What’s So Positive About “Positive” Law?

imageIn his review of Stephen D. Smith’s “Law’s Quandary,” Daniel Sheehan, one of America’s leading Constitutional lawyers, asks why the author stopped before the job was done.

by Daniel P. Sheehan

Having been a practicing Constitutional trial attorney for four decades now, and a comparative social ethicist for almost as long, I took up Law’s Quandary, the 2004 book written by University of San Diego law professor Steven D. Smith, with a great deal of anticipation. For I have long been very attentive the issues identified by Professor Smith as the “quandary” presently afflicting our western legal system. He states the matter this way:

. . . [I]n our time and place, law persists in an ontological gap. . . .  [O]ur discourse and practices—our law-talk and what we do with that talk—routinely and pervasively presuppose commitments to (and often explicitly invoke)\ something like the law of classical account. Confronted with these apparent commitments, however, we profess not to believe any such thing. We are compelled to that profession, almost, because the law—the brooding omnipresence in the sky of [Olive Wendell] Holmes’ derision—does not square with either the everyday ontology or the scientific ontology that people in academic settings regard as axiomatic, at least for professional purposes. So our talk and practice make sense, if at all, only on assumptions that we feel compelled, or at least obligated, to disavow.

This complex observation, though entirely accurate, requires a bit of unpacking for the layperson.

As has been observed by the philosopher Charles Taylor, we live in a secular age. And the often unconscious scientific and logical presumptions which underlie virtually all of our various fields of human thought and our contemporary cultural institutions (of which “The Law” is perhaps the most consequential), reflect the scientific materialist logical positivism that has for at least three centuries now undergirded all of the secular realms of Western civilization. However, “The Law” that we have inherited from an earlier age is built upon a distinctly religious foundation that extends back more than two millennia to Greece, Rome, and Jerusalem. Professor Stephen Smith does not give us much history in his book—his is a lawyer’s book of argumentation, not an historian’s tome. To his great credit, Professor Smith knows that most laypeople (non-lawyers) will find both his subject and his argument rather abstract, so he manfully strives to lighten the load on us by establishing as conversational a tone as possible in his work. And, at this, he succeeds. Even so, at least a bit more history is essential because it is important for us to understand that the western system of jurisprudence is rooted in the two now long-intertwined sacred cultures which reside at the very origins of western civilization.

That is, our legal system hearkens back to Judaism and Christianity (our Anglo-American common law always having presumed to be rooted in Jewish and Christian values and truth) and in the philosophical meditations on law and culture which were undertaken by the Greeks, dating back to Plato and Aristotle. Having passed through the Stoic philosophers such as Cicero, the two strands joined in the medieval Greco-Judeo-Christian synthesis achieved and epitomized by St. Thomas Aquinas. These are the progenitors of what Professor Smith means by the “Traditional” or “Classical” account of “The Law”.

Referring to two of the great judges who advocated what Oliver Wendell Holmes scornfully derided as “a transcendental body of law outside of any particular state but obligatory within it”, Smith tells us:

Our own legal system descends from (or still is) a “common law” system—a “Case System,” as Karl Llewellyn put it—which centrally features judicial decisions as the materials that law students study and that lawyers and judges argue with and about. In the Classical view, however, these judicial decisions are not themselves “the law,” exactly, but rather are “evidence” of something that precedes and transcends them—which is “the Law.” And the intricacies of common law argumentation are calculated to get at that deeper or larger authority. In this vein, that great expositor of the common law, William Blackstone, explained that “the decisions of courts . . . are the evidence of what is common law.” A famous American case expressed what sounds like a similar view. [I]t will hardly be contended”, Justice Joseph Story wrote for the U.S. Supreme court in Swift v. Tyson, “That the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and are not, of themselves, the law.”

He goes on to explain:

Blackstone and Story were, after all, heirs of a worldview that assumed that God was real—more real than anything else, in fact, or “necessarily” real, rather than just contingently real—and had created the universe according to a providential plan. This view had important implications for the nature of law. Perhaps the most systematic working out of those implications had been performed centuries before by Blackstone, Story and Thomas Aquinas who maintained that enactments by human legislators (positive law) derives from the “eternal law,” which is the divinely ordained order governing the universe, and positive law gains its status as law [only] by virtue of participating in that order. “Since then, the eternal law is the plan of government and the Chief Governor,” Aquinas explained, “all the plans of government in the inferior governors must be derived from the eternal law.” And it followed that “every human law has just so much of the nature of law as it is derived from the law of nature.” Aquinas added that “if in any point [the human law] deflects from the law of nature, it is no longer law but a perversion of law.”

