It sounds like an idea for a motion picture, doesn’t it? A historical melodrama. You could call it The Last Days of the Republic.
By the end of the twentieth century, it was already routine for federal agencies to implement their own agendas, irrespective of the instructions of Congress or the executive. Courts treated the federal Constitution like silly putty.
By the second decade of the twenty-first century, criminal prosecution of political opponents had become a tool of public policy. The consequences of losing an election might be greater than losing the election.
The top ranks of the IRS, the FBI, and the CIA had all been weaponized. A generation earlier, Mr. Nixon had tried this sort of thing with the IRS, but ultimately failed. The lesson drawn by his opponents was that one must make sure to succeed.
The weakness of the movie is that it is almost too crude for fiction. So protective of Mrs. Clinton are her investigators that Mr. Comey, cast as FBI director, drafts a letter exonerating her of security violations before the investigation even begins. So hostile to Mr. Trump are his investigators that Mr. Mueller, cast as Special Counsel, authorizes modes of collecting information from the GSO which even the politicized courts have consistently ruled both illegal and unethical.
Other cinematic flaws are that the story is convoluted, it relies on an implausibly high number of what Leninists used to call “useful idiots,” and none of the main characters are sympathetic.
Movies depend on suspension of disbelief, but that sort of thing can be taken only so far.
Can the Empire be routed? Can the Republic be saved? Like a Star Wars movie, the script ends with a cliffhanger.
Hollywood loves sequels. In real life, they are more difficult to pull off.
Sexual harassment is a filthy offense. However, it is impossible to restrain unless we acknowledge a standard of sexual morality.
To avoid conceding any such thing, workplaces have taken to defining sexual harassment as unwanted sexual attention toward another person. In other words, the point isn’t what one is actually doing, but how the other party receives it. It is entirely subjective.
Such a standard is unworkable, because the lecher cannot know whether his beastly attention is unwanted until he commits it. The rule merely encourages him to give it a try. If the other party is too intimidated to object, his behavior is not identifiable as harassment even then.
Suppose we define sexual harassment in the older way, as lewd attention toward another person. Whether attention is lewd does not depend on what the other party thinks of it.
Persisting in lewd behavior over the protests of the other person makes it still more despicable, of course. But it would have been despicable anyway.
Some thinkers who believe in natural law are uneasy with the language of natural rights. The reasons for this disquiet are understandable. Why? Because however firmly rights may be grounded in what is objectively just, grammatically speaking my rights seem to be subjective, just in the sense that they are “mine.”
Of course, the same is true of duties, yet, psychologically, there is a difference. “My” duties direct my attention outward, to the persons toward whom I owe them. By contrast, “my” rights direct my attention inward, toward myself.
This makes it very easy to view rights as though they were not really about objective moral realities, but “all about me” – about sheer self-assertion. The fear of these thinkers, then, is that talking too much about rights subtly influences us to accept a false view of rights.
To most natural law thinkers, however, it seems unreasonable that we should avoid the language of natural rights just because the idea is so badly abused. The reality of natural rights, properly understood, is a truth, knowable by reason. In this life, truth is always abused; there is no such thing as a non-abusable truth. Even liars know that in order to be persuasive, they must fit as much truth into their lies as possible.
Besides, rights and duties are correlated. If only we got into the habit of remembering the duties that our rights imply, it would go a long way toward making rights talk safer.
Instead of avoidance, then, a better strategy (though perhaps a risky one) would seem to be redemption: To reclaim the spoiled language of natural rights, to rescue the concept from its abusers, to uproot it from the theory of radical self-sovereignty and plant it again in the soil of natural law.
A student in one of my classes insisted one day that when Thomas Aquinas spoke of Divine law, he means “one’s own Divine law”: Torah for Jews, the Gospel for Christians, Shari’a for Muslims, Thelema for Wiccans, Sheilaism for Sheila, whatever it may be. She was quite offended by the suggestion that this was not what St. Thomas had in mind.
But it isn’t. What thinkers like St. Thomas mean by Divine law is whatever really is Divine law. Whether they are right about the authenticity of Christian Revelation is not a matter of indifference. If a purported Revelation is not really from God -- if it is merely a product of the human mind that imagines itself to be from God -- then it is wholly incapable of instructing us about matters that transcend what natural reason can work out for itself. It is worse than a harmless mistake; it is a blind guide.
