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Why I Am Not a Natural Lawyer

American lawyers who seek to bootstrap their conservative beliefs are apt to describe themselves as natural lawyers. They’re more than right-wingers, you’re to understand. They’re also philosophers, in possession of an ostensibly accessible but actually secret code. Nor need they have read much of Aquinas. A mere profession of faith in natural law suffices.

They’re also unlikely to have read David Hume. Nearly 300 years ago, Hume demolished the pretended link between nature and goodness. From a statement about what is the case, he said, you can never derive a proposition about what ought to be the case. Some moralists write that some thing or other “is” so, and that therefore you “ought” to do it. They try to slip that in, but one thing doesn’t follow from the other. We have natural inclinations, to which attention must be paid, but they aren’t always worth following. So if something is natural, that doesn’t tell us whether we should yield to it. In Principia Ethica (1903), philosopher G.E. Moore gave a name to the attempt to define the good in terms of what is natural. He called this the “naturalistic fallacy.”

Like Hume, the skeptic is also permitted to question whether, from the congeries of virtues and vices that make up of character, we might discover an essential goodness. If all you mean by calling something natural is that it’s a good thing to do, I’d go along with it. In that case, however, labels like “natural” and “unnatural” are wheels that turn nothing. They’re shorthand for deeper beliefs about what’s good for us, and you could dispense with them and simply cut to what you think is good or bad.

Besides, two can play at that game. Natural lawyer Lady Gaga tells us she was born that way. And while natural lawyers tend to be anti-abortion, a scholarly 2019 Kansas Supreme Court in Hodes v. Schmidt, ___ P.3d ___ (2019) found a right to abortion in the related doctrine of natural rights as guaranteed by the state’s Bill of Rights. What is natural to man, thought arch-reactionary Joseph de Maistre, is the desire to offer sacrifices to appease an angry God, and not just sacrifices but human sacrifices too. The greater the victim, the greater the sacrifice. Revolting as this might be, human sacrifice was everywhere a custom in primitive societies, and it required the sanction of religion, in the story of the binding of Isaac and the sacrifice of the cross, to bring an end to it.

Natural law shorn of revealed law and the need for religious faith is Pelagianism, a fifth century heresy which held that the natural law is known to us and that we are able to live good lives without God’s grace.

When pushed, the natural lawyer (who has sometimes found himself able to do without the hypothesis of a deity) can be heard to protest that we’re put to an election between his objective truths and moral nihilism. But that’s not how religious believers would have understood the choice in the past. Instead, they’d have said that the opposite of natural law is revealed law, which commands us to obey the God of Abraham, Isaac and Jacob.

Natural law shorn of revealed law and the need for religious faith is Pelagianism, a fifth century heresy which held that the natural law is known to us and that we are able to live good lives without God’s grace. Milton was a Pelagian, and so were Locke and Kant. It’s also the heresy of our time, amongst liberals in particular. The political differences that divide us are often theological, not philosophical, as Eric Nelson pointed out in The Theology of Liberalism (2019), and the dividing line is between the Pelagian and Augustinian traditions.

Pelagianism was condemned by St. Augustine because, if we could earn our way into Heaven, what was the need for the cross? So Pelagianism was wrong, and Augustine thought it followed that God’s grace is indeterminate. We don’t buy our way into Heaven by our good works, and we can’t even perform a morally good act without an infusion of grace, which He awards to some and denies to others. And when He decides to grant someone His grace, that person is powerless to resist it.

So, it all comes down to His choice. It’s like our choices about whom to befriend. You might know of a perfectly decent person, kind, gentle, a totally good egg. And you’re not obliged to like him. So too with God, in His decision about whom to “justify” and admit to Heaven. Some might think this inconsistent with the idea of a loving God. They’re wrong. Rather, it’s inconsistent with the idea that God is bound to love you. You might be a perfect little saint, but He still might not care for you. That’s what you get if, as Leszek Kolakowski put it, God Owes You Nothing.

You might not like this. But then why did you think you had a vote in the matter?

