I am a big fan of Berkowitz’s, but I had some of the same reactions to his review, particularly his assertion about Ramesh’s “inflammatory rhetoric.” It seems to me that there is a common tendency to have an inflammatory response to unwelcome arguments in this area and in effect to shoot the messenger. Beyond the tendentious arguments about the title and jacket copy, it’s hard for me to see the inflammatory rhetoric charge as a fair one.

But what I thought was interesting about the Berkowitz review was this passage:

To resolve these debates categorically–as Mr. Ponnuru does–is to commit an error that has been exposed by thinkers as diverse as Michael Oakeshott, Russell Kirk and Friedrich Hayek. The error consists of attempting to judge the complexities of morals and politics through the reductive lens of natural science, under the bright light of pure reason, from the cold heights of abstract theory. What gets lost is the ability to make relevant distinctions, to discern the wisdom embodied in custom and common sense, to acknowledge the ambiguities, mysteries and tragic choices of lived experience.

I am a big believer in such “hidden law” arguments and have made them countless times myself (See here and here , for example). So I am inherently sympathetic to the point that Berkowitz is trying to make here. But I think he makes a series of errors. The bulk of the review focuses on the law, particularly Roe, and public opinion. But he then plays a shell game and switches to philosophy seemingly to rebut Ramesh’s legal and political arguments. He says that Ramesh’s “error consists of attempting to judge the complexities of morals and politics through the reductive lens of natural science, under the bright light of pure reason, from the cold heights of abstract theory.” Maybe so (but why all the discussion of polls?).

But there’s a bait-and-switch here. My understanding of the Hayekian social order is that life is complex but that the public, written, law should be clear. Bright lines are necessary to illuminate clear principles. It is in the shadows of these bright lines that hidden law operates. We have clear laws — and ethics — against doctors killing patients, but most of us understand that in the outer-reaches of the real world, there will be situations where the rules should be bent or even broken. But we don’t then change the law to make the rare case the norm. It may sometimes be morally necessary to look the other way when a cop smacks someone, a desperate man steals something, a doctor kills a hopelessly suffering patient, but we don’t rescind the laws against police brutality, theft, or — until recently — euthanasia, in response.

I don’t mind at all Berkowitz’s retreat to a mystical definition of life in principle — nor am I fully endorsing Ramesh’s prescriptions — but I am at a loss as to how Berkowitz’s mystical definition should be written into the law without causing more harm than good. “I know it when I see it” may work for judges deciding what is pornographic (though not too well). But do we really want judges to have the same approach to human beings? If Berkowitz thinks embryos don’t have a right to life, that’s an intellectually defensible position as far as I’m concerned. But saying the law should recognize this simply based on intuition strikes me as irresponsible. Berkowitz — I believe — is no fan of the living constitution, so why he would seek a solution which in effect makes judges into Priests with wide latitude to define the sweet mystery of life as they see fit baffles me.

It seems to me that it is Ramesh’s bright clarity Berkowitz finds “inflammatory” and rather than engage it, he’s hiding in the shadows of hidden law.