The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped
by Stuart Banner.
Oxford University Press, 2021.
Hardcover, 264 pages, $50.
Reviewed by Bruce P. Frohnen
This important book picks up where R. H. Helmholz’s groundbreaking Natural Law in Court leaves off. Helmholz’s book traces the use and influence of natural law from early English to founding-era American court cases. Banner’s is a meticulously crafted yet highly readable history of how lawyers and judges used natural law in later American courts, particularly during the nineteenth century. The story is one of consensus, conflict, and decline, then continuing reverberations to this day. Particularly during the second half of the nineteenth century, natural law lost its status and even identity among American lawyers, giving way to a scrabbling after precedents, a stifling outpouring of written law, and a descent into the kind of ends-oriented lawyering that motivates judicial lawmaking today.
Banner’s volume is no requiem for natural law. He takes a decidedly analytic tone, presenting both sides of arguments regarding the nature, importance, and decline of natural law. A central theme: lawyers once saw themselves as finding law by looking at the facts of specific cases in light of the principles of natural law and the customs that shaped the reasonable expectations of the parties to these cases. Lawyers increasingly since the early twentieth century have come to see themselves as making law; that is, they see law as the product of their own wills, tempered only by the duty (more or less obeyed, depending on the judge) to adhere to previous decisions and statutory language.
The story is laid out with admirable clarity: at the beginning of the nineteenth century, the legal consensus was that natural law principles should guide both decisions regarding what the unwritten, common law requires and how courts should interpret written statutes and constitutions. For example, one court held that the legislature could not have meant for a man to be convicted of embezzlement when he reasonably thought the money his own. Statutes, while only rarely held to simply not apply, were interpreted in light of the natural law which legislatures presumably intended to follow.
There was always some doubt among lawyers regarding the truth and especially the universal applicability of natural law in court. Banner devotes a chapter each to professional developments that increased these doubts and, by the late nineteenth century, brought natural law’s suitability for use in court into serious question. These included the adoption of state constitutions, leading to questions as to whether the natural law remained applicable, or whether the people’s rights and duties were now defined solely by the written text. The growth of this highly text-based argument and its problematic assumption that governments have all powers not specifically denied them by their constitutions, was accelerated by the view, increasingly influential as the years went by, that the natural law was merely a set of religious and moral convictions, relevant to one’s individual conscience but not to legal decision making. As important, in Banner’s schema, was the explosion of legal publishing over the course of the century. As court opinions became more widely available (and voluminous) lawyers came to rely less on their understanding of legal principles and increasingly on establishing congruences between the mere facts and holdings of the current case and those of previous cases, wherever and under whatever circumstances they may have been decided.
Perhaps most damning, for those who opposed the use of natural law in court, was the explosion during the nineteenth century of natural law claims regarding the proper answers to deeply moral questions regarding the death penalty, property rights, the role of women, and slavery and race relations. In all these areas, Banner shows, lawyers on both sides made extravagant, absolutist appeals to natural law in arguing that the only rational, decent course was their own. Unfortunately, while Banner is careful to quote from both sides of these arguments, his self-imposed narrative limitations keep him from examining the distinctly non–natural law character of most of the relevant appeals to the law of nature. “Natural law” extremists on both sides sought to impose a particular policy blueprint on all of society. Such blueprints were often rooted in pseudoscience (such as the claim of vast differences in intellect and capacity for self-government based on skin color) and constituted demands for immediate, often radical changes to basic institutions in the name of justice. They were in direct conflict with natural law’s fundamental call to prudence and peaceful discourse in pursuit of the common good. Still, widespread ideological disagreements undertaken through pseudo–natural law arguments clearly undermined the perceived objectivity and reliability of natural law. They helped justify a strengthening movement toward the use of pseudoscience, bowdlerized philosophy, and bald ideological assertion in courts as well as legislatures.
As Banner shows, natural law had and still has some echoes in our courts. He points to the false rationalism of the late nineteenth century laissez faire Court’s attacks on even the most moderate, local economic regulations as a kind of substitute for natural law. Another substitute was the related “substantive due process” doctrine that read economic rights into the Constitution’s Fourteenth Amendment. In more recent years, one can find echoes of natural law in, for example, Justice Kennedy’s paeans to individual authenticity and conceptions of “the meaning of the universe.” This last, of course, is a pale, deracinated echo that serves only to maintain the prejudice against actual natural law reasoning. But it is an echo nevertheless.
Banner has done a great service to anyone seeking to understand American law. He has provided essential materials and a coherent trendline of the decline of natural law in court. There are self-imposed limits to his project. He seeks only to provide an internal history, the story of the natural law’s reception and eventual rejection among lawyers as a profession. Unfortunately, such a limited story has inherent analytical limitations and even weaknesses. By eschewing discussion of factors external to the law as a profession—for example the reasons why lawyers latched onto the notion that natural law is about individual conscience and not law—he leaves out crucial parts of the story. Law is not a separate sphere of life, sealed off from religious, political, and cultural trends. Historically, law has followed culture (especially as embodied in custom). And lawyers’ attempt to “free” themselves from the constraints of their culture has reduced law to the will of the politically powerful, whether in courts, administrative agencies, or elsewhere.
