic thought, but I do not think he learned that from the Jesuits.

  24. Quakers stood for much more than resistance to evil, they stood for full women’s rights, pacifism, anti- slavery, and were anti establishment to traditional religion. They believed each person has an’inner light’ and no one needs a minister to tell them what is right or wrong. I am not a practicing Quaker but have close relatives who are. They did consider themselves Christian but far differently than their contemporary Anglicans and Catholics. Interesting that Hitchens sent, maybe, his daughter to a Quaker school. Many contemporary Jewish faith parents send their children to Quaker schools.

  25. Do we even need to share a “moral tradition”? Though I am sure he did not intend it, by explaining the social contract in purely contractual terms, Locke proved that we don’t need to have a shared belief in an impotent sky-fairy to have a functional society. Muslims, Christians, Hindus, Druids, Buddhists, Wiccans, and apostates of every stripe are all accommodated.

    The problem with “faith” is that it is easier to misplace than your keys. Think Herff Applewhite and Heaven’s Gate.

    As for me, I could care less about “justice,” as long as I receive the protections of the rule of law (as opposed to the rule BY judges).

  26. repentinglawyer: When I say “traditional Christianity” I’m referring to pre-reformation. Briefly, the position was that religion was beyond reason, not in contradiction to it. This was consonant with the opinions of the pagan Greeks of antiquity, especially Plato and Aristotle, who featured prominently in the thinking of Augustine and Aquinas, respectively. The idea that reason has to be abandoned in favor of religious belief simply isn’t a traditional Christian one.

  27. On second thought, that sounds a bit harsh. Perhaps it would be better if I said that we don’t have to argue over which god exists or none for Locke’s social contract to work.

  28. Sir, this post really struck a chord with me. I’m a deist in the middle of the Bible belt and surrounded by those who either want to “save” me or who are sure that I’m going to hell.

    While you do apply the law to the facts and circumstances of the cases before you, I think that you are correct that justice is not necessarily served by the application of law. No, justice is much more nebulous, and is oft served in spite of the law, not because of it.

    Justice comes in examples of discretion exercised, not the law applied. Justice comes from a Sheriff Andy Taylor calling the fathers of misbehaving boys instead of taking more serious actions. Justice happens when a judge recognizes that putting Kris Kringle in a mental hospital would not serve society. It happens every day in hundreds of things that those involved in the law do, often without thinking about it, but just because it is the right thing to do.

    Judge, I know that my examples from TV and movies may not and do not reflect what happens in the real world, but I also know that you know what justice is and should be. I could comb your decisions and post example after example of justice, could post examples that you have discussed here, or could contact those who know you and get concrete examples. You question yourself because you value reason and the law, and you know that like all humans, we are all fallible.

    I would rather model myself after someone who questions this process than one who is sure that what he is doing is justice. It is the difference in the attorneys in Inherit the Wind, and whether one would prefer to be sure of his version of justice, like Matthew Harrison Brady, or to be one who questions justice and the law, like Henry Drummond.

    So from one who has no business telling a district judge what is and is not justice, I think I would rather be in “ignorance of the meaning of ‘justice'” rather than be sure of it.

    Regards,

    ECLS

  29. What scares me the most is that so many judges feel that they have been called by their god (Rom. 13:1 proclaims that our rulers are chosen by their god!) to impose their provincial — and frequently, sadistic — beliefs on people like me from the bench. (Judge Kopf is not the rule, but the exception, and I applaud him for it.)

    The Gospels are simple hearsay, replete with insuperable contradictions. They can’t even seem to agree on where the risen Jesus first appeared to the Eleven (Matthew claims Galilee, and Luke, in Jerusalem; the two sites are 100 miles apart as the crow flies, and the gospel of John confuses it even more egregiously), and Jesus apparently escaped the notice of every secular historian of the day (the reference in Josephus is generally regarded by scholars as a Christian forgery). It is fare for the ignorant and/or uneducated, but how a rational attorney could swallow such nonsense whole is beyond me.

    I would have striped Urbom so badly, he wouldn’t have sat down for a month: “If you can prove by the presentation of objective evidence that your god exists and no other, then I will apply his laws. But unless and until you can, keep your bizarre superstitions to yourself!”

