Akhtar’s and Dostoevsky’s Examinations of Freedom, Reason and Faith

“There is nothing more seductive for man than the freedom of his conscience, but there is nothing more tormenting either

The Grand Inquisitor (From Fyodor Dostoevsky’s The Brothers Karamazov 254)


“…an attempt to liberate the more heartfelt metaphorical version of religious experience from the literalist dogma of the orthodoxy…”

                                    -Ayad Akhtar (From The Essential Ayad Akhtar by Natalie Hulla

of the Cincinnati Play House in the Park)


In the essay “How American, How Muslim,” Pulitzer Prize winning writer Ayad Akhtar says one of his inspirations is the late 19th century Russian novelist Fyodor Dostoevsky (Akhtar Appendix item 3). In both Dostoevsky’s The Brothers Karamazov and Akhtar’s American Dervish there are characters with complex views on religion. As complex as their views appear to be, in both novels there are characters who ultimately possess religious faith or lack it. What makes comparing and contrasting these two pieces especially interesting is that despite both authors examining different religions- Dostoevsky examines Christianity, Akhtar examines Islam-, writing in different centuries – Dostoevsky wrote in the 19th, Akhtar in the 21st-,  and in different countries- Dostoevsky in a considerably homogeneous Russia, Aktar in a considerably diverse and pluralistic America- their characters critically examine religion in similar ways. Both novels examine the importance of freedom (intellectual freedom, and the freedom to do what one wants), and the conflicts between reason and faith (for example, ‘can/should one have both reason and faith?’). Although they examine similar things, one notable difference is how each author’s characters define of reason.  In American Dervish an atheist adheres to a notion of non-contradictory thinking and shows how contradictory interpretation of the Quran leads to antisemitism. In The Brothers Karamazov, both a Christian monk named Zosima, and Ivan, a conflicted agnostic, fear that unchecked reason will lead to violence. Moreover, the monk, specifically, views Christ as the only way to save an otherwise rational mind from this violence. In other words, the rational character in American Dervish sees reason as a path to peace and religion as a path to hate, where as for Dostoevsky, reason leads to violence and only religion can bring peace and love.[1]




Both Akhtar and Dostoevsky have characters who champion freedom. And in fact, both examine different ways to define the concept. For example, in American Dervish, Naveed is a staunch advocate of freedom- intellectual freedom of thought, as well as freedom to act as he wishes- who believes “Eastern women [are] mentally imprisoned” (Akhtar 160; italics are Akhtar’s). Hayat’s mother says implicitly that he thinks Eastern women are sexually imprisoned too. She says, “What the filthy man really means is that [white, ‘free’ women will] put their mouths anywhere, like animals. So he can put his mouth anywhere. Like an animal. That’s what they want and that’s what they like. It’s disgusting” (Akhtar 160-161; italics are Akhtar’s). A possible interpretation here is that Hayat’s mother, Muneer, is saying white women and Naveed both like oral sex but she does not, and Naveed thinks oral sex is sexually liberating while she thinks it’s “disgusting.” This would certainly explain (but not justify) why Naveed is motivated to sleep with women other than his wife- because he feels by holding herself back sexually she holds him back from experiencing what he wants to experience; to enjoy the freedom he wants to enjoy. If she wants to deny herself sexual freedom, to him, it’s her loss but he will not let it be his. It is important to note that it is not only “Eastern women” Naveed is critical of. It’s the Muslim community more broadly, which according to Naveed consists of “fools” and “sheep” (Akhtar 320).  “You can’t live by the rules others give you…you have to find your own rules,” Naveed tells his son Hayat, who is narrating the novel, when he’s explaining to him why he left a wedding they attended (Akhtar 320). A character in The Brothers Karamazov, Ivan, is similar to Naveed though Ivan takes his belief in freedom to the extreme.[2] The topic of freedom comes up with Ivan because he and his brother Alyosha are having a conversation about “the universal questions” such as “is there a God, is there immoratality?” and ethics (Dostoevsky 234). When Alyosha learns that Ivan does not put his faith in God and Christ he asks Ivan if this means Ivan thinks, in terms of ethics, that people should be free to do whatever they want (Dostoevsky 263). “The formula, ‘everything is permitted,’ I will not renounce,” Ivan tells Alyosha (Dostoevsky 263). In both cases, these characters conceptualize freedom as an individual thinking and doing whatever it is he or she wants (though both characters have thresholds at which point things seem cruel which make them squeamish. Naveed cannot stand anti-Semitism [Akhtar 207] or the oppression of women [Akhtar 321]. Ivan cannot bear the “cruelty” of people [Dostoevsky 238]). What readers comparing these two novels may find interesting is that Naveed’s belief in freedom seems more meaningful- that is to say, there are clear, explicit, palpable things Naveed wants as a result of his freedom: namely sex and independence. With Ivan, freedom at its core does not seem to be what he actually desires. Instead it merely happens to be that the ethical justification for freedom is a consequence to the fact that he cannot say with certainty that God exists. In other words, Naveed thinks about freedom in a very personal and psychological sense, whereas for Ivan it is simply an impersonal, detached, philosophical deduction that there is no source from which it can be proven that there are things people should or should not be able to do.[3]

