If only the authors had a better grasp of conservatism, they might have been more informative about Justice Scalia’s influence on our law and politics.
There is not very much written by Justice Antonin Scalia that has gone largely unnoticed. But thanks to Adam White (and this fine article of his), I recently read this obscure 1987 essay by the late Justice: “Teaching About the Law” in the Christian Legal Society Quarterly. As we are just over a month away from the beginning of the law school year, it is a propitious moment to share its ideas.The principal question Scalia addresses is this: what ought a law professor who was so inclined teach law students about the Christian attitude toward the secular law? But the answers Scalia offers are of interest because of what they say to, and how they challenge, both the prevailing progressive and libertarian pedagogical frameworks that respectively structure much of law teaching.
Scalia’s first answer is that Christians have a moral obligation to obey the secular law. Drawing from Paul’s Letter to the Romans, Scalia writes that “the first and most important Christian truth to be taught about the law” is that “those knaves and fools whom we voted against, and who succeeded in hoodwinking a majority of the electorate, will enact and promulgate laws and directives which, unless they contravene moral precepts, divine law enjoins us to obey.”
One feature of this answer fairly aligns with the libertarian view of law and politics: for the Christian, good government may be limited government, imperfect government, and perpetually monitored and checked government. But another feature of it is in some tension with the libertarian position: for good government is, in fact, good; so good that it has a moral claim to our obedience.
Second, and this time inspired by Paul’s First Letter to the Corinthians, Scalia writes that the Christian attitude toward law suits—and particularly the bringing of legal actions—ought to be one of something approaching shame. To bring a suit, and certainly to bring many of them, is a kind of characterological failure: a failure of “amity” and a failure of “accommodation.” “I hope you can convey to your students,” writes Scalia, “that a lawsuit…should be undertaken only as a last resort—and even then in sorrow.” The Christian ideal, indeed, is to suffer wrong rather than suing, and even if one fails in that ideal, “good Christians, just as they are slow to anger, should be slow to sue.”
Here the point is that litigation embitters; it engenders cynicism; it poisons the soul. Scalia immediately connects this point to a third—that “what is lawful is not always right.” It is crucial, Scalia writes, to maintain a separation between the legal and the moral. Collapsing that separation is especially easy, says Scalia, in the English-speaking world, where “right” refers both to legally permitted and morally correct. And it is especially dangerous in a society that is so very proud of its rights in the sense of its legal permissions.
But there is nothing inherently moral about lawfully exercising one’s freedom or one’s rights. Teachers of law ought to be particularly careful not to conflate freedom and justice. Again, this view differs in interesting ways from many progressive and libertarian understandings of rights. In both, the language and idea of rights holds a specially privileged place. In both, rights are the ultimate repositories of authority. In both, there is the temptation to think that if I am entitled to do something without penalty—if nobody may stop me from doing it—then it is also a morally correct thing for me to do.
In prior work, I have resisted the conflation of what one is legally entitled to do with what it is morally correct or justified or virtuous to do. But Scalia offers his own interesting example:
Our society is appropriately fond of the aphorism attributed to Voltaire, “I disagree with what you say, but I will fight to the death for your right to say it.” It is natural enough to assume that what one is willing to fight to the death for is a good thing; therefore, it must be “good” to exercise our First Amendment rights. Often, in fact, it is not good. What Voltaire and the rest of us are willing to fight and die for is not the desirability of saying some irresponsible and socially harmful thing, such as a wrongful destruction of someone’s reputation that is constitutionally protected because only irresponsibility and not “actual malice” can be shown. Rather, we are willing to fight and die for freedom to be irresponsible and even socially harmful in what we say, because the alternative would sweep away too much good speech along with the bad. But let us not celebrate libel. To the contrary, we should criticize and abhor it, even when celebrating the fact that we are free to engage in it.
Law intervenes when social virtues and social restraints collapse. Those collapses are nothing to celebrate; they are occasions for mourning. And the greater the lack of social virtue, the greater the absence of social freedom, as law is called upon to intervene with greater and greater frequency to compensate for a failing society.
Finally, and related to the previous points, Scalia notes that law is always “second-best.” By this, Scalia means that the making of a law to govern an additional social situation is no triumph, but instead “a concession to frailty.” Legal principles and rules will never bind human associations together in the way that shared commitment can. Worse than this, to import legal rules into human associations too avidly is likely to destroy those associations and what truly binds them. Law is, in some sense, corrupting of the greatest goods of human society and fellowship.
Quite an essay. Were I still teaching Professional Responsibility, I would certainly assign it. I may anyway.