Law and Order

“God is himself law; 
and therefore law is dear to him”

I.

In a famous lecture, the eminent Princeton political philosopher Edward Corwin likened American Constitutional law to yin-yang—the opposite but complementary cosmic principles of passivity and activity, darkness and light, feminine and masculine—of ancient Chinese philosophy. For Corwin, “the ‘yang’ element of American Constitutional Law is Judicial Review, the power, and corresponding duty of a court to pass upon the validity of legislative acts in relation to a higher law which is regarded as being binding on both the legislature and the court. By the same token the ‘yin’ element is the higher law.”[2]

We can see how the comparison works in Corwin’s reckoning. Judicial review serves as the active element that brings the higher law or natural law element, the “passive” element, to bear in concrete situations. For Corwin, the U.S. Constitution has natural law as its foundation, or as he puts it, “under its skin.” For Corwin then, the element of likeness with yin-yang is the passive and active way he thinks judicial review and natural law relate to each other. But he also indicates that the natural law he has in mind is that of Locke, whose concept of rights combined with the concept of judicial review in the common law tradition forms the background or horizon for American law, even if in modern jurisprudence we speak of “civil rights,” rather than “natural law” or “natural rights.” 

I would like to draw on Corwin’s analogy but shift both its application and emphasis in crucial ways. According to my version, the yin-yang pair is not judicial review and higher law, but legislation and the civil rights judicial review protects and promotes. Also, my version differs from Corwin’s by shifting the most important aspect from yin-yang’s character as passive and active to the pair’s perpetual opposition and harmony, the sense in which each principle stands in tension with yet also implies and needs the other. According to my version, in other words, the yin and yang are set in a dialectical relationship. The relationship between law and rights is a mutual dependence, even as the border between the two is perpetually contested. Each side stands for important political goods, such as democratic self-determination and individual autonomy. 

Nevertheless, if we feel the need to draw on the meaning of yin-yang as active and passive principles, we can perhaps say that law and rights often swap positions. Sometimes the rights side adopts the active “yang” position, and traditional legislation serves as the passive “yin.” At other times it is the other way around, with the legislation as the active (or often reactive) element, responding to perceived incursions onto constitutionally enumerated and traditional rights. 

Often, the yin-yang maps onto the standard “progressive” and “conservative” positions we can identify in contemporary political debate. For those who especially support the activist advance of individual rights (e.g. abortion, same-sex marriage), or more recently legislatively imposed “equity” in the face of traditional social norms (e.g. race or gender-based initiatives), this activist “yang” principle is the proudest achievement of American liberalism. For others, much of the post-‘60s work of the courts imposed judicial policy preferences at the expense of the democratic principles of self-determination and local communities’ moral and religious standards. Like their adversaries, they have recourse to either rights (e.g. parental rights, free speech, religious liberty) or legislation (abortion regulations, prohibitions on hormone blockers and cross-sex hormones for minors). 

This dance has been around for a long time, however, and the political alignments it expresses have often shifted.[3] The important point is rather that while political alignments and the active and passive elements have sometimes changed and swapped places, the seemingly eternal return of the basic dialectic itself remains a key structural and conceptual element of Constitutional adjudication. 

The question therefore arises as to how well this oppositional but necessary dialectic between rights and law works for the health of society, culture, and the persons of flesh and blood who people them. What are the effects of conceiving law in this way? 

II. 

One feature of this yin-yang relationship is that each member of the pair acts as the limiting principle for the other. We can see an example of this conceptual framework in a separate opinion in the 1965 Griswold v. Connecticut decision on Comstock-era contraception laws. I have in mind here an argument in the opinion of Justice Goldberg criticizing the dissenting opinions of Justices Black and Stewart: 

The logic of the dissents would sanction federal or state legislation that seems to me even more plainly unconstitutional than the statute before us. Surely the Government . . . could not decree that all husbands and wives must be sterilized after two children have been born to them. Yet, by their reasoning, such an invasion of marital privacy would not be subject to constitutional challenge, because . . . no provision of the Constitution specifically prevents the Government from curtailing the marital right to bear children and raise a family. . . . [I]f, upon a showing of a slender basis of rationality, a law outlawing voluntary birth control by married persons is valid, then, by the same reasoning, a law requiring compulsory birth control also would seem to be valid. 