    I agree with the Judge: his job is not to dispense justice, but to apply the law. Quetzlcoatl might know what “justice” is, but I do not.

  30. Justice can also be a matter of perspective (or rather influenced by it). It’s entirely possible for two individuals to look at a situation for one to say justice was served and the other to disagree.

    Weirdly enough I just finished re-reading “The Bonfire of the Vanities” in which the concept of justice is a strong theme.

    With a concept like law, I think a correct answer can be divined. Law relates more to a societal perspective as well. That’s not necessarily the case with justice. Rather I think justice is more personal and molded by an individual’s philosophy.

  31. JMJR The idea of an undivided tradition in the Middle Ages is not I think accurate, The Augustinian tradition in the hands of Scotus and Okham emphasized Divine power in a way that leads to strong divine command morality which tends to subject reasoni to revelation in a way that fits Scalia’s model of categorical and beyond reason on religious mandates. In the SJ version of Thomas I was taught this of course leads to the Reformation. I suspect Franciscans held a different view. Its influence in RC thinking remained strong, particularly when dealing with legal texts.Mahoney’s Making of Moral Theology is quite good on this

  32. Curmudgeon, the Social Contract as an explanation is as fanciful as any sky creature..When was it made, what were its terms, why are we now bound by it. Conversly if you have not noticed the impact of Locke on America’s political and moral tradition you have not been paying attention. Richard Epstein is a good example of that influence at its most extreme. Moreover that Lockian tradition draws lines between the individual and the state that can only be classified as moral. If any religion can be accommodated with the contract that is because it is a classic liberal model designed to a kind of privatized religion.
    The idea of autonomy particularly when coupled with body ownership makes a nice package of arguments for Roe, particularly if you accept the idea of Locke’s influence on the Constitution. But Roe is supposed to be an example of judges imposing their own values.

  33. Not if you accept Barnett’s “presumption of liberty.” For good or ill, the Constitution only extends 5Am protection to “persons” and, at common law (take that, Scalia!), it only extends to those who were born (or, in Scalia’s world, hatched at the Secretary of State).

    If the State has no identifiable legal interest in protecting a zygote, how is it an example of “judicial activism” to recognize this fact?

    Why SHOULD the State have a say in whether a particular woman carries a particular fetus to term? (China claims that right, fwiw. Do you think the State should be able to mandate abortions?)

    I would ask you to listen to Judge (retired 10CA) McConnell’s lecture, starting at about 29 minutes in (https://www.youtube.com/watch?v=bLANRrZPm-k — if I got the URL wrong, google mcconnell sumner canary lecture). One of the virtues of social contract analysis is that we don’t have to argue over whose god exists (and I know you have no chance of proving that yours does). It is explained well in the New Hampshire constitution, and I can find nothing fanciful about it.

    Morality doesn’t enter into it (and Christians don’t even have a moral god, in any event). The transaction between the citizen and society is clearly delineated; when the social contract is materially breached, it is void. N.H. Const. art. 3. No angels, no demons, no heaven, no hell. Just reason.

  34. Art, you completely miss the point. You cannot fairly approach the subject of “religion” without some context.

    At the foundation of western thinking, long predating Christianity, there is a hierarchy of “knowledge” where empirical observations are at the bottom, followed by the truths of what might be termed “pure reason” (e.g., the truths of mathematics) that do not depend upon empirical observation, and then later by the “truths” of “faith” in Christianity. The latter are unimportant to this discussion. The important thing is to understand that reason trumping observation is not a Christian idea at all, or even a religious one.

    It wasn’t until the 18th century that “empiricism” caught on; that is, the idea that empirical observations are the highest, or maybe only, form of knowledge, not the lowest. Obviously this is an inversion of traditional western thought.

    It’s not necessary to take sides here, just to understand as a matter of historical fact that this is how western thinking has gone.

    Traditionally, then, ideas of natural law and justice were considered to be validated by reason, not by faith in a god or gods or anything else. Empiricists, and especially positivists, believe the reasoning is flawed – or worse. But it’s simply incorrect to believe that someone advancing arguments based upon natural law or justice is trying to shove “religion” down anyone’s throat.

  35. First sentence of the 14A begins: “All persons born or naturalized…” The natural interpretation of this is that it simply isn’t addressing the question of whether pre-born human beings are “persons”.