That is why Augustinians such as Blaise Pascal, George Bernanos, and Eric Rohmer came to regard the natural lawyer’s assertion of moral knowledge as naïve and presumptuous. If we think ourselves able to live moral lives, shorn of God’s grace, we’re merely self-deceived. “Men are saved or damned,” said Pascal, “according to whether it pleased God to choose them to give them this grace, from amongst the corrupt mass of men, who with justice He might have all abandoned.” All is grace.

The differences between the two theological traditions persist in today’s conservatism. The natural lawyer asks us to believe he has ownership rights in conservative ideas. He might deny the charge of Pelagianism if he leaves room for God’s grace, but his beliefs are very much at odds with the skeptical, Augustinian tradition in conservatism. The Augustinian has a sharp eye for self-deception, and demands evidence before he believes that a policy works. He is suspicious of natural rights and of assertions about self-evident truths, and thinks that little of moral interest can be derived from thought-experiments about bargains in the state of nature. He prizes empathy and kindness, and thinks the natural lawyer’s obsession with property rights might betray a morally shriveled heart.

With statesmen as Burke, the Augustinian tradition is well represented in conservatism. Now, with the political and moral collapse of libertarianism, we await a restatement for our times, shorn of aprioristic theories of natural law and natural right. Through the mist, we dimly perceive its outlines, how old gods such as Locke and Jefferson recede and how politicians such as Barry Goldwater and Paul Ryan fade; and from a distance, half-remembered faces emerge—thinkers like John Dickinson, Robert Taft, even Margaret Chase Smith. For America in 2020, nothing less than a rewriting of conservatism is required.

While not sectarian, the new conservatism (which is an old conservatism in many other countries) will be rooted in the traditions of our religions. It will not be illiberal, because liberalism and individualism, liberty and equality grew out of and are an essential element of our Judeo-Christian heritage. It will, however, reject an irreligious liberalism because without religious faith liberalism carries the seeds of its own destruction.

The new conservatism will pursue justice but recognize that this defines only a very small part of what we owe each other. The demands of justice do not include more important moral requirements such as the duty to be kind to others and forgiving of their offences, and to examine all the ways in which we ourselves have been unkind, unforgiving and unjust. On the reading list of the new conservatism: Thomas à Kempis, Dorothy Day. When applied to public policies, the new conservatism will be tentative, experimental, atheoretical. It will be practical and shrug off accusations that it is unprincipled. It will distrust grand schemes and content itself with minimal improvements. It will always remain curious about things that can be mended, but will nevertheless have a sense of limits, of tragedy and of unjustified saints.

Reader Discussion

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on April 24, 2020 at 07:46:00 am

I didn't know libertarianism had collapsed! And here I was out doing libertarian political theory. Maybe Buckley should read something written after the G.E. Moore.

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John Smith
on April 27, 2020 at 09:34:38 am

Salvation for me but not for thee, is certainly consistent with a form of Pelagianism, that denies “The Integralism Of The Cross”, for Christ Has Revealed Through His Life, His Passion, And His Death On The Cross, that to Love one another as Christ Loves us, is to desire Salvation for one’s beloved.

Thus we can know through both Faith and reason that this statement, which denies “The Integralism And The Logic Of The Cross, is a form of Pelagianism, that in denying that sin done in private, is sin, not only denies that God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, Is The Author Of Love, Of Life, And Of Marriage, in private and in public, but denies The Very Essence Of Life-Affirming And Life Sustaining Salvational Love, God’s Gift Of Grace And Mercy, which is Apostasy.

“If there is a union of a private nature, there is neither a third party, nor is society affected.”

https://churchlifejournal.nd.edu/articles/integralism-and-the-logic-of-the-cross/

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Nancy
on April 24, 2020 at 08:04:26 am

So, there are conservative academics, as there are ample in number on the Left, who believe, think and pronounce from on high like this. May a more ecumenical council follow in the wake of such pontifications. The errors in this piece, if somehow miraculously transposed and formed into a mountain, would cause My Everest embarrassment.

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Michael Bond
on April 24, 2020 at 08:58:18 am

"There is nothing either good or bad but thinking makes it so." Anyone who pretends to know what is and is not "moral", should be trusted least. And the oft repeated claim that the United States is built fundamentally on Christianity (from which contradictory sect, exactly?) is both boring and laughably thin.

