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?


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John Henry

Don't call me Nueman.


  1. CS Lewis deals with this issue indirectly in his essay “The Humanitarian Theory of Punishment”. Ultimately in defending the retributive theory he acknowledges that though punishments may occur that are cruel, society as a whole, if they grow repelled by them, they’ll act to change that. He gives historical examples of juries finding criminals innocent because they knew the punishment was going to be to severe. His big criticism against humanitarian/utilitarian views are exactly that they remove the humanity of the person by removing dessert, and thus the possibility of an innocent being convicted for the sake of the utility of the punishment to society. They are good questions you raise, as one would tend to think of Scalia as a fan of retributive views of justice in general, but the view espoused above clearly seems to go against that.

  2. This may not be germane, but it occurs to me that when H VIII made a practical end to Catholicism in England (and thus, Great Britain and the Empire), it left his Chancellor (popularly the “conscience” of the King) who wielded the power of the Chancery Court to mitigate injustice produced by the “law”, without guidance formed by the action of the Holy Spirit upon his conscience. So came 400 years of immanentist materialism ruling the waves. A positivist outlook comes with being an Anglophone. Scalia, despite being a Catholic of Italian descent, is the latter and hence has the former. It is a matter of grace to detach oneself from cultural prejudices that forestall reception of the transcendent truths of the Church. Many Protestants are pro-life. I think the Church needs a category like “righteous gentile” or maybe an extended catechumenate.

  3. Here is Scalia’s dissent:


    Scalia I think was making two points. First, the Davis case had been going on for almost two decades through the state system. Davis had ample opportunity to establish his innocence in the state court system. Federal review had reached the same conclusion by the Eleventh Circuit.
    Here is the Eleventh Circuit’s decision denying Davis the opportunity for a second habeas petition.


    An appeal from this decision was what was before the Supreme Court.

    Davis was thus asking for yet another bite at the apple by an unprecedented habeas corpus proceeding by the District Court. Over Scalia’s dissent he got it. The District Court in a 174 page opinion reached the same conclusion that all the other courts had reached: Davis was guilty.


    I can think of no judicial system, based on either natural law or positive law, that can afford convicted criminals endless appeals until they get the result they want. In our system we also should be wary of endless federal interference in what are, after all, state criminal cases. To a very large extent federal review has pre-empted state autonomy in regard to criminal justice and that does raise serious constitutional issues mentioned by Scalia.

  4. As I understand it the claim of actual innocence is comes from Mr. Davis’s attorneys, fulfilling their duty to vigorously defend Mr. Davis. Certainly his attorneys are to be commended for their diligence. .. But they have never been able to establish it in a court of law. As I understand it they got him more of a tact review than is customary but the judge did the review was extremely unimpressed with their representation of old and new facts, the evidence still supported guilt.

    I do think B XVI would support suspending an excution as an act of mercy, but I do not think he would support making a decision of fact that is contarary by the established facts. While one may decide to stop an execution on pragmatic grounds, is that not the sort of utilitarianism the Pope is talking about?

    Hank’s Eclectic Meanderings

  5. I am a real amateur at this kind of question, so please let me know how far away I am from your question about the tension or lack of it in the two statements and the potential for a more just society

    I think B16 is discussing use of only functional method of finding answers leads to only functional answers… Scalia talking about not having that bridge to ethics for subjective application…that it has remained remained unresolved because they don’t have the tools within structure of precedents etc
    Jesus’ (and B16’s) approach to the law has those bridges, We have had 2000 years of Christian influence on the law but still still struggling with “yeah buts” , caveats and special cases….
    I am remembering that what happens to one man happens to all for whom the bell eventually tolls. We can’t be a just society if we are unjust to individuals. So in the aggregate, my answer is that society loses without those bridges.

  6. Used to be, it was almost impossible to get an actually innocent man in to death row…it happened, of course, but very rarely. These days with the massive number of laws on the books (some assert that just in our normal, daily routines we are violating federal laws all the time) and the gigantic pressure which can be brought to bear by an out-of-control prosecutor (who will never be brought to account by another politician for fear of being “soft on crime), I’m not so sure. In Mr. Davis’ case, it does appear that he was up to a lot of no good when he was arrested…so, it isn’t like an innocent man was put to death, though there are questions about whether or not he did the deed he was condemned for.

    Scalia’s reasoning, in this, seems specious to me…but natural given the circumstances we have. Too many laws, too many lawyers…and average people are ground up in the system. Whatever method of justice we wish to have, we’ll have to go and start it from scratch at this point…our system is just too complicated and corrupted. Best would be a grand re-codification of US law in 200 pages or less.

  7. “Used to be, it was almost impossible to get an actually innocent man in to death row…it happened, of course, but very rarely.”

    Actually the reverse is true. The procedural safeguards and endless appeals that hem in death penalty cases are very much a creation of the past half century. Prior to that time death sentences were carried out without appeals at all in some states. Mississippi had a mobile electric chair that would go from county to county to carry out death sentences shortly after the sentence had been imposed from 1940-1955.


