Wednesday, April 30, 2014

Problems in Understanding & Adjudicating Issues Relating to Human Rights: Natural Law and Its Reliance on Moral Subjectivism

An examination of the history of human rights and the problems associated with adjudications involving those rights will show how the concept of human rights, as generally understood in American and western thought, is problematic, incoherent, and unable to consistently inform decisions by the American people or the judiciary. Moral sentiment, or what is seen as right and wrong subjectively, along with a human desire for logical reasons for a given ethic, serves as the teleological guide for deontological justification of human rights. Several changes in American law and the moral sentiment of American society over the course of the nation’s history can be used as broad examples of how moral sentiment affects interpretation of human rights and how they are applied; the ending of the institution of slavery and the doctrine of coverture are only two of those changes. The historical record also shows that it has been a particular moral sense that has determined what a right is and how it should be applied, and it is the combination of this moral sentiment and the position of power held by those with a given moral sentiment that determines the outcome. This paper will show that moral sentiment and power structures play the decisive roles in the adjudication of human rights issues.  It will also be shown that natural law theories, because of the necessary subjectivity in their interpretation, are doomed to failure as methods of attaining consistently logical and universal rulings on issues pertaining to rights of persons and property.
“The Enlightenment may have made its most lasting impact in the way we live and think today through its social history. Our institutions and laws, our conception of the state, and our political sensitivity all stem from Enlightenment ideas… Remarkably enough, at the center of these ideas stands the age-old concept of natural law. Much of the Enlightenment’s innovation in political theory may be traced to a change in the interpretation of that concept.” – Louis Dupre

Human rights: How do we know they exist? What are they? Where do they come from? Are they universal? Are they all legally protected in America? Are they all equally important and, if so, how should decisions be made when two or more rights come into conflict?   
Historical Overview
Pre-Enlightenment Era
The idea of human rights may have originated with Cyrus the Great in the sixth century BCE, and can be found on the Cyrus Cylinder. The western concept may also be argued to have originated with the Stoics and other philosophers in ancient Greece.  However, for an American and western understanding of rights, it is more practical to begin with the Charter of Liberties, signed in 1100 CE by King Henry I of England, and which was the forerunner to the Magna Carta of 1215 CE. The Charter of Liberties and the Magna Carta can be seen as small steps toward universalizing human rights, but this was a tangential and unintended consequence of a power struggle between monarchal sovereignty, nobility, and the church, with little concern for the lower class serfs (Danziger & Gillingham, 2004).  This beginning of incorporation of rights into law makes it seem as if there might be no such thing as inalienable rights, and the appeal to the idea is little more than a rhetorical ploy meant to equalize power between two competing groups.  In this early period it was a tactic used by the nobles to wrest some power from the authority of royals and the church so they would have more freedom of action without fear of reprisals.  This characterization of the usage of natural law as an appeal to moral sentiment can also be applied to the rhetoric of both the American and French revolutions.
Thomas Hobbes
Thomas Hobbes’ Leviathan was primarily an appeal to a particular political order for the purpose of peaceful coexistence.  Hobbes was profoundly affected by war and sought social peace by advocating for a supremely strong sovereign.  It is important to note that his solution was to grant the sovereign who adhered to natural law, as Hobbes saw it, absolute power over the subjects, unlike the nobles with the Magna Carta who sought to limit the powers of the sovereign through laws.  Both the Magna Carta and Leviathan show how intrinsically concepts of rights and liberty are linked to power structures.  He begins his argument with an empirical look at human nature and points out what he believes are natural laws that should not be violated.  From these natural laws he is able to posit natural liberties.  By framing his argument in the rhetoric of empiricism and science in an age of flourishing scientific discovery he gave credibility to the ideas he espoused.  One odd thing about Hobbes’ support of universal rights, liberties, and obligations, is that his entire argument rests on the premise that human nature, while simultaneously animalistic and rational, is based firmly on a determinist foundation, and is confirmed in the chapter, “Of Reason, and Science” (Hobbes & MacPherson,1985). The foundation of determinism, where everything is the result of cause and effect, leaves little room for autonomy of choice in thought, will, or action.  If this is the case, then Hobbes’ advocacy of individual rights and obligations as normative guides for action are on one side reliant on reasoned decisions and on the other constrained by the idea that people act strictly in accordance with prior material impingements on their senses in an unbroken causal chain of thoughts and behaviors beyond the control of the self.  However, according to the Stanford Encyclopedia of Philosophy (McKenna, 2009), by claiming that freedom consists in actions of the will without external impediments, Hobbes argues that the two (determinism and the exercise of one’s rights, or liberty) are not incompatible.  As a result, he is one of the more prominent philosophers who are part of the larger classical compatibilist school of philosophy.  Hobbes’ appeal to natural law, in order to develop his particular social contract theory, however, is prescient in that the appeal to natural law foundation leads him to support a type of legal positivism, or the idea that laws coming from the sovereign should be obeyed not because they comport with natural law (which they should) or morals, but because they come from a legitimate authority.  When, and if, those laws violate natural law and threaten the subjects, the subjects may rightfully enter into a state of nature/war with the sovereign.
