The editors present the five most-read Law & Liberty forum discussions of 2020.
Though regularly portrayed by its critics as unimaginative by nature, any fair analysis of Anglosphere conservatism soon reveals that it regularly engages in self-critique. Today, for instance, conservatives are debating questions ranging from the market’s place in conservative thought to populism’s impact upon conservatism as a political project.
At some point, such reflections involve examining these issues from the perspective of lodestones of modern conservative thought. In that regard, few individuals loom larger than the eighteenth-century political thinker Edmund Burke. Most intra-conservative debates eventually gravitate to questions like “What was Burke’s view of trade?” One such ongoing discussion among conservatives concerns natural law’s place in conservative thought.
Burke as Skeptic?
Many would agree with Isaac Kramnick’s claim in his edited collection of Burke’s works that “Burke’s conservativism is grounded in skepticism.” By skepticism, they don’t mean atheism. Instead, Kramnick regards Burke as hostile to “faith in reason and abstract ideas, in speculation and a priori principles of natural right, freedom, and equality as the basis on which to reform existing government.”
This is what really explains, it’s argued, Burke’s hostility to the French Revolution and continental late-Enlightenment writers like Rousseau. Tradition, custom, manners, untaught feelings, and appreciation for man’s imperfection and limited rationality are considered better guides to statesmanship than, say, Lockean natural rights theory or French Revolutionary evocations of the rights of man.
These accounts of Burke suggest that he should be primarily understood as someone who rejected abstract ideologies in favor of utility and gradualist adaption to circumstances. Indeed, this was the dominant view of Burke throughout the nineteenth century. The Liberal politician and intellectual historian John Morley referred to Burke’s “utilitarian liberalism.” Another Burke authority, Charles E. Vaughan, portrayed Burke as lining up with David Hume against “the pretense that social institutions depend upon reason or nature.”
Vaughan acknowledged that favorable references to “the natural rights of mankind” pervade Burke’s writings. He similarly noted Burke’s appeals to universal principles that inform positive law. Vaughan and many others since have nevertheless dismissed such language as largely rhetorical.
One effect of this narrative was to imply that Burke was effectively bereft of principles—a quasi-Humean who revealed himself as an angry reactionary in his Reflections on the Revolution in France (1790). This weakened Burke’s stature as someone from whom present-day conservatives could seek inspiration.
60 years ago, however, one scholar, Peter J. Stanlis, rigorously contested these interpretations. Burke’s thought, he contended, was far more influenced by natural law principles than some were willing to acknowledge. Stanlis’s Edmund Burke and the Natural Law (1958) laid out a comprehensive case for this thesis—one which, I’d suggest, has stood the test of time and that conservatives should consider when reflecting upon twenty-first century conservatism’s challenges.
Natural Law in British Law
Burke was one of the most widely-read members of Parliament of his time. As Stanlis established, that included the works of classical and modern natural law authors ranging from Cicero to Emer de Vattel as well as books covering the history of law in the British Isles. This is why Burke’s review in the Annual Register of George Wallace’s System of the Principles of the Law of Scotland (1760) could easily establish parallels between the ways in which natural law had shaped Scottish law via Roman law, and Sir Edward Coke’s use of English common law to establish bridges between English statute law and natural law.
Burke wasn’t in the business of producing theological treatises like Aquinas’s Summa Theologiae. Nor did Burke pen the type of early-modern jurisprudence commentaries associated with figures like Francisco Suárez or Hugo Grotius. Yet there was nothing abstract about natural law for Burke. He regarded natural law as real but also as integrated into English, Scottish and Irish law. Burke was particularly proficient at identifying the natural law axioms underlying, in Stanlis’s words, “the rules of equity which governed English common law.”
This especially mattered when it came to ensuring that legal systems didn’t undermine justice. Burke’s primary objection to legislation which sought to coerce consciences in religious matters was that they violated natural law. In his Tract on the Popery Laws, Burke identified such regulations as unjust because they were made “against the principle of a superior law, which it is not in the power of any community, or of the whole race of man, to alter—I mean the will of Him who gave us his nature, and in giving impressed an invariable law upon it.”
It wasn’t that Burke’s convictions about natural law meant that he regarded utility as unimportant. His point was that utility couldn’t be the ultimate foundation for politics or even economic policy.
According to Burke, there were only two foundations of law: equity and utility. Invoking Cicero, Burke described equity as growing “out of the great law of equality, which is grounded upon our common nature.” Hence, while equity gives effect to natural justice and modulates its application, Burke maintained that equity has “no power over the substance of original justice.” As for utility, Burke argued that “general and public utility”—by which he seems to mean something like what the U.S. Constitution would call the general welfare—“is derived directly from our rational nature.”
In fact, Burke added, if general utility wasn’t ultimately grounded in reason, it may as well “be the utility of a robber.” This reflects standard natural law argumentation. Contrary to what’s often supposed, natural law doesn’t dismiss utility as irrelevant for human free choices. It simply maintains that utility can neither be the sole basis for such choices nor invoked as grounds for infringing the moral absolutes central to any coherent account of natural law.
