The Priority of Law revealed in Princeton

The Priority of Law revealed in Princeton

“Knowledge is all the possible answers to all the possible questions.” That was a statement given by Dr. John Finnis, world-renowned legal theorist, to the twelve anxious students of the Witherspoon Institute’s graduate seminar on the Moral Foundations of Law. It was a diverse group, both ethnically and professionally – there were representatives from the United States, Europe, Latin America, Australia and Asia.

This year, the Philippine delegation was comprised of two young lawyers- Atty. Joel Arzaga (a graduate and professor of the University of Asia and the Pacific, doing advocacy work at that time with the World Youth Alliance based in the UN) and Atty. Angela Butalid (a graduate of the University of the Philippines and working in the National Privacy Commission). Both play active roles in various programs of the Universitas Foundation. 

Despite the varying backgrounds of the students, they had a common goal. They were ready to ask the big questions – is capital punishment justified? What is the State’s role in its citizens’ spiritual life? What is the common good, and who determines this? Can following our conscience lead to legal liability? How do we determine what is “reasonable” when judging other people’s actions? What is the purpose of law anyway?

These are not easy questions, and as Witherspoon’s mission is to “enhance public understanding of the moral foundations of free and democratic societies,” it was not planning on giving black-and-white answers.

What the professors did, however, was to propose different frameworks in approaching these timeless issues, considering theories tested and debated throughout time, in the hopes of giving these large-impact controversies the deep thought that they deserve. This is in response to the “tragedy” which is, as one of the professors put it, the evident trimming of unfettered search for truth for the sake of political correctness or people’s sensibilities.

 

Class photo with some of the Professors. L-R: Gerard Bradley, Robert P. George, Adam Macleod. Atty. Joel (center, last row) and Atty. Angela (second from the left) are the only representatives from Asia.

 

Understanding the reason behind Law

The first two days were designed to lay some philosophical groundwork for the entire course’s discussion. Dr. Finnis gave the students a crash course (or a review, depending on the curriculum of your law school) of Natural Law.

This was no easy feat, and because of time limitations, every sentence uttered was packed with ideas that have been developed over centuries. Following the work of St Thomas Aquinas in Summa Theologiae, he highlighted a game-changer in understanding the lofty notions of Natural Law: the primary meaning of the term “natural” is actually reasonable.

This is a revelation because it concretizes high-level concepts that tend to be misused and abused. He went on to discuss that the idea of reasonableness in choice and conduct should not be determined simply in a “logical” sense, but in its alignment towards basic human goods such as life, health, marital and friendly unions, knowledge, friendship with the divine – all of which are goods in themselves. And so, to return to the opening statement of this essay, Dr. Finnis contextualizes possibilities as the constant search – in a child-like manner- for these basic human goods.

A thought-provoking end to this discussion was the question, “Why should man choose to be reasonable?” to which the professor replied that there is always freedom of choice to depart from what is reasonable. This is inherent in every “should”; in every norm established in society. This is where conscience comes in, which he defines as the capacity to reach judgments about the reasonable thing to do. “Reality has a shape independent of our thinking,” Dr. Finnis imparted. “There are several ‘will theories’ in law… but divine will makes us seek what is reasonable.”

To say all this was overwhelming is an understatement. The students were fortunate, however, to have been lectured by the author of the well-known legal essay entitled The Priority of Persons [1], and its updated version The Priority of Persons Revisited [2]. These proposed a sort of rule of thumb in deciding borderline cases – that persons are the most important part of law’s concerns and nature. Though seemingly intuitive, this much-needed reminder was in response to historical events, such as the promulgation of Roe v. Wade [3], which reduced the determination of human beings into a “mere question of policy, outside the competence of courts and legal reasoning.” 

Indeed, lawmakers and politicians throughout time have been quick to cite the “common good” as the basis for their actions with far-reaching implications. But what does that entail, really? Dr. Finnis shared that “common good serves each person (flesh and blood), one by one; family by family; group by group. Society is stratified by spheres of responsibility and the task of law is not just to define boundaries. When controversy arises, the need will arise to force law unto those who refuse to be just… knowledge of the law amounts to little if it is not for the people, for whom the law is made.”

