Virtual Jurisprudence

Monday, 08-28-2023


Before you complain that by overturning certain precedents which have stood for years, the new majority on the U.S. Supreme Court is “threatening democracy,” consider how some of the Court’s precedents were established in the first place.

One of the first warnings of how headstrong and arbitrary courts could be is due to the Anti-Federalist who wrote under the pseudonym “Brutus” (probably the New York State judge Robert Yates).[1]  His favorite example, drawn from William Blackstone, was how the Court of Exchequer in England slyly expanded its jurisdiction by allowing plaintiffs to claim that they were debtors of the crown when they were not.

An even stranger example is found in the annals of the Court of King’s Bench, which was supposed to be restricted to suits by parties who had suffered trespasses or other injuries by violence.  On one occasion, a plaintiff who was angry about having been sold diluted wine alleged that the merchant had watered it "with force and arms and against the peace of the King, to wit with swords and bows and arrows."[2]  The Anti-Federalists, who believed that under the new Constitution the judiciary would be too powerful and heedless, expected American courts and judges to behave in much the same way.

Brutus was right to be concerned.  The bizarre lengths to which determined judges can take this sort of thing is suggested by the dissenting opinion of Justice Douglas in Sierra Club v. Morton, a 1972 case in which an association of environmental activists sought to halt the construction of a resort in a national park.  Mr. Douglas proposed fashioning “a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded,” so that “environmental objects” could “sue for their own preservation.”[3]

The prospect of vegetables and minerals bringing suit in federal court makes today’s arguments about animal rights seem almost quaint.  Although in that case, the majority declined to swallow the particular legal fiction suggested by Justice Douglas, it would be a grave mistake to suggest that Supreme Court Justices have been averse to fictitious claims.  Courts in many of the states are still up to much the same shenanigans.

A fictitious history has been employed to conclude that the First Amendment requires neutrality between religion and irreligion;[4]

A fictitious psychology has been employed to maintain that the only possible motive for opposing special preferences for homosexuals is “animus” or irrational hatred;[5]

A fictitious embryology has been employed to insinuate that a child growing and developing in the womb does not enjoy actual life but only "potential life";[6]

A fictitious classification has been employed to characterize behavior which is lethal to babies as reproductive behavior;[7]

A fictitious teleology has been employed to suggest that the natural reason for the institution of marriage is not the protection and nurture of children but the sexual convenience of grown-ups;[8]

A fictitious semantics has been employed to interpret the Constitutional guarantee of "free exercise of religion" as having no necessary reference to religious acts;[9]

A fictitious grammar has been employed to treat categorical prohibitions as implying qualified permissions;[10]

A fictitious logic has been employed to suggest that if the Constitution protects certain highly specific and enumerated kinds of privacy, then it must also protect all kinds of privacy;[11]

And a fictious vocabulary has been employed to suggest that if the Constitution protects privacy in the usual sense of freedom from unwanted attention and intrusion, then it also protects “privacy” in the novel sense of freedom from judgment on one’s actions.[12]

For three generations, the use of fictitious suppositions has been so pervasive a feature of American Constitutional interpretion that we should no longer speak of actual jurisprudence, but of virtual jurisprudence.

How the support of such high-handedness concerning the Constitution “protects democracy” is impossible to understand.


How a Constitution May Undermine Constitutionalism


1.  Letters of Brutus, numbers 11 and 12.

2.  Rattlesdene v. Gruneston, Y.B. Pasch. 10 Edw. II pl. 37, p. 140-41 (1317) (Selden Soc.).  For discussion, see Eben Moglen, "Legal Fictions and Common Law Legal Theory: Some Historical Reflections," 10 Tel-Aviv University Studies in Law 35 (1991.

3.  Sierra Club v. Morton, 405 U.S. 727 (1972), at 742.

4.  "The wholesome "neutrality" of which this Court's cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits.  And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the Free Exercise Clause guarantees."  Abington School District v. Schempp, 374 U.S. 203 (1963), at 221.  Notice that the Constitution is inconsistently said to require neutrality between religion and irreligion because it recognizes the value of religion.

5.  "[T]he amendment seems inexplicable by anything but animus toward the class that it affects"; later in the same case, "laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."  Romer v. Evans, 517 U.S. 620 (1996), at 631, 633.