The justification for lawyers’ seizure of power was that natural law and custom were too diverse and unpredictable. Banner pays scant attention to the deep problems with this claim. Indeed, his reliance on so many quotations from such a wide variety of important, well-known, and sometimes obscure sources at times distorts the history. This method exaggerates the inevitable confusions of a somewhat ragtag, frontier legal profession in early America regarding the unwritten bases of their law. The confusion became very real and damaging as lawyers (and others) misused natural law arguments in attempting to “solve” major policy debates beyond their jurisdiction and expertise. But, as Banner’s own evidence shows, this problem grew more from lawyers’ own attempts to conquer, simplify, and weaponize law for their own professional and ideological ends than from any presumed weakness in natural law itself.
The argument that natural law is too unpredictable has its ironies. One would be hard pressed to find an area of law in which courts have not upended their own precedents repeatedly in recent decades. One might observe, for example, the cataclysmic changes in the law regarding same-sex marriage wrought by a single Supreme Court decision handed down in 2015. Obergefell v. Hodges struck down as mere unthinking animus the institutions, laws, and practices of our entire legal history, not to say our civilization, regarding the centrality of the natural family. The trick, today at least, is to predict accurately what new “right” a majority of Justices will feel compelled to impose on the nation next, and how.
Still, it is important to note the consistency of contemporary jurisprudence—especially its contempt for custom, religious norms, and anything that smacks of respect for tradition. Natural law principles were not simply made up on the fly. They were embodied in maxims from the common law, established over centuries in accordance with accepted standards of morality, such as that a person could not be punished twice for the same offense or profit from his own wrongdoing. Such maxims reflected the importance of custom in making up the reasonable expectations people had of one another, the real basis of the common law until its transformation late in the nineteenth century. It was this intrinsic connection between natural law and custom that lawyers rejected as too variable, or at any rate too difficult, to keep straight in a large, varied, federal nation.
Customs vary somewhat according to time and place. And this seemed to nineteenth-century lawyers to contradict English common law demands that all customs hark back to “time out of mind.” Moreover, American lawyers in the late nineteenth century worked hard to impose a uniform, essentially national common law. Banner emphasizes this point, overlooking the extent to which American lawyers early on had adopted an understanding of common law suited to American local customs—until it was subverted by the trends Banner himself elucidates. It is important in this context to note that, at the Revolution, Americans referred to the common law in distinctly local terms—as, for example, the “common law of Massachusetts” or even the common law of Berkshire County.
Settler life answered to the same natural law in America as in old England. But, to take one homely example, whether liability for damage done to crops by feeding pigs was on the pig owners or the crop growers depended on the conditions and customs of the specific area—whether it had made more sense, given the topography and availability of open range, to let the pigs roam free or pen them in. Likewise, customs regarding marital rights and business practices in America often went back to different parts of Britain or even Europe and so established different but no less reasonable expectations depending on the jurisdiction involved. Natural law is reasonable principles derived from our impulse toward the good. Historical experience enshrines it in practice. Lawyers’ job in court was to find the law—the reasonable expectations of the parties in the specific cases in front of them.
The determination to standardize such historically based differences was catastrophic for law in America. Banner focuses on increased publication of court opinions and their discouraging recourse to principles in favor of a slavish adherence to precedent. As important, however, was the drive for uniformity present in “judge-made” case law and in the codes of law eventually foisted upon various states and localities. Over time, judge-made cribs and codes pushed principle to the periphery of the common legal mind and, by warping social expectations, to the periphery of the public mind itself.
Banner understandably eschews analysis of the sources of these developments. It seems prudent, however, to recognize them as outgrowths of the increasing secularization of law, spawned in significant measure, as Philip Hamburger has shown, by anti-Catholic bigotry. The irony, here, is that it was a Catholic, Chief Justice Roger Taney, who perpetrated perhaps the greatest fraud on the nation and the natural law in the infamous case of Dred Scott v. Sandford. Taney claimed, here, that Americans of African descent were barred from American citizenship and its related rights on account of a combination of racial “nature” and the mere existence of wrongful prejudice. Finally, and overlooked by Banner, natural law became invisible to most Americans as increasing individualism hollowed out communities, strengthened the central government, and encouraged the growth of a subjectivism that undermines, not just recognition of natural law, but the recognition that words have a meaning prior to that given to them by judges.
A final criticism: Banner misconstrues contemporary judges’ willful misreading of legal texts in such a way as to overlook the continuing importance of a twisted form of natural law. Decisions on everything from race and sex to various “rights” to things like a generalized “privacy” follow the same logic as earlier faux-natural law (“substantive due process”) cases on economic issues. Banner focuses on occasional gestures toward the text. But the older cases share much of this as well. What is clearly present is a determination to read the “correct” (rational and moral, as defined by the judges’ own reading of The New York Times) policy into law by making the material at hand mean what the judge wants it to mean. This is where the decline of natural law leads: to the triumph of judicial will.
These criticisms and additions should not obscure the real value of this important book. Banner’s chosen project is limited. Such self-imposed limitations have consequences. But the result is an important sourcebook for those seeking evidence of what happened to our courts, what happened to the practice of law, and why the fundamental truths of natural law, still accessible to the human mind, have been for so long read out of our law.
Bruce P. Frohnen is Ella and Ernest Fisher Professor of Law, Ohio Northern University College of Law, and Senior Fellow at the Russell Kirk Center for Cultural Renewal.