(Still) More on Natural Law and Judging: Baur replies to Arkes (and Arkes responds)

Prof. Michael Baur sends in this response (below) to a recent blog-contribution by Prof. Hadley Arkes:

In Book IV of his Republic (at 435a), Plato suggests that it is only through the jostling or rubbing together of our varying ideas and conceptions (much like the rubbing together of two dry sticks) that we can ignite the spark of insight and arrive at a true understanding of things.  I am deeply grateful for Professor Arkes’s thoughtful dialogical jostling, through which some very significant questions have emerged.  Let me now try to repay at least part of the debt that I owe. . .  

[UPDATE:  I've added Prof. Arkes's response at the end of Baur's post, after the jump] 

Professor Arkes continues to worry that I may have made the mistake of endorsing what amounts to a self-refuting position.  The crux of Professor Arkes’s worry is discernible in his pair of observations that (on the one hand) I make knowledge-claims that purport to have universal validity, and yet (on the other hand) I say (or at least imply) that the norms or principles on the basis of which we make our (theoretical or practical) judgments can never be given (present, operative, actualized) except in and through our actual, particular, concrete practices (or positings).  Professor Arkes observes: 

Prof. Baur states with the sweeping force of a principle that “it is never the case”— never the case that we can know things “apart from the actual and concrete practices, interactions … that inform us.”  But he doesn’t tell us just what set of “actual and concrete practices, interactions” give rise to that proposition he is proclaiming now with the force of a principle.  My own surmise is that this is a proposition that he expects will hold true in all settings, even when the concrete practices and circumstances in any place are strikingly from the ones he has known in his own life.  It strikes me that he is offering a principle then that will be utterly invariant by shifts in locales and circumstances.  Now, if I’ve misread him, I’d like to know how.

Professor Arkes is certainly right to suggest that no set of individual, concrete facts (including concrete practices, interactions, or positings) – no matter how many members that set of facts may contain – can by itself ever give rise to a knowledge-claim that has universal validity.  It is for this reason that David Hume held that our non-analytic knowledge-claims (claims whose truth-value does not depend simply on the principle of identity or non-contradiction) could never possess universal validity.  It is also for this reason that Immanuel Kant held that our non-analytic knowledge-claims could possess universal validity only if they had some sort of apriori grounding (incidentally, it seems to me that Professor Arkes himself endorses a Kantian-inspired aprioristic epistemology; see, for example, First Things, pp. 59-69).

Luckily for followers of Aristotle and Aquinas, there is no need to choose between Humean skepticism (on the one hand) and Kantian apriorism (on the other hand).  For a follower of Aristotle and Thomas, it is possible for us to make non-analytic knowledge-claims that have universal validity, even though the things about which we speak when we make such claims are only particular, individuated instances.  Such knowledge-claims are possible for us, not because there actually already exist universal things or forms in the world of things outside of us (as a Platonist might hold); nor because there are universally-valid propositions or knowledge-claims already built in to our cognitive apparatus (as a Kantian might hold).  Rather, on an Aristotelian-Thomistic view, it is possible for us to know that which is universal (even though the independently-existing concrete things about which we speak are only particular, individuated instances), since the human mind (more specifically: “agent intellect,” or what Aristotle calls “maker mind,” or nous poetikos) is capable of “making actual” the universal that does not exist actually (but only potentially) in the concrete thing outside of our knowing.  Thus we speak truthfully when we speak about what is universal, but we apprehend that which is universal only in and through our apprehending of some concrete, particular, individualized thing (or set of things) that instantiates the universal about which we are speaking.  As Aristotle puts it in his De Anima (III.7), our mind knows the form (the universal) only in the particular image (and by “image” here, Aristotle means any sensorily-given particular, whether this particular is given through visual, tactile, kinesthetic, etc. sensation, or even given through memory or imagination).  It is for this reason that I made the argument earlier (following Aristotle and Aquinas) that the universal principles or norms that we might know (as a matter of “natural law”) are not actually known by us except insofar as they are known in and through actual, concrete, particularized practices (or positings).  It is also for this reason that Professor Arkes misunderstands at least part of what I said, when he attributes to me the view that “People making the positive law will be guided by common sense and principles of natural justice, and after a while they form a weave.”  I am resistant to this way of stating the matter, since I do not believe that it makes sense to think about “positive law” as something existing on its own, or “natural law” as something existing on its own, with the two coming together “after a while” and “forming a weave.”  On my (Aristotelian-Thomistic) view, positive law is not some thing that exists apart from natural law, and natural law is not some thing that exists apart from positive law.  Rather, positive law is a specification of natural law, just as a particular mammalian species is a specification of “mammal.”  No particular mammalian species can first exist without “mammal” existing, and no generic “mammal” can first exist without being specified in some particular mammalian species; the two are not separate things that come together “after a while” to “form a weave.”   In a similar vein, I would say that the natural law and our concrete positings do not come together to “form a weave” “after a while,” since the natural law has actual existence only as specified (even if imperfectly) in our actual positings; and our actual positings (assuming that there is at least some rationality to them at all) have actual existence only insofar as they specify (even if imperfectly) the natural law.

