A natural law manifesto or an appeal from the old jurisprudence to the new.

AuthorArkes, Hadley

On June 4th, a gathering was held under the auspices of the Claremont Institute to announce the formation of a new Center for Natural Law. The purpose of the new Center is to hold seminars for students in law school, or newly sprung from law school, as well as practicing lawyers and judges, who wish to get clear again on the way that natural law forms the ground of our law and comes into play every day in the practical business of deciding cases. A new seminar, the James Wilson seminars, will bring together judges and lawyers, along with professors of philosophy and law in exploring the teaching and practice of natural law. Professor Hadley Arkes of Amherst College was named as the Director of the new Center, and offered these remarks in launching the project. In marking out the mission of the Center he sought to make the case anew for natural law, in terms that would challenge both the liberal and conservative jurists who have been most adamant in resisting the claims of natural law to be applied seriously in our jurisprudence.

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We are here today to announce a new Center, in Washington and the country, a Center launched in Washington by the Claremont Institute, a Center for the jurisprudence of natural law. And in making the announcement we want to proclaim again the case for natural law, and offer a kind of Natural Law Manifesto. We announce here nothing new to the world, much in the way that James Wilson, at the origin of the Constitution, proclaimed that we were not, under this Constitution, inventing new rights. The object of the Constitution, he said, was "to acquire a new security for the possession or the recovery of those rights" we already possess by nature. (1) The great Blackstone had famously said that, on entering civil society, we give up those unqualified rights we had in the State of Nature, including the liberty of "doing mischief." (2) To which James Wilson asked, in a Talmudic question, "Is it a part of natural liberty to do mischief to any one?" (3) In other words, as Lincoln and Aquinas had it, we never had a "right to do a wrong." (4) Even in the State of Nature we did not have a right to murder or rape, and therefore as we entered civil society, the laws that barred people from murdering and raping, never barred them from anything they ever had a rightful liberty to do. And so, what rights did we give up on entering civil society? The answer given by Wilson and Alexander Hamilton was: none. As Hamilton said in The Federalist No. 84, "Here ... the people surrender nothing...." (5) Hence there was something not quite right in a the notion of a Bill of Rights reserving to people rights they had not surrendered to the State, for that implied that they had indeed surrendered the body of their rights to the State and that they were holding back now a few they hadn't surrendered. (6) The very purpose of the Constitution--the purpose that directed all branches of the government, not merely the courts--was the securing of those "natural rights." (7)

One could deny that point, as Hamilton said, only by slipping into the teaching of Hobbes and supposing that there were no rights before the advent of a government, no morality antecedent to civil society. As Hamilton pointed out, in Hobbes's view morality was all conventional. (8) We could not expect anyone to accept any moral restraints on his conduct, for until there were laws, he could have no assurance that there were moral truths out there that anyone would respect. (9)

Hamilton may be taken as a telling voice here, for indeed the American Founding would not make any sense unless those doctrines of Hobbes were decisively rejected. But that is to say, again, that the Founding, and the second Constitution it brought forth, found its telos, its central purpose, in the securing of natural rights. That understanding of the regime could not be explained without the recognition of moral truths, of standards of moral judgment that had to be in place before we could even conceive a Constitution. The whole project of a constitutional government could not begin unless one understood in the first place the notion of a regime of law, a government restrained by law, of rules that bound rulers as well as those who were ruled. One had to understand, that is, in the first place the very logic of "law"--of propositions that could rightly claim to be valid for everyone, not merely expressions of the private interests of those who ruled. But that brought us back instantly to the N-word: nature. As Aristotle taught at the beginning, the defining mark of the polls was the presence of law, and law sprang from the nature of only one kind of creature. (10) Only one kind of being could understand and respect a law beyond his own appetites, or grasp what it meant to bear an obligation to a contract or a law even when it no longer accorded with his interests or inclinations. It must have been the same creature referred to by Kant when he said that all of the moral principles governing our lives may be drawn from the very idea of a "rational being as such." (11)

The American Founders understood that there was nothing distinctly American then about the idea of a rule of law, or the principles that barred ex post facto laws, or established the wrongness of bills of attainder. (12) They understood that these principles would not be brought into being by the Constitution they were framing. Those principles had to be in place as we were guided in the framing of a legal structure. The Founders knew they could draw then on what Blackstone called the "laws of Nature and reason." (13) In that vein, Jefferson famously remarked that everything was changeable in human affairs, except the unalienable rights of mankind. Those were not subject to change, because they were rooted in something enduring either in the nature of man or in the principles of right themselves.

But it seems to be widely forgotten that the tradition of natural law always made a place for positive law, the law that is "posited" or enacted in any place, and sensitive then to conditions distinctly local. We see signs on the road saying 35 mph or 70 mph, and those numbers have no moral significance. But Kant reminded us that behind the positive law is a deeper natural law that tells us why we would be justified in having a law in the first place. (14) We can grasp the principle that would justify us in restraining the freedom of people to drive in a manner that puts innocent life at hazard. But we translate that principle into a regulation that could apply the principle to the circumstances and terrain before us--70 mph on the open highway, perhaps 35 mph on this winding country road.

  1. THE RECOIL FROM NATURAL LAW

    But we meet now at a time, when lawyers and judges on the conservative as well as the liberal side, have rather clearly rejected natural law, treated it with derision and contempt, as though they could give a coherent account of the law without an account of the underlying moral principles that alone could justify the making of laws on any subject. Judges on the conservative side retreat to some safe formula of positive law, a focus on the text of the Constitution, or a commitment to "originalism" and tradition. (15) But with that move they transmute the question; they turn jurisprudence into legislative history. They do it because they think it is the most prudent way of protecting the country from the adventures of judges soaring off, inventing new rights, all on the side of the Left, all untethered to any text or to any ground of moral judgment. But in that path there has been no safety, and therefore no prudence, and beyond that, no coherence--no jurisprudence that can give a coherent account of itself. As for the liberal side in our politics, the judges show an incurable penchant for overriding the positive laws, the laws enacted by people who are elected to make them--laws that may protect nascent human beings in their mothers' wombs, (16) or laws that confine marriage to the commitment of a man and a woman. (17) The liberal judges will offer high sentiment, overriding the laws made by majorities in the name of a higher law or principle. (18) They make some of the sounds of those who did natural law, but with one striking omission: they emphatically deny that there are moral truths, truths that hold their truth even when they run counter to the will of a majority. Professor Tribe will simply invoke convictions "powerfully held." (19) Professor Dworkin will regard instead, as the ultimate foundation of jurisprudence, "a nation's political traditions and culture." (20) Both arguments could readily have encompassed the rightness of slavery. For that institution certainly reflected convictions "powerfully held" and a long-standing feature in the "political traditions and culture" of this country. The only way to evade that conclusion was to appeal to the Founders and Lincoln in recognizing the ground in natural law that told us why we may not rightly rule human beings in the way that humans must rule horses and cows. (21) But some commentators on the liberal side would rather live with that result than appeal to natural law and put in place the recognition of moral truths, truths that may be used to cast judgments on others, including themselves, and especially in their private, sexual lives.

    The liberal side in our politics finds its aversion to natural law in the recognition both of moral truths and of "nature." The orthodoxies of postmodernism and relativism on the American campuses emphatically deny that there is a fixed human nature. "Natural rights" they regard as an ideology of patriarchalism that covered the rule of white males. (22) And "nature," they say, is "socially constructed" from one place to another according to the vagaries of the local culture. (23) On the conservative side, there seems to have been a critical forgetting that natural law found its grounds in...

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