The Jurisprudence of Humanity

Authors

• Tyler Rose Clemons

Abstract

(Excerpt)

It has become common for Supreme Court Justices—the most powerful legal actors in our society—to explain why “the law” requires them to facilitate, or at least tolerate, terrible human suffering. Such claims are wrong, not just morally but legally. More specifically, they expose the decisions of the Roberts Court as a based on a jurisprudence of nihilism, one that justifies human suffering through vague appeals to the rule of law. These appeals, in turn, thinly conceal a substantive political and moral project.

To support this claim, I proceed in five parts. Part I introduces Albert Camus’s account of nihilism as a logic that justifies human suffering in the name of a chosen, purportedly higher Good. Part II situates that logic within American legal theory through the Hart–Fuller debate, showing how the separation of lawfulness from morality enables lawfulness itself to be treated as a chosen Good. Part III argues that the decisions of the Roberts Court increasingly reflect this jurisprudence of nihilism, first by ignoring or minimizing the human consequences of the Court’s decisions and then by affirmatively embracing a substantive moral vision that justifies those consequences. Part IV contends that rejecting this jurisprudence requires rejecting lawfulness as an end in itself and restoring law to its proper role as a means to justice. Finally, Part V sketches an alternative: a jurisprudence of humanity grounded in the idea that the ultimate purpose of law is to facilitate human flourishing.