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Natural Law in the Positive Laws: A Legislative or Adjudicative Issue?

Published online by Cambridge University Press:  05 August 2009

Russell Hittinger
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Extract

Debates over natural law routinely confuse three quite different sets of issues. First, there are the properly philosophical questions of (i) whether a natural law exists, and (ii) whether positive laws are valid completely apart from their moral specifications. Second, there are questions that properly belong to political theory. These include, (iii) how a constitution ought to allocate responsibility to make natural justice effective, and (iv) how a particular system of positive law handles this issue. Third, assuming that a judiciary is limited by written law, it can still be asked whether this necessarily prohibits judicial uses of natural law theory. Questions at these different levels are sufficiently different that what it takes to solve a question at one level does not necessarily carry over to the others. It is vain, therefore, to search for a single method that brings closure on these issues.

Type
Research Article
Information
The Review of Politics , Volume 55 , Issue 1 , Winter 1993 , pp. 5 - 34
Copyright
Copyright © University of Notre Dame 1993

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References

This essay has been through more than one draft and oral presentation. Thanks need to be given to those who helped along the way. First, the author wishes to thank Robert P. George and Gerard Bradley, and Harold Reeves who made helpful criticisms. Thanks are also due to Harvey Mansfield and to the students and faculty of the Department of Government at Harvard, who discussed the paper at the Political Theory Colloquium during the spring term 1992. Finally, the author thanks Chris Demuth and the American Enterprise Institute who provided a research fellowship that made the writing and revisions possible.

1. Summa Theologiae II-II, 57.1 ad 1. For the most part I rely upon the translation by the Fathers of the Dominican Province (New York: Benzinger Brothers, 1947–1948), with a few minor alterations of my own.Google Scholar

2. Ibid., ad 2. In his Commentary on the Ethics, Aquinas refers to la wmakers as architectores in artificialibus. VI In Eth. Lectio 7. And again, in ST I-II, 95.1 uses the simile of artisans hammering out arma rationis, the tools or weapons of reason.

3. For example, in the first distinction of the Decretum, Gratian proposed that: “The human race is governed in two ways, by natural right and by custom. Natural right contained in [continetur] the Law and the Gospel, commands that each do to the other what he would wish to be done to him. Thus, Christ said ‘Whatever you wish men to do to you, do also unto them. This is the Law and the Prophets.’ Thus, Isidore says, ‘Divine law is by nature; human law by custom.’” Gratian, , Concordantia Discordantium Canonum, D.I, in Corpus Juris Canonici, ed. Richter, A. and Friedberg, A. (Leipzig, 1922)Google Scholar. Quoting Isidore of Seville, Etymologies v, 2,1, d. 636. The word continere in this context means not only to include, but also to enclose. The positive law, whether human or divine, is said to re-present precepts of the natural law by inclusion and by fixing its boundaries in the form of writing. For Aquinas's use of the term, see ST I-II, 99.2,100.2.

4. ST I-II, 91.2,106.1. The contrast between lex indita and lex scripta is one of several ways that a law is said to be “natural.” See the Supplementum, 65.1 ad 4.

5. ST I-II, 94.5 ad 1.

6. ST I-II, 98.6.

7. Jefferson, Thomas, The Writings, ed. Ford, Paul Leicester (New York: 1898), 9:480Google Scholar; 18:1 (“The Batture at New Orleans”), 15:207. Cited in Kelly, Donald R., The Human Measure: Social Thought in the Western Legal Tradition (Cambridge, MA: Harvard Univiversity Press, Press, 1990), p. 186.CrossRefGoogle Scholar

8. Thomas, Clarence, “Why Black Americans Should Look to Conservative Policies,” The Heritage Lectures 119 (1987): 8.Google Scholar

9. Thomas, Clarence, “The Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment,” Harvard Journal of Law & Public Policy 12 (Winter 1989): 63–70.Google Scholar

10. Thomas, Clarence, “Toward a ‘Plain Reading’ of the Constitution—The Declaration of Independence in Constitutional Interpretation,” Howard Law Journal 30 (1987): 691–703.Google Scholar

