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Law and Natural Law
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17866 |
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EDITORIAL
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3 / 1990 |
845 Words |
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Morton A. Kaplan
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The March special section in Currents in Modern Thought deals with the concept of justice. I will deal briefly with one of the issues raised in this section by Professor Hittinger, the issue of natural law and human nature. As Hittinger recognizes, natural law advocates face a daunting task. Apart from the developments in modern science which cast serious doubt upon the concept of universal law, the advocates of natural law have never presented any reasonable method for determining what natural law is. Moreover, because human nature is not think-like but disposition, it cannot be examined even in principle apart from the context in which it manifests itself. Therefore, no perdurable concepts can be applied to it except truistic or vacuous ones.
I have argued elsewhere that the concept of human nature is meaningful if treated dispositionally, and I therefore agree that it is desirable for law to take into account what human nature is in context. However, it is undesirable for the Court, rather than the legislature, to take the lead in this process. That would produce a subversion of the democratic process by an unelected and permanent elite. Moreover, the Court's history reflect6s little credit upon it in these respects.
Let me specify how the Court should have handled some of the cases to which Hittinger refers. Brown v. the Board of Education should have been decided on the simple ground that segregation of schools by race violated procedural due process because no appropriate rational distinction supported the move. It did not matter whether blacks did less well in segregated schools but only that no reasonable criterion of assignment had been applied. However, segregation of schools by sex would be within the appropriate police power of the state, even if ill-advised or educationally unsound, because the sexual relationships of children are subject to the police power.
Justice Holmes' defense of free speech is misused by Hittinger. Those remarks are dicta and do not state constitutional principles. The First Amendment supports free speech, but Justice Holmes did need to support particular restrictions on it. It was the "clear and present danger" distinction that was law. Free speech is desirable for the reasons Justice Holmes stated, but it is the Constitution that is determinative.
Both the anti-New Deal Court and the Roe Court were wrong for the same reason. It was not up to the Court to enshrine either its theory of economics or its restricted theory of who is human into the Constitution. That is the task of the legislature, and the Court should act as a check only when the determinations of the legislature are unreasonably restrictive. In those cases, the Court properly can function as a delaying chamber - it cannot win against sustained and persistent public opinion - by applying its concept of human nature.
I agree with Hittinger that we face a real danger. Until recently, the advance of civilization of human sympathy. Once only members of the tribe were human. Then of the nation. Finally all members of the species were included. Again, once newborn infants could be sacrificed or left to die. The elderly could be neglected. Then we became civilized. Now that is changing. We are retreating and moving classes of humans out of the circle of protection.
Professor Hittinger is correct when he refers to the
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