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Natural Law and Democracy: The Philosophy of James Wilson

James Wilson, signer of the Declaration of Independence, important figure at the Constitutional Convention, and among the first justices of the US Supreme Court (1789-1798), argued more forcibly than any other Framer that philosophical skepticism is the enemy of self-government. Wilson argued that the philosophers John Locke (1632–1704) and David Hume (1711–1776) advanced theories that were antithetical to democratic government, because they deny to human nature the moral properties necessary to a knowledge of justice. Republican and democratic government, as many Framers acknowledged, requires a virtuous citizenry. The colonists sought independence from England because they thought that subjugation to the King and Parliament of England to be slavery. James Wilson argued in his philosophical writings that the ordinary person has the capacity to be virtuous and just by means of an innate capacity to know the “natural law,” and he defended the “revolution principle” (popular sovereignty) for that reason.

Wilson assisted at the writing of the Preamble to the Constitution which affirms this in stating that “We the people . . . do ordain and establish this Constitution.” He argued for popular sovereignty. The actions of King and Parliament in England had abrogated the sovereignty which properly belonged to the colonists. In principle, no government is entirely sovereign over a people; governments come and go at the will of the people, they are entrusted with the power to legislate and execute the law by the people. The citizen’s duty is to obey rightly instituted law insofar as that law is just and right. This is because only God is owed complete and absolute obedience. God is goodness and justice in Himself, and there is a particular duty to obey God as source of justice. This is only part of his argument for popular sovereignty, but it was central to his understanding of natural law.

From 1790–1792, James Wilson gave a series of lectures on the principles of the American Constitution. It is a work of original philosophy, later published as the Lectures on Law. In this work Wilson articulates why the American democratic experiment is just, in a manner both erudite and learned. The lectures show the relevance of what he calls the ‘moral sense’ to natural law to domestic law, international law, common law, criminal law, and theories of evidence. He intended to turn these lectures into a textbook to replace Blackstone’s Commentaries in the law schools of America, but died before completing the work.

The Lectures begin with a discussion of the characteristics of law, particularly natural law, in categories familiar to those who have read Thomas Aquinas. That tradition found its way into England law through Tudor theologian Richard Hooker, whose Laws of the Ecclesiastical Polity was written around 1600. In using Hooker, Wilson places the American Constitution within the context of a metaphysic commonly seen in medieval philosophy, which is that God is the source of justice, Justice Himself, ruler of creation, whose providential ordering of creation is apparent to human kind through reason and scripture. Wilson’s dependence upon Hooker’s scholastic treatment of law startles the reader out of the complacent assumption that the Framers were devoted to modern rights theory, the principle of autonomous individualism, and Lockean liberalism.

Wilson’s debt to the Anglican theologian Hooker is evident in two ways: first in his metaphysical account of law, and second in the principle of consent. Following Hooker, he states that the author of Law is God himself. The order and proportion that govern the universe reflect that law. The eternal law is that “law, the book of which we are neither able nor worthy to open . . . . He is law to himself as well to all created things.” God made the law celestial to rule the angels. God governs the irrational and inanimate parts of creation by general and fixed rules revealed in the study of natural philosophy. God made a law fitted for human nature, a law for reason, which is “communicated to us by reason and conscience, the divine monitors within us.” We make laws for ourselves guided by reason and conscience, and in conscience lie the first principles of that natural law.

Wilson’s argument which speaks so directly of God’s governance of mankind appears overtly theological—a confusion of religion and political philosophy. Yet to him and other Christian thinkers, the order that rules the universe was a matter of observed fact. He spoke of divine revelation as a friend to law, not a replacement for it. Natural law is not a matter of religious belief. Because God is the source of both revelation and law, revelation and law are “twin sisters.”

Second, Wilson applies Hooker’s principled argument for consent to the American context. He quotes from the first book of Hooker’s Laws:

The lawful power of making laws to command whole politick societies of men, belongeth so properly unto the same entire societies, that for any prince or potentate of what kind soever on earth to exercise the same of himself, and not either by express commission immediately and personally received from God, or else by authority derived at the first from their consent, upon whose persons they impose laws, it is no better than mere tyranny. Laws they are not, therefore which publick approbation hath not made so.

