A reader sends this anecdote:
“My nephew and I talked last night about abortion. I could tell that he was troubled by the fact that at the earliest stage in his or her development, the developing child looks like a glob of cells. “‘Most people can’t connect that picture with a baby,’ I remarked, ‘because that’s not how babies look.’
“He looked at me and asked, ‘So what’s your answer?’
“I pulled out a picture of a little girl and asked, ’Do you know who this is?’
“‘No,’ he answered.
“‘It’s your grandmother when she was four years old. Does she look like your Gramma?”
“’Not a bit.’
“‘And yet, they’re the same person. So what the embryo, or the child, or the grandmother looks like doesn’t really help answer the question, ‘Who is this?’
“A lightbulb seemed to go off for him. Just thought I would pass it on.”
Sanctuary cities have been much in the news lately. The idea of cities of refuge is biblical, of course. They were for those who were in danger of being killed in retaliation for an accidental death. Far from being means of escaping from law, in fact they were established by law. So what were then called sanctuary cities were refuges from private revenge -- but what we now call sanctuary cities are refuges from public authority. These are very different things.
I doubt that we give enough thought to what we mean by the common good, because a good may be common, or shared, in a number of different ways:
Type 1. It may be like the good of conversation for those participating in it: Unless they are competing for approval, if the conversation is better for some, it is better for all.
Type 2. It may be like the good of a bridge: This is a “public” good as economists use the term, so that if one has the benefit, all have it, unless access is artificially restricted.
Type 3. It may be like the good of national security: This is another public good in the economic sense, except in this case it is hard to see how access even could be restricted. If invaders are kept out of the country for me, they are also kept out of the country for you.
Type 4. It may be like the good of virtue: You get one kind of benefit from having it, but I get another kind of benefit from the fact that you have it -- and if you have greater virtue than I do, you didn’t get it by taking it from me.
There are some things that are often called common goods, that aren’t. For example, the so-called aggregate pleasure of which utilitarians speak is not a common good in any reasonable sense. In the first place, pleasure can’t be aggregated. But even if it could, some things that give one person pleasure may give other persons pain.
And then there some things that are often called common goods, but may or may not be. For example, it’s not hard to see why the country’s prosperity is called a common good, because we do all share material needs. But it is really a common good only if I can get more than I have without making you poorer; otherwise it isn’t. Whether this is possible depends on our social arrangements.
Most of the founders of the Republic took for granted that it was impossible to maintain a decent political order without good moral character on the part of both the citizens and the rulers. Some, like John Witherspoon, went so far as to think that we always get exactly the government we deserve. As he wrote, “Nothing is more certain than that a general profligacy and corruption of manners make a people ripe for destruction. A good form of government may hold the rotten materials together for some time, but beyond a certain pitch, even the best constitution will be ineffectual, and slavery must ensue. On the other hand, when the manners of a nation are pure ..., the attempts of the most powerful enemies to oppress them are commonly baffled and disappointed.”
On the other side were those like Alexander Hamilton, who certainly thought that virtue is important, but held the view that constitutional devices such as checks and balances might enable us to get a somewhat better government than we deserve. After agreeing that dependence on the wholesome motives of the people is a good thing, he added, “Experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights.”
Far more optimistic than even the most optimistic of the Americans, the Englishman David Hume had argued earlier in the century that a well-designed regime is not particularly reliant on virtue at all: “I ... should be sorry to think, that human affairs admit of no greater stability, than what they receive from the casual humors and characters of particular men .... All absolute governments must very much depend on the administration; and this is one of the great inconveniences attending that form of government. But a republican and free government would be an obvious absurdity, if the particular checks and controls, provided by the constitution, had really no influence, and made it not the interest, even of bad men, to act for the public good.”
Curiously, although almost all of the Founders considered virtue much more important than Hume did, Hume’s view is the one in vogue today. We blithely assume that no matter how shabby our own character and how debased the character of our statesman, a well-designed republic will get along just fine, cranking out justice and upholding the common good – “the system works.”
Let us take care not to load down the camel’s back with one straw too many.
As another wise man wrote, “Now it is best that there should be a public and proper care for such matters; but if they are neglected by the community it would seem right for each man to help his children and friends towards virtue, and that they should have the power, or at least the will, to do this.”
On the same topic:
The old sort of liberalism thought the law should promote good character, but considered it unwise for the law to demand so high a standard that the demand for virtue backfires. This is a very ancient idea, and it is true.
The middle sort of liberalism said that the law should repudiate the aspiration to virtue, not even judging what is virtuous and what is not. This is an unstable position which cannot endure, because it is logically impossible for the law to suspend all judgment. To make a law is to make a judgment.
The new sort of liberalism turns the old sort on its head. It insists on a high standard of virtue -- but with virtue redefined so that what used to be called virtue is called vice. In the new dictionary, chastity is neurosis, innocence is naïve, and admitting to having a moral opinion is bigotry. Although the new liberalism hangs onto the pretense of repudiating moral judgment, it uses it as a cloak for imposing its own perverse moral judgments.
