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SEVEN - And Yet…A Good Word on Behalf of the Legal Positivists

Published online by Cambridge University Press:  05 June 2012

Hadley Arkes
Affiliation:
Amherst College, Massachusetts
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Summary

But then again…let me say a word on behalf of legal positivism. I say “then again,” because I have expended most of my slender arts as a writer over the last thirty years in making the case for natural rights and natural law. I have been part, that is, of a project, joined by some gifted writers in the academy, to restore the tradition of natural law, and work then against the current so dominant in our times. That current has been defined, of course, by moral relativism in forms now so familiar that most people are hardly even aware of them. Historians seem barely conscious of any vice of “historicism,” but they seem to fall easily into the assumption, for example, that the American Founders were men of their own age. The sentiments of the Declaration of Independence had stirred the souls of that age, and there is no gainsaying their deep political effect; and yet the historians understand, with a knowing wink, that the “self-evident” truths of the Declaration were merely the sentiments that summoned credence at the time. Almost no historian admits to believing, as Lincoln did, that the proposition “all men are created equal” was in fact, as the Founders thought, a self-evident or necessary truth, “applicable to all men and all times.” We find about us now, in the academy, students drawn almost entirely from families claiming to be Christian, Jewish, and Muslim, and yet most of these students are apparently persuaded, at the same time, that understandings of right and wrong must always be “relative” to the “culture” in which they are invented and sustained.

Type
Chapter
Information
Constitutional Illusions and Anchoring Truths
The Touchstone of the Natural Law
, pp. 225 - 253
Publisher: Cambridge University Press
Print publication year: 2010

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References

The Collected Works of Abraham Lincoln, ed. Basler, Roy P. (New Brunswick, N.J.: Rutgers University press, 1953), Vol. 4, pp. 262–71, at 269
Jaffa, Harry, Crisis of the House Divided (New York: Doubleday, 1959; University of Chicago Press, 1982), p. 377Google Scholar
Kant, , The Metaphysical Principles of Virtue, trans. Ellington, James (Indianapolis: Bobbs-Merrill, 1964; originally published in 1797), pp. 24–25; pp. 224–25Google Scholar
Casper, Gerhard, “Jones v. Mayer: Clio, Bemused and Confused Muse,” in Kurland, Philip B., ed., The Supreme Court Review 1968 (Chicago: University of Chicago Press, 1969), pp. 89ffGoogle Scholar
Arkes, , “The Problem of Kenneth Clark,” Commentary (November 1974), pp. 37–46Google Scholar
Cohen, Laurie P. and Maremont, Mark, “E-Mails Show Tyco's Lawyers Had Concerns,” Wall Street Journal (December 27, 2002), pp. C1, C5Google Scholar

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