 6.  "With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb."  Roe v. Wade, 410 U.S. 113 (1973), at 163.

7.  "[F]or two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.  The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives."  Planned Parenthood v. Casey, 505 U.S. 833 (1992), at 856.

8.  Obergefell v. Hodges, 576 U.S. 644 (2015.

9.  "Our cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a democratic government."  Gillette v. United States, 401 U.S. 437 (1971), at 461 (emphasis added).  Notice that the statement of the Court goes far beyond the mere assertion of a tacit condition that religious conduct be within the bounds of good order.

10.  "The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."  Wisconsin v. Yoder, 406 U.S. 205 (1972), at 215.  According to this alleged interpretation of the First Amendment, even "legitimate" claims to the free exercise of religion can be “overbalanced” by "interests" which judges consider sufficiently important, even though nothing is said about them in the Constitution.  Yet the First Amendment states that "Congress shall make no law ... prohibiting the free exercise of religion" (emphasis added).  Again notice that the statement of the Court goes far beyond the mere assertion of a tacit condition that religious conduct be within the bounds of good order.

11.  “Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”  Griswold v. Connecticut, 381 US 479 (1965).

12.  Ibid.


Oppenheimer: Knowledge, Power, and Obsession

Monday, 08-21-2023


Now that the movie Oppenheimer is making the rounds, it seems opportune to repost a reflection I posted about the man back in 2020, when we were in a whirl not about bombs, but about viruses.  Read on.


+++++  +  +++++

I have been reading a famous speech of Robert A. Oppenheimer, given in 1945 to the Association of Los Alamos Scientists.  Oppenheimer had played a central role in the development of nuclear weapons.  His speech is one of the most tortuously reasoned documents of its kind that I have read.  However, it is revealing.

According to Oppenheimer, to understand the “real impact” of the invention of the atomic bomb, “one has to look further back, look, I think, to the times when physical science was growing in the days of the renaissance, and when the threat that science offered was felt so deeply throughout the Christian world.”

There is some bad history here.  Were it not for the vision of a universe ordered by Mind, a Mind that does not work capriciously but makes use of secondary causes, and that made human minds in its image so that they can inquire into its handiwork, it is doubtful whether science could have got started.  Please don’t tell me about Galileo.  The Church’s complaint against the poor man wasn’t that he contradicted the descriptions of the cosmos in Holy Scripture, which the Church knew to be figurative, but that he was doing what we now call “science by press release.”  His theory turned out to be true, but the Church protested that he claimed it was proven before it really was.  I don’t think the Church should have poked its nose into the matter at all, but even so, its complaint was scientific, not theological.

But never mind.  I understand why Oppenheimer speaks as he does, because although Christianity doesn’t regard science per se as a threat, it does regard Oppenheimer’s notion of science as a threat.

What vision is that?  Speaking of the development of the Bomb, Oppenheimer writes, “But when you come right down to it the reason that we did this job is because it was an organic necessity.  If you are a scientist you cannot stop such a thing.  If you are a scientist you believe that it is good to find out how the world works; that it is good to find out what the realities are; that it is good to turn over to mankind at large the greatest possible power to control the world and to deal with it according to its lights and its values.”

Read carelessly, the passage thrills.   Read carefully, it appalls.  There are two contradictions:  Between the desire for knowledge and the will to power, and between freedom and blind fatality.  What thrills are the parts about freedom and desire for knowledge.  What appalls are the parts about fatality and will to power.

As to the first contradiction, he starts with the idea of wanting to understand the world.  But the reason for understanding it turns out to be merely controlling it, and controlling it not according to transcendent lights and values, but according to “its own” lights and values.  That means “what we want.”

So.  Science is finding out how to do as we desire.

As to the second contradiction, he speaks of the continual growth of the power to control the world as though it were a kind of liberation.  And yet he insists that it is something the scientist cannot stop wanting, cannot stop gaining, and over which he has no control.

So.  Science is the ungovernable obsession with finding out how to do as we desire.

By contrast, the vision of science that Oppenheimer opposes – the vision of the Church -- is seeking knowledge because it glorifies God and adorns the rational mind, with the chastening reminder that not everything is to be done and not everything is to be controlled.

Put this way, the two visions do threaten each other.  I get that.


Was the American Founding All Wrong?

