The Catholic Thing
Giving Effect to the Natural Law Print E-mail
By Patrick McKinley Brennan   
Monday, 12 July 2010

Ronald Dworkin once averred that no one wants to be called a natural lawyer. Obviously, Dworkin didn’t know Hadley Arkes, a man who has worked in season and out “to restore the natural law.” His latest offering, Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law, is vintage Arkes – an elegant, mature, and spirited account of how human law must have recourse to the natural law. Arkes’s argument is summed up in these words he quotes from the Virginia Declaration of Rights: “no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to first principles.” 

As part of his signature insistence on the exigence of appeal to first principles, Arkes has been out to debunk contemporary conservatives’ default legal positivism. In this he has done us a great service.Why?Conservatives’ (justified) fear that liberals on the bench will find in the natural law different contents than conservatives might find there is not itself a sufficient reason for judges to conclude that judges can never legitimately judge on the basis of the natural law. The possibility of a mistake in mathematics is not itself a sufficient reason not to do mathematics.

The analogy to mathematics is misleading, however, because while every rational soul is free to attempt mathematics, not all of us are authorized to make law. In fact, relatively few of us are vested with lawmaking offices. Legislators provide the focal case, and of course for centuries judges have made law behind the veil of “discovering” the common law. Today, administrators in myriad agencies also make law. The point is, different positive law mandates govern the respective lawmaking powers of these three different roles, and taking these assignments of office seriously is, moreover, a necessary entailment of Arkes’s own conviction that government derives its legitimacy from the consent of the governed.

It is here that we can pick up Arkes’s engagement with Justice Antonin Scalia’s notorious unwillingness to consult the natural law directly as part of his judging. Scalia affirms the existence of the natural law, to be sure, but denies that federal judges are authorized to consult it as a part of their decision-making. Arkes’s admiration of Scalia is palpable, yet Arkes is impatient with Scalia’s unwillingness to look beyond the positive law for purposes of reaching judicial judgment: “Scalia simply asserted the opinion of others that the judgment reached in Oregon has not come to be held yet by most other states. That is hardly the answer that the challenge demanded.”

The context for Arkes’s indictment of Scalia is the latter’s dissent from the decision in Gonzales v. Oregon (2006), where the Supreme Court upheld the right of the state of Oregon, through its Death With Dignity Act, to exempt from civil or criminal penalties state-licensed physicians who dispense or prescribe controlled substances in lethal doses upon the request of terminally ill patients. Attorney General John Ashcroft had taken the position that the federal Controlled Substances Act did not mean that assisting suicide was – as the federal statute undeniably required that any use of controlled substances be – for a “legitimate medical purpose.” The Court rejected Ashcroft’s interpretation of the federal statute, and thus allowed the state of Oregon’s statute to control. 

Scalia dissented, but not to Arkes’s satisfaction: “[Scalia] sought . . . to steer around the main moral argument: The state of Oregon had come to the judgment that the practice of medicine may be extended to encompass assisted suicide, but that move, he said, ‘does not change the fact that the overwhelming weight of authority (including the 47 States that condemn physician-assisted suicide) confirms that [it has not] yet been so extended.’” According to Arkes, Scalia’s “rather oblique approach” – as opposed to the Justice’s just plain ruling that physician-assisted suicide is not a legitimate medical use – “may have revealed the hesitations of a lawyer and judge who has been diffident, to put it mildly, about the claims of natural law and moral reasoning.” As Arkes goes on to note, though, Scalia reiterated three times that Ashcroft’s interpretation was “the most natural interpretation” (Scalia’s italics) of the federal statute. For Arkes, this comes close to cause for hope: “When Scalia said . . . that Ashcroft’s interpretation was ‘the most natural interpretation,’ I surmise he must have meant the most reasonable, the decision most in accord with the canons of reason.”