  8. John

    Think over your post some new thoughts cam to me.

    Personally I would not be disappointed if an Amendment were passed (by Congress and two thirds of the states) prohibiting the death penalty. But this has not happened. To say the constitution prohibit’s the Death penalty has a another ethical problem. The eighth helpful hint commandment –Thou shall not bar false witness. I do not see plausible means of saying otherwise.

    Since he is usually meticulous about such things, I am sure Justice Scalia’s statements represent statement of fact on the history of the courts handling of Habeas Corpus. Our system of government wisely provides different roles powers and limitations to the different branches and levels of government. This is fully in line with the Church’s teaching on subsidiary. Of course some with obvious good intentions hve tried to blur this to accomplish what is probably a worthwhile project. Doing this has often enough caused much more harm the hoped for good.

    I gather Justice Scalia was stating what he believed to be facts. His writing is a dissent so obviously others on the court had an honest disagreement.. But if in the interest of stopping an execution he stated something he did not believe to be true he would, with full knowledge and consent on a grave matter, be baring false wittiness. A serious ethical problem.

    He has to interpret the Constitution as he finds it not as he wishes it to be. If you think that is not the way it should be start a movement to amend the Constitution.

    Hank’s Eclectic Meanderings

  9. It seems like Scalia’s objection is probably best summarized in his summing up:

    Today, without explanation and without any meaningful guidance, this Court sends the District Court for the Southern District of Georgia on a fool’s errand. That court is directed to consider evidence of actual innocence which has been reviewed and rejected at least three times, and which, even if adequate to persuade the District Court,cannot (as far as anyone knows) form the basis for any relief. I truly do not see how the District Court can discern what is expected of it. If this Court thinks it possible that capital convictions obtained in full compliance with law can never be final, but are always subject to being set aside by federal courts for the reason of “actual innocence,” it should set this case on our own docket so that we can (if necessary) resolve that question. Sending it to a district court that “might” be authorized to provide relief, but then again “might” be reversed if it did so, is not a sensible way to proceed.

    If I’m reading him right here, he’s not saying that whether or not someone is actually guilty is, from a constitutional point of view, irrelevant to whether he can be legally executed, but rather that the court is sending the case to be reviewed by a court which, even if it determined that Davis were actually innocent, would not have any clear line of authority to do anything about it.

  10. If I’m reading him right here, he’s not saying that whether or not someone is actually guilty is, from a constitutional point of view, irrelevant to whether he can be legally executed, but rather that the court is sending the case to be reviewed by a court which, even if it determined that Davis were actually innocent, would not have any clear line of authority to do anything about it.

    It seems to me that he is saying both. If the district court had found new exculpatory evidence after (over Scalia’s dissent) the Supreme Court ordered an evidentiary hearing, then Davis’s conviction would likely not have been upheld. In dissenting, Scalia was both expressing a view about the authority of the district court in certain circumstances and stating that ‘actual innocence’ was not a bar to execution after a ‘full and fair trial’. It is important to keep in mind that there can be substantial differences between the plain meaning and the legal meaning of what constitutes a full and fair trial.

    As it is, the conviction was upheld and the (admittedly brief) descriptions I’ve read of the 2010 trial suggest either Davis’s lawyers were incompetent or that they simply didn’t have the goods in terms of exculpatory evidence.

    In any case, I don’t think it can be denied as a general matter that Scalia’s judicial philosophy is substantially influenced by legal positivism.

  11. I disagree that Scalia’s judicial phiosophy is influenced by legal positivism as such. I think Scalia does understand that a society should aspire to operate its legal system in accordance with natural law. The question is, who gets to decide what natural law is? Mindful that no human system for its determination is perfect, our system of government assigns lawmaking (or “lawfinding” if you prefer) power to the legislature representing the people. Judges are the custodians of the legislature’s decisions in this respect and are not accorded a warrant to substitute their judgment of natural law for that of the legislature’s. To act othewise would be ultra vires in principle and hubristic in practice. That is the nature of a federalist system with three branches of government, and it is a good system. While no doubt legislature’s are very imperfect in their lawmaking, judges would be far far worse. While Scalia no doubt appreciates the imperfections of legislatures, and no doubt holds disparate views of natural law in many cases, he understands his limited mandate and embraces the limitation with enthusiasm precisely because he believes, correctly, that allowing judges to substitute their lawmaking preferences for those of legislatures would almost certainly yield a much greater disparity between the positive law which he has been entrusted to apply and the natural law which legislatures have been entrusted to use in their enactment of positive laws.
    It is the job of legislators to enact positive laws that are consistent with and reflective of natural law; it is the job of the people to elect legislators who best understand this task; it is the job of the executive branch to execute and enforce those positive laws that have been enacted; and it is the job of judges to fairly and honestly construe and apply the laws that the legislature has enacted, even when they believe such laws are imprudent and even if they believe that they are imperfectly compatable with natural law. If such laws are so imperfect and odious that their faithful application would present a material cooperation with evil, a judge should say so and recuse; he should not however exceed his mandate simply because he can. That would be the true and perfect example of positive law — simply doing something because one has the “power” to get away with it.