My main Aristotelian-Thomistic point can perhaps be stated as follows: Professor Arkes is entirely right to insist that we always find ourselves depending on the natural law, since we have never left it.  But I want to insist, in turn, that we always find ourselves depending on our actual, concrete practices (or positings), since we have never left them.  Even our highly abstracted understandings and discussions about the natural law are actualized only in and through our concrete (and always particularized) acts of thinking, talking, debating, etc.  There is nothing relativistic in this position, if one understands and accepts the Aristotelian-Thomistic point that we can truly apprehend the universal in the particular (to escape relativism, then, we do not need to accept the Platonic/Kantian view that we can have access to the universal only apart from, or prior to, the particular). 

This account begins to address Professor Arkes’s worry that I may have unwittingly endorsed what amounts to a self-refuting position.  I agree that there would be the problem of performative self-refutation if I accepted the two-part Humean assumption (a) that there exist only particular instances outside of us, and (b) that genuinely universal knowledge can be brought about in us only if it is caused in some fashion by these particular instances.  Since no particular instance (or even set of particular instances) can, by itself, be the cause of universal knowledge in us, it follows that anyone who accepts Hume’s two-part assumption, while at the same time making a universal knowledge-claim, must fall into self-contradiction.  But I reject the second part (b) of the two-part Humean assumption, just as Professor Arkes himself does.  But I also part company with Professor Arkes (I believe) insofar as I hold (along with Aristotle and Aquinas) that the justification of universally-valid knowledge-claims does not depend on affirming the existence of apriori knowledge in us.  Now it remains open to Professor Arkes to further challenge what I am saying here, by asking: “on the basis of what particular instance (or set of instances) do you, Professor Baur, know that no particular instance (or set of particular instances) can, by itself, be the cause of universal knowledge in us?”  My response would be: I know this not on the basis of any instance or set of instances alone, but rather on the basis of my act of understanding something intelligible (and thus universal) about the particular instances that I encounter within experience.  For Aristotle and Aquinas, there is nothing mysterious about my ability to apprehend what is intelligible (or thus universal) in the midst of my experiencing all the concrete, particular, individualized things in the world.  For Aristotle and Aquinas, I apprehend what is intelligible (and thus universal) just as soon as I apprehend the meaning of some intelligible term (such as “dog” or “man”) and thereby realize that the intelligible term may be predicated correctly of many different instances (such as Fido, Rover, and Spot; or Tom, Dick, and Harry).  The fact that an intelligible term can be predicated correctly of many different instances is precisely what is meant when we say that the intelligible content thus grasped is a “universal” (to be “universal,” in the Aristotelian-Thomistic sense here, is simply to be common or shared by many).  As Aristotle and Hegel helpfully pointed out, we find ourselves trading in the currency of universals almost as soon as we open our mouths to speak (thus, as Aristotle observed, one can effectively refute the skeptic just by getting him to talk meaningfully about anything). 

One might be tempted to think that because Aquinas believes that we can know certain propositions self-evidently (per se nota), it follows that we can have apriori knowledge of certain propositions.  But this would be a mistake.  Aquinas repeatedly denies that we have apriori knowledge (as the Scholastic motto has it, “There is nothing in the intellect that was not first in the senses” – “Nihil est in intellectu quod non prius in sensu.”).  The key here, I think, is to see that for Aquinas, to say that a proposition is known by us self-evidently (per se notum) is to say that it is known by us “through itself” (i.e., without having to have been derived from, or demonstrated on the basis of, some other, different knowledge-claim).  Or to quote Aquinas himself: “Self-evident propositions are those that are known as soon as their terms are known” (propositiones per se notae sunt quae statim notis terminis cognoscuntur; In IV Metap., lec. 5, §595).  For Thomas, one can know self-evidently the whole is greater than the part, just as soon as one understands what is meant by “the whole” and by “the part.”  Of course, one might first need to be taught what is meant by “the whole” and by “the part”; but as soon as one understands what these terms mean, one immediately knows – just by virtue of grasping the meanings of the terms – that the whole is greater than the part.  In a similar vein, one can know self-evidently that any given line can be cut into two halves (lineam datam contingit secari in duo media; In I De Cael. et.Mund, lec. 9, §97) just as soon as one understands what is meant by “line” and “cut,” etc..  But while this fact about lines can be known by us self-evidently, it does not follow that anything belonging to our knowledge of lines (or even our knowledge of extended things in general) is available to us apriori. 