John Locke
While Hobbes’ is arguably the first of a series of political philosophers to deal substantially with the idea of natural law and rights, it was John Locke whose writings became the underpinnings for the American and western beliefs pertaining to individual rights, their universality, and their inalienability.  Some of the ideas within the Declaration of Independence were taken almost verbatim from Locke’s writings (Becker, 1922).  Locke’s Second Treatise of Government has as one of its primary focuses the idea of property rights, and that any instituted government has an obligation to see that its citizens’ rights to their persons and property is protected as best as it may be able.  Rights relating to the person and property are a hallmark of America and western liberal democracies and have been instrumental in the success of capitalism as an economic system, even in the developing countries of the global south.  However, Locke’s musing on rights and responsibilities and how they have been interpreted and implemented have resulted in no small measure of confusion and contradiction within the American legal tradition, as well as within other liberal democracies. This is not to say that Locke is alone among the natural law theorists when it comes to problematic legal interpretations, but is merely an acknowledgment of his preeminent position in American political and legal theory. To track how his natural law theory of personal and property rights have led to the current problems in American jurisprudence it is important to examine what he wrote about property and rights.
Locke’s natural law theory on rights, the person, and property
No account of natural rights and liberties in America is complete without addressing John Locke’s Second Treatise of Government.  Like Hobbes, Locke addresses human nature and asserts that prior to government people had natural rights.  In Locke’s assumed state of nature, all men were in a “state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.”  In addition to this, men were in a state “of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another…creatures of the same species and rank…should also be equal one amongst another without subordination or subjection” (Locke, 1690). These freedoms and liberties present in a state of nature are similar to what is found in many other writings on natural law (Sigmund, 1971).  Locke believes that the state of nature has a law of nature which, by application of human reason, “obliges every one: and…teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions” (Locke, 1690)  Locke claims people have a duty of self preservation, and this duty, in combination with the obligations listed above, leads him to conclude that each person has a duty to the preservation of others within the bounds of their own capacity. 