Here, as is the case throughout his book, Smith’s writing is both lucid and compelling, and his identification and description of what is wrong with the law in its the contemporary state (which is usually identified as “positive law”) is both philosophically sophisticated and practically precise.

However, describing the problem and detailing its current manifestations is only one-half of the task. What Professor Smith seems ultimately unable to do in Law’s Quandary (and what this reviewer thinks readers of his work have every right to expect) is to offer his own constructive solution to this quandary—one that is at least as accurate and as complex as his description of our legal system’s essential problem. In other words, where is the concrete, affirmative proposal as to where law ought to go from here to effectively resolve this problem? Stephen Smith is a respected legal scholar endowed with obvious intellectual gifts. But his glaring failure to so much as even try to present any proposed solution to such a profound and systemic flaw in our legal system—a flaw which he so clearly and accurately identifies—is deeply disappointing.

If Professors Smith’s reluctance to propose a way out of the law’s present philosophical dilemma stems from an inability to fully comprehend the source of this quandary, it is a weakness shared by most of his peers in the higher echelons of both modern legal scholarship and political philosophy. The source of this quandary is the fact that our western philosophical, political, and legal tradition has two categorically different worldviews struggling for both political and ethical ascendancy. Despite the many valiant attempts over the past century to do so, these two distinctly different worldviews cannot be successfully reconciled.

On one side, there is the majoritarian, strictly materialist/utilitarian philosophy and worldview championed by the likes of John Stuart Mill. This is what has come to be called “positive law”. Today it dominates America’s legal profession. On the other, there is the minority non-material/intuitionist worldview championed by those we might call transcendentalists or intuitionists. The schism between these two distinct worldviews is not new—nor is the difficulty that scholars, lawyers, and judges are experiencing in trying to resolve it. For example, as recently as 1972, John Rawls, the long-time and widely respected Chairman of Harvard University’s Department of Philosophy who is widely regarded as one of America’s greatest moral and political philosophers, did his best to address and resolve this conflict. He pointed out, in his well-known work entitled A Theory of Justice, the existence of, and the inherent incompatibility between, these two distinct schools of political and philosophical thought. (Rawls offered his A Theory of Justice in the field of philosophy, rather than in the field of law.) In that work, Professor Rawls recognized the fact that the essential principles animating each of these two distinctly different worldviews seem to take turns ascending into positions of prominence in the analysis and written rationales of various American legal decisions. This fact, he recognized, has created a certain tension (or, in Smith’s language, a quandary) at the very heat of our legal system. After correctly identifying this problem, Professor Rawls, like Professor Smith thirty years later, likewise failed to present a viable solution to it. Instead, he fell back upon a rather conventional attempt to the two viewpoints, an almost mathematical or mechanical solution that pleased no one.

The failure of philosophers and legal scholars as preeminent as John Rawls and Stephen Smith to make any meaningful headway in resolving this persistently observed quandary of contemporary law has, I believe, a common genesis. Its root is the failure of all of mere thinkers to have ever actually enjoyed the “Unitive Experience” that constitutes the experiential basis underlying the premises of adherents to the intuitionist school of justice. This specific “Unitive Experience”, which is designated by many different names, in many different cultures and traditions, is the actual source of the insight which underlies the unique and distinctive mode of ethical reasoning which has been historically adopted and employed by adherents to the intuitionist school of justice and constitutes the perspective from which experience adherents to this Intuitionist worldview formulate and enunciate their ethical premises.

Because Professors Smith and Rawls approach the ethical reasoning underlying the law—and the experience on which it is based— as intellectuals, they are confused and baffled about the interplay and opposition between the two competing worldviews and the normative, ethical conflicts to which they give rise. Nevertheless, we can resolve this conflict cum quandary only through ethical reasoning, rather than through the usual time-wasting parsing of judicial opinion. This is not to say that people who haven’t enjoyed the unitive experience are necessarily incapable of formulating a valid legal and political philosophy. Or even that those who have had such an experience will embrace legal and political views that reflect its depths. What I am saying is that for us to truly comprehend  and resolve the quandary that is presently afflicting contemporary law it is absolutely essential that we possess a deep appreciation and understanding of mystical experience because mystical or unitive experience is the real source of the normative principals behind the ethical reasoning of the intuitionist school—one of the two principal competitors for ascendency in this present conflict. And any adherent to one of the strictly materialist schools of political, philosophical or legal thought (utilitarian or otherwise) who is not fully aware of the reality of, and of the specific nature of unitive experience—and the relationship it bears to the quandary in which Anglo-American law now finds itself simply lacks the necessary intellectual tools needed to approach the task of repairing our western legal system.