In both novels there is an entirely different conceptualization of freedom posited as well: spiritual freedom which characters in both novels appear to perceive as being based, at least in significant part, on humility. In American Dervish, Mina tells a story of a Dervish, which Mina says is “someone who gives up everything for Allah” (Akhtar 191). She does not call this, explicitly, “spiritual freedom.” She actually refers to it as “true humility” (Akhtar 103) and oneness (Akhtar 104). When we compare the Dervish she speaks of to the Christian monk, Zosima, in The Brothers Karamazov we see a striking similarity. The Monk, says

Obedience, fasting, and prayer are laughed at yet they alone constitute the way to real freedom: I cut away my superfluous and unnecessary needs, through obedience I humble and chasten my vain and proud will, and thereby, with God’s help, attain freedom of spirit, and with that, spiritual rejoicing (Dostoevsky 314; italics mine).

Also striking is the fact that both the Dervish and the Monk find connections between humility and nature. Of the Dervish, Mina says

“He realized he was no better, no worse than the ground itself, the ground that takes the discarded orange peels of the world. In fact, he realized he was the same as that ground, the same as those peels, as those men, as everything else.”

Compare this with Dostoevsky’s monk: “Man, do not exalt yourself above the animals: they are sinless” (Dostoevsky 319). This notion of spiritual freedom then seems to include even a freedom from sense of individuality, distinctiveness and uniqueness for the Dervish and the Monk see people as no different than orange peels and animals. It could be argued that both therefore deny the exceptionalism of human beings and are, ultimately, pessimists who can only experience spirituality via self denial. This is actually important because we see self-denial explicitly and viscerally in American Dervish. In fact, it is Mina- the one who tells us about the self-denying Dervish- who denies herself in the story. Instead of marrying the man she loves and exploring her sense of self and purpose she marries an abusive man she was pressured by family to marry and says it is “an expression of Allah’s will” (Akhtar 343) which in fact “she regretted” (Akhtar 348). Ultimately then, it could be argued that Akhtar portrays “spiritual freedom” through “self denial” as a negative and harmful thing. But compare this to Dostoevsky! In the case of Zosima the monk, what are the consequences of his self denial? When Zosima does not resist his desires (we are speaking of the time before he becomes a monk and discovers self denial), he is driven, in a rage, to take out his anger over the fact that someone else has won the affections of a girl he fancies on his servant who he beats so brutally that the servant bleeds (Dostoevsky 297). Zosima discovers this was wrong; he says “this is what a man can be brought to” (Dostoevsky 298). Instead of engaging in a dual with the man who won the affections of the woman he is fond of, he surrenders to the man saying he can shoot him if he wants but Zosima will not shoot at him (Dostoevsky 298). The point here is that in Dostoevsky’s novel self-denial leads to noble acts. But again, in Akhtar’s, it leads to harm.

