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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.

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