Now the various purported Revelations -- contrary to popular belief, there aren’t many, for only a few of the world religions claim Divine Revelation in actual historical time -- cannot all be from God, because they say inconsistent things. There is no “your truth” and “my truth,” for whether we like it or not, we inhabit the same reality. What then is the Christian judgment? That both the Old Law, given to the chosen nation, and the New Law, given to the Church, are truly from God, the former being preparatory, the latter being its fulfillment. It follows that even if Shariʿa may include some good things -- even the pagans, who knew much less, knew some good things -- nevertheless it is a regression from that fulfillment, and it is not truly from God.
If it is really true that the truth about Revelation is simply a matter of fact -- like whether the nucleus of the atom really does contain protons, or whether gravity really is weaker than electromagnetism -- then there is no reason for anyone to be offended by this fact. Suppose we are at the buffet, and Gertrude is about to dip into the tuna salad. Felix says, “Better not. The last three people who ate it got sick.” Gertrude replies, “Stop judging me!” Is her response reasonable? Of course not, because the truth about the tuna salad is not about personal preferences; it is about how things stand in reality. Even if Felix is mistaken about the tuna salad, he has not offered Gertrude an insult. In fact, he has exercised concern for her. She needed to know that the tuna salad might be spoiled.
Someone might say, “The analogy with tuna salad is nonsense, because we cannot know anything about God.” Why not? If the agnostic says that religious truth is specially resistant to rational inquiry, he contradicts himself, for to know God’s rational unknowability would be to know something about Him. Indeed it would be to know a great deal about Him. First one would have to know that even if He exists, He is infinitely remote, because otherwise one could not be so sure that knowledge about Him were rationally inaccessible. Second one would have to know that even if He exists, He is unconcerned with human beings, because otherwise one would expect Him to have provided the means for humans to know Him. Finally one would have to know that even if He exists, He is completely unlike the biblical portrayal of Him, because in that portrayal He does care about us, and has already provided such means – not only through Revelation, but even, in part, through the order of creation itself. So, in the end, the so-called agnostic must claim to know quite a number of things about God just to prop up his claim to not knowing anything about God. The problem is that, on his assumptions, he cannot rationally justify any of these things.
The hypothetical someone may go on, “But even if we can know a good many things about God by rational inquiry, we cannot know what to make of purported Revelations.” But we can. In the first place we can say something negative; any purported Revelation that contradicts what reason can tell us must be false. For example, we must not believe a religion that denies the unity of God’s wisdom and goodness, any more than we may believe a religion that denies that two things equal to a third thing are equal to each other. Although these truths of reason are not articles of faith, they are “preambles” to the articles of faith, for as St. Thomas writes, “faith presupposes natural knowledge, even as grace presupposes nature, and perfection supposes something that can be perfected.”
In the second place, even about teachings to which we cannot employ philosophical reasoning, we can employ historical reasoning. For example, we can ask whether the original witnesses to God’s alleged revelatory deeds are credible.
In the third place, even in cases in which an alleged Revelation goes beyond the matters we could have figured out without it, even so we should expect it, if authentic, to provide deeper insight into these matters, so we can apply a test: Does it?
Finally, one can put the alleged Revelation to the test. St. Christian faith forbids “putting God to the test” in the sense of presumption, but in another sense, it encourages it. The psalmist implores, “taste and see that the Lord is good!” The Apostle Paul instructs, “Do not despise prophesying, but test everything; hold fast what is good.”
Suppose, then, that I live as though I believe the New Law. (The alternative is to live as though I don’t.) I ardently try to follow it; I live, pray, and worship as it directs; I rely utterly on the grace of Christ which is said to make this possible; I seek Him with all my heart; and I say to Him, “If You are real, you may have me” -- what happens?
According to the natural law tradition, one of the conditions of a true law is that it be promulgated or made known. There is no such thing as a secret law. However, there are many ways in which a so-called law may fall short of being authentically promulgated. The most obvious way is that the so-called law is literally secret. Public authorities may refuse to divulge to the public the rules and regulations by which they will be judged.