Monday, 08-14-2023



I’m not sure exactly what my question is, but I have long heard from more traditionalist-minded Catholics that our Constitution and the liberal presuppositions on which it rests cannot be reconciled with the faith vis-a-vis the Church’s understanding of a proper political order.  For the sake of clarity perhaps we should start there.  Do you think there is merit to that argument?



I think you’re asking about the Founders’ thought, not the political institutions they gave us.  Separation of powers, limited government, checks and balances – these are all good, though whether the versions build into the Constitution were well thought out and whether they work well is another question.  We can talk about that another time.

Although the critics you have in mind get some things right about the Founders’ thought, I think they are mistaken in at least four ways.

First, the American Founding wasn’t monolithic.  The Founders disagreed about many important matters – for example, though a few admired Thomas Hobbes, most detested him.  Lumping together thinkers like Thomas Jefferson and James Madison is also extremely misleading.  They admired each other – some of them -- but were quite different.

Second, most of the Founders considered themselves Christians, and most of those were of the Calvinist persuasion.  A politically influential minority were Deists, but outright atheism was extremely rare among them.  As to “establishments” of religion – official government churches – although the majority opposed them, they did so not because they were doubt about Christian faith, but because they accepted it, believing that God Himself disapproved of official government churches.

Third, the contrast between the classical and the modern thinkers, which we consider stark and obvious today, was contrary to their harmonizing temperament.  Rather than siding with thinkers like John Locke against thinkers like Aristotle and Cicero, they saw all these thinkers as more or less on the same page.  They didn’t read Thomas Aquinas, but they did read Richard Hooker, who was influenced by St. Thomas and who in turn influenced Locke.

Fourth, they didn’t believe in harmonizing everything. But rather than setting the ancients against the moderns, they cut across that distinction, setting writers of any age whom they viewed as sympathetic to republican self-government against writers of any age whom they believed hostile to it.

You see illustrations of several of these tendencies in the following two passages.  The first is from a letter of Thomas Jefferson to Henry Lee on May 8, 1825:

This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c.  The historical documents which you mention in your possession, ought all to be found, and I am persuaded you will find, to be corroborative of the facts and principles advanced in that Declaration.

The second is from John Adams, Novanglus, No. 1:

These are what are called revolution principles. They are the principles of Aristotle and Plato, of Livy and Cicero, and Sidney, Harrington, and Locke; the principles of nature and eternal reason; the principles on which the whole government over us now stands. It is therefore astonishing, if any thing can be so, that writers, who call themselves friends of government, should in this age and country be so inconsistent with themselves, so indiscreet, so immodest, as to insinuate a doubt concerning them.

One of the greatest reasons why thinkers of our own day misunderstand the thinking of the Founders is that too often we read into their works skeptical assumptions which they didn’t hold.  Chief among these skeptical assumptions is that reason and revelation, natural law and divine law, are at best on uneasy terms with each other.  Americans like James Wilson just didn’t see it that way.  They held the classical Christian view that reason and revelation cooperate rather than warring with each other, and that natural and divine law are two different reflections of the selfsame Divine Mind -- one discoverable by reason alone, the other discoverable in the content of Scripture, which is not provable, but reasonable to accept.

To be sure, the Founders paid a price for their attempt to harmonize ancient natural law theories with modern ones.  In order to blend the classical with the modern thinkers, they tended to read the moderns in the light of the classical thinkers, blurring the differences.  Perhaps some of them were engaged in propaganda for the moderns, playing down the radical implications of modern theories.  I think that on the whole, though, this wasn’t the case.  It was simply that not being so radical themselves, they simply didn’t think that the implications of these theories were so radical in the first place.  Christian republicans and moderate admirers of the Enlightenment made common cause.  For a while it seemed to work.

But there was no real synthesis, only a colloidal suspension.  You can shake classical and modern natural law theories in jar, but eventually they settle out, like oil and water.  I mentioned Calvinism, and Calvinism itself, I think, is itself in colloidal suspension.  It is pretty hard to maintain Calvin’s belief in natural law and natural reason alongside some of his other ideas, and many of his followers gave up, adopting a much more radical version of the doctrine of total depravity than he ever did.  Although American proponents of natural rights were the heirs of a rich and ancient tradition, they were ungrateful heirs, adopting “made simple” versions of natural law theory that ultimately came to seem unbelievable.  Consider too that from its first centuries, the Church united faith and reason, and the Founders tried to do so too.  But a lot of people, then and now, think faith and reason are natural enemies.  Fundamentalists are suspicious of reason; the most radical heirs of the Enlightenment are suspicious of faith.  Now faith and reason aren’t oil and water -- but people who believe in a partnership of faith and reason and people who reject the possibility of that partnership really are like oil and water.  If you make a colloidal suspension of those two beliefs, those layers will eventually separate too.

