The purpose of this article is to establish a principled basis for restraint of judicial lawmaking. The principle is that all findings of fact, whether of legislative or adjudicative facts, must be based on evidence in the record of a case. This principle is grounded in moral philosophy. I will begin with a discussion of the relevant aspect of moral philosophy, then state and defend the principle, and finally apply it to a line of cases.

Professor Konvitz distinguishes between Homeric and Hebrew literary styles. In the Illiad and Odyssey, everything that Homer wants to say is put in the foreground and externalized. The events and relationships between the mortal characters and the gods are clearly explicated. In the Bible, on the other hand, only so much of the setting and relationships as is necessary is revealed. God is the unknowable, incomprehensible background to the action. God’s motives are seldom revealed and require explanation and interpretation. The (...) stories in the Bible certainly can be explained from the point of view of the senses, but to a man of faith they are the story of the working out of God’s will. Several examples are given to illustrate this. (shrink)

Professor Konvitz asserts that insofar as they believe there are limits to intelligence, to logic, and to the scientific method, Emerson and James agree. James, on the other hand, rejects the concept of an absolute deity, be it God or the Over-Soul, as irrational, since a perfect, omniscient governor of the universe presupposes a perfect world and does not explain evil or allow for human choice or history. For James, God is a superhuman person who is finite but calls for (...) humanity to cooperate in his purposes. If you agree with God’s purposes and follow the commandments, you can bring about God’s purposes. Although there are no guarantees, as long as there is the possibility of improving the world, life is justified. Professor Konvitz compares James’ view of God to the biblical view. Professor Konvitz’s last lecture on James and his remarks on conclusion of the semester are unavailable. (shrink)

As a philosopher, Professor Konvitz explains, James rejected that the scientific method was the only method by which to arrive at the truth. Advocates of religion, James argued, have a right to assert the moral and spiritual nature of the world because both views assume the rational nature of the universe. He rejects the claims of his time that religious beliefs are specious. But religions, just as science, must prove themselves.

Professor Konvitz explains the connection of ILR 308 to the present semester’s study. In 308, he explored the evolution of those American ideals inherent in the Constitution and the Bill of Rights and subsequently utilized and interpreted by the court decisions of the American judicial system, particularly the Supreme Court. Many of the values reflected in these fundamental documents, Professor Konvitz suggests, were not original with the founders of the Republic but were derived from much more ancient, abstract, and broader (...) principles inherent in Western civilization. Konvitz quotes Immanuel Kant: “precepts without concepts are empty; concepts without precepts are blind.” As the first semester explored the precepts that were underpinning of American constitutional law, the second semester would explore the broad Western intellectual tradition from which the Constitution and Bill of Rights, and other aspects of what we know as American ideals, were largely rooted. He offers several examples. (shrink)

In the Second Treatise on Government and A Letter Concerning Toleration, Locke spells out the hitherto only implied concept of human rights presumed by the concept of natural law. These include the right of property, which is derived from what is removed from the state of nature by the work of man’s body and his hands. To protect this property and to govern other aspects of human relationships and rights, civil society is established. Professor Konvitz explains the interaction of Marxist (...) thought with this labor theory of property. He also mentions the other inalienable rights that Locke identifies as life, property, religion, and the right to raise and educate a family. (shrink)

Locke’s views on religious toleration are a “tremendously important contribution” on this subject, which anticipated the First Amendment to the Constitution and subsequent Supreme Court decisions. Professor Konvitz argues that religious liberty is a prerequisite to all the liberties of the human spirit including freedom of speech, press, and assembly. He further asserts that, historically, revolts against oppressive governments often bring with the struggle for religious liberty. Locke’s basic concepts regarding religious freedom are explained. These include the right of individuals (...) to maintain their personal religious beliefs free from the interference and persecution of either an established ecclesiastical order or the state, the nature of churches as voluntary self-governing organizations, the importance of the separation of church and state, and the importance of religious tolerance for the religious opinions that differ from the norm. For Locke, religious freedom is not absolute. Intolerant sects that call for the dissolution of the state unless it accepts their religious viewpoint, that serve foreign governments, that advocate practices violating the laws of civil society, or that deny the existence of God should not be tolerated. (shrink)

Professor Konvitz’s introduction to Emerson has not been recorded here, and this lecture appears incomplete. For Emerson, Professor Konvitz asserts, man’s mind is prior to the natural world and that world is as man perceives it. Nature, Emerson tells us, appears chaotic until the human mind begins to classify it, to understand its laws, and to provide coherence. As man understands and experience expands, the world expands for him.