11. Laurence Tribe asserted that Thomas is the “first Supreme Court nominee in 50 years to maintain that natural law should be readily consulted in constitutional interpretation.” Natural law might be used, Tribe warned, to justify “moralistic intrusions on personal choice,” especially intrusions informed by “Judeo-Christian moral standards” (“‘Natural Law’ and the Nominee.” New York Times, 15 July 1991). In the most recent edition of his American Constitutional Law, however, Tribe not only has given a sympathetic and fair account of the role of natural law theory in our constitutional history, but also has maintained that when interpreting the Bill of Rights, the judiciary “has elaborated from the spare text an idea of the ‘human’ and a conception of ‘being’ not merely contemplated but required” (American Constitutional Law, 2nd edition [Mineola, NY: Foundation Press, 1988], p. 1309)Google Scholar. Most scholars would regard this as not just a nod toward judicially cognizable natural law, but a summary statement of it.

12. Referring to the 1989 Harvard article—where Thomas wrote that “higher law is the only alternative to the willfulness of both run-amok majorities and runamok judges” (Thomas, , “The Higher Law Background,” p. 64Google Scholar)—Gary McDowell warned that “Thomas is a bigger problem for conservatives than he is for liberals.” It is one thing, McDowell opined, to believe that natural law might inform the legislative process; but it is quite another thing to consider natural law “in judicial interpretations.” Mcdowell, Gary L., “Doubting Thomas,” The New Republic, 29 07 1991, p. 14.Google Scholar In a similar vein, the conservative pundit, Bruce Fein, said that if Thomas holds a natural rights doctrine (of what judges should do), “I would write a column that says he should not be confirmed because it is not consistent with an oath to uphold the Constitution.” Cited by Marcus, Ruth, “Thomas Doesn't Fit Conservative Mold,” Washington Post, 8 07 1991.Google Scholar

13. Biden, Sen. Joseph, “Law and Natural Law,” Washington Post, 8 09 1991.Google Scholar

14. Plato Gorgias 483e.

15. See, e.g.: Fuller, Lon L., The Morality of Law, rev. ed. with “Reply to Critics” (New Haven: Yale University Press, 1969)Google Scholar; Hart, H. L. A., “Lon L. Fuller: The Morality of Law,” and “Positivism and the Separation of Law and Morals,” in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), pp. 343–64, 49–87CrossRefGoogle Scholar; Raz, Joseph, Norms and Practical Reason (Princeton: Princeton Univerasity Press, 1990)Google Scholar; Maccormick, Neil, “Natural Law and the Separation of Law and Morals,” in Natural Law Theory, ed. George, Robert P. (Oxford: Clarendon Press, 1992), p. 130Google Scholar; Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), chap. 1.Google Scholar

16. For the expression natural law as “effective law,” I have relied upon Robert P. George's 1992 Goodrich Lecture at Wabash College, entitled “How Does the Natural Law Become Effective?”

17. E.g., the federal constitution; federal legislation; federal administrative rules and regulations; treaties entered into by the president and ratified by the Senate; federal judicial decisions; state constitutions; state legislation; state administrative rules and regulations; state judicial decisions. See Atiyah, P. S. and , R. S. Summers, Form and Substance in Anglo-American Law (Oxford: Clarendon Press, 1987), p. 55.Google Scholar

18. ST 1–11,96.4; 11–11,60.2,6.

19. In the pejorative sense, meaning that the judge acts ultra vires.

20. Hart, H. L. A., The Concept of Law (Oxford: Clarendon Press, 1961), pp. 202–204.Google Scholar

21. Maccormick, , “Natural Law and the Separation of Law and Morals,” p. 130.Google Scholar

22. See Bork, Robert, “Natural Law and the Constitution,” First Things (03 1992), p. 64.Google Scholar

23. ST I-II, 94.5; 95.2–3; 96.4 ad 2.

24. ST I-II, 91.4.

25. ST I-II, 96.3 ad 2; 100.9 ad 2; 100.11.

26. ST I-II, Q.92.

27. See ST I-II, 98.1: “Wherefore human law makes precepts only about acts of justice, and if it commands acts of other virtues, this is only insofar as they assume the nature of justice.”

