As the confirmation hearings for Judge Neil Gorsuch were getting underway, the University of Wisconsin philosopher J. Paul Kelleher explored, in Vox, an important aspect of Gorsuch’s view of the world. Gorsuch has praised the late Justice Scalia’s “originalist” approach to interpreting the Constitution. But he has also been influenced by the concept of “natural law” — and even studied under a famous natural law theorist at Oxford. In this excerpt from that Vox piece, Kelleher explains natural law theory, and why it’s important for the senators voting on Gorsuch to consider its implications:
Because he has downplayed his interest in natural law in his more public remarks, it is crucial for senators to understand Judge Neil Gorsuch’s judicial philosophy and the connection it draws between morality and the law.
The natural law approach to jurisprudence is usually contrasted with “legal positivism.” Positivism is the view that which laws exist, and what those laws say, is a purely factual matter, one that can be investigated only by looking at conventional legal materials such as the congressional record and judicial precedents.
Natural law theorists argue that there is far more to the law than that. They hold that at least in some situations, one cannot know what the law is without first engaging in philosophical inquiry about morality and the nature of right and wrong conduct. These days, natural law theorists usually embrace one or both of two views on the connection between principles of morality on the one hand, and the law as judges must apply it on the other. Following the legal philosopher Liam Murphy, I’ll call these two natural law views the moral filter view and the moral reading view.
Two variants on natural law theory
To understand the moral filter view, consider a society with a gravely unjust law — one permitting slavery, say. And suppose this society has no other law or principle enshrined in its legal code that would condemn slavery. According to the moral filter view, a judge should invalidate the pro-slavery law by invoking a “higher law.” This is not, however, because the judge should care more about morality than she does about existing law. Rather, as his academic adviser natural law theorist John Finnis puts it, it is because when a true moral principle condemns a grave injustice, that moral principle itself “function[s] as a direct source of law and, in a certain sense, as already law.”
In other words, morality acts as a sort of legislative failsafe: When legislatures write horrible laws, morality steps in to rewrite them. And so when a judge strikes down a deeply unjust law by invoking a moral principle, the moral filter view allows her to say that she’s merely enforcing a more basic law that is, so to speak, already on the books.
Here is an example of the moral filter view in action. (I borrow it from Murphy.) After the reunification of Germany, a court found two former East German border guards guilty of shooting and killing a person who was trying to climb the Berlin Wall. The guards appealed the decision by arguing that when the event happened, their behavior was perfectly legal according to the laws of East Germany. In rejecting the guards’ defense, the appeals court cited a 1946 German law review article that claimed, in line with the moral filter view, that no matter what is written in the statutes, morality simply does not permit the existence of gravely unjust laws.
Now consider the other view a natural law theorist might embrace, the so-called moral reading view. The moral reading view isn’t so much concerned with condemning gravely unjust laws as it is with helping judges interpret the complex web, even mishmash, of laws they are expected to apply. According to the moral reading view, judges should not strive to be literalists about legislation or legal texts. Instead, they should sometimes step back and seek to construct the body of consistent moral principles that best justifies their society’s hodgepodge of existing laws. Then, when the law as written is silent or vague or contradictory, judges should infer what the law is from what the body of moral principles says it should be. Judges offer their own reading, so to speak, of which moral principles offer the best underlying justification for laws that are on the books.
The particular form of natural law that Gorsuch embraces
While these two natural law views are distinct, there is a sense in which adopting one means you get the other for free. This is because for any law that one wishes to label as “gravely unjust,” there is at least some moral reading of the broad edifice of US law that would condemn the law. That, after all, explains how both conservatives and liberals can each point to vague constitutional values like liberty and equality to justify very different judicial opinions. What this means is that if a judge endorses the moral reading view, she thereby gains all the moral filter she would ever need: If she thinks a law is gravely unjust, she can simply argue that the law is not consistent with (her view of) the best moral reading of existing US law as a whole.
Perhaps this two-for-one deal is why Gorsuch never discusses the moral filter view in his scholarly work. Instead, he commits himself only to the moral reading view, which he associates with Finnis, and which he uses to analyze end-of-life issues.
Gorsuch praises Finnis for arguing that certain very subtle distinctions in the law — distinctions some find legalistic and arbitrary — are nevertheless morally important and relevant to a sound moral reading of the law. His main example, and Gorsuch’s favorite philosophical topic, is the distinction between intending harm and merely foreseeing it. For example: While an aerial bomber in a just war would be morally wrong to target civilians intentionally, many philosophers allow that he can permissibly kill civilians when it is a foreseen but unintended side effect of a tactically essential bombing of a munitions factory.
