Thursday, February 24, 2005

Role of Judges in Natural Moral Law

I've started reading a book I just picked up last weekend, The First Grace by Russell Hittinger. I'm still in the introduction, but it is excellent so far. Some interesting ideas on the relationship of natural and positive law:

In a surprisingly direct and sophisticated way, Thomas contented that, constitutionally, the judgement of judges ought to be regulated by the written law. For as it bears upon the entire political community, natural law is best made effective if human law is not generated on a case-by-case basis. (xxxvi)
That's another problem with judicial activism. Even if the decisions are for the good (which they usually aren't), they are unjust (i.e., disordered) in principle. There has been some debate about the optimal outcome should we get some non-activist justices on the Supreme Court. I have been of two minds. On the one hand, prudentially we want the decision on abortion to go back to the states (that way the blue states can continue to kill themselves, cf. "Super-Natural Selection"), but on the other hand, to strictly enforce the natural law the Court should ban abortion throughout the country in one stroke (see for example Robert A. Connor's "Justice Scalia and Yogi Berra: A Matter of Interpretation"). The explanation Hittinger gives of St. Thomas's position is a happy surprise to me:
...obedience to the natural law might require a judge to render no judgement according to an unjust positive law, but he may never subvert the order of authority by imposing law ultra vires. Usurpation of positive law is a violation of the natural law. (xxxvi)
There are noteworthy points in the introduction more in line with the theme of this blog. To these I turn next.

Russell Hittinger, The First Grace: Rediscovering the Natural Law in a Post-Christian World (Wilmington, Delaware: ISI Books, 2002).

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