Abstract
A theme that emerges from many current philosophical writings on constitutionalism is a certain uneasiness with respect to the idea that the basic function of a constitution is to protect fundamental moral rights of citizens. Representatives of the Critical Legal Studies Movement are openly contemptuous of this idea—rejecting it as either covert subjective ideology or as outright nonsense. Even those sympathetic to and supportive of the idea, however, do not exhibit the kind of supreme confidence in it that was once common. Ronald Dworkin, known as the most prominent contemporary defender of the view that the U.S. Constitution exists to protect the inherent dignity of persons, has in his most recent book Law’s Empire moved toward a more relativistic account of such matters—still confident that this document exists to protect “our” basic conventional political morality but less confident than he used to appear that this is the same as protecting an objective set of natural or basic human rights—moral rights that persons have regardless of the particular cultural conventions under which they live. Even John Rawls, with each new essay, appears more relativistic in his account of morality and of law to the degree that law depends upon or enshrines morality.1
As things now stand, everything is up for grabs.
Nevertheless:
Napalming babies is bad.
Starving the poor is wicked.
Buying and selling each other is depraved.
Those who stood up to and died resisting Hitler, Stalin, Amin, and Pol
Pot—and General Custer too—haveearned salvation.
Those who acquiesced deserve to be damned.
There is in the world such a thing as evil.
(All together now:) Sez who?
God help us.
Arthur Leff
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References
For a fuller discussion of this shift toward relativism on the part of Rawls and Dworkin, see Thomas C. Grey’s “Advice for ‘Judge and Company’“ (a review essay on Dworkin’s Law’s Empire), New York Review of Books, 12 March, 1987.There are, of course, legal theories of constitutional rights (the late Justice Hugo Black’s perhaps) that make no pretense of being founded in morality or in moral philosophy. My primary focus in this Afterword is on those theories—for example, Dworkin’s—that do purport to be so founded.
See Ronald Dworkin, “The Bork Nomination,” New York Review of Books, 13 August, 1987.
The most recent exploration of the possibility of generating moral rules from models of rational self-interest is David Gauthier’s important book Morals by Agreement (Oxford: Oxford University Press, 1986).
For a fuller discussion for the different moral visions of human nature that lie behind utilitarianism and Kantianism, see Chapter 2, “Moral Theory and its Application to Law,” in The Philosophy of Law: An Introduction to Jurisprudence, by Jeffrie G. Murphy and Jules L. Coleman (Totowa, NJ: Rowman and Allenheld, 1984). A revised edition of this book was published by Westview Press in 1990.
Some, of course, would argue that one can take claims about the natural rights and the inherent dignity of persons as themselves foundational—arguing that they are more plausible than any theory one might use either to support or undermine them, perhaps even arguing that they are self-evident or obvious. This position is difficult to maintain, however, in the face of the fact that the philosophical world now contains large numbers of intelligent and sophisticated utilitarians, egoists, skeptics, and relativists—none of them finding the Kantian tradition even plausible, much less self-evident.
But why is it important? In itself? Instrumentally, because we take satisfaction in the use of this faculty and in its products? Because it allows us properly to fulfill a portion of our role in the divinely ordered framework in which it operates?
For a somewhat fuller discussion of the relation between Kantian ethics and religious morality, See Jeffrie G. Murphy, “Kantian Autonomy and Divine Commands,” Faith and Philosophy, vol. 4, no. 3, July 1987: 276–281,reprinted in the present collection.
If this is true, then there may be interesting implications for judicial review—for example, courts should perhaps be reluctant to interpret the constitution in ways that undermine religion since, if religion is undermined, constitutional rights that depend for their foundations on a religious worldview may be undermined too.
Could one attempt a move similar to Kant’s famous (or notorious) “moral proof” for the existence of God? Kant basically argued as follows: We have no knowledge of God (that He exists or does not exist); certain moral principles presuppose a belief in God; therefore a rational person is justif ed in postulating the existence of God. The demands of morality here take precedence over our normal metaphysical bias in favor of Occam’s Razor. Perhaps this is an idea worth exploring.
It is possible that utility would be best served by embracing, as a public morality, something other than utilitarianism—for example, it is logically possible (perhaps even empirically likely) that the general welfare would be better served if people were taught to aim, not at the general welfare, but at respecting the natural rights of persons. Natural rights (perhaps even a belief in God) would then represent social useful fictions. This suggestion raises interesting theoretical possibilities, but it should be noted that it clearly collides with the liberal belief that the true ethical foundations of a society should be transparent to all citizens in that society.
It is ironic that most of the critical legal studies scholars who support this political conception of the courts are from the political left and have a radical (often socialist) political agenda that they want the courts to pursue. In fact, of course, this political conception of the courts is much more likely to serve the interests of the political right and the enactment of their political agenda.
Kent Greenawalt was kind enough to read and comment on an earlier draft of this essay. I am grateful for his comments and have attempted to address the concerns he expressed.
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© 1992 Springer Science+Business Media Dordrecht
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Murphy, J.G. (1992). Constitutionalism, Moral Skepticism, and Religious Belief. In: Retribution Reconsidered. Philosophical Studies Series, vol 54. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-7922-3_9
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