It is nonsense to suggest that Roman law classified a crime – by definition a public wrong – as an exclusively private injury or delict. Do you not see that is a contradiction in terms?

Theft was a delict, not a crime; vi raptorum bonorum was both a delict and a crime.

I am well aware that the customary law of England, like that of most of Northern Europe was based on no sound principles of jurisprudence whatsoever; in particular, it largely confounded the distinctions between private law and public law (not only criminal, but administrative.) It is only in comparatively recent times and under the influence of comparative jurisprudence that it is being rationalised, as was French Law in the period 1791 – 1804.

Of course, the criminal law is governed by normative principles: “Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law” and “Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law” and “The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law passed and promulgated before the commission of the offence.”

I would add my own: history may instruct and warn, but cannot guide or control; that is the task of reason.

Thomas Martin Cothran,

And Scalia’s complain is that the tradition is changing in spite of his best attempts to stop it. He certainly has a right to complain and to advocate on behalf of his views, but others have a right to cheer and also have a right to point out that, in contrast, other great legal traditions have long had different standards. It would be very strange if the only reference point we could use to evaluate American legal tradition were American legal tradition.

Now you appeal to the French civil law tradition, I suppose just to emphasize that there really is no cogency to be attained here.

Your argument is that crimes traditionally have been “public wrongs,” and therefore do not include legislation based on morality. When it is pointed out that the Anglo-American legal tradition has a long history of criminalizing what is perceived as immoral behavior, you appeal to Roman law, a distinct legal tradition. When it is pointed out that the Roman tradition classified most crimes under private law rather than public law as you originally claimed, you continue to dissemble, and bring in the the French civil law tradition.

So that we do not have to suffer hasty appeals to the many legal systems of the world other than the only one which is actually relevant, perhaps we should just recognize two points:

1. The American legal tradition–our legal tradition–has, since the inception of this country, criminalized behavior on moral grounds, including sexual conduct such as masturbation and sodomy. Such legislation, for good or ill, is a traditional feature of our legal system.

2. Criminal laws necessarily involve at least some level of normative judgment.

Well, the quaestiones perpetuae covered a pretty wide range of crime, especially the quaestio de vi and de falsi and so on. Three of them dealt with murder and the French division of Parricide, Assassinat and Meutre precisely reflects that division.

That the development of the modern criminal law derived from the quaestiones, through later imperial practice and then though the Reception of Roman law is beyond doubt.

In 1791, the three crimes of blasphemy, sodomy and witchcraft were abolished, without a debate, because they were perceived as “offences against religion.”

If one examines this list, one finds that most of them affect public order to some degree.

Fornication risked a child who might become “chargeable to the parish,” as the old writers have it. It was never a crime in England (except during the Commonwealth) or in Scotland either,but the mother and putative father of a bastard child were sent to the House of Correction, if they failed to give caution and surety to the Poor Law authorities that the child would not become a burden on the rates. Unless, that is, they were heritors, where their land was sufficient surety.

Bigamy is an attack on civil status.

Adultery risks the imposition of a spurious issue on the husband and his family. In France adultery was a crime for a married woman and her paramour until 1971, whereas a married man who committed adultery with a single woman committed no crime, although the moral guilt was the same. Only “notour adultery” was a crime in Scotland, as in living together &c

The prohibited degrees are are large topic, on which much ink has been spilt, especially around relationships of affinity.

I could go on.

In other words, they are more than ‘immoral and unacceptable,’ they all produce the kind of harm the legislator can properly take into account and over which he should be permitted a wide margin of appreciation.

Stevens did not use those words in Romer v. Evans but in his opinion in a later (2000) case involving the Boy Scouts, to characterize religious objections to homosexual conduct in general, so I regret giving the impression that he did.

From Nagel’s article, Stevens writing:

“’Like equally atavistic opinions about certain racial groups, these roots have been nourished by sectarian doctrine.’ . . . The passage is, as Michael Stokes Paulsen of the Minnesota Law School put it, a ‘slander, disparaging the good faith . . . of any religious worldview—such as those of [some] Christians, Jews, and Muslims—that adheres to traditional views of sexual morality.’

Reading the Nagel article it becomes clear that Stevens had been expressing such views about traditional morality since before Romer v. Evans.

Joe Sansonese,

Could you please document the Supreme Court’s alleged characterization of the Colorado State Legislature as “atavistic”? Here is a link to the Court’s decision in the case (Romer v Evans). The word atavistic is not to be found anywhere in the document. Where, then, could the Court have said such a thing?

I shouldn’t have to remind you that law in the United States arises from English common law, which considered as public offenses not only crimes against the state but also acts that were believed to damage the moral fabric of society, such as–to cite an obvious example–sodomy.

Further exacerbating the wild inaccuracy of your argument is the fact that, for the Romans, most (but not all) crimes were a matter of private law.

Your argument therefore is that “moral feelings [are neither] necessary or sufficient for the intervention of the criminal law,” because crimes are a traditionally a matter of “public wrong,” and then you appeal to Roman law, which classifies most (but not all) crimes as a matter of private law, while ignoring the Anglo-American legal tradition which has a long tradition of criminalizing private behavior on moral grounds. That argument doesn’t even need someone else to refute it.

The Court in effect found the Colorado legislature to be insufficiently enlightened, or, as they put it, to be “atavistic[!]” as if the justices were—or ever are—in a position to discern the truth of such an opinion. Their law degrees gave them licenses to practice law, not wisdom-mongering.

Most of the attacks on Scalia, it seems to me, do not sufficiently appreciate his deliberate use of the word “feelings” to characterize the moral judgments that the student objects to. He is asking, in effect, whence arises a “moral feeling”? But also, is it even necessary, not to mention proper, for a court to dismiss such “feelings” out of hand without so much as a nod to any actual positive law or settled legal practice? Is it not mischief and effrontery for members of the Court to then use what is surely no more than their disdain for community opinion to overturn a duly-enacted statute? Even in the case of slavery, Congress actually had to pass the Thirteenth Amendment before involuntary servitude could be eliminated as a matter of law rather than conquest. Moreover, the moral feelings of the ratifiers certainly played a very large part, arguably the largest, in their proposing the Amendment in the first place.

In the current epoch a lawmaking body no longer need trouble itself to pass statutes off its own bat. No, of course not. That would be savagely atavistic, and we can’t have that. It is sufficient nowadays that a legislature be prompted to “Get with the program for heaven’s sake!” by a Court having a decidedly low opinion of its legislators.

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable,’ … the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The court today reaches the opposite conclusion…. This effectively decrees the end of all morals legislation.

The issue seems to be that Scalia believes the majority has the right to say, “We believe such-and-such a behavior is immoral. Therefore, we are justified, based on that belief, to prohibit it by law.” What I think Michael PS is telling us is that the opinion of the majority may be that a certain behavior is morally wrong, but this is not sufficient to justify prohibiting it by legislation in the French legal traditions or in many other legal traditions, as well. Views similar to those of other legal traditions have gained significant ground in American legal tradition, and Scalia is speaking out against what some may consider the growing justice and maturity of American legal tradition, and others may consider a tragic loss of “traditional values.”