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The literature of natural law is complex, copious, and monthly
growing vaster. All I aspire to accomplish in this second lecture
on “The Future of Justice” is to offer some general introduction to
the subject, together with reflections on the protections and
dangers of natural-law doctrines, and observations concerning
natural law and constitutional government.
A great deal of loose talk about natural law has occurred in
very recent years. It was objected to Judge Bork’s nomination to
the Supreme Court that Bork did not believe in natural law; and
when Judge Thomas was interrogated for that bench, the objection
was raised that he did believe in natural law. These protestations
came mostly from the same group of senators. Clearly a good many
public men and women nowadays have only vague notions of what is
signified by this term natural law.
Objectively speaking, natural law, as a term of politics and
jurisprudence, may be defined as a loosely knit body of rules of
action prescribed by an authority superior to the state. These
rules variously (according to the several differing schools of
natural-law and natural-rights speculation) are derived from divine
commandment; from the nature of humankind; from abstract Reason; or
from long experience of mankind in community.
But natural law does not appertain to states and courts merely.
For primarily it is a body of ethical perceptions or rules
governing the life of the individual person, quite aside from
politics and jurisprudence. When many persons ignore or flout the
natural law for human beings, the consequences presently are
ruinous — as with the unnatural vices that result in the disease
of AIDS, or with the ideological passions, defying the norm of
justice, that have ravaged most nations since the First World
War.
The natural law should not be taken for graven Tables of
Governance, to be followed to jot and tittle; appealed to in
varying circumstances, the law of nature must be applied with high
prudence. As Alessandro d’EntrevSs writes, “The lesson of natural
law is in fact nothing but an assertion that law is a part of
ethics.” And, he concludes “The lesson of natural law [is] simply
to remind the jurist of his own limitations…. This point where
values and norms coincide, which is the ultimate origin of law and
at the same time the beginning of moral life proper, is, I believe,
what men for over two thousand years have indicated by the name of
natural law.”
On the one hand, natural law must be distinguished from positive
or statutory law, decreed by the state; on the other, from the
“laws of nature” in a scientific sense — that is, from
propositions expressing the regular order of certain natural
phenomena. Also natural law sometimes is confounded with assertions
of “natural rights,” which may or may not be founded upon classical
and medieval concepts of natural law.
The most important early treatise on natural law is Cicero’s De
Re Publica. The Ciceronian understanding of natural law, which
still exercises strong influence, was well expressed in the
nineteenth century by Froude: “Our human laws are but the copies,
more or less imperfect, of the eternal laws so far as we can read
them, and either succeed and promote our welfare, or fail and bring
confusion and disaster, according as the legislator’s insight has
detected the true principle, or has been distorted by ignorance or
selfishness.”
As interpreted by the Roman jurisconsult, and later by the
medieval Schoolmen and Canonists — Thomas Aquinas especially —
the legacy of the classical jus naturale endured with little
challenge until the seventeenth century. In England during the
sixteenth century it was powerfully upheld by Richard Hooker in his
Laws of Ecclesiastical Polity. In the Christian world the natural
law was received as a body of unwritten rules depending upon
universal conscience and common sense, ascertainable by right
reason. But with the stirrings of secularism and rationalism during
the seventeenth century, a new interpretation of “natural law”
began to develop, conspicuous (near the end of the century) in the
works of Hugo Grotius and Baron Samuel von Pufendorf. This latter
secularized concept of natural law was held by many of the
philosophes of the eighteenth century, and took on flesh during the
French Revolution, when it was vulgarized by Thomas Paine.
Nevertheless, the older understanding of natural law was not
extinguished. It was ringingly reasserted by Edmund Burke, in his
distinction between the “real” and the “pretended” rights of men.
Through the disciples of Burke, and through the influence of the
Catholic Church, the classical and Christian natural law has
experienced a revival in the latter half of the twentieth
century.
During the nineteenth century, natural-law concepts were
overshadowed by the powerful Utilitarian system of Jeremy Bentham;
by the theories of John Austin and the Analytical Jurists; by legal
positivism; and later — particularly in the United States — by
legal pragmatism. In the United States, the older and newer schools
of natural law have contended against each other since the latter
half of the eighteenth century, and both have been hotly assailed
by positivistic, utilitarian, and pragmatic interpretations of law.
