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The Natural Law and an Easter Story Print E-mail
By Hadley Arkes   
Tuesday, 10 April 2012

William Blackstone, that legendary commentator on the laws of England, remarked that the law could not contain a principle of revolution. Laws settle the order of things; revolutions unsettle them. But James Wilson, one of the leading minds among the American Founders, insisted that “a revolution principle certainly is, and certainly should be taught as a principle for the constitution.” 

For the law in America would begin with the recognition that there could indeed be an unjust law. But that made sense only if one understood that there was a body of principles by which one could judge the rightness or wrongness, the justice or injustice, of those measure that were enacted into law.

The philosopher John Locke unfolded the logic of the matter in a series of questions. What was the source, he asked, of the positive law, the law that was “posited” or enacted. Answer: the legislature. What was the source of the legislature? Answer: the constitution, for it tells of whether we have a legislature and of how many chambers. 

But then what was the source of the constitution? It had to be found, said, Locke in some source “antecedent to all positive laws” and that authority was “depending wholly on the people,” on their natural right to be governed with their own consent.

As Abraham Lincoln understood, the American republic did not begin with the Constitution. What we have come to know as the Constitution is really our second Constitution, coming in 1788. The American regime began with the Declaration of Independence, with the “Laws of Nature and Nature’s God,” with the Creator who “endowed” us with certain natural, “unalienable rights.”  

The task of a Constitution was to arrange a practical structure of governance that would be consistent with those underlying principles. And that was why some of the most notable Founders were resistant to adding a “Bill of Rights.” The Constitution was not the source of our rights, and there was a concern that the mention of some rights would imply the lesser importance of those not mentioned. 

And that list of rights would foster the mistake we commonly hear when people invoke “those rights we enjoy through the First Amendment” – as though in the absence of the First Amendment and the Constitution we would not have those rights.

That first generation of American lawyers, of the caliber of John Marshall and Alexander Hamilton, persistently traced their judgments back to those axioms of the law that were never set down in the text of the Constitution.

 

Marshall once pointed out that the Constitution did not give the Congress the power to punish anything but piracies on the high seas. But the mark of a government was the power to make laws, and how could “laws” be laws unless they could be enforced and people could be punished for disobeying them?  

I raise this issue now because in the responses last week to Robert Royal’s column, one of our readers fell into a mistake remarkably common even among Catholics. He complained that “natural law folks like Arkes and [Robert] George. . .do believe that judges should at times enforce particular implicit values.”  

But that is exactly what lawyers at the Founding did all the time as they drew on those “laws of reason” that underlay the law.  As Daniel Robinson has observed, the very project of founding a system of laws on certain underlying principles of right is nothing else than a project of the natural law.  

A good friend of mine, a professor at a Catholic law school, wrote me recently that no Article III judge under the Constitution – i.e., a judge with permanent tenure – had the authority to invoke the natural law. But if that was a key principle for him, that principle was nowhere set down in the Constitution. On what ground then did he take it be true – and binding on us?

One way or another he was backing into the notion of a deep principle that did not depend for its truth on being mentioned in the Constitution. Rightly or wrongly, he was backing into some version of natural law.

Catholics have come to know Aquinas’s teaching, that the divine law we know through revelation, but the natural law we know through that reason that is “natural” for human beings. It seems persistently to come as a surprise to Catholics as well as non-Catholics that the Catholic argument on abortion is a weave of embryology and moral reasoning.  

One does not have to be Catholic to understand the Catholic argument here. And the other truth, still dimly understood, is that the tradition of natural law and moral truths has found its main sanctuary now in the Church and Catholic circles, while the currents of relativism have eroded the schools of philosophy.

Easter Sunday, April 8, after services with Fr. Scalia at St John the Beloved in McLean, VA: I encounter an appealing young lawyer with his lovely family. When he hears my name, he tells me that my books First Things and Natural Rights & the Right to Choose brought him into the Church. 

I had heard the story before, from former students who had been drawn back, or drawn to the Church, before I had come in myself. And once again, in a wondrous way: it was the natural law, bringing us back to home ground.

 
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and the Director of the Claremont Center for the Jurisprudence of Natural Law in Washington. D.C. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.
 
The Catholic Thing is a forum for intelligent Catholic commentary. Opinions expressed by writers are solely their own.
 
 

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Comments (15)Add Comment
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written by Gian, April 10, 2012
Constitution is like Scripture. It requires a Tradition within which it makes sense.

The question is why have a Constitution at all? British did very well without one.

And "consent of the governed" means less than what it seems to. Can I withdraw my consent? Indeed, when have I ever consented?

The natural law would perhaps give us a
patriarchal theory of government. It suits the behavior of actual governments better than the "consent of the governed" and is intellectually respectable.

