Positivism, Ethics, & Law
“A positivist conception of nature as purely functional, in the way that the natural sciences explain it, is incapable of producing any bridge to ethics and law, but once again yields only functional answers.”
- Pope Benedict XVI
“This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.”
- Associate Justice Antonin Scalia, writing on the Troy Davis case
I am curious about reader’s thoughts on the connection (if any) between the type of legal positivism endorsed by Justice Scalia and the gulf between ethics and law described by Pope Benedict in his recent address to the German Bundestag. One possible view is that vigorously upholding the rule of law (even when it appears that the legally correct result may result in injustice) can be part of a larger moral project aimed at establishing a just society. When laws and legal precedent are infinitely malleable at the discretion (or, more pejoratively, whims) of individual judges, the law can quickly become an arbitrary and capricious exercise.
On the other hand, there is something surreal about making slippery slope arguments when the issue is whether or not a (very probably) innocent person should be executed (typically executing the innocent is at the bottom rather than the top of the slippery slope). At any rate, I would have struggled to explain to Troy Davis that his execution was a regrettable but necessary consequence of my larger theoretical legal project and the creation of a just society.
Now that I’ve phrased the question in a one-sided fashion, I’ll leave it open to the readers. Is there a tension between the positivism espoused by Justice Scalia and Pope Benedict’s insistence that law and ethics must always be linked? Does the belief that upholding the rule of law produces, in the aggregate, a more just society, resolve the tension in individual cases between legally correct but substantially unjust outcomes?