Consider the ordinances against revealing state secrets in the People's Republic of China. Astonishingly, many of the rules and regulations about state secrets are themselves secret, so there is no way to know whether or not one is in violation. Trials held under the law are also held in secret. Among those punished have been Shi Tao, a newspaper reporter, sentenced in 2005 to ten years in prison for "illegally supplying state secrets abroad";' Tohti Tunyaz, a University of Tokyo doctoral student studying Chinese ethnic minority policy, sentenced in 1998 to eleven years in prison for "illegally procuring state secrets"; and Rebiya Kadeer, an advocate for the Muslim Uighur minority, sentenced in 1999 to eight years for "illegally providing state secrets overseas." What were their crimes -- what did they actually do? Tao had posted online a summary of official restrictions on Chinese press coverage of events related to the fifteenth anniversary of the Tienanmin Square massacre. Tunyaz had retrieved fifty-year-old records from a library. Kadeer had mailed Chinese newspaper clippings to her husband in the United States.
But the expression "secret law" should also be extended to laws that are not literally secret, but secret in effect. Consider vague enactments, rules that are cast in language so elastic that no one is sure of its meaning, or the meaning of which is unpredictably extended through excessively supple rules of interpretation. During the past century this sort of elasticity has been a prominent feature of all of the totalitarian legal codes. As Alexandr Solzhenitsyn wrote of the infamous Article 58, “Wherever the law is, crime can be found.”
The glories of elasticity are often trumpeted even in the liberal democracies that fancy themselves avatars of rule of law. In the United States, they are sung in paeans to the so-called "living" constitution, and in the abominable theory that "law is whatever judges say it is." But liberal democracies have invented a new failure of promulgation, a novel kind of "secret law" for which credit is theirs alone. For promulgation can fail -- the rules can be unknown -- not only when they are literally secret, retroactively applied, excessively vague, or arbitrarily interpreted, but even when there are simply too complex. To put it another way, the very impulse to turn everything into law can be prejudicial to law, for then the rules become so vast, multiform, and changeable that no one can learn them, much less grasp what they mean.
In 2010, investigators for the U.S. Treasury Department, pretending to be taxpayers, found that Internal Revenue Service Centers set up for taxpayer assistance gave either no answers, incomplete answers, or incorrect answers to their questions 43 percent of the time. The root of the problem is not simply that taxpayer assistance workers are insufficiently trained, but that the tax code has become too complex for anyone to learn as a whole.
The community has entrusted the power of making laws to Congress, but Congress long ago gave up the principle delegata potestas non potest delegari, "the one to whom a power is delegated may not delegate it to another." Congressional enactments alone run to three or four thousand pages, but if we add in the regulations drawn up by the administrative agencies, the tax code comes to 20 volumes. Bear in mind that taxation is only one of the fifty subject headings in the Code of Federal Regulations, now tens of thousands of pages in length.
As early as 1788, James Madison had foreseen such a possibility. Mutability of the laws is "calamitous," he warned. "It poisons the blessing of liberty itself," for “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”
The rule of law, it seems, is not the same as the rule of a multitude of regulations, and there is a difference between publishing the rules and promulgating them. If the law is so copious and profuse that the people cannot take it in, so intricate and involved that they cannot understand it, or so mutable and mercurial that they cannot keep track of it, then it has not been truly promulgated; and so it is not truly law. What does this fact suggest about the legitimacy of the modern administrative state?
A movement sometimes styled “evolutionary ethics” or “evolutionary psychology” takes as its goal the provision of a naturalistic basis for moral judgments. This new naturalist fashion comes in several overlapping varieties. Let us consider the two best-known.
One variety tries to demonstrate that a moral sense has evolved among human beings because it confers a selective advantage. Consider, for example, the human tendency to help out other people, even at some cost to oneself. At first it might seem that a genetic predisposition for such behavior could never have evolved by
natural selection because unselfishness spends resources for nothing; every selfless act reduces the likelihood of passing on the genes that have made one act selflessly. But if the ancestors of human beings already lived nearby to relatives, maybe not. Under those circumstances, the ones most likely to receive aid would be relatives, and for each degree of relationship, there is a certain likelihood that the relative is carrying a copy of the same gene. So even though an act of self-sacrifice reduces the likelihood that I will pass on my own copy of the gene, it increases the likelihood that my relatives will pass on theirs. If my unselfish act helps a sufficient number of such relatives, then the proliferation of the gene in question is assisted even more than it would have been by selfish self-preservation. This is called “kin selection.”