In fact, coming down to the present, those who formerly styled themselves defenders of reason against faith can no longer bring themselves to believe in reason either.  Abandoning God, they have even lost man.  For this reason, I think the European crisis of culture is our crisis too.  “American exceptionalism” means simply that here it has taken longer to come to a head than in, say, France, whose revolutionaries had no interest in harmonizing.

Could there have been a real synthesis of the ancient and modern influences rather than merely a colloidal suspension?  Yes -- and there still could be.  Faith and reason really are allies; not everything in the modern thinkers is irreconcilable with our classical inheritance; and our past mistakes are not an irresistible fate.  Here too, I think that I and the critics you mention are far apart.

But can such a synthesis be achieved in the way we have previously gone about it?  I think that road is closed.

This may not be what your question had in mind, but perhaps it will be a little help.



What is the way forward then?



I would say that we shouldn’t cast about for a new ideology for making over the world, but rather follow our vocations, submit all ideologies to Christian critique, try to practice virtue and political prudence, protect our children, and make the best of what good we have inherited, including sound intellectual traditions.

The world is so far into lunacy today that this answer may seem feeble, but I see no other place to start.



Writer's Block: Its Causes and Cures

Monday, 08-07-2023


Most people have come up against writer’s block at one time or another.  Some, including even some experienced writers, suffer it frequently.  I don’t suffer it often, but that’s only because I’ve learned a variety of tricks, which I now share.  I don’t guarantee that every one of them will work for everyone, but try them and see if they work for  you.



Most writers, though not all writers, are single-taskers.  They find it difficult to write unless nothing else is going on at the same time, so that they can sink into what they are doing.  You may be one of these.

Case one:  All sorts of things are happening that you can’t prevent and perhaps shouldn’t want to.  “Daddy, will you read me a story?”  Solution:  First, find blocks of time when nothing else is going on.  This may require rearranging your schedule.  Don’t overdo that – if you write all night, then you’ll be no good to anyone else the next day!  Second, find a way to organize your current writing project so that you can do it in many small chunks with frequent breaking points.  One way of doing this is to multiply your chapters and keep them short, or to build them from small sections rather writing them as continuous streams.  Readers usually find that sort of prose easier anyway.  At any rate, if you break your project into chunks, then your undistracted blocks of time won’t have to be so long, and your interruptions won’t be so frustrating and so difficult to recover from when they do come.  Instead of saying “Hold on until I finish this chapter,” you’ll find yourself saying “Hold on until I finish this sentence.”

Case two:  The distractions and interruptions are your own fault.  Solution:  Stop it.  Hang up the phone.  Get off the social media.  Turn off the talk radio and television.  If you need a little something in the background, keep it quiet and choose music that doesn’t thump.  Many people, and not just young people, think they can write and do a lot of other things at the same time.  This is a delusion.  Maybe you can cook while still keeping an eye on the kids (I hope so!), but you can’t write while still watching a soap opera.  The fact is that none of us are literally multi-taskers; our nervous systems are not wired for that.  When we think we are doing many things at once, we are really switching our attention back and forth among tasks very rapidly.  Consequently, none of the tasks has our full attention – and writing does require full attention.



For some people it’s just plain hard to start – but that may mean more than one thing.

Case one:  You may find it hard to start anything, and writing is just a special case.  Solution:  You may be depressed, or just lazy.  Write anyway.  Sit down.  Begin.  Stop making excuses.  It doesn’t matter whether your problem is laziness or depression; absorbing work is likely to help with both.