There is a third notion of freedom the two novels examine: freedom from faith, or put another way, freedom attained as a result of no longer having faith. Again we see a contras with the two authors; this aforementioned kind of freedom being depicted in a positive light by one author, and negative by the other. In American Dervish Hayat eventually comes to describe losing his faith as a positive and liberating experience (as a young teenager Hayat is a devout, Quran-reading-and-memorizing Muslim) where as in The Brother’s Karamazov Ivan, who concedes God may exist, rejects this possible God and God’s world more broadly and for him this rejection isn’t a pleasurable experience, it’s simply necessary on ethical grounds. I shall elaborate.

In the prologue to American Dervish, Hayat tells us that “to lose your faith” is “So freeing. It’s the most freeing thing that’s ever happened to me” (Akhtar 10-11). Hayat does not fully explain the nature of his lost faith nor of this liberation however it is quite possible that the freedom he feels is a kind of inner-peace after rejecting his notion of Islam and the damage which Islam did to his family and especially Mina. Moreover it is possible he feels free of guilt too We know that when he sees her “two months before she die[s]” (Akhtar 337) he “had been giving up on Islam little by little for years, and…now there was barely anything left” (Akhtar 341). After he brings this up to Mina, asking what her “suffering” had “to do with finding God” she said “Even the pain… is an expression of Allah’s will” he never once hints with the slightest subtlety or implication that she has changed his mind (Akhtar 342-343). When we see two months later he loses his faith, and cites no other significant experience associated with his faith it is quite reasonable to posit indeed this faith is lost because he sees that virtually every example of Muslim faith has brought with it unreasonable, unacceptable suffering which was tolerated as a result of that faith.

In The Brothers Karamazov Ivan has a somewhat similar experience however his qualm is spelt out for us, and it is not mere religion that troubles him, or even Christianity. It is God and reality. For Ivan, if a God exists, God is evil for God has created a world of suffering, and Heaven, according to Ivan, does not make up for that suffering, thus he will have nothing to do with Christianity, even if there is a God (Dostoevsky 245). As he puts it, “I’d rather remain with my unrequited suffering and unquenched indignation, even if I am wrong…it is not that don’t accept God, Alyosha, I just most respectfully return him the ticket” (Dostoevsky 245). In what sense then is Ivan free? He is free,  at least thinks he is, of a certain kind of guilt[4]; he feels free in the sense that while God may keep reality as it is, and while God may think He makes up for the awfulness of life with Heaven for the good believers and Hell for evil non-believers, Ivan will not give it his moral sanction-  for he says: “it is my duty, if only as an honest man” to maintain his rejection of this (Dostoevsky 245). He is rebelling (“Rebellion” is in fact the title of the chapter. Strangely enough yet true to his sort of contradictory, paradoxical way, he says “One cannot live by rebellion, and I want to live” [Dostoevsky 245]) and saying God’s system is unacceptable to him, even hell for evil non-believers and heaven for the innocent is not enough. Speaking specifically about those who torture children he says “what can hell set right here, if these ones have already been tormented?” (Dostoevsky 245). Both Ivan and Hayat can be viewed as rebels here but they are rebelling against different things; Ivan is rebelling against reality[5] where as Hayat is merely rebelling first against his father when he deeply embraces Islam  and later against segments of the Pakistani community that his family sometimes associates with when he rejects Islam. He is also rebelling against the pain which these Muslims inflict on themselves, Jews, women, et cetera, as a result of their strict Quranic interpretations.




What’s especially interesting about Ivan is that it is not reason which makes him agnostic and resentful of the universe and potentially God if there is one (at least, it is not reason according to him). Reason, or what Ivan in this instance, calls “logic” is something, first of all, left undefined, and secondly, loveless, or insufficient in terms of providing people with a capacity for love. “Sticky spring leaves, the blue sky- I love the, that’s all! Such things you love not with your mind, not with logic, but with your insides, your guts” (Dostoevsky 230). A little later Ivan says “reason hedges and hides. Reason is a scoundrel” (Dostoevsky 236). A possible interpretation, if we compare the two aforementioned quotes, is that Ivan perceives reason as a detached, over intellectualized, cold mental operation with no room for emotional experience, or sympathy. If reason “hides” it is perhaps more exactly, “feeling/emotion” which it hides, remaining cloaked only in detatched factual deductions.[6]

In American Dervish we get another interpretation of reason and that comes from Sonny Buledi- a Pakistani friend of Naveed’s who is an atheist. Sonny’s version of rationality is non-contradictory thinking. We learn this when he debates Quranic interpretations among fellow Pakistanis. Specifically they’re debating whether an interpretation has anti-Semitic implications.