 

Classes were conducted in this conference-table format, which fostered an intense but conducive learning environment both for the students and professors. L-R: David Small from North Ireland, Jeremy Blades from Australia, Nancy Brown from the United States, and Joel Arzaga from the Philippines.

 

Private law, a different aspect of justice

This graduate seminar had a comprehensive approach to understanding the role of the law in human flourishing – that is, flourishing of persons in all their dimensions, including their physical, mental, relational, and moral well-being. 

The rules of public law – that which governs the relationship between the State and its citizens – is only one aspect of justice. “Private law is more directly involved in the generation of goods themselves… and states are given the power to enforce,” said Professor Adam Macleod, a leading theorist in the area of private law. “Private law creates a space where people can become virtuous…it builds a society that cultivates this atmosphere for practicable reasonableness, which is the virtue for acting well.” 

He continued to discuss that private law harnesses motives of persons to achieve common good in cooperative acts of private ordering. This, he says, runs counter to legal realistic theories that don’t subscribe to the idea of having meaningful contracts, or real injuries in torts; that ridicule the idea of any meaningful rights and duties. 

Referring to his book entitled Property and Practical Reason [4], Professor Macleod discussed the persisting debate on the nature of rights and whether there is such a thing as absolute rights. He then gave the students an overview of Rights Theory and the analysis of rights in a two-dimensional approach. 

For the first dimension, which is identifying the “specie” of the right, he discussed the four elements of rights according to the “Hohfeldian Incidents” – that the form of rights can come as a claim; as a privilege (or liberty); as power; or as immunity. These species of rights, in that order, correlate to some other person’s duty, no-claim, liability, or disability, respectively. The second dimension was the “conclusiveness” of the right, which is important in determining the status of the right in the chain of practical reasoning. As a tip, Professor Macleod shared that this can be premised on the human good to be pursued, alluding to the “Priority of Persons” guideline by Dr. Finnis; remembering the persons to whom our duties correlate. 

Following this framework, the students endeavored to perform analytical work on several categories of claims – abortion and same sex marriage; healthcare and insurance; contract and property; life and liberty. Clearly, amidst the many interests represented in society that seek prioritization of the State, there is a need to take a step back and analyze, for the good of the individuals it serves, the characterization of so-called rights and their implications.  

 

The freedom to believe 

Does the free exercise of religion deserve State protection?” This was a topic that spanned throughout several of the lectures. 

To this question, Dr. Finnis shares from his essay [5] – “It would be good to be responsive – in awe of one’s finiteness and dependence – and cooperative with this transcendent personal source of whatever good any of us could achieve… Religion deserves constitutional mention, not because it is a passionate or deep commitment, but because it is the practical expression of, and response to, truths about human society… about the persons who are a political community’s members… about the world in which any such community must take its place and find its ways and means.” 

One of the readings assigned to the class was the recent case of American Legion v. American Humanist Association [6], where the US Supreme Court allowed a towering cross to stand along a highway as a World War I memorial to honor the country’s fallen soldiers. In gist, the majority opinion considered the fact that this cross has been existing since 1919 and the “passage of time gives rise to a strong presumption of constitutionality.” 

To this, Professor Gerard Bradley propounded – in justifying the continued existence of monuments such as this, why did religion have to be blanched out? The Court, he opined, could have emphasized the required neutrality in treatment of religion and absence thereof. He then offered  another interpretation to Constitutional provisions stating that no law shall be made respecting the establishment of religion or prohibiting the free exercise thereof. “This provision does not serve primarily as a prohibition but an obligation on Congress to preserve religions that have already been established… the non-inhibition of religion does not equate to a promotion of it.” He admits that there is a very thin line drawn between accommodation and promotion. He shared, nevertheless, that “the unreality of religion is very dangerous… because it includes beliefs about you.” 

Ultimately, it was proposed that there is societal value in promoting religion, not in a coercive way, but in a way that cultivates a friendship with God. 

Another recurring theme throughout the seminar was that of conscience. In one of the discussions with Dr. Finnis, he forwarded certain concepts from St. Thomas Aquinas, who describes conscience as our “only access to Divine Truth” and, the professor added, is not “mere loyalty to our mind.” We are then called to form our conscience, because this serves as our best judgment about what is true. Naturally, this caused a lot of curiosity among the students and the classroom livened up with their questions about the lack or abuses of conscience throughout history. The professor was happy to accommodate these and provided profound yet succinct answers. 

