Can Natural Law Be “Mere”?

Cline argues that the roots of a nation’s receptiveness to the Natural Law grow from its Christian foundation.
Image courtesy of Wikimedia Commons.

It is manifest that reason stands in great need of instruction in order to the right performance of her office… The mind of man imports its rules of reasoning, as well as notions, from abroad, and one generation teaches another, not only in religion, but all other sciences. The art of reasoning rightly follows instruction and is progressive and traditional… In all countries we are acquainted with, knowledge bears an exact proportion to instruction… There is no fallacy more gross than to imagine reason, utterly untaught and undisciplined capable of the same attainments in knowledge, as reason well refined and instructed… The thoughts of men, with regard to any internal law, will be always mainly influenced by their sentiments concerning the chief good.

-Jonathan Edwards (1703-1758), Miscellanies.

Besides the natural and the human law it was necessary for the directing of human conduct to have a Divine law… because it is by law that man is directed how to perform his proper acts in view of his last end… since man is ordained to an end of eternal happiness.

-Thomas Aquinas (1225-1274), Summa Theologiae.

Just days after the infamous Bostock decision was handed down, Sen. Josh Hawley issued a postmortem on the Conservative Legal Movement (longhand for “originalism”). What had it all been for—the textual fealty and reverence for the Founders—if transgenderism could be retroactively read into laws passed sixty years prior? Conservative jurisprudence, as represented in the latest “textualist” appointee to the Court, could not make sense of basic metaphysics, of biological order, much less mid-twentieth century assumptions, not to mention eighteenth century ones. It had exposed itself as morally vacuous.

Young conservative lawyers in particular began looking elsewhere for alternative visions and frameworks. Hadley Arkes was already waiting in the wings, offering a potent critique and recovery of originalism, viz., a “better originalism” grounded in perennial truths, “axioms of reason,” taken for granted by the founding generation—a point even Adrian Vermeule agrees with. That is, the natural law.

Mere Natural Law is the full-fledged version of this strengthened originalism—Justice Scalia if he had been less bashful about integrating a natural law-based worldview into his public opinions—and serves as a culmination of decades of work from Arkes.

Arkes’s thesis is simple: objective moral truth exists and is accessible to everyone. In fact, truths like the law of contradiction are only tedious or obscure to those schooled in moral obfuscation and relativism. Relying heavily on Thomas Reid and Scottish Common Sense Realism throughout the book, Arkes argues that “ordinary folk,” being free of the epistemological conditioning of elite institutions, easily grasp the universal “principles that govern our judgments” via their unadulterated common notions (33).

A sense of grievance and justice, of basic fairness, of moral justification for power other than power itself, etc., these are common notions. And again, “the Natural Law does not find its ground in ‘theories’ but in those axioms of understanding that are readily accessible to ordinary people.” (37). The basic point is that if law isn’t justified by power qua power, then we have “taken the ‘moral turn’” which “marks precisely the choice for the Natural Law.” (35).

Arkes’s critique of conservative jurisprudence is welcome and timely. His (re)introduction of natural law into the same is needed and overdue. His skepticism of elite persuasions is apt and realist. But early in the book we encounter a problem that goes unaddressed, a not-quite-fatal but significant flaw with Mere Natural Law is thereby introduced. In his quest for the universal Arkes fails to adequately consider particulars—the non-universal conditions—in which natural law always is applied, and, in turn, the true grounding of the light and law of nature, viz., nature’s God.

Arkes knows this, in a sense. He sees the effects of the “Modern Project in Law” and its scientist, immorality. He also sees how “This understanding came to be deeply absorbed by lawyers trained in the best schools,” resulting in the moral equivocations of 1970s abortion cases.

On the one hand, “the Natural Law has never been missing. It has always been with us.” This is unobjectionable, of course. It’s merely a recognition of natural law’s objective presence. But Arkes recognizes that human perception of the natural law can be frustrated:

“It has been blocked from view at times, in part because it is so deeply planted in our assumptions and language that we may hardly be aware of it. But it has been further blocked from view as people have been more and more drawn to a world of theories bold and novel, and so removed from the language of ordinary folk that only people schooled at the most expensive colleges can understand them. What has been lost, without much notice, is that commonsense understanding of ordinary people, in which the Natural Law finds its ground.”

Justice John Marshall’s audience may have with little instruction understood in 1824 that “certain anchoring axioms” were prerequisites for law, but after nearly 200 years of concerted efforts to sanitize the public reason of Christianity and reeducate “literate readers” toward secularization of the same, we find ourselves in a different intellectual, moral milieu.

This recalls, by analogy, what Thomas Aquinas said in the Summa Theologiae:

“[S]ometimes a man is unable to make use of that which is in him habitually, on account of some impediment: thus, on account of sleep, a man is unable to use the habit of science. In like manner, through the deficiency of his age, a child cannot use the habit of understanding of principles, or the natural law, which is in him habitually.”

If we think more pessimistically than Arkes, we could say that even even ordinary people are unable to make use of their inherent ability to reason morally because they have been lulled to sleep by external impediments—they have reverted to a childish moral existence. The synteresis, the storehouse of the natural law, may be perennially preserved, but the conscience is seared.

Arkes deserves credit and applause for preaching the natural law—general revelation—in season and out of season, for refusing to hide the candle of the Lord under a bushel. But we must consider the cultural conditions that provide dry tinder. Man is not in theory or practice a tabula rasa; he is always and already conditioned by his tradition, his cultural priors, and most importantly, by his answer to the first question of the Westminster Catechism: What is the chief end of man?

