In Hadley Arkes's "manifesto" we have an elegant restatement of the case for natural law and an elegant summary, as well, of the ideas that have informed Arkes's thinking over four decades. It is a fitting inaugural to the establishment of the Claremont Institute's new center for the study and application of natural law principles. The Center has many godfathers, but none more influential than Harry V. Jaffa. Natural law, it has been said, always returns to bury its pallbearers, and few in our time have done more than Professor Jaffa to revive interest in the subject.
We have in David Forte's response an equally elegant commentary on why judges—even judges who are friendly to the idea of natural law as a philosophical proposition—may be indisposed to acknowledge the authority of natural law as a guide to adjudication. Professor Forte, no less than Professor Arkes, recognizes the limits of legal positivism; but he also reminds us that positive law has moral virtues that natural law enthusiasts are sometimes prone to disregard. As Forte puts it, "We need to see what the actual moral experience of judging is, not just what it would be if confined to propositional logic."
Because I recently wrote at some length, and favorably, about Professor Arkes's effort to instill a deeper appreciation for the moral logic that necessarily undergirds all law ("Natural Law Man," Winter 2010-Spring 2011 CRB), I will not further dwell on the matter here. Instead, I would like to offer some observations on Professor Forte's response, and then follow that with a few suggestions regarding the new center.
Forte suggests that many judges are reluctant to venture beyond the confines of positive law, not because they abjure the importance of morals, but because "the positive law bounds judges within a moral framework, and Anglo-American judges find that moral framework sufficient unto itself." That moral framework, he says, may be found by examining various criteria of positive law that guide judges in their work: the binding authority of statutory enactments and executive orders; respect for precedent, the formalities of legal process, and prevalent legal doctrine; the finality of decisions once rendered; the authority of judicial ethics; "the positive law of law," by which is meant certain internal attributes (such as public promulgation, clarity, and stable administration) that distinguish law as such from arbitrary diktat; and, finally, what Forte calls "the law of reasons," or the duty to explain, publicly and usually in writing, the rationale behind decisions. He argues that these criteria, taken together and rightly understood, enable a judge to "ply his craft in consonance with natural law without needing to give it formal judicial notice."
There is much to what Forte says, and he is right that most of these criteria, consciously or unconsciously, derive from or rely upon principles of natural-law reasoning. His list delineates the necessary moral conditions for the rule of law that binds, or ought to bind, judges. The question, however, is whether his list is sufficient. I think it is not, which is why I am attracted to Arkes's argument that we need to be more explicit about the moral ground of legal reasoning.
The Limits of Positive Law
Toward the end of his response, Forte quotes a famous passage in Robert Bolt's A Man for All Seasons in which Thomas More instructs his well-meaning but somewhat impetuous son-in-law about heeding the commands of positive law. I know the passage well; indeed, A Man for All Seasons is a staple of one of my courses. More's statement is a moving and eloquent defense of the rule of law, one redolent with themes articulated by Plato, Aristotle, and Aquinas, the very themes that will later inform the passionate intensity of Abraham Lincoln's Lyceum Address. More's argument is powerful and, under ordinary circumstances, compelling. But the circumstances More would shortly confront were anything but ordinary. He refused to take the Oath of Supremacy but kept silent about his reasons for doing so. More sought refuge in the law because silence was no offence under the law of treason. Henry VIII would soon change that. He cajoled his captive Parliament to expand the definition of treason to include "malicious silence." With that turn, More's legal defense evaporated. Following a kangaroo court trial, he was convicted under the new law and went to the block, declaring that he died "the King's good servant, but God's first."
In a word, More's defense of positive law to Roper must be read in light of the positive law's moral limits. Professor Forte is well aware of that fact, but I would put to him this question: could a judge acting in accordance with Forte's criteria render a just verdict in More's trial without explicitly invoking natural law as the ground for his judgment?
To be sure, we have come a long way from the day when a tyrant's will, even when ratified by a supine legislature, acquired all the formal attributes of law while yet being lawless. Our Constitution rests on a moral argument that displaced the divine right of kings with the consent of the governed. And to ensure that the newly sovereign people would not themselves become tyrannical, the Constitution limited the powers of government and enacted diverse auxiliary precautions, chief among them federalism and the separation of powers. Notwithstanding these constitutional strictures, government growth in these days proceeds apace. Indeed, one would be hard-pressed to identify any subject that is now thought to be beyond the reach of the administrative state. The positive law, even the positive law of a written constitution specifically dedicated to limiting the reach of government, can only do so much. Clearly, something more is needed if liberty is to be preserved.
It is not just the size of government that is worrisome these days, but its arbitrariness. One need only consider the recently enacted health-care legislation—all 2,700 pages of it, in which we discover some 150 separate delegations of discretionary authority to various boards, agencies, and commissions. (I am told that the phrase, "The Secretary [of Health and Human Services] shall…" occurs more than 700 times.) Whether by statutory command, or prevailing legal doctrine and precedent, many of the decisions rendered by these bureaucratic entities may not, or as a practical matter will not, be reviewed either by politically accountable officials or even by the courts. We appear to have displaced a Constitution limiting the powers of government with a modern version of what used to be contemptuously called "the law of the Medes and the Persians." The bureaucracies that promulgate these laws for the most part take care to dot their "i"s and cross their "t"s in compliance with the formalities of administrative procedure. It may be questioned, however, whether their decisions, although cast in the forms of the law, retain the essential properties traditionally associated with the rule of law as extolled by Professor Forte. If I am right about this, judges who, as Forte says, find the moral framework of Anglo-American positive law sufficient unto itself are going to have a hard time reconciling their duties to the law with their love of justice. Those who are kindly disposed to natural law principles will, I suspect, find it increasingly necessary to resort, explicitly rather than implicitly, to the first principles of legal reasoning of the sort described so compellingly by Hadley Arkes.