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Dave137
on April 24, 2020 at 09:04:21 am

This is one of the better essays so far published in Law & Liberty, and I agree entirely with the demolition of the utility of natural law accounts for conservatism (or anything else). But on the one hand, does it really make sense to describe Kant as a Pelagian? The famous "crooked timber" phrase sounds more like an endorsement of an Augustinian position. On the other hand, to hammer conservatism's colors to the mast of Augustinianism seem a recipe for failure in our pantheist (see Tocqueville) society.

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Alan Kahan
on April 24, 2020 at 09:08:18 am

"Now, with the political and moral collapse of libertarianism .... " When exactly did libertarianism collapse? It must have happened on a day when I wasn't watching the news.

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Gerard Casey
on April 24, 2020 at 09:14:03 am

Dismissive. It would be interesting to see the author thoughtfully interact with the concept of natural law, beginning perhaps with a look at what the idea actually is, then considering some pros and cons... but the real point here, I suppose, is advocacy for a new conservatism.

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Aaron Blumer
on April 24, 2020 at 10:05:27 am

The 'nature' under discussion by Aquinas and tracing back at least to Aristotle is a teleological conception. The mechanistic 'nature' under discussion by Hume is a different beast entirely. Is Mr. Buckley truly unaware that he uses apples to critique oranges?

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Howard Isaacs
on April 24, 2020 at 10:05:43 am

The author seems confused about natural law. Is he attacking natural law as found in aquinas which is inseparably linked to the created order and providence? I’m not sure how Aquinas could be described as Pelagian?? Or is he attacking the new natural law of Finnis who, if I understand correctly, would argue a form of natural law theory that does not deny, but presupposes, that the naturalistic fallacy is true.

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Ashiv
on April 24, 2020 at 10:17:20 am

Professor Buckley proclaims that he is "not a natural lawyer." Perhaps he is, indeed, not a natural at law, not born to the legal profession as Roy Hobbs (Robert Redford) was born to professional baseball. But if admittedly not a natural lawyer Buckley is inarguably a natural polemicist, preternaturally predisposed to disagree and possibly valuing controversy as its own reward. And unlike, say, natural polemicists Thomas Paine or Christopher Hitchens, Buckley naturally denigrates most amicably those with whom he most artfully disagrees. For example, to describe me, a devotee of natural law (if, like Buckley, "not a natural lawyer,") as "naive," "presumptuous" and "self-deceived" in my intellectual enthusiasm while also causing me to enjoy reading the insults requires a natural literary talent, no doubt the power of God's grace working in Buckley the writer.

In one TV episode of the "Family Guy," after protagonist Peter Griffin is called "a fat, deadbeat loser" he replies, "Well, sir, while I may not agree with what you say I'll defend to the death your right to say it."

We should all feel the same way about Professor Buckley.

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Paladin
on April 24, 2020 at 10:34:19 am

"[W]ith the political and moral collapse of libertarianism..."

How? Someone forgot to tell the libertarians.

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Micah
on April 24, 2020 at 11:39:20 am

“They’re more than right-wingers, you’re to understand.”

It is hard to understand what the term “right -wingers” refers to if you do not begin with a point of reference. We can know through both Faith and reason, that there cannot be a “right” to abortion, due to the fact that every human person has been endowed by God, with our inherent Right to Life.
I think St. Augustine, like St. Thomas Aquinas, would agree, that who better than The Way, The Truth, And The Life Of Perfect Love, Himself, would know what is Good, Beautiful, and True, and thus compared to The Will Of Divine Providence, which should always be our Reference Point, everything else is mere straw.

We can know, through both Faith and reason, that a Loving God cannot possibly be a tyrant, because Salvational Love, God’s Gift Of Grace And Mercy, Is Poured Forth for all those who desire to repent, and believe in The Life-affirming and Life-Sustaining Essence Of Perfect Trinitarian Love, That Was In The Beginning, Is Now, And Forever Will Be.

We can know through both Faith and reason that because our Founding Fathers recognized God, The Most Holy And Undivided Blessed Trinity (See Treaty Of Paris), to be The Author Of Natural Law, Natural Law cannot serve in opposition to Revealed Law, Due To The Unity Of The Holy Ghost.

Thus we can know through both Faith and reason, if we desire to Mirror Justice, we must desire to Reflect The Truth Of Love.

