Washington and Lee University School of Law Washington & Lee University School of Law Scholarly Commons Scholarly Articles Faculty Scholarship 2005 Grounding Normative Assertions: Arthur Leff's Still Irrefutable, But Incomplete, "Sez Who?" Critique Samuel W. Calhoun Washington and Lee University School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlufac Part of the Legal Ethics and Professional Responsibility Commons Recommended Citation Samuel W. Calhoun, Grounding Normative Assertions: Arthur Leff's Still Irrefutable, But Incomplete, "Sez Who?" Critique, 20 J. L. & Religion 31 (2004-2005). This Article is brought to you for free and open access by the Faculty Scholarship at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Scholarly Articles by an authorized administrator of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. +(,121/,1( Citation: 20 J. L. & Religion 31 2004-2005 Content downloaded/printed from HeinOnline (http://heinonline.org) Sun Oct 21 19:52:20 2012 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0748-0814 GROUNDING NORMATIVE ASSERTIONS: ARTHUR LEFF'S STILL IRREFUTABLE, BUT INCOMPLETE, "SEZ WHO?" CRITIQUE' Samuel W. Calhount INTRODUCTION Professor Derrick Bell's story, The Space Traders,' posits that extraterrestrial beings arrive in the United States to propose a Trade: they will provide the means to enable the country to pay its debts, protect its environment, and ensure its energy supply, all in exchange for only one thing-to take all African Americans back to the aliens' home star. The story then recounts a frenzied sixteen days of politics, protests, and legal maneuvering, resulting in the forced deportation to an unknown fate of twenty million black men, women, and children: arms now linked by slender chains, black people left the "Heads bowed, 2 New World as their forebears had arrived.", This Article will consider several issues suggested by Bell's story. If one assumes that some readers would approve and others would disapprove of how the African Americans were treated, what might one say about the differing views? Are they simply different in the same way that one person might vacation in San Francisco while another person chooses New York City? Or is it possible to say that one view is wrong? And if one view is said to be wrong, is the meaning that the * Copyright 2005 by Samuel W. Calhoun. t Professor of Law, Washington and Lee University School of Law. The generous (and long-suffering) assistance of the Frances Lewis Law Center, Washington and Lee University, is gratefully acknowledged. Thanks also to those who read earlier drafts and to those who helped me develop my thoughts on the relationship between morality and faith: Dorothy Brown, Paul Carter, David Caudill, Maureen Cavanaugh, Bill Geimer, Peter Hoadley, Steven Hobbs, Lyman Johnson, John Knox, Lash LaRue, Uncas McThenia, Brian Murchison, Colleen Murphy, Jim Phemister, Louise Teitz, Job Seese, Tom Shaffer, Betty Rae Stevick, Earl Stevick, Mark Trapp, Joe Ulrich, Brad Wendel, and several members of my family. I would also like to thank the participants in a 1997 Washington and Lee School of Law faculty workshop and the participants in a workshop at the 2002 Christian Scholars' Symposium. Special thanks are due to Mark Grunewald and Rick Kirgis, who have provided significant help to this project in its various permutations over many years. 1. Derrick Bell, Faces at the Bottom of the Well 158-194 (Basic Books 1992). 2. Id. at 194. HeinOnline -- 20 J. L. & Religion 31 2004-2005 JOURNAL OF LA W & RELIGION [Vol. XX view actually is wrong or merely that it is wrong in the opinion of the person speaking? And even if every single person agrees as to whether or not the Trade should have been made, does this show that the consensus view is actually right? Are there any circumstances under which one could conclude that what was done was right or wrong in an absolute sense? While this Article will consider anew the question of how one grounds normative assertions, its starting point is the work of the late Professor Arthur Leff of Yale.3 In several pieces written toward the latter half of his distinguished career, Leff examined a number of standard methods for grounding normative assertions.4 He believed that each failed to provide a solid foundation for moral judgments. None provided a satisfactory answer to what Leff called "'the grand sez who?"'-a universal taunt by which a skeptic may challenge the standing/competency of the speaker to make authoritative moral assessments.5 In fact, Leff argued, as a matter of logic, that no system of morals premised in mankind alone ever could withstand the taunt. His provocative conclusion was that the only unchallengeable response to 6 "'the grand sez who?"' is "God says." 3. Tragically, Arthur Leff died in 1982 at the age of 46. 