This is a complicated matter to say the least, and I cannot here do more than to open the door a crack upon a subject that will in the fullness of time animate spirited discussion among participants in the new natural law center. That said, let me turn to the new Center for Natural Law Jurisprudence and its program.
What Is To Be Done
I begin with the observation that lawyers in general are an anti-philosophical race. Like Professor Forte's judges, they like their philosophy in small, easily digestible doses and tend to disdain anything that smacks of metaphysics. This disposition is partly a consequence of their day-to-day experience, which seems to be filled with infinite contingency, relieved only by the certitudes of positive law. But this feature of the legal trade has been exacerbated in every respect by a century or more of legal realism, which has trained lawyers and judges to think of law and morals as two categorically discrete subjects that must forever be kept separate. The good news is that lawyers are good at reasoning by analogy and can be taught to think syllogistically.
Here is the entry point for the kind of reasoning about law that Hadley Arkes has devoted his life to explaining. Better than almost anyone else I know, he makes explicit the syllogistic structure of moral reasoning of a sort that lawyers (and for that matter, everyone else) employ all the time—the skeleton, so to speak, of their thought. Give him a couple of Aristotelian propositions (e.g., the law of non-contradiction) and a sprinkling of Kant, and the next thing you know people who have, as it were, never thought about thinking, are thinking quite explicitly like the rational moral beings they are and have always been.
The best way to instruct lawyers and judges about higher things, I think, is to stick with specific cases and hypothetical examples drawn from their actual experience. In his voluminous writings over the years, Arkes has repeatedly demonstrated an unusual, indeed brilliant, knack for doing just that. He has done it again in his most recent work, where he takes well-worn and familiar topics like ex post facto laws, liberty of contract, and freedom of the press and shows how the positive law in each instance presupposes a certain kind of moral logic that one ignores only at his peril. Presented with concrete examples of this sort—and the list is almost infinite—lawyers and judges (whether they agree or disagree with particular policy conclusions) will feel a reassuring terra firma under their feet; they will, in short, feel at home, which is where you want them to be if you seek to energize their moral imagination. In a word, you cannot expect lawyers and judges to become moral philosophers—God forbid!—but you can teach them how to reason morally and, perhaps, to become confident when doing so.
Beyond real and hypothetical cases, it might be instructive as well to draw out the moral suppositions that lie beneath many common-law maxims—for example, those dealing with the foundational principles of tort and contract, or more generally the injunction that a party seeking justice must come into court, as the saying goes, "with clean hands." More general historical inquiry has a role to play here as well: why not seek to instruct lawyers and judges about the nature of positive law reasoning before Oliver Wendell Holmes, Jr., and the legal realists got hold of legal education? Along this line, the 18th and 19th centuries open a goldmine of opportunities. It would be instructive, for example, to walk lawyers and judges through parts of Blackstone's or Chancellor Kent's commentaries on the common law. On constitutional matters, what about taking a look at John Adams's Defence of the Constitutions of Government of the United States of America or Justice Joseph Story's treatises? And still later, there is Thomas Cooley's Constitutional Limitations, which was the treatise par excellence of legal practitioners and judges in the late 19th century and the first decades of the 20th.
The point of such inquiries would go beyond mere historical interest. The point, rather, would be to show present-day law students, lawyers, and judges how their predecessors reasoned about the positive law and its dependence on moral reasoning. Toward the same end, it might be useful to consider some of the 19th-century state supreme court reports, which not only summarized the briefs but excerpted lengthy parts of the oral arguments. Modern lawyers may find it instructive, I think, to see how comfortably the language of law and morals intersected in an earlier era. There was a time when natural law thinking was much closer to the surface of positive law than modern teachers and students of law—and judges as well—typically imagine or are even capable of imagining.
Checks and Balances
A particularly fruitful area for practical inquiry is presented by the specter of the administrative state. The separation of politics and administration and the application of neutral expertise were supposed to ensure a new birth of democracy and to protect citizens against the vicissitudes of modern political and economic life. The progressive vision has now morphed into an increasingly arbitrary and intrusive collection of bureaucratic ipse dixits that are masked in the forms of law but are often lacking in the substantive protections long associated with the rule of law. The number of pages in the Federal Register, containing new, revised, and proposed regulations, has been hovering in the 80-90,000 range for some years now. Surely a center devoted to the application of natural law principles might have something to say about all this. There are no easy solutions at hand, but I think the time is long overdue for a thoughtful reconsideration of substantive due process, that bête noir of so many liberal and conservative judges and teachers. Professor Arkes suggests as much in his treatment of the reasoning that lay behind Justice Peckham's much (but unfairly) derided opinion in Lochner v. New York(1905). (I am happy to note in this regard David Bernstein's new book on the Lochner myth and its hold on the modern legal imagination.)
Another potential line of inquiry lies in a reconsideration of the long-dormant non-delegation doctrine and all that has followed in the wake of its demise. Again, there are no easy answers here, and I do not mean to suggest that a radical downsizing in government is feasible as a practical matter. I do mean to suggest that effective government, even fairly sizeable government, need not be as abusive as our current and future circumstance seems to suggest. As with the revival of interest in the substantive meaning of due process, those versed in the natural law tradition and the principles of the American Founding might have something useful to say about the rise and growth of abusive bureaucratic discretion. There is a special role here for judges, whose ability to check abusive bureaucratic discretion is often constrained, or so it seems, by contemporary canons of positive law. Perhaps it is time to explore with them some new ways of thinking about the moral foundations of positive law.
Well, there is more than enough here to furnish forth an agenda or two for the Claremont Institute's new program. I leave it to wiser heads to explore which, if any, of my suggestions may prove worthy of further inquiry.