After all, the society is hierarchically
ordered. There are fathers and sons, husbands and wives, teachers and students, clergy and laity. It is an over-simplification to equalize them.

The Catholics view City as a Body and not as a mass, a collection of individuals. So there is need for a more sophisticated theory.

Traditional cities were ruled by Custom.
Now as custom begin to weaken, a part of custom was fossilized into the Sacred Constitution, that was made deliberately hard to change.

Another view is that the American Constitution is a declaration of war against Custom and the Ancient City. With the cry of pursuit of happiness, and liberty it declares that now Individual is to be Supreme and not the City. Thus it encodes Revolution in itself.
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written by Other Joe, April 10, 2012
Thank you Mr. Arkes. And thank all who rose to the defense of truth in the last 40 days. In order to prune back my sense of self-importance (always pushing out new buds and sucker growth) I tried not to comment during Lent and nearly succeeded. One of the persons who post here called this glorious site an echo chamber - at once giving lie to the complaint and spoiling for a moment a sanctuary, a very small sanctuary in a vast media enterprise which really is an echo chamber and in which conformity is enforced with threats and deionization. One can not "dialogue" with such as those as they are programmed to transmit only. Peace. He is risen.
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written by James Danielson, April 10, 2012
It isn't clear what "The American regime began with the Declaration of Independence,..." means. If it means that the Declaration of independence stands at the beginning of the process that resulted in the ratification of the Constitution, then this is clear but probably incorrect as the social development that led to the Declaration of Independence proceeded well before that document was written. If the claim is that the Declaration of Independence is a legal document, binding upon the states, and having the force of gathering them into a nation (presumably, one simply waiting for the establishment of a central authorithy), this is wrong. The Declaration is a political document announcing the separation of the states from the British Crown. This does not establish, or even imply, that the intent of the its writers and ratifiers was to form a nation bound under a central authority with legal and moral warrants to use force to keep the states under its dominion.
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written by Titus, April 10, 2012
The Law Professor's (I know several who might have said that) comments reflect the still-reverberating perniciousness of the Warren Court years (and in a way, of American jurisprudence since Holmes). For centuries, we understood how law works: given a text, or a common-law rule, a judge applied right reason to decide how the text or rule ought to govern the facts at hand. But then Holmes insisted that there were no principles or rules beyond legislative commands, and the Warren Court insisted that it could adjudicate disputes without reference even to the law's text.

So in the afflicted context in which we live, of course we are afraid of admitting that judges can locate the source of their decisions in something as subject to abuse as the natural law. That doesn't mean this view is correct, even though it indicates why it is understandable.
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written by jsmitty, April 10, 2012
Thanks Dr. Arkes. It's flattering for one of my comments to be quoted in your piece. Of course, I was contrasting your view on the subject of implicit values with those of Bork, Scalia, Lino Graglia, Raoul Berger et. al. whose views on jurisprudence mirrors the positivism of John Locke.

And my larger point was legal conservatives have painted themselves into a corner by choosing Borkean positivism as a response to the liberal activism of the Warren and Burger courts. It was an ad hoc strategy that made sense in the 70's and 80's. It could appeal to a broad swath of conservatives...Burkean traditionalists, Southern states rights types, small govt. libertarians, business types, law an order types, and even Christian fundamentalists since it offered a simplistic ahistorical way of reading the constitution, that was the same as the way they read the Bible. Just listen to Michelle Bachmann or Palin talk about jurisprudence and you'll see what I mean.

I'm happy to see a few thinkers on the right finally rearticulating traditional Thomistic natural law theory, or some reasonable facsimile thereof. But to gain any traction you're going to have to completely reeducate all the conservatives who cut their teeth reading Bork and Ed Meese...and lose 2/3 of them in the process!
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written by jsmitty, April 10, 2012
For some reason, I lost the end of my post. To add, I think you'd lose many conservatives in the process because there is really not alot of agreement when push comes to shove about what implicit, tacit, unwritten values would look like. In this sense, Bork was right.

You'd have an even greater problem if you tried to revive the full blown Thomistic theory of natural law in which natural law, along with human laws, are all just components of God's universal law that directs all human beings to their divinely appointed end. In other words, human law only has force to the extent it actually promotes human flourishing and ultimately salvation itself. This would be the ultimate criteria by which all human law would be judged.

But of course, you'd never get anywhere speaking of law in those terms today, even in Federalist society circles. Let's face it, Thomas' view of law would surely not have been too close to that of the founding Fathers either. Few men would ever agree on what would constitute the proper teleology of law, since this would soon bring up religious and philosophical questions about which there has been no consensus since the Enlightenment.

So, with respect, I think your and George's work masks some massive fault lines that exist on the right..and aren't likely to be bridged any time soon.

I will be interested to see how you and George meet these sorts of objections to your project.
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written by ann, April 10, 2012
Yahoo JSmitty.