“C’mon, man!” Sonny exploded. “God condemns them [Jews] in verse sixty-one, which    you choose to underline, and then follows it with accepting them in the next?! That’s an outright contradiction and unless you can explain it, it renders both versus utterly meaningless…” (Akhtar 131)

It would follow- if we apply Sonny’s epistemological standard- that Sonny is probably an atheist because as he sees it, there is no proof or logical deduction which can verify that a God exists.

But something else is interesting about Sonny’s rationality. It doesn’t only lead to atheism. It also leads to peacefulness and tolerance. Sonny’s rationality leads to a justification for Chatha’s anti-Semitism (which Chatha claims is based on the Quran) to be discredited and rejected. It is extremely noteworthy that in Akhtar’s novel, it is the rational atheist (or agnostics, or the spiritually ambiguous/open-minded) who reject(s) hatred and it is the religious characters who have hate in their hearts (whether it be outward hate for others, such as the anti-Semitic Chatha, or even Hayat when he goes through such a phase as a pedantic, literalist Muslim,  or what appears to be self-hatred in the case of Mina and Muneer who deny themselves of better lives where they could be less oppressed).

However, in The Brothers Karamazov, reason is associated with violence and is conceptualized as something that is of limited use for people. This relationship is really rather complex and is articulated by several different characters in different ways. For the sake of succinctness and focusing exclusively on the ultimate essence of this idea I shall bring up only the example of sentiment expressed by Zosima, the Monk. Zosima says:

These, following science, want to make a just order for themselves by reason alone, but with Christ now, not as before, and they have already proclaimed there is no crime, there is no sin. And in their own terms, that is correct: for if you have no God, what crime is there to speak of? In Europe the people are rising up against the rich with force, and popular leaders everywhere are leading them to bloodshed and teaching them that their wrath is righteous. But ‘their wrath is accursed, for it is cruel’[7]  (Dostoevsky 315)

Zosima assumes that rational thinking cannot lead people to goodness.[8]  Why does he think this? He says earlier of science (of which reason and logic are a part) that it consists only of “that which is subject to the senses” (Dostoevsky 313). Clearly than Zosima assumes ethics have no basis in “the senses” or that which can be abstracted from them; in other words, we see that classic notion of original sin inherent in Monk’s assumptions, i.e., Zosima thinks people are inherently bad and can only be saved by God and God’s standards- standards which could only even be first discovered by a God.

The deeper discovery we can make as readers then is that Dostoevsky and Akhtar appear to be at very opposite ends of the spectrum, not only when it comes to their views on reason, but of human nature itself, for there is nothing implied by Sonny, Hayat or anyone espousing rationality in American Diverish, that suggests they think humanity is inherently depraved. For Dostoevsky, religion saves humanity from its depraved self. For Akhtar, reason saves humanity from religion!  

While reason in the two novels is interpreted by the characters differently, religious faith is viewed quite similarly, even in the face of suffering. Hayat questions Mina’s faith at the end of the novel, when she is in the hospital (Akhtar 342).  He thinks “all these Sufis tales [are nothing] but fictions she’s using to shed a redeeming glow on a life scored with pain, pain I caused her, pain Sunil caused her, and that she should have sought not simply to bear, but escape” (Akhtar 342; italics are his). To her he says, “What did the suffering she had gone through over the past eight years at her  husband’s hands- and for that matter the suffering she was experiencing now, as she lay dying- what did any of this have to do with finding God?” (Akhtar 342). She answers: “this is how the divine is choosing to express Himself through me…everything, everything, is an expression of Allah’s will. It is all His glory. Even the pain…That is the real truth about life” (Akhtar 343). In other words, Mina herself, according to her thinking, is irrelevant. Mina does not even exist as Mina in her mind. She exists as a manifestation of God. So whatever God throws at her, including pain and dying, God throws at her. Mina’s submission to God is a dramatization of that haunting cliché that is so often sighed, “it is what it is.” And this for her is not just perfectly okay, but good and wonderful. As Hayat describes her as she is nearing her death in the hospital: “Her eyes sparked when she saw us. However sick she appeared, she looked no less alive” (Akhtar 338) (It is only in that light that we can really understand the significance of the final page of Akhtar’s novel when he feels inexplicable gratitude which he can finally discern, saying he “finally” is able to hear what he is grateful for: “my heart, silently murmuring its steady beat” [352]. Hayat acknowledges the fact that he has a self).