Case two:  You may not find it difficult to start other things, but just to begin writing.  Solution:  Early in your work time, before working on the project itself, spend a short time – and I do mean a short one -- writing something else, just to get in the groove.  Your little exercise needs to be something which is easy to begin and won’t take long.   It also needs to be something from which you won’t find it difficult to disengage once you’ve warmed up.  For example, answering a friend’s note may be just the thing; when you finish, you may find that your writer’s block has evaporated, and that you're impatient to begin.  But if answering your friend’s note leads to a compulsion to clean out your entire email box, find a different warm-up exercise.



You want to write, you’re ready to go, your hands are poised over the keyboard, but your mind is empty.  Or, perhaps, you experience an unusual and disturbing reluctance.

Case one:  It’s always possible that you really aren’t quite ready to write after all; your idea may need to ferment in your mind a little longer.  Solution:  Give it some time to do that.  Experience will tell you which things aid in fermentation.  If you ferment nicely (instead of just wasting time), the day will come when instead of being unable to write, you won’t be able to keep from writing.

Case two:  So far as you can tell, you really are ready to write, but the words and thoughts just aren’t coming.  Solution:  Don’t worry about it.  Set down whatever comes into your mind, even if it’s not a beginning.  Perhaps you might write a sentence about what you want to write, or a sentence about why the topic is so important.  Eventually the sentences for your opening paragraph will start coming.  When that happens, delete that other junk, and get going.  You may also find it helpful to begin at some other place than the beginning – for example, to start writing in the middle.

Case three:  You’ve been writing, but the block hits you partway through.  Solution:  Take a break, but learn to recognize which kind of break you need.  If you’ve been at it all day and you’re tired, taking a walk is good.  If you’ve been working too hard and you can afford a few days off, that can be pleasant, and your spouse will be pleased about it too.  Sometimes the best thing is what I call a working break.  This means setting aside the big project for a day, and working instead on small projects that you can finish quickly.  By the time you finish these little ones, you’ll be eager to get back to the big one.  For example, when I’m working on a book and I stall, I sometimes find refreshment by spending just one day writing short items to post later to my blog.  (I’m doing that now!)

Case four:  The reluctance you feel in writing may be a signal that there is something about what you’ve already written that you haven’t thought of – that isn’t right, that you need to reconsider, or that you just need to reorganize.  Solution:  Review.  Chew on it.  Then go back to writing.


Sculptor’s anxiety

So long as you haven’t yet begun to write, the possibilities are endless, but with every word you set down, your options for what to say next are diminished.  Knowing this, you may feel that if you make the wrong beginning, you’ll be stuck --  as though you were a stone sculptor who might ruin the marble by beginning to chisel in the wrong place.  In some people this produces crippling anxiety.  Solution:  Keep in mind that writing isn’t stone sculpting.  A sculptor can’t put back what he’s already chiseled out, but you can always go back and revise what you’ve written.


Destination anxiety

If your project is a big one, you may be afraid to begin because you’re afraid you won’t be able to finish.

Case one:   You can see the beginning of what you want to write very clearly, but you can’t see the end.  You worry that maybe the end isn’t there, and you’ll run out of ideas halfway through, so you’re afraid to begin at all.  Solution:  Get over it and begin anyway.  After all, we are rarely able to see the end of anything we do.  We don’t know how it will turn out when we begin a new friendship, or even when we break with routine to have fried eggs instead of scrambled.  Almost any beginning is better than none, and in writing, your destination will become clearer as you go along.  Even if this doesn’t happen and you do stall halfway through, the practice you’ve had will be helpful, and your next attempt to write will be better.

Case two:  The sheer size of the project overwhelms you.  Solution:  Keep in mind that you aren’t working on the whole project at once.  At any given time you are only working on this page or this section or even this sentence.  Remember too what we said about dealing with distractions, because it helps here as well:  If you organize your writing project into a lot of small chunks, then you are much less likely to feel overwhelmed.  Just write one chunk at a time.  Outlining may help with that.  Outlining doesn’t help everyone, and it doesn’t help even those whom it does help every time, but experience will teach you whether and when it will help.


Fear of failure

You may find it hard to begin because you suffer persistent anxiety that what you write won’t be good enough.  This fear especially afflicts perfectionists, who seem to be overrepresented in the ranks of writers.  Solution:  Maybe it won’t be very good.  So what?  You won’t know until you try.  Besides, first efforts are almost always bad, but the only way we learn to write well is to write, whether badly or well.  The more you write, the better you will become at it.  Do the best you can do, even if it isn’t the best you can imagine; no one can accomplish that.


