Sunday, July 05, 2015

Canonist Peters on the fatal flaw in Scalia's dissent

Edward Peters, "Antonin Scalia as the measure of how far we have to go" (In the Light of the Law, June 29, 2015):
But here’s the problem: Scalia’s dissenting opinion, while correctly arguing that Congress, and not the Courts, is the law-making branch of government in America, opens with this line: “The law can recognize as marriage whatever sexual attachments and living arrangements it wishes … It is not of special importance to me what the law says about marriage.”
While Scalia's dissent is brilliant in many ways, but while his personal sentiments are clearly Catholic, his legal reasoning displays the fatal flaw juridical positivism. What does this mean? In a nutshell, it means that law has no basis other than what is posited by human legislation. In other words, the basis of human law in natural law is no longer assumed.

Let me illustrate using an example from C.S. Lewis:
EVERY ONE HAS HEARD people quarreling. Sometimes it sounds funny and sometimes it sounds merely unpleasant; but however it sounds, I believe we can learn something very important from listening to the kinds of things they say. They say things like this: "How’d you like it if anyone did the same to you?"--‘That’s my seat, I was there first"--"Leave him alone, he isn’t doing you any harm"--"Why should you shove in first?"--"Give me a bit of your orange, I gave you a bit of mine"--"Come on, you promised." People say things like that every day, educated people as well as uneducated, and children as well as grown-ups.

Now what interests me about all these remarks is that the man who makes them is not merely saying that the other man’s behavior does not happen to please him. He is appealing to some kind of standard of behavior which he expects the other man to know about. And the other man very seldom replies: "To hell with your standard." Nearly always he tries to make out that what he has been doing does not really go against the standard, or that if it does there is some special excuse. He pretends there is some special reason in this particular case why the person who took the seat first should not keep it, or that things were quite different when he was given the bit of orange, or that some thing has turned up which lets him off keeping his promise. It looks, in fact, very much as if both parties had in mind some kind of Law or Rule of fair play or decent behavior or morality or whatever you like to call it, about which they really agreed. And they have. If they had not, they might, of course, fight like animals, but they could not quarrel in the human sense of the word. Quarreling means trying to show that the other man is in the wrong. And there would be no sense in trying to do that unless you and he had some sort of agreement as to what Right and Wrong are; just as there would be no sense in saying that a footballer had committed a foul unless there was some agreement about the rules of football.
This is about the most concise illustration and explanation of natural law I can think of. The only justice of the Supreme Court who still shows any evidence of adhering to natural law as a foundation for human law is Clarence Thomas. (Interestingly, Joe Biden opposed Robert Bork's nomination to the SCOTUS because he DIDN'T believe in natural law, then opposed Clarence Thomas' nomination because he DID believe in it, which tells us something about the character of Catholic politicians these days.)

The very best introduction to the contemporary crisis in jurisprudence is Law and Revolution: The Formation of the Western Legal Tradition,which ought to serve our times as the equivalent of William Blanckstone's Commentaries on the Law of England for his time.

Related: Ann Barnhardt, "On Scalia’s Dissent" (Judica me, June 26, 2015).


Amateur Brain Surgeon said...

As others have long observed, America is a nation of Judaised Protestants who wanted complete separation from Jesus and His authoritative Universal Church and our putatively blessed forefathers had the gnostic notion that they could interpret Holy Writ according to the light given each man by the Holy Ghost but that they could draft a Constitution that their descendants would revere and adhere to.

(Such malign evil is condemned. See Denzinger 1689)

And what is even insaner, many in the legal profession claim to be strident adherents of original intent but they can't agree with each other over what that means for the putative original intent has been completely eviscerated by rulings of former SCOTUS Justices and to which fanciful rulings current SCOTUS Justices are expected to pay moral and legal obeisance.

These are just a few of the uncountable blessings of a democracy in which the will of man has supplanted the Will of God and the authoritative Kingship of Christ the King

Try to even imagine a Catholic SCOTUS Justice saying those words in oalr argument, say nothing about citing His Kingship in a written decision.

No, Catholic Judges know they are forbidden to reference Jesus and His Kingship and His Church and His Commandments and they seem quite content to take decisions they objectively know are entirely contrary to the Kingship of Jesus Christ.

And they are identified as good Catholics for acting that way.

As for our Pope and his silence about the recent rape of Regal reason by the SCOTUS, how can one not think his silence signals agreement.

And our Catholic Bishops continue to pray for Religious Liberty which a former Pope, in Quanta Cura, taught was INSANITY (See Denzinger 1690)

O, and as regards the insanity of religious liberty, ABS can easily check that in his copy of Denzinger because he has a 1955 edition whereas those who have the 1965 and newer editions can not read that for it has been eliminated following the besetest council ever.

Yes, continuity demanded that 1688-1690 be excised from newer versions of Denzinger so as to not show, in black and white, how the patrol council revolutionised doctrine but one doesn't get to see that evidence adduced unless he reads sede blogs like Novus Ordo Watch.

ABS has long known he is on his own and he has long known that the Prelature will not stand and fight this massive and grave evil we have allowed to overtake and rule us but could we at least not have prayer vigils storming Heaven with prayers for the triumphalism of insanity?

Amateur Brain Surgeon said...

Pope Leo XII Immortale Dei

Hence, lest concord be broken by rash charges, let this be understood by all, that the integrity of Catholic faith cannot be reconciled with opinions verging on naturalism or rationalism, the essence of which is utterly to do away with Christian institutions and to install in society the supremacy of man to the exclusion of God. Further, it is unlawful to follow one line of conduct in private life and another in public, respecting privately the authority of the Church, but publicly rejecting it; for this would amount to joining together good and evil, and to putting man in conflict with himself; whereas he ought always to be consistent, and never in the least point nor in any condition of life to swerve from Christian virtue.

This ought be applied to all the CINOs on The SCOTUS

And we have all the other Catholic Politicians approaching Holy Communion after doing that which was condemned by Pope Leo XII and yet we have a Pope who appears to be far more concerned about AGW and has remained silent on this, and other, SCOTUS decisions.

Isn't it fun to be a lone sheep surround by wolves?