    However, if you wanted to get technical about it and force that sentence to address something it plainly doesn’t, then the only rational interpretation is that the phrase is assuming that pre-born human beings are persons, since it refers to persons being born; that is, being born is something that happens to what is already a person.

    Not that I think that’s correct, but what is plainly incorrect is your assertion that the “constitution” only extends its “protections” to born persons. The abortion debate distinction between the “born” and the “unborn” just doesn’t have anything to do with the constitution at all, at least prior to the Roe decision.

  36. I was not taking a position on Roe, my point was that Social Contract theory was part of the common currency of moral vocabulary that shaped American Law. Barnett like Epstein is an example of that tradition. That a shared moral tradition delimits the reach of government and leaves a wide space for individual decision does not make it any less a moral tradition. The argument from property in favor of Roe is mine, though I am not sure how seriously I take it. I do not hold a divine command theory of ethics. I retired after 42 years of teaching to get away from a mail box full of Barnett’s off prints, and I admire McConnell but the only law professor I l;isten to is my wife.

  37. JMRJ On a developmental model of Con Law, with a little borrowing from J H Newman, Roe issue was raised by Griswold v Conn, and from the perspective of historical interpretation personhood started with expulsion and cutting of cord. While I prefer Harlan’s opinion from the prior contraception case, Douglas makes an argument for a zone of choice in Bill of Rights not that different in method from the legal tender case. While Blackmun’s opinion is no master piece and I kind of wish they had not, Roe can not be treated as an outlier.

  38. Well, Griswold was 1965, then Eisenstadt in 1972 then Roe in 1973. These cases were the SCOTUS’ excursion into sexual morality during the “sexual revolution”. I think it would be fair to call the whole line of cases “outliers”. I think subsequent history has demonstrated that, and even Justice Ginsburg seems to think the whole thing was a mistake.

    In fact the recent denial of all the same-sex marriage cert petitions, which seemed to disappoint and surprise a lot of SCOTUS watchers, didn’t surprise me. They can leave that issue alone, just as they should have left the abortion issue alone in 1973.

  39. Armando,

    Good question. In my opinion, section 3553(a) is like an ink blot test. You can find in it what you want. Thus, I look upon words like “to provide just punishment for the offense” as merely aspirational.

    All the best.

    RGK

  40. Curmudgeon,

    Not to pick a nit with you, but the common law has plenty of religious concepts embedded in it. That said, the method of common law reasoning–indeed all Anglo-American legal reasoning–tends, unlike the notion of seeking justice, to be product of reason rather than the product of religion. All the best.

    RGK

  41. ECLS,

    “I think I would rather be in ‘ignorance of the meaning of ‘justice’ rather than be sure of it.” Elegantly put.

    All the best.

    RGK

  42. Jeff,

    As I noted to a commentator with a similar question, I regard such words–“just” or “justice”–as aspirational and not a serious attempt to state a rule. All the best.

    RGK

  43. JMRJ,

    I think you misunderstand me, but perhaps only slightly. If you tell me the name of a serious philosopher or theologian who has studied the idea of “justice” and instruct me to follow that person’s articulation of “justice,” I can do so, although probably with less precision than secular legal reasoning. The more pertinent question for me is what conception of “justice” do federal judges intend when they employ the term as if it were self-evident.

    All the best.

    RGK

  44. JMJR Ginsberg before going on the Bench made the same criticism of Roe she now makes, too much too fast. Even Roberts defended Griswold at his confirmation hearing and threw in the 3rd Amendment. I thought the sexual revolution was caused by the invention of the latex condom in the 1890s. Too early to tell on gay marriage with 5th and 6th still out . Read the Irish Times enough to be dubious about total deference to bishops.

  45. JMJR Sic et non, arguments totally dependent on magisterium in reading natural law or outside the reading of natural law by those not of a particular religious persuasion come close. I would put instant ensoulment and no life saving abortions as near if not over the line.

  46. Well, let me be fair, too. The approach you are outlining here – although I object to the term “secular” legal reasoning, inasmuch as reasoning is reasoning, secular mathematical, empirical or otherwise – would no doubt be perfectly agreeable to me the vast majority of the time.

    Then you come to the difficult cases where it’s not clear to you, or perhaps to anyone, what the just solution is. This is where you earn your pay because you are forced to decide one way or the other.

