My name is Barry Arrington. I am an attorney in Denver, Colorado specializing in complex litigation and constitutional law. My passion is defending constitutional liberties, especially those guaranteed by the First Amendment.
I am also very interested in Darwinism’s connection to the law. How, you might ask, is a theory of biological origins connected to the law? Good question. I will answer it by recounting an email I sent not long ago to Joseph Bottum, the editor of First Things. I am a great fan of FT and think Mr. Bottum does a great job as editor, but recently he went seriously astray in a post on FT’s blog when he suggested we should deemphasize the debate over Darwinism because it distracts from more important issues like abortion. I responded to Mr. Bottum by suggesting that perhaps he had gotten his issue priorities exactly backwards, and if you will indulge me for a moment, I will explain why this is so.
It is not an overstatement to say that the modern era of law began with the publication in 1897 of “The Path of the Law” by Oliver Wendell Holmes, Jr. You can read Holmes’ article here. In this seminal work Holmes announced that it was time to jettison any notion that the law has anything to do with morality, because morality has no meaning. Holmes wrote, “For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law.” It is beyond the scope of this post to explore Holmes’ article in depth, but there is an excellent discussion by Phillip Johnson here.
The point is that with “The Path of the Law” Holmes had founded the school of “legal realism,” which gradually came to be the predominate theory of jurisprudence in the United States. “Legal realism” should more properly be called “legal nihilism,” because Holmes denied the existence of any objective “principles of ethics or admitted axioms” to guide judge’s rulings. In other words, the law is not based upon principles of justice that transcend time and place. The law is nothing more than what willful judges do, and the “rules” they use to justify their decision are tagged on after they have decided the case according to their personal preference. At its bottom legal realism is a denial of the objective existence of a foundation of moral norms upon which a structure of justice can be built.
Why would Holmes deny the objective existence of morality? This is where the influence of Darwin comes in. It is one of the darker secrets of our nation’s past that Holmes, perhaps the most venerated of all our Supreme Court justices, was a fanatical –I used that word advisedly – Darwinist who advocated eugenics and the killing of disable babies. In Buck v. Bell Holmes wrote ““It is better for all the world, if instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind . . . Three generations of imbeciles are enough.” As Phillip Johnson has written, Holmes was a “convinced Darwinist who profoundly understood the philosophical implications of Darwinism.”
“The Origin of Species” was published in 1859. By 1897, when Holmes wrote “The Path of the Law,” Darwinism had had become an unchallengeable scientific orthodoxy accepted as a matter of course by practically all intellectuals. Holmes thought he had no choice but to believe Darwinism and to accept uncritically the philosophical naturalism at the bottom of Darwin’s ideas, and his great contribution to American law was to reconcile the philosophy of law with the philosophy of naturalism. Truly Holmes ideas could be called “jurisprudential naturalism.”
Once they were unleashed from any duty to actually apply objective “rules of law,” judges soon found they could impose their political views on the rest of us under the guise of interpreting the United States Constitution. The federal judiciary’s long march through our laws, traditions and institutions began slowly in the 1930’s but rapidly gathered momentum until, in 1973 in the most stunning example of judicial willfulness in our nation’s history, the Supreme Court invalidated the abortion laws of all 50 states.
So you see legal realism was built step by step, precept by precept, upon a foundation of philosophical naturalism that in turn rests upon the triumph of Darwin for its acceptance. And upon this foundation was built a superstructure of judicial willfulness that resulted ultimately in Roe v. Wade. Each link in the causal chain is plain to see for anyone who takes the time to look. Therefore, Mr. Bottum erred when he suggested that the fight over Darwinism is a distraction from “more important” issues like abortion. Darwinism is at the root of the unlimited abortion license Mr. Bottum deplores.
This is why I am excited about ID – and honored to be invited to post on this site – because ID gives us hope for freedom. Holmes was tightly bound by the fetters of Darwinism. Tragically, he believed he was compelled to accept Darwin’s ideas and accommodate the law to those ideas. To me, the most thrilling thing about ID is that it shows us that while Darwinism may be true, it is not necessarily true. ID gives us hope that we can look forward to a day in this nation – and indeed the world – when our minds will have been finally wrested from Darwin’s tyrannical grasp. After 150 years of ascendancy, I hear the creaks and groans of an edifice on the verge of toppling, and all of our institutions – not least the law – will be better when it finally does.
