There is a delicious irony about the Supreme Court's taking up a case that
involves one of the most contentious legal issues of our time: whether
judges should interpret the law or make new law. The irony, of course, is
that the high court itself has often engaged in legislating from the bench
- most notably, for moral conservatives, in *Roe v. Wade.* The court now
has the opportunity, should it accept it, to censure the pernicious
philosophy it has so often embraced.

In *George W. Bush v. Palm Beach County Canvassing Board, et al.,* the
court has been asked to decide whether the Florida Supreme Court violated
the Constitution by overriding the state's election statute in order to
give extra time to counties engaged in manual recounts. At issue is
Article II, Section I, of the U.S. Constitution, which says that members
of the Electoral College shall be chosen by each state "in such manner as
the Legislature thereof may direct."

By effectively nullifying the state election law, the Florida judges overrode
the express will of the legislature. Conservative commentators were outraged.
"The point is not just that the judges made the wrong decision," explained
Thomas Sowell. "It was not their decision to make." The Court "has
effectively legislated from the bench," argued Cal Thomas. In the *Weekly
Standard,* William Kristol and Jeffrey Bell denounced the Court's "willful
encroachment on the roles of both the legislative and executive branches,"
and called for an end to "judicial supremacy."

Longstanding Trend of Judicial Usurpation

And yet merely repeating stock phrases, however true they are, will not
reverse the powerful and longstanding trend of judicial usurpation. The
idea that the role of judges is to make law has been incubating in
American legal philosophy for a good two centuries, and rooting it out
will require serious grappling with this intellectual history.

In his magisterial two-volume set, *The Transformation of American Law,*
Morton J. Horwitz makes clear that the idea that judges should not just
apply the law but should shape social policy was already widely accepted
at the dawn of the 19th Century.  Until then, Horwitz explains, "the
common law was conceived of as a body of essentially fixed doctrine to be
applied in order to achieve a fair result between private litigants in
individual cases," not to change social policy. Law was thought to be
based on nature or reason or divine law, and often all three: In 1728,
Daniel Dulany wrote that "the Common Law, takes in the Law of Nature, the
Law of Reason and the revealed Law of God; which are equally binding, at
All Times, in All Places, and to All Persons." The concept of obligation
was thought to derive from the inherent rightness or justice of the law,
and the role of judges was not to make law but only to discover and apply
pre-existing rules.

By 1800, however, these classic concepts of law had been largely abandoned.
To accord with a political system of popular sovereignty, law was redefined
as based on will of the people. Popular consent was extended from the
political sphere to the legal sphere. Yet the idea that law is an
instrument of will was a two-edged sword, for it also meant that law could
be shaped by the will of the judge intent on molding legal doctrine
according to public policy goals.

"Judges began to conceive of themselves as legislators," Horwitz writes.
They "came to think of the common law as equally responsible with
legislation for governing society and promoting socially desirable
conduct." They began to "formulate legal doctrine with the self-conscious
goal of bringing about social change."

Accepting the task of directing social and economic development did not
always mean judges pressed for radical innovation; sometimes it meant they
practiced a conservative adherence to the past and precedent. Yet the
important principle is that even conservative decisions were not based on
reverence for any inherent justice in customary law but on purely
pragmatic considerations: It was pragmatically prudent to maintain a
certain level of predictability in the law so that people can plan more
rationally. As Horwitz puts it, adherence to precedent was necessary "only
to the extent that it allowed private parties to calculate in advance on
the consequences of particular courses of action."

This approach to the law received its most influential philosophical
justification in the writings of Oliver Wendell Holmes, Jr., an important
founder of a school of thought known as legal pragmatism. Legal pragmatism
traces its origins to the early decades of the 20th Century when America
was wrestling with the implications of Darwin's theory of evolution.
Holmes was one of a group of scholars whose goal was to work out the
implications of Darwinism for an overarching philosophy of life, which
came to be called pragmatism.

