In the year 1945 AD, law was dead. It was dead in the same sense that God was dead: It had never existed. It had all been an illusion. Only gullible people and religious zealots believed in legal obligation, duties, rights, customs, and rules.
A half century before, in 1897, the great American jurist Oliver Wendell Holmes, Jr. had dissolved the illusion in a lecture titled, The Path of the Law. Holmes had insisted that to know the law one “must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct… in the vaguer sanctions of conscience.”
Viewing law from this external, scientific perspective, one can see that there really is no such thing as law. The Bad Man has no obligation to honor his promises, or to pay his taxes, or to refrain from stealing another’s property. He simply has a choice between either obeying the command of the sovereign or paying the consequences. If it is less costly to disobey the sovereign and pay the consequences then that is what he will do.
Holmes thus untrammeled the Bad Man from the bonds of law. His restraints dissolved, the Bad Man captured the most powerful institutions in American society and acted out the convictions of social Darwinism. Under the euphemism of “social hygiene,” he implemented programs of forced sterilization, abortion, and euthanasia. Our nation had earlier experimented with human beings as property. But this was at least equally unjust: an attack upon the inviolability of human life itself.
In 1927, Holmes, then an Associate Justice of the Supreme Court of the United States, ratified these eugenics programs in Buck v. Bell, a rigged legal challenge to the forced sterilization of a young woman named Carrie Buck. In upholding the program 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.” Holmes ended his opinion with the infamous rhetorical flourish, “Three generations of imbeciles are enough.”
News of these shameful assaults upon human dignity found their way to Germany, where the Bad Man turned eugenics into a national industry. Nazi atrocities shocked the world, and the world regretted the death of law. So in 1945, just 18 years after Holmes’ decision in Buck v. Bell, prominent lawyers tried to bring law back from the dead, both in practical action and in theoretical inquiry.
In practical action, Robert Jackson and Benjamin Kaplan went off to Nuremberg to prosecute Nazi officials for war crimes. On this side of the Atlantic, many (but not all) states quietly dismantled their eugenics programs and strengthened legal prohibitions against assisted suicide and euthanasia.
That same year, 1945, a lawyer was appointed to the faculty of Oxford University who would revitalize the study of law. He set to work on a book that would make it not only acceptable to believe in law but actually imperative. The lawyer was H.L.A. Hart; the book, published sixteen years later, was The Concept of Law.
Hart’s foundational insight was a mechanism that he called the internal point of view. Hart observed that one who wants really to understand law must look at law not only from the external perspective of the scientist who observes the actions of the Bad Man and their consequences, but also must view law from the internal point of view of the law-abiding person, who accepts and uses law as a guide to her own choice and action. The businessman performs his contract because he made a promise. The lawmaker votes against a eugenics bill because she has taken an oath to uphold and defend the Constitution.
Adopting the perspective of these people enables the scholar to view law as law, and therefore to think and act as if law is possible. Hart’s work thus founded a reinvigorated movement in Anglo-American jurisprudence. But Hart was not the first scholar to note the significant potential of the internal point of view. He was not even the first scholar at Oxford to do so. In 1945, when law was still dead—the same year that Hart began his career at Oxford and sixteen years before the publication of The Concept of Law—an essay appeared in the Coventry Evening Telegraph under the title, Meditation in a Toolshed. It read in part,
I was standing today in the dark toolshed. The sun was shining outside and through the crack at the top of the door there came a sunbeam. From where I stood that beam of light, with the specks of dust floating in it, was the most striking thing in the place. Everything else was almost pitch-black. … Then I moved, so that the beam fell on my eyes. Instantly the whole previous picture vanished. I saw no toolshed, and (above all) no beam. Instead I saw, framed in the irregular cranny at the top of the door, green leaves moving on the branches of a tree outside and beyond that, 90 odd million miles away, the sun. Looking along the beam, and looking at the beam are very different experiences.
The essayist perceived the important implications of this insight. Observing that “[y]ou get one experience of a thing when you look along it and another when you look at it,” he wondered, “Which is the ‘true’ or ‘valid’ experience?” He lamented that “for the last fifty years or so… [t]he people who look at things have had it all their own way; the people who look along things have simply been brow-beaten.”
It has even come to be taken for granted that the external account of a thing somehow refutes or “debunks” the account given from inside. “All these moral ideals which look so transcendental and beautiful from inside”, says the wiseacre, “are really only a mass of biological instincts and inherited taboos.” And no one plays the game the other way round by replying, “If you will only step inside, the things that look to you like instincts and taboos will suddenly reveal their real and transcendental nature.”
The essayist was C.S. Lewis.
Hart’s insight, which is really Lewis’ insight, has important implications for medical law today. Reports of the demise of the eugenics movement were greatly exaggerated. Assisted suicide is legal in some American states, and nonvoluntary euthanasia and infanticide are standard practices in European nations.
Other eugenic practices have also re-entered American jurisprudence; the Bad Man is once again on the move. In 2012 a state court in Massachusetts issued a decision that is evocative of Buck v. Bell, ordering a young woman to undergo a forced abortion and sterilization against her express wishes. After having an earlier abortion, the woman had suffered a “psychotic break,” becoming agitated about the abortion and lamenting that she had “killed her baby.” When she later became pregnant again, her parents got themselves appointed guardians and obtained a court order which the Massachusetts Appeals Court later described this way: “The judge ordered that Moe’s parents be appointed as co-guardians and that Moe could be ‘coaxed, bribed, or even enticed … by ruse’ into a hospital where she would be sedated and an abortion performed.” The Appeals Court reversed the sterilization order on procedural grounds but, astonishingly, remanded the case for further hearings on the evidentiary basis for the forced abortion order.
Why have eugenics returned? Why do some human beings today not enjoy the equal protection of the law? I suggest it is because we look at life from the wrong perspective. The inviolability-of-life principle, long a cornerstone of law and bioethics but now under serious threat, supposes that life is an intrinsically valuable good. Looking along a life from the internal point of view of the person living it, life, much like a beam of light through a keyhole, is transparent for the ends toward which it is directed, goals and commitments that supply life’s instrumental value. One can also step outside the beam to view life from the internal perspective of another human being, who perceives its intrinsic and unique beauty.
To see the full worth of each member of the human family one must view each life from both directions. At the beginning of life, the beam has not yet projected itself into space and time, and can thus elude observation. The corrective here is to look along the life of the newly existent being and to recognise the capacities for future, distinctly human, actions and experiences, which are already present in the very young human being. The tendency at the end of life is to defer to the internal point of view of the patient who, suffering from physical, mental, or emotional anguish, sees no point to it all. This person needs the external perspective of others, whose view is not obstructed by pain and depression. Looking at the patient one sees a human being with intrinsic worth. By considering the internal perspectives of both patients and those who encounter them, we might correct many misunderstandings about the important role that law and ethics play in protecting the equal dignity of all human beings.
This essay is adapted from a presentation delivered at a celebration of the life and works of C.S. Lewis on November 21, 2013, which was co-sponsored by the Auburn Montgomery Department of English and Philosophy and the Huntingdon College Department of Religion.