The “Missing Jurisprudence” – Part 2

In my previous post, I recounted the pay-off one might expect from the development of what Professor West characterizes as a “missing jurisprudence” – that is, a liberal or progressive jurisprudence that takes natural law concerns seriously.

In this post, I summarize and comment upon Professor West’s account of why liberal and progressive members of the American legal academy have failed to take up the questions of the natural law tradition and make them central to their jurisprudential projects.

Adopting an illuminating trilogy of military metaphors (“friendly fire,” “self-inflicted wounds” and “incoming artiliary”), Professor West explains the reasons why such a jurisprudential orientation has been so long “missing” (“missing-in-action”?) in the American legal academy.

To capture the gist of these military metaphors, it is helpful to identify the different sides in this jurisprudential battle:

From what I gather, on one side, we find three different groups of self-identified natural lawyers fighting alongside one another, united in battle despite the “friendly fire” and “self-inflicted wounds” caused by two of the three.

On the other side of this jurisprudential battle, we find the postmodernists – lobbing “incoming artillery” at the natural lawyers, by denying that there is anything of significance that can be said about human nature.

By way of exegesis and friendly amendment/contribution, I want to unpack what I believe to be the three groups of natural lawyers fighting on one side of this battle. (With apologies, I will not comment on the postmodernist onslaught):

(1) First we’ve got the secular progressives, who embrace a hard positivist account of law and reject any general prima facie moral obligation to obey posited law, but who identify with the natural law tradition insofar as they seek to ground their critique of law in an account of basic human goods.

I take Professor West to include herself in this first group, and thus to be suffering from the “friendly fire” and “self-inflicted wounds” occasioned by her two co-combatants, as recounted below.

(2) Fighting alongside her are the liberal, secular natural lawyers, such as Lon Fuller and Ronald Dworkin, who reject Professor West’s desire to ground arguments in an account of basic human goods – since, so they claim, the law (and the state more generally) must remain neutral as to differing conceptions of the good.

This rejection of liberal perfectionism in favor of liberal neutrality is what Professor West calls the “friendly fire” that explains, in part, why liberals and progressives have been reluctant to develop the sort of natural law jurisprudence she envisions.

(3) Finally, there are Catholic natural lawyers, such as John Finnis and Robert George, who differ from the first group in at least two ways. First, they believe there is a general prima facie obligation to obey posited law. Second, they embrace conservative/reactionary norms regarding human sexuality and marriage.

As Professor West explains, part of the reason why liberals and progressives have been reluctant to develop a progressive natural law jurisprudence is due to what she calls the “self-inflicted wounds” occasioned by this group’s views regarding marriage and sexuality, and what she characterizes as the overly confident and authoritarian methodological stance they adopt in defending those views.

So that’s the exegesis – here’s the friendly amendment/contribution:

I’d like to suggest the possibility of adding a fourth group to this side of the battle – one that would support the project of creating a progressive natural law without inflicting “friendly fire” or adding any further “self-inflicted wounds.” This fourth group would, like the first, embrace an exclusive positivist account of the law (thus never mistaking what the law is with what the law should be), while embracing the project of articulating a progressive account of the common good, and drawing upon that account both in arguing against existing posited laws that detract from that common good, and in arguing for the creation of new posited laws to promote that common good.

In almost all respects, this group would mirror the first – except that these warriors in the jurisprudential battle Professor West envisions needn’t be secular in their understanding of basic human goods and the common good that law should promote. Instead, members of this fourth group would ground their understanding in a belief in God and religious faith.

It may sound implausible to suggest that a non-secular account of the human good could avoid the mistakes that Finnis and others have made. Indeed, it may seem that to be religiously-grounded in one’s view of the common good is necessarily to endorse reactionary views regarding sexuality and marriage. But I doubt it. I think there is space for a progressive religious account of human goods and the common good that does not follow Finnis and others in supporting traditional patriarchal forms of marriage and sexuality. In any event, I think it would be a mistake for people of faith to let conservatives and reactionaries have the final word in articulating the genuine goods of marriage and sexuality.

There is space for dialogue within the natural law tradition through which our understanding of marriage and sexuality may develop. This dialogue, no doubt, can be difficult for those of us who embrace religious faith traditions in which authoritative teachings conflict with our conscience. Still, such a dialogue is nonetheless possible and may prove productive, if approached with an attitude of respectful engagement and humility that often seems lacking from some “new natural law” accounts of sexuality and marriage.

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