    But there’s nothing wrong with saying – and it certainly doesn’t require the denial of the very idea of justice proper – that in this or that case the just solution is unknowable and we just have to do our best.

    Is justice “self-evident”? That’s probably the most useful way to describe it. It is known to us – or unknown, as the case may be – in precisely the same way we know (or don’t know) that reasoning is a valid activity that at least occasionally yields truth.

    This is, as I’ve indicated a number of times, a problem of epistemology. The most important thing I believe you need to grasp, if I may make such a suggestion, is not so much what justice is; it is that reason itself is very much in the same category as justice: things that cannot be observed but appear to be one of the ways the world works. You have faith in reason, which is fine, but when you deny faith in justice you’re employing a double standard: all the reasons you deny justice could apply to deny reason as well. Indeed such reasons have in fact been used to reject reason in the first place, if that makes any sense.

    Descartes says “cogito ergo sum” but as an axiom, not in need of any further demonstration. Justice, then, winds up being the same axiomatic idea as reason. Or love. No use denying it, really, although empiricists, utilitarians and positivists seem to be always going down that road.

    Thanks for the reply.

  47. Art – I don’t know where you practice (assuming you are a lawyer), but it must be in a kind of hell for you to get such a dark and dim view of “so many judges”. As for your intemperate condemnation of the best Judge I’ve ever known, His Honor Warren Urbom, you are simply off base. You have an awfully big chip on your shoulder about those who have faith in something beyond themselves. TIme to go back under my rock until the next time . . . . .

  48. You have two ways to become a citizen: to be born as one, or to become “naturalized.” The 5Am speaks of “persons,” and its meaning is imported from the CL. No room for the zygote there, I’m afraid.

    It is the Constitution we have, as opposed to the one you might want. The only principled way I can get from Point A to Point B (especially for an originalist) is an amendment.

  49. Ginsburg was testi-lying, like all who have to go through the process post-Bork. Thomas ran in terror from his defense of natural law, which is quite defensible.

    My view is that there is one right way to read the Constitution, even when I don’t like what it says. I don’t have to take a position on Roe to appreciate that Griswold was the only sound way to read the 9/10Am, especially in light of Madison’s statement of intent in the Annals.

  50. I would stipulate that my wife is the wisest woman I have ever known, except for the fact that I still have to account for the fact that she married me. 😉

  51. Absolutely, it does! One English judge observed that the common law is a codification of Christianity (don’t ask me for a cite!). But if you define the central value of Christianity as doing unto others as you would have them do unto you, there isn’t a lot of difference between the two.

  52. JMRJ,

    Ah, perhaps our disagreement does come down to epistemology. Let us investigate that then. In order to do so, you and I need a common language, so to speak. I think Holmes might provide us with one.

    Do me a favor. Read (again, I am sure) Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harvard Law Review 457 (1897). I agree with Holmes and the distinction he makes between understanding and applying law and understanding and applying morals (justice). He says:

    “I take it for granted that no hearer of mine will misinterpret what I have to say as the language of cynicism. The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law. For that purpose you must definitely master its specific marks, and it is for that that I ask you for the moment to imagine yourselves indifferent to other and greater things.

    . . .

    The confusion with which I am dealing besets confessedly legal conceptions. Take the fundamental question, What constitutes the law? You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of this mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”

    I would be interested in knowing whether you agree with the foregoing. If you do, then we are basically on the same page. If you don’t, then perhaps we can refine the areas of our disagreement if you honor me by taking the time to articulate how you disagree with Holmes and why.

    All the best.

    RGK

  53. Well, Judge, I read the article.

    For the first time, I assure you.

    I guess the first thing is that I don’t know why you picked those particular passages. On the whole the article is vintage Holmes, but if there’s some special significance to the passages you picked it certainly eludes me at the moment.

    As far as it goes, though, I do not agree that the law is, or could ever properly be, anything other than “…a system of reason…a deduction from principles of ethics or admitted axioms.” Holmes’ stated position appears to be that the law is what courts in fact do; that the ‘logic’ employed by judges is a mask for ‘policy’ preferences; that “…no concrete proposition is self-evident”; that the essence of a contract is not a “meeting of the minds” which cannot be empirically determined but “external signs”, which can, showing his devotion to empiricism and positivism, the dominant intellectual fads of his time. Especially in England.