Arkes, like Marshall, is trying to teach us the foundational axioms again, or at bare minimum, revive the premise that law requires them. But he fails to address the conditioning of the mind required to accept it. In a sense, what is required is a recovery of not just western civilization, but western Christianity, and specifically Anglo-American instantiations thereof, before the American mind can regain its footing to embrace all that underlies it. In other words, Arkes does not fully contemplate the pedagogical context for embrace and application of natural law. Natural law is never mere; it requires particularization, shepherding by a tradition of contextualized, prudential application and adjudication.   

Further, an epistemological question emerges. Can a mere natural law ethic work in a setting sanitized of divine law? General and special revelation work in tandem; they presuppose one another. It is no coincidence that the demise of natural law in American jurisprudence (and theology) has coincided with the eradication of Christianity from public spaces and, specifically, exhibitions of divine revelation. The Bible’s comparative absence from public life and public reason represents unfavorable conditions for the recovery of a natural law ethic.

As John Owen (1616-1683) (Exposition of the Epistle to the Hebrews) and Johannes Althusius (1563-1638) (Politica) both concurred, the best way to learn the natural law, to awaken sense of it, is through the observation of good positive laws, the traditions of the church, and holy scripture. None of these are the proper source or grounds of natural law, but neither is common sense. The ground of natural law is the eternal law, God himself. Natural law, as Aquinas taught, is nothing but a creaturely participation in eternal law. But query whether, even as natural law objectively exists since its dependency is found in God’s being and character, a creature can rightly participate via reason therein absent an appropriate conception of the God, and of his own telos found only there.

In which case, the influence of scripture and the church’s teaching on the subject is desperately required. For as Aquinas taught in the first article of Summa,

“Even as regards those truths about God which human reason could have discovered, it was necessary that man should be taught by a divine revelation; because the truth about God such as reason could discover, would only be known by a few, and that after a long time, and with the admixture of many errors.”

If the natural law is to permeate our jurisprudence, our political life, at scale, it can arguably only do so within a culturally Christian context where some vestiges of Christendom remain and provide intellectual capital and a worldview ready made for adherence to the condescension of eternal law. Where this has been thoroughly eroded, the prospects of success for Arkes’s project are slim. Where divine law—a corrective to human reason via its republication of natural law—is shunned, natural law will be ignored.  

The law of contradiction, for example, does not preclude transgenderism or abortion or even that 2+2=5 under a certain conception of reality, especially political reality. The anchoring axioms undergirding the worldview Arkes and myself share are encouraged, reinforced, protected by the customs, norms, and traditions that, in a way, they produce. But, in turn and in circular fashion, the maintenance of the effects is required to maintain the authoritative presence of anchoring axioms in a relative and subjective but no less real sense. Cultural sensibilities must be trained to notice the right things and draw the right conclusions therefrom. Constructed socio-political realities are either conducive to embrace of things per se nota or they are not. There is no neutrality even amongst ordinary people who are not magically insulated from the digressions of elite opinion. The first principle of practical reason depends on apprehension of the good and, conversely, privation of the good (evil).

The truth will always out, sure enough, but not always before a society or a civilization has descended fully down into the depths of what the apostle Paul describes in Romans 1—complete moral degradation accomplished only by the suppression of the knowledge of God at the behest of sophistical philosophers, as the traditional reading of the passage would have it.

Bare or mere natural law, unseasoned by the particularization of the Christian tradition, remains in the hallway, to bring in C.S. Lewis’ illustration at the end of Mere Christianity. The hallway is cold and uninhabitable. Eventually, we must choose a room and enter if we are to find warmth, nourishment, and company. And any tradition is better than none and the one we have only recently discarded is the best.

Moreover, the secondary conclusions and applications of the natural law to context is necessarily historically contingent since any range of said conclusions and applications are not exhausted by particular instantiations; the only requirement is that they be congruent with or agreeable to the natural law. Particular applications of such in the Anglo-American tradition are not per se required by the natural law universally. Procedural mechanisms, evidentiary standards, and even certain constitutional rights (e.g., jury trials, universal suffrage, or the right to bear arms, etc.) are not indispensable to a just legal regime. There is significant leeway here. The historical, social and political conditioning of the Anglo-American ethos has created these expectations. They are generally good ones, but not at all obvious, and can only be maintained through defense of the tradition that birthed them.

Cicero (and Arkes) may long for a realized universality where laws in Athens and Rome are indistinguishable. (3). But the reality of cultural and material conditions impedes this aspiration, at least until “one god” is recognized as the “common teacher and general, so to speak, of all persons,” to quote Cicero, but that is unlikely this side of the eschaton. God, his eternal law, and man’s participation therein are objectively true, but only the Christian west has shown true fealty thereto at scale. Maintenance of the necessary ontological and teleological priors in our socio-political context provides the preconditions for natural law’s authority on the ground which it always must touch.

A mere non-sectarian natural law remains too detached from a fully robust epistemology to carry the load Arkes desires.

We must also quibble with Arkes’s dichotomy set up between natural and civil rights, the relationship between man and society. Early on, Arkes (predictably) takes the side of James Wilson (apparently) against William Blackstone. The latter, whilst not denying the natural law, held a then conventional view that man, upon entering civil society, sacrifices his natural freedoms