Pragmatism is the only "home grown" American philosophy, and it flowered
during the golden age in American philosophy, involving such luminaries as
John Dewey, Charles Peirce and William James. All were very much involved
with the debates over Darwin, and it is no exaggeration to say pragmatism
can be defined as an attempt to work out what Darwinism means for the mind
- and hence for the human sciences. In a 1909 essay titled "The Influence
of Darwinism on Philosophy," Dewey said Darwin "introduced a new mode of
thinking that in the end was bound to transform the logic of knowledge,
and hence the treatment of morals, politics, and religion."

Holmes drew out the implications of philosophical pragmatism for the law.
Like Dewey, he was greatly influenced by Darwin's theory of evolution; in
a letter, Holmes once said he could not remember as a student actually
reading Darwin's *Origin of Species,* but its ideas were very much "in the
air." He was later to draw parallels between biological evolution and the
evolution of legal concepts, applying Darwinian concepts to the law such
as a "struggle for life among competing ideas" and "the ultimate victory
and survival of the strongest." In a classic treatment of the subject
titled *Evolution and the Founders of Pragmatism,* Philip Wiener writes:
"In Darwinian fashion, [the pragmatists] interpreted the law as a human
instrument for adjusting conflicting desires in the struggle for existence
among men."

It is against this backdrop that one must understand Holmes's famous aphorism
that "the life of the law has not been logic: it has been experience."
What did Holmes have against logic? The answer is that "logic" was
shorthand for legal formalism, with its ideal of reaching judgments by
deduction from a system of precise, abstract general principles, on the
model of Euclidean geometry. Such legal formalism had become an
increasingly mechanical process of finding precedents and applying them,
whether or not the result made any sense under the rapidly changing
conditions of modern industrialization. Against formalism, Holmes argued
that laws emerge by an evolutionary process through a nation's history:
"The law embodies the story of a nation's development through many
centuries, and it cannot be dealt with as if it contained only the axioms
and corollaries of a book of mathematics."

Yet, if the *origin* of law is evolving historical custom, for Holmes the
*justification* of law must be in terms of its practical consequences.
Indeed, the whole purpose of historical research was to liberate us from
the notion that there is any finality or universality to the law - to
stress its contingent and variable character - in order open the way for
social transformation. In Holmes's words, "History sets us free and
enables us to make up our minds dispassionately" whether the old legal
rules still serve any purpose.

Law Only a Product of Cultural Evolution

And the way to determine whether they serve any purpose is through
"considerations of social advantage," determined by the empirical studies
conducted by economists and social scientists. For Holmes the law should
be established "upon accurately measured social desires instead of
tradition." In his highly influential 1897 essay "The Path of the Law,"
Holmes even reduced law to a summary of the social and economic policies
shown scientifically to work best. As he put it, "The man of the future is
the man of statistics and the master of economics." Law was redefined as a
tool for identifying and manipulating factors aimed at creating social
harmony and progress.

In short, law was little more than a tool for social engineering, using
the coercive power of the state to enforce the policies deemed by
bureaucrats to be most desirable. To quote Holmes again, the justification
for a law is not that it is consistent with universal principles but "that
it helps bring out a social end which we desire."

Holmes does concede (in vague terms) that law is related "in a certain
sense" to morality, yet it is clear that the morality he is most concerned
about does not reflect a transcendent moral standard but only the feelings
and needs of a particular culture: "The first requirement of a sound body
of law is, that it should correspond with the actual feelings and demands
of the community, whether right or wrong." Holmes views morality from the
perspective of an anthropologist who is interested in how a culture's
beliefs develop and are expressed, not in whether those beliefs are
objectively true or valid: "The law is the witness and external deposit of
our moral life. Its history is the history of the moral development of the
race." The language clearly implies the perspective of cultural
relativism.

In some passages, Holmes seems to want to sever law from even this relativist
morality. In the "Path of the Law," he says that in order to understand
law in itself, we must consider it from the viewpoint of a "bad man."
Whereas most of us connect law with moral ideals such as justice and
fairness, a "bad man" who cares nothing for morality is interested only in
what will happen to him if he violates the law: "If you want to know the
law and nothing else, you must look at it as a bad man, who cares only for
the material consequences which such knowledge enables him to predict. . .
. A man who cares nothing for an ethical rule which is believed and
practiced by his neighbors is likely nevertheless to care a good deal to
avoid being made to pay money, and will want to keep out of jail if he
can."