Goldberg’s argument lays bare a conceptual framework that pervades American Constitutional adjudication. According to Goldberg’s logic, law and right serve as separate but contending domains. Where one wins, the other loses. If a domain is under the control of law, then by implication legislatures’ options are essentially unlimited. It could either prohibit the use of contraception or require it. Beyond the “slender basis” of minimal rationality, legislation in principle lacks any sort of necessary internal order, such as the classical idea of ordination to the good. If, on the other hand, a domain is under the control of right, the individual choice is likewise unlimited by internal order. Justice Goldberg does not mention that other rights might intervene to dictate a legislature’s free reign in the example he proposes, but in any case, this would only complicate the situation without subtracting from the basic conceptualization of rights and law as essentially outside each other, as dialectical or oppositional elements. In all cases, we have two sides of this yin-yang, and each is exclusive of the other. On the one side is the unlimited act of sovereign legislative will; on the other is the equally unlimited act of individual will. 

Examples could be multiplied. If Roe v. Wade placed the, in point of fact, unlimited power to decide about abortion in the hands of the individual woman, the 2022 Dobbs v. Jackson Women’s Health Organization decision elected to place it entirely in the hands of state legislatures. Even the 1992 Casey decision, in its awkward attempt to mediate between these two extremes, nevertheless repeated the pattern, outlining the limits of respective state and individual power in a more granular way. If Bowers v. Hardwick placed the power to criminalize sodomy in the hands of legislatures in 1986, the 2003 Lawrence decision placed the right to choose kinds or “intimate relationships”—each judged by the Court as morally and legally equivalent—entirely in the hands of individuals. If the 1888 Maynard v. Hill decision had placed the regulation of marriage entirely in the hands of legislatures’ “sovereign will,” Meyer v. Nebraska said in 1923 that individuals have a basic right (inter alia) to marry. The list could go on. Whatever we may think about these differing outcomes, the important point is simply that the basic constitutional framework perpetually takes the form of a contest between rights and law. 

Judgment is not rooted in fundamental truth or the natural order, but in the mediation between interests, wills, and powers.

Notice the assumptions in each of the above examples. Where rights begin, law ends; where law begins, rights end. Yet the two are inseparable, and as mutually limiting principles they need each other. In short, they are like yin-yang. Notice also that, while Corwin aligns “higher” or “natural” law with the rights side of the equation, what we in fact have is a positivism of the individual will in contention with its twin, the positivism of law. This is due to the Lockean background, which has reduced to the robust classical understanding of natural law—which was ordered to the good—to mere reservations from the state of nature of individual autonomy in certain areas. Here the concept of right is formally empty; it is simply a domain of individual choice or power. Finally, notice also that because these court decisions concern the extent to which the individual or legislature controls some domain of activity, the central question boils down to Who decides, the individual or the legislature?

Yet this yin-yang dialectic drives much of our adjudicative life and, more importantly, our way of conceiving the role and structure of political society and law’s meaning and activity as a source of culture, especially since the 1960s. Their perpetual back and forth has shaped our modern, liberal collective psyche. Indeed, in my experience, most people have trouble imagining a free society without this dynamic duo at its core and assume that any prelegal and determinate natural or normative order, serving as a foundation for and determining the meaning of both law and rights, must tend toward authoritarianism or integralist theocracy. 

III.

Perhaps this yin-yang functions well enough in some contexts. However, especially in the decades since Griswold, the Court often faces issues that can only be resolved by asking not Who decides? but rather the Socratic question, What is it? 

