Comments Elsewhere

Scott:

In one sense, no, since I am defining Constitutional actions as just, and I assume evil is a synonym for unjust. In another sense, yes, as I imagine the Constitution would bind people to do actions that would typically be seen as evil were they done by other parties.

These are surely not how I was using the words “evil” or “unjust,” and not how most speakers of English use them, either. (If they duly repealed the Thirteenth Amendment would that make chattel slavery just? Would it make it non-evil?) In my questions above I was using “justice” to refer to respecting human rights and “evil” to refer to any violation of moral obligations (all injustices are evils but not all evils injustices; cruelty, cowardice, intemperance, envy, etc. are all evils but not injustices).

If the question is whether or not a judge, knowing positively that her sense of justice is correct, should enact an injustice, then the answer is no. But I don’t think that has any real world ramifications. If the libertarian theory of justice were true, then we should of course all act like libertarians. But normative verifications aren’t an option.

The question is about rights, not about how we know what rights people have. If a judge has to choose, in a ruling, between (1) respecting human rights and refusing to comply with the Constitution, or (2) respecting the Constitution and refusing to adhere to human rights, then should she choose (1) or (2)?

(The question of how she knows that she’s in a situation where the choice is between (1) and (2) is a separate question, which bears on epistemology more than on ethics or on law—it’s interesting, but it’s not what I’m asking about.)

You seemed to be indicating that your answer was that she should do (2) because she has a legal duty to do so that she’s bound to fulfill. But I don’t understand why you’d say that. If I’ve misunderstood you, then it would help me if you’d explain more about what you think makes, say, a duly-enacted law that bans flag burning, or authorizes chattel slavery, wrong; and what you think it is about duly-enacted laws that make them something we, or judges, should care about at all when we deliberate about what to do.

If I haven’t misunderstood you, though, it seems like there are two possibilities. (1) We can (somehow) get into a situation where we are required to do things that are evil, i.e. that it would be wrong not to do things that are wrong; the judge in the case above is in such a predicament. Or (2) holding a Constitutional office absolves the holder of ordinary moral obligations not to violate other people’s rights, so that by ignoring human rights in favor of the Constitution she isn’t wronging anyone. But (2) hardly seems tenable on anything other than a totalitarian view of the law, which I take it you don’t hold.

If I have understood you and you do believe that (1) is the case, doesn’t that make becoming a judge rather like making a deal with the Devil—you’re damned if you do and damned if you don’t? Isn’t that at most a knock-down argument for never becoming a judge under the present legal order?