Nihilism and the End of Law
Phillip E. Johnson
Copyright (c) 1993 First Things 31 (March 1993): 19-25.
When President Bush nominated Judge Clarence Thomas to a vacancy on the United States Supreme Court, liberals opposed to confirming the nomination at first directed critical scrutiny to statements the nominee had made in favor of employing "natural law" in constitutional interpretation. The Chairman of the Judiciary Committee that had to pass upon the nomination, Democratic Senator Joseph Biden, emphasized that he too believed in the existence of natural law. Indeed, he had successfully opposed a previous Republican nominee to the Supreme Court, Judge Robert Bork, in part because Bork had denied that the Constitution protects certain "natural" rights that are not mentioned in the document itself. At that time Senator Biden had insisted that "My rights are not derived from any government. . . . My rights are because I exist. They were given to me and each of our fellow citizens by our Creator and they represent the essence of human dignity."
Senator Biden feared, however, that Judge Thomas might believe in the wrong kind of natural law. He explained the difference between good and bad natural law in a newspaper article that expanded on a theme first advanced in the New York Times by Harvard Law School Professor Laurence Tribe. According to Senator Biden's article, good natural law is subservient to the Constitution-i.e., to positive, man-made law-and its use is therefore restricted "to the task of giving meaning to the Constitution's great, but sometimes ambiguous, phrases." Second, good natural law does not dictate a moral code to be imposed upon individuals; instead, it protects the right of individuals to make moral decisions free from dictation by either legislators or judges. Finally, good natural law is not a static set of "timeless truths" but rather an evolving body of ideals that changes to permit government to adjust to new social challenges and new economic circumstances. In short, good natural law doesn't prevent us from doing anything we really want to do.
As a legal scholar, I had hoped Judge Thomas would accept Senator Biden's challenge and articulate a vision of natural law with real content, but this was not to be. Robert Bork had debated his legal theories with the Senators candidly, with disastrous results, and political strategists had concluded from that experience that the way to get confirmed is to say as little as possible. Judge Thomas took their advice, and stuck to a simple set of unilluminating answers when the Senators tried to probe his judicial philosophy.
The resulting stalemate illustrated the ambivalence with which our contemporary legal culture regards the proposition that there exists some objective standard of right and wrong against which human legal standards can be measured. Anyone who says that there is such a standard seems to be denying that we are morally autonomous beings who have every right to set our own standards. On the other hand, anyone who denies that there is a higher law seems to embrace nihilism, and therefore to leave the powerless unprotected from the whims of whoever controls the law-making apparatus. Either alternative is unacceptable. The safest course is to be impenetrably vague or confusing on the subject.
The Biden-Thomas exchange reflected at the partisan political level a problem that permeates the literature of legal philosophy. I call this problem the modernist impasse. Modernism is the condition that begins when humans understand that God is really dead and that they therefore have to decide all the big questions for themselves. Modernism at times produces an exhilarating sense of liberation: we can do whatever we like, because there is no unimpeachable authority to prevent us. Modernism at other times is downright scary: how can we persuade other people that what they want to do to us is barred by some unchallengeable moral absolute?
Yale Law Professor Arthur Leff expressed the bewilderment of an agnostic culture that yearns for enduring values in a brilliant lecture delivered at Duke University in 1979, a few years before his untimely death from cancer. The published lecture-titled "Unspeakable Ethics, Unnatural Law"-is frequently quoted in law review articles, but it is little known outside the world of legal scholarship. It happens to be one of the best statements of the modernist impasse that I know. As Leff put it,
I want to believe-and so do you-in a complete, transcendent, and immanent set of propositions about right and wrong, findable rules that authoritatively and unambiguously direct us how to live righteously. I also want to believe-and so do you-in no such thing, but rather that we are wholly free, not only to choose for ourselves what we ought to do, but to decide for ourselves, individually and as a species, what we ought to be. What we want, Heaven help us, is simultaneously to be perfectly ruled and perfectly free, that is, at the same time to discover the right and the good and to create it.
