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The Recurring Natural Law

The American constitutional order is disintegrating. Members of Congress reject their duty to enact rational, coherent budgets or even to read, understand, and approve the legislation on which they vote. The American people are ruled more by regulations, Executive Orders, and administrative “guidance” than by law. University administrators, local politicians, and shadowy high-tech corporations increasingly stifle the voices of dissenters from the progressive orthodoxy, even as they empower “antifascist” bullies to threaten, dox, and physically assault them. Religious dissenters are ordered to actively celebrate ceremonies their consciences disapprove while religiously affiliated crisis pregnancy centers are told to advertise abortion services. And California, our elites’ trendsetter, has declared its intention to nullify federal legislation universally acknowledged to be constitutional in origin, substance, and form.

How did the United States reach this point of crisis — a crisis arguably deeper than any since the Civil War? As with the Civil War, the crisis centers on the relationship between law and morals. The Civil War resulted from deep differences regarding the legal status of the union (its ability to bind the states) and the moral status of laws maintaining slavery. Traumatized by the conflicts of war and reconstruction, legal scholars in the United States, as in Europe, increasingly moved toward a jurisprudence of legal positivism, separating law and morals in significant measure as an attempt to prevent moral conflict from disrupting the civil social order. But positivism has not brought peace. Instead contempt and outbursts of crude but moralistic ideology have become the norm as today’s professional managerial class seeks to use state and elite cultural power to replace traditional values and institutions with a stultifying web of progressive structures and movements.

Separating Law from Morals

This is not the first time separating law from morals has backfired. Heinrich Rommen faced the consequences of that tragic choice more than 70 years ago. Jailed when the Nazis came to power through manipulation of formal legal rules, he fled to the United States as Hitler was bending the law to serve his own murderous will. Republished by Liberty Fund in 1998, The Natural Law: A Study in Legal and Social History and Philosophy, first published in German in 1933, then translated and expanded into an English edition in 1947, is Rommen’s response, not just to Hitler, but to all who seek to eliminate natural law reasoning as a threat to rational order. For Rommen there can be no such order over time without recourse to a higher standard than the state. As Rommen points out, no society developing beyond subservience to supposedly immutable laws of tribal deities can avoid the question “Wherein lies, properly speaking, the ethical foundation of the coercive power of the state’s legal and moral order?”

Positivism is, Rommen shows, a perpetually doomed attempt to avoid this question. It “has only one criterion for law: the will of the sovereign formulated in accordance with the legislative process prescribed by the constitution…. It has no place for material legitimacy.” Positivism’s focus on (usually “democratic”) procedures prioritizes the will of the majority over human reason, thereby undermining people’s ability to recognize and oppose tyrants. Over time, however, positivism cannot escape the “perpetual recurrence of natural law.” Pure or corrupt, people’s inborn desire for meaning will be reflected in the legal sphere.

Rommen outlines two visions of natural law thinking central to Western Civilization since the Ancient Greeks. The first sees law as rooted in metaphysics; the truths of our nature, our ends, and our place in the order of being are embodied in law. Human laws are properly law, then, to the extent they respect our nature, ends, and place. The second, more liable to corruption, sees legal obligation as conventional, arising from a mythical state of nature in which people established an authority over themselves, with its decrees binding because of its sovereign position. Rommen insists that each of these views points to an understanding that law, in all its diversity, has for its source a law beyond any particular tradition, higher and more authoritative than the will of any ruler.