Fear of rejection

You may suffer anxiety, not that what you write won’t be good enough, but that even if it is, other people won’t think so.  Solution:  If it really is good enough, that shouldn’t matter.

You may just need more confidence in your own judgment.  Although critique can be helpful, it can also be overdone.  Don’t talk about your project with a thousand others, or you will end up writing their idea of your project instead of yours.

Or you may need better judgment.  It won’t be surprising that good judgment is developed by wide reading.  By wide reading I mean not only many things but things written in many different ages and genres.  Make that your habit.

Maybe you just need to find the people who will see the merit of your work.  Try pitching your work to a more appropriate audience.

Since excellence comes only through practice, fear of getting started defeats the purpose.  It’s like being afraid to eat because you need more nutrition.  Laugh at such fears, and start anyway.

Have fun!



Intelligence, Crime, and Eugenics

Monday, 07-31-2023



I know intelligence is not the same as moral virtue.  As my mom says, IQ produced the atomic bomb. What I find, though, is that a lot of people do seem to suggest their equivalence.  For example, some social scientists claim a correlation between IQ and incarceration rates.

I am pretty skeptical about classifying the mystery of a person with a psychometric number. But what if the data really do show a correlation?

In the first place, the proposition “low IQ causes crimes” seems to me to assume determinism and deny free choice of the will.  Crimes are chosen, not caused.

In the second place, the slippery slope is very slippery.  It was this kind of thing that led to Josef Mengele.  If low intelligence really is associated with higher incarceration rates, what is to stop us from plunging headlong into controlled breeding, selecting for high intelligence?



Your mother sounds like a wise woman.  And I’m with you about the mistake of reducing the mystery of the person to a psychometric number.  But I think you are worrying too much.

Suppose there really is a connection between low intelligence and high rates of incarceration.  This would not imply either that intelligence is a moral quality, or that determinism is true.

For consider:  Temptation by itself is not sin, but a person of low intelligence may well be more exposed to certain temptations to sin than other people are.  He may be more easily frustrated, he may feel that the world has cheated him, and he may envy those who can use their intelligence to make money.

Turning the coin over, a person of high intelligence will also be more exposed to certain temptations to sin – but different ones.  He may be more prone to pride, he may think ordinary social norms are for stupid people --  not people like him -- and he may be clever enough to come up with ways to be dishonest that aren’t actually illegal (or that are illegal, but that aren’t so likely to get him arrested).

Since persons in each group tend to be exposed to different kinds of temptations, those in each group who do give in to temptation will tend to commit different kinds of wrongs.  So a highly intelligent person may be just as likely to sin -- but less likely to sin in the particular ways that our criminal justice system is equipped to deal with.

To put the point another way, although an increase in average intelligence might change the kinds of wrongs which are most likely to be committed, it would not reduce the overall incidence of wrong.

Now as to the evil of eugenics, or controlled breeding.  You are concerned about a slippery slope, but there are two different kinds of thing that might be called a slippery slope.

Sometimes a moral error puts a person on a logical conveyor belt to further moral error.  For example, defenders of abortion often argue that unborn children may be killed because they lack what the defenders consider hallmarks of personhood, such as the ability to make and carry out complex plans.  Notice, though, that very small born children lack these characteristics too.  Consequently, the “not a person yet” defense of abortion easily morphs into a “not a person yet” defense of infanticide and toddlercide.  This kind of slippery slope concern is valid.

On the other hand, the sort of slippery slope you have in mind is of a different kind, because it isn’t about moral error leading to further moral error.  Your concern is that a possible truth may lead to moral error – because if the intelligence-incarceration correlation is valid, you think, eugenicists would try to find some way to make use of this fact.  This kind of slippery slope concern is dubious.

Mind you, it isn’t that eugenicists wouldn’t try to find some way to make use of the fact.  Of course they would.  But wicked persons seek ways to make use of every fact.  That is how evil works.  It has to, because evil is a parasite on good, and lying is parasitic on truth.  The solution is to be suspicious, not of truths, but of their employment for bad ends.  Embezzlers misuse the truths of arithmetic, poisoners the truths of chemistry, but arithmetic and chemistry are not the enemy; the enemy is their abuse.  Sometimes it may be necessary to anticipate such abuses and work out ahead of time how to thwart them -- that may be what you are hoping to do.  But let us be friends with the truth itself. 