UD News brings this Holmes quote to our attention: In commenting on a recently published book he had read, Holmes said, “[I] think morality a sort of higher politeness, that stands between us and the ultimate fact — force . . . Nor do I see how a believer in any kind of evolution can get a higher formula than organic fitness at the given moment” (Oliver Wendell Holmes, Jr. to Harold Laski, May 13, 1926, in Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916–1935, 2 vols., ed. Mark DeWolfe Howe [Cambridge: Harvard University Press, 1953], 2:837).
14 Replies to “Darwin’s Path of the Law”
A possible typo in the last paragraph: “…because ID gives up hope for freedom.” I assume you meant ‘us’ instead of ‘up’, but the word change definitely changes the meaning.
I’m not sure that I understand how ID would establish an objective existence of morality. I’ve heard similar statements as yours about naturalism and Darwinism, but haven’t gotten the connection. If ID only detects design and makes no claims about what the designer is, or even how the designer carried out his/her/its plan, how could adopting ID in place of a naturalistic description for the origin of life have any implications for morality?
Welcome to the club 🙂
Kipli wrote; “IÃ¢â‚¬â„¢m not sure that I understand how ID would establish an objective existence of morality. IÃ¢â‚¬â„¢ve heard similar statements as yours about naturalism and Darwinism, but havenÃ¢â‚¬â„¢t gotten the connection. If ID only detects design and makes no claims about what the designer is, or even how the designer carried out his/her/its plan, how could adopting ID in place of a naturalistic description for the origin of life have any implications for morality?”
Hmmm. On another thread, Twist wrote: “Anyway, while digging around the web trying to understand Professor DavisonÃ¢â‚¬â„¢s semi-meiosis theories, I found this little gem.
‘It is atheism versus theism pure and simple. I belong to the latter camp.’
Someone might want to drop him a note letting him know that Intelligent Design is a scientific theory and has no connection to religion.”
Sooo…do ID detractors expect ID to conform to the parameters of religion? Or not? I’m confused. Is the problem that ID poses as a religion when it’s actually not? Or that ID disguises itself as not a religion when actually it is?
Anyone have any light to shed on this?
Well certainly one theory favours theism more and the other favours atheism more, but neither theory is capable of reaching any conclusions about religion. If Professor Davison meant what he was saying then that’s fine, it’s his point of view. People here on the ID side are very flexible, we don’t need to tow every single person into the party line. Darwinism on the other hand, any sort of discordance with the infallible Darwinian philosophy is a big no no.
Welcome aboard Barry! What continues to baffle me is the fact that there are all these highly educated, technically competent, bright, perceptive, articulate people who insist on questioning Darwinism. Where did our educational system go wrong? 🙂
It will be interesting to watch the Darwinian edifice crumble in coming years. It’s a once-in-a-century opportunity to witness a scientific and philosophical revolution of this magnitude.
Lutepisc said: “SoooÃ¢â‚¬Â¦do ID detractors expect ID to conform to the parameters of religion? Or not? IÃ¢â‚¬â„¢m confused. Is the problem that ID poses as a religion when itÃ¢â‚¬â„¢s actually not? Or that ID disguises itself as not a religion when actually it is?”
There is a third choice: That ID is a scientific theory and thus doesn’t “pose as a religion” or “disguise itself as not religion”. ID has no need to do either.
Lutepisc said: Ã¢â‚¬Å“SoooÃ¢â‚¬Â¦do ID detractors expect ID to conform to the parameters of religion? Or not? IÃ¢â‚¬â„¢m confused. Is the problem that ID poses as a religion when itÃ¢â‚¬â„¢s actually not? Or that ID disguises itself as not a religion when actually it is?Ã¢â‚¬Â
ID has religious implications just as Darwinism has religious implications. Are you unable to distinguish between the theory and its implications? When Flew became convinced of the arguments of ID he didn’t become a Christian instead becoming what he described as akin to a deist. Deism saw the world as ordered by a supreme being and was full of morality and led to a lot of good in the world while Darwinism sees the world as “red in tooth and claw” and has “progressed” inexorably to things like eugenics.
Kipli : “IÃ¢â‚¬â„¢m not sure that I understand how ID would establish an objective existence of morality.”
People were designed to function in a certain way – there are things that fulfill that design and things that destroy (or at lest don’t fulfill) the design… i think it is just teleology … according to Darwinism things ‘progress’ by breaking/co-opting the current ‘design’ – that’s the history of life… two very different views of humans and their proper (or lack of proper) roles… if moral life was ID-ed there is a proper way for humans to act (according to design) if it evolved (the Darwinian way) it is just a ongoing process of destruction and adaptation… that’s the role i see ID playing in morals anyway…
Would we have laws if we didn’t have morals? Maybe a law that states- “You will not have morals”.
Without morals I believe the only laws we would have are those that govern nature.
