It took a systematic dose of arcane philosophy in order to instruct lawyers and judges over the years that there are no moral ends intrinsic to the definition of law, that law is simply whatever is promulgated by the sovereign and enforced as law, and that, in the words of Justice Holmes, “every word of moral significance [ought to] be banished from the law altogether.” [footnote omitted] In the interest of a new analytic clarity, the philosophers of legal “positivism” schooled generations of lawyers to an understanding of law that was intellectually truncated. For they had detached from the very definition of law that which had been understood from the earliest times to be incorporated in its character: not merely that law was binding, but that it was binding precisely because it sought to embody principles about the nature of right and wrong. It required a teaching that was distinctly modern in order to make a whole profession of jurists forget professionally what Blackstone taught: that the law represents “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.”
From Arkes, Hadley, First Things: an Inquiry into the First Principles of Morals and Justice. Princeton University Press 1986, at p. 26
I had this quote on a new blog that I started in January on the subject of estate planning, Miami Estates and Trusts. I thought better of posting it there after a few days because it was not specifically about estate planning but more about the philosophy of law. It seemed to me, then, that I should put it over here on Kith and Kin.
I had first read Hadley Arkes, at least as far as I can recall now, when I read his article on the late Supreme Court Justice, Antonio Scalia, in the February issue of First Things. In that article, Arkes writes of Scalia's reluctance to use the phrase "natural law." It was Arkes' view, however, that largely unknown to Scalia himself, Scalia's approach to the law proceeded from that very philosophic base. I was unclear about the concept myself. It was not talked about much at the University of Chicago Law School, to say the least. In my American intellectual history studies at Duke, Justice Holmes was the colossus astride not only the development of American law but of that history itself. As Mr. Trump might say (and with the same level of general ignorance), "I love Justice Holmes!" Holmes is Exhibit A for the case in opposition to that for natural law, the case for positivism, a case for which UC Law is well known.
So when I read the FT article last month, I became interested in Arkes, a professor at Amherst College. I read the Wiki article about him, and bought a used copy of the book that I quote above. I am very carefully making my way through that book. It is "clarifying," that is, it is very helpful to the way that I think about my practice, the law, Christianity, and just about everything important.
Arkes is on the Advisory Council of the publication that I cite above, First Things.