To summarize Wilson’s debt to Hooker: first, to impose laws without the people’s consent is “mere tyranny”; and second, people are fitted for self-government because they have a natural capacity to know the natural law. It is surely in this context that Wilson understands the “laws of Nature and of Nature’s God” in the Declaration of Independence. On this account, the American project is only possible because order and proportion pervade the universe, and because each person is possessed of faculties “intellectual and moral” by which to know the laws of Nature and to know God.

In addition to Hooker, Wilson turns to Cicero who had argued that the first principles which guide reason are natural, practical principles of virtue:

In the most uninformed savages, we find the communes notitiae, the common notions and practical principles of virtue, though the application of them is often extremely unnatural and absurd. . . . These seeds are placed in their minds by nature, though, for want of culture and exercise, they lie unnoticed.

According to both Wilson and Cicero, culture and education develop and shape the exercise of the first principles. The laws of nature are not apprehended in a pre-societal state, without education or the benefits of a rightly ordered society. Evil customs, corrupt habits and bad ideas obscure the natural moral sense and limit the development of virtue and the exercise of reason. Wilson wrote: “Society is the powerful magnet, which, by its unceasing though silent operation, attracts and influences our dispositions, our desires, our passions, and our enjoyments.” Thus, Wilson can also account for why human beings fail to institute just regimes, even though each person has the capacity to know the natural law, the seeds of virtue within them.

To seek justice is natural to mankind. Through extended argument, Wilson shows that a moral sense exists in each soul. At one point he concluded, “A Lucretius or a Hobbes cannot discard the sentiment of praise and admiration respecting some moral forms, nor the sentiments of censure and detestation concerning others.” They may be metaphysical skeptics, they may deny that there is justice, but they found it impossible to eradicate the sentiments which seek to know moral forms from their models of human nature.

To Wilson, Hobbes was quite correct in linking moral skepticism to despotism. But Hobbes was wrong about human nature, as are Locke and Hume. Hence the need to illustrate how the principles of justice operate in the human soul. It was to counter a doctrine which had become increasingly commonplace in philosophical circles, namely that truth is a matter of perception, no more than a theory or image.

Although a society may be led astray by corrupt theories, common sense can prevail:

I know very well, that, in the business of life, the dictates of common sense will always, and that in the business of government, the spirit of liberty will sometimes prevail over false theories of politicks and philosophy. But is this a reason why those false theories should be received, or encouraged or propagated?

The Declaration of Independence and the American Constitution read in light of the arguments set forth in Wilson’s Lectures would enrich debate about the intentions of the Framers. Wilson places before us a very important question: if people do not have the natural capacity to determine their own good and the good of others in a reasonable way, is it possible to defend democracy and the principle of consent?

Reader Discussion

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on November 20, 2018 at 10:30:40 am

"Wilson’s argument which speaks so directly of God’s governance of mankind appears overtly theological—a confusion of religion and political philosophy. "

Bayer should understand that in17th C England and its American colonies, where the idea of a sovereign self-governing people was being developed, where you stood on religious questions was an almost infallible marker of where you stood politically. The English civil wars of the 1640s were as much wars first between Puritans and backsliding Anglicans and then between scholastic Presbyterians and antinomian Independents.

In the colonies, particularly in New England, the Independent model of church government with its pastors, teachers, elders and deacons freely elected by the covenanting congregation became the model for both town and colony wide civil government. Connecticut had about 150 years of practical experience with this model when Wilson was writing. In general, Wilson was more of an Presbyterian than an Independent but his reliance on the idea that law of God is written on the hearts of men and expanded upon in the Bible was a bed rock Independent principle. Presbyterians tended to read this aspect of the covenant of grace narrowly.

The more interesting question is whether popular self-government is possible absent an extremely egalitarian monoculture that already agrees on most of the hard moral and political questions. By 1800, the conditions that made self-government possible in the colonies were already breaking down and today, none of the original conditions exist.

I think it a mistake just say Aristotle, Aquinas, R. Hooker, Locke and voila! the Constitution. Ignoring experience and merely looking for the "great man" is a common failing.

