Comments for Bob Bork: The Lingering Presence at http://www.thecatholicthing.org , comment 1 to 5 out of 5 comments http://www.thecatholicthing.org Wed, 19 Jun 2013 05:50:12 +0100 FeedCreator 1.7.3 http://www.thecatholicthing.org/columns/2013/bob-bork-the-lingering-presence.html#comment-15406 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? - yan Thu, 17 Jan 2013 17:01:33 +0100 http://www.thecatholicthing.org/columns/2013/bob-bork-the-lingering-presence.html#comment-15139 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. - Graham Combs Thu, 03 Jan 2013 13:24:30 +0100 http://www.thecatholicthing.org/columns/2013/bob-bork-the-lingering-presence.html#comment-15128 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"). - Hadley Arkes Tue, 01 Jan 2013 16:24:54 +0100 http://www.thecatholicthing.org/columns/2013/bob-bork-the-lingering-presence.html#comment-15124 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.” - Michael Paterson-Seymour Tue, 01 Jan 2013 03:18:39 +0100 http://www.thecatholicthing.org/columns/2013/bob-bork-the-lingering-presence.html#comment-15122 He read Shakespeare but did he ever read Thomas...Aquinas, that is? - Deacon Ed Peitler Tue, 01 Jan 2013 02:29:29 +0100