Yet appeals to the “natural law” or “a higher law” have recurred
often in American politics and jurisprudence; both conservatives
and radicals, from time to time, have invoked this law of
nature
The Catholic Church continues to adhere to the classical and
Thomistic understanding of the natural law — to an apprehension of
Justice that is rooted in the wisdom of the species. Sir Ernest
Barker put thus the idea of natural law: “This justice is conceived
as being the higher or ultimate law, proceeding from the nature of
the universe from the Being of God and the reason of man. It
follows that law — in the sense of the law of the last resort —
is somehow above lawmaking.”
The most lucid and popular exposition of natural law it to be
found in the Appendix, “Illustrations of the Tao,” to C. S. Lewis’s
little book The Abolition of Man. Therein Lewis distinguishes eight
major natural laws of universal recognition and application,
together with several illustrations of each, drawn from a wide
diversity of cultures, religions, philosophical discourses, and
countries. He expounds the Law of General Beneficence; the Law of
Special Beneficence; Duties to Parents, Elders, Ancestors; Duties
to Children and Posterity; the Law of Justice; the Law of Good
Faith and Veracity; the Law of Mercy; the Law of Magnanimity. No
code of the laws of nature ever having existed, it is ineffectual
to try to enforce that body of ethical principles through courts of
law; no judge hands down decisions founded directly upon the
admonition, “Honor thy father and thy mother, that thy days may be
long in the land” — or the Commandment’s equivalents in the
Babylonian List of Sins, the Egyptian Confession of the Righteous
Soul, the Manual of Epictetus, Leviticus, the Analects, or Hindu
books of wisdom. Nevertheless, such perpetual precepts lie behind
the customs and the statutes that shelter father and mother.
So much, succinctly, by way of definition. Turn we now to the
difficulty of explaining natural law to the average sensual man.
Permit me to discourse with you for a little while about natural
law and the moral imagination. Incidentally, I am helped here by an
unpublished essay by the late Raymond English, who understood and
praised the natural law, and understood and despised the claims for
“natural right.” Let me quote English directly:
Permit me, ladies and gentlemen, to repeat here that the natural
law is more than a guide for statesmen and jurists. It is meant
primarily for the governance of persons — for you and me, that we
may restrain will and appetite in our ordinary walks of life.
Natural law is not a harsh code that we thrust upon other people:
rather, it is an ethical knowledge, innate perhaps, but made more
clearly known to us through the operation of right reason. And the
more imagination with which a person is endowed, the more will he
apprehend the essence of the natural law, and understand its
necessity. If such a one, despite his power of imagination, offends
against the natural law, the greater must be his suffering. So I
have discovered in the course of a peregrine life. And over a good
many decades I have found that most contemners of the natural law
are dull dogs, afflicted by a paucity of imagination. As Adam
Mickiewicz instructs us:
Such is the case for the importance of natural law. Permit me to
turn now to the case against natural law, as expressed by the legal
positivists — most strongly, perhaps, by the German scholar Hans
Kelsen. They regard natural law as a body of sentimental fictions;
they hold that the state is the only true source of law. The views
of John Austin and the Analytical Jurists are similar: all law is
decreed by the political sovereign, they hold. Rather than moving
abstractly among the several schools of jurisprudence in the
twentieth century, I offer you now the contents of a letter I
received recently from a German inventor and industrialist who had
read in the Bavarian magazine Epoche some remarks of mine on
natural law. My correspondent is a very intelligent and indeed
talented man, considerable of a naturalist in that he studies flora
and fauna. In politics, I suppose he may be classified as a German
liberal of the old school. His communication, refreshingly innocent
of the jargon of jurisprudence and ethics, suggests the mentality
that lies behind the denigration of natural law by positivists and
secular humanists, who recognize and deride the Christian and the
classical origins of the idea of natural law.
“Whether the term ‘law of nature’ is more frequently used
nowadays, or whether the jus naturale is an old invention,” my
German correspondent begins, “I think this term is wrong and
misleading. There is no law or legislative system which can be
derived from nature. Nature has rules developed during evolution,
but there is only a jus hominis and no jus naturale.”
all ethical norms are developed and worked out by human beings,
in this case mostly by the homo stultus, subspecies sapiens…. The
order of nature follows in many respects the right of the stronger,
which, in fact, keeps nature with all its plants and animals in
excellent shape. But mankind has set up ethical rules, good ones
and bad ones, very different from natural rules. Many of these
man-made rules are quite bad, sinning against nature….
