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Bob Bork: The Lingering Presence Print E-mail
By Hadley Arkes   
Tuesday, 01 January 2013

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As the old year is passing – and as if it were not depressing enough, for some of us, to find ourselves in the new year at the threshold of Obama II – some of us are still feeling the loss of our dear friend Robert Bork, who died just before Christmas.

I remarked in a piece I wrote on the morning of his death “Robert Bork, with his bear-like frame, was one of the most sensitive and dearest of men, and for his friends, unrelentingly loyal. . . .[The dark days before us would become] harder to bear without his courage and laughter.” 

Last October I wrote in these columns a piece marking the twenty-fifth anniversary of those scandalous hearings sparked by his nomination to the Supreme Court. And yet the irony was that Robert Bork emerged an even larger figure, drawing the respect and affection of a public even larger than the audience he had commanded as a professor and judge.

That summer of the hearings on confirmation, I was driving back and forth between Amherst, Massachusetts and our cottage in Bethesda, Maryland, to settle in for a year of academic leave. Back and forth I listened to those hearings and in later years I would remember parts of the hearings that Bork had forgotten.

At only one moment in those hearings did I wish something could transport me to take Bob’s place in that seat facing his questioners. That was when Joe Biden asked (and I paraphrase):  Judge, can you imagine a case in which a legislature would actually pass a statute barring access to contraception? 

And I would have been tempted to say, Yes, Senator: A regulatory body, pursuant to a statute you had voted for, takes the Dalkon Shield off the market, judging it a hazard. A group of women then come forth to say that they found the device economical and safe, and that they should be the sole judges of the risks they are willing to take with their own bodies. And this was well before we would hear serious talk of legislatures making the wearing of contraceptives compulsory for the participants in pornographic films.

Bob Bork and I would tilt over the years on the matter of natural law. He was, to the end, a confirmed “positivist.” He professed to find his decisions controlled by the laws “posited,” set down in a statute or in the Constitution. He was enduringly dubious about any attempts to engage in moral reasoning outside the text of the Constitution.

To the dubiety of some of his friends he insisted that this reigning “positivism” was not moral “relativism.”  But then his friends would recall lines of this kind:  “Truth,” he once said, “is what the majority thinks it is at any given moment precisely because the majority is permitted to govern and to redefine its values constantly.”  If that wasn’t a signature tune of relativism, it would be hard to invent one.

And yet, anyone who knew Bob Bork knew that, in his reactions to everything of moral consequence in the life whirling around him, there was no trace of moral relativism. To adapt a line from Samuel Johnson, Bob was a lawyer by vocation, but a moralist by necessity. And so it could truly be said that, as a judge, his practice was far, far better than his theory.

As I remarked then in these columns, Bob Bork as a jurist offered a steady example of the “laws of reason,” or the canons of logic, brought to bear on cases in law in a disciplined way. In that respect, he gave us the most elegant examples of how a jurisprudence of natural law could be done while professing up and down that it could not be done. And with the same wisdom that ran beyond his theory, those powers of reasoning would later bring him into the Church even while his scoffing at natural law remained undiminished.

            In that respect, as I used to tell him, he had thoroughly absorbed the style of the University of Chicago as he and I had come to know it. He would make the strongest case he could for an argument he was pondering, and then, viewing that argument at its best, decide that it wasn’t that compelling after all. Readers or listeners looking on would be baffled as to what he was doing; but to those of us from Chicago it made eminent sense.

He went from that university into the Marines during the war in Korea. In the barracks, he would be reading Shakespeare while those around him read comic books, and that was enough for his sergeant to call him “Hey, Shakes.”  A sergeant also asked him what religion to put down on his dog tag. Bob insisted at the time that he had no religion. The sergeant said, “All right …  ‘Protestant.’”