Despite his lifelong and entirely praiseworthy effort to find a new philosophical foundation from which to address and resolve Western law’s quandary, Professor John Rawls was, in the end, unable to provide anything more compelling and satisfactory than the liberal, materialist solution. As a result of this failing, Professor Rawls recommended that–when confronted with the competing ethical demands of the two schools of thought seemingly perpetually at loggerheads in Western culture (the utilitarian and intuitionist Schools of Justice)–those who find themselves in charge of making community decisions should simply take a certain percentage of the material goods acquired by a given community’s entrepreneurial class from that class and give that it to the least well-off within that society. This is, in essence, a form of community-compelled, compulsory philanthropy on the part of the entrepreneurial class in a given society, pursuant to which process human satisfaction and the social order are to be guaranteed by the simple mechanical or mathematical device of re-distributing a certain percentage of strictly material goods.  It assumes that the highest foreseeable good our society can produce can be achieved simply by providing some ideal balance of simple material satisfaction between both ends of the class spectrum.

As an inveterate materialist, Professor Rawls’ proposal made no attempt to provide for any change whatever in the level of consciousness of any of the people at either end of the economic spectrum of his hypothetical community. Such a consideration, would, of course, be beyond the reach—indeed, some would say, even beyond the very understanding—of any strictly materialist philosophy. But a change in consciousness is what most essentially concerns members of the intuitionist school of justice.  In failing to take into consideration their conviction achieving a heightened or deepened consciousness resides at the very root of a viable value, Rawls was unable understand how the intuitionists arrived at, or navigated within, their unique mode of ethical reasoning. He thereby failed to appreciate or otherwise accommodate the demands that such a perspective compelled them to make upon society and upon our Western legal system.

By simply proposing to compel the provision to of some mechanistically-determined percentage of the strictly materialist goods and services possessed by the entrepreneurial class of a political community to “The Least Well-Off” of that community—without otherwise having the slightest understanding as to why the intuitionists were making this strange demand—Rawls found himself unable to significantly advance the debate. Because this perhaps poorly explained strange demand seemed to have so much historical support among certain influential members of Western civilization, Professor Rawls (and others) felt compelled to grant this set of strange demands some degree of recognition. But he could simply never explain why the adherents to this Intuitionist School of Justice believed these things.

What makes contemporary law’s philosophical quandary so seemingly intractable is undoubtedly the elusive nature of the Unitive Experience itself. It is, by definition, something that is very difficult to isolate out and study by the conventional (that is: scientific materialist) means, or even to easily understand when it is explained by others. In some traditions, this experience—or this state of Being thus experienced—is called “God.” Some traditions call it “Brahman” or “Nirvana” or “The Void”  Others describe it as an “Infinite and Eternal Undifferentiated Consciousness.” Others refuse, both as a matter of principal and as a matter of simply accuracy, to call “II” any “THING” at all, since, at base, “IT” has no “IT-ness” (that is: no NOUN-ness) whatsoever. “IT” is not a “Thing” among other “Things”, but their Source. Noting all of the different names, words, ideas and myths pointing to what he supposed to be an essentially universal human experience, Aldous Huxley (employing a term which was originally coined by Leibniz to refer to it)  identified the philosophy which is generated by this experience as “The Perennial Philosophy” .

Although the conventionally religious worldview has tended to personify ultimate cultural Authority as a vastly powerful, even immortal form of our own species of homo sapiens, adherents of the intuitionist school of justice resist this tendency to objectify and externalize the ultimate Reality as something separate from and superior to our own being and ultimate nature. It is impossible to overstate the importance of this key conceptual distinction. Both Professors Rawls and Smith seem completely ignorant of it. And because they logically enough choose to equate intuitionist spirituality with the naive religious concept of God as kind of big person in the sky, they cannot comprehend the underlying Source is of the intuitionist experience. As is the case with many scientific materialist logical positivists, Professor Rawls, having encountered something beyond his ability to see, touch, taste, smell, hear, weigh, measure or in some other way register it, simply excludes it from his account of Reality, and thus from his calculation of the nature of justice.