A note from Australia. Thomas Aquinas writes in the Summa that “the divine law commands certain things because they are good, and forbids others because they are evil -- while others are good because they are prescribed, and others evil because they are forbidden.”
I’m puzzled about this because I don’t want to fall into thinking that law is nothing more than a decree by someone more powerful, with no necessary relation to natural law, reason, or goodness.
The Angelic Doctor is galaxies away from suggesting that divine laws have no necessary relation to natural law, reason, or goodness. God is Law, Reason, and Good Himself, in person. So let’s take apart St. Thomas’s statement.
When he says that some acts are commanded because they are good and forbidden because they are evil, he is thinking of the acts commanded and forbidden by the moral precepts summarized by the Decalogue, for example “Honor your parents” and “Do not steal.” These express the very intention of God’s justice, and each of them is a precept of natural law.
Now to understand what he means when he says some acts are good because they are commanded and evil because they are forbidden, consider an analogy from the laws we humans enact. It isn’t intrinsically evil to drive on the left. On the other hand, it is intrinsically evil to neglect the safety of our neighbors on the roads. Now we might provide for their safety by requiring everyone to drive on the right, or by requiring everyone to drive on the left, but we can’t have it both ways, or we will collide with each other. Public authority has to make a choice, so it does. Now it is evil to drive on the left (in my country, anyway), just because this is how public authority has settled the matter. Driving on the right is now good because it is commanded. This doesn’t mean that the rule has no relation to natural law, reason, or goodness. On the contrary, the rule makes it possible to care for the safety of our neighbors, because now we aren’t working at cross purposes. So the thing that is good because it is commanded -- is commanded for the sake of the thing that is commanded because it is good. (Say that three times quickly.)
With divine law, matters stand just the same. Consider some of the precepts of the Old Testament. That the Hebrew people were to worship God together was commanded because it is good, but that they should do so on the seventh day was good because it was commanded. That they were to provide for the poor was commanded because it is good, but that they should do so by giving them the right to glean what the harvesters have overlooked was good because it was commanded. That they were to uphold justice was commanded because it was good, but that they should do so by requiring the thief to pay back four sheep for each sheep that he had stolen was good because it was commanded.
These details are called determinations of the basic moral precepts, which means that they fill in the blanks that the basic moral precepts leave unspecified. Only by filling them in can the purposes of the basic moral precepts be fulfilled.
In debates about right and wrong, selective relativists – I mean people who are relativists when it suits them – often use the question “Who is to say?” as a conversation-stopper. For example, we might be talking about whether some enactment violates the natural law. Eventually the other fellow asks “Who is to say?” In most cases the question functions as an implied statement. “No one is to say.” Or as an implied imperative. “Shut up.”
When I hear people shut up other people by asking who is to say, I sometimes riposte with another question. “You wouldn’t ask who is to say if the topic were whether people should be allowed to steal from you. If it’s a good question to ask in some cases, then why not in all of them?” My point is that it isn’t good in any of them. Shut up with the shutting up.
On the other hand, the question “Who is to say?” is not always used in this belligerent and obstructive fashion. It also has a perfectly good and honest use. If someone asks whether the legislature has violated the natural law, the person who asks “Who is to say?” may mean merely “I agree that this should be discussed. But who should have the authority to settle whether the legislature has done so? Only the legislature itself, or should courts also be able to weight in?” Taking the question this way, it isn’t skeptical but jurisdictional.
And it has an answer, if we are patient enough to find it. The answer is tough because it depends on experience and prudence. On the whole, does our body of laws conform to the natural law more closely if we let legislatures decide for themselves whether their enactments conform to the natural law, or if we divide the authority to decide this question between legislatures and courts? And if dividing the authority does work better, then when does it work best to let courts get into the act, and when not?
Unfortunately, the helpful, jurisdictional sense of the question and the unhelpful, conversation-stopping sense of the question are often confused. Like this --
Speaker one: “Do you think courts should be allowed to invoke natural law in explaining why their decisions are right?”
Speaker two: “Of course not. Who is to say what conforms to the natural law?”
Speaker two means that courts should not invoke natural law because no one knows what conforms to it. But if no one knows what conforms to it, then the question is bumped back to the legislature. And why are the legislature’s decisions about what conforms to it any better?
There are plenty of non-skeptical reasons for courts to defer to legislatures. For example, court are required to confine their judgment to the cases at hand, but a legislature can consider all sorts of hypothetical cases. Probably this doesn’t make legislatures any better at recognizing the general principles of natural law, such as “Punish only the guilty.” Everybody knows them. But probably it does make legislatures better at recognizing the remote implications of natural law, and that is what most legislative decisions are about.
But if we favor judicial deference for this reason, then we are not saying that courts should defer because who is to say, but because legislatures are better qualified to say. What we ought to be talking about, then, is when legislators are better qualified to say -- and when they are not.