You are so correct about Scalia et al.

I am a retired lawyer and although no Constitutional expert, I did write my substantial paper required for the J.D. on the history of the Natural Law.

In my recollection, the Founding Fathers relied on a version of the Natural Law, that although Lockean to a great extent, still had its roots in the legal history of England. Those roots included deep and profound influences on the Natural Law by England's Catholic thinkers, Bracton, Hooker, Coke and Blackstone.

Although internally contradictory at times and veering into idiocy at times in the Amercian courts, the Natual Law is and should be the unbrella under which all law is measured.

May it flourish in the future.

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written by Hadley Arkes, April 10, 2012
I’ve been late today in catching up with the comments, for I’m just returning from giving some talks on natural law at a Retreat for young priests at Longlea, deep in Virginia. For Mr. Danielson: When Lincoln at Gettysburg said that a new nation had been brought forth “four score and seven years earlier,” he was looking back to 1776, not 1787-89. As Lincoln and Justice Sutherland understood, the Union did not begin with the Constitution. The purpose of a constitution was to translate into a legal structure the principles that defined the character of the regime (or the American republic). For Lincoln the Union began with the proposition “all men are created equal,” that they were endowed with rights by the “Laws of Nature and Nature’s God,” and that the only rightful government over human beings drew its just powers from the “consent of the governed.” As Immanuel Kant reminded us, beyond any law there is a deeper principle that tells us why we would be justified in having laws on any subject in the first place. I’m afraid that Mr. Danielson has simply given us those well-worn fictions of the Confederacy in which the Declaration of Independence was only rhetorical. I’d remind him that the Declaration stands first in the organic laws of the United States. The framers drew on those deep principles in their work, and so they were clear that they were not in Philadelphia to construct a despotism. They understood that any government of law would respect the principles of lawfulness, and with that sense of things they went to try their hand at constructing a better constitution than the first one we had tried. If the principles did not come first, Mr. Danielson would have to explain just why the people who framed the Constitution or voted to ratify it were justified in imposing this structure of power on their fellow countrymen. I assume that he doesn’t think that the exercise of power provides its own justification, that Might makes Right.

Mr. Danielson is right on the point that the framers need not have constructed a highly centralized constitutional structure., Quite consistent with the principles of natural law there are different structures that might be devised, as prudence and experience are woven with principles more enduring.

I was afraid that I might have misunderstood our friend JSmitty, who has been such a loyal reader. But as he continued with the second installment of his post, he seemed to be throwing everything into the soup, along with some venerable confusions about natural law. One confusion then invited another as correspondent Ann then invited us to celebrate natural law even though she thought that at times it is “veering into idiocy.” I had hoped that the readers of the Catholic Thing could be counted on not to celebrate things “veering into idiocy.” May I suggest that the veering does not spring from the natural law, but from some of the self-appointed commentators.

May I offer though this plea: I wonder if people might be moved to read what I have had to say on the matter of natural law in books such as First Things, Beyond the Constitution, Constitutional Illusions and Anchoring Truths--before they impute to me, in a free hand, all of the flaws they have found in different versions of natural law. May I simply ask them to focus on what I have said on the subject.
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written by jsmitty, April 11, 2012
I'm not imputing any view to you Dr. Arkes. Apart from reading your book to find the exact contours of what you think natural law is....I still would be curious to see how you meet the obvious objection to the whole concept...namely that the sort of people most likely to be open in concept to the idea of implicit values which derive from God...wouldn't agree on what those values would be and thus aren't comfortable with judges invoking them. This has been Bork's and Scalia's objection all along. And I suspect it's what your garden variety Federalist Society member would think.

If your best response to that is "read my book", I doubt were going to see a revival of natural law theory in any form any time soon. It will remain a purely academic view defended by a handful of true believers.
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written by Michael Paterson-Seymour, April 12, 2012
Pascal asked “On what shall man found the order of the world which he would govern? Shall it be on the caprice of each individual? What confusion! Shall it be on justice? Man is ignorant of it.”

Hence, “He who obeys them [the laws] because they are just, obeys a justice which is imaginary and not the essence of law; it is quite self-contained [elle est toute ramassée en soi], it is law and nothing more.”

He recognised that appeals to Natural Law are futile, for “You are not in the state of your creation.”
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written by ann, April 12, 2012
Dr. Arkes,

As you said, I invite all to celebrate the Natural Law.

And it is true that I said it has veered into idiocy at time, but note I said in the American Courts.

I stand by that remark. There is a wonderful book, with which you might be familiar, "The Fountain of Justice", by John C.H Wu, a Chinese jurist exported to the United States who became enamored of the Natural Law. He also wrote another book, I have forgotten the name, in which attempted to find all the SCOTUS cases (and others as I remember) which relied on the Natural Law in the decision.