Is that surmise sound? Did Scalia believe he was doing something more than just interpreting the statute?  Like Arkes, I have written against the conservative refuge in positivism. Where I differ from Arkes, however, is in not assuming that the Court’s role is to construct the meaning of a statute according to “canons of reason.” The legislature had a meaning (what was it?), which it was presumptively the democratically-conferred job of the Attorney General and the courts to ascertain and give legal effect to. Of course, the people might conceivably confer on their judges an authority to bypass the legislators’ meanings and substitute a new (the “moral”) meaning, but I believe the case remains to be made that the American people have in fact given their federal judges that power simpliciter. Which is not to say that judges can morally enforce immoral statutes; recusal and resignation, though, are not the same as the power to substitute new meanings. 

Arkes’s book is a must read for anyone concerned about these questions. But a friendly query: has his commendable zeal on behalf of the natural law led him close to doing what Yves Simon once warned against, that is, to install raw and unlayered access to the natural law as a dissolvent of genuine cultural crises?             

Patrick McKinley Brennan, a first-time contributor to The Catholic Thing, is John F. Scarpa Chair in Catholic Legal Studies and Professor of Law at Villanova University School of Law. He is editor of The Vocation of the Child.

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Comments (8)Add Comment
Diff with Scalia?
written by Eric Giunta, July 13, 2010
Having read his penultimate paragraph, I'm having a hard time seeing how Mr. Brennan ISN'T, in fact, a conservative positivist in the Scalian sense. Sounds just like Scalia to me.
Justice Scalia has the better of it
written by James Danielson, July 13, 2010
Justice Scalia is closer to the mark than is Prof. Arkes in the matter of natural law and jurisprudence (at least as Prof. Arkes is celebrated by the author here). The truths of natural law in a well ordered society are mediated through tradition. The Constitution of the United States is an artifact of a political and cultural tradition that is battered in no small part by free lancing judges. The assertion that judges look through the Constitution to the principles of natural law thought to lie behind it, if that assertion is at issue here, is to be rejected as a dangerous concession of liberty to the “wisdom” of judges and a threat to good order. This argument is most urgent when judges pretend to inform society at large of the true meaning of some line in the Constitution as it bears upon legislation or upon decisions taken by the executive. (Article three of the Constitution makes no mention of anything like the inflated doctrine of judicial review that makes of our Supreme Court a perpetual constitutional convention.) If a judge is ruling in a case with no pretense of exhaling grand pronouncements on the new meaning of the Sacred Writ, no harm is likely to come from considering natural law principles in pursuit of equity. But the Constitution of the United States is a document of positive law the words of which, following the advice of the often misused Chief Justice Marshall, should be taken in their natural meaning. To urge upon judges more latitude than the modest scope given them in the Constitution disregards the salutary tradition of which the Constitution is an expression.
Responsibility of Jurists
written by John Anderson, July 13, 2010
This all brings to mind the statement that the Vatican released after the Holy Father met with Nancy Pelosi. In it he mentioned that not only legislators, but also jurists, have the responsibility to create law that protects human life.
Response to Prof. Brennan
written by Hadley Arkes, July 13, 2010
Patrick Brennan was operating under the serious constraints of the space in these columns as he sought to give a review of my book, and I’m grateful that someone would take on the task under those constraints. He did not give an account of the kinds of issues I take up in the book--he didn’t explain those “constitutional illusions” mentioned in the title; he didn’t have space to mention that the book deals with the Pentagon Papers Case, “prior restraint,” ex post facto laws, the old Lochner and Bob Jones University cases--and that I offer arguments that run counter to the currents at work in the law schools. Brennan made a plausible choice to concentrate on the issue of positivism and natural law, for natural law isthe central thread in the book.

But within the tight limits of the review, he has given accounts of my argument that are so truncated that readers get a most misleading and perhaps false account of what I say. What Brennan gives us are his own reservations about natural law--but without explaining the understanding of natural law put forth in the book he is reviewing.