28. ST I-II, 96.2–3.

29. ST I-II, 95.1 ad 2.

30. Nicomachean Ethics 5.41132a22. On Aquinas's approach to the subject of inanimate justice, see the articles by Goerner, E. A.: “On Thomistic Natural Law: The Bad Man's View of Thomistic Natural Right,” Political Theory 7 (02 1979): 101–22;CrossRefGoogle Scholar “Thomistic Natural Right: The Good Man's View of Thomistic Natural Law,” Political Theory 11 (08 1983): 393–418.CrossRefGoogle Scholar

31. ST II-II, 60.1.

32. Indeed, see the Supplement 89.2, where Aquinas takes up the, question in the terms of the Final Judgment. Here, he argues that the best judges shall be those under Mendicant poverty.

33. Ibid.

34. Here, one would find no appreciable difference between Aquinas and a prominent legal positivist like Neil MacCormick. In a recent essay on natural law, MacCormick writes: “What then is the difference between practical reason as manifested in legal practice and practical reason as displayed in the moral life? The answer lies in the elements of publicity, authority, and determinacy special to law. Always the last resort moral judgement is that of an individual moral agent judging for her or himself after reflection on whatever advice, consultation, regard for convention or consensus or tradition or religious reaching is for her or him most persuasive or even authoritative. Always the last resort legal judgement, however, is that of a public tribunal acting as the responsible authority in such matters for a political community by reference to a publicly established and relatively clearly statable set of norms and standards of that community” (“Natural Law and the Separation of Law and Morals,” p. 119).

35. ST II-II, 60.5 sed contra. Citing De Vera Religione, cap. xxxi.

36. Locke, John, The Second Treatise of Government, ed. Laslett, Peter (Cambridge: Cambridge University Press, New American Library edition, 1965), II: 7–8, p. 312.Google Scholar

37. ST I-II, 90.3; and Supplement, 60.1, ad 1. A point repeated by Vitoria, who contended that the natural law only prescribes that there be a governing power, and does not prescribe who has it. In the absence of custom, positive law, or divine decree, authority is assumed to reside in the community; in the case of international law, in the community of nations. Vitoria, Francisco De, De potestate civili (1528), 1.4, 3.4, in Political Writings, ed. Pagden, Anthony and Lawrance, Jeremy (Cambridge: Cambridge University Press, 1991), pp. 11, 40Google Scholar. An advocate of monarchical government, Vitoria held that although power (potestas) comes immediately from God to the king, he was very careful not to claim that jurisdictional authority (auctoritas) immediately arises from the divinely conferred power, but from the commonwealth (1.4–5, pp. 11,16). Locke was to make a very different argument, that power and authority are given by God to individuals, who transfer it to the commonwealth.

38. ST I-II, Q. 90.

39. ST II-II, 60.6. See, also, the relationship to the virtue of obedience, in II-II, 105.5.

40. ST II-II, 60.6, ad 4.

41. ST II-II, 67.2 sed contra. Citing Gratianum, Decretum, P. II, causa III, qu. 7, can. 4.

42. ST II-II, 67.2, corpus.

43. Ibid., ad 4.

44. ST II-II, 64.6 ad 3.

45. In ST I-II, 95.4, Aquinas makes passing reference to a regime in which the citizens are governed by judge-made law, under the rubric of Ius Honorarium/ Praetorium. At least this is Thomas Gilby's interpretation. See Gilby's, note 1, in vol 28 of the Blackfriars edition of the Summa Theologiae (London: McGraw-Hill, 1966)Google Scholar.

46. The discipline, he is careful to note, includes the justice of procedures. ST I-II, 105.2.

47. I borrow the term “judicialization” from Bradley, Gerard, “Beyond Murray's Articles of Peace and Faith,” in John Courtney Murray and American Civil Religion, ed. Hunt, Robert P. and Grasso, Kenneth L. (Grand Rapids, MI: Eerdmans, 1992), p. 204.Google Scholar

48. Hamilton, , Madison, , and Jay, , The Federalist Papers, intro. by Rossiter, Clinton (New York: New American Library, 1961), p. 467.CrossRefGoogle Scholar

49. Ibid., p. 465.

50. For a survey of some recent cases where natural law jurisprudence is invoked against willful legislative majorities, see my article “Liberalism and the American Natural Law Tradition,” Wake Forest Law Review 25 (1990).Google Scholar

51. For a useful discussion of the sociological and institutional reasons for natural law jurisprudence in the United States, see Atiyah and Summers, Form and Substance, chaps. 8–9.