With the design inference, ID, comes an inference of intent & purpose. With Darwinism and its related forms, the “purpose” is reduced to survival and intent is gone.
Agreeing with Jaspers- “People were designed to function in a certain way”- which I take if people understood there was purpose and intent to their being they would act accordingly…
Barry replies: Ã¢â‚¬Å“Would we have laws without morals?Ã¢â‚¬Â It depends on what you mean by Ã¢â‚¬Å“laws.Ã¢â‚¬Â If by Ã¢â‚¬Å“lawsÃ¢â‚¬Â you mean nothing more than regulations that are enforced by the coercive power of government, of course we can have laws without morals. Never forget that the holocaust was Ã¢â‚¬Å“legalÃ¢â‚¬Â in the sense that it did not violate the internal laws of Nazi Germany. If by Ã¢â‚¬Å“lawsÃ¢â‚¬Â you mean a system of justice, the answer is no, we cannot have laws without morals. Ã¢â‚¬Å“JusticeÃ¢â‚¬Â means giving to each his due. In other words it means giving to each person what he Ã¢â‚¬Å“oughtÃ¢â‚¬Â to receive. Ã¢â‚¬Å“OughtÃ¢â‚¬Â is meaningless without a moral reference point.
Ã¢â‚¬Å“Would we have laws without morals?Ã¢â‚¬Â
It depends on what you mean by Ã¢â‚¬Å“laws.Ã¢â‚¬Â If by Ã¢â‚¬Å“lawsÃ¢â‚¬Â you mean nothing more than regulations that are enforced by the coercive power of government, of course we can have laws without morals.
But that begs the question- can we have regulations and governments without morals?
Never forget that the holocaust was Ã¢â‚¬Å“legalÃ¢â‚¬Â in the sense that it did not violate the internal laws of Nazi Germany.
They just had different morals than we currently hold. To them what the Jews were doing to their economy was immoral. (to them) What the Jews stood for was immoral. IOW they made their laws based on their morality.
Some cultures say it is OK, lawfully and morally, to eat cats & dogs. Others say it is both illegal & immoral. Again it appears that laws and morality go hand-in-hand.
(Barry I am just throwing out thoughts and sort of playing the Devil’s Advocate)
Barry responds: Once again I quote WittgensteinÃ¢â‚¬â„¢s famous aphorism: Ã¢â‚¬Å“Philosophy is a battle against the bewitchment of our intelligence by means of language.Ã¢â‚¬Â Here we get tangled up by using the word Ã¢â‚¬Å“moralsÃ¢â‚¬Â to mean two different things. When I say justice depends upon the existence of objective morality, I use the word Ã¢â‚¬Å“moralityÃ¢â‚¬Â to mean a transcendent moral code that is binding at all times in all places and in all circumstances Ã¢â‚¬â€œ what J. Budziszewski called in his recent book Ã¢â‚¬Å“What We CanÃ¢â‚¬â„¢t Not Know.Ã¢â‚¬Â If that is the meaning of the word morality, it is literally quite meaningless for you to say the Nazis had a Ã¢â‚¬Å“different morality.Ã¢â‚¬Â It is like saying the Nazis had a red blueness.
If by morality you mean Ã¢â‚¬Å“certain personsÃ¢â‚¬â„¢ subjective opinion at a given time about right and wrong,Ã¢â‚¬Â you have proved my point for me. Subjective morality is an oxymoron. We will use the holocaust example again because it demonstrates the point so vividly. There are two and only two choices here. If a moral standard that transcends time and place exists, I am able to measure the holocaust against that standard and conclude Ã¢â‚¬â€œ in an absolute sense Ã¢â‚¬â€œ that it was evil. If an objective moral standard does not exist, all I can really say is that I do not Ã¢â‚¬Å“preferÃ¢â‚¬Â the holocaust. I say the holocaust was objectively evil even if the Nazis or the President of Iran (or everyone else in the world for that matter) mistakenly believe otherwise.
Excellent point, Barry. It is worthwhile to recognize that much of the modern political environment is simply an escalation of the “survival of the fittest” mentality. Rather than appealing to universal human rights (based on moral objectivism), there is a strong trend in socialist politics to base rights instead in group membership — special interest groups, quotas, pitting one “community” against another “community”. If you can’t appeal to a transcendent moral code, all that’s left is a power struggle, and thus coalition-building replaces statesmanship as a guiding force in politics and civics.
Again, this does not prove ID, but it does demonstrate that ideas have consequences, and it heightens our awareness that understanding is important.
I enjoyed your analysis of the Law and Darwinism.
Thank you. BA
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