Locke, like the other philosophers in the natural law tradition, does not explain how he is able to deduce a moral principle, or an “ought,” from a description of what he believes human nature “is.” Also problematic, especially when it comes to legal issues, is what he writes in the section Of Property.  There, operating from a position of equal rights and obligations, and in preparation for his theory of property ownership through the mixing of one’s labor, he asserts, “every man has a property in his own person: this no body has any right to but himself.”  However, in the next chapter, he claims, “Children, I confess, are not born in this full state of equality.”  It is arguable that at this point Locke sees that either the natural law he adheres to or the social structure he is contemporary with has forced his hand and requires him to list circumstances that result in natural, and right, inequality between persons.  Age, virtue, merit, “excellency of parts,” circumstances of birth, and necessary gratitude are listed as those things which may result in one being under the jurisdiction of another.  Children are automatically born into a state of subjection which is “like the swaddling clothes they art wrapt up in, and supported by, in the weakness of their infancy: age and reason as they grow up, loosen them, till at length they drop quite off, and leave a man at his own free disposal.”  Parents are obligated, in so far as they are able to, to see to the upbringing of their children so that their natural bonds of subjection fall away through increased capacity to reason and age (Locke, 1690).  Whether this is a way of supporting an ad hoc legal age of majority or deduced from natural law is arguable, though it is obvious that according to Locke, both age and a sufficient level of reason are required before one can truly be free from subjection in a state of nature.  While less obvious, it is also interesting to note that, according to Locke, children are “born” into rightful subjection to their parents, and he says nothing about rights or jurisdiction prior to their birth.  He also does not expound in any meaningful way on a child’s ownership of its own body in relation to parental jurisdiction over the child, except to say it is for the purpose of taking care of, teaching, and governing its behavior, and while under parental (or guardian) jurisdiction, the child “is not to have any will of his own to follow.”  But what happens if there is a dereliction of duty on the part of the parent or guardian?  Locke tells us about that by saying, “when he [parent or guardian] quits his care of them [children], he loses his power over them” (Locke, 1690). It would appear then, based on Locke’s previous assertions, that children who are not properly raised, or whose parents have abdicated their parental duty and obligation, are then the responsibility of all those who can spare the resources without risking their own self-preservation, under Locke’s view of natural law.  This joint responsibility would likely require, in order for there to be some semblance of order, a social structure or a form or governance to determine a child’s upbringing as well as the proper requisition and allocation of available resources through some system of fosterage, either with a foster parent or the government itself acting as a guardian.
Section 27 of the Treatise, quoted in part earlier to address ownership of one’s own body, continues on to address ownership of other things by saying:
The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others. (Locke, 1690)

In other words, when a person mixes their labor with something that is either owned in common with all other people, and perhaps with something that has no owner, the product of the mixing of labor becomes the property of the one who mixed their labor with it.  If a stream of water is owned by everyone in common, and a person draws water from the stream, the drawing of the set amount of water makes the drawn water the possession of the one who drew it from the stream.  While this may seem somewhat intuitive, it is imperative that one consider two things.  First, this is asserted as being only valid when there is no ownership or ownership is in common.  Second, there is a glaring problem in terms of justice if such a principle of property acquisition is applied, whether in a civil state or a state of nature.  Robert Nozick addresses this issue in his book Anarchy, State, and Utopia when he questions whether the mixing of labor rightfully justifies the acquisition of the resulting property or, instead, merely increases or decreases its value.  The example he provides asks what if one mixes something they own with something they don’t own.  It is obvious that the labor involves two things; one not owned prior to mixing, and one owned by the mixer.  He muses:
If I own a can of tomato juice and spill it in the sea so that its molecules (made radioactive, so I can check this) mingle evenly throughout the sea, do I thereby come to own the sea, or have I foolishly dissipated my tomato juice?  Perhaps the idea, instead, is that laboring on something improves it and makes it more valuable; and anyone is entitled to own a thing whose value he has created. (Nozick, 1974)

This is merely one example that shows how natural law theory is incomplete and lacks the necessary articulation for the clarity necessary for basic judgments relating to the world in general, and relationships between people and things, more specifically.  However, this did not keep the founding fathers of America from incorporating natural law into the fiber of American jurisprudence by way of the Declaration of Independence and the Constitution of the United States.
Natural Law’s Influence in America
            Common law requires courts to look at prior juridical decisions with respect that borders on reverence, as opposed to civil law, which generally requires a strict adherence to the meaning of black letter rules and regulations as written and allows for little in the way of judicial interpretation.  The common law tradition in America has its history in the English common law and thinkers like William Blackstone who relied strongly on natural law philosophy (Bader, 1994).  Blackstone, and lawyers like him, used what they believed to be an empirically objective method for deducing legal principles from the moral principles expounded upon by the natural law theorists who came before them and were contemporaneous with them.  According to D.J. Ibbetson, Regius Professor of Civil Law at the University of Cambridge, “It would not be too much of an exaggeration to say that the classical Common Law of the nineteenth and twentieth centuries was really a product of the eighteenth-century Natural Law tradition” (Ibbetson, 2001).
