Mensch tracht, un Gott lacht

Tuesday, May 22, 2018

Mortimer Adler on Plato, Legal Positivism, and Natural Law

Via George Anastaplo’s In Re Antonin Scalia”, wherein we see Scalia as a legal positivist and no natural lawyer, more a “modern” than a Catholic conservative. But first, the great Mortimer Adler on Plato:
[In Plato’s Republic, we] find the sophist, Thrasymachus, arguing against Socrates, saying that “justice is nothing but the interest of the stronger” and Socrates trying to refute Thrasymachus by defining justice without any regard to the edicts or laws of those with the might to enforce them.
According to Thrasymachus, those with the power to ordain and enforce the laws of the land call those who obey their laws just subjects, and those who disobey them unjust. The words “just” and “unjust” have no other meaning, certainly no meaning whereby a despotic tyrant or a tyrannical majority, ruling in self-interest, not for the good of the ruled, can be called unjust.
With the statement that justice is nothing but the interest of the stronger, we have the origin of the doctrine that might is right, for those with the might to govern are the only ones who can determine what is right and wrong.
Mr. Adler goes on to trace the opposition between Socrates and Thrasymachus down to our day in this fashion:
The position taken by Thrasymachus is taken later by the Roman jurisconsult Ulpian for whom “whatever pleases the prince has the force of the law,” and still later by Thomas Hobbes in his Leviathan where he declares that, in any community, what is just and unjust is wholly determined by the positive or man-made laws enacted by those with the power to ordain and enforce them. In the nineteenth century, the positivist view is advanced by Jeremy Bentham in his Principles of Morals and Legislation, and by John Austin in his Province of Jurisprudence Determined, and in the twentieth century it is advanced by professors in American law schools who call themselves legal realists.
On the other side, the naturalist view initiated by Socrates in his dispute with Thrasymachus finds amplification in Aristotle’s distinction between natural and legal justice; in Cicero’s discussion of [the] natural; in Augustine’s statement that “an unjust law is a law in name only” (representing might without right, power without authority); in Aquinas’s philosophy of law wherein principles of justice are antecedent to, independent of, and applicable to positive or man-made laws; and in the doctrine of modern philosophers, such as John Locke and Immanuel Kant, for whom natural rights preexist positive, man-made laws and become the basis for assessing their justice and injustice.
Mr. Adler, in his usual systematic fashion, spells out “the consequences that follow from embracing the positivist or the naturalist side of the issue”:
If the positivist view of the relation between law and justice is correct, it follows:
1. that might is right:
2. that there can be no such thing as the tyranny of the majority;
3. that there are no criteria for judging laws or constitutions as unjust and in need of rectification or amendment;
4. that justice is local and transient, not universal and immutable, but different in different places and at different times;
5. that positive laws have force only, and no authority, eliciting obedience only through the fear of the punishment that accompanies getting caught in disobeying them; and
6. that there is no distinction between mala prohibita and mala in se, namely, between
a. acts that are wrong simply because they are legally prohibited (such as breaches of traffic ordinances) and
b. acts that are wrong in themselves, whether or not they are prohibited by positive law (such as murdering human beings or enslaving them).
Mr. Adler then spells out, in opposition to each of these points, “the naturalist view of the relation between law and politics,” beginning with the observation that “might is not right” and that “majorities can be tyrannical and unjust.”
George Anastaplo (1925-2014) was Professor of Law, Loyola University of Chicago; Lecturer in the Liberal Arts, The University of Chicago; and Professor Emeritus of Political Science and of Philosophy, Dominican University.

Letter to the Editor at The Spectator (UK), Response to Lionel Shriver's The Irish border is the EU’s problem, not ours, May 12, 2018

Seth Barrett Tillman
New House (#53)
Maynooth University
County Kildare

22 May 2018

The Spectator
Letters to the Editor

RE: Lionel Shriver, The Irish border is the EU’s problem, not ours, The Spectator (UK), May 12, 2018, page 23,                            

Your author wrote: The Good Friday Agreement “is not a set of eternal laws to live by dictated to Abraham from the Lord Thy G-d on Mount Sinai.” The standard biblical narrative is that Moses and Aaron led the Jewish people to G-d’s covenant at Mount Sinai. Abraham had departed this world about ten generations before that event—some 325 years prior.

When The Speccie emulates The Grauniad, we all lose.



Seth Barrett Tillman

Seth Barrett Tillman, Submitted as a Letter to the Editor at The Spectator (UK), Response to Lionel Shriver's The Irish border is the EU’s problem, not ours, May 12, 2018, New Reform Club (May 22, 2018, 2:36 AM), <>; 

Monday, May 21, 2018

I Leave It To You—The Reader—To Decide

Amici discussed presents that President Jefferson received from Indian tribes that Lewis & Clark brought home from their great trek. Modern historians have described such gifts as “diplomatic gifts,”[62] that is, presents from foreign nations. Indeed, Jefferson personally described gifts from a Mandan tribal chief as coming from “his [that is, the Indian Chief’s] country,” not our country.[63] The Mandan tribe, which resided in and around present-day North Dakota, was—at that time—in every relevant sense a foreign nation.[64] The Mandan were not born in U.S. territory (i.e., it was not United States territory at the time they were born). There was no peace treaty between the Mandan and the United States. The Mandan had not sold or ceded any of their lands to the United States government. They were not made subject to any federal removal policy or placed onto any reservation. They were not subject to the supervision of any federal officer or administrator with express responsibility over their tribe. And, obviously, they had no voting rights. At this juncture, in American history, they were not (yet) integrated into the American polis in any meaningful way—they were not yet part of the American nation. 