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EK
on November 20, 2018 at 11:02:03 am

Picking a nit in the last quotation:

"...in the business of government, the spirit of liberty of liberty will sometimes prevail ..."

Is "of liberty of liberty" really in the source?

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R O
on November 20, 2018 at 13:30:26 pm

Some points of agreement and disagreement:

First of all, I am pleased to see Roberta Bayer take James Wilson's law lectures seriously. I think that, when understanding the legal and political thought of the Framers of the Constitution (Wilson was one of the prime movers in the Constitutional Convention, allied with John Rutledge), they should be seen as an essential companion to "The Federalist." It is well to keep in mind that when Wilson -- then a justice on the Supreme Court -- inaugurated his Law Lectures, it was a public spectacle attended by George Washington, John Adams, Thomas Jefferson, James Madison, and the assembled Cabinet, Senate and House, and Supreme Court.

However, I am inclined to think that Bayer overemphasizes Hooker. Bayer writes that the natural law tradition "found its way into England law through Tudor theologian Richard Hooker." That is sort of like saying that Boeing invented the airplane. The natural law tradition was firmly placed at the foundation of English jurisprudence going back to medieval times, with the legal classics Bracton, Fortescue and St. Germain as required reading .

Bayer writes: "To summarize Wilson’s debt to Hooker: first, to impose laws without the people’s consent is “mere tyranny”; and second, people are fitted for self-government because they have a natural capacity to know the natural law. It is surely in this context that Wilson understands the “laws of Nature and of Nature’s God” in the Declaration of Independence. "

Regarding the principle of consent, that goes back to Bracton and is repeated in Fortescue; it is a fundamental natural-law precept and the natural corollary of the Ciceronian statement that the legal rights of all members of a polity should be equal.

Regarding our natural capacity to know the natural law, Wilson wrote in his law lectures of reason and conscience as the "divine monitors" that guide us. "Reason and good conscience" were the paired authorities for the Continental Congress's original May 1776 independence resolution, as "reason and conscience" were the time-honored authorities for judicial decisions, as featured in St. Germain's "Doctor and Student," with an extended discussion of the Thomist concept of synderesis in relation to conscience. (Norman Doe wrote a book discussing reason and conscience in relation to the medieval jurisprudence: "Fundamental Authority in Late Medieval English Law."

However, Wilson (and Jefferson and Witherspoon, etc.) followed Francis Hutcheson in using "moral sense" as s synonym for conscience, updating (as it were) St. Germain's early Renaissance discussion. For Francis Hutcheson (as followed by the Declaration of Independence), "unalienable rights" are rights that we are not allowed to renounce, and from government's violation of our individual unalienable rights proceeds our collective right of resistance. And of course it was Hutcheson -- routinely studied and discussed in colonial America -- who developed a lengthy exposition of the "moral sense" that Bayer observes as a feature of Wilson's exposition of law.

Regarding the "eternal and immutable" laws of God and nature, with God as the "author of our existence" -- that is straight out of Cicero, the progenitor of the western natural law tradition. (Aristotle was a predecessor, but Cicero is the first to argue that habitual benevolence or "love of our fellow-men" is a feature of the "perfected" or virtuous individual.) For the lawyers in the American Revolutionary generation, jurisprudence was firmly rooted in theology, with natural law proceeding from a Creator who was all-powerful, all-knowing, and benevolent.

Furthermore, as young law student James Wilson copied from St. Germain into his notebook, natural law is the "first ground" of the laws of England, and the "law of God" (canon law rooted in Biblical revelation) is the second ground. In England to this day, ecclesiastical courts still have a (vestigial) judicial function, and their presence was greater in the eighteenth century (including probate). The Declaration of Independence, by referring to the laws of NATURE'S God, arguably made an implicit but deliberate statement excising canon law from American jurisprudence, while preserving the theological cornerstone of the natural-law foundation of American legal theory . I think that a close reading of Wilson's law lectures will align with that view.