Professor Arkes rightly observes that my anti-Platonic, anti-Kantian reading of Aristotle and Aquinas (and especially my observation that the natural law is never given, operative, or actualized, except in and through our actual practices) may cause head-scratching among a few contemporary thinkers who regard themselves as Aristotelians and/or Thomists.  This would be a good thing, in my opinion, if it leads these contemporary thinkers to have a more careful look at what Aristotle and Thomas actually said.  As surprising as it may seem to some post-Cartesian, post-Humean, post-Kantian readers, the fact remains that Aristotle and Aquinas denied that universal forms or universal intelligibilities can have independent, actual existence in reality; instead, such universals have actual existence only insofar as they are in an intellect (for Aristotle and Aquinas, it is only individual, concrete, particular realities – and not universals – that have actual existence apart from intellect).  But do not take my word for it; look at some of Aquinas’s many statements on the matter:

1) “The unity or community of human nature, however, is not a reality, but is only in the consideration of the mind.”  Summa Theologica, I, Q. 39, a. 4, ad 3

2) “And so there arises the opinion that there is one essence of genus which exists in all species—really and not just in understanding.  But this is a very shaky foundation, for it does not follow, just because this one is a man and that one a man, that there must be numerically one humanity of both, any more than there is numerically the same whiteness in two white things.”  Scriptum super Sentenciis, lib. 2 d. 17 q. 1 a. 1 corpus

3) “…for the noun ‘man’ signifies human nature in abstraction from the singulars.  Therefore, it cannot immediately signify a singular human, whence the Platonics posited that it should signify the separate Idea of Man.  However, this does not subsist abstractly in reality according to Aristotle’s position, but is only in the intellect…”  Expositio libri Peryermeneias, lib. 1, l. 2, n. 5.

4) “It is clear, then, that universality can be predicated of a common nature only insofar as it exists in the mind: for a unity to be predicable of many things, it must first be conceived apart from the principles by which it is divided into many things.  Universals as such exist only in the soul; but the natures themselves, which are conceivable universally, exist in things.”  Sentencia De anima, lib. 2 l. 12 n. 8.

5) “This is the position [of the Platonists] that Aristotle intends to refute in this chapter by showing that a ‘universal animal’ or ‘universal man’ is not a substance in the nature of things.  But the form of animals or men has this universality insofar it is in the intellect, which regards a form as common to many individuals, insofar as it abstracts this form from its individuating conditions.”  Sententia Metaphysicae, lib. 7 l. 13 n. 6.

For Aristotle as well as for Aquinas, the universal “man” or “humanity” does not actually exist except in the intellect; but it does not follow from this that we are speaking falsely (or making empty statements) when we speak about “human nature” or “human beings” or “human dignity.”  Professor Arkes’s apparent worry on this topic will disappear, I maintain, if we stop making the mistake of thinking (as Plato did) that just because what we understand or conceive is understood or conceived as a universal intelligibility or a universal aspect of things, it must follow that there exists in reality something that is a universal in its own right (apart from acts of the understanding).  So, notwithstanding Joseph de Maistre’s denial that he could know “man,” a person surely can know “man” insofar as the person is able to think correctly about what pertains to any man simply on account of his being a man, and not on account of his being a Frenchman, or a German, etc.; and yet that person could still maintain that there is no existent entity, “man as such” (for all actually existent “men” are always concrete, particular beings, and thus Frenchmen, or Germans, etc.).

