By
the look of it, the country is in for another attack of killer
jurisprudence. During the last televised episode, the Supreme Court
nominee was Robert Bork and the controversy concerned his idea that
judges should adhere to the plain meaning of the words of the
Constitution and the original intention of the people who wrote and
ratified it.
This time the nominee is Clarence Thomas, and many of the same people who condemned Bork`s legal theories as outside the mainstream are attacking Thomas` jurisprudence in similar terms. The curious thing is that Thomas`ideas are just about the diametrical opposite of Bork`s.
Thomas` ``natural law`` philosophy holds that people were given by their Creator certain inalienable rights. If that sounds familiar, it is because it is a paraphrase of the Declaration of Independence, which was written by Thomas Jefferson, who was far from the first natural-law theorist but was certainly one of the most eloquent.
At the other end of Anglo-American jurisprudence is the ``positive law``approach, which holds that law begins with human beings and not, as natural-law theory has it, with something as perfect and unchangeable as God. Bork`s views were of the ``positive law`` tradition.
The debate between natural-law and positive-law jurisprudence is old and unresolved. Perhaps it is unresolvable, too, with wisdom to be found in the interplay between them.
Don`t expect a lot of wisdom to come from the partisans in the Thomas nomination, however, though there may be some amusement to be found in the way both sides handle the paradox of Thomas` fundamental quarrel with Bork`s approach.
On the administration side, both Reagan and Bush have said they want judges who do not make new law but only apply the laws they are given. That sounds a lot like a positive-law approach. Natural-law proponents are given to discovering legal rights and obligations that legislatures and constitutional conventions have not endorsed.
On the side of the liberal opponents, it will be awkward to oppose a theory that has been used to justify the expansion of constitutional protection of individuals and the creation of new rights, such as privacy, not explicitly found in the Constitution.
Natural right is, in many ways, the most compelling argument in favor of the idea of equality-which is why the Declaration of Independence is such a profound text-and of the essential liberties of free individuals, which are tenets of the liberal faith.
It is not that natural-rights theory is the only basis for these ideals. But it should be rather uncomfortable for liberal Americans to ridicule a nominee for views that he shares with Thomas Jefferson and Martin Luther King Jr.
However lofty and abstract this emerging public debate over jurisprudence may appear, do not assume that it is what is really motivating the partisans. Jurisprudence is a weapon in this affair, not a reason.
Source: http://articles.chicagotribune.com/1991-07-23/
This time the nominee is Clarence Thomas, and many of the same people who condemned Bork`s legal theories as outside the mainstream are attacking Thomas` jurisprudence in similar terms. The curious thing is that Thomas`ideas are just about the diametrical opposite of Bork`s.
Thomas` ``natural law`` philosophy holds that people were given by their Creator certain inalienable rights. If that sounds familiar, it is because it is a paraphrase of the Declaration of Independence, which was written by Thomas Jefferson, who was far from the first natural-law theorist but was certainly one of the most eloquent.
At the other end of Anglo-American jurisprudence is the ``positive law``approach, which holds that law begins with human beings and not, as natural-law theory has it, with something as perfect and unchangeable as God. Bork`s views were of the ``positive law`` tradition.
The debate between natural-law and positive-law jurisprudence is old and unresolved. Perhaps it is unresolvable, too, with wisdom to be found in the interplay between them.
Don`t expect a lot of wisdom to come from the partisans in the Thomas nomination, however, though there may be some amusement to be found in the way both sides handle the paradox of Thomas` fundamental quarrel with Bork`s approach.
On the administration side, both Reagan and Bush have said they want judges who do not make new law but only apply the laws they are given. That sounds a lot like a positive-law approach. Natural-law proponents are given to discovering legal rights and obligations that legislatures and constitutional conventions have not endorsed.
On the side of the liberal opponents, it will be awkward to oppose a theory that has been used to justify the expansion of constitutional protection of individuals and the creation of new rights, such as privacy, not explicitly found in the Constitution.
Natural right is, in many ways, the most compelling argument in favor of the idea of equality-which is why the Declaration of Independence is such a profound text-and of the essential liberties of free individuals, which are tenets of the liberal faith.
It is not that natural-rights theory is the only basis for these ideals. But it should be rather uncomfortable for liberal Americans to ridicule a nominee for views that he shares with Thomas Jefferson and Martin Luther King Jr.
However lofty and abstract this emerging public debate over jurisprudence may appear, do not assume that it is what is really motivating the partisans. Jurisprudence is a weapon in this affair, not a reason.
Source: http://articles.chicagotribune.com/1991-07-23/
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