Justice Scalia Meets T.E. Utley
Posted by on Mar 12, 2016
This week on Facebook I posted six abstracts taken from a 1968 paper by T. E. Utley with the title What Laws May Cure. Some Eighteen years later, in 1986, Justice Scalia was appointed to the Supreme Court of The United States. Both men held morality central to their tenet and were both pragmatic conservatives, but whereas the former was concerned with politics formulating the law, the latter was concerned with the law dispensing justice. Discovering Justice Scalia’s views on morality and the law seems an apt moment to reintroduce the views of T.E. Utley¹.
Laws may be capable of doing little good, but we have learnt that they are powerful engines of evil, of consequences which their authors never intended or foresaw but which press hardly and deeply into the lives of ordinary people. T. E. Utley – What Laws May Cure
As T.E. Utley reminded us, morals are not static and are invariably conflated with ethics, especially when the state passes laws that are ineffective in promoting standards of moral behaviour without coercion as means of enforcement. Justice Scalia touched on this confusion when he addresses the Cambridge Union and they would — probably — both concur with Christopher Lasch in saying that “The trouble with modern culture is that we have lost the shared social and legal boundaries that shame once policed”.
The nature of the society that T.E. Utley reflected upon in his paper, voiced opinions held by the public at large and across political divides. In our present society entrenched opinions are now propagated in the social media but these are not, necessarily, the opinions that a democratic society would enact in law. The tenor of the paper is as valid today as at the time it was written. We are now witness to progressive laws passed by parliament that purport to regulate society’s morality but which, instead, have a profound effect on its ethos — those abstract shared social and legal boundaries that shame once policed.
Sunday A New Examination Of Morals And The Law — By a curious convention of British politics, those ordinances which affect most intimately the life of the subject are least likely to have been authorised by any kind of popular mandate.
Monday The Conservative Dilemma — The notion that, if the function of the State is not precisely to make men good, then at least it is to establish the conditions in which they will be helped to be good and to present them constantly with a pattern of what constitutes good living, is far from wholly extinct.
Tuesday Liberty And Law — To an extent which is not generally realised, current controversy on the whole question of the relationship between legislation and morality is still dominated by the thinking of John Stuart Mill a nineteenth century liberal intellectual.
Wednesday Who Decides? — There are moral ends which it is perfectly proper to defend or promote by the use of legislative power, and some of them are of a kind which concern extremely intimate activities.
Thursday Issues Of Principle — The one fact which surely does emerge clearly is that legislation about morals, which so often raises passionate controversy, is peculiarly unsuitable for the attentions of either confirmed, professional ‘reactionaries’ or confirmed, undiscriminating ‘progressives’.
Friday Conclusion — It is part of the State’s business to promote morality. This can sometimes be done by enforcing morality. One of the most important tasks of the wise legislator in the field of morality is to do away with unnecessary restrictions which merely discredit authority
The video below is of a 30 minute address Justice Scalia gave at The Cambridge Union with the title Mullahs of the West — Judges as moral Arbiters. His remarks on a ruling by European Court of Human Rights at 23.00 minutes and his following analysis is interesting.
Author’s Note
¹I had never heard of T.E. Utley until some years ago when I became acquainted with his son on the My Telegraph (MyT) blog site. I have now been acquainted with Charles Utley, if somewhat ethereally, for some time and it was remarks made by Charles on MyT regarding his father that prompted me to get a copy of his father’s paper What Laws May Cure. Written in 1968 it may be seen as irrelevant today but I have tried to condense it into a form intended to show its relevance, which given the depth of T.E. Utley’s thoughts may have a limited success. I suspect T.E.Utley’s paper now lies forgotten in an archive and is now only of interest to old men like me who, in their dotage, contemplate on such thoughts.