Plaintiffs attempt to counter this evidence with another letter that President Jefferson wrote on another occasion to five other Indian tribes.[65] However, the Wiandots, Ottowas, Chippeways, Poutewatamies, and Shawanese tribes, who Jefferson referred to as “my red children . . . forming one family with the whites,” were situated in significantly different ways—both geographically and legally—than the Mandan were vis-à-vis the United States.[66] It is no surprise that Jefferson addressed these five tribes using familial language: these five tribes primarily resided East of the Mississippi in territory that was within the settled pre-Louisiana Cession borders of the United States, as well as in the area around the Great Lakes.[67] 

Plaintiffs’ rebuttal does nothing to discount Jefferson’s own description of the gifts from the Mandan tribe, which was located about a thousand miles away from the five tribes that were connected to the Ohio Valley. By contrast, many of these tribesmen in the Louisiana Cession and further West had never met Westerners, and Lewis and Clark’s Corps of Discovery explorers were certainly the first Americans that many had met.[68] Tribes such as the Mandan were in every relevant sense foreign, as Jefferson’s correspondence with Lewis plainly shows. Contrary to Plaintiffs’ contra-historical blanket assertion, not all Indian tribes are the same: they had, and still have, distinct cultures, languages, and histories. Plaintiffs’ treatment of all such groups and their gifts as indistinguishable amounts to—at best—gross historical oversimplification. Again: Jefferson kept the Mandan diplomatic gifts. He did not ask for congressional consent. That is some substantial reason to think that Jefferson (like President Washington and others) did not think the Foreign Emoluments Clause applies to presidents. DOJ could have, but did not address any of this evidence that bears directly on the meaning of the Foreign Emoluments Clause.  

Because there is no adversity in regard to this probative evidence .  . . Amici , Tillman and the Judicial Education Project, ask to participate at the scheduled oral argument. 

Seth Barrett Tillman, I Leave It To You—The Reader—To DecideNew Reform Club (May 21, 2018, 7:17 PM),

An extract from: Motion for Leave of Amici Curiae Scholar Seth Barrett Tillman and the Judicial Education Project to be Heard at Oral Argument, Senator Richard Blumenthal v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 1:17-cv-01154-EGS (D.D.C. May 21, 2018) (Sullivan, J.), Dkt. No. 52,

[62] See, e.g., Elizabeth Chew, Unpacking Jefferson’s Indian Hall, Discovering Lewis & Clark,
[63] Letter from President Thomas Jefferson to Meriwether Lewis (Oct. 20, 1806), in 8 The Writings of Thomas Jefferson 1801–1806, at 476, 477 (Paul Leicester Ford ed., N.Y. The Knickerbocker Press 1897) (emphasis added),
[64] Mandan People, Encyclopaedia Brittanica (“Mandan, self-name Numakiki, North American Plains Indians who traditionally lived in semipermanent villages along the Missouri River in what is now North Dakota.”),
[65] Letter from Thomas Jefferson to Indian Nations (Jan. 10, 1809), National Archives: Founders Online (“I take you and your people by the hand and salute you as my Children; I consider all my red children as forming one family with the whites[.]”).
[66] Id. (using Jefferson’s spelling in the main text).
[67] See, e.g., History, Wyandotte Nation,; Ottowa Indians, Ohio History Connection; Chippewa Indians, Ohio History Connection, History, Wheeling Historical Society & Museum,; History, The Shawnee Tribe,
[68] See The Native Americans, PBS,

Sunday, May 13, 2018

Letter to the Editor at The Times, Response to Ann Marie Hourihane, Eighth Amendment Debate is a Case of History Repeating, The Times (Irish edn.) (May 15, 2018)

Submitted: May 13, 2018

Re: Ann Marie Hourihane’s Eighth [Amendment] Debate is a Case of History Repeating, The Times (Irish edn.) (May 11, 2018, 12:01 AM)           

Ms Hourihane writes: “There is a large section of our population who are not going to discuss how they are going to vote [in regard to repealing the 8th Amendment of the Irish Constitution] with anybody, because they know that in any logical argument they would lose.” That is interesting: I always thought it was the job of the media to hold elected officials, the government, and its ministers to account. I guess I was wrong: in our post 1984 world, it is the job of the media to hold the people and the voters to account. Perhaps she thinks it is time to (also) repeal the Irish Constitution’s secret ballot provision?

Perhaps your editorial writer could tell us how she knows, that this “section” of the population is “large,” and also how “large” she thinks this purportedly illogical segment of the population is, and more importantly, given that it is “large” and illogical, how long does she think it worthwhile to retain democratic institutions?

Where the elites deride their own citizens and their own voters, the “deplorables” will eventually take the hint. Just think—Brexit & Trump.

Seth Barrett Tillman, Lecturer

Seth Barrett Tillman, Letter to the Editor, Eighth Debate, The Times (Irish edn), May 15 2018, at 16, (with Lexis access) (published). 

Seth Barrett Tillman, Submitted as a Letter to the Editor, Response to Ann Marie Hourihane, Eighth Amendment Debate is a Case of History Repeating, New Reform Club (May 13, 2018, 7:08 AM),

A response to: Ann Marie Hourihane, Eighth [Amendment] Debate is a Case of History Repeating, The Times (Irish edn.) (May 11, 2018, 12:01 AM)