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John Schmeeckle
on November 20, 2018 at 13:58:31 pm

[…] McClarey J.D., The American Catholic Google Is Watching You – K.V. Turley, Crisis Magazine Natural Law & Democracy: The Philosophy of James Wilson – Roberta Bayer, Law and Liberty Transgender Totalitarians – William Kilpatrick, Crisis […]

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TVESDAY GOD & CAESAR EDITION – Big Pulpit
on November 20, 2018 at 19:59:57 pm

Interesting read.

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Paul Binotto
on November 20, 2018 at 22:09:40 pm

EK:

First, thanks for the exegesis re: wilson, roots of natural law / Natures God. Definitely informative and helpful..
Here is a question for you (or others)

"Unalienable rights" - it has been argued, or more precisely earlier writers such as Locke, etc argued that certain rights, i.e. one's life, were unalienable BECAUSE life it self was a gift from God. thus, Locke would (and did) argue against suicide.
Given that we are increasingly 'secular" (there is a euphemism for you) is it any surprise that those previously regarded unalienable rights, life, self defense, conscience, etc are no longer considered unalienable but rather appear to exist at the whim of a popular (but ill-educated) minority in combination with an *elite* class of government factotems?

Precisely, how far will citizens go in exchanging "unalienable" rights for 'comfort" or another entitlement check?

Just thinking out loud here!

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gabe
on November 21, 2018 at 09:04:24 am

Interesting audible thought, Mr. Gabe.

Another interesting question hidden within your own:

An (inevitable) convergence can be anticipated, as "Secularism" progresses (Creeps), horizontally towards becoming a Religion, and as Religion "digresses" (dilutes) along the vertical, becoming characteristically more secular -- at what point does the word, "secular", (perhaps once, a word itself begging its own euphemism, or at least one dubiously euphemistic), no longer accurately denote a state opposite (in opposition) of the sacred or religious, but instead becomes synonymous?

Hint: The momentum of each, will determine not only the point, but the force, of impact. Co-equal momentums at contact (of course, adjusted for variances in coefficients of friction) will cause a perpendicular deflection and an exchange of planes. Conversely, unequal momentums can result in a tangential deflection anywhere from zero (complete miss), to >360’.

This, of course, has just been my tangential way of wishing you, “Happy Thanksgiving, Mr. Gabe!”

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Paul Binotto
on November 21, 2018 at 11:27:59 am

'@ Paul Binotto: According to Vattel, reflecting the common wisdom of his day, one of the duties of the prince was to promote habitual virtue among the people. In the early American experiment, this function of the state got out-sourced to the denominations, departing from European practice where a state church formal presence in the governmental apparatus.

@ gabe: I see no reason to bring up Locke here. According to Hutcheson and Burlamaqui (both endorsed as "approved writers" in the 1761 Massachusetts Election Sermon, printed at government expense and distributed to every town in the province), "unalienable rights" (per Hutcheson) or "rights that cannot be renounced" (per the English translation of Burlamaqui) corresponded to fundamental duties. Hutcheson, burdened by a Lockean intellectual atmosphere, is cagey in his discreet implication that these fundamental duties are none other than piety and benevolence -- the two basic commandments of Jesus Christ and the "general principles of Christianity" (to quote John Adams). In the Declaration of Independence, following Hutcheson, the collective right of revolution proceeds from the individuals' "unalienable rights" (using an explicitly Hutchesonian phrase). In the Declaration of Independence, following Burlamaqui (despite Michael Zuckert's egregious blooper), governments exist to secure natural rights, with natural right understood in terms of the pursuit of happiness (and with happiness understood in terms of "perfection" or mature development of our innate potential to achieve habitual virtue).

Burlamaqui's student Vattel should be mentioned here; he states more clearly the derivation of rights from duties, and it is difficult to overestimate Vattel's influence : His volume on the law of nations was "constantly in the hands of our Congress now sitting" according to Benjamin Franklin.

