The Senate debate over the nomination of Clarence Thomas for the U.S. Supreme Court no doubt will once more bring about more discussion of "natural law" -- a concept which Judge Thomas once fervently embraced, but which he hastily abandoned during his recent "confirmation conversion."
The press analysts and commentators, usually never at a loss for words, have expressed glassy-eyed mystification over the meaning of "natural law." In reality, the issue isn't complicated at all; what's complicated is confronting the dilemmas implicit in natural law. In the simplest terms, that means balancing duty against conscience when the two come into conflict.
An extraordinarily clear exploration of that conflict is contained in a remarkable short novel written near the end of the darkly reflective life of the great 19th century American writer, Herman Melville.
"Billy Budd" is the tale of a young English sailor who is impressed bTC into naval service in time of great peril. Billy is less a character than a caricature -- the symbol of angelic innocence. Aboard H.M.S. Indomitable, Billy encounters the ship's first mate, one John Claggart -- the symbol of satanic evil. In the presence of Capt. Edward Fairfax Vere, Claggart falsely accuses Billy of fomenting mutiny. Billy, unable to speak because of a stammering problem, responds to the monstrous lie by striking Claggart dead with one mighty blow.
The astounded Vere, who is aware of the natures of the two men, instantly recognizes the tragic irony of the situation in his unspoken comment: "Struck dead by an angel of God! And yet the angel must hang!" The Mutiny Act permits no other result.
The rest of Melville's brooding tale involves Vere's anguished justification of his legal duty to put to death a man he knows to be morally innocent. A military man of unflinching integrity, Vere sums up his dilemma in one central passage addressed to the drumhead court which is trying Billy:
"How can we adjudge to summary and shameful death a fellow creature innocent before God, and whom we feel to be so? . . . Well, I feel that, the full force of that. It is Nature. But do these buttons that we wear attest that our allegiance is to Nature? No, to the King."
So in the end Billy -- his final words being, "God bless Captain Vere" -- is hanged in what is clearly an allegorical crucifixion.
It is all but certain that Captain Vere was a fictional version of Melville's own father-in-law, Lemuel Shaw of the Massachusetts Supreme Court. Shaw, one of the foremost jurists of his time, was obliged to enforce the Fugitive Slave Law of 1850. Even though he personally hated slavery, he routinely sent piteous escaped slaves back to bondage, even death.
A judge confronted with such wrenching dilemmas has but four options: He may follow the law against his conscience. He may follow conscience and ignore the law. He may resign. Or he may lie, and interpret the law not as he knows it to be but in a way to force a conformity of law and morality.
It would be fascinating indeed to see how Judge Clarence Thomas might perform if he could be transported back to Judge Lemuel Shaw's time: Would Judge Thomas enforce the Fugitive Slave Act? Or would he seek to find some source of "natural law" to avoid his awful duty?
These are not idle questions for cracker-barrel parlor games at the Heritage Foundation, as Judge Thomas suggested in his Judiciary Committee testimony. They are questions which confront not only judges but all of society. After all, what we call law is only the crystallization of consensus in democratic societies.
Consider a common example: Anyone who goes about Baltimore these days can see, with dismaying frequency, what appears to be piles of trash on the street curbs. In reality, these piles represent the totality of earthly possessions of some miserable person who has just been evicted from home.
Now, who could possibly dispute the moral injustice of evicting a penniless old widow from her home? But the legal justice is another matter. And who shall we hold culpable for committing a moral injustice by the application of legal justice? The legislator who enacted a law which permits the eviction of anyone who fails to pay rent? The property owner who seeks a writ of eviction under that law? The judge who issues the writ of eviction? The sheriff's deputy who serves the writ? The moving man who physically throws the woman's belongings onto the street?
Make no mistake, Judge Thomas would confront many such questions as a member of the Supreme Court. In fact, all of us will. It's just that most of us aren't required to render a decision -- or at least an enforceable decision. But we can kibbitz -- and second-guess judges, as if we could do so much better.