One might wonder whether a vision that encompasses Rousseau’s radicalism — which Rommen connects with the murderous French Revolution — should be seen as a genuine form of natural law. Rommen makes clear the dangers of the second, “natural rights” vision: it requires robust constitutional protections lest it devolve into tyranny and chaos; it too easily descends from respect for the person as a social being possessed of intrinsic dignity into an atomistic individualism that empowers the state at the expense of family and community; unchecked it ultimately will identity the will of the majority with the objective good. Moreover, in the Early Modern Era the rise to dominance of the natural rights vision — as exemplified by Hobbes’ celebration of Leviathan — allowed for the breakdown of traditional natural law understandings throughout the West. The medieval era and the late-scholastic era that followed in Catholic Europe nurtured understanding of man’s place in the order of existence and the role of reason and law in establishing good order. Unfortunately, early modern thinkers such as Hobbes, Pufendorf, and Kant began separating the individual person and his reason from their social and metaphysical context; in the process they began separating law from morals.

Natural Rights

Even in its “agnostic” form, however, natural rights thinking shares with traditional natural law the essential recognition that we can access, if imperfectly, the rational order of existence and so work out a pattern for our lives together. Like traditional natural law, natural rights theory recognizes that laws, like people and their communities, have real, discernible purpose. What positivists dismiss as subjective moralizing, natural lawyers of all kinds understand as our inborn drive to lead purposeful lives within a network of important, overlapping relationships that tie us to a variety of communities and common goods we must serve to fulfill our ends. Law fulfills its own ends by maintaining good order, in which each of us can understand and achieve virtue as the capacity to see and serve the common good.

Any call to virtue risks charges of dictatorial designs. But, as Rommen points out, law cannot force us to do or avoid doing any specific thing. Law is part of a fabric of social rules, conventions, and traditions that bind us through reason. A law against theft does not force us to refrain from stealing, instead helping us recognize that we ought not steal. Law stands for the reasoned determination that, for example, “I ought not take that item because it belongs to someone else.” That determination may be backed by force but it is not caused by force. Moreover, to the extent laws are seen purely as threats they are less often followed, and force itself often cannot save them; desuetude, oppression, or revolution result.

The obvious charge, at this stage, is that natural law merely privileges tradition or (perhaps insincere) religious belief as the grounds for its norms. Hans Kelsen sought to explain law’s normative basis without reference to metaphysics, arguing that each norm can be based only on another norm, culminating in a hypothetical highest norm. As Rommen points out, the paradox of Kelsen’s position — of a hypothetical fact being taken as an ordering good—can be avoided only when we accept “the oughtness of being.” We can formulate just standards of conduct only by reference to an ordered universe containing ordered persons. Law, then, must be made and judged in reference to a higher, universal law. None of this is to say that no imperfectly just law can bind the conscience. Aquinas himself recommended a general practice of following even unjust laws in the interests of good order — provided these laws do not directly prescribe wrong conduct. Far from an apology for tyranny, Aquinas’ counsel calls for prudent judgment and insistence upon law’s limitations. Far too often, the doomed attempt to remake the world through law brings oppression. As Rommen puts it: “The law cannot engender life, nor can it take the place of love. It can and should be but an inherently limited order that exists for the purpose of protecting life.” Law “only guides the unruly vital forces (e.g., self-interest, the sex drive, the will to power, the acquisitive urge) in order that man can really live as man.”

The End of Legal Positivism 

Positivists’ desire to limit the capacity of would-be messiahs to bend the state and people to their will is laudable. But the separation of law from morals violates human nature, for we are by nature moral beings. Thus, after decades of dominance by positivists, we have not achieved rational discourse. Instead, from the courtrooms of activist judges to arid faculty lounges, to the cadre-led “masses” on the streets, we are subjected to degraded natural rights thinking that undermines good order in pursuit of ignorant fantasies of “social justice.”

If Rommen’s Natural Law seems at times to leave too much room for judicial discretion in determining legislation’s purposes and intrinsic logic for some readers, the reason is not hard to find. In Rommen’s day the judicial and philosophical world he described remained active in parts of the West. Today, the common law reasoning and traditions of judicial decision making that once guided judges in their work are all but lost. Moreover, as the state has taken over the roles of primary institutions and natural associations, law itself has been stretched beyond its capacity for coherence, let alone rational application. From such poisoned ground only stunted fruits may grow. The sad parodies of natural law so influential today — from John Rawls’ dressed up progressive prejudices to even less coherent calls to cosmic social justice—are signs of what Rommen terms the “perpetual recurrence of the natural law.” They also are signs that this recurrence will not of itself restore reasonable laws unless and until we recover our understanding of law as a call to ordered virtue — properly shaped and limited by our more fundamental social institutions.

