Constitutional Illusions and Anchoring Truths

reviewed by Timothy Sandefur

Hadley Arkes is a provocative writer who focuses on some of the crucial philosophical issues that the legal profession often tries to ignore. In this book his thesis is that a century after Oliver Wendell Holmes Jr. and allied "legal positivists" tried to discard the principles of natural law, lawyers and judges remain as fixed as ever on the boundaries of natural law. Arkes urges us to reconsider these complex questions, and seek legal principles that hold true for all people and all times.

The contemporary legal academy is dominated by relativism, according to which morality is a "social construct," i.e., a national aggregate of fundamentally irrational personal preferences. The notion that everyone, everywhere--and always--has certain inherent rights has been rejected in the name of positivism. In consequence, the legal profession lacks any intellectual defense against autocracy. If principles of justice are arbitrary cultural prejudices, political elites cannot be barred from engineering society as they please at the expense of unpopular minorities, argues Arkes.

These consequences are not only unpalatable but unsustainable. If promulgation alone makes a rule into a law, what accounts for the rules of promulgation? "One judge I know insists that we should not be legislating on matters of moral consequence in the absence of a consensus," says Arkes, "to which his friends respond by asking, 'Do you claim to have arrived at that proposition or rule on the basis of consensus?' " Because law cannot be, as the positivists hoped to make it, a hermetically sealed system defining its own terms--let alone independent of the basic limits of reality--there must be some surer ground beneath the positive law, some foundation that rests not on consensus but on nature.

Holmes himself would have been compelled to admit this, had he observed the significance of one of his famous quips: "Even a dog," he wrote, "distinguishes between being stumbled over and being kicked." Yet if a dog can recognize that difference, then the distinction between intentional and accidental harms must be real, not a social construct. And, writes Arkes, "[I]f we can know at least one proposition of that kind, whose claim to our respect does not depend in the last on a consensus or the vote of a majority, we may reasonably expect to know one or two others."

This is true, but Arkes stumbles when he adopts what philosophers call an "intrinsicist" view of good. He contends that there are certain "basic goods," which are inherently valuable--good per se, not good because of their consequences or their contribution to human flourishing. And this leads him to some disturbing and self-contradictory conclusions. Arguing against the right of terminally ill patients to commit suicide, Arkes contends that it is senseless to ask why life is good; everyone inherently recognizes the value of life: "People look both ways as they cross a street, absorbing into their acts the premise that their lives are worth preserving." But this is not always true. Like anything else, life is only a value within the context of one's priorities. There are certain tragic circumstances in which life is objectively a burden.

The late Philippa Foot used the example of a wounded soldier, "where the only prospect is death by starvation or at the hands of an enemy notoriously cruel who understandably asks a comrade to save him from torture by killing him mercifully." But Arkes evades such obvious counterexamples with a red herring: "It would be inconceivable to imagine an ambulance service constituted on the premise that, as soon as it gets to the scene, its mission is to dispatch the patient, to speed him to a comfortable death, to relieve him and his relatives of further suffering and debilitating delays." But this assumes the patient wants rescue, and thus that life remains a value to him-which is not necessarily the case for those asserting the right to die. (In fact, paramedics today are trained to obey Do Not Resuscitate requests.)

Bizarrely, it's only 50 pages later that Arkes finds himself agreeing with the decision in Lochner v. New York, which invalidated a law barring bakers from working more than ten hours in a day. "Whether it was injurious, or rather profitable, for a worker to work overtime in a bakery," writes Arkes, "would depend on the age, the health, and the situation of the worker. No one could estimate these things more precisely than the workers themselves." This is true, but it is also true of a person's other values. Arkes' authoritarian opposition to right-to-die laws clashes with this libertarian approach to freedom of contract.

Arkes is a witty and elegant writer, more so than many other philosophers who have addressed these issues, such as Foot, Douglas Den Uyl, Douglas B. Rasmussen, or Tara Smith. But in the crucial details of the argument for natural law, these latter thinkers are more precise and convincing.

Timothy Sandefur is a principal attorney at the Pacific Legal Foundation in Sacramento.

---