Let me now conclude with a response to Professor Arkes’s excellent question about “hard cases” involving racial segregation and interracial marriage.  It is well known that the law-makers who passed segregationist and anti-miscegenation laws, as well as generations of judges in both the North and the South, understood such laws to be perfectly compatible with the Fourteenth Amendment’s provision about “equal protection.”  Professor Arkes asks: “how could the judges of our own day justify the overturning of these understandings, long settled in the positive law, unless they make an appeal to the deep principles that could establish the wrong of racial discrimination?”  First, it must be observed that a judge today could justifiably overturn such laws (notice that I do not adopt Professor Arkes’s language of “overturning understandings”), only if the judge’s decision-making were grounded in some provision contained in the positive law itself (e.g., the provision about “equal protection”).  The judge would not be acting legitimately (he/she would be acting outside the scope of his/her authority, and thus would be acting illegally) if he/she sought to overturn the laws simply because he/she personally took the laws to be offensive or misguided.  But now the hard part: how could a judge today justify overturning these laws, if the understanding of “equal protection” which would animate his/her decision is different from the understanding of “equal protection” that animated not only the law’s original authors, but also the decision-making of many judges (northern and southern) who already weighed in on the topic?  The answer begins to emerge if we recognize that the meaning of an intelligible expression (e.g., the meaning of “equality”) is not fully determined by, or restricted to, what the author of the expression (or what his/her contemporaries) thought it meant.  Or stated differently: it is quite possible (in fact, I think that this happens all the time!) for a later thinker to understand earlier thinkers (including those earlier thinkers’ acts and expressions) better than those earlier thinkers understood themselves (even Immanuel Kant was capable of recognizing this possibility; see CPR, A314, B370).  The initial oddity of this view, I maintain, will begin to dissipate if one begins to abandon the Cartesian assumption that an intelligible thought, idea, or meaning must be something that is private, isolated, and restricted to the hidden region of the individual thinker’s own mind.  In place of this Cartesian assumption, I recommend the Aristotelian-Thomistic approach, according to which intelligible thoughts, ideas, and meanings are inescapably public and shared, precisely because they are universal (i.e., they are not restricted to any isolated mind).  If intelligible thoughts, ideas, and meanings do not belong simply to the restricted, private region of the individual’s own mind, but are inescapably shared and public, then there is nothing mysterious in the notion that later thinkers are capable of understanding the very same ideas of earlier thinkers, and understanding these ideas better than those earlier thinkers did.  That is, there is nothing mysterious in the notion that later thinkers are capable of understanding the very same ideas of earlier thinkers more truly precisely because they understand those ideas differently and in a more developed way.  That great nineteenth century Aristotelian thinker, Cardinal Newman, observed this same basic truth when he observed that a “living idea” becomes richer, more variegated, more pregnant with implications precisely insofar as the idea is better understood by later generations who (unlike earlier ones) can better understand the true depth of the idea (see chapter 2, Development of Christian Doctrine).  Subsequent, enriched understandings of a “living idea” do not make the idea an altogether different idea; rather, they bring to explicit, enriched expression that which was already implicit in the idea, even though unexpressed (and perhaps inexpressible) by earlier generations.  If we can appreciate this Aristotle-Thomistic-Newmanian account of meaning and interpretation, then we can also begin to see how later-generation judges may understand the meanings of existing laws better than their predecessors did (and perhaps even better than the original legislators did), all the while respecting the positive law as such, and not having to look “outside of it” or “beyond it” to a quasi-Platonic (transcendent) or quasi-Kantian (apriori) model of the “natural law.”

Whew!  Here is Arkes:

This conversation, with Professor Baur, like all good things, must come to an end, or at least a respite.  Let’s say that it’s the mark of one phase of a conversation that  I hope we’ll have over a longer stretch.  Prof. Baur naturally suspects that I didn’t understand him on certain key points.  I think I did understand him, though I’m virtually certain that I don’t understood, in all of its parts, what he has set forth so fully here.   But I’ll take that as a prompt just to read again, and read more slowly, for Prof Baur has more than earned that kind of attention to what he has written.  And in fact, how could one not love a person who has written with such evident care and engaged the question as seriously as he has?

