Law and Metaphysics: Part 2, Chasing the Horizon

In my discussion with my colleagues, two lawyers and a bible scholar, about metaphysics and law we eventually turned to the issue of natural law.

To catch everyone up, the idea of "natural law" within Christianity comes mostly from the Catholic tradition, Aquinas most especially. The notion here is that human reason can discern certain moral truths through reflection upon the natural world. For Christians, "natural law" is an attempt to perceive God's divine plan within the design of the created order. Many who espouse natural law turn to a passage in Romans 1:

The wrath of God is being revealed from heaven against all the godlessness and wickedness of people, who suppress the truth by their wickedness, since what may be known about God is plain to them, because God has made it plain to them. For since the creation of the world God’s invisible qualities—his eternal power and divine nature—have been clearly seen, being understood from what has been made, so that people are without excuse. (Romans 1.18-20)

In this famous passage St. Paul appears to hold Gentiles morally culpable for failing to obey a moral code which should have been "plain to them" given that God's "invisible qualities...have been clearly seen, being understood from what has been made." 

Against this view, Karl Barth famously said "No!" to any sort of natural theology or law, arguing that any knowledge of God that doesn't first and primarily begin and end with God's self-revelation in Jesus Christ is illicit and out of bounds. Personally, I lean toward Barth on this. I think it is very hard to read any moral code off of a physical description of the natural world. Further, I think the noetic effects of sin are profound enough that, even if there were a moral logic to be observed in the world, our blinkered and sin-warped minds would fail to read the message plainly.  

All that to say, in my conversations with Andy, Chris and Cliff about law and metaphysics I pushed away the idea that human laws could be critiqued as "unjust" from the position of natural law.

What I argued for instead of natural law is what I'll describe as "meta-law," borrowing an idea from cognitive psychology. In cognitive psychology there is a notion called "meta-cognition," our ability to reflect upon our thoughts in a recursive fashion. The idea is simple enough. You can think about yourself thinking. You can reflect upon your reflections. You can observe yourself observing. And so on, recursively, like a collection of nested Russian dolls. This ability to observe our own thinking is called "meta-cognition," and psychologists think it's at the heart of higher mental function, this ability to "stand back" from our own thoughts in a self-reflective, self-observing manner.

I think something similar is going on with metaphysics and the law. It's not that we can read, transparently and concretely, the Moral Law written on heavenly clouds. We don't see this "higher law" so clearly or crisply. Rather, as with meta-cognition, we tend to assume that law has as a meta-framework. We can step outside of the law to adopt a meta-legal posture of evaluation. 

However, the question soon comes: Where do we find this meta-legal "perch of observation"? Here is where the metaphysics shows up. When engaged in meta-legal reflection, pondering if a law is unjust, we attempt to adopt the vantage of the transcendental notion of justice. To be clear, as noted above, justice, as a transcendental notion, is not clear or transparent to our finite minds. Justice is, rather, a horizon our minds are straining toward, provisionally and experimentally. And crucially, that we cannot reach the horizon doesn't mean the horizon doesn't exist. To engage in meta-legal reflection, therefore, is to push toward this transcendent horizon, asking what justice, as a transcendent ideal, demands in light of current legal arrangements.   

Again, to restate the point, this attempt to push toward the transcendental horizon is experimental and error-prone. We don't see very clearly. But we can assess the fruits of any given meta-legal conclusion. Is the new legal arrangement more or less rational, intelligible, and universal? Pragmatically, what are the effects of the new legal arrangement upon human flourishing? And so forth.

But if that's the case, why do we need recourse to metaphysics at all? Could we not be completely pragmatic about the law, simply adopting better laws to promote flourishing? Yes, of course, one could be wholly pragmatic about the law and ditch the metaphysics. Many legal theorists and lawyers are pragmatists. But for my part, I'd simply suggest that pragmatism isn't wholly satisfactory in light of the issues I raised in the last post. I'd argue that, when push comes to shove, most legal pragmatists are functional Platonists. If fact, most people, if you inquire about justice and the law, are Platonists. The human mind possesses a deep intuition that laws must be evaluated from a transcendental perspective. Not, as I've pointed out above, God writing morals in the sky for us to read, but, rather, the Platonic notion of a transcendental horizon that we cannot reach but are always chasing. 

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