Most lawyers today seem to believe that they must make new law because the one they inherited was in fact fundamentally unjust.
I thank the editors of Law & Liberty for permitting a short answer to three recent responses to the caricatures, cavalier dismissals, and illusions in what I wrote a few weeks back against the idea of natural law.
What is common to all three essays is the assumption that the choice is between naturalistic ethics and moral nihilism. If so, this would be a telling criticism. But it’s not, and it’s easy to point to other moral theories that reject any attempt to identify the good with that which is natural. Here’s one, from J.S. Mill’s Three Essays on Religion: “Nature, natural, and the words derived from them … [are] one of the most copious sources of false taste, false philosophy, false morality, and even bad law.”
In particular, I reject natural law because I think that David Hume was right to claim that a moral injunction (an “ought”) cannot be derived from an existential statement (an “is”). I also agree with Hume about the Stuart monarchs, but that doesn’t require me to agree with everything else that Hume said, as Paul DeHart suggests. I also think that Doug Rasmussen is wrong to suggest that G.E. Moore gave Principia Ethica the heave-ho in his essay on “Is Goodness a Quality,” but that’s a topic for another day, as are my theological disagreements with Nathan Schlueter.
Not unexpectedly, Schlueter argues that John Finnis has satisfactorily rebutted the is-ought problem by appealing to a set of intelligible intrinsic goods to which we are directed by our practical reason. We all desire to live (except when called on to be a martyr). We all desire children (except those called to the religious life). We all desire marshmallow sundaes (except those on a diet). These are all intelligible goods. But to make sense of them, one requires a more encompassing moral theory, and so it has always seemed to me that the Finnis turn is parasitic upon utilitarianism. These intelligible intrinsic goods, this flourishing of yours, why would I want them if they made us all miserable?
A further difficulty with natural law, for lawyers at least, is the severely limited nature of its scope. Here again I agree with Hume that the obligation to perform a promise is unintelligible absent a background language in which it is meaningful to promise. So too for contract law, most of property law, and much of the rest of the law. The prior question is whether it’s desirable that a legal institution exist, and the answer to that is best found in utilitarian theories of ethics. I’ve made the argument in Just Exchange, and don’t have to repeat it here.
Finally, my problem with natural law is a problem with law itself. That’s not to say that laws don’t matter. They’re the first cut at a moral answer, and in many cases that’s all you need. “Thou shalt not kill” doesn’t admit of too many exceptions. But rules are not enough. We might think that we’ve followed all the rules, but still wonder whether something more is wanted of us. The moral life is more than the rule-driven life.
Lawyers understand the limits of rules from their efforts at drafting long-term contracts. The goal in such cases is to assign rights and responsibilities for everything that might happen thereafter, and the problem is that this is impossible. A perfectly specified contract would tell the parties what to do in every conceivable future state of the world, completely covering every possible contingency. But there are just too many things that might happen. A “complete contingent contract” can never be written, and the best one can hope for is that, when the unexpected happens, we’ll find a good judge who’ll interpret the contract the way the parties would have written it had they addressed their minds to the possibility.
A complete contingent set of moral rules isn’t feasible either. Too many things can happen for anyone to prescribe what to do in each of the countless possible future worlds. That’s what Christ taught, in His answer to the rich young man in the Synoptic Gospels. The young man said he had followed all the commandments and wondered if anything more was required of him. Indeed yes, said Christ. If you want to be perfect, sell all you own and give to the poor, then come and follow Me. No wonder the disciples were dismayed. Who then can be saved, they wondered? (The answer is no one, absent grace.)
That is why I am sympathetic to Doug Rasmussen’s perfectionism. “Self-perfection is our natural end,” he writes, “our human good.”
As a comprehensive, ultimate end, it is constituted by many basic goods and virtues. Among these are, for example, knowledge, health, friendship, integrity, temperance, and courage; but none automatically take precedence over others. As a result, the central task of human living is to find a way to coherently achieve these goods and practice these virtues for oneself in contingent and particular situations.
That’s a form of natural law, without law and without rules. If you want to call this natural law, I’d go along with it, up to a point. What I reject is only the idea that moral requirements can be derived solely from the individual’s perspective, without taking into account duties to other people on, for example, utilitarian principles.
The natural lawyer who thinks that moral answers are to be found within each of us must, like Rasmussen, subscribe to a form of moral individualism. That’s an important element in any theory of ethics, but it is radically incomplete to the extent that it fails to account for the very human tendency of self-deception, the sometime requirement of self-denial, and the true counsel of perfection.