An interesting feature of this seminar was that the conversations didn’t end in the classroom. Conversations about the topics as applied in the different jurisdictions represented carried on during meal times and even during after-class drinks, which were usually spent with the professors. The Witherspoon Institute was very gracious in providing a conducive environment for ruminations, having even organized a campus tour, poetry night, and museum tour led by one of its staff, “renaissance man” Joe Perez-Benzo.

In all these occasions for informal discussions, the memorable classroom topics became material for some humor. A student would occasionally quip something along the lines of, “My conscience tells me I can have more ice cream.”  

 

Joe Perez-Benzo from the Witherspoon Institute conducts the poetry night and museum tour for the students of its two summer seminars – Moral Foundations of Law and First Principles.

 

Advocacy and restraint in the Judiciary 

Every year, the Witherspoon Institute invites a guest lecturer to speak about the practical application of principles in their profession. This year, the students were fortunate to have Judge Kyle Duncan, recently appointed into the Fifth Circuit of the US Court of Appeals, to talk about his transition from an advocate to judge. 

Recognized as the lawyer who successfully argued for religious freedom and its protection in closely held for-profit corporations in the landmark 2014 case of Burwell v. Hobby Lobby Stores, he shared that “as an advocate, you’re supposed to be biased…you champion a cause.” This manner of viewing law changes for a judge. He described a judge as an “umpire” who renders objective legal opinions, structuring the decision to include only the relevant facts for the case’s resolution. 

Despite this shift, Judge Duncan shared an interesting insight- that advocacy work does not actually end in the judiciary. “They continue to be advocates… advocates for the position they believe to be right,” he revealed. He shared that when colleagues disagree with each other, a lot of written memoranda go back and forth to produce the end-product that is a decision. The difference with this kind of advocacy though is that it’s not about personal biases anymore, but their judicial philosophy – how they interpret the law’s text and intent. This serves as a constraint to arbitrary discretion in the judiciary. 

What then is the role of judges in upholding the rule of law? On the last day of the seminar, Professor Matthew Franck discussed the concept of “due process of law.” In determining whether public policies meet this, both in substance and procedure, he asserts that there must first be an understanding of what “law” means. 

Should the law simply be considered from the point of view of a bad man? Professor Robert P. George discussed how the rule of law should be seen through an “internal perspective,” going  beyond mere external perceptions of authority, and how it should be seen as its reasons. 

A rare opportunity where a Judge is asked the questions – Judge Kyle Duncan converses with the students about valuable insights from his career in the judiciary. Photo from the Witherspoon Institute. 

 

The intensive five-day seminar was definitely an exciting intellectual adventure for both the students and the faculty. As promised during the welcome dinner, it illumined the intuitive, unarticulated thoughts that the students have already had throughout their encounter with the law in their respective universities or practices. It was a confirmation of what they suspected all this time: in making decisions based on the law, there may be no singular, absolutely right answer… but there are many wrong answers. This is why we are called to possess intellectual courage in the pursuit of truth, no matter the role we play in our home countries. 

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[1] John Finnis, “The Priority of Persons,” Oxford Essays in Jurisprudence: Fourth Series, ed. Jeremy Horder (Oxford: Oxford University Press, 2000), pp 1-15.

[2]  John Finnis, “The Priority of Persons Revisited,” The American Journal of Jurisprudence, Vol. 58, No. 1 (2013), pp. 45-62.

 [3] Landmark decision in which the U.S. Supreme Court ruled that the U.S. Constitution protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction.

[4]  Cambridge University Press, 2015

[5]  “Does Free Exercise of Religion Deserve Constitutional Mention?” 54 Am. J. Juris. 41 2009. Originally delivered in the annual John Dewey Lecture at the University of Minnesota Law School in March 2009. 

[6]  17-1717, 588 U.S. ___ (2019)

 

NOTA BENE: The views, thoughts, and opinions expressed in the text belong solely to the author, and the speakers mentioned in the article, and not necessarily to the Foundation.

 

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