Not only did natural law philosophy form the basis for the beginnings of the American juridical tradition, it played an important part in laying the foundation for the American fight for independence.  Thomas Paine utilized the ideas of natural law and the rights deduced by the natural law philosophers to advocate for American sovereignty revolt against the British crown by publishing the well know Common Sense. This piece was in the form of a sermon, and couched the ideas of natural law into a rhetorical appeal to peoples’ emotions and their common sense.  Paine authored Rights of Man in 1792, early in the French revolution, and in it shows his belief that civil rights, or human rights, emanate from natural law. In it he wrote, “His natural rights are the foundation of all his civil rights,” and, “Natural rights are those which appertain to man in right of his existence. Of this kind are all the intellectual rights, or rights of the mind, and also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others” (Paine, 1792).  These principles from natural law were the foundations of those “inalienable rights” mentioned in the Declaration of Independence and the United States Constitution, and protected by American law.  Thomas Jefferson was accused by John Adams of using these, at the time, common ideas of the Enlightenment Era and responded by saying his essential task was,
Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms do plain and firm as to command their assent…All its authority rests then on the harmonizing of sentiments of the day, whether expressed in conversations, in letters, printed essays, or the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc. (Becker, 1922)

Jefferson’s admission that he borrowed from the natural law theorists of the enlightenment era for use in the country’s founding documents is direct evidence that the belief Americans currently have regarding rights, inalienable or otherwise, can be traced back to the natural law theorists which had preceded the founding of America.  Between Jefferson’s usage of natural law in what would become core legal documents in American jurisprudence, and Paine’s rhetorical usage to rouse the masses to passionate resistance during the American Revolution, over the past two-hundred plus years, many Americans have accepted, uncritically in many cases, the belief that natural law theory is not only right, but undeniably factual in that there are inalienable rights possessed by everyone.    
Natural Law’s Global Influence
One of the most thorough listings of human rights can be found in the United Nations’ Universal Declaration of Human Rights (UDHR). The language of the document allows for an extremely liberal interpretation of the rights, but because it applies to all signatories there are ways for individual nations to substantially narrow the scope of the rights delineated in the Declaration. Article 29 states, in part, “…everyone shall be subject…to such limitations as are determined by law…meeting the just requirements of morality, public order and the general welfare in a democratic society.” What this means is that each nation may limit these rights as far as they wish as long as doing so is required by the morality, general welfare, or need for public order within the society.  Depending on whether or not it is required for said purposes is the bailiwick of the legitimate powers within each state.  The United Nations (UN) does not have executive veto power, legislative policy-making authority, or the right of judicial review within any of its member states.  For the UN to have such power would require the state signatories to have relinquished some measure of their sovereignty. 
The UDHR was praised by many nations for outlining basic human rights, and even at the beginning saw 48 of 56 nations voting in favor of the Declaration, with the other eight nations abstaining, not voting against it. However, there were, and still are, several detractors, and some nations have refused to ratify it, claiming the basis for the rights denoted is grounded in a western, Judeo-Christian ethic, and as such are incompatible with their culture and traditions. While there are arguments for and against these human rights from natural law being universal, the central issue seems to be whether or not they can be deduced from either some set of natural laws or human nature itself. A comparison English and American rights, where a look at which rights are protected and what the limits are on those rights that are protected is made, will likely show that whatever may have been deduced originally, the current application of laws is different enough to call into question the idea there was any meaningful application of deductive logic in the first place.  Just how many basic human rights there are varies depending on how they are conceptualized and categorized. However, in Studying Human Rights, Todd Landman identifies fifty-eight distinctly different rights (Landman, 2006).     
Slavery, Children’s Rights, and Women’s Rights

            There are at least three areas in American history where natural law, or its interpretation in the legal sphere, has failed.  In discussing the potential shortfalls or failures of natural law theory to provide a consistent understanding of rights and make judgments on issues in which they are involved, slavery, children’s rights, and the principle of coverture in American law are worth examination.  Slavery has been a thorn in the side of many natural law philosophers.  John Locke was instrumental in drafting the Carolina Constitution.  Though his draft was not ratified, it included an explicit acceptance of slavery of black Africans which would mean that either his own theory of natural law classified them as non-humans, or for some other reason unworthy of those rights stemming from natural law.  Even Thomas Jefferson, writer of the Declaration of Independence is commonly known to have been a slave-holder.  While Jefferson may have believed slavery wrong, he did not find it so reprehensible, morally, as to not own slaves himself.  American law, while different for different states at different time, sanctioned the ownership of other people for nearly 100 years after winning its independence from Britain.  It was not until the late 20th century that it became legal for African-Americans to marry white Euro-Americans.