52. Adler, Mortimer J., Haves Without Have Nots (New York: Macmillan, 1991), pp. 197–98.Google Scholar

53. Adler mentions in passing that there ought to be “judicial restraint” (Ibid., p. 188). But his case against Bork rests entirely upon a philosophical consideration of the moral merit of the substance of laws rather than upon the moral restraints upon the office of judges. For example, with respect to the decisions of the Warren Court on racial segregation, Adler asserts that they “were not based on the unconstitutionality of such laws, but upon their injustice” (Ibid., p. 209). On the judge-made privacy law of the Warren and Burger Courts, Adler asserts that it is “impossible to demarcate the proper spheres of liberty and of law without drawing a line between private and public” (Ibid., p. 209). Throughout Adler's essay, there is scarcely a thread of argument touching moral questions of authority and jurisdiction.

54. Which was cited approvingly by Clarence Thomas in his Harvard article, “The Higher Law Background.”

55. Adler comes close to arguing as much. Concerning the Nuremberg Trials, he observes: “If there are no natural rights, there are no human rights; if there are no human rights, there cannot be any crimes against humanity” (Haves Without Have Nots, p. 200). This confuses, however, the reason for ascertaining a crime and the jurisdictional authority under which it is prosecuted. In point of fact, the Nuremberg proceedings were not undertaken in the absence of international law. Adler's enthusiasm for the traditional doctrine of objective iura, inhering in humanity, moves him to all but claim that judicial deliberations are simply a concomitant of the fact that rights exist, and hence that the American judiciary is a kind of ius gentium court in perpetual session.

56. In virtually all modern legal systems, litigation is appropriately put under artificial limitations regarding procedures and evidentiary rules. Such rules would not be handy for the moral or legal theorist attempting to search out the meaning or scope of natural law.

57. Bork, Robert, “Natural Law and the Constitution,” First Things (03 1992), p. 16.Google Scholar

58. Citing: Arkes, Hadley, Beyond the Constitution (Princeton: Princeton University Press, 1991)Google Scholar; Russell Hittinger, “Liberalism and the American Natural Law Tradition”; Ball, William, “The Tempting of Robert Bork: What's a Constitution Without Natural Law?” Crisis (06 1990).Google Scholar For their response, and Bork's rejoinder, see First Things, 23 (05 1992), pp. 45–54.Google Scholar

59. Bork, Robert, “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal 47 (1971): 30.Google Scholar

60. Bork, Robert, The Tempting of America (New York: Free Press, 1990), p. 258.Google Scholar

61. Bork's, rejoinder, p. 52.Google Scholar

62. When Bork writes that “there may be a natural law, but we are not agreed upon what it is, and there is no such law that gives definite answers to a judge trying to decide a case” (“The Struggle Over the Role of the Court,” National Review, 17 September 1982, p. 1138), he may or may not be right. But it is not immediately relevant to his stronger argument, which does not rest upon skepticism about natural law, nor upon the issue of consensus about its content. The stronger argument is that, whatever the degree of knowledge about the natural law, the judge must judge within the bounds of the authority conferred upon his office. As I said, this is a moral requirement that was recognized by nineteenth-century federal judges. For example, sitting on circuit in 1853, Justice McLean, wrote: “With the abstract principles of slavery, courts called to administer the law have nothing to do. It is for the people, who are sovereign, and their representatives, in making constitutions and the enactment of laws, to consider the laws of nature, and the immutable principles of right. This is a field which judges cannot explore.... They look to the law, and to the law only. A disregard of this by the judicial powers, would undermine and overturn the social compact” (Miller v. McQuerry, 17 F. Cas. 332 [No. 9,583] [C.C.D. Ohio, 1853], p. 339; cited in Cover, Robert M., Justice Accused: Antislavery and the Judicial Process [New Haven: Yale University Press, 1975], pp. 119–20).Google Scholar It was precisely this notion of how the positive law delegates authority to make natural law effective that moved Justice McLean four years later to dissent in the Dred Scott case, when Justice Taney, by judicial fiat, denied the national legislature any authority over the matter of slavery.

63. Bork, , “Natural Law and the Constitution,” p. 18.Google Scholar

64. ST II-II,120.1 ad 1.

65. Ibid., ad 2.

66. See Nelson, William, The Fourteenth Amendment (Cambridge, MA: Harvard University Press, 1988).Google Scholar

67. Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791, 2807 (1992).

68. See Arkes's examination of this issue, Beyond the Constitution, chap. 4.