Chad Pecknold gave a brilliant a brilliant summary of De Koninck on the common good at a panel at a recent conference in Dallas (embedded above). The discussion that followed, moderated by Ryan Anderson, was also very good. Anderson’s questions were quite trenchant.
Pecknold’s Gegenüber was Daniel Burns who raised a question about the love of one’s country, including love of one’s regime (in the Straussian sense of politeia) as a prerequisite to effective political action. I think that Pecknold and Anderson answer it quite correctly: To love one’s politeia rightly is to love what is good in it and wish to improve it by correcting what is not good. This is also a point that Gladden Pappin made at a recent conference in Steubenville: following Aristotle, he argued that action taken to “preserve” a “regime” in the right way actually changes it for the better. And, as Pecknold argues so persuasively, to make something better you need to have the right standard. How such “preservation” might be done in the current American was indicated with much insight by Patrick Deneen in another panel at the same conference.
Turning back to the Pecknold-Burns panel: I think that last question was not quite understood (as often happens at the end of a panel). The questioner was asking what a Catholic judge on the Supreme Court should do if judging a case that hinged (say) on the question whether the word “person” in the 14th Amendment to the US Constitution applies to unborn children, if that Catholic judge has also come to the conclusion on “originalist” grounds that “person” did not originally have that meaning. The answers seemed to me to be addressing a different question.
What I would have answered would have been that that a judge should not in fact be an originalist. The judge should interpret the law in the light of more general principles of right—including the natural law, and our common experience of reality. This is, in fact, what most judges do. This is also what the first US Supreme justices did, as Fr. Charles McCoy has shown in a provocative paper. In other words, even if a judge thinks on historical-critical grounds that the “original public meaning” of the 14th Amendment did not include unborn children under the term “persons,” he would still interpret the word in the light of more general principles.
The meaning of words is not entirely arbitrary. Of course, it is arbitrary what sound signifies what thing. But “things” are not arbitrary. For example, it is arbitrary if we use the word “death” or the word “Tod” to signify destruction of a living thing. But what that destruction is is not arbitrary. Everyone knows what the death is, since it belongs to our common experience of the real world. There might of course be a dispute about whether death has taken place in such or such a case. But when the law sets up criteria for determining if someone is dead, they should be criteria for determining whether death as commonly understood is present or not. As I discussed in a recent essay on my grandfather’s jurisprudence, positive law has no authority to make up an entirely new referent for “death”.
The linguistic theories underlying “postmodernism” argued that words are indeed entirely arbitrary. It is not only arbitrary that this sound refers to this concept, but the concept itself is an arbitrary “cut” in the irrational flux of phenomena. Thus Ferdinand de Saussure writes:
Psychologically our thought—apart from its expression in words—is only a shapeless and indistinct mass. Philosophers and linguists have always agreed in recognizing that without the help of signs we would be unable to make a clear-cut, consistent distinction between two ideas. Without language, thought is a vague, uncharted nebula. There are no pre-existing ideas, and nothing is distinct before the appearance of language. (pp. 111-112)
He provides the following diagram:
Language, in other words, makes an arbitrary cut in the material of consciousness to produce a concept. The scope of a concept will then depend more on its difference from other concepts than on any external reality. Jacques Derrida and others used this conception of language to develop the idea that there is “nothing outside the text.” This means that the meaning of words is determined by a chain of relations to other words in a text, and other texts to which the original text is related, etc. This chain never comes to an end. There is no fixed point from which meaning could be determined, everything depends on everything else. As Vincent Clarke has argued, originalism’s positivist understanding of meaning leads to similar results.
But the older conception of jurisprudence, which goes back to the premodern legal systems on which modern systems are based, takes it for granted that words refer to real things in the world. Hence the word “person” should be interpreted in accord with what the reality of the person is with which we are in contact through our common experience.