How could natural law have failed so egregiously for so long?  Essentialism is how.  By applying a particular governing essence to the black Africans, the white, male, patriarchs who held the reins of power were able to de-humanize them enough so that rights, at least full rights, could be denied to them.  It is important to note that while dehumanization, or the general devaluing, of a group of people can lead to injustices being perpetrated against the groups dehumanized or devalued, the rationalization used to justify this is based on how the group in power chooses to weigh the merits of characteristics they possess in relation to the characteristics of the group suffering from the injustices done by the more valued group.  Essentialism is a belief that certain groups of people are inherently (essentially) more worthy of dignity and respect, and more capable of reason, wisdom, and thus are rightfully above other people.  Characteristics seen as inherently feminine, for example, might have been seen as depreciating the value of women when compared to men, and being black might have led to conclusions that one was more aggressive, wanton, and unreasonable than a white person.  It is these beliefs about what is essential to a person’s character and talents that, arguably, lead to any dehumanizing treatment.
            Children were the same way, are as children are still a sticking point with natural law and rights.  Considering children as human beings with inalienable rights, arguably, creates as many problems as it solves when questions of legal equity are involved.  For example, children are the responsibility of their parents, who are charged with the obligations of seeing to their basic needs, including a large portion of their education.  Yet, when it comes to questions of health and religion, parents are allowed to deny their children potentially life-saving vaccinations and other medical treatment, where many outsiders would see such treatment as at least bordering on abuse.  While the courts have ruled, in some jurisdictions, that parents are not allowed to martyr their children in the name of religion by denying them medical treatment such as blood transfusions or surgery, the argument has not made it to the Supreme Court of the United States such that a ruling would eliminate this type of question from ever being in dispute in a court of law.  Rights of parenthood are implied in the right to marry and start a family.  What is lacking is a definitive legal understanding of the full extent of the rights of the child in comparison to the full extent of the legal obligations of the parent or guardian.  Children did not have full legal recognition in America 200 years ago, and the rights they have now are due in no small part to an animal rights advocate in New York who decided to fight for the rights of an abused child, Mary Ellen McCormack, almost 100 years after America had fought for and won its independence (Markel, 2009), and judging by the apparent need for court appointed special advocates and guardian ad litems (attorneys appointed to represent children in cases of abuse and neglect) in juvenile courts around the country, a certain level of abuse is still present and allowed in many places that permit corporal punishment and where someone has to judge whether a line has been crossed from what is acceptable as physical punishment and what is not acceptable.  Again, the problem here can be boiled down to a type of essentialism, where the essence of children and the essence of the parent-child relationship is seen as naturally being of a particular, universal condition.  The result here, as in the previous example, was a failure to see a person as being worthy of the full rights that were seen as justifiably inalienable for the white male adult.    
The history of women’s rights is similar to the history of children’s rights in America.  For over 100 years, women, specifically married women, were seen as extensions of their husbands through the legal principle of coverture.  The women’s rights movement could be said to have started when Susan B. Anthony started the National Woman Suffrage Association in 1869 with the specific goal of securing for women the right to vote.  That it took more than 100 years from the beginning of the women’s suffrage movement until married women no longer had to legally change their name to that of their husband’s to be permitted to vote in some places shows how natural law theory and essentialism were combined to justify denying women rights that men had historically enjoyed.  This is another example of natural law’s failure to inform the legal system, specifically, and what are now accepted social notions of justice, generally.  According to family law scholar Elizabeth Emens,
Custom became law by a series of cases in the late nineteenth and early-twentieth century.  These cases built dicta upon dicta until many states had plainly declared in case law or by statute that married women’s ability to engage legally in certain activities – such as driving or voting – was dependent on her bearing her husband’s name. This legal regime largely continued until the 1970s, when a series of cases established the right of women to continue to bear their birth names after marriage. Courts generally avoided constitutional questions by reasoning that their decisions merely resurrected the proper interpretation of the common law. (Emens, 2007)

Again, the problem with natural law boils down to one of essentialism.  There is something about men that make them more worthy of the social and legal rights that are to be protected by law in a civil society than are women.  The idea of natural law theory as a moral high ground to guarantee equal rights seems to have failed in at least the three cases discussed; slavery, children, and women.  As large as these failures were, according to a modern understanding of morality, it is likely there are even more failures of natural law to inform judgments in equity and law, both large and small.