The very deplorable situation of the species homo stultus comes
from wrong ethical rules, which are against nature. I am not
pleading for the right of the stronger between human beings, but
for more influence of the rare subspecies sapiens, especially of
those individuals who understand nature — which means also the
nature of human character. Unfortunately Jesus did not understand
the real nature of men; nor do the socialists understand it when
they expect that people will work for the state rather than for
themselves….
I offer another example, in which American legislators have
chosen the wrong solution. There is a law in the United States, if
I am correct, which forbids the killing of foreign heads of state.
If I am correct this is concerned with clandestine actions, e.g. by
the CIA. This law is unethical. Assuming that no American president
or the American government plans to eliminate a foreign dictator
just for fun, but rather because he is a danger to the United
States or to his own people or both, then removing a dictator as
soon as possible would save the lives of many; and is, in
consequence, completely justified.
Failing to realize that often human character is bad must lead
to destroying a society through leniency. We have to determine when
our ethical laws accord with nature and when they counteract
nature. We must not ignore “the rule of the fittest,” when we
decide to kill a dictator, for instance. We acknowledge the right
of every nation to use as much force as possible when fighting
another nation to death. The fight between nations follows what
could be called natural right, but is better called the rule of
nature.
For this German correspondent of mine, you will have noted,
“nature” signifies animal nature, Darwinian nature, red in tooth
and claw. Therefore he despises appeals to natural law, and
believes that not only all positive or traditional law, but all
ethical principles, are human creations merely. And these human
contrivances, he implies, sometimes may be mistaken; we might be
wiser to found our human institutions on the principle of
competition, favoring the fitter.
Here, I suggest, we perceive the mentality that lies back of the
jurisprudence of Hans Kelsen and certain other positivists: critics
of the whole concept of natural law.
Yet in one matter my correspondent does turn to the extreme
medicine of natural law: his commendation of tyrannicide. This is
interesting, as it is related to Germany in this century.
German jurisprudence demands that the citizen be strictly
obedient to the state, for the state is the source of all law, the
omniscient keeper of the peace. No law but positive law has been
recognized in Germany since the fall of the German monarchy;
natural law has no place at all.
Adolph Hitler, chosen Reichschancellor by lawful means, and
confirmed in power by the Reichstag in 1933, was sustained later by
national plebiscites. He was the head of the German state, the
source of all law, to which all Germans had been taught obedience.
Yet certain Germans — army officers, scholars, professional
people, chiefly — found his actions evil. By quasi-constitutional
means he had subverted the constitution. His popularity had become
tremendous, and his military power. Only by death might he be
removed.
Therefore a little knot of brave and conscientious men
determined to save Germany and Europe by killing Hitler. They had
been reared in the doctrine that all citizens must obey the
inerrant state. In this exigency, however, they turned to doctrines
of natural law for justification. Was there no remedy against an
unnatural master of the state? In the teachings of natural law they
discerned a fatal remedy. Fatal to them, at least; for nearly all
of the heroic men involved in the several conspiracies against
Hitler died frightful deaths. I knew well Dr. Ludwig Freund, a
kindly professor of political science, one of the two survivors of
the first plot to kill Hitler. By nature Professor Freund was a
law-abiding gentleman. And being law-abiding, in defense of true
law he was prepared to slay the chief of state, perverter of
Germany’s laws and the laws of man’s nature.
I repeat that we have recourse to natural law, as opposed to
positive law, only as a last resort, ordinarily. My only service as
a jurist occurred in Morton Township, Mecosta County, some decades
ago, when for two consecutive terms I was elected — unanimously —
justice of the peace. When determining a disputed boundary between
two farms, a justice of the peace does not repair to theories of
natural law and meditate upon which of two claimants is the more
worthy of judicial compassion; rather, the justice of the peace
turns to statute, common law, possibly to local custom — and to
the files of the recorder of deeds at the county seat. And so it is
with the ordinary administration of law at every level. Statute,
charter, and prescription ordinarily are sufficient to maintain the
rule of law — the end of which, we ought not to forget, is to keep
the peace.
Yet to guide the sovereign; the chief of state; the legislator;
the public prosecutor; the judge when, in effect, he sits in equity
— to guide you and me, indeed — there endures the natural law,
which in essence is man’s endeavor to maintain a moral order
through the operation of a mundane system of justice. Unlike my
German correspondent, the sustainer of natural law knows that there
is law for man, and law for thing; and that our moral order is not
the creation of coffee-house philosophers. Human nature is not
vulpine nature, leonine nature, or serpentine nature. Natural law
is bound up with the concept of the dignity of man, and with the
experience of humankind ever since the beginnings of social
community.
