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So opens Arthur Leff’s attack on the need for God in ethics and Law.
believes that God does not exist even though he knows that the best
legal systems and goes to great lengths to try and establish the basis
of law without any one person having the ultimate “say so.” His
and be. We wanted to know that there is meaning and purpose in this
existence in which we are placed. That being said, we all, at one time
1
Arthur Leff, “Unspeakable Ethics, Unnatural Law,” The Duke Law Journal no.6 (December 1979): 1229.
or another, also wanted to decide for ourselves what we want to do
and be. We do not want to feel as if we are not in control of our own
destiny.
paragraph, “to discover what is right and good and to create it.” Leff
accurately points out that from the very beginning (i.e. Adam and Eve)
man has wanted to put himself in the place of God. But this is also the
great trap of ethics without God. When God is removed from the
good.
Let us examine to ways that Leff suggests that this can be done.
Leff calls the first “Descriptivism.” This is a theory of law says that
norms are just followed and that laws are a fact. However, it is not
came into existence. But what is needed is power to enforce the laws
their will upon the people has the ability to make law. Leff says this:
You can say if you wish that the law is “the command of
the sovereign,” but that is only to say that law is the result
2
Leff, 1234.
A descriptivist would say that any society has its own laws and those
sovereign then should be able to enforce the law as well as any other
long as someone is in control. Not only that but Leff goes on:
The sovereign can define any behavior that he/she deems fit. The
basis for law is the personal feelings of the “sovereign” and the ability
them the right to rule us and determine the laws to which the nation
will adhere. The republic is the sovereign and the police force is the
individual) in essence replaces God. Leff points out that the flaw of
this system is that a person or people who determine the “oughts” that
we must follow replace God. Another difficulty that he does not touch
upon is the enforcement of the law. Not every law is enforced equally.
For example, the speed limits on our nation’s roads are not always
absolute from the sovereign but rather rely on the “comfort level” of
the enforcement agency charged with forcing the public to follow the
law. So, not only are the laws whatever the sovereign wants them to
on police officer might not pull a driver over for exceeding the speed
limit by 10mph while another officer on the same stretch of road will
position is that “it ‘validates’ every legal system equally.” This has
power but different “oughts” to be followed, all the legal systems are
valid and none is absolute outside the power of the sovereign. This
God.
that?4
Leff continues, pointing the his view of the problem with this position:
irreverent, Leff correctly points out that there is none like God.
Personalism says that we are all God and therefore all alike.
soon as I come into contact with another person who has different
oughts from me. Neither of us can speak to the other’s laws that we
4
Leff, 1235.
5
Leff, 1235.
The personalist has one hell of a problem: who ought to
give way? Note that this is not the same question as who
first.6
problem.7
want to be “it.” Everyone has their own opinion but that does not
6
Leff, 1236.
7
Leff, 1235.
make their opinion “right” just because they speak it. What’s-right-for-
scrutiny.
forth the hypothesis that there are basically two kinds of people, those
that have meaning and contribute to society and those who are
and reasonable to murder (that is, remove from society) a person who
eventually confronts the two boys about what they have done.
Brandon says that he has only brought about what the professor had
taught in class. There was truly nothing wrong with what he did. The
David should live or die. In a world where everyone can live and
because everyone determines his or her own law. Anarchy rules the
day and chaos rules the night. No one can speak against murder if the
person with whom they are conversing believes that murder is “right”
and “good.” If there are no norms that rule the land then there is no
rule at all.
law. A person may change the “oughts” they in which they believe.
Again the result is no norms only what is convenient for now, for the
moment.
What are we left with? If we take God out of the picture for
around the planet determining what is right and good for themselves.
states:
placed.8
We can already see where he is going. “We the people,” are the
Supreme Court that alters how that court interprets the law and the
Lincoln passed the first income tax this nation had seen. This was
done to pay the rising cost of the war and to relieve some of the war
debt already built up from the conflict. This income tax was later
Constitution said that an income tax could not be levied by the Federal
prosecute World War II. This time the courts did not challenge the
8
Leff, 1245.
ability of the Executive and Legislative branches to levy such a tax.
govern. They could be other than they are, but they are
what they are, and that is that. There will be, as with all
theoretically unthreatening.9
these days. We have gone from a time when the Supreme Court could
spend months examining an issue to now where lawyers are only given
15-30 minutes to present their cases before the court because there
the Court in reality leans more on its political views rather than on the
human beings to make our laws and to make sure that those laws are
9
Leff, 1247.
good and right for everyone and to enforce them equally in all areas of
the country.
I do not know what drove Leff over the “cliff of despair” but it is clear
that a world without the Creator God was something that he did not
want to think about. This paper has examined some ethical systems
examining the issue, then a system without God is impossible. Leff too
paper he knows that God must exist. At the end, even though he is an
yes. When we throw off the “shackles” of the need for God, we are
then left to our own devices. If God is not in charge then it has to be
us. As Leff points out, this is a terrible model for justice. Instead of an
are left to judge each other and to try and enforce standards that,
‘We’re free of God’ and the despairing ‘Oh God, we’re free.11’”
Even Paul Kurtz’s article on faith apart from God says the
following:
differences peacefully.12
where did they get them? Leff would say that even though you have
these oughts, you really have no right to force them on others because
they can determine their own oughts. This is just a slightly shaded
11
Leff, 1233.
12
Paul Kurtz, “The Common Moral Decencies Don’t Depend on Faith,” Free Inquiry, Spring 1996, 5,7.
judge justly and absolutely. We also know we are accountable not just
for the letter of His law but also for the spirit of the law. This law is
this earth. Romans chapter 1 tells us that He has made this clear to us
Leff was so sure that God did not exist that even his conclusion
that there is evil in the world could not bring him to accept God’s
existence. The trap had swallowed him whole and even the realization
back. My heart goes out to him because Leff has since passed away.
He has fallen into the hands of the God who is the only being capable
Since I can only read what Arthur Leff wrote and has left behind,
I cannot truly understand what it was that drove him into the despair of
modernism. But, I also know from what I have read of his, in his heart
of hearts, he knew God exists. Even the first few pages of this article
need our approval to exist and will judge us, regardless of our belief in
Him, according to His laws. And why should we follow His law?
13
Leff, 1230.
Bibliography
Johnson, Phillip E. “Nihilism and the End of Law.” First Things, March
1993, 19-25.
Kurtz, Paul. “The Common Moral Decencies Don’t Depend on Faith,” Free Inquiry,
Spring 1996, 5,7.
Leff, Arthur. “Unspeakable Ethics, Unnatural Law,” The Duke Law Journal no.6
(December 1979): 1229-1249.