4. The most famous of these articles is Arthur A. Leff, Unspeakable Ethics, UnnaturalLaw, 1979 Duke L.J. 1229 [hereinafter Leff, Unspeakable Ethics]. One of Leff's colleagues calls the piece "justly celebrated." Owen M. Fiss, Making Coffee and Other Duties of Citizenship, 91 Yale L.J. 224, 227 (1981). Professor Albert Alschuler says it is a "classic article." Albert W. Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes 197 n. 22 (U. Chi. Press 2000). Professor Phillip Johnson describes as "brilliant" the lecture at Duke that led to the article. Phillip E. Johnson, Nihilism and the End of Law, First Things 19, 20 (Mar. 1993). Interestingly, Leff's widow states that Leff was reluctant to write the Duke article, which "said what he knew about fundamental issues," because he feared that to do so was "presumptuous unless disciplined by an enormous amount of sheer scholarship." Susan Z. Leff, Some Notes About Art's Dictionary, 94 Yale L.J. 1850, 1851 (1985). The legal academy should be glad that Leff's humility did not prevent him from writing the piece, which "made a powerful impression upon a generation of legal scholars." Johnson, supra at 21. It is easy to empathize with one of Leff's colleagues, who lamented the "intellectual loss" suffered when Leff's untimely death deprived us of the scholarship that would have followed Unspeakable Ethics. Robert M. Cover, Arthur's Words, 94 Yale L.J. 1848, 1848 (1985). It should be noted that, despite what might be suggested by his widow's statement above, the Duke article in fact revisits issues that Leff earlier had already discussed in depth. See Arthur A. Leff, Economic Analysis of Law: Some Realism About Nominalism, 60 Va. L. Rev. 451 (1974) [hereinafter Leff, Realism About Nominalism]; Arthur A. Leff, Law and Technology: On Shoring Up a Void, 8 Ottawa L. Rev. 536 (1976) [hereinafter Leff, On Shoring Up a Void]; Arthur A. Leff, Memorandum, 29 Stan. L. Rev. 879 (1977) [hereinafter Leff, Memorandum] (reviewing Roberto M. Unger, Knowledge and Politics (1975)). Also see Edward A. Dauer & Arthur A. Leff, The Lawyer as Friend, 86 Yale L.J. 573 (1977) (brief mention of the subject). 5. Leff, Unspeakable Ethics, supra n. 4, at 1230. For the exact quote, consult infra text accompanying n. 20. 6. Id. at 1230-1232. See Leff, Memorandum, supra n. 4, at 887-888. For unknown reasons, Leff sometimes uses "sez" and other times uses "says." HeinOnline -- 20 J. L. & Religion 32 2004-2005 GROUNDING NORMATIVE ASSERTIONS In Part I, this Article will first summarize Leffts basic critique of how normative assertions typically are grounded. Next, the Article will demonstrate the critique's continued relevance and validity by evaluating three contemporary discussions of morality: (1) Judge Richard Posner's attack on what he refers to as "academic moralism," (2) Professor Edward Wilson's assertion that morality has a "biological basis," and (3) Professor Steven Pinker's attempt to distinguish between morality and our "innate human nature." Part II, while beginning with Leff's conclusion that God alone can be the source of moral absolutes, goes beyond where Leff was willing to go. Leffts recognition of God's indispensability was in the abstract only, as he did not discuss the "practical possibility of a this-world application" of a God-based moral system. This Article ponders the practical question, refuting some common objections to a God-premised morality, while acknowledging the existence of some genuine difficulties. I. HUMAN-BASED NORMATIVE ASSERTIONS ARE ULTIMATELY INDEFENSIBLE A. Leffts Critique A 1999 symposium on legal ethics had the provocative title, "Lawyer Collaboration with Systems of Evil."8 The symposium brochure stated that "a distinguished panel of law professors ... [would] examine a variety of instances, both historical and contemporary, in which lawyers may have collaborated with evil." 9 Among the episodes examined were the role of lawyers in administering "the modem death penalty," managing "the tobacco industry's smoking- and-health disinformation campaign," and defending slavery.10 While the part played by lawyers in each example clearly is an important inquiry, a more fundamental issue is suggested by the phrase "Systems of Evil" in the symposium's title. By labeling various events "evil," the symposium organizers revealed a belief that such a phenomenon as "evil" actually exists. This presumably would reassure Professor Robert Simon of Hamilton College.