The heart of the problem, according to Leff, is that any normative statement implies the existence of an authoritative evaluator. But with God out of the picture, every human becomes a "godlet"-with as much authority to set standards as any other godlet or combination of godlets. For example, if a human moralist says "Thou shalt not commit adultery," he invites "the formal intellectual equivalent of what is known in barrooms and schoolyards as 'the grand sez who?'" Persons who want to commit adultery, or who sympathize with those who do, can offer the crushing rejoinder: What gives you the authority to prescribe what is good for me? As Leff explained,
Putting it that way makes clear that if we are looking for an evaluation, we must actually be looking for an evaluator: some machine for the generation of judgments on states of affairs. If the evaluation is to be beyond question, then the evaluator and its evaluative processes must be similarly insulated. If it is to fulfill its role, the evaluator must be the unjudged judge, the unruled legislator, the premise maker who rests on no premises, the uncreated creator of values. . . . We are never going to get anywhere (assuming for the moment that there is somewhere to get) in ethical or legal theory unless we finally face the fact that, in the Psalmist's words, there is no one like unto the Lord. . . . The so-called death of God turns out not to have been just His funeral; it also seems to have effected the total elimination of any coherent, or even more-than-momentarily convincing, ethical or legal system dependent upon finally authoritative, extrasystematic premises.
Leff pointed out that it is not we who define God's utterances as unquestionably true, in the manner that we define a triangle as a three-sided plane figure. In a God-based system, God is not an idea in the human mind but a separate and controlling reality. If human reason aspires to be the judge of God's statements, it makes itself the unevaluated evaluator, which is to say it takes God's place. In Leff's words, "Our relation to God's moral order is the triangle's relationship to the order of Euclidean plane geometry, not the mathematician's. We are defined, constituted as beings whose adultery is wrong, bad, awful. Thus, committing adultery in such a system is 'naturally' bad only because the system is supernaturally constructed."
The relationship between natural law and supernatural authority requires a bit of explanation. In the philosophic tradition of Thomas Aquinas, "natural law" is distinguished from divine law because its commands are accessible to human reason even in the absence of divine revelation. To a theist like Aquinas, the reality of a moral law was not in question. The question was how much of that law we could know from natural reason (or academic philosophy), and how much we could know only from Scripture or the Church. This two-level system of reason and revelation made it possible for Aquinas to fuse the pre-Christian philosophy of Aristotle with the revelation-based doctrines of the Roman Catholic Church.
To a modernist, who by definition relies only upon human authority, natural law in the Thomistic sense is no longer supportable because it would have to rest upon the unacceptable premise that nature was supernaturally created. There are still plenty of people around who would like to argue that a moral code can be discerned from nature, but the modernist understanding of nature undermines their efforts. According to Judge Richard Posner, the very idea of natural law rests upon a premodern picture of nature that science has discredited.
Even the term "natural law" is an anachronism. The majority of educated Americans believe that nature is the amoral scene of Darwinian struggle. Occasional attempts are made to derive social norms from nature so conceived, but they are not likely to succeed. It is true that a variety of widely accepted norms, including the keeping of certain promises, the abhorrence of unjustified killing of human beings, and perhaps even the sanctity of property rights, promote the adaption of the human species to its environment. But so does genocide.
In other words, a certain amount of social cooperation is natural, in the Darwinian sense, because it tends to promote the survival of a tribe or kinship group. Murderous violence against outsiders is equally natural, because it promotes the spreading of one group's genes by eliminating competing genes. In fact, Darwinian natural selection is defined as a process by which superior varieties exterminate their inferiors, whether by attacking them directly or by competing more effectively for limited resources. It is therefore no wonder that equating what is natural with what is good-i.e., trying to derive "ought" from is-is dismissed these days as the "naturalistic fallacy."