Reader Discussion

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on May 29, 2018 at 08:45:24 am

My reservation about appeals to “natural law,” in all of its various forms, is that one man’s discernment of the natural order of things (say, Anthony Kennedy, Harry Blackmun, or Stephen Reinhardt) is another man’s apostasy. Moral intuition is often subjective, and judges are no better suited to engage in it than anyone else. Laws are the rules passed by a civil society to govern itself. Morals are the informal guides that govern conduct in a pluralistic society. The two are not the same.

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Mark Pulliam
on May 29, 2018 at 09:42:40 am

Whether we like it or not, Mark, the "rules passed by a civil society to govern itself" are not merely informed by, but contain at their core and in their goals a set of moral judgments and assumptions. To pretend otherwise is to leave the way open for the self-centered delusions of "living constitutionalists" who find morality in Progressive opinion. To recognize natural law is to recognize the limits of judicial wisdom and its need to look, not to abstractions, but to the culturally embedded law of the land for guidance in interpreting particular laws' meanings and intentions.

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Bruce Frohnen
on May 29, 2018 at 10:13:27 am

I agree wholeheartedly with this (and much of the essay generally): “Instead, from the courtrooms of activist judges to arid faculty lounges, to the cadre-led “masses” on the streets, we are subjected to degraded natural rights thinking that undermines good order in pursuit of ignorant fantasies of “social justice.”” Unfortunately, such “degraded” thinking is pervasive. As you say, “From such poisoned ground only stunted fruits may grow.” The “sad parodies” of what was once conceived as natural law are endemic—“progressive prejudices” and similar folderol. But can’t we conjure “ordered virtue” without labeling it in a way that signifies Justice Kennedy’s incoherent calls for “cosmic social justice”? I do not denigrate the importance of
morality and virtue—essential to ordered liberty—but merely object to the amorphous, malleable rubric of “natural law.”

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Mark Pulliam
on May 29, 2018 at 10:33:25 am

Dignifies

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Mark Pulliam
on May 29, 2018 at 10:42:36 am

Who likes "positivism"? Well, maybe Thucydides:

Indeed men too often take upon themselves in the prosecution of their revenge to set the example of doing away with those general laws to which all can look for salvation in adversity, instead of allowing them to subsist against the day of danger when their aid may be required.

Or Milton Friedman (on The Open Mind (December 7, 1975)):

I want people to take thought about their condition and to recognize that the maintenance of a free society is a very difficult and complicated thing and it requires a self-denying ordinance of the most extreme kind. It requires a willingness to put up with temporary evils on the basis of the subtle and sophisticated understanding that if you step in to do something about them you not only may make them worse, you will spread your tentacles and get bad results elsewhere.

Or Sir Thomas More--at least as depicted by Robert Bolt in A Man for All Seasons:

DAUGHTER: Father, that man's bad.

MORE: There's no law against that.

ROBERT: There is. God's law.

MORE: Then God can arrest him.

WIFE: While you talk he's gone.

MORE: And go he should, if he were the Devil himself, until he broke the law.

ROBERT: So, now you would give the Devil benefit of law?

MORE: Yes. What would you do, cut a great road through the law to get after the Devil?

ROBERT: Yes, I'd cut down every law in England to do that.

MORE: Oh? And when the last law was down and the Devil turned round on you, where would you hide, Robert, the laws all being flat? This country is planted thick with laws from coast to coast. MAN'S LAWS, not God's. And if you cut them down - and you're just the man to do it - do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law - for my OWN safety’s sake.