When he came into the Church, in his seventies, he remarked that this was a terrific deal: He could be absolved of all the earlier sins, while being too old to engage in any sins that were especially interesting. But I remarked to another friend that Bob’s death can itself impart new confidence in a life after death:  For it is just implausible to think that a soul so vivid, so vibrant still among his friends, could really be extinguished.

And that may be Bob’s last gift, even at the beginning of this New Year, the gift of consolation – and hope.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and the Director of the Claremont Center for the Jurisprudence of Natural Law in Washington. D.C. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.
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written by Deacon Ed Peitler, January 01, 2013
He read Shakespeare but did he ever read Thomas...Aquinas, that is?
written by Michael Paterson-Seymour, January 01, 2013
Legal positivism does not presuppose moral relativism.

As Maritain says, "we do not call upon the people to decide because we are aware of our ignorance of what is the good, but because we know this truth, and this good, that the people have a right to self-government."

Pascal, too, says, “He who obeys them [the laws] because they are just, obeys a justice which is imaginary and not the essence of law; it is quite self-contained [elle est toute ramassée en soi], it is law and nothing more.”
written by Hadley Arkes, January 01, 2013
I’d like to reassure Mr. Patterson-Seymour and other readers that yes, the tradition of natural law has long recognized the necessity of “positive” law. As Kant—yes, Kant—brought home to us, behind every positive law is a deeper natural law that tells us why we are justified in having a law in the first. To use that familiar example, we see signs on the highway telling us 70 [mph] or 35 [mph], and yet there is no moral significance in those numbers. But behind those numbers is a principle that tells why would be justified in restraining the freedom of people to drive in a manner that puts innocent life at hazard, including their own. Still, we need a regulation of the positive law to translate that principle into a practical rule that can bear on the circumstances and terrain before us: 70 mph on this open highway, but 35 mph on this winding country road.

That version of positivism has never been the problem. The problem has arisen rather from the writers who have fallen into the persuasion that we can recognize no moral truth as a moral truth with a claim to our credence and respect unless it is enacted in the positive law and made binding in that way. When accomplished people have absorbed that kind of premise, they become suspicious of course that anyone who moves beyond the text of the Constitution or a statute has no canons of reasons to guide and restrain him.

I'd refer readers to that near-classic book Constitutional Illusions & Anchoring Truths for a treatment of this matter of natural law and the positive law. And the book contains also a chapter on where the positivists make a distinct and valuable contribution to the focus and discipline of the law ("And Yet.. A Good Word on Behalf of the Positivists").
written by Graham Combs, January 03, 2013
I'm afraid I can't join you folks in the deep end of the pool. (At the law school I attended, there was no deep end -- only obfuscation and obstructionism.) But I think I can judge intelligence and integrity and that Judge Bork was lightening rod for the Left says much. One can be judged by one's enemies. Thanks for the posting Prof. Arkes.

Oh yes, and I thought I was a regret-filled laggard for entering the Church at 57. Then again, there is something courageous about becoming a Catholic in one's seventies.
written by yan, January 17, 2013
Prof Arkes,

I recently saw a wonderful video interchange between you and Judge Kozinski on the topic of your recent book. I was rooting for you but I wonder if the Judge, like Robert Bork, is ultimately right about legal positivism.

The problem as I see it is that not every judge will be trained to think like you do. I think they should, but the reality is that they will not analyze the law and the issues surrounding it the way you do in most cases.

Assuming my point to be true for the moment, that situation entrusts the presence of transcendent values in the law to the best efforts of unredeemed or partially redeemed judges, legislators, executives and voters. A ghastly thought.

The only possible counterpoint I can imagine to what will be the foreseeably inevitable legal errors of democrats in relation to transcendent truths is some extra-democratic body sitting outside of the political bodies already existing, with the special ability to determine how transcendent truths should interact with the law.

Something like the Church, which believes itself uniquely qualified to discern the natural law correctly in matters of faith and morals. But with power to say, e.g., 'we love women, but, abortion is wrong. Roe is void.'

Your thoughts? If you are so inclined?

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