Consider the treatment of Justice Scalia, whom I count as a friend. I would hardly use the word “indictment” to characterize my disagreement with part of his argument in the Oregon case on assisted suicide, when I was in fact offering ways of supporting his argument. Scalia was holding to the ancient view, running back to the Hippocratic oath, that the proper ends of medicine (and pharmaceuticals) is to restore the health of the patient, not to procure the death of the patient. Justice Kennedy conceded that this was a legitimate view, but one of only several plausible views. That enraged Scalia, who wished to insist that the classic understanding was the only “natural interpretation” and to “prove” his point cited the fact that 47 States rejected physician-assisted suicide. The point I made in criticism was this: If someone rejected a proposition that we understood to be a necessary truth, would we try to “prove” our point by saying that we asked for a show of hands and 47 out of 50 thought there was “truth”? I tried to show one path of natural law reasoning to make the point Scalia wished to make, that death cannot stand on the same plane as life as a rival good.

But when Scalia said that this was the only “natural interpretation,” did he mean “natural,” I asked, in the sense of reflexes (say, the hammer to the knee)? That couldn’t be it, for he had to know that Janet Reno, as Attorney General, dealing with the issue of drugs and assisted suicide, had come to a different judgment. And so if Scalia thought the classic view expressed a compelling “natural” truth, I surmised that he was more likely to be appealing to the canons of reason.

What Brennan neglected to report is that the natural law offered in the book finds its ground in the laws of reason, and not in generalizations about the human record or speculations about the conditions of human flourishing. And that is what makes his concluding sentence virtually impossible for me to understand. But when we understand that point, his quibble about over-using the analogy of mathematics rather massively misses the point. In the first place, it is simply a basic fallacy that the presence of disagreement indicates the absence of truth. That people fall into different interpretations in moral reasoning, or natural law--or even reading the text of the Constitution--cannot itself establish that there is no truth there to be discerned. The concern, reflected in Brennan, is about the misuse of natural law. Quite right. But we can be aware of a misuse only if we are aware, in the first place, of the principles that would distinguish a rightful use from a misuse, a plausible view from a false view. In that event, the corrective would not be to cease the moral reasoning altogether, but to sharpen our efforts and get ever clearer about the grounds of our judgments.

But let me return in closing to that concluding sentence, for I really find in hard to understand what a commentator, reading this book, could possibly have meant by it. The warning, put up in a friendly way, was to be cautious not “to install raw and unlayered access to the natural law as a dissolvent of genuine cultural crises.” My book offers, as I say, an understanding of natural law grounded in the canons of reason. The standards of judgment in dealing with the “crises of the culture” surely would have to come from those standards of reason: On what ground, after all, do we tell that we are in the presence of a crisis--that we see a "corruption," a serious question of right and wrong--and how do we steer out of the crisis with a sense of the coordinates we use unless we are relying on the canons of reason in guiding us? Daniel Robinson remarked that I don't lay out in this book an abstract theory with no suggestion as to how any of this bears on the judgment we have to render in dealing with cases before us. I know that I don't have to remind Patrick Brennan that I've been quite deeply involved for 30 years in explaining the connection between these principles of natural law reasoning and the problems of abortion and marriage that have been at the center of the moral and political crises of our own day.

And so what could that last sentence mean? If there is a possibility at all of resolving or "solving" these crises it could only involve an appeal to right reason as opposed to wrong reason, no? If the question here is different from the grounds or standards for resolving the problem--if it is a question of how the doubts and corruptions can be quelled, that is a different kind of question. And it may be that they cannot be quelled if the people around us are so refractory that they cannot finally respond to a sound understanding--if that better reasoning can be offered to them. One answer then is that, in our conservative outlook, we are not surprised if some of these problems remain intractable, given the condition of those fallen, forked creatures we are. On this matter, though, I should have thought that Brennan’s concerns would have been amply addressed in that chapter on in which I offer one “Good Word on Behalf of Legal Positivism.” I should have thought he would have found there an argument, grounded in natural law, and properly limiting the reach of judges. It is an argument for positivism drawn from the concern for prudence--that there will always be a need for positive law, and there will be a need also at times to make an accommodation with a world less than perfect, for the sake of compressing evils. And that large sense of the project in jurisprudence is all quite contained in the understanding of natural law.