In short, for Holmes law is not based on any eternal or divine moral law;
it is strictly a product of cultural evolution, and it functions as an
instrument of social policy.

Both legal and philosophical pragmatism declined somewhat around the middle
of the century, only to come charging back in the 1960s in the neopragmatism
of Richard Rorty, the well-known postmodernist and most influential
philosopher in America today. The revival of pragmatism was followed in
the 1970s by critical legal studies, and in the 1980s by a school called
legal neopragmatism.

The neopragmatist Richard Posner is the most frequently cited legal scholar
alive today, and is considered the founder of the "law and economics"
movement. His application of economic reasoning to moral issues has often
yielded startling results. In a notorious 1978 article in the *Journal of
Legal Studies,* he suggested making it legal for parents to buy and sell
unwanted babies on the free market in lieu of government-regulated
adoption.

In the third edition of *Economic Analysis of Law,* he added new material
on rape that substitutes economic for moral reasoning: "Allowing rape
would be the equivalent of communalizing property rights in women. . . .
Allowing rape would lead to heavy expenditures on protecting women, as
well as expenditures on overcoming those protections. The expenditures
would be largely offsetting, and to that extent socially wasted."

In *Sex and Reason,* he described prostitution as a "substitute for
marriage": The difference between them is "not fundamental. In . . .
marriage, the participants can compensate each other for services
performed by performing reciprocal services, so they need not bother with
pricing each service." Prostitution is simply a case of those same
services being traded for ready money.

Posner Separates Morality From Law

Perhaps Posner's most controversial argument, however, is that moral
reasoning is irrelevant to law. In October 1997, he delivered the
prestigious Oliver Wendell Holmes lectures at Harvard University
(reprinted in the *Harvard Law Review*), using the occasion to launch a
blistering attack on moral theory and moral theorists. He called moral
philosophers "textmongers" whose own "moral values are those of their
professional set."

The notion that law is "suffused with moral theory" is mistaken, Posner
said, an error caused in part by "the law's frequent borrowing of moral
terminology, of such terms as 'fair' and 'unjust' and 'inequitable.' " He
harkened back to Holmes, who "warned long ago of the pitfalls of
misunderstanding law by taking its moral vocabulary too seriously."

Moral reasoning does not persuade anyone anyway, Posner charged. Nor is it
how we acquire morality in the first place. We acquire our moral views
"mostly in childhood, when moral instruction that appeals to reason takes
a back seat to parental example, experience, and religion." Philosophical
arguments are "only window dressing." (Posner offers an example from
personal experience: "I dislike abortion more since my grandchildren were
born," he confides; but "this change in 'moral' feeling has nothing to do
with argument.")

"The only warrant for believing that there is a moral law that is 'out
there' in the very strong sense claimed by a Plato or an Aquinas," Posner
says, "is a certain type of religious faith, the faith in a Supreme
Lawgiver and in a spiritual reality as real as a material reality." But
this position Posner excludes by definition, without any argument, from
academic discourse: "religious arguments are not a part of academic
moralism." In a recent essay, he writes that a pragmatist judge facing a
new situation for which there is no clear legal precedent "does not look
to God or other transcendental sources of moral principle." For Posner,
the only sound basis for a legal rule is social advantage; instead of
attending to moral theory, he says, judges, lawyers, and law professors
must attend to economics, sociology, evolutionary biology (sociobiology),
and psychology, balancing benefits against costs.

It is no surprise to learn that Posner terms his position "pragmatic moral
skepticism," nor that his hero is Holmes, whom he has called "the American
Nietzsche." Thus the influence of Holmes's legal pragmatism lives on, with
its instrumentalist view of the law as a tool of social policy.

The chief theoretical failing of pragmatism is that its only measure for
evaluating law is whether it "works" - whether it achieves desired social
goals: It offers no transcendent principles by which to say whether those
goals themselves are good or bad. Indeed, Posner defines the heart of
legal pragmatism as "a rejection of a concept of law as grounded in
permanent principles . . . and a determination to use law as an instrument
for social ends." Yet how do we know whether particular social ends are
morally right or wrong?