Professor Konvitz explores Emerson’s critique of history, its impact on human lives in the present, and its relation as a continuum in the evolution of man’s understanding of universal moral principles. Man makes his own history, asserts Emerson. Rather than being fixed and permanent, history evolves in response to man’s interest and selectivity. History is only that part of the past that is usable to us and the rest has no significance. Therefore, Emerson is critical of those whose lives are (...) governed by the past and suggests that it is necessary to live in the present, using the past only to enhance the experiences of the present. Professor Konvitz develops these themes by extensive quotations and examples. He then explores Emerson’s view that just as there are laws in the natural world or the physical realm, there are also laws that must work in the moral realm, that, when discovered, move mankind forward. (shrink)

To understand William James’s pluralism, suggests Professor Konvitz, one must understand the influence of Emerson’s view of evil. Emerson postulates that every evil is utilized in some way for good, and there is an inevitability of good winning out. James, Professor Konvitz argues, rebels against such optimism. For Emerson, the concept of evil contradicts his belief in the infinite capacity of mankind and his belief in the religious tradition that God the Creator creates only good. Konvitz then relates this view (...) of God to Emerson’s acceptance of the concept of the universal spiritual totality or the Over-Soul and explains why, in this spiritual oneness, there could be no room for actual evil. William James is introduced with a brief biographical sketch of his work as a physiologist, a psychologist, and finally a philosopher interested in religion. (shrink)

More rejects Stoic and Christian asceticism, Dr. Konvitz tells us, in favor of pleasure and pleasant experiences as a proper expression of natural reason so long as the exercise of personal pleasure does not hurt others or have unpleasant aftereffects. The denial of pleasure is only justified when it is done for the higher good of society. Such sacrifice of pleasure ultimately will be rewarded by God. More distinguishes between illusionary pleasures and the higher forms of intellectual and moral pleasures. (...) Professor Konvitz suggests that More’s views on pleasure constitute a new and extraordinary way of viewing the world. John Stuart Mill was influenced by More’s insights in the definition of utilitarian principles that Mill himself would enunciate in his own writings and in his discussion of human liberty. (shrink)

Professor Konvitz states that John Locke was one of the most influential political philosophers of the last two centuries. Locke’s writings were the intellectual basis for many of the ideas embodied in the American Declaration of Independence and Bill of Rights. Locke’s Second Treatise on Government and A Letter Concerning Toleration form the intellectual link between ancient, classical political thought and constitutionalism and modern democratic thought. More and Locke agree that man is created by God and has the laws of (...) nature to govern him. More takes man out of the state of nature and places him in a governed group with a civil order. Locke describes man in the state of nature as living according to reason without civil society. According to Thomas Hobbes, in Leviathan, man in a state of nature is in a state of war of all against all. Without government, Hobbes postulates, man is a beast. (shrink)

Locke saw man in the state of nature as governed by reason. In this state, all are equal and independent. No one should harm another. This conceptualization is what the Declaration of Independence speaks of as the “Laws of Nature and Nature’s God.” Professor Konvitz contrasts and compares More’s, Hobbes’, and Locke’s viewed of the state of nature.

For Locke, Professor Konvitz suggests, political sovereignty is dependent upon the existence of a social contract between the sovereign, the legislature, and the people who, through this contract, agree to be governed. It is the right of the governed, acting as a whole, to revolt against their government when it no longer protects their natural rights and to seek a new government that will act in accordance with these rights. It is further the right of individuals within such a society (...) to refuse to act in accordance with specific laws that offend their personal conscience, but they should be prepared to suffer consequences for violating such laws. In the latter concept, Locke, Professor Konvitz asserts, has anticipated the essential elements of the concept of civil disobedience. (shrink)

Alexander, in opposition to the Greek parochialism of his time, introduced the concept of world citizenship to his empire. Professor Konvitz explains that the concept that all humankind was to be deemed fellow citizens was revolutionary and was to change the Western world.