So don’t waste your waste time trying to defend against eugenics by denying a correlation which you are inclined to believe may be true anyway.  No correlation can show eugenics to be morally wholesome.  Very good arguments do show it to be morally corrupt, because humans are not stuff to be manipulated.



C.S. Lewis and Conscience

Monday, 07-24-2023



One of the assigned readings for an introductory theology class I plan to teach is a discussion of C.S. Lewis in relation to Freud.  The most obvious point of contrast is conscience, which for Freud is nothing but an inhibitory agency resulting from repression and the internalization of outside influences.  Lewis disagrees.  Like you, or for that matter any Thomist, Lewis thinks conscience imparts real knowledge.  However, his view also seems different from yours.  Sometimes he seems more like a Scottish moral sense thinker, because he thinks the feeling of remorse after committing an immoral act indicates a transgression of the Tao.  Then again, at other times he seems sort of Kantian, because he relies on first principles.  Sometimes he even seems quasi-utilitarian, because he relates acts to the goods they intend.  And – this is a big one -- he doesn’t talk about teleology, as you and other natural law thinkers do.

I haven’t read enough of Lewis to be sure, but do you think what I’ve said is correct?  I’m hoping that your Thomistic account might serve as a helpful corrective and contrast.



Thanks for writing.  Lewis is brilliant, but I can see why all this seems a scramble to you, because there are several issues to be untangled.  The remarks I am about to make are based on his remarks about moral law in Mere Christianity, and his remarks about the Tao – his term for the natural norms of life for human beings -- in The Abolition of ManSo if you want to read more Lewis, that’s where to go.

Let’s begin with teleology.  I don’t think the fact that Lewis doesn’t talk about it explicitly implies that he doesn’t believe in it.  To me it seems that teleology is implicit in his account of what he calls the Tao, because he thinks we have knowledge of the Tao to the end that we be properly human.  Teleology is presupposed in other parts of his account too.  Birds raise their chicks to the end that they develop into good birds; good teachers teach literature to the end that their students develop sound responses to things.

Another reason Lewis doesn’t mention teleology explicitly is that, just as that other book of his discusses “mere Christianity,” so in The Abolition of Man he tries to present something we might call “mere natural law” (a phrase picked up recently as the title of a book by Hadley Arkes).  Lewis is trying to avoid the philosophical apparatus of the various different theories of natural law in order to sharpen our awareness of the underlying facts of experience which the theories are trying to explain.  In fact, this is why he borrows the term “Tao,” which means simply “the Way.”  He’s not an eastern Taoist (far from it), but he thinks that in the West the term “natural law” has acquired so much baggage that people can’t respond without knee-jerk reactions.

Having said that, I should add that I’m not sure his approach really is “mere.”  Just as his “mere” Christianity is not really neutral among all the various Christian theologies, so his “mere” natural law is not really neutral among all the various theories of natural law.  But his approach has the advantage of pushing our noses in the moral facts, so to speak, and keeping us from getting hung up in such technicalities as what this or that thinker might have said.  The important thing is not who said something or how he said it, but whether it was true.

A third reason he doesn’t mention teleology explicitly is that in Lewis’s day, the view was still dominant among analytical philosophers that you can’t get an ought from an is -- that descriptive premises can’t entail evaluative conclusions -- and that thinking that they can is a fallacy.  If doing so really is a fallacy, then it would seem that natural law theory is impossible, because it is based on the facts of our nature.  Although Lewis doesn’t challenge the view that is-to-ought inferences are fallacies, he seems to be looking for a way of talking about the natural law which bypasses them.  Whether or not he thinks that he has bypassed them, he hasn’t, for he thinks that in a certain sense the Tao just is our nature, as mature oakhood just is the nature of the acorn.  He therefore reasons that from the fact of the Tao there follows the evaluative conclusion that a sound human being is one who stands within it.

As it happens, analytical philosophy has retreated from the idea that is-to-ought inferences are fallacious anyway.  It would be pretty silly to deny that from the facts that my eyes are for seeing and that they don’t see clearly (a pair of descriptive premises), it follows that they are bad eyes and need correction (a pair of evaluative conclusions).  Actually the people who still believe the so-called fallacy to be a fallacy are hoist by their own petard, because they think that from the descriptive premise that we can’t get an ought from an is, there follows the evaluative conclusion that trying to derive one is bad reasoning.