“Behold your Mother.”

“Our Lady was the one who prevailed on her Son to work His first miracle at Cana in Galilee. She is still the one, through whose intercession He wants to perform miracles now, on earth, in our day. But there is one condition: We who have the faith, must believe. And we who have the Grace, must use it to live lives of heroic virtue." -Father John Hardon

Our Lady of Fatima, Destroyer Of All Heresies, who, through your Fiat, affirmed The Unity Of The Holy Ghost, (Filioque), And Thus The Fact That There Is Only One Son Of God, One Word Of God Made Flesh, One Lamb Of God Who Can Take Away The Sins Of The World, Our Only Savior, Jesus The Christ, Hear Our Prayer for the affirmation of your Son’s Eucharist Prayer:

“21That they all may be one, as thou, Father, in me, and I in thee; that they also may be one in us: that the world may believe that thou hast sent me.

22And the glory which thou hast given me, I have given to them: that, they may be one, as we also are one. 23I in them, and thou in me: that they may be made perfect in one: and the world may know that thou hast sent me and hast loved them, as thou hast also loved me. 24Father, I will that where I am, they also whom thou hast given me may be with me: that they may see my glory which thou hast given me, because thou hast loved me before the creation of the world.“ - https://biblehub.com/drb/john/17.htm

Imagine if we desire to remain In The Unity Of The Holy Ghost, this side of Heaven, only Good can come from that,

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Nancy
on April 24, 2020 at 12:07:11 pm

“If there is no Holy Spirit, there is no discernment”, for Natural Law and Revealed Law cannot serve in opposition to one another, due to The Unity Of The Holy Ghost.

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Nancy
on April 24, 2020 at 12:41:59 pm

Dorothy Day? What should the “new conservatism” learn from her?

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Mark Pulliam
on April 24, 2020 at 15:53:57 pm

Oh, come on Mark!
Of course the NEW conservatives can learn from radical progressive AND journalist (I repeat myself) Dorothy Day. Aren't all NEW conservatives libertarian? and neo-anarchist.
It is euphemistically called "engagement."

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gabe
on April 24, 2020 at 13:09:09 pm

Catchy and, perhaps, apt essay title!

"Hume demolished the pretended link between nature and goodness. From a statement about what is the case, he said, you can never derive a proposition about what ought to be the case. Some moralists write that some thing or other “is” so, and that therefore you “ought” to do it."

And who might these moralists be? I know of no natural rights / natural law theorist / exponent, other than those on the Left (and, yes, some Libertarians also) posturing as Nat law types, who would, or have advocated such a "Let it all hang out" approach to morals / law.

Is Buckley conjuring, for polemical purposes, some hybrid of Rousseau and Kant where we find that the predilections of the "noble savage", being quite "natural" ought to command all the deference due to a categorical imperative?