The importance of the Roman Emperor Marcus Aurelius and his Meditations in developing Stoic philosophy, religion, and a way of life are discussed. Understanding the true self, standing apart from the effect of society and the physical world—this is the essence of the Stoic philosophy. Man also has the responsibility of acting in a benign way to his neighbors regardless of how they respond. Stoic philosophy, notes Dr. Konvitz, dominated Western philosophic thought for five centuries until the rise of Christian (...) philosophy. (shrink)

For Stoics, the real man is the internal man. The real man must be indifferent to what is external to him. True Stoics, Professor Konvitz explains, acted in accordance with virtue and knowledge regardless of their personal circumstances and of the milieu in which they existed. Socrates is again the example.

The Stoics recognized that man is social by nature and extended the horizon of human obligations to all of humankind, where the earlier Greek philosophers as well as the Hebrews saw these obligations limited to their own societies. Stoic philosophy had a major impact on the early Church as it became a missionary religion spread by Hellenized Christians of Jewish origins, such as Stephen and Paul. The cosmopolitan and all-embracing way they presented Christ’s message was especially effective, Dr. Konvitz argues, (...) as they brought it to the Gentile world. Mankind had a common father and that father was God. The Stoic philosopher, Epictetus, with his emphasis on freedom of the will and the brotherhood of man, is quoted at length. (shrink)

The Stoics’ basic principles as explained by Dr. Konvitz are defined as including the obligations implied by the Stoic concept of self, the cosmopolitan idea of a single humanity, the existence of a common moral law, the necessity for moral courage in upholding the common moral law, and, a concept introduced by Epictetus, the dignity of all labor. This common law is the law to which all of humankind is subject, which is a product of reason and has its origin (...) in God. (shrink)

More postulates a mythical society based on the laws of nature and a theology that includes a belief in Divine Providence, the existence of an immortal soul in humans, and reward and punishment after death, which causes Utopians to live wisely and justly. More compares the fair arrangements in Utopia with societies in other nations in which the aristocracy and the wealthy contribute little to the general good but live splendidly. Laborers, farmhands, and coachmen, whose work is essential to society, (...) in contrast, live in wretchedness, fearing the extreme poverty of old age. The upper classes rule society and enact its laws that codify the misery of the poor. Even they, however, would be happier in Utopia. (shrink)

Responding to a student question, Professor Konvitz uses the incident of the Camden 28 assault on draft records to distinguish between revolution and civil disobedience. He then goes on to discuss Socrates’ understanding of religion, its basic aspects, and the nature of mysticism. In an effort to find true understanding of intellectual and moral concepts, mankind is reaching toward God. Socrates’ view of God was a monotheistic one, and he was consequently charged with heresy and subsequently condemned to death.

Professor Konvitz suggests that the plays of Sophocles and Aeschylus enhance humanity’s understanding of guilt, innocence, and Divine punishment. Oedipus Rex and Antigone, in particular, are analyzed in detail.

In its discussion of civil law versus higher law, Sophocles’ play expounds on the basic principles that define humanity and reflect human’s godly qualities.

Socrates believed that essences were discoverable by inductive reasoning. The Socratic Method emphasized understanding the essence of things and abstract concepts such as truth and beauty. His theory of inductive reasoning led to the postulating and testing of hypotheses. Inductive reasoning was a key to the scientific method and educational methods. The effect of knowledge cannot be the monopoly of any one class. Obedience to the dictates of the soul sometimes would come in conflict with civil law, which could lead (...) logically to civil disobedience. Socrates accepted that the consequence of knowingly transgressing civil law rightly was punishment. He accepted the right of society to establish laws and enforce them. He also believed in a higher law involving an individual’s right not to commit an unjust act himself nor act against his conscience. Such individuals, however, should be prepared to take the consequences of their acts if they defend civil law. In his own actions, which lead to his execution by the state, Socrates defined principles of civil disobedience that are still used in our times. Professor Konvitz explains these principles in depth. (shrink)

The evolution of the concepts of resurrection and immortality in Judaic-Christian thought are explored by Dr. Konvitz. There are hints in the Book of Daniel of these concepts, which begin to affect Pharisaical Jewish thinking and, later, are evinced in the New Testament—a likely consequence of the influence of Greek philosophy. The concept of resurrection is central to Christianity.