I don’t see anything utilitarian or “quasi” utilitarian about Lewis’s account.  Perhaps he looks a bit utilitarian to you because utilitarians talk about pursuing goods, and Lewis does think there are real goods which ought to be pursued.  But one doesn’t have to be a utilitarian to believe that.  For example, Thomas Aquinas, who is no utilitarian, presents the pursuit of good and the avoidance of evil as the bedrock of all moral reasoning.  What is distinctive about a utilitarian isn’t that he pursues goods, but that he denies that there are any intrinsically evil acts, so he thinks that for a good enough outcome, anything whatsoever may be done.  Lewis doesn’t believe this any more than Thomas Aquinas does.

I don’t see anything particularly Kantian about Lewis’s account either, since everyone consciously or unconsciously relies on first principles.  Thomas Aquinas plainly does, although he doesn’t call the body of first principles the Tao.  Perhaps Lewis looks a bit Kantian to you because Lewis believes the Tao includes the Golden Rule, and the Golden Rule is a close cousin of Kant’s Categorical Imperative.  But what is distinctive about a Kantian isn’t that he believes something like the Golden Rule, but that he believes that it is the only principle there is.  Neither Lewis nor Thomas Aquinas thinks it is the only one.  Consider:  In order to do unto others as I would have them do unto me, I must first know what I ought to want them to do unto me.  If I were a masochist who wanted others to give me pain, then reasoning “Do as I would wish to be done by” would lead me to conclude that I should give others pain.  The Golden Rule is the keystone of the arch, but it isn’t the whole arch.

As for moral sense theorists.  I am all for trying to present the natural law in a way that appeals to the common moral sense of the plain person.  That’s what I tried to do in What We Can’t Not Know: A GuideHowever, there is a big problem in deciding whether someone does or doesn’t think like a Scottish moral sense theorist, because the expression “moral sense theory” is ambiguous.  Some of the writers called moral sense theorists are given the name because they view right and wrong as something we feel, as we feel emotions.  Sometimes they are given it because they view right and wrong as something that we “sense,” as we sense light and darkness.  And sometimes they are given it because they view right and wrong as something that we perceive with the mind, in a manner which may not be identical with sense perception, but which is at least loosely analogous to it.

Where is Lewis in all that?  He thinks morality is something perceived by the mind with the assistance of properly cultivated emotions.  Whether that is a moral sense theory depends, I guess, on how you define moral sense theory, or which moral sense thinker you have in mind.  I don’t think the label helps.

As for conscience.  Today we often fail to distinguish between conscience itself -- which, as you mention, concerns the knowledge that something is wrong -- and remorse -- which concerns the painful feelings we have when we recognize having done something wrong.  Lewis recognizes that these are different things:  I can know that something is wrong and not feel bad about having done it, and I can perversely feel bad about having done it even though it was right.  On the other hand, he also recognizes that in a well-ordered soul, well-trained feelings cooperate with the mind.  For example, although feelings of disgust, disquiet, or remorse can be mistaken, they are also helpful data, arousing the mind to investigate whether something is really wrong.

Finally, back to teleology.  I like to say that natural law theories of the classical type – by which I mean “thick” natural law theories, not “thin” ones like we find in, say, the Leviathan of Thomas Hobbes -- weave together four different sources of natural moral knowledge, four different “witnesses” to moral truth.  One is deep conscience; another is the designedness of things in general; the third is the details of our own design; and the last is the witness of the natural consequences of our deeds.  Now the second and third witnesses are obviously about teleology.  But the first and fourth witnesses presuppose teleology, because unless conscience is designed to impart the truth, its voice is a meaningless noise -- and unless we are designed to live in a certain way, the consequences of our actions “just happen.”

One doesn’t have to blow a teleology trumpet to talk about these things.  One can just talk about them.  I think Lewis is that kind of moral apologist.

Does this help?



Three and a Half Minutes on the Study of Self-Deception

Thursday, 07-20-2023


Hear me talking for three and a half minutes about The study of self-deception on the Catholic Culture Podcast.  (Interviewer Thomas V. Mirus.)