    And he was certainly prescient here:

    “For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.”

    Not that I’m happy about that.

    But fundamentally, of course, even for Holmes the stated positions are too incoherent to really believe straight down the line. Thus slavish devotion to tradition and “antiquarianism” is “revolting” which of course is morality talk, as is his reference to the “bad man” which should be a meaningless concept to him if he took everything he said seriously. He obviously doesn’t. Elsewhere he says:

    “The law can ask no better justification than the deepest instincts of man.”

    which is essentially an endorsement of natural law, and he even refers to “an echo of the infinite” and the “universal law”. The mind always ultimately recoils at empiricism and positivism.

    He takes a few shots at Hegel (good) yet in parts also pays homage to him, Descartes and Kant (also good).

    I am reminded of concluding that “utilitarianism” rests on an oxymoron: how do you discuss the “principle of utility” when the whole point is to reject principles?

    Anyway, I hope I’ve answered your questions somewhat, Judge. Or at least provided some interest. Or a little amusement.

  54. JMRJ,

    Essentially, I take Holmes to mean that law is the study of legal outcomes so as to be able to predict for the client a result. It has a modest purpose. Morals, on the other hand, have a much grander purpose.

    One can be a lawman or lawwomen without consciously being a moralist (and here I don’t use moralist as a pejorative). While morals, often conflicting morals, are suffused in our law and legal history, the modern practitioner and modern judge need only be able to predict the outcome of a case by employing conventional legal tools–it is unnecessary (and perhaps unwise) for the practitioner or judge to deconstruct and then adopt or reject the moral reasoning that may sit behind a specific prediction.

    So, Holmes does not deny morality. He simply says it has little directly to do with the path of the law–being able to tell the “bad man” how a legal case will come out. He urges that we lawyers and judges should not confuse a prediction of the outcome (the law) with a normative judgment about the outcome (justice). He thus concludes (in another of his writings) that “I happen to prefer champagne to ditchwater, but there is no reason to suppose that the cosmos does.”

    In sum, Holmes was the ultimate skeptic. Many say that came from the horrors he witnessed during the Civil War, and his rejection of the concept that war had some high purpose. Ultimately, it is this skepticism about law being a grand tool for good, sometimes almost reaching the point of nihilism, that I think is very useful for lawyers and judges to keep in mind.

    All the best.

    RGK

  55. Judge, I don’t think the alternatives are simply a) law = morals = a “grand tool for good” v. b) law = study of outcomes = “modest purpose” of prediction of outcomes.

    Not to mention (b) is not just nihilism; it seems to have no content at all.

    Besides, as far as judges go predicting outcomes is easy: the government wins, the bank wins, the insurance company wins, the big law firm wins. Higher status prevails over lower status because anything else is – obviously – a threat to the status quo.

    This is what “policy” translates into in practice, although we can’t admit as much openly, and as Holmes comes right out and says we give reasons appearing to be grounded in ‘logic’ but in the end it’s all just a gloss for our policy preferences.

    I have to suggest this to you: skepticism bordering on nihilism is a little convenient for a judge in the sense that it’s a rationale for the denial of responsibility for outcomes that can often be catastrophic for one party or the other.
    Is that part of the reason you are attracted to that approach?

    I wouldn’t be entirely unsympathetic. There’s a judge I know who sat on a lot of murder cases and at a party one time her friends were discussing some murder case and she was so shocked at the facts and didn’t realize until later that it was one of the cases she had sat on years earlier. She thought: I’ve been doing this too long. How pathetic is that, to actually forget a MURDER case?

    I mean, sometimes the weight of it all can be too much, I think. People don’t appreciate that, the moral difficulty of being a judge. And one way to reduce the moral difficulty is convincing yourself that morality has nothing to do with it.

    Does that sound fair?

  56. In the oath of office you took required you to “do justice”*, so should I be troubled that you took the oath without (apparently) understanding what it required of you?

    * Unless the oath was formulated differently at the time you were sworn in…

  57. Anon.,

    I don’t think you should be concerned. 28 U.S. Code § 453 provides:

    Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.”

    I swore to treat people equally. That I am able to do no matter how one defines “justice.”

    All the best.

    RGK

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