In debates about right and wrong, selective relativists – I mean people who are relativists when it suits them – often use the question “Who is to say?” as a conversation-stopper. For example, we might be talking about whether some enactment violates the natural law. Eventually the other fellow asks “Who is to say?” In most cases the question functions as an implied statement. “No one is to say.” Or as an implied imperative. “Shut up.”
When I hear people shut up other people by asking who is to say, I sometimes riposte with another question. “You wouldn’t ask who is to say if the topic were whether people should be allowed to steal from you. If it’s a good question to ask in some cases, then why not in all of them?” My point is that it isn’t good in any of them. Shut up with the shutting up.
On the other hand, the question “Who is to say?” is not always used in this belligerent and obstructive fashion. It also has a perfectly good and honest use. If someone asks whether the legislature has violated the natural law, the person who asks “Who is to say?” may mean merely “I agree that this should be discussed. But who should have the authority to settle whether the legislature has done so? Only the legislature itself, or should courts also be able to weight in?” Taking the question this way, it isn’t skeptical but jurisdictional.
And it has an answer, if we are patient enough to find it. The answer is tough because it depends on experience and prudence. On the whole, does our body of laws conform to the natural law more closely if we let legislatures decide for themselves whether their enactments conform to the natural law, or if we divide the authority to decide this question between legislatures and courts? And if dividing the authority does work better, then when does it work best to let courts get into the act, and when not?
Unfortunately, the helpful, jurisdictional sense of the question and the unhelpful, conversation-stopping sense of the question are often confused. Like this --
Speaker one: “Do you think courts should be allowed to invoke natural law in explaining why their decisions are right?”
Speaker two: “Of course not. Who is to say what conforms to the natural law?”
Speaker two means that courts should not invoke natural law because no one knows what conforms to it. But if no one knows what conforms to it, then the question is bumped back to the legislature. And why are the legislature’s decisions about what conforms to it any better?
There are plenty of non-skeptical reasons for courts to defer to legislatures. For example, court are required to confine their judgment to the cases at hand, but a legislature can consider all sorts of hypothetical cases. Probably this doesn’t make legislatures any better at recognizing the general principles of natural law, such as “Punish only the guilty.” Everybody knows them. But probably it does make legislatures better at recognizing the remote implications of natural law, and that is what most legislative decisions are about.
But if we favor judicial deference for this reason, then we are not saying that courts should defer because who is to say, but because legislatures are better qualified to say. What we ought to be talking about, then, is when legislators are better qualified to say -- and when they are not.