It will not do to substitute private interpretations of natural
law for common law or civil law, any more than it would have been
well for England, during the Reformation, to have obeyed the
“Geneva Men” by sweeping away common law and the whole inherited
apparatus of parliamentary statutes, to substitute the laws of the
ancient Jews. Positive law and customary law, in any country, grow
out of a people’s experience in community; natural law should have
its high part in shaping and restraining positive and customary
laws, but natural law could not conceivably supplant judicial
institutions. Yet were natural-law concepts to be abandoned
altogether — why, then, indeed, the world would find itself
governed by
Turn we now to relationships between the natural law and the
American judiciary. Not since Associate Justice Joseph Story
adorned the Supreme Court of the United States, early in the
nineteenth century, has any member of the Supreme Court had much to
say about natural law. Nevertheless, in recent decades a number of
Supreme Court decisions seem to have been founded upon natural-law
notions of a sort. I think, for instance, of the Warren Court’s
decision (the opinion written by Chief Justice Warren himself) that
congressional districts within the several states must be so drawn
in their boundaries as to contain so nearly as possible the same
number of persons within the several districts — a matter
previously left to the discretion of state legislatures. In part,
this intervention was founded upon Jeremy Bentham’s principle of
one man, one vote; but also there seems to have lurked at the back
of the minds of justices the notion that exact political equality,
as told by numbers, somehow is “natural,” whatever state and
federal constitutions might prescribe and whatever the opinions of
the Framers may have been. One might cite, too, the Court’s
decisions in the school-desegregation cases. This question having
been raised, let us examine how far we should appeal to natural law
against statute and Constitution. Here we turn to an historical
example and to the judgment of a leading American political and
religious writer who endeavored to reconcile the claims of
authority and the claims of freedom.
I refer to the “higher law” controversy of 1850 and to Orestes
Brownson, the Catholic scholar and polemicist. In March 1850, on
the floor of the United States Senate, William Henry Seward made
his famous declaration that there exists “a higher law than the
Constitution.” He was referring to the Fugitive Slave Law and the
Supreme Court. At once a hot controversy arose. In January 1851,
Brownson published his review-essay entitled “The Higher Law,” in
which he refuted the claim of Seward, the Abolitionists, and the
Free- Soilers to transcend the Constitution by appealing to a moral
“higher law” during debate on the Fugitive Slave Bill.
there is a higher law than the Constitution. The law of God is
supreme, and overrides all human enactments, and every human
enactment incompatible with it is null and void from the beginning,
and cannot be obeyed with a good conscience, for “we must obey God
rather than men.” This is the great truth statesmen and lawyers are
extremely prone to overlook, which the temporal authority not
seldom practically denies, and on which the Church never fails to
insist….
But the concession of the fact of a higher law than the
Constitution does not of itself justify the appeal to it against
the Constitution, either by Mr. Seward or the opponents of the
Fugitive Slave Law. Mr. Seward had no right, while holding his seat
in the Senate under the Constitution, to appeal to the higher law
against the Constitution, because that was to deny the very
authority by which he held his seat…. After having taken his oath
to support the Constitution, the Senator had, so far as he was
concerned, settled the question, and it was no longer for him an
open question. In calling God to witness his determination to
support the Constitution, he had called God to witness his
conviction of the compatibility of the Constitution with the law of
God, and therefore left himself no plea for appealing from it to a
higher law.
We cannot be bound, Brownson continued, to obey a law that is in
contravention of the law of God.
The Abolitionists and Free-Soilers, Brownson remarked, had
adopted the Protestant principle of private judgment.
The Church, Brownson writes, is the authoritative interpreter of
the divine law. He reminds his readers that the state is ordained
of God; but the state is not the supreme and infallible organ of
God’s will on earth.
Brownson’s argument — which we have not time enough to analyze
in full today — in substance is this, in his own words: “Mr.
Seward and his friends asserted a great and glorious principle, but
misapplied it.” It was not for them to utter commands in the name
of God. Their claims, if carried far enough, would lead to anarchy.
The arguments of some of their adversaries would lead to
Statolatry, the worship of the state.