One case of "veering" was one justifying segregation because it was part of the Natural Law as demonstrated by the fact the Blackbirds gathered on the fence with Blackbirds and the Sparrows with Sparrows.

Frankly, the history of Natural Law in jurisprudence is full of mistakes about the subject. Were there not, I would think there would be more agreement about it currently.

By the way, Wu also had a long time correspondence with Oliver W. Holmes about the law, including our subject at points.

I caution you and your readers that I am writing from memory, and so stand ready for corrections from such as you.
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written by Hadley Arkes, April 12, 2012
I know that I shouldn't get involved in these discussions, and Mr Smitty has been a regular reader. But I don't know how I get through to him: I tell him that his questions would be answered in my books--that I've written on these matters at length. Now does he want me to rewrite them in the box in these comments? How does he know that my responses are academic and that they are not accessible to a larger audience until he has read them. As it happens I've been bringing those arguments to a larger public over the years in the talks I've given, coming in and going out, all over the land. Mr. Smitty treats it as some fault of mine that he has evidently not read me on the questions he poses. There is a kind of solipsism here: If he hasn't read the writings, then he assumes that the argument has not been made. I know that we keep these columns open to discussion, without being overly demanding in our requirements for participating, but there must some people some minimal demands of reason, no?

As for Ann: all kinds of gibberish have been offered over the years as natural law. Some people have even argued that incest and genocide must be in accord with natural law because they seem to be an intractable part of the human record--and therefore, it is argued, they must spring from something deeply planted in human nature If one has no idea of what separates a more plausible version of natural law from the idiocies that Ann is willing to classify as natural law, one is not prepared to enter a serious discussion.

I'm afraid that I'm showing a strain of impatience here with people who (I'm sure) mean well. And so I hope our readers will understand if I simply recede from these discussions and let out readers just offer their opinions, regardless of what preparation they bring to the matter. Have at it.
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written by ann, April 13, 2012
As for Ann: all kinds of gibberish have been offered over the years as natural law. Some people have even argued that incest and genocide must be in accord with natural law because they seem to be an intractable part of the human record--and therefore, it is argued, they must spring from something deeply planted in human nature YOU ARE MAKING MY POINT DR. ARKES. If one has no idea of what separates a more plausible version of natural law from the idiocies that Ann is willing to classify as natural law, one is not prepared to enter a serious discussion. I WAS DESCRIBING THE SITUATION WHICH I EMPHASIZE IS THE USE OF THE TERM NATURAL LAW IN WAYS NOT JUSTIFIED BY WHAT YOU TERM THE MORE PLAUSIBLE VERSION.

I WANT TO ASSURE YOU THAT I AM VERY FAMILIAR WITH NATURAL LAW THEORY, I HAVE STUDIED IT FOR YEARS. IT APPEARS THAT YOU MISSED THIS "Frankly, the history of Natural Law in jurisprudence is full of mistakes about the subject. Were there not, I would think there would be more agreement about it currently." HAD YOU NOT MISSED THIS YOU WOULD NOT BE SO INSULTING AS TO SAY THAT I INCLUDE IDIOCIES AS A LEGITIMATE VERSION OF NATURAL LAW. MISTAKES, DR. ARKES, ARE NOT A LEGITIMATE VERSION.

FRANKLY, DR. ARKES, YOU OWE ME AN APOLOGY. NOT ONLY DID YOU SEEM TO MISS MY POINT, YOU ARE RUDE ABOUT IT. I AM DISAPPOINTED IN YOU.

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written by ann, April 13, 2012
And here, for you and your readers I will demonstrate with the words of the magnificant mind of John C.H. Wu, the distnctions between the "true version of the natural law" and its counterfeits.

To tease your mind: "This describes the method of St. Thomas. It describes also the method of Bracton and, therefore, the Common Law tradition.88 It is most regrettable that practically all of the seventeenth, eighteenth and nineteenth century philosophers of Natural Law departed from this great tradition. They proceeded more geometrico; they wove whole systems of so-called
Natural Law just as a spider would weave a net out of its own belly. To mention a few, Hobbes, Spinoza, Locke, Pufendorf, Christian Wolff,Thomasius, Burlamaqui, Kant, Hegel, and even Bentham with his felicific
calculus, 4 all belong to the speculative group. Many of the nineteenth century judges in America abused the name of Natural Law by identifyingit with their individualistic bias. One of them even erected his irrational
racial prejudice to the dignity of Natural Law."5
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written by Strossmayer, April 19, 2012
"It seems persistently to come as a surprise to Catholics as well as non-Catholics that the Catholic argument on abortion is a weave of embryology and moral reasoning."

It is worth mentioning that when the Supreme Court ruled on Roe v. Wade in 1973 they not only violated the natural law, but overturned centuries of Anglo-Saxon common law, which had always held a child in the womb to be a human being endowed with human rights.

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