Patrick Brennan took on a tough task, and perhaps the service he rendered me here is that anyone trying to sort out the difference on display here in the Catholic Thing will find it necessary to read that new book.
Reservations about the natural law?
written by Patrick Brennan, July 13, 2010
Arkes is right that the word limit didn't begin to allow me to do justice to the richness of his book. I took up the topic of natural law and judicial access thereto because, as Arkes notes, it's the thread that binds the book together. In addition, it's a topic on which, as I noted, I've pondered and written. I didn't mean to express, and I don't believe I did express, "reservations about the natural law." Sed contra. My question is what access judges should have to that real law when reaching judicial judgment, and my argument, though compressed by the word limit, was that what role judges have in speaking the natural law directly is itself, in part, a question of the terms of positive law. The people could conceivably install judges to do what Aristotle called "animate justice." Alternatively, the people could install judges who are to be bound by the terms of written law. In the latter case, if the written law be iniquitous, judges must not proceed to judgment; they are not, however, tasked with substituting a new (and morally upright) law on the basis of which to proceed to judgment. My point is that from the natural law itself, nothing follows necessarily about what access judges are to have to speak its terms directly. From the natural law itself, however, it does follow that the people's representatives are not to usurp power they have not received from the people. What I didn't say in my review is that I take a rather capacious view of the role the people have in fact conferred on their federal judges, though not as wide as the one Arkes defends. With respect to the concluding sentence of my original post, I was getting at the fact, as it seems to me, that judges' invoking conclusions regarding the terms of the natural law in order to invalidate positive law faces an uphill battle about which we should be duly cautious. Not proceeding to judgment because the law is iniquitous, is one thing. Substituting a new rule of decision, however, is another. The latter course would be more prudent in a culture that believed more than ours does that there exists a natural law that is indeed divine in its pedigree and obligatory force.

By all means, read Arkes's wonderful book. By the same token, read my chapter, "Locating Authority in Law," in the book I edited Civilizing Authority (2007)
Last thoughts
written by Hadley Arkes, July 13, 2010
I very much appreciate Patrick Brennan’s response, I remain a fan of his, and we’ll all have to see his essay on “Locating Authority in Law.”
But I’d post one last caution (I hope): I had written that essay on natural law for the sake of trying to make that case for natural law a little harder for friends like Justice Scalia to reject it. I’m sure he’ll summon his deep arts for the sake of holding his ground. But the argument I crafted was aimed precisely at making it untenable to hold so easily to that position marked by Patrick Brennan: “that from the natural law itself, nothing follows necessarily about what access judges are to have to speak its terms directly.” Now, whether Brennan can overcome my argument or not, the readers should know that I made, I think, a strong case to show the wrongness of withholding medical treatment from people with deafness, Down’s syndrome, and other afflictions, on the moral assumption that they had “lives that were not worth living.” That is strikingly different from a decision to withhold surgeries under conditions that made them impracticable or would cause more harm than they would relieve. I submitted that the argument here was grounded in the “laws of reason,” that it did not depend in the least on the conventions that held in this tribe of Americans. There was nothing in the least hazy about it, and it would be the same in all places where the laws of reason were intact. Judge Ralph Winter once sought to show, in a case before him, that it would be wrong to withhold treatment from a child afflicted with spina bifida for reasons quite close to those I explained in my book. I don’t see how one could say that Winter exceeded his authority as a judge, or acted on a principle too cloudy, too lofty, to bear on the cases before him. The natural law is not in the clouds; it is with us at every turn and yes, it furnishes the ground of practical judgment.
nice article
written by Pete brown, July 13, 2010
Thank you for clarifying once again, that Scalia's positivistic jurisprudence is not really the Catholic tradition at all. This fact has been obscured by the fact that Scalia himself often suggests otherwise and that conservative Catholics over the past generation have championed this approach as the best alternative to left-wing judicial activism.
written by John G. Parisi, August 14, 2010
You can sin against God and he will forgive you.
You can sin against man and he will forgive you.
But don't sin against Mother Nature or the Natural, neither will forgive you.
Don't believe me, jump out of an airplane without a parachute see what happens.

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