{"id":2718,"date":"2019-11-16T21:01:25","date_gmt":"2019-11-17T02:01:25","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=2718"},"modified":"2020-09-23T20:35:59","modified_gmt":"2020-09-24T00:35:59","slug":"law-and-hope","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2019\/11\/16\/law-and-hope\/","title":{"rendered":"Law and Hope"},"content":{"rendered":"
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Jessie Allen, School of Law, University of Pittsburgh<\/a><\/p>\n<\/header>\n

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Introduction. \u00a0Section the Second. \u00a0Of the NATURE of LAWS in General.<\/em><\/strong><\/a><\/p>\n

In\u00a0this section<\/a>, Blackstone gives his famous definition of law: \u00a0\u201ca rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.\u201d \u00a0Like in the\u00a0first section<\/a>, it\u2019s not clear here whether Blackstone thinks he is describing \u201cpositive law\u201d \u2014 i.e., laws as some government\u2019s commands, right or wrong, good or bad \u2014 or \u201cnatural law\u201d \u2014 i.e., laws as timeless principles of morality. \u00a0\u00a0Basically, if the rules being prescribed are just whatever that \u201csupreme power in a state\u201d happens to think is right or wrong, then we\u2019re looking at positive law. But if the supreme power somehow knows how to command what is eternally, objectively right and wrong, or if somehow the very act of commanding makes government rules objectively right and wrong, that\u2019s natural law.<\/p>\n

The positive law v. natural law dichotomy is a conceptual staple of contemporary legal education. \u00a0Blackstone is usually lined up on the natural lawyers\u2019 side, \u00a0as a defender of the timeless justice of the English (and, by implication, the American) legal system. \u00a0The most famous legal positivist of all time, Jeremy Bentham, a contemporary of \u00a0Blackstone, reviled the Commentaries on this ground. \u00a0On the other hand, some people stress Blackstone\u2019s description of law as \u201cprescribed by some superior\u201d and see the natural law discussion is a knee-jerk genuflection to 18th century dogma. \u00a0Stanley Katz, who wrote the introduction to the edition of the Commentaries I am reading, says Blackstone\u2019s legal theory gives natural law concepts \u201cabout the same importance that Newton accorded to God in the operation of the physical universe.\u201d<\/p>\n

To me Blackstone seems genuinely ambivalent.\u00a0There\u2019s too much talk about \u201cimmutable laws of good and evil\u201d \u00a0to be discounted. \u00a0You can see why people cite him as an important influence on America\u2019s founders. All three of the Declaration of Independence\u2019s \u2018self-evident\u2019 entitlements appear here as \u201cnatural rights\u201d established by God and nature: \u00a0life, liberty and the \u201cpaternal precept \u2018that man should pursue his own happiness.’\u201d \u00a0But there are also times when he completely undercuts the the notion that law has any necessary connection to morality. \u00a0 At one point Blackstone approves the notion that \u201chuman laws are binding upon men\u2019s consciences.\u201d \u00a0But then he proceeds to argue that principle right out of existence. \u00a0He explains that laws that instantiate timeless moral rules don\u2019t actually bind our conscience \u2014 it\u2019s the timeless moral rules themselves that do that. \u00a0But, he says, we\u2019re not conscience-bound to follow laws that\u00a0don\u2019t\u00a0<\/em>instantiate timeless\u00a0moral duties, either, because, well, they\u2019re only laws, not timeless moral duties. \u00a0After which, it is less than clear how any laws bind anyone\u2019s conscience. \u00a0In fact, in an aside, Blackstone actually anticipates Oliver Wendell Holmes\u2019s ultra-positivist view of legal prohibition as a choice: \u00a0\u201ceither abstain from this, or submit to such a penalty.\u201d<\/p>\n

Reading Blackstone on the heels of the recent mind-blowing American presidential election makes me think that the\u00a0perennial tension between natural and positive law reflects or shadows another persistent ambivalence in American culture and politics: the role of religious faith in general. \u00a0The incredible course and outcome of Barack Obama\u2019s presidential campaign sure set that one up front and center. There was the story of Obama\u2019s turn from his secular, relativist mother\u2019s outlook to Christianity, and the drama of his identification with, and ultimate disavowal of, his religious mentor. \u00a0And there\u2019s the speaking style inflected with Christian oratory, and the appointment of a team of advisors whose diverse religious beliefs and backgrounds are just that \u2014 backgrounds \u2014 for their shared dedication to \u00a0professionalism and their glowing educational achievements in the secular church of the Ivy Leagues.<\/p>\n

As I was flying home the day after the election \u2014 was that really just three weeks ago? \u2014 \u00a0I was looking at one of those beautiful red and blue pictures of Obama\u2019s face emblazoned with the campaign\u2019s simple slogan: \u00a0HOPE. \u00a0 And it occurred to me that \u201chope\u201d was an oddly secular, ephemeral concept for a candidate who wanted to emphasize his belief in enduring American values and Christian faith. \u00a0Why not, after all, FAITH? \u00a0Beside that solid and enduring concept, \u201chope\u201d seems almost flimsy. \u00a0But then, doesn\u2019t hope\u2019s suggestion of a changeable, dynamic, and more risky future finally draw upon the values that Obama and many others have wanted to identify as foundationally American? \u00a0People who hope are less content, less satisfied, more restless than the faithful. \u00a0 Faith is for the serene, for folks who mostly accept things as they are \u2014 even if it is a faith that change will come, growing out of what already is.<\/p>\n

Hope is for the ones who are dissatisfied with the world as they find it. \u00a0Hope may unite people, but fundamentally it involves alienation. \u00a0To really hope for something entails a loss of security and the comfort of belonging where we find ourselves. \u00a0If you have faith that things will change, in some way you have faith in the way things are \u2014 because you believe they can change. \u00a0Hope in some way, however benign, repudiates the present world and dares to demand something altogether different, based not on belief but on desire. \u00a0And isn\u2019t that, after all, what Blackstone\u2019s mixed up natural law\/positive law argument is wrestling with \u2014 a struggle between belief and desire?<\/p>\n

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