What are the foundations of jurisprudence and why is it necessary? Professor Hadley Arkes argues that there must be enduring principles that statesmen can rely on to make difficult decisions. Sometimes the decisions will necessarily involve compromises. Professor Arkes discusses the prime example of slavery and the jurisprudence of Abraham Lincoln. https://youtube.com/watch?v=WVf66cTG6_k
What constitutes the body of principles that we regard as constituting jurisprudence? When we talk about jurisprudence, we're talking about the question of whether we do have access to moral truths, truths that'll be the same tomorrow as today, enduring truths about the nature of law and the nature also of that creature who is uniquely fitted to the rule of law and whether the study of those principles must encompass a study of prudence and statecraft in the application of those principles. The people have to apply these principles and discover in the real world, as Aquinas would say, that at times the statesmen are compelled to make a prudential compromise with things that are known to be evil for the sake of compressing those evils. Those it's like, I think he must have in mind, the matter of slavery, everyone understood at the time, even at the time of the Founding, that slavery ran counter to the natural law. And the understanding even of jurists in the South was that slavery was so wrong, it could be sustained only by positive law. That is only by a deliberate policy of statesmen to make an accommodation with an evil, for the sake of limiting it and compressing it. That fragment that Lincoln wrote for himself. If he would choose it, imagining himself engaged in the conversation with an owner of slaves, putting the question - why are you justified making a slave of that black man? Is it because he's less intelligent than you? Beware, you may be rightly enslaved by the next white man, more intelligent than you. Is it because he's darker? The lighter skin, having the right to enslave the darker, I'll beware again, you may be rightly enslaved by the next white man with a complexion even lighter than your own. And the upshot was, there is nothing you can name to remove black people from the category of rights bearing beings that could not be applied to many whites as well. Now we say this is simply a species of principled reasoning and we point out that when Lincoln made those kinds of arguments before audiences of people with little formal education, ordinary people grasped them.