This is sometimes called the “doctrine of double effect”: If the intended good effect (the destruction of a weapons factory) is a worthy aim, then the bad side effects (the civilian deaths) are morally tolerable, so long as the good sufficiently outweighs the bad, and so long as the bad is wholly unintended. As Gorsuch notes, the intention/foresight distinction that is at the heart of the doctrine of double effect also seems to buttress much jurisprudence concerned with crime, torts, and legal liability.
Gorsuch lauds Finnis for making three points regarding the intention/foresight distinction: 1) that the law in fact respects the distinction, 2) that the law is morally correct to do so, and 3) that the fact that the law is morally correct “can make a significant difference in the analysis of many legal questions.”
These propositions underlie the moral reading version of natural law theory at work in Gorsuch’s book on physician-assisted suicide. After arguing that the law as written is inconclusive, and that past precedents and leading moral theories cannot settle the assisted suicide issue, Gorsuch endorses Finnis’s theoretical defense of the intention/foresight distinction — a defense that classifies all intentional harms as categorically wrong — and claims that it offers the best moral reading of why the law punishes the murderer but not the doctor who withdraws life-sustaining treatment to fulfill a dying patient’s wishes.
Gorsuch then declares, baldly — and quite falsely, in my view — that physician-assisted suicide, as opposed to the withdrawal of life-sustaining care, always involves a doctor who intends to harm his patient. He concludes that courts may therefore rely upon Finnis’s moral theory to strike down laws permitting assisted suicide, even though “conventional legal materials” never explicitly reference that theory or its intricacies.
As Gorsuch puts it, “courts and legislators may wish to consider a less frequently voiced perspective on the assisted suicide and euthanasia question, one grounded in the recognition of human life as a fundamental good” that must never be harmed intentionally. While this conclusion is tinged with a scholar’s humility, his book’s upshot is clear: Courts ought to place physician-assisted suicide in the same legal category as any other intentional homicide.
The lessons for those considering putting Gorsuch on the Supreme Court
When natural law theories came up during Clarence Thomas’s confirmation hearings, the liberal legal philosopher Ronald Dworkin criticized senators’ handling of it. The senators, he said, mistakenly urged Thomas to embrace the ideal of the neutral judge, and Thomas eagerly obliged, disowning his past endorsement of a religiously based natural law view. (It is doubtful that Thomas’s interest in natural law was anywhere near as significant as Gorsuch’s.)
Dworkin was displeased because he, like Gorsuch and Finnis, thinks that judges have no alternative but to draw on their best moral reading when they rule on “abstract or vague or otherwise unclear laws, including the abstract clauses of the Constitution.” Dworkin wanted senators to annihilate the “myth of judicial neutrality” once and for all, and to probe Thomas’s views concerning the best moral reading of US law.
Dworkin, who died in 2013, makes for an interesting comparison with Gorsuch and Thomas, because he often disagreed with the conservative views many tend to associate with natural law advocates. While he almost always sided with the liberal wing of the US Supreme Court, he agreed that the Constitution, and subsequent laws and decisions, added up to a coherent view of a just state, and that it was up to judges not only to interpret individual laws but to think about the legal implications of that fuller picture.
Gorsuch has written that in order to adjudicate the thicket of American law, judges must search for the moral principles that best justify the law as it is written, and then use moral philosophy to tease out further moral implications. In line with natural law theory, Gorsuch sees this as a way of discovering what the law already is. That, after all, is why he feels he can commend his controversial “inviolability of life” theory to the courts. He believes the theory is already there, in case law as well as the Constitution (including court decisions interpreting it).
All of this makes Gorsuch’s views about morality fair game.... If the moral reading view of natural law is correct — and I agree with Gorsuch and Dworkin that it is — then it is time to ditch Chief Justice John Roberts’s comparison of judges to neutral umpires calling balls and strikes.
It is also time to stop pretending that Supreme Court justices can decide hard cases without reference to their views about what a cohesive and defensible American moral philosophy looks like.
[Read the full piece here.]
J. Paul Kelleher is an associate professor of bioethics and philosophy at the University of Wisconsin, Madison. Find him on Twitter: @kelleher_.
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