Kant’s Defense of Natural Law and Reason
            A strong argument in natural law theory’s defense, even with the aforementioned historic failures, comes from Immanuel Kant, whose position would likely be that the failure was not the fault of natural law, but was the result of man’s limited capacity to reason.  Human reason, affected by tradition, social customs, and the attendant biases they engender has led to a prejudicial understanding of natural law and human nature, and it is human understanding of the natural law that failed.  Mark Timmons, in Conduct and Character: Readings in Moral Theory, has given a basic account of Kant’s philosophy of reason and nature.  According to Timmons, Kant’s position consists of the ideas that human nature functions within the bounds of natural laws, that rational creatures or beings are the only beings capable of moral action, and the natural autonomy inherent in rationality is the link between reason, nature, will, and moral action from duty, universalized.  Kant formulated in his Groundwork of the Metaphysics of Morals what is called the categorical imperative which has three forms.  Timmons quotes from the Kant’s Groundwork that the first form is, “Act only on that maxim whereby thou canst at the same time will that it should become a universal law.”  The second iteration is, “Act as if the maxim of thy action were to become by thy will a universal law of nature.”  The third is, “So act as to treat humanity, whether in thine own person or in that of any other, in every case as an end withal, never as a means only…” (Timmons, 2012)
Kant’s position relies on an understanding that perfect reason is divine and only possessed by divine beings, while humans, like all other beings are imperfectly rational, and any failure to deduce one’s duty and act according to perfect reason and morality is a failure of human capacity and reasoning, not reason itself.  Kant also makes the claim that man’s purpose should be to be, in all ways, moral, such a purpose is a natural law, and is accomplished by acting without inclinations from emotions or desires, and if all rational beings acted in this way a “Kingdom of Ends” would be the result.  Such a “kingdom” exists when every rational being knows and adheres to reason, resulting in perfect morality and human flourishing in a state of peace and harmony (Timmons, 2012).
Kant appeals, in part, to natural law and human nature to justify his position.  However, he does not show how his assertions of what is become moral imperatives, categorical or otherwise, in any practical way.  Furthermore, the lack of instruction on how to apply his categorical imperative in disputes that arise in nature and between people, provide little more than metaphysical fodder for the brain, and fail to provide the guidance necessary for the consistent resolution of disputes that will be present in any society that is not his “Kingdom of Ends.”  In his defense, though, he did acknowledge this implicitly by his characterization of humans as beings who reason imperfectly.
A Solution from Diversity of Experience & Empathy: Justice Sotomayor
            Sonia Sotomayor delivered a speech on the role of identity in adjudication in 2001, which reprinted in the New York Times in 2009.  The speech focused on minority representation on the bench, and asserted that as such representation increases the result will be a noticeable change in how cases are judged.  The crux of her speech was that personal experiences, specifically those of minority groups, have a profound effect on how minorities, regardless of their group, perceive the various issues dealt with in the cases they hear (Sotomayor, 2001, 2009).  In this speech, Justice Sotomayor referenced this quote by Justice Sandra Day O’Connor; “…a wise old man and wise old woman will reach the same conclusion in deciding cases.”  Justice Sotomayor rebutted this statement by saying, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”  The rebuttal resulted in her almost not being confirmed to the Supreme Court, and she recanted her statement in the course of the confirmation hearings, even though here rebuttal was qualified by noting that not only are there variations between groups, there is a wide variety within groups.  She used an example of African-American Justice Clarence Thomas, a well known conservative, to show the extent of those in-group variations.
