NATURAL LAW ORIGINALISM.

• Author: Lewis, V. Bradley

The very name "originalism" has often aroused suspicion from anyone accustomed to thinking about law from the perspective commonly called "natural law." Indeed, there is a sense in which this suspicion is doubly aroused since the notion of "natural law" was originally (as it were) thought of as a kind of contradiction. At the origins of Western legal thought nature and law, phusis and nomos, were held to be opposed to one another. (1) They were put together by Plato and put into the mouth of one of his most notorious characters precisely to shock his audience. For Kallikles in the Gorgias, natural law (nomos tes phuseos) means the law of the jungle. (2) Plato sought, however, in a number of his dialogues to show that nature and law were really not opposed to one another because behind and within the law was human nature's most distinctive characteristic, reason. (3) But reason strives towards universality with respect to both space and time. The good is distinct from our spatially and temporally situated identities and attachments although those identities and attachments can instantiate the good in distinct ways. In the Minos, the only Platonic dialogue that explicitly takes up the question, "What is Law?," Plato's interlocutors work up to the thesis that law "wishes to be the discovery of what is," which seems almost to identify it with philosophy. (4) But then Socrates oddly seems to identify the best laws known to the Greeks with the oldest laws known to the Greeks, the laws of Krete, given by the legendary Minos who promulgated them after taking instruction from his divine father, Zeus. (5) This is true originalism, because the origin of the laws is the origin of things, and so in this and only this case, nature and law are one.

But what other law code can make this claim? All subsequent and distinct law codes must admit to deviation from those natural origins precisely in virtue of their historical origins. Given that human life is political life, and political life requires a certain stability, even genuine improvements in law that might bring it closer to the natural because rational standard for human excellence, may be diluted, delayed, or even foregone. To change law, even for the better, can unleash unintended consequences that damage community life and even attenuate citizens' attachment to the legal order. (6) This suggests an ultimately permanent tension between truth and political-legal life. This does not, however, mean that the striving of law to become more reasonable and more adequate to the truth about "what is" is erroneous or even vain. We may believe that Lord Mansfield's celebrated apothegm that law "works itself pure" is more than a mere pious hope. (7) Still, originalism, as a contemporary mode of legal interpretation, seems by its very name to take its stand with the old, with history, as distinct from natural law's seeming fidelity simply to the good that is, always and everywhere.

Lee Strang's impressive and ambitious defense of originalism faces up to this tension at the heart of the legal enterprise and aims to show that the natural law not only permits originalism but requires it in our constitutional order. That Strang's ambition goes beyond even this is indicated by the title of his book Originalism's Promise: A Natural Law Account of the American Constitution. (8) The book is not only a defense of originalism as a technique of constitutional interpretation, but a defense of the Constitution itself by reference to the natural law. Throughout the book, Strang refers to his own perspective also that of the natural law and as that of the "Aristotelian tradition."

This most basic aim of the book raises a number of questions. One concerns the characterization of Aristotle himself as a natural law thinker and the linkage of the natural law to another moral perspective rooted in the thought of Aristotle, "virtue ethics." Aristotle uses the exact phrase "law of nature" only once in his writings, and there, somewhat ambiguously. (9)

That there is a natural because rational basis for sound practical reasoning that informs personal life, politics, and law in Aristotle is certain, although there are a number of complicated questions about its relationship to the thought of the paradigmatic natural law thinker, St. Thomas Aquinas. (10) Partly for this reason, virtue ethics is taken by some to be distinct from, and even at odds with, natural law. (11) Aquinas plays a larger role than Aristotle does in Strang's account. While Thomas has always been understood as a kind of Aristotelian, his view of natural law has sometimes been seen as among the least Aristotelian elements of his thought. This is not a universal view: Alasdair Maclntyre and John Finnis have, in different ways, articulated moral theories that embrace both Aristotelian and Thomistic elements including both the virtues and the natural law. Maclntyre's view is articulated in a self-consciously historical mode and tends to emphasize the virtues; Finnis's view is articulated systematically and emphasizes (even more) the natural law as the method of sound practical reasoning. (12)

I mention these issues as a way of suggesting a second remarkable feature of Strang's book and an aspect of the larger debate to which it is a contribution. That is, the role of the history of political thought in some contemporary legal and political controversies. This seems particularly important in the case of originalism. An originalist appeals--depending on the sort of originalist one is--to original intentions, original public meaning, or original methods. While Strang takes his stand mainly with original public meaning, he weaves together all three strands of contemporary legal and constitutional originalism. This means that, for most (not all certainly) of the United States Constitution, we must look to the perspective of Americans from the late eighteenth century in construing its provisions. But how many of those Americans could have been characterized as Aristotelians or Thomists? Does this matter? Is it a problem to argue that one should be an originalist with respect to one's view of the Eighth Amendment but that one's originalism is in some meta-theoretical way a function of one's acceptance of Thomistic-Aristotelian moral and political philosophy (a philosophy with which the drafters of the Eighth Amendment had, it would seem, little explicit familiarity)? The U.S. Constitution is often considered paradigmatically modern, and the Framers' most philosophical influences were modern thinkers. (13) A not inconsiderable strain of originalism defends itself by reference to the very modernity of the Constitution, and in very modern terms. (14) And, as we shall see, some scholars explicitly committed to the pre-modern natural law tradition are quite critical not only of originalism but of the Constitution.

This raises yet another question about the ambitions of Strang's book: who is he most concerned to convince? Advocates of natural law who are dubious about the American regime and the claims of originalism? Or originalists who are dubious about any natural law account of American legal institutions and practices, and perhaps about the existence of a natural law itself? It is not always clear which audience he has most in mind, although, in pressing his most important normative arguments for originalism he seems to address both. But, as I argue below, this exacts a cost. Originalism's Promise's main virtue, and it is considerable, is in its patient, thorough, and admirably conscientious argument that there is no necessary incompatibility between originalism as a theory of constitutional interpretation and a natural law general jurisprudence. Its main shortcoming, however, is related to the very extensiveness of these arguments which seem to make Strang's defense of natural law originalism less convincing to the second audience, non-natural lawyers; but, at the same time, his attempts to persuade them lead to an unfortunate and consequential dilution of his presentation of natural law that in turn makes it less persuasive to the first audience.

In what follows, I want to consider these issues by first, in Section I, looking at a particular episode that exemplifies the potential hostility between originalism and the natural law view while focusing on the approach of perhaps the most famous originalist of all, the late Supreme Court Justice, Antonin Scalia. Second, in Section II, I survey Strang's natural law argument for originalism, concentrating on the fourth chapter of Originalism's Promise. Third, in Section III, I consider in more detail some questions about Strang's exposition of the "Aristotelian tradition" alongside his account of human flourishing and the role played in his theory by the common good. My conclusions here are critical because Strang's notion of the tradition is problematic for both reasons of content and method. His accounts of flourishing and of the common good are too thin to do the substantive work that he asks of them. I conclude in Section IV, however, that Strang's account nevertheless succeeds in showing that originalism is not inconsistent with the natural law. That may be enough to get Strang's larger originalist project off the ground, but is it enough to, as it were, bring it in for the sort of landing that Strang wants? Beyond this, I think his account is unlikely to prove convincing to anyone who does not already accept a more general natural law view. This, however, is probably not his most important aim and would be exceedingly difficult to accomplish in any case, at least in this sort of book. None of this should be taken for denial of the very great worth of Strang's contribution in Originalism's Promise. It points originalism in a new and important direction and deserves to be widely studied and engaged.

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