Regarding Locke and Aristotle: The apologists for slavery in the colonies had no better philosophical support than Locke and Aristotle. Locke owned a share in the Royal Africa Company (slave traders), Locke wrote South Carolina's initial slave constitution, and Locke argued that slavery was the continuation of a state of war (rationalizing the Royal Africa Company's buying of slaves in Africa for transportation to South Carolina, how convenient). Aristotle's Politics and Locke's Second Treatise on Government, in contrast to Cicero, Hutcheson, Burlamaqui and Vattel (and George Mason, John Witherspoon, John Adams, etc.) are devoid of the thought of love of our fellow humans being both part of developed human nature and a fundamental moral duty.

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John Schmeeckle
on November 21, 2018 at 15:22:20 pm

I've just picked up "The Hebrew Republic" by Eric Nelson (2011). I haven't gotten beyond the introduction but Nelson says our current "secular age" has its feet firmly planted in the English Reformation of 1600-60. In general, Larson tells us this falls under the heading of a christian hebraist revival, something that seems to have gained some traction recently.

Re: Locke on suicide. I think Locke overstates his case. Was not the sacrifice of the cross a suicide? Isn't giving up one's life that others might live a suicide? Is refusing treatment a suicide? The question of suicide is clearly something best left to ordinary civil law enacted in the usual course of business and to the conscience of the individual. I do not think suicide is an element of natural law. Locke's logic on such points is often excessively and rigidly scholastic.

Inalienable rights have been said to include the right to air, water and self-defense in the place you were born but not food or public assistance. Liberty of conscience, in the Stoic sense of the freedom to affirm what is true and to deny what is false, was considered a natural right by the 17th Anglo-American republicans along with the freedom of association and self government based upon majority rule. But they did not go beyond arguing that these inalienable rights were justification for resisting existing law. They did not argue that the laws they were resisting were invalid, immoral or unconstitutional. They simply said they were wrong as a civl matter.

I think that is why Lincoln resisted calling the Confederates traitors and insisted upon a general amnesty following an oath of allegiance at the end of hostilities.

I think one valid reading of Jefferson's phrase "life, liberty and the pursuit of happiness" is that "life" is a reference to natural law and self defense derived from the Judeo-Christian tradition. "Liberty" captures the idea of ordered liberty in the context of self-government based upon majority rule where by, majority consent, an individual's freedom of action can certainly be limited or expanded. "Happiness" captures both the Reformed notion of personal edification and moral regeneration and the related Stoic notion that at a minimum one is always free to deny what is false and affirm what is true, provide one is prepared to bear the consequences.

The problem with current natural law analysis is that natural law must have some fixed reference, such as the Bible, that is accessible to all and the particular result must always accurately reflect the moral sense of people at large. Natural law arguments are only valid when both the source of the natural law is identified and when it is clear that the majority of those affected by the identified natural law agree that the proposed application of natural law is valid.

Judges are simply not free to pull a convenient piece of natural law out of their a$$es and make it a necessary element of due process or equal protection.

When considering ur-source of such questions I always go back to the Massachusetts Body of Liberties of 1641. This document reflects the educated commoner's understanding of what the natural rights and ancient constitutional liberties of Englishmen were in 1641. A few, like equal protection of the laws, due process, freedom of association and proscriptions against intentional cruelty can be classified as sounding in natural law but most are specific to their culture and reflect what the settlers considered should be the constitutional rights of Englishmen and are not in any way natural laws.

Link to the Liberties: https://history.hanover.edu/texts/masslib.html#ms

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EK
on November 21, 2018 at 17:28:25 pm

EK,

I know your comments were directed towards Mr. Gabe, so I hope the two of you will forgive me intruding on the exchange.

However, I strongly dispute your assertion that the "sacrifice on the Cross" was a suicide. Although it certainly was a sacrifice, and an (unjust) execution, and Deicide, how can you arrive at the conclusion that Christ's death was a suicide?

At least under the Catholic tradition, Christ is understood to be fully God and fully man. Firstly, suicide is the taking of one’s own life, not the permitting of the taking of one’s own life – whether freely without coercion, as substitute for another (“laying down one’s life for another”), or against one’s will, with coercion, as in capital punishment and execution – or as in Christ’s instance, both occasions in one action.