An obvious example is the issue of abortion, for which the only possible basis for an honest debate and resolution depends first on asking, What is prenatal life?, or perhaps What is pregnancy? Neither Roe nor Dobbs v. Jackson (nor Casey) squarely or explicitly try to resolve this question. Roe says that Texas (i.e. government, which presumably also includes the Court itself) cannot decide the question, and Dobbs simply does not address it even obliquely. Rather, both instead address the question Who decides?, even if their answers to this question differ. 

Similarly, if the question is whether individuals have a right to marry someone of the same sex, the necessary question would be, What is the relationship between marriage and the sexual difference between men and women? This question in turn would require asking, What is sexual difference? Likewise, if the question is whether “transgender” counts as a Constitutionally protected class or falls under protections against “sex” discrimination, the necessary question is, What is sex? 

In fact, however, neither side of the yin-yang requires a substantive, reasoned judgment about the nature of the underlying thing at stake. Rather, in all cases the question boils down to Whose will prevails; whose power of choice wins? In fact, to preserve this primordial act of individual or legislative will, the courts’ affirmation must remain purely formal. They decide only that the power of choice lies in the hands of one side or the other. And, indeed, it is precisely the purpose of the yin-yang, its very formalism, to avoid saying anything concrete about fundamental human realities, such as sexual difference or unborn life. The courts cannot say what these things are because they cannot say what a human being is, since doing so would imply a particular concept of human flourishing or the good. And such an implication would violate the terms of liberalism.

Ironically, despite not squarely posing the What is it? question, courts do tacitly or by implication routinely provide an answer. For example, Dobbs, just as much as Roe, decided that life in the pertinent sense begins at live birth. Otherwise, it could not have given the choice to state legislatures. Both decisions remain at a purely formal level: the Dobbs Court is just as satisfied formally with a legislature’s decision to allow abortion into the ninth month as the Roe Court was satisfied with an individual woman who chooses to give birth. Both are, in that sense, “prochoice,” differing only in who possesses the power of choice. Both treat unborn life as “potential life,” despite our common and traditional language usages, such as “she is carrying a baby” or “she is with child.” 

Of course, individuals and legislatures can have healthy, substantive discussions of these matters. But the dance of the two positivisms implies that the basis making the legal decisions is ultimately positivistic. Hence, law’s pedagogy inclines us to think of these in positivistic terms. After Dobbs, a legislature may very well decide that unborn life is inherently of great value, that the taking of this life through abortion is not only an injustice but also implicitly cheapens all life. It may even decide that unborn life is naturally personal life and that therefore, for state purposes, it should also be legally personal. But under Dobbs, doing so will always be formally equivalent to having decided the opposite. The decision would be treated as one of state policy rather than truth or rootedness in nature or reality. 

In other words, such a legislative initiative would still be under the spell of a Court decision that, for the non-negotiable basic fabric of our society, unborn life is only “potential life.” 

Similarly, were Obergefell overturned, a state legislature might decide that the basic unit of society is the man-woman couple in marriage with their children, but again this would be formally equivalent to holding that the basic unit is simply an androgynous individual. Such legislative decisions would still amount to impositions of will, rather than principles that give rise to the meaning and purpose of law from the beginning. 

In other words, whichever way the legislature decides, law will communicate to society that the outcome is an expression of a larger faction’s power, rather than of a truth that precedes civil law and is embedded in higher principles. Legal decision or judgment is not rooted therefore in fundamental truth or the natural order, but in the mediation between interests, wills, and powers. 

There is something profoundly dissatisfying in the idea that these basic human realities are in effect, for legal purposes, treated as though they are matters of policy, much like the relative tax brackets or traffic laws. In each of these cases, the underlying reality at stake is at best treated as a set of social facts, and as social facts in principle contingent, rather than as necessary principles giving rise and shape to law from its beginning. 

The question remains then as to whether some basic human truths can be understood as foundational to law, rather than as possible choices of rights-bearing individuals or power-wielding legislatures. 

 

IV.