If kin selection really happens, then it might explain the tendency to help out other people. It might even explain why we approve of the tendency. The problem is that it can’t explain whether we ought to approve of it. After all, the fact that we developed one way rather than another is an accident. We help our kin; some species eat their kin. Someone might reply, “That we might have turned out differently is no concern of ours. The fact is that we didn’t. Besides, natural selection has determined not only that we are the way we are, but that we’re happy about the way we are. We don’t need a justification for being pleased!”
Not so fast. We may be pleased about our tendency to render aid, but we are not so pleased about its limits. As a matter of fact, many of our tendencies displease us; consider how appalled we are by our propensity for territorial aggression. Now our tendency to territorial aggression and our propensity to be appalled by it must both belong to the genome. What sense could there be, then, in judging between them? Genes provide no basis for judging between gene and gene. The basis of morality must lie elsewhere.
Another variety of evolutionary ethics tries to show that by considering how we came to be, we will learn more about how we are. According to this view, Darwinism reveals the universal, persistent features of human nature. Why it should do so is very strange, because Darwinism is not a predictive theory. It does not proceed by saying, “According to our models, we should expect human males to be more interested in sexual variety than human females; let’s find out if this is true.” Rather, it proceeds by saying, “Human males seem to be more interested in sexual variety than human females; let’s cook up some scenarios about how this might have come to pass.” In other words, the theory discovers nothing. It depends entirely on what we know (or think we know) already, and proceeds from there to a purely conjectural evolutionary history.
These conjectures are made to order. You can “explain” fidelity, and you can “explain” infidelity. You can “explain” monogamy, and you can “explain” polygamy. Best of all (for those who devise them), none of your explanations can be disconfirmed -- because all of the data about what actually happened are lost in the mists of prehistory.
In the truest sense of the word, they are myths -- but with one difference, which is this: the dominant myths of most cultures encourage adherence to cultural norms. By contrast, the myths of evolutionary ethicists encourage cynicism about them.
In ethics, there are two ways to take human nature seriously. The first is to regard nature as the design of a supernatural intelligence; you take it seriously because you take God seriously. The other is to regard nature (in a physical or material sense) as the reason for all there is. Here you ascribe to matter -- or to some property, process, or aspect of matter -- the ontological status that theists ascribe to God Himself. Natural lawyers follow the first way; naturalists follow the second. Similar names -- radically different meanings.
Nature means something different to the naturalist than it does to the natural lawyer. It has to. He cannot view it as a design, because in his view there isn’t anyone whose design it might be. What is, just is. This is rather unsatisfactory, for no one seriously maintains that the universe had to be just the way it is. There might have been fewer stars, or more. There might have been creatures like us, or there might not. There might not have been a universe at all. Nature, then, is a contingent being, not a necessary being like God, and contingent beings need causes. The naturalist rejects this line of reasoning, or at least limits it. He might concede that each thing in nature needs a cause, but he denies that the entire ensemble of things needs a cause. This exception seems suspiciously arbitrary.
It is easy to see how the first approach can ground ethics. If God Himself is the Good -- the uncreated source of all being, all meaning, and all value in created things -- then inasmuch as his goodness is reflected in the inbuilt purposes of our own design, these purposes are normative. Consider, for example, the inclination to associate in families. This is not the same as a mere desire to do so; indeed, we have conflicting desires, and some people would rather be alone. It would be more accurate to say that we are made for family life, that fitness for family life is one of our design criteria. For humans, then, the familial inclination is a natural inclination. When we follow this inclination we are not acting in the teeth of our design, but in accord with our design. Family is not a merely apparent good for us but a real one, and the rules and habits necessary to its flourishing belong to the natural law.
Or consider the universal testimony of conscience against murder. This is more than a matter of guilty feelings. No one always feels remorse for doing wrong, and some people never do. Nevertheless, the wrong of deliberately taking innocent human life is acknowledged at all times and everywhere, and this too belongs to the natural law.
Notice that both examples concern design. The former concerns the design of the inclinations, as apprehended by the intellect. The latter concerns the design of the intellect itself – we could say of its inclinations -- for we are so made that there are certain moral truths we can’t not know.
How the naturalist view could ground ethics is hard to see. If material nature is all there is, then how could actions have nonmaterial properties like right and wrong? How could there be true moral “law” without a lawgiver? Perhaps it would be like the “law” of gravity -- a pattern that we cannot help but enact, a force to which we cannot help but yield. But in that case, “you ought to” would mean the same thing as “you do.” Stones do not deliberate about whether they “ought” to fall.