A Bulwark Against Arbitrary Power
This particular insight helps explain why Burke’s attention to natural law is so evident in his critiques of arbitrary power. Arbitrary power was a consistent target of Burke before, during, and after the French Revolution. Nowhere is this more evident than in Burke’s effort to impeach and prosecute one of the architects of Britain’s Indian Empire, Warren Hastings, for alleged offenses ranging from personal corruption to the extrajudicial murder of the Indian tax-collector Maharaja Nandakumar in 1775.
Hastings’s lengthy trial began in 1787 and concluded with his acquittal in 1795. What matters for our purposes is Burke’s opinion that the alleged criminality of some of Hastings’s acts arose from his infringement of natural law principles.
According to Burke, Hastings justified his policies on two foundations. The first was his claim that Parliament had granted him unlimited power. The second was Hastings’ belief that, as Burke put it, “the whole history of Asia is nothing more than precedents to prove the invariable exercise of arbitrary power.” In other words, Hastings’s defense rested on the claim that he had acted in accordance with Asian customs and conventions and was thereby absolved of any wrong-doing.
Burke understood that such arguments implied that (1) there were no moral principles which bound people at all times and places, and (2) Parliament could somehow license government officials to act arbitrarily. Neither position, to Burke’s mind, was consistent with natural law. Spelling this out in February 1788, he stated:
We are all born—high as well as low—governors as well as governed—in subjection to one great, immutable, preexisting law, a law prior to all our devices and all our conspiracies, paramount to our feelings, by which we are connected in the eternal frame of the universe . . . . This great law does not arise from our combinations and compacts; on the contrary, it gives to them all the sanction they can have.
Having specified that any valid political compact must ultimately derive its legitimacy from the natural law which itself limits what the state can do, Burke considered it nonsensical to suggest that government actions can be justified by what he refers to derisively as “geographical morality.” Against such notions, Burke remarked that “the laws of morality are the same everywhere; and actions that are stamped with the character of peculation, extortion, and barbarity of England are so in Asia, and the world over.” No philosophical skeptic, liberal utilitarian, legal positivist or conservative historicist would have uttered such words.
Lessons for Contemporary Conservatives
More could be said about Burke’s attachment to natural law principles. But what does Burke’s affirmation of natural law suggest to conservatives today?
First, it indicates that a conservative politics faithful to its Burkean heritage must be rooted in more than an emphasis on prudence. Though he spoke at length about prudence’s importance for politics, Burke’s commitment to natural law indicates that it’s never sufficient for a Burkean conservative to approve something simply because it’s deemed prudent. It must also be just. A standard maxim of natural law is that appeals to prudence can never justify wrongdoing. Any free choice for evil is, by definition, imprudent.
This emphasis on justice turns out to be a central feature of Burke’s case for economic liberty. Yes, free trade promoted greater utility in the sense of greater wealth for ever-increasing numbers of people. But, Stanlis comments, “To Burke justice was the foundation and social utility was the consequence of free trade.” That’s the polar opposite to utilitarian cases for economic freedom.
Second, a truly Burkean conservatism involves more than preferring gradualist change to radical innovations in the name of ideology. Burke certainly favored organic developments over and against the political programs advocated by the Jacobin revolutionaries of his time. Nevertheless Burke would never have countenanced adaptations, however gradual, that conflicted with precepts of natural law.
Third, a Burke-inspired conservatism can’t accept a deference to tradition solely because of the longevity of a particular practice or law. Burke valued the subtle knowledge built into and conveyed by tradition. But one of Burke’s critiques of Hastings was that the latter claimed to have acted in ways consistent with long-standing practices of Indian rulers. According to Burke, this didn’t let Hastings off the hook. He remained culpable for actions that were objectively evil, however customary they might be.
Lastly, Burke’s attachment to natural law reminds us that modern conservatism’s pedigree goes back further than the late-eighteenth century. Anglosphere conservatism certainly started taking on distinct form in reaction to the French Revolution. But to the extent that it’s influenced by Burke’s attention to natural law, some of Anglosphere conservatism’s roots may be traced to pre-modern ancient sources like Cicero and beyond.
To be sure, Burke stressed how these ideas were imbedded in the developing corpus of Britain’s legal traditions and the writings of legal scholars like Sir John Fortescue and Sir William Blackstone. But while Burke was wary of wrenching principles out of their context, he recognized the saliency of natural law for political, legal or economic arrangements that promoted regimes characterized neither by license nor tyranny but rather by ordered liberty.
That’s all the more reason why an Anglosphere conservatism which cares about being faithful to its origins and is anxious to promote principled freedom should, as Stanlis wrote in his book’s last sentence, recognize natural law’s “vital role in the dramatic struggle to preserve and extend the traditions of civil and religious liberty” and “gain fresh insights into its applied principles . . . by turning to the political writings of Edmund Burke.”