Mere Natural Law: Originalism and the Anchoring Truths of the Constitution
By Hadley Arkes.
Regnery Gateway, 2023.
Hardcover, 352 pages, $32.99.
Reviewed by William H. Rooney.
Hadley Arkes is a prophet in a materialist and positivist age, and he prophesies at length in his new book, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution. He has devoted a career to arguing—now reiterated with force—that judges should engage in objective moral reasoning.
Arkes has used his mastery of Supreme Court jurisprudence to contend that the Court, often in the name of a version of “originalism,” has assiduously but wrongly avoided moral reasoning in its own voice. He criticizes “conservative jurisprudence” for its devotion to Oliver Wendell Holmes’s ill-advised hope that “every word of moral significance could be banished from the law altogether.” Arkes calls objective moral law “natural law” and cites in support of his thesis a long though mixed tradition from Aquinas to Kant, Thomas Reid, James Wilson, and other Founders.
Although Arkes does not address the differences in the scope and manner of moral reasoning that courts and legislatures should observe or discuss the craft that a court should employ in comparing positive and natural law, those issues are not the subject of this review. Instead, I suggest that the natural law on which Arkes relies is incomplete and that his thesis would be more compelling if it were based upon a more robust, theocentric understanding of natural law.
In arguing for judicial moral reasoning, Arkes offers this distilled version of natural law—“mere” natural law, as he calls it—whereby the “very ground of Natural Law—and the principles that govern our judgments in Natural Law—can be drawn from precisely the same common sense that is accessible to children and to ordinary folk.” Arkes eschews theory and asserts that the “ploughman” understands the objective moral truths of natural law better than does the “professor.”
Arkes does not explain, however, the endless bickering among not only our elites but also the “ordinary folk” of our polarized society—those to whom, according to Arkes, moral principles should be especially self-evident. Arkes refers to Stuart Banner’s study, The Decline of Natural Law, but he does not respond to Banner’s observation that the “two-sidedness” (ambiguity) of natural law, as used by lawyers and judges, was a primary reason for its disappearance from American courts since the late nineteenth century.
Another puzzlement arises from one of the most basic moral principles that Arkes invokes: “[T]he only rightful government over human beings depends on ‘the consent of the governed.’” Yet rule by consent is an important reason that conservative jurisprudence reserves moral reasoning for legislative deliberation, where the voice of the governed can be heard through their elected representatives. One might ask under what circumstances is a judge, based on truths that are self-evident to his own common sense, authorized to overrule the legislature’s statutory expression of the truths that were self-evident to the common sense of the majority who voted for it?
Arkes hamstrings himself in resolving those puzzlements by effectively forswearing philosophy and the speculative order of reasoning (what is true or real). He dwells only in the practical order (what is to be done), where he relies on Thomas Reid’s common sense and Kant’s “laws of reason” and “categorical imperative.” Although Arkes cites Thomas Aquinas, he does so only for Thomas’s first principle of practical reason that good is to be done and evil avoided. Arkes’s limited description of Thomas’s understanding of natural law does not give Thomas his due, as Thomas presents natural law as part of a far more comprehensive whole. The main difference between Thomistic natural law and Arkes’s is God. As usual, God makes all the difference.
Numerous scholars (e.g., Stephen L. Brock, Cajetan Cuddy, Fulvio Di Blasi, Edward Feser, Steven A. Long) have given a more thorough account of Thomas’s understanding of natural law, and the legal literature would do well to engage their work more frequently. Thomas agrees that the primary precepts of natural law are “inscribed” on the human intellect (synderesis) and are naturally accessible to it. Contrary to Arkes and Kant, however, Thomas emphasizes that those precepts do not originate, and are not grounded, in the human mind.
The natural law flows from—indeed is itself an ordinance of—the eternal law, which is the order of providence by which God governs the universe. The eternal law orders all reality, including the human person and his nature, and has imbued the human intellect with a capacity to discern good and evil according to the rule and measure of divine government. Natural law is thus part of the law of being and is extrinsic to the human mind.
Natural law draws its normative precepts for human action from the teleology of man as well as that of the entire created order. Man is called by natural law to “build up being” according to its nature and end. Those criteria inhere in the structure of reality, reflect divine wisdom and authority, and are the measure by which the rectitude of human reason is measured.
Although the primary precepts of the natural law cannot be erased from our rational nature, they can be “forgotten” if our disordered desire for moral sovereignty and counterfeit goods reigns. When man attempts to govern the moral law instead of submitting to its governance, the bickering begins about what is right and wrong, just and unjust, good and evil.
If the order of reality is taken as normative, one can distinguish counterfeit from authentic goods by identifying the proper end of the acting person and the object of his action. An end is discernible from the nature of a thing, which is comprised of both form and matter and is proportioned to its authentic good (perfection or full realization). Criteria that are rooted in the nature and end of being provide greater structure and objectivity to disputes over the precepts of the natural law than can competing claims over common sense and self-evidence.
Arkes and others who attempt to locate natural law solely within practical reason might reject Thomas’s theonomic account of natural law as ridden with excessive baggage. Both Thomas and Arkes agree that natural law precepts are accessible to the natural light of human reason, so why bring God into a debate about temporal affairs? Even more, we are a pluralistic and divided society. Insisting that God is necessary to natural law only raises the price of admission, especially among atheists, agnostics, and “nones,” all of whom are growing in number.
But God is necessary to prevent “the chandelier from crashing to the floor.” Without God, natural law lacks a lawgiver and binding authority, is not promulgated by one with care of the community, is not law in the proper sense, remains locked within the logical order, and is untethered to the intelligibility of being. Further, practical reasoning without the guidance of speculative reasoning—the apprehension of truth in reality—will go astray. With God, the authority of natural law does not arise from James Wilson’s or any other Founder’s endorsement. Its normativity comes not from the say-so of the ploughman but from the divine wisdom that governs reality through its intelligibility and teleology. The case for judicial moral reasoning thus rests on the basis that no human law can abrogate natural law, which flows from eternal law, which binds all being, including every human being—even judges.
The existence of God and his providential governance of the universe are the right subjects for public debate over the basis and content of natural law. Steven Long has observed that “the crucial middle term in the dialogue of [theists with seculars] is the created natural order,” a commonality that we all necessarily share and that is open to human reason and civic discourse. Let us examine the intelligibility of that order, its essential cause (Thomas’s Fifth Way), the ends that cause the full realization of the natural order, and the norms for human action that flow from those ends. The natural law, so understood, should be the unum that integrates our pluralism into a cohesive community.
So, hats off to Arkes for pressing the case, over his long and distinguished career and most recently in Mere Natural Law, for judicial moral reasoning and for insisting on the role of natural law in the positive legal order. Still, I would raise the stakes on his thesis and suggest a more robust and theocentric understanding of natural law.
William H. Rooney is a practicing attorney in New York. He is also the Lumen Legis Fellow of the Center for Law and the Human Person and a Lecturer at the Columbus School of Law at The Catholic University of America.
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