          If I follow Prof. Baur, it would appear that the differences between us have largely dissolved.  I fear that he has a caricature of Kant and what he calls the a priori view.  As Kant himself explained, that doesn’t mean that we know things before experience.  It means rather that everything we know cannot arise from experience—as for example in our conviction that I have read Prof. Baur’s explanation in the sequence in which it unfolded.  I can experience the room I’m in with no fixed sequence.  But when we encounter an event, a happening,   we presuppose, quite rightly, that we are seeing it as it happens, that it couldn’t happen any other way.  None of this can be attributed merely to “experience,” because we can experience things in both ways, with or without a fixed sequence.  When we trace things back, I think Prof. Baur will find that there is not the major difference he supposes between Kant, on things we can know as true of necessity (and hence, true a priori),  and what Thomas means when he speaks of things that can be grasped as true per se nota.   But that for another time.  I think we might all benefit from viewing, on Itunes, Daniel Robinson’s remarkable series of lectures on Kant at Oxford, luminous, clear, and delivering us all from the conventional wisdom that has sprung up about Kant.

          Prof. Baur argued, and I agreed, that the natural law penetrates the positive law.  But the question I posed dealt with the positive law on racial segregation.  The positive law, as elaborated by the judges, was utterly clear in finding no tension between the Fourteenth Amendment and racial segregation in public schools or public conveyances, and certainly no bar  to laws forbidding marriage across racial lines.  My question to Prof. Baur was just how a judge was to make his way to our current understanding of the law on racial segregation unless he could retrieve the deeper principle underlying the law, even when that principle runs strongly counter to the positive law as it has been firmly congealed.  I argued that a judge who does that, a judge who seeks to articulate that deeper principle, is in fact doing the work of the natural law, even if we don’t choose to call what he is doing by that name.   I don’t see that Prof. Baur is finally at odds with me on that question:  He argues, as I do, that is may be possible to extract a meaning of the law that evaded the understanding of an earlier generation, and even (I gather) evaded the understanding of the men who drafted and shaped the Fourteenth Amendment.   But what are doing then if not stating a principle of natural justice that stands in contradiction to the positive law as it was shaped by the framers of the Fourteenth Amendment and the judges who followed them? 

          The only hitch, I guess, is that Prof.  Baur thinks that a judge could not have been authorized and justified in making that move unless there was, in the Constitution, an “equal protection” Clause.  But even some of the lesser lights among judges have recognized that the logic of “equal protection” is part of the very logic of constitutional government even if it weren’t in the text of the Constitution. Let’s see:  like cases  should be treated under like rules;  all who come under the law (say, owners of public accommodations) should be treated equally;  and yes, of course, one should not impose laws on others that one would not see enforced against oneself.   And lest we forget:  the Equal Protection Clause applies only to the States.  It  is  contained in the Fourteenth Amendment and that Amendment applies only to the action of States. That is what made it a bit of a problem for the Court to move, only year later, from Brown v  Board to Bolling v. Sharpe (racial segregation in the District of Columbia).   The Court mumbled something to the effect that of course the Equal Protection Clause “runs into” the Due Process clause of the 5^th Amendment.  Really?  The points merge only when we take the issue to those deeper principles of law, which can tell us why we are not justified in drawing any interesting moral inferences about people,  their character, their deserts, solely on the basis of race, as though race “determined” their moral character. Just what clause in the Constitution is chosen to carry that argument is a matter of art, and of our powers to explain the principle.  I can’t imagine that Prof. Baur would give a license to the judges to strike down racial segregation only in the States, but not the segregation mandated by the national government. I can’t imagine that he would without that comparable power from the judges solely because they wouldn’t have that magic phrase of “equal protection” available to them.

          I’m left with no doubt that Prof. Baur moves along the same paths I do, and that, thanks to his exposition, the differences between us fade.  For some reason, he clings to this aversion to fix with the proper name what he is doing—that he is indeed tracing his judgments back to the deep principles of law even when they run counter to the positive law.   He doesn’t want to use that dreaded N-word, that he is doing natural law, even when he must detach himself quite markedly from the positive law as it stands.     But this may be our little secret, and I’m content to keep it within this circle.  All I can say is that, for what he has done here in this exchange, with the patience of a teacher, with his passion to explain, and with such tenderness and respect to his interlocutor, he really has won my heart, and I’m grateful to him for entering this conversation as he has.  I hope, too, to get know him more and more in the years still ahead.

For what it's worth, I continue to be unpersuaded by (though not, I hope, obstinate in the face of) Prof. Arkes's repeated insistence that his case for natural-law judging is obviously made because, unless he's right, a federal judge could not strike down a federal law mandating racial-discrimination.  This is not because I am "cling[ing]" to an "aversion" to "proper name[s]" but rather because, despite his many gifts and accomplishments, Prof. Arkes is not as persuasive on this point as he is on many others.