For all of his limitations, at least John Rawls tried to resolve the tension he found between these two different schools of thought, even though his proposed resolution was mechanistic. Stephen Smith never even gets that far. Rather, after only briefly (albeit accurately) delineating the quandary in which “The Law” finds itself in contemporary Western civilization, he instead spends must of the entire remainder of his book debunking, by various circuitous methods, each of the various potential solutions which have been put forward by others to solve this quandary. Among the various theses which he undertakes to disassemble (as though he were some artful Grand Santrape of the College de Pataphysique) are Oliver Wendell Holmes’ “Survival” Thesis; Morton Horwitz’s “Bad Faith/Idolatry” Thesis; John Searle’s Implied Platomic Thesis (and Charles Larmore’s Explicit Platonic Thesis), and the Neoclassical Explanation and Rationalization Thesis of Joseph Vining. Professor Smith, indeed, goes to great lengths to identify the reasons why each of these proposals should be rejected, in two such instances going so far as to point out how and why their authors did not believe in the very solution which they proposed!

In his closing chapter, Professor Smith reveals the state of mind in which he found himself after writing an entire book about the quandary at the heart of Western culture’s legal system without also offering a solution to it. Writing Law’s Quandary, he tells us, left him in a state of utter perplexity that gave rise to a state of increased humility that he hopes might possibly render him potentially more receptive to “other sources” and “other resources.” He speculates that such might lead to some “certain something” that might be more mysterious and more inspiring than whatever he was able to access while researching and writing his book. In other words, Smith appears to be engaging in what appears to be a prayerful quest to find the answer to this quandary. If so, in this he is not far from the truth.

One is hard-pressed to fault Professor Smith’s honesty and humility here. However, after wading through his entire book in search of a hoped-for solution to the quandary that he so accurately identifies at the propitious opening of his book—or, at the very least, for some good-faith effort on the part of Professor Smith at trying to identify such a solution—Professor Smith’s seeking of refuge in his cryptic reference to “other mysterious resources”, “other sources” or some kind of “certain something” (without otherwise attempting to come to grips with exactly what this “other resource” might possibly be—something that adherents of the intuitionist school of justice have all been willing to do) offers the reader very little solace or satisfaction. Unfortunately, Professor Smith does not follow through on these slight intimations.

Stephen Smith was presumably motivated to write his book by the same thirst for an answer to this quandary that likely propels at least some potential readers to pick up and read his book. But, in the end, all that he has to offer is his admission that that he has no idea whatsoever what the resolution to this quandary might be. At the end, he offers his little than the hope that some ill-defined source of inspiration might befall him in his now humbled state of mind.

If Professor Smith’s candor is both honest and admirable, it also begs the question: Did this book really need to be written at all?  And, if so, should this book have been written by Professor Stephen Smith, who, ultimately, does not advance us toward any viable solution to law’s pernicious quandary?  A scholarly explication of different problems that afflict us in the field of law might be a reasonable academic exercise. Such a service might well entitle one to teach “about” the law. But the provision of this service does not qualify one to teach “The Law” itself. Professor Smith himself seems to have some sensitivity to this issue. In the book’s last paragraph he writes, “Perplexity is not a resting place, to be sure, and it is uncomfortable (as some of us can attest) to have to be constantly choosing between speaking nonsense or just standing in silence.” It is difficult not to wonder how much better a book Professor Smith might have written had he learned how to allow that silence speak more loudly.

Attorney Daniel P. Sheehan, who trained at Harvard College, Harvard Law School and Harvard Divinity School, has investigated and litigated some of the most important lawsuits of our time, including The Pentagon Papers Case, The Karen Silkwood Case, The Three-Mile Island Case, and The American Sanctuary Movement Case. He is a pioneer in the extension of First Amendment freedoms to religious and spiritual organizations. Daniel was the Director of “The Strategic Initiative To Identify The New Paradigm” of President Mikhail Gorbachev’s State of The World Forum in San Francisco. He is currently undertaking a new global initiative that enable the entire human collective to cooperatively address the emergencies that now imperil all life on Earth.







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