  12. I’m really in over my head here, but I think that Mike has the best explanation.

    There’s no necessary conflict between Benedict and Scalia. Justice dictates that no innocent man should be executed, and prudence dictates that each court have a specific domain. Besides, as a practical matter, if there were a case in which the correct positive legal decision violated natural law, I’m sure that Scalia would say just that. That may not carry weight in something like the gay marriage debate, but if he were to write at the end of a capital punishment appeal, “by the way, the guy obviously didn’t do it”, there isn’t a governor in the country who wouldn’t intervene.

  13. Thanks for an eloquent exposition of the position I gestured at in the post, Mike. It’s possible to believe that consistently applying a modest conception of the judicial role will result in a positive contribution to the common good.

    My concern is that even the best possible systems (let alone our current system) will produce unjust results in individual cases. I have substantial doubts about Troy Davis’s innocence (although I also have a reasonable doubt about his guilt), but let’s posit that he was actually innocent and that the evidentiary hearing in Georgia had come out the other way. Under Scalia’s view, it seems to me that the goal of preserving procedural requirements of the system have been subjugated to question of justice to the defendant for the purpose of that case. In other words, there appears to be a tension between a decision that best fits within Scalia’s view of the judicial role and a just outcome. In my view, when the matter concerns life or death for a potentially innocent person, the morally superior action is to adjust your judicial philosophy (a la Bush v. Gore, a “judicial bad hair day” in Scalia’s own words) rather than to state baldly that ‘actual innocence’ is not a bar to execution and vote to deny an additional evidentiary hearing. Even if Scalia’s facial legal positivism is only a symptom of a deeper commitment to establishing a just legal system, it seems to me that there has to be a point where commitment to creating a formally just system gives way to the need to ensure that the outcomes of that system actually are just. I recognize that the classic response to this concern is that it gives judges the license to make up laws as they go along and abuse their discretion; but, as a I said above, I find those types of slippery slope arguments rather beside the point when the question is execution.

  14. It is hard to argue against the hypothesis that at some point a rule of positive law, regardless how clear, must give way to judicial discretion if necessary to avoid manifest injustice. As opposed to judicial activism as I am, even I concede the attractiveness of such a hypothesis. Assuming for a moment its sensibility, the standard is difficult to apply in practice and much heavy lifting is done by the words “manifest” and “necessity.” First, how certain must the jurist be that an injustice is at stake? In this regard the temptation will always be to substutute one’s judgment for that of others, which is precisely what is happening in the Troy Davis case. An assertion of “actual innocence,” even when combined with evidence that casts uncertainty on whether the reasonable doubt standard would be satisfied in the event of a retrial is not by any practical measure indicative of “manifest injustice.” Second, if an injustice is truly plain, is it not the job of the chief executive to exercise his responsibility to pardon? If he declines, isn’t it almost certainly because the injustice is not manfiest to him? Further, there is ample precedent for courts reversing convictions upon true proof of innocence, usually with the agreement of and often at the motion of prosecuters. In the end, while I acknowledge the hypothetical case of manifest injustice and the difficulty it presents in the abstract, the Troy Davis case does not remotely present such a situation.

  15. In the end, while I acknowledge the hypothetical case of manifest injustice and the difficulty it presents in the abstract, the Troy Davis case does not remotely present such a situation.

    Thank you for another excellent response Mike. And for that matter, thank you to all of the commenters on this thread. I wish we had embedded comments here – it would make responding to each comment individually more manageable.

    It sounds like we agree in principle that manifest injustice may require a departure from the positive rule of law. We may differ in how we would apply that principle in the Troy Davis case depending on 1) our opinions on whether the additional evidentiary hearing was in tension with positive law (there seems to be some ambiguity on that question); and 2) if there was a tension, how we would resolve it. You think the bar needs to be very high to justify a departure from positive law; I think it should be lower in situations where execution or life in prison for an individual defendant are at stake.

    My question at this point is whether Scalia agrees with the principle we have articulated. From time to time he has been known to state his views in a colorful and forceful style that can give rise to misunderstanding and caricature. But when he says that ‘actual innocence’ is not necessarily a bar to execution, he is articulating a general principle that is not dependent upon his view of the innocence or guilt of Troy Davis. Is that general principle consistent with a belief that concerns about justice can override formal procedural considerations in cases involving execution? It seems to me that he is taking a more hard-line positivist approach than you subscribed to above.

  16. I think that we’ve so lost the concept of binding law that Scalia feels the need to spell it out as clearly as possible. As someone said on the other thread, he does his best writing when dissenting. By its very nature, a dissent can’t accomplish anything other than provoke thought. So he lays out his judicial philosophy in a provocative way.

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