            Linda Martin Alcoff explains, in her article Sotomayor’s Reasoning, that Sotomayor’s critics were operating from the position that justice, to be truly just, must be fully objective and deducible from universally accepted principles.  Any subjectivity based on identity experience contaminates justice and is wrong, according to Justice Sotomayor’s detractors.  However, Alcoff shows that perspectives, formed from experiences in both time and location, which she calls a “hermeneutic horizon,” indelibly affect a person’s belief system (Alcoff, 2010).  If Alcoff is correct, her argument would seem to cripple the idea of an objective, unsullied justice.
            This concern was addressed in a 2013 paper, Unavoidable Conclusions: Reasoning & the Role of Identity, by the author of this paper, where he discusses the significance of Justice Sotomayor’s position and Alcoff’s analysis in an argument for justice through diversity and empathy, which have the inescapable result of shaping moral sentiment within groups.
By pointing out the various changes in law resulting from the women’s suffrage movement and the civil rights movement, she shows that the justices who had opposed these changes over hundreds of years did not have a monopoly on the meaning of justice.  This signifies that, generally, when it comes to questions of justice, regardless of their belief in justice and their goal of seeing that justice is served, old white men in robes and wigs were either wrong in their interpretation or that justice itself changes, and not just people’s understanding of what is just and unjust.  Providing, for the sake of the critics, that justice is an ideal that does not change, it becomes necessary to explore how the understanding of justice has changed, arguably for the better.
As Sotomayor pointed out in her speech, the most profound changes to how justice is understood by society have taken place in the legal system and were spearheaded by minorities.  This indicates that there is a possibility that the broader the experiences and the more empathetic one is to those who have experienced what a judge has not experienced, the closer the system gets to realizing and incorporating “true justice”.  This tactic would require the critics to acknowledge that judges and people in general are always fallible as the result of their lack of knowledge and experiences, and that the search for justice is just that, a search; a striving for a currently unrealizable ideal.  It further requires the acknowledgment that the only practical way to broaden the experience and empathy, in the interest of justice, is to involve more diversity into the judiciary.  Treating the conflict between the realities of human life and the search for an objective justice in this manner does not deny that there is, or may be, such a thing, but serves as a clarion call to diversity in the interests of getting closer to the ideal of justice that people have such a strong desire for. (Huddleston, 2013)
            Debates over the origin of rights are rife with a priori beliefs about what is right and wrong.  A natural law theorist will posit that what is observed leads to particular conclusions about what should be.  Detractors, like those who adhere to a type of legal objectivism, will assert that right and wrong are no more than moral conventions that change over time and the law does not protect inherent universal rights, but act as a social tool to provide stability to a society that prefers traditional social conventions over new or radical changes to those traditions.  Virtue ethics and the “golden mean” rely on an appeal to social custom and a given community’s beliefs regarding right and wrong behavior.  Natural law theory relies on a type of pseudo-empirical rhetoric with an appeal to individual and communal notions of justice and fairness.  The same can be said for adherents to divine command theory inasmuch as a community of the faithful will have the same, or similar, a priori beliefs from scriptural and canonical interpretations of a divine will.  This paper has shown how natural law theory cannot be consistently applied by communities of individuals to reach regular and predictable judgments.  It may be that natural law theory is incomplete and there is a “missing link” that has yet to be discovered that will show the empirical logic behind its various premises and conclusions.  It may also be that Kant is right and humans, because of their imperfect reason, are currently incapable of fully understanding and properly applying what might be self-evident to one with perfect reason. 
Regardless of the potential reasons why natural law (or human imperfection) is unable to practically inform the law consistently, it is inarguable that it has not yet done so.  The most apparent reason, however, has been shown to be the inclusion of individual subjectivity and moral sentiments as expressed by Justice Sotomayor in her speech, and explained by Linda Martin Alcoff in her article.  Rights are incapable of being deduced from natural observations in the way that the destination of a ballistic missile is capable of being deduced from observations of its velocity and trajectory, and the applications of mathematics and physics.  To believe that rights are capable of being deduced in a similar way refuses to acknowledge to multiplicity of possible perspectives involved the reasoning process used to determine what is right versus what is wrong, and falsely equates reason with calculation, and assumes that human reasoning can operate without the influence of passion, emotion, inclination, and bias.     
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