We see a very similar sentiment articulated by the monk- a sentiment the monk learns from his brother. Like Mina, Zosima’s brother is close to death and aware of it. In speaking of natural beauty, his brother says “there was so much of God’s glory around me: birds, trees, meadows, sky, and I alone lived in shame, I alone dishonored everything, and did not notice the beauty and glory of it all” (Dostoevsky 289) As Zosima is about to die before his visitors to whom he has given his final talk,  everyone notes how despite the pain he appears to be in, he is “still looking at them with a smile…bowed down with his face to the ground, stretched out his arms and, as if in joyful ecstasy, kissing the earth and praying…quietly and joyfully gave up his soul to God” (Dostoevsky 324). Both Zosima and Mina face death and pain and find spiritual satisfaction in surrendering to God. Despite the element of self-denial inherent in both Zosima’s and Mina’s surrender there is one positive thing: in their final moments, God, or their idea of a supposed God can provide comfort. Say what one might about all the various aspects of elements of religions, we see at least that belief in a God can be comforting when one is confronted with one’s mortality. Religion, as depicted by both authors, has at least something to offer.

There are two wider takeaways we can gain from comparing and contrasting the examination of religion in these two novels. First,  it is interesting that pain plays such a strong role in the characters of both novels as it pertains to their attitudes on religion, and implicitly on their views of human nature (are we inherently bad? Are we capable of being good? Do we need a God to be good?). This is not to say we learn anything universal about the experience of pain.  Rather, it has to do more with how each unique individual processes pain. In the case of the non-religious in both novels, it is specifically that pain that motivates them to rid themselves of their faith (Sonny, who seems to be an atheist most fundamentally as a result of drier, detached rationality, is an exception). Ivan, for example, is in so much pain he can barely deal with reality so he rejects God even if God exists. Hayat sees the pain that religion has caused him, his family, Mina, and Nathan. On the other hand, the believers in God see pain as almost superficial when compared to the glory of God. That or they are so humble and self-denying that it would be a betrayal of their values to deeply sulk or curse God. Spiritual characters on the verge of death in both novels (Mina and Zosima) both find tremendous pleasure and peace despite their pain.  A second takeaway is that just as each person processes pain differently, each person has different definitions for words- sometimes even multiple definitions- perhaps not even dictionary definitions, or universal definitions, further complicating these kinds of discussions. Most notably, we see different notions of freedom: spiritual freedom versus moral freedom, and the freedom that comes from losing faith. We also see different notions of reason. Dostoevsky’s characters- regardless of their broader theological differences- seem to agree that reason leads to violence yet in Akhtar’s novel, reason is shown to be supreme, even implicitly by the narrator who says, when discussing his loss of faith, that it did not bother him like other Arabs in his class on Islam when his professor suggested there was proof that the Islamic notion of “the Quran as the direct, unchanged, eternal word of God was a fiction” (Akhtar 7-11). His response, when his girlfriend asks him how he feels about the lecture is: “What’s to feel? The truth is the truth” (Aktar 9). By not putting his feelings into the validity or lack-there- of, he is being objective, i.e., he is using reason, and he grows compassionate (when he is no longer a Muslim he is also no longer an anti-Semite)[9] and is doing so in a way which it appears Dostoevsky could not imagine or fathom.


Works Cited


Akhtar, Ayad. American Dervish. Back Bay Books/ Little, Brown and Company, 2012.

