Adjudication in the culture wars: A novel perspective from natural law theory

• Main Author: CHNG, Wei Yao, Kenny
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2019
• Subjects: Natural Law
• Online Access: https://ink.library.smu.edu.sg/sol_research/3107
• Institution: Singapore Management University

Public discourse around the world today is characterized by rancor and disagreement on a wide variety of issues. Debates over morally contentious issues such as abortion, same-sex marriage, transgender rights, capital punishment, embryonic research, and euthanasia, among others, take place over what appears to be an unbridgeable chasm. Indeed, the struggle over all these frontlines has been described as the “culture wars”. These issues will be termed “culture war” issues.The culture wars have spilled over into the realm of the law. Culture war cases are a frequent feature in case dockets around the world today. These cases pose considerable difficulties to judges. One may reply glibly that judges should simply apply the law and that the deep moral disagreement underlying these disputes should be of no matter. However, it is on such issues that extant positive law is often vague, conflicting, or undeveloped. Indeed, these are the paradigmatic “hard cases”.This paper aims to explore the proper approach toward such cases through a theoretical lens. It will be argued that possible theoretical solutions to this conundrum would generally fall into two main categories: theories which seek to resolve moral disagreements by supplying an overarching moral framework to provide the correct answers to moral disputes, and theories which eschew moral reasoning and prescribe neutral methods of restraint to guide judicial reasoning. Several theories, including utilitarianism, economic analysis, and Rawlsian political liberalism will be evaluated by the above-mentioned criteria, and will be found wanting. It will be argued that a theory drawing from a natural law foundation can be a fruitful solution. A unique vision of natural law theory that focuses on legitimating the methodology of judicial moral choices, rather than seeking to achieve correct resolution of a culture war issue, can provide an attractive vision of adjudication. This theory will be called discursive natural law theory, in contrast with substantive natural law theory – the prevailing approach that natural law theorists have taken to culture war issues. Drawing from the tradition of natural law theory, discursive natural law theory would affirm as a first principle that despite intractable metaphysical disagreement, there is a language of moral truths that can be reasonably affirmed by all citizens. The articulation of shared value commitments, framed in the language of the basic goods of natural law theory, would be the key imperative of discursive natural law theory. Adjudicative outcomes would be legitimate insofar as judges exercise moral reasoning within the framework of this theory. Conceptually, this would be a solution that melds characteristics of both categories of theories – it would be both non-dogmatic about the correct answer to moral disputes and non-agnostic about the role of moral reasoning in adjudication.