The bridge of Natural Law
I have, from time to time, considered a subscription to Touchstone magazine. Articles like this are what pull me that way. I have long been attracted to Natural Law as the basis of political philosophy, and been wary of what author Robert Cochran describes as ‘scripturalists’. I find that approach heavy handed and am hard pressed to know how it can cope with a global civilization in which people of many beliefs interact and must find a way to accommodate one another. As an adolescent I was drawn into a secular way of thinking about this but as an adult I have found that school to be as problematic as the scriptural. The secularists claim to neutrality simply does not stand up to scrutiny.
Cochran suggests that Natural Law theory can act as a bridge among these groups, and cites the current presence of five Catholics on the US Supreme court as evidence of this:
There may be political explanations for the attractiveness of Catholic justices, but I think three Catholic doctrines—natural law, subsidiarity, and religious freedom—help to explain why a majority of the justices are now Catholic. My argument is not that citizens who support, presidents who appoint, and senators who confirm these justices consciously do so because they want Catholic religious beliefs on the Court, but that these doctrines yield habits of thinking that make Catholics attractive candidates to the broad range of the American people.
The argument is, in other words, that Natural Law thinking serves as a bridge between the secular and the scriptural. A Venn diagram of three slightly overlapping circles gives the idea:
Today, natural-law proponents are in a strong position politically because natural law is more acceptable to each of the other groups than the alternative. Natural lawyers are more acceptable to scripturalists than secularists are, because natural lawyers generally come to the same positions as scripturalists and the Scriptures themselves recognize the existence of natural law. (If we had God’s insight, natural lawyers and scripturalists would always reach the same conclusions, but we do not.) Natural lawyers are more acceptable to secularists than scripturalists are, because natural lawyers justify law by reason, a language they both share.
Cochran goes on to argue that in the past, Natural Law thinking was prominent in the American legal tradition but that in the twentieth century it became unpopular among the groups who had created that tradition. He cites Oliver Wendell Holmes as paradigmatic of the changes taking place:
Oliver Wendell Holmes, a Supreme Court justice and the most influential legal thinker of the twentieth century, called natural law “that brooding omnipresence in the sky.” His views—that moral preferences are arbitrary, law is merely power, and “truth” is the position of the nation that can lick any other—became increasingly influential during the twentieth century.
The leading legal theories of the last third of the twentieth century had no place for natural law. Critical legal studies, feminism, and critical race theory taught that law is merely the power play of judges and their economic classes. However, they offered no basis for reconstructing law on a firm and just footing, for if law is only power, there is no basis on which the weak can challenge the powerful. These theories provided only a counsel of despair, a means of deconstruction with no basis for reconstruction.
The leading conservative theory, called law and economics, also looked to Holmes. It taught that the best ground for law is efficiency and thus provided no conception of justice. In a system based solely on efficiency, the inefficient have no standing.
By the end of the twentieth century, modern legal theories had run their course. Words like “justice” and “rights,” which are rooted in natural-law jurisprudence, mean little in a legal world that understands law as only power or efficiency.
Natural Law is making a comeback because the alternatives are beginning to be found wanting and the best place to find Natural Law thinkers is among Catholic intellectuals. This is not to say that they are not to be found in other groups, only that the Catholics are more prominent at the moment.
Cochran puts it thusly:
Not all twentieth-century use of natural law was Catholic. The opening and closing arguments of Episcopalian Justice Robert Jackson, who took a leave from the Court to be the chief American prosecutor at Nuremberg, were natural-law arguments: The Nazis had committed crimes against humanity, crimes against a law that is higher than positive law. Martin Luther King, Jr., a Baptist, in his Letter from a Birmingham Jail, quoted both Scripture and Thomas Aquinas to support his argument that an unjust law is no law.
Natural law received little respect within legal intellectual circles during most of the twentieth century until the publication of Oxford legal philosopher John Finnis’s Natural Law and Natural Rights in 1980. Since then, to the surprise of proponents of the dominant legal theories, natural law has re-emerged as a leading legal theory, and Catholics, who had never given up on natural-law theory, have taken the lead in that movement.
Cochran goes on to look at the issues of religious freedom and subsidiarity, which are interesting as well – but I will leave the reader to examine for himself. It’s the idea of a bridge between the camps in the ‘culture wars’ that I find so encouraging. It’s encouraging because, as Wesley Smith writes at First Things:
The value of equality also permits the creation of very powerful coalitions of strange political bedfellows… [therefore] the widespread belief in equality offers great reason for hope.
Equality is continually being undermined by the growing utilitarianism and amorality of society. In such a milieu it is easy to become discouraged. But the fact that human equality has become nearly universally accepted means we have the high ground. That doesn’t guarantee victory. But it does mean we can make powerful and compelling secular arguments about these issues that have the potential to resonate deeply in the public square.
If that is not encouraging, I don’t know what is.