And yet, Buckley is correct in urging a more considered (and considerate) and less ideological approach to conservative governance / proselytizing. Does Buckley suggest this approach merely from a utilitarian consideration / stance? or is this simply an attempt to meld legal positivism into a moral foundation arising from Judeo-Christian heritage / teaching? Burkean *change* is the result of innumerable, quite often barely perceptible mutations in social practice, belief and understandings the consequent output of which is positive Law.
But let us be careful here and not fail to observe one possible outcome of an over-reliance upon Burkean change, here read as changes in positive Law over time lest we succumb to the problem that Buckley properly alerts us to in this essay and a previous essay on the need for a more prominent "morality" in the constitution of the United States.
An exemplar of the problem I think Buckley wishes to address but also falls victim to.
A Catcher for the Seattle Mariners was a power hitter in college and the minor leagues. He made his name as a power hitter. He sucked in the majors; could not hit a curve or other offspeed stuff BUT more importantly he not only could not execute most of the games fundamentals, he was not disposed to even recognize them.
The lawyer, academic, commentariat who have attained their station, wealth and power / influence via the exercise of 'legal imagination,"by a deft deployment of verbiage, legal, philosophical and otherwise have been rewarded, as was our hapless catcher, in their earlier incarnations as students, apprentices, associate counsel. clerks, adjuncts, etc with prestige, salaries and influence. The "legal imagination", herein read as the making of law, the "divination" of it actually, the crafting of novel theories that have ultimately been accepted in both the legal and general populations provide the legal counterpart of the Mariners cathcer with the same rewards while confronting them with the same problem, i.e. the inability to recognize the fundamentals of the 'game."
Those fundamentals are the underlying moral predicates upon which the LAW is based. Whether one wishes to ascribe these moral propositions to a divine origin or to an inherent attribute of humans, i.e. "reason / rationality", the fact remains that Law is, and ought to be undergirded by moral propositions. Kant would call them categorical imperatives, others may call them Commandments (as in Ten). We once recognized this fact, this "proposition"
We no longer appear to do so. And I suspect that it is due to a dynamice not unlike that confronting our catcher.
If I got to the majors by hitting home runs, and attained wealth, recognition and influence why would I change anything that brought me here? Why engage in something that I do not know or can no longer recognize in preference to something that I have demonstrated, and are known to have demonstrated, exceptional competence?
In baseball, independent observers, scouts, evaluators (GM's) have influence and power to eliminate our catcher from a big league roster for an inability to recognize, much less execute the games fundamentals.
Not so in our dear legal / philosophical professions. Those who are no longer able to recognize the underlying moral propositions of the Law, who claim that only the positive Law is of import and that it too is subject to ever more creative modifications / understandings need not fear that they will be removed from the Big League roster. Rather, they know that like minded jurists, members of the bar and academy will assure their continued presence on the roster as NONE of them are able to recognize the 'fundamentals of the game "LAW).
Buckley however much he may protest is also susceptible to such a trap. Advocating a Burkean only perspective / course of action rather than a tempered Burkean approach WHICH continues to recognize the underlying fundamental moral imperatives of the Law with the reality of changes in the Common Mind may very well lead Buckley, as it has LED countless others to forget / abandon moral imperatives in favor of legal positivism, no matter how well masked as Burkean change / consensus.
In short, if you lose morals, you lose the Law - and end up with nothing more than contingent propositions and rules.

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gabe
on April 24, 2020 at 13:28:21 pm

oops, for got this!
Buckley's preference for a Parliamentary form of governance with its reputed capacity for rapid change (*reversability* in Buckley's terminology) is, to my mind an indication that he, too, is (or perhaps has been) susceptible to the tendency to favor "positive" Law over a more considered and morals, here read as an understanding of underlying moral propositions, based approach to Law and governance.
Bring in the new majority and do as you wish - write more Law / rules. Reverse that which may been "the inheritance" bequeathed by our forebears.

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gabe
on April 24, 2020 at 15:22:28 pm

As De Niro said, "You talkin" about Mike Zunino?
Obviously sabermetrics is not enough.

Yet, your Mariners flop-and-out analogy is helpful. Maybe law schools should use stats during the professorial draft, at least to to see who has "Trouble with the Curve" called reality.

Law review at an Ivy or a Supreme Court clerkship for a Lefty would count as serious negative data.

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Paladin
on April 24, 2020 at 15:50:26 pm

"Obviously sabermetrics is not enough. "
And the same may be said for Critical Legal Studies.
WTF would the Ole Perfesser, Casey Stengel think of these knuckleheads?

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gabe
on April 24, 2020 at 20:29:40 pm

Now, more than ever, we need natural law. For example, what if we returned to our first principles and adopted a property rights approach to the pandemic? I explain how in my Mercatus Center op-ed: https://www.mercatus.org/bridge/commentary/why-covid-19-lockdown-orders-require-just-compensation

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Enrique Guerra-Pujol
on April 25, 2020 at 13:32:10 pm

This reminds me of an excellent defense of natural law against Humean objections raised by an Eastern Orthodox theologian, David Bentley Hart. Ed Feser called his post "A Christian HART, an HUMEAN head!"
http://edwardfeser.blogspot.com/2013/03/a-christian-hart-humean-head.html

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CJ Wolfe
on April 26, 2020 at 04:06:00 am

I very much want to apologize for my earlier comment in this thread, a couple days ago. I'm rather ashamed of the substance and tone of that remark. It was entirely uncalled for.

Most notably to the author, F H Buckley, to the site manager and the site in general and to the public here, my deep and most sincere apologies.

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Michael Bond
Trackbacks
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