The judge as moral philosopher

Reviewing Supreme Court Justice Antonin Scalia and Bryan A. Garner’s Reading Law: The Interpretation of Legal Texts in the Claremont Review of Books, David Forte exposes Justice Scalia’s famous legal positivism as moral philosophy by another name.  “They call false,” Forte writes of Scalia and Garner, “the ‘notion that the quest in statutory interpretation is to do justice,’” and they, like Alexander Hamilton, prefer judges to be “‘bound down by strict rules and precedents.”  But judging, Forte pushes back, is an inescapably moral craft. 

Here’s Forte making his case:

But the maxim “no man should profit from his own wrong,” [the application of which Scalia and Garner dispute in the absence of a statute to that effect] which is a corollary to “no man should be a judge in his own case,” is an element of the rule of law itself, which can, in reason, suffer no absurdity or self-contradiction.  It is contradictory for a judge who personifies legal neutrality to decide a case in which his interests are at stake.  It is an absurdity for a regime of law that seeks to deter murder to embed an incentive to murder in its law [referring to the example of a orphan who petitions for his inheritance after murdering his parents].

These maxims are not moral rules drawn from some extrinsic standard and emplaced into the law by the judge’s whim; they are implicit in the nature of what is law, the determination of which is, as Marshall insisted, the essence of the judicial enterprise. If the command of the positively enacted law defines all there is to law, then the maxim (also from Lord Coke) that “the law compels no man to impossible things” would also have no place.  The irony of Scalia and Garner’s position is that it disputes the historical provenance of judicial review itself, namely Coke’s opinion in Bonham’s Case (1610) in which a parliamentary enactment was struck down as offending the maxim that no man can be a judge in his own case. 

Writing in his Dissertation on First Principles of Government, Thomas Paine observed: “Every art and science has some point or alphabet at which the study of that art or science begins and by the assistance of which the progress is facilitated.”  This is true of the enterprise of judging. 

Incidentally, I don’t think Justice Scalia disagrees with the basic nub of natural law arguments.  I don’t think he writes off Lord Coke as a shiftless foreshadowing of living constitutionalism.  Instead, Justice Scalia points out that we are no longer a new nation barren of laws.  The United States has matured since Chief Justice Marshall’s time.  Our land is now planted thick with laws, canons, maxims, and precedents.  It is thus both needless and dangerous for judges to presume we need yet another class of lawmakers.  It’s not an easy argument to dismiss. 

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at


  1. I’m glad you wrote about this. I was going to suggest that.
    I’ve seen this book cited in a number of cases, but the only reviews I’ve seen are negative.
    My understanding is that Scalia & Garner are essentially cataloging various methods of statutory interpretation. In fact, the citations I have read have given me a new-found respect for Scalia as a jurist.

    If you do a bit of case research on the origins of common-law immunities, you’re going to run into some rather lengthy discussions of Coke and the various courts of England.
    I really don’t think any criticisms against Scalia on this count bear any merit.

    Likewise, the reviews where one particular manner of statutory interpretation is examined in depth as being something inherently insidious and indicative of the character of Justice Scalia are without merit. To describe each one without involvement in such considerations is the very point of the book (as I understand it).

    I’m sure it would be very handy to a legal professional. I would think it would also be of interest to the general public as a whole.
    But often people begin from conclusions where it is inappropriate.

  2. Tim,

    I’m very much not a scholar of U.S. jurisprudence, so take everything I say with a grain of salt (and remember I’m not making pronouncements, just throwing out some random thoughts).

    You’re final paragraph may very well be correct, but my initial reaction that paragraph is, “well, isn’t that convenient”. What I get from that is a message that ‘oh, all my critics are correct in their analysis… it’s just that times just happened to have changed sufficiently to make those critiques merit-less’.

    I think it’s dangerous for a country (or any other organization – political party, company, church, school, sports team, family, etc) to say “we’re more mature now, so we don’t have to worry about those things we used to have to worry about.

    What does this mean for the proper way to be a judge? I don’t really know. I’m not going to be of any help in such a discussion. It’s just something I wanted to point out.

    • Jonathan,

      I’m sympathetic to your point. If I was not clear, I’m an advocate of the natural law, especially the view advanced by Hadley Arkes. Yet I still find much merit in Justice Scalia’s point. Before a nation is planted thick with laws and we must rely on judges to come up with ex post facto rules, there is much uncertainty and insecurity — even if the judges base their rules and decisions in effective natural law reasoning. We should be thankful to have an established and mature republican government that has promulgated laws and precedents to engender predictability and security in human affairs, and we should hope that our judges generally constrain themselves to them.

      Because of those concerns, I believe that even advocates of the natural law such as myself should urge restraint. Very roughly stated, I would urge that only the gravest violation of the natural law — violations that threaten the very continuation of liberty under the rule of law (slavery comes to mind) — justify judicial decisions that lay waste to positive law.

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