Dostoevsky, Fyodor. The Brothers Karamazov. Farrar, Straus, and Giroux, 2002

Frank, Joseph. Dostoevsky: A Writer in His Time. Princeton University Press, 2010

Hulla, Natalie. “The Essential Ayad Akhtar,” Cincinnati Playhouse in the Park, 20 June 2017,


Trepanier, Lee. “The Politics and Experience of Active Love in the Brother Karamazov,” Voegelinview, 20 January 2017,  https://voegelinview.com/politics-experience-active-love-brothers-karamazov/


[1] Both of these novels in my view are exceptionally complex and thus there is more they have in common, and there are more distinct differences however it would require a lengthy amount of time to be so comprehensive.

[2] To be clear, Ivan is complex because he is conflicted, wishy-washy, and contradicts himself. He says “everything is permitted” (Dostoevsky 263)  and yet loathes God’s supposed cruelty (Dostoevsky 235). Likewise, Naveed is all for freedom yet cannot stand how Muslim men oppress women (Akthar 321).

[3] This is not to downplay the philosophical capacity, depth or nature of Naveed. This simply appears to be a manifestation of ,what appears to me, to be a stylistic differences between Akhtar and Dostoevsky: that Dostoevsky’s characters tend to deliver long, theoretical, sometimes even discursive monologues, whereas Akhtar’s characters are much more succinct.

[4] Noteworthy here also is that however free Hayat feels, unlike Ivan, he actually does not feel free of guilt. The same night he says he feels free, he learns that Mina has died, and says “Now that she was gone, how could I ever repair the harm I’d done” (Akhtar 12).

[5] Ivan’s denial of reality suggests psychological trouble far more complex and potentially problematic than Hayat’s disagreement with religious claims. Hayat is making a philosophical, and theological discernment. Ivan, it appears, is struggling to cope with what is for him the malady of existence.

[6] This of course, is a claimed notion of reason, and not necessarily the proper notion. After all, is Ivan not in the act of attempting to reasoning when he is essentially saying what is what and why what is what?

[7] According to the end notes the quite within the quotes comes from Genesis 49:7

[8] One could argue this is hard as a reader to reconcile since if we apply Sonny’s definition of reason (non-contradictory thinking) to Zosima’s application of it, his very act of reasoning is what suggests to him that reason is insufficient for arriving at ethical standards.

[9] And ‘oh, the irony’- it is the all-loving Christian writer Dostoevsky who, throughout his life was an anti-Semite. He once spoke of “Yiddifying” ideas as “third-rate” (Frank 744). Other disturbing examples abound in Joseph Frank’s comprehensive biography.


-An evaluation of the major theories of jurisprudence, with an explanation as to why the ‘natural law’ theory is the best one

John Locke. Philosopher & Advocate of “Natural Law”. IMAGE VIA SIR GODFREY KNELLER VIA https://commons.wikimedia.org/wiki/File:Godfrey_Kneller_-_Portrait_of_John_Locke_(Hermitage).jpg
(Note: I originally stated in this post that I wanted to be a philosophy professor. That is no longer the case. I want to concentrate on advancing a Social Democratic agenda via activism and commentary.)


All questions pertaining to politics and law, in my view, are a result of one question that is so consequential that its answers can cause genocide, or protect the freedom of individuals so that they may thrive.

The question is: “what should people be allowed to do, and not allowed to do?”

Answers to this fundamental question give us political philosophies and theories of jurisprudence. As someone who aspires to be a philosophy professor, and has run for political office three times, I have had much to say about political philosophy, and yet little about that branch of philosophy called jurisprudence.

Now I shall for the first time say a bit on the topic. In my opinion, the “natural law” theory is the superior theory of jurisprudence, and is so because it is based on reason (a word with many different definitions. For the purposes of this paper, when I refer to reason, I refer to non-contradiction) and morality.

That being said, there are some valid criticisms of other aspects of the theory, in particular, the assertion by some, that natural law is necessarily based on a God, and also, the fact is, some proponents of natural law theory have misapplied it.

