In Praise of Robert Bork on Law and CultureRobert P. George - 04/13/09
From the Harvard Journal of Law and Public Policy
Reprinted by permission of the author.
Part 3 of a symposium on the career of Judge Robert Bork and the publication of A Time to Speak. Part 1. Part 2.
When Slouching Toward Gomorrah appeared, it bore on its dust jacket a few words of mine praising the book and its distinguished author: “The ideological triumph of liberalism among American elites, far from bringing the individual and social enlightenment it promised, has produced unprecedented decay. The principal victims of this decay are the poorest and most vulnerable among us, those most in need of a healthy culture. Bork courageously and boldly states these truths. A judge as wise as Solomon has become a prophet as powerful as Isaiah.”
That is what I thought then, and I believe it even more firmly now. It was not that I agreed with everything that Judge Bork said in the book. I strongly dissented, for example, from Judge Bork’s attitude of suspicion toward the natural rights teaching and equality doctrine of the Declaration of Independence, though it must be said that even in the chapters of Slouching in which he articulates the grounds of his skepticism about the Declaration, I found characteristically Borkian flashes of insight and many important truths.
What seemed to me most prophetic about the book was its profound appreciation of the character- or soul-shaping role of culture and its deadly accurate description of, and warning about, the ways in which the triumph of liberal ideology among American elites was corroding public morality and damaging the interests of all of us, but especially the poorest and most vulnerable among us. This is our common interest in maintaining a social environment—a moral ecology, as I have elsewhere described it—that is more or less conducive to virtue and at least minimally inhospitable to what the great British jurist Patrick Devlin referred to as “the grosser forms of vice.”
I have in my own writings, both before Slouching and after, offered philosophical criticisms of what I regard as the illusion of moral neutrality that is the centerpiece of much liberal and libertarian legal and political theory, political theory of the sort that has been championed by the late John Rawls, for example, by Ronald Dworkin, and the late Robert Nozick. I’ve tried to illustrate the many ways in which beliefs, attitudes, and choices are shaped in any society—not just in ours—by the framework of understandings and expectations that, to a considerable extent, constitute for better or worse a society’s public morality and would do so even in the strict libertarian’s utopia.
I’ve sought to show that the acts of private parties, even the apparently private acts of private parties, can and often do have public consequences; indeed, sometimes very extensive and profound public consequences. It will come as no surprise, then, that I found Judge Bork’s refocusing of our attention on public morality to be valuable and even prophetic.
Of course, the next question, for those of us who see things as Judge Bork and I see them is, the hard one: “What do we do about it?”
Truth be told, in the period from roughly the middle 1960s to the publication of Slouching Toward Gomorrah in the mid-1990s there had been very little serious scholarly attention given to public morality and its decline. Concern about public morality seemed to disappear, at least from the scholarly literature, except as an item of ridicule. Even as public morality was quickly eroding, virtually no attention was paid to the question of what might be done to rebuild a decent moral ecology.