There is an old joke among philosophers that the problem with pragmatism
is that it doesn't work. As law professor Phillip Johnson puts it, "A
philosophy that deals only with means and has nothing to say about
ultimate ends is inadequate. Who wants to rely upon people who think that
the only truth is that we should employ the most effective means to get
whatever it is we happen to want?" Legal pragmatism frees judges to rule
according their own private sense of what will achieve the most desirable
social ends.

Worse, since pragmatism treats law as an instrument for getting whatever
we want, it offers no protection against the powerful using it to achieve
whatever *they* want. In a personal letter, Holmes once wrote these
chilling words: "[W]hen it comes to the development of a corpus juris the
ultimate question is what do the dominant forces of the community want and
do they want it hard enough to disregard whatever inhibitions may stand in
the way."

It's not surprising, perhaps, that Holmes once defined truth as "the majority
vote of the nation that can lick all the others." A pragmatic rule based
on "social advantage" or "a social end which we desire" (Holmes's favored
phrases) ends up in practice as the rule that the most powerful come out
on top.

The development of American legal philosophy underscores the crucial role
played by the Darwinian view of origins in every area of thought.
Darwinism is not only a biological theory; it is also the basis for a
comprehensive worldview - implying a new philosophy of mind, knowledge,
morality and law. In modern society, science is given authority to tell us
"what really is," with the result that philosophy and the humanities adapt
to its vision of reality. Thus a direct line connects Darwinism to both
the postmodernism of Richard Rorty and the pragmatic moral skepticism of
Richard Posner. In these philosophies, the only objective and absolute
truth is that there are no objective and absolute truths. In essence, the
death of God substitutes for the existence of God, in the sense that it
functions as the one fundamental truth that cannot be doubted.

Effective Critique Asks Basic Questions

Thus if conservatives want to make a thorough-going critique of what Kristol
and Bell denounce as "judicial supremacy," we must begin with Darwinism as
a scientific theory. Philosophical and moral critiques of pragmatism have
been offered by several philosophers, from Bertrand Russell to Ronald
Dworkin. But such critiques will remain ineffective if Darwin described
what is in fact the case in nature: If natural forces alone produced the
human mind, for example, then we must accept the naturalistic and
reductionist conclusion that the mind is merely a tool adapted for
survivalâ  along with the relativistic and skeptical implications this has
for morality and law. Thus we need to be prepared to take the intellectual
battle into science itself. The controversy over Darwin versus design is
not a peripheral issue but lies at the heart of the cultural crisis of our
day.

The lesson to be drawn is that the legal controversy over judicial supremacy
has deep intellectual roots, and that in order to change the prevailing
legal philosophy, we need to dig in for the long haul. The influential
thinker and cultural analyst Francis Schaeffer used to urge Christian
moral conservatives to stop reacting to single issues and events, and to
grasp the large, underlying ideas that give rise to those events. The
egregious case of judicial usurpation in Florida is a wake-up call to
conservatives, and we ought to use it to mount a serious and sustained
challenge to the legal pragmatism that reigns in American law schools.
That legal philosophy has reduced law to an instrument of social policy
and turned judges into legislators.

At issue is the validity and viability of the rule of law itself. For if
the courts make law, then why do we need legislative bodies? The courts
would become a law unto themselves, which is precisely the monopoly of
power that the separation of powers was designed to prevent. Restoring the
separate functions of each branch of government is the surest
institutional protection of American liberty.

________________
Mrs. Pearcey, a fellow with the Discovery Institute and managing editor of
the science journal *Origins & Design,* is co-author of *The Soul of
Science* and *How Now Shall We Live?*.

A fuller version of this article will appear in the spring 2001 issue of
the Regent University Law Review (Scopes Edition, vol. 13, no. 2). The law
review can be contacted at LawReview@regent.edu.

Copyright Human Events, 2000

--------------------------
Nancy R. Pearcey
Senior Fellow
The Discovery Institute
Center for the Renewal of Science and Culture
phone: 703-492-7837
fax: 703-492-7838
www.discovery.org/crsc
www.arn.org/pearcey/nphome.htm
email: npearcey@aol.com

Oryginal: http://www.humaneventsonline.com/articles/12-08-00/pearcey.html

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