Additionally, refusing treatment for say, a life-threatening decease such as cancer, may or may not constitute suicide depending on how aggressive and advanced it is, the likely efficacy of the treatment, and many other factors. However, refusing to eat or drink, in addition to (or not) refusing treatment very likely constitutes suicide; even here, mental state may be mitigating. Likewise, withholding food and water, or denying medical treatment to a patient with a life-threatening disease is very likely homicide. (Anyone who reads here with any frequency already knows its my view that in almost all instances, abortion also constitutes homicide, but I will re-state it just for consistency and completeness, and to jibe Law Dawg).

Christ, in my belief, is God. God has complete domain over human life (over all created life), in the manner Rogers (and Locke) characterize it. Therefore, Christ fully God has complete dominion over Christ fully man – and may permit or perpetrate Christ’s human destruction without culpability, – either as suicide or homicide.

Still, if you are suggesting Christ’s crucifixion was in fact Christ’s suicide, because as God he could have saved himself, or prevented the authority’s ability to carry it out, you are conceding (at least for the sake of argument) that Christ is God. Therefore, you are also conceding there is a God. And, once you have conceded there is a God how can you not concede, (quoting Rogers), “that God is the source of justice, Justice Himself, ruler of creation, whose providential ordering of creation is apparent to human kind through reason and scripture.” Or that, “God is owed complete and absolute obedience. God is goodness and justice in Himself, and there is a particular duty to obey God as source of justice”?

Happy Thanksgiving!

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Paul Binotto
on November 21, 2018 at 17:36:01 pm

Of course I’m not denying or affirming anything theological about Christ or suicide, I’m merely asserting that suicide is not best viewed as a matter covered by natural law.

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EK
on November 21, 2018 at 18:17:27 pm

EK,

I was primarily limiting my comments only to your statement, "Was not the sacrifice of the cross a suicide?", although I would have to disagree with your assertion, "that suicide is not best viewed as a matter covered by natural law."
however, I'll reserve my thoughts on that at let Mr. Gabe and others make their position.

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Paul Binotto
on November 21, 2018 at 18:55:47 pm

EK:

Just so! re: Natural Law MUST have a common reference point - thus, my query:"What happens when the previously agreed upon reference" is either disregarded, ignored or denigrated." In any event, it is no longer operative for a vast segment of the populace.

I suspect that is one reason why arguments based upon natural law ring hollow, if in fact they are even susceptible to modern hearing.

As you say, natural law may be reducible (traceable) to common mores / doctrines/ etc.

Avoiding the religious groundings often employed in defense of natural law (as few will accept them) and observing that humans are indeed political animals with a tendency to make "normative" those mores to which they are accustomed / confident / satisfied, I posited that the US Constitution may, in our morally dissolute era serve as the basis for a "small n" natural law. It does provide us with a reference, more than vaguely articulated, several operating principles or doctrines and it does (or did) have the advantage of having been approved and supported by the populace under consideration. also, it may, (or may not be ?, depending upon one's partisan leanings) somewhat MORE descriptive than other natural law variants while incorporating or subsuming major theses of the earlier forms of natural law.
To my understanding, COTUS is a loose codification of the natural law doctrines expressed in the DOI and in the expressed opinions of the founders.
Is it, thus, a higher or lower expression of natural law?
Given the current absence of the religious sentiments so prevalent in the period, and the periods about which you are so well versed, would we not be wise to consider and regard our *constituent* or Fundamental Law as the instantiation of "natural law", the source of such natural law being yet unknown / un-agreed upon, etc.
For surely, we must have a common reference and as i have remarked many times, we no longer possess a "Common Mind."
At least let us accept a framework that recognizes differences are inevitable and are not to be proscribed; that government, and both majorities and minorities are limited in the power they have to enforce their preferences AND that the few limits to liberty imposed by OUR Constitution enhance liberty rather than deny it.

All things follow from this.
All things follow from COTUS if properly understood and enforced.
Nietzsche said, "Without God, anything is possible". Sorry, Freddie, Natural Law may not be possible.
I simply propose a substitute - COTUS.

Happy thanksgiving to All!

As for the "suicide & cross" nexus:
Is the death of a combat soldier suicide or sacrifice?
The latter imparts honor / glory while the former diminishes both the efforts and the intent!

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gabe

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