Modernists therefore see no merit in natural law propositions about, say, sexual morality. For example, even if one grants that homosexual intercourse or abortion is in a sense less natural than heterosexual intercourse or childbirth (because it does not further reproduction), it does not follow that "unnatural" means wrong, or even undesirable. It is equally unnatural for humans to fly in airplanes, since we are not born with wings. Rejection of the naturalistic fallacy does not necessarily mean that modernists discard natural law altogether, however. As Senator Biden's article indicates, modernists are much more comfortable with the idea of natural rights than with natural obligations. Because the individual human subject-Leff's godlet-is the modernist starting point, it seems reasonable to place a heavy burden of justification upon anyone who seeks to restrain the liberty of that subject. This burden of justification is what Leff whimsically called "the grand sez who."
The assertion of rights cannot for long be separated from the imposition of duties, however. If we give X a right to do as she wants, and she wants to get an abortion, we must soon face the question of protecting her from Y, who wants to protect the rights of unborn children. If majority opinion in the legislature favors some restrictions upon abortion, and there is no specific language in the Constitution on the subject, then "pro-choice" forces have to invoke something very much like a natural law duty to get their way. "Thou shalt not interfere with a woman's right to choose abortion; indeed, thou must help to pay for abortions through tax money; more than that, thou shalt not legislate that the woman contemplating abortion must be fully informed about the potential adoptive parents who desperately want to provide a loving home for her unborn child." Sez who?
The modernist impasse, in other words, does not stymie as long as all we are doing is proclaiming liberties. The problem for modernists is how to justify imposing obligations. Homosexuals have a right to be homosexuals, of course, but do employers who disapprove have an obligation to hire them? The poor have a right to public assistance, of course, but do the more fortunate and productive citizens have a right to refuse to pay when they think the tax burden has become unreasonable? The rights of all citizens must be protected, of course, but who are the citizens? What about infants, the unborn, foreigners, and animals? Who or what has the authority to tell us whom we ought to admit to the sphere of protection?
Most of Leff's lecture consisted of a review of all the unsuccessful attempts to establish an objective moral order on a foundation of human construction, i.e., to put something else in God's place as the unevaluated evaluator. The asserted non-supernatural sources of moral authority are many and varied, and each is only temporarily convincing. They include: the command of the sovereign; the majority of the voters; the principle of utility; the Supreme Court's varying interpretations of the Constitution's great but ambiguous phrases; the subtle implications of platitudinous shared values like "equality" or "autonomy"; and even a hypothetical social contract that abstract persons might adopt in the imaginary "original position" described by John Rawls. Every alternative rests ultimately on human authority, because that is what remains when God is removed from the picture. But human authority always becomes inadequate as soon as people learn to challenge its pretensions. Every system fails the test of "the grand sez who."
Leff's lecture made a powerful impression upon a generation of legal scholars because he stated the nature of the impasse so convincingly. Most modernist thinking consists of attempts to evade the impasse with superficial resolutions. Scientific socialism can usher in a secularized Kingdom of Heaven by giving economic power to the proletariat. Criminal tendencies in individuals can be greatly reduced by providing education, psychiatric treatment, and economic opportunity. Public education can produce rational, self-controlled citizens, who can govern themselves through liberal political institutions and free markets. Scientific technology can provide abundance and health, and even eventually improve the human species itself by genetic engineering. Above all, we can still know what the good is, however difficult it may be to achieve it. Modernist philosophy teaches that when we lost God, we lost only a projection of the best that was in ourselves; what was real in that projection therefore remains, and only the illusion is gone.
Arthur Leff had a deeper understanding of what the death of God ultimately means for man. He saw modern intellectual history as a long, losing war against the nihilism implicit in modernism's rejection of the unevaluated evaluator who is the only conceivable source for ultimate premises. Leff rejected the nihilism implicit in modernism, but he also rejected the supernaturalism that he had identified as the only escape from nihilism. Here is how he concluded his 1979 lecture:
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