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nobody.really
on May 29, 2018 at 14:06:45 pm

University administrators, local politicians, and shadowy high-tech corporations increasingly stifle the voices of dissenters from the progressive orthodoxy, even as they empower [private] bullies to threaten, dox, and physically assault them. Religious dissenters are ordered to actively celebrate ceremonies their consciences disapprove….

How should we characterize the Red Scare (and Lavender Scare) eras of the 1940s and 50s? These were eras when, at least for a time, authority figures sought to stifle those who dissented from a conservative orthodoxy. Was this also an era of excessive “positive law” and insufficient “natural law”? Or does natural law justify imposing orthodoxy on dissenters, just so long as it’s the RIGHT orthodoxy?

The Civil War resulted from deep differences regarding the legal status of the union (its ability to bind the states) and the moral status of laws maintaining slavery.

Not following this.

The Civil War was triggered when some states used force in an effort to withdraw from the Union. True, the leaders of these states wanted to maintain slavery, but that was nothing new; the leaders of these states had ALWAYS wanted to maintain slavery. What triggered the war was not the morality of slavery—a morality that had not changed much over the centuries—but the steps that certain states were willing to take to defend that institution.

If natural law opposes slavery, it seems to have been a singularly unpersuasive form of opposition. Slavery has existed from time immemorial, yet people in antiquity seemed oddly reticent to condemn it. The Old Testament figure Joseph was enslaved, and Jews have long celebrated their own rescue from enslavement in Egypt—yet the Old Testament makes explicit provision for slavery. Gregory of Nyssa opposed slavery 379, but did not seem to gain many adherents. Even St. Patrick, who was himself enslaved in the 7th century, never seemed to condemn the institution of slavery. In his Letter to the Soldiers of Coroticus, he condemns that fact that some of his new converts had been enslaved—but he didn’t speak in opposition to the enslavement of others. France would ban slavery in 1315, but the Roman Catholic Church wouldn’t formally oppose the slave trade until the late 1600s. So if there was anything natural about opposition to slavery, it appears that humans have been able to suppress their natures for millennia.

In short, the abolitionist movement was not conservative and not tradition; it was progressive.

Traumatized by the conflicts of war and reconstruction, legal scholars in the United States, as in Europe, increasingly moved toward a jurisprudence of legal positivism, separating law and morals in significant measure as an attempt to prevent moral conflict from disrupting the civil social order. But positivism has not brought peace.

Uh … Frohnen might want to google the phrase “religious tolerance.” No, we have not achieved nirvana, but the contrast with the world of state-imposed religion has been pretty remarkable.

“Wherein lies, properly speaking, the ethical foundation of the coercive power of the state’s legal and moral order?”

Positivism is, Rommen shows, a perpetually doomed attempt to avoid this question. It “has only one criterion for law: the will of the sovereign formulated in accordance with the legislative process prescribed by the constitution…. It has no place for material legitimacy.” Positivism’s focus on (usually “democratic”) procedures prioritizes the will of the majority over human reason, thereby undermining people’s ability to recognize and oppose tyrants. Over time, however, positivism cannot escape the “perpetual recurrence of natural law.” Pure or corrupt, people’s inborn desire for meaning will be reflected in the legal sphere.

Why is it that people’s “inborn desire for meaning” can’t find expression via democratic means? If humans all have some innate perspective, what better repository for its expression than via majority vote? Likewise, if a majority of people hold an opinion that conflicts with natural law, what clearer demonstration that “natural law” does NOT reflect some innate human tendency?

No disrespect for the Framers, but I have difficulty reconciling the idea that human equality is self-evident with the fact that pretty much every society prior to 1776 was founded on the opposite premise.

A law against theft does not force us to refrain from stealing, instead helping us recognize that we ought not steal.

I struggle with this idea. I acknowledge that government does promote many social messages via law—for example, the message that we should avoid discriminating on certain bases, and that military service is honorable. But more generally I resist the idea that government should promote moral ideas as a violation of the Establishment Clause.