Professor Konvitz quotes the Hebrew and Christian Bibles as well as modern authorities to expound the concept that the self can only be fully developed in context of the rest of humanity rather than by selfish self-interest. One’s neighbor, in this view, is to be seen as one’s fellow human and not limited to those in our immediate vicinity. The parable of the Good Samaritan is explored at length.

God’s love is demonstrated in commandments such as the keeping of the Sabbath and the concepts of charity elucidated in the Bible. Such commandments, Professor Konvitz explains, help define our duties to our fellow beings, especially those less fortunate than ourselves, suggesting an outline of what constitutes human rights. Although man is given dominion over the Earth, he is also charged with exercising good stewardship over it.

Socrates, building on earlier Greek philosophic insights, made the analysis of concept of the soul central to his teaching. For Socrates, the immortal soul was the moral and intellectual center of humanity. It is the soul that grapples with the ultimate reality of being. The soul is capable of understanding eternal truths. This understanding must come through the application of inductive reasoning.

The business of the soul is to try to grapple with the central moral truths and how mankind must live the good life. Socratic concepts would ultimately also influence Jewish and Christian thinking about the immortality of the soul. The danger to society in the concept of the individualization and personalization of the soul is discussed. Socratic thinking becomes the basis for critical moral thinking. Socratic critical morality is rooted in self examination and a questioning discourse with others. Important knowledge (...) must be a personal achievement through self criticism. A search for truth is a search for self-knowledge. (shrink)

The concepts of biblical time and history were unique in the ancient world and were adopted by western civilization. In the Hebrew Bible, there is a straight line of movement from the story of creation, Adam, Abraham and the Covenant, Exodus to the concept of the Messiah. This linear history is continued in the New Testament in the story of Jesus as the Messiah, his life and death, and the concept of the second coming of the Messiah. For the Bible (...) as a whole, each event is unique; there is no repetition. Time is real and the story moves forward in time, Professor Konvitz argues. From their early philosophers and historians to the Stoics, Greek thinkers believed in the cyclical nature of time and history, with some arguing for reincarnation and others, prototypical social scientists, seeing repetition of patterns in human behavior. (shrink)

The Christian acceptance of linear time and history was challenged by contemporary Greek philosophers who held to the cyclical view. The problem that this view of history held for the Church was simply that if time and history were cyclical, the concept of free will was destroyed. For more than a thousand years, Dr. Konvitz explains, the linear view of time and history was subordinated to the influence of the Platonic and Aristotelian concepts of timeless reality. Only with the coming (...) of the modern age was there a return to the linear concept of time and history as the basis for secular thought in the West. Buddhism and Hinduism traditionally hold to the cyclical view of time and history. Indian philosophy and religious thought, like that of the ancient Hebrews, could not reconcile itself to the universal suffering of mankind and hit upon the concept of karma. Karma is a universal causality in which individuals are rewarded or punished for their deeds when the soul transmigrates and becomes reincarnated. This view of time and history, Dr. Konvitz suggests, resulted in a traditional acceptance of life as it is and in a lack of historical consciousness. In contrast Judaism, Christianity, and Islam accepted the linear view. Time motion and change were real, and man had only one chance to do good in the world. (shrink)

Our relation to God and God’s judgment is, for the man of faith, the realm of truth. Mere appearance is the realm of ignorance and falsehood. The Greek philosophers, Dr. Konvitz explains, also saw the distinction as being mitigated by reason. There is a difference between what the senses tell us and what the mind tells us, and this can only be arrived at by thought. The evolution of Greek philosophy on this subject is elucidated.