Before I elaborate further, I shall be clear about exactly what natural law theory is said to be. In an academic outline on the term “natural law theory,” where it is also referred to as “classical naturalism,” it is defined as “a group of theories that contend, in a variety of ways, that law is to be identified by reference to moral or ethical (as well as formal) criteria of identification.” (Principe, 1)

I think it is worth adding that most proponents of classical naturalism- including Grotius, Saint Thomas Aquinas, and John Finnis (Banks, O’Brien, p. 82) (as well as Locke, even if merely by implication) to name just some- believe that inherent to the discovery of morality and natural law is the application of reason.

The standard of reason that is upheld by so many ‘natural law’ theorists is, in my opinion, its most important and fundamental element, for, as I view it, everything in life should be and absolutely can be approached via reason. (As Aristotle would say, A is A, i.e., a thing is itself, therefore A cannot be B, or C, or D, ad infinitum, i.e., a thing cannot be both itself and not itself.)

In my view, the very proof for this lay in the fact that it is empirically verified when one sees, or hears, or even feels with his or her skin, the letter “A,” and not any other letter, and thus, no other standard of knowledge should be used, as it would be incorrect, irrational, illogical, contradictory.

This is an epistemological idea, however, that every other major theory of jurisprudence introduced by Banks and O’Brien in their textbook on the American Judicial System, refuses to accept, either by a most obvious and fundamental misapplication of reason, or the complete disbelief that reason is the correct standard, or even a possible one.

For example, consider what I believe to be the profound irony and most basic contradiction of legal positivism.

We are told that according to legal positivism, “law is empirically discovered by reason,” yet on the other hand, we are told that law is “free from moral judgements about what the law should be.” (Banks, O’Brien, p. 85)

But a person cannot be both rational and legally amoral.

In fact there is no such thing as legal amorality.

That which one calls “moral” is how one thinks he should fundamentally treat himself and others, or put another way, what is a right action, and what is a wrong action.

For example, in my view of morality, right actions are ones that a person takes in order to thrive, which means he or she must take care of him or herself first, out of self-compassion, and should, further, do for others, out of compassion for them, whatever he or she is best equipped to do, when he or she can.

I call this the “morality” or “ethics” of “compassion.”

This necessitates political action- specifically, the protection of individual liberty, with safety-nets, to protect the integrity of individual liberty, i.e., protection against a laissez faire state where the utterly immoral people exploit the highly virtuous ones.

But all moral views necessitate political/legal action. Quite literally, a legal view that claims morality should be kept out of law merely confesses that one thinks implicitly that it is moral for the law to allow and prohibit particular actions, but, at least as I see it, either they do not recognize the implication or they are being dishonest.


At least legal positivism claimed to be rational. American Realism, according to the outline referenced earlier, is fundamentally skeptical, and “play[s] down the role of established rules (or the ‘law in books’) to discover other factors that contributed towards a judicial decision in order to discover the ‘law in action.’” (Principe, 2)

Moreover, American Realism claims to discover “what is empirically and pragmatically ‘realistic’ about judging” based on “sociological and psychological factors.” (Banks, O’Brien, p. 95) The empirical and the pragmatic and sociological and the psychological however, apparently have nothing to do, fundamentally with reason, only skepticism, which simply means chronic uncertainty.

To be fair to American Realism, at least it can be argued that empiricism could suggest probable guesses based on consistently observed things; at least it makes some kind of appeal to a notion of a more likely truth versus a less likely one, and/or maybe there is a truth, however not graspable by people.

At least then there is a sort of reaching for a semblance of logic. The theory of “critical legal studies” however, claims to “destroy the notion that there is one single ‘truth,’ and that by disclosing the all pervasive power structures and hierarchies in the law and legal system, a multitude of other possibilities will be revealed, all equally valid.” (Principle, p. 2)

If analyzed we see that the claim that there is no single truth is a contradiction in terms. Taken at its word, we must somehow accept it as singularly true that there is no single truth (that A is B, that a thing is not itself) when we are told that there is no single truth.

That is like saying I am not a cat but I am a cat.