I support government providing people with factual information about the consequences of smoking for smokers and bystanders. But I oppose government ads depicting people in the cigarette business as demons; once we transition from the factual to the normative, we’re in the realm of religion.

I support government discouraging discrimination on the basis of suspect categories where objective meritocratic standards can be found. But I oppose government intervention where there are no such objective standards. In PGA Tour v. Martin, the Court ruled on which aspects of the arbitrary rules of golf were essential and which were not—basically making a religious (value) judgment; I opposed this.

I support the Court’s finding that Nazis may spread their views by marching in Skokie. Was the court “helping us recognize that we ought” to spread Nazi views? No.

I’m glad that legislatures have established prisons, divorce laws, bankruptcy laws, and methadone clinics. Did they do so to “help us recognize that we ought” to get incarcerated, leave our spouses, fail to pay our debts, or get hooked on addictive drugs? No.

Rather, I regard the law as a tool for behavior management in the world as we find it--not in a world as we might wish it to be. I don’t regard the law as demonstrating anything about morality. Indeed, civil disobedients violate the law precisely for the purpose of illustrating the law’s immorality. Perhaps Frohnen believed that the law requiring blacks to sit at the back of the bus existed to help “us recognize that we ought” to live in a racially segregated society—but Rosa Parks and I embrace a different point of view.

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nobody.really
on May 29, 2018 at 14:49:34 pm

I am going to second Mark Pulliam's circumspection. I just happen to be reading right now Harry Jaffa's A New Birth of Freedom, and I just happen to be at the part where he has reprinted CSA Vice President Alexander Stephens' 1861 "Cornerstone Speech," wherein Stephens proclaims that, while the Founders surely believed in equality of all men with no race naturally inferior to any other according to natural law, science has since discovered the racial inferiority of blacks and thus their natural inequality to whites, and therefore a government whose core founding principle is such inferiority and inequality, as Stephens proclaims the CSA government's principle to be, is in "strict conformity to Nature and the ordination of Providence" (not quite as artful a phrase as "the laws of Nature and of Nature's god," but essentially equivalent to it).

Yes--Stephens grounds his argument in science (which is to natural law as margerine is to butter), citing discoveries of Galileo, Adam Smith and Harvey as being of the same order of magnitude as the new racial scientific discovery, and also in Christian doctrine (curse of Ham).

Such an argument for natural law would appear not worth serious consideration until one remembers that it cost 600,000 lives to refute it.

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QET
on May 29, 2018 at 16:48:56 pm

" Perhaps Frohnen believed that the law requiring blacks to sit at the back of the bus existed to help “us recognize that we ought” to live in a racially segregated society—but Rosa Parks and I embrace a different point of view."

Now, now, nobody!!!! That is unfair and you know it! Frohnen advocates no such thing. Only to a mind such as yours which appears incapable of recognizing anything other than outliers; by that i mean, to employ a form of argument that must, for its force and effect, posit only the most extreme positions / outcomes of an opponents argument in order to demonstrate that that person is a) wrong and b) mischievious (at best).

Frohnen is not here endorsing ALL laws; rather he is limiting his comment(s) to a certain characteristic of law, an effect, if you will, of law. Indeed, his claim is quite limiting of the law recognizing that it may not *compel* behavior but rather may provide a sign an encouragement of proper behavior. As such Frohnen appears to both recognize and advocate the more limited role of law than that which is advanced by our SJW compatriots.
Clearly, he recognizes the deficiency of law, its tendency to retard proper association / behavior, etc as evidenced by his comments criticizing the governments (Law's) takeover ofmuch of our daily life "as the state has taken over the roles of primary institutions and natural associations, law itself has been stretched beyond its capacity for coherence, let alone rational application."

So enough of this *segnem egere* arguments.

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gabe
on May 29, 2018 at 19:02:21 pm

QET:

You will love A New Birth of Freedom - excellent!

