My apologies! I misspelled the name: It's Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge 2004))
-----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marc Stern Sent: Tuesday, July 26, 2005 12:36 PM To: Law & Religion issues for Law Academics Subject: RE: "The Faith Of John Roberts" What is the name of the book? Barnes and Noble has nothing by Tanhanaha. Marc Stern -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Sanford Levinson Sent: Tuesday, July 26, 2005 1:26 PM To: [EMAIL PROTECTED]; Law & Religion issues for Law Academics Subject: RE: "The Faith Of John Roberts" "Judge Roberts said repeatedly that he would follow the rule of law," Mr. Shoemaker said. But, of course, one of the central teachings of the Roman Catholic Church, going back to St. Augustine is that that which is truly immoral or unjust is not law at all. The "rule of law" is a fatally ambiguous concept unless one identifies oneself as a strict positivist--the law is whatever a sovereign commands and morality is entirely and utterly irrelevant--or a natural law adherent, where immoral laws are simply not law at all. (Recall, e.g., King's Letter from the Birmingham Jail.) Again, I would recommend Brian Tahanaha's very good (and short) book on the subject. I also note, for what it is worth, that Scalia, who was forced, like all Catholic nominees, to declare that his primary loyalty as a judge was to the US Constitution, himself regularly invokes "morality" as one of the reasons he believes affirmative action to be unconstitutional. Now perhaps he's simply making a version of Philip Bobbitt's "ethical" argument, so that by "immoral," Scalia simply means (contrary to any known fact about the American ethos), that "we" have traditionally not taken race into account in making political judgments; I think the more plausible account is that he deeply believes that it violates natural justice to take race into account, a far more tenable view, even if one ultimately rejects it. And, as suggested in Stuart Buck's post, remains mysterious to me why anyone who truly believes that there is a divine sovereign who issues ascertainable commands and/or makes it possible for us to discern what morality and justice mean would easily subordinate that understanding to "the rule of men (and women)" instantiated in popular sovereignty. As Carl Schmitt argued (and Kurt Godel recognized), popular sovereignty is just another name for triumph of the will, though the number of relevant wills is, presumably, at least that of a majority. This is why he believed that a constitution that "takes rights seriously" must entrench them against even the possibility of amendment, advice followed in the post-War German Constitution and the Constitution of India. It will be interesting to see what the Iraqis decide about entrenchment and amendment. So tell me, is it legitimate for a US Senator, upon hearing Judge Roberts commit himself, as he most certainly will, to being a faithful servant of the law, to ask him what he thinks of St. Augustine's and Thomas Aquinas's view of law. Perhaps Roberts has read Robert George's supple and nuanced book Making Men Moral, which endorses a "pragmatic" reading of Aquinas. Is it fair to ask Roberts about that? Or are all questions that relate to Catholic theology and jurisprudence off the table? As I've suggested earlier, would we be equally hostile to asking, say, Frank Michelman about his views of Rawls and Habermas with regard to the way that a judge should comport him/herself or Cass Sunstein about the relevance of Kahnmen and Twersky (or any other behavioral economists) to a judge construing statutes. The question remains whether it is remotely possible to have a serious public discussion (i.e., in Congress and the press, not on our listserv) in the United States about theology and politics. I am not optimistic. sandy _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
