27 July 2022

The Legal Positivism of the Pro-Life Movement

WOW! A hard-hitting essay on what lies at the root of many of the problems in our society, a nominalist, legal positivist view of law.

From One Peter Five

By Liliana Johnson

St. Thomas Aquinas states in his Summa that there are four integral parts of any law. These are 1) accordance with reason, 2) benefit to the objective common good, and 3) promulgation 4) by a rightful authority who has legitimate care for the community in question. Without any one of these parts, a “law” is no law at all, and is really nothing more than a weightless demand. For example, if a government suddenly declared that murder was legal, that declaration would have no authority over any citizen. It would not really be a law, because it is not in accord with reason and is detrimental to the common good of the community. It could not alter the reality that murder is intrinsically wrong.

But why talk in hypotheticals? Roe v. Wade was just such a so-called “law:” it made the murder of babies “legal.” It does not meet the requirements of Aquinas’s definition (it is not in accord with reason and does not benefit the common good), and therefore does not have the authority of a law. But conservative Americans have sought to overturn of Roe v. Wade through the legislature for years. Why have we been appealing to the legislature to change something that has no real legal authority? It is because we have bought off on common misuse of the term “law.”

Since the problem I’m referring to is a misunderstanding of a definition, I’m going to pause here to define my terms. The problem is legal positivism, which is a form of nominalism that considers laws as deriving their validity simply from their having been legislated (without any regard for whether they ought to have been legislated).

This stands in stark contrast to the Catholic tradition, which recognizes that human laws are valid only insofar as they conform to the natural and divine laws. Rather than seeing laws as recognitions of the particularities of the natural law, legal positivists see human law as something that can be made or unmade arbitrarily, as if out of thin air. This view is culturally prevalent in the U.S. as is indicated by the fact that both liberals and conservatives, at least implicitly, recognize Roe v. Wade as having had the force of law.

Conservative Americans have been using their pro-life stance as an indicator of their righteousness for far too long. Finding the murder of innocent babies wrong doesn’t actually say much about your character other than that you’re possibly a decent, more-or-less sane human being. It’s become the conservative/Christian right-wing form of virtue signaling, masking the fact that we’re all legal positivists here in America, across both the Left and the Right. For abortion isn’t the central issue of the Roe v. Wade story. It’s a deadly consequence of the true problem at the heart of the baby-murdering debate: the false belief that laws shape reality rather than the other way around. This kind of legal positivism is the reason that Roe v. Wade could have ever been decided in the first place, and its inculcation among even pro-life Americans has left them defenseless against such “legislation.”

Case in point: across the country, conservatives have recently been celebrating the fact that Roe v. Wade was “overturned.” What they’re missing is that because there was no justification for Roe v. Wade’s legality in the first place, there was actually nothing there to be overturned—only the false belief that Roe v. Wade provided any real authorization of abortion.

This false belief, which has poisoned American minds, is what we, as citizens, have a responsibility to address. But if even pro-lifers give in to this nominalist trap, we have no recourse. How can we effectively reorder our country if we have abandoned the principle on which human law and order are founded; namely, the principle that human law is legitimate only insofar as it conforms to the objective natural law? Therefore, we shouldn’t have been seeking the overturn of Roe v. Wade through the legal process in the first place because it is not a law.

Rather, we should insist on the existence of objective reality and rehabilitate ourselves to utilizing our language to reflect that reality. We should not use words like “law” to refer to things that are not law. We must remind ourselves and others that words mean things, and, like laws, are not arbitrary.

To anyone who intends to comment on this article, let’s talk about the real issue going on in our country. Let’s talk about the abuse of language characteristic of nominalism that is wreaking havoc in our state.

Let’s not just talk about the fact that abortion is bad. As long as we’re all sane human beings here, I think that goes without saying. If readers think that this article minimizes that by focusing on nominalism as the real issue, that’s indicative of the very problem I’m referring to.

To be clear, I’m in no way displeased with the fact that any number of baby’s lives may be saved as a consequence of Dobbs. But it’s because of how horrendous and urgent the widespread presence of baby-murdering is in our country that I absolutely insist on getting to the heart of the issue instead of wasting time pointing out the obvious. How could we have gotten to this point without having radically disconnected from reality in the first place?

So let’s instead talk about the fact that because of such a disconnect—the nominalism of both liberals and conservatives—we are now defenseless against Biden’s totally arbitrary (and therefore illegal) executive order facilitating abortions post-Dobbs. It doesn’t take much to see that the order is an abuse of power—but as so-called pro-lifers and conservatives, we need the humility to see that we’ve enabled that abuse.

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