Brownson advocated compliance with the Fugitive Slave Law, which
clearly was constitutional; indeed, obligatory under Article IV,
Section 2 of the Constitution It was his hope to avert the Civil
War which burst out ten years later. “Now there is a right and a
wrong way of defending the truth, and it is always easier to defend
the truth on sound than on unsound principles,” he wrote. “If men
were less blind and headstrong, they would see that the higher law
can be asserted without any attack upon legitimate civil authority,
and legitimate civil authority and the majesty of the law can be
vindicated without asserting the absolute supremacy of the civil
power, and falling into statolatry — as absurd a species of
idolatry as the worship of sticks and stones.”
Very possibly, ladies and gentlemen, you have found in these
passages from “The Higher Law” and in Brownson’s general argument
various considerations highly relevant to our own era.
As Brownson remarks, the natural law (or law of God) and the
American civil law are not ordinarily at swords’ points. Large
elements of natural law entered into the common law of England —
and therefore into the common law of the United States — over the
centuries; and the Roman law, so eminent in the science of
jurisprudence, expresses the natural law enunciated by the Roman
jurisconsults. No civilization ever has attempted to maintain the
bed of justice by direct application of natural-law doctrines by
magistrates; necessarily, it is by edict, rescript, and statute
that any state keeps the peace through a system of courts. It
simply will not do to maintain that private interpretation of
natural law should be the means by which conflicting claims are
settled.
Rather, natural law ought to help form the judgments of the
persons who are lawmakers — whether emperors, kings,
ecclesiastics, aristocratic republicans, or representatives of a
democracy. The civil law should be shaped in conformity to the
natural law — which originated, in Cicero’s words, “before any
written law existed or any state had been established.”
It does not follow that judges should be permitted to push aside
the Constitution, or statutory laws, in order to substitute their
private interpretations of what the law of nature declares. To give
the judiciary such power would be to establish what might be called
an archonocracy, a domination of judges, supplanting the
constitutional republic; also it surely would produce some curious
and unsettling decisions, sweeping away precedent, which would be
found highly distressing by friends to classical and Christian
natural law. Only the Catholic Church, Brownson reasoned, has
authority to interpret the laws of nature; but the Supreme Court of
the United States, and the inferior federal courts, and our state
courts, take no cognizance of papal encyclicals. Left to their
several private judgments of what is “natural,” some judges
indubitably would do mischief to the person and the republic. The
Supreme Court’s majority decision in the case of Roe v. Wade — in
which a pretended “right of privacy,” previously unknown, was
discovered — in actuality amounted to a declaration of the
“natural right” of a mother to destroy her offspring.
Now it seems to me curiously naive to fancy that American courts
always would subscribe to Thomistic concepts of the laws of nature,
and abjure Jacobin doctrines of natural right. Courts of law must
ordinarily accord with the general legislative authority; otherwise
the Book of Judges is followed by the Book of Kings.
In the seventh edition of The Conservative Mind, I have written
that the first canon of conservative thought is “Belief in a
transcendent order, or body of natural law. Political problems, at
bottom, are religious and moral problems. A narrow rationality,
which Coleridge called the Understanding, cannot of itself satisfy
human needs…. True politics is the art of apprehending and
applying the Justice which ought to prevail in a community of
souls.”
Now Mr. Robert Bork, whose opinion as to the application of
natural-law doctrines by members of the Supreme Court I have just
now endorsed with some vigor, has taken notice of this. In an essay
entitled “Natural Law and the Constitution,” Mr. Bork advises my
friend Mr. William Bentley Ball to abjure my exhortation of this
sort. “The dictum also is inaccurate,” Bork adds, “for it
arbitrarily disqualifies as conservatives people who accept and
struggle to preserve every conservative value but who do not
believe that such values derive from a transcendent order.” One
might as well say, I suggest, that the Church ought not to
emphasize the dogma of the Resurrection because that might alienate
some people who are not Christians, but are possible
well-wishers.
I have thought highly of Mr. Bork — although he seems to have
no clear understanding of natural law and its function — but he
appears to have thought lowly of me. Perhaps we both have been
mistaken.
That federal judges, Mr. Bork included, have not been learned in
the natural law is one of the educational misfortunes of our age.
When the time is out of joint, we can repair to the teachings of
Cicero and Aquinas and Hooker about the law of nature, in the hope
that we may diminish man’s inhumanity unto man. The natural law
lacking, we may become so many Cains, and every man’s hand may be
raised against every other man’s.
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