As I have already noted, a purpose of this rights-law dialectic is to avoid having to say what the underlying things (such as unborn children) are. Yet, this avoidance results in a highly abstract and formal kind of legal reasoning. As already suggested, the basic problem is that law and rights are conceived as standing outside of each other because there is no underlying or more primitive order to unite them. This more primitive order would have been the role of traditional natural law reasoning, as opposed to its residue in the liberal concept of individual rights. 

And yet this reluctance to ground law in human nature has profoundly contributed to ever increasing struggles within society over basic metaphysical and anthropological assumptions, and these struggles seem ever more likely to tear the fabric of American (or more broadly Western) society apart. Indeed, it is now commonplace to say that the liberal modern approach to governance and law is failing. It would seem that, for the sake of our civilization’s long-term survival, we need to find an escape from the dialectic I have outlined. 

Is there some way out? Perhaps we can take a tip from the Harvard and Emory legal polymath Harold Berman. Berman lamented that three elements of legal thought have been separated over the past century or two into schools—viz. natural law, legal positivism, and the historical school—contrary to their original unity. In particular, natural law (which, like Corwin, he associates with modern rights) and legal positivism seem to be locked in combat, while the historical school has mostly fallen into obscurity. Berman proposes reuniting these three into an organic whole. In particular, Berman seeks to reestablish a more historical sense of law, as a way to overcome the rights-law conundrum.[4]

Without committing to Berman’s entire project, which tends toward utopian globalism, we can consider the historical approach, which Berman tells us looks both forward and backward. It would, on the one hand, acknowledge the changed conditions and aspirations of modern life, but would on the other hand also recognize law’s rootedness in a very long tradition. For Berman, this recognition would include the fact of law’s inherently religious origin, which Berman identifies with the papal “revolution” beginning in the eleventh century. Berman argues that this revolution—the liberation of the Church from secular authority, during the Investiture Controversy—resulted in the flourishing of canon law, which then served as the model for the emerging legal systems civil society. 

Berman observes that the origins of modern, Western law are in fact theological, and specifically Catholic, in origin. Indeed, he thinks that this underlying theological background needs to be recuperated for the reintegration of the three elements of law. 

Drawing on this long tradition to more fully integrate a non-positivistic understanding of the rights/law dialectic, we can see that the current tendency toward a formalistic abstraction from real things is, in the larger scheme, an anomaly. We can see that our own basic understanding of rights and law is inherited and presupposes foundations we seem unwilling or unable to place squarely in our line of sight. 

Older than the “natural law” of Locke, there is a tradition that sees natural law as an underlying ordination to the good, providing a foundation for civil law. Both rights and legislation would be grounded in this prior order. Moreover, that order, the natural law, presupposes the reality of the human person in his concrete being (e.g., St. Thomas, Summa Theologiae I-II, q. 94, a. 2), as sexually differentiated into man and woman, with their natural procreative potential. The virtue of this presupposition is that it sees law’s source not in the abstract opposition of positivisms, but in the concrete reality that is man and woman, as well as other basic human realities (our embodiedness, our social nature, our need to know the truth, and so forth). 

My point is not the tired one, that we need to “add” natural law reasoning to our jurisprudential mix. My point is not that law needs to be more moral, but rather that it needs to be more concrete. If we place our understanding of the Constitution, of rights, and the role of lawmakers in a longer tradition, then perhaps we will be able to see that law is in fact founded on what is concretely human. Perhaps courts might find themselves in a position to ask, What is that central element that allows us to understand or render intelligible the reality in front of us? For example, if the problem is to define “sex,” then shouldn’t a court consider what the word could mean both in terms of what it has always meant and also in terms of the conceptual framework that allows the word to be intelligible at all. Presumably, in the case of “sex,” this would mean considering that sex refers specifically to the division of humanity into men and women and specifically in terms of the procreative potential implicit within that division, as the source of society over time. 

The contribution of Berman, in other words, is to allow us to see that our current position is more like a “heresy” from the long background of law, a background that would allow us to make sense of both rights and law by appeal to the very underlying foundations that gave it birth to begin with. It would also allow us to see the world around and within us as intelligible and therefore also as accessible in our most fundamental legal debates.