"Yes–Stephens grounds his argument in science (which is to natural law as margerine is to butter), citing discoveries of Galileo, Adam Smith and Harvey as being of the same order of magnitude as the new racial scientific discovery, and also in Christian doctrine (curse of Ham). "

Stephens masks his distortion of *natural* law / right / etc by applying a patina of Enlightenment science and Old School religion, neither of which are applicable to what most would recognize as natural law. It is simply an attempt to present a refined view of Calhouns diatribes and slanders against the "equality proposition" of the DOI.

Funny, isn,t it how some of the most noxious / outrageous and downright *unscientific* "findings" are hailed as the result of rigorous and NEW science.

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Guttenburgs Press and Brewery
on May 29, 2018 at 19:06:21 pm

Great and Man for All Seasons is one of my all time favorites.
Think of the courtroom scene where More BOOMS out "Nevertheless" - contained in that word is the strength of the ages, of a deeply held passion and belief in SOMETHING HIGHER than mere positive law.

So yes, More gives the Devil his due, so to speak BUT as we later learn he gives his "full measure of devotion" to a higher power. I think Lincoln, another exponent of natural law, would have liked More. Don;t you?

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gabe
on June 01, 2018 at 21:31:29 pm

Natural law used to mean all sorts of things. It used to be natural law for people like me to die in childbirth. It used to be natural law to hold slaves. It used to be natural law for only aristocrats to have any role in government, and only sissies thought anyone else at all should be allowed to vote, if voting was allowed at all. It used to be natural law in some places in the world that the Emperor was divine.

So many naturals laws! How to choose between them?

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excessivelyperky
on June 04, 2018 at 22:24:35 pm

". . . but merely object to the amorphous, malleable rubric of “natural law.” "

sounds reminiscent of that great utilitarian who preceded J S Mill.

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R Richard Schweitzer
on June 04, 2018 at 22:48:10 pm

As we observe social orders (and their ways of impact on their members) do we see "order" forming "naturally" (spontaneously); or, is it "constructed" or purposefully "designed?"

Is it not true that "Order" however established among groups of mankind begets Law for governance of relationships?

Is it not possible to view the spontaneous (naturally developing) order of a society as begetting Law as part of the very nature of its development? Would it be wrong to regard that as "natural" Law, which continues to evolve as the social order evolves?

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R Richard Schweitzer
on June 05, 2018 at 16:28:32 pm

In relation to the themes discussed herein, I'd strongly recommend a look at Lon Fuller's famous essay in response to H.L.A. Hart, "Positivism and Fidelity to Law," which can be found here:
https://www.jstor.org/stable/1338226?origin=JSTOR-pdf&seq=1#page_scan_tab_contents
In particular, one should look at Fuller's treatment of Gustav Radbruch. Some of Radbruch's writings can be found in translation here: "The legal philosophies of Lask, Radbruch, and Dabin," Harvard University Press, 1950.

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Professor Stuart D. Warner
on June 26, 2018 at 18:00:16 pm

The problem with Natural Law is that while the theory is sound, the application is impossible. There is no way of accurately determining what the Natural Law is.

“The obvious charge, at this stage, is that natural law merely privileges tradition or (perhaps insincere) religious belief as the grounds for its norms. “

Because of the problem of determining what the Natural Law is, the only people certain of what the Natural Law is are those who are relying on religion and tradition. They then use reason to justify their already held position. Thus the whole enterprise reeks of intellectual dishonesty.

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James
on July 01, 2018 at 12:27:28 pm

Of course More's source of higher law was the positivist canon law of the Catholic Church as interpreted by Pope Paul III. Accordingly he burned heretics as the opportunity arose.

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EK
on December 13, 2018 at 12:03:21 pm

I'd be curious to see how you (and the author) work Kohlberg's "Six Stages of Moral Development" into this.

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Keith Hanson

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