Souter's Thesis Uncovers Few Clues

Although it centers on a legal theory developed by one of America's most famous jurists, the senior thesis written by David H. Souter '61 offers precious little insight into the Supreme Court nominee's politics or judicial philosophy.

In the week since President Bush nominated Souter to succeed William J. Brennan on the high court, legal experts and journalists have been poring over Souter's writings to better understand what the 50-year-old judge thinks about pressing issues before the Court.

But Souter, who served on the New Hampshire Supreme Court until he was nominated and confirmed for the federal appeals bench nearly a year ago, mostly signed on to opinions written by other justices, leaving little in the way of a political paper trail.

Souter's senior thesis, submitted for honors at Harvard's Philosophy Department, would seem to be a more promising source of insight. The 48-page essay is titled "Holmes' Legal Position and the Criticism From a Current Position of Natural Law" is about legal theory and was written at a time when Souter did not expect anyone but his professors to agonize over it.

The promise, however, is deceptive. While Souter's thesis is about law, it is so abstract that it never once mentions a single case. And while Souter does stake out a few positions, he pointedly refuses to state his opinion on the largest and most significant question he raises.

Nonetheless, the thesis is telling in at least one respect--it strongly reflects the careful deliberation and organization that marks most of Souter's subsequent legal writing. During the course of the three-chapter paper,Souter orders his arguments almost as if writing amathematical proof, often pausing to repeat hisarguments before moving on.

In the thesis, Souter examines Holmes' theoryof legal positivism--a doctrine that holdsmorality and legality are not necessarilyentwined--and how it differs from theories ofnatural law.

Holmes' theory, as set in The Path ofLaw, holds that morality is not a sufficient,or even a necessary, condition for a law'sexistence. This, Souter explains, contradicts thetheory of natural law, which--through differentdefinitions of legality and morality that Holmesused--holds that laws are basically always moral.

To understand the debate, Souter examines keyphrases written by both sides, in effort to findboth consistencies and inconsistencies within eachtheory.

"Much of what I will say is an attempt atarticulating views which seem to me implied in[Holmes'] quoted statements, but which to myknowledge he never developed," Souter wrote.

Souter makes it clear from the outset that hewill not come down on either side of the argument,disqualifying himself from that task because he isnot a judicial expert.

"Since I am not a legal scholar, I cannot offera solution to the controversy," Souter wrote inthe introduction. "I have tried, rather, todescribe the alternatives which are open insetting what I believe to be the most importantpoint at issue."

As a result, Souter essentially says that boththeories are internally consistent, and decidesthat only future empirical scrutiny will tellwhich is more valid.

Souter's first chapter focuses on Holmes'conception of law. Souter says that Holmesbelieves laws are essentially prophecies of howfuture judges will interpret them. According toSouter, Holmes believes laws will serve as "guidesfor individual conduct of such a sort as to keepthe individual free from displeasing action of thecourts as they administer the law."

Souter argues that under such a definition, lawhas four major characteristics: wide promulgation,the need for explicit interpretation,non-retroactivity, and consistent enforcement.Since morality is not one of these, Souter argues,Holmes belief that legality and morality areseparate is internally consistent on a priorigrounds.

From there, Souter shifts gears and looks atHolmes' ethical theories. Souter says that forHolmes, a moral term such as good or bad meant nomore than the "functional efficiency of a law inbringing about a result which the crowd...doesdesire," much as one would use the terms todescribe a physical object such as a knife. Thus amoral law for Holmes, Souter says, is one whichfurthers the interest of a particular individual.

Souter uses this, too, to show that Holmes'theory is internally consistent. Holmes believes,Souter deduces, that the law must conform to thewants of the strongest in society in order tosucceed. Since in the real world these lucky turnof events for the strongest will not necessarilybe seen by all as favoring everyone's interests,Souter says, morality and legality again need haveno connection in Holmes' view.

In his second chapter, Souter turns thespotlight on critics of positivism, and assessesthe natural law doctrine to which they adhere. Byexamining the theory's prominent writings, Souterconcludes that these theorists unknowingly agreewith Holmes on the four basic characteristics oflaw.

Souter does criticize several natural lawtheorists. For instance, he contends that oneinterpretation of a natural law of morality--adefinition which says that a moral law is one"which advances man's true nature"--is too vague.

"The natural law writer already quoted admitsas much when he says that he will 'have to rest onthe assertion of a belief which he realizes mayseem naive," Souter wrote, defending hisskepticism.

But if Souter is critical of a few theorists,he says he recognizes that some other natural lawtheories do hold. Specifically, he says the theorythat a moral law is one for which a "numericalmajority" of the population feels "advances man'strue nature" is internally consistent and at leastproviding some testability.

At this point, Souter notes, the two theoriescontradict other, although on much narrowergrounds than other critics had thought. UnderHolmes' conception, a law need only further theinterests of the strongest group, not themajority. Natural law theorists, meanwhile,maintain that a law will necessarily cater to themajority.

Ultimately, Souter raises doubts about naturallaw theory. Near the end of his paper, he wonderswhether every existing law really passes the testof majority morality, as natural law would say.

Yet Souter keeps to his original promise. Heshies away from making any judgements, leavingthat task instead to the realm of empiricism.

And that job, Souter says in his conclusion, isnot an easy one. Souter anticipates that advocateson each side of the debate could easily amendtheir theories to make them legitimate.

"[W]ould the natural law thinkers simply acceptthe separation of law and morals? I think not...Ibelieve they would then substitute a concept oflaw which a priori included moral standards, or atleast reference to acceptance by the majority,"Souter wrote about the naturalists.

As for Holmes, "he would simply stress that thecoincidence of law with good law or with law asthe majority desires it, is merely incidental tothe fact that the majority now has the power tocompel recognition of its interests," Souterwrote