That being said, I do concede that this theory of “critical legal studies” has at least one logical concern (although I guess adherents would not describe it as logical in my sense of the term)-  “all pervasive power structures and hierarchies in the law and legal system” should always be scrutinized because application to logic is not automatic and guaranteed, even when the application is referred to as logical, and it has resulted at times in racist, classist, elitist actions. Similarly of feminist legal studies: chauvinism and misogyny can be problems within the legal system and elsewhere which is irrational and immoral which is why I would argue that an honest and consistent application to basic natural law theory would treat all fairly.

Although I have touched on the moral element of natural law briefly already, I believe it deserves more attention. It is one thing to say that it logically follows that morality must dictate law, but it would sell natural law theory short not to also mention in a bit more detail the nature of just how, in my interpretation, consistent and logical natural law theory would inject morality into law, and contrast that with how others might interpret the role of morality in natural law.

Nowhere in the texts I considered upon doing my research does it explicitly say that Natural law theory necessarily posits that all moral principles must be codified into law. In contrast, if we consider how natural law is the basis for “individual natural rights” such as “life, liberty and the pursuit of happiness” (Banks, O’Brien, p. 83) it follows that it is a right thing to do, i.e., a  moral action that the law be made to permit and prohibit certain things- specifically to permit freedoms, and to prohibit violations of freedom.

That does not mean however, that an action which might be immoral, say prostitution, should therefore be illegal.

The moral claim is that the law should protect freedom, i.e., self determination, and thus prohibit coercion; only immoral acts which are coercive in nature require legal prohibition.

Adherents to natural law, throughout history, unfortunately, have not always understood this, despite it being the very meaning of their premise.

For example, in my view, it is a totally misguided idea of morality, based on a totally erroneous reasoning, how, “the Court appealed to natural law principles in asserting that blacks were not citizens entitled to constitutional rights in Dred Scott v Sanford (1857) [and] [i]n Bradwell v Illinois (1873), [when] the Court ruled that women could not practice law because it was ‘in the nature of things’ for them to remain relegated to the ‘domestic sphere as that which properly belongs to the domain and functions of womanhood’ [and further, how] [m]ore recently Justice Clarence Thomas cited natural law and the Deceleration of Independence in criticizing the rationale in Brown v. Board of Education (1954), the landmark case ending racial discrimination in public schools.” (Banks, O’Brien, p. 84)

Those are completely irrational moral claims that do not represent a proper application to natural law, but rather, forms of statism, altruism, collectivism, racism, chauvinism, and misogyny.

Although it is my opinion that classical naturalism, in its most general and popular sense – being explicitly based on the application of reason and morality- is the superior theory of jurisprudence, that is not to say the theory is perfect.

For example, many of the proponents of classical naturalism ascribe, with certainty, that its ultimate basis is in a God. As Banks and O’Brien write, “Natural Law is thought of in divine terms as God’s law.” (p. 81) Now, it very well may be, as I personally speculate, that a God does exist and that all truth is God’s creation, however, if so, it’s yet to be proven. Logic only tells us that there is no proof that a God does not exist but that nevertheless, one could. But a “could” does not justify a “does” and thus those classical naturalists who assert with certainty that a God does exist and that natural law is to be thought of as God’s law are, in my view, being hasty.

Briefly, on other theories of jurisprudence I have deemed inferior compared to classical naturalism, they at least have fair points regarding aspects of law they are critiquing- for example, American Realism, although “skeptical” at least leads us to question that which is asserted as moral-legal fact, and at least Critical Legal Studies dares to question the sometimes corrupting roles of power and higher status within the legal system- where economic status or race or sexual orientation, et cetera, is sometimes a factor when they should never be, and at least feminist legal studies dares to call out where the judiciary has unfairly treated women.

If classical naturalism could be revised and stripped of its contradictions, and if the mistaken applications of it could be made clear, I believe we would have a theory of jurisprudence which would be as perfect and logical as Aristotle’s laws of identity, and non-contradiction.

Banks, C.P, O’Brian. D.M. (2016) The Judicial Process [Adobe Digital Editions] Retrieved from https://play.google.com/books
Principe, M. (2016) The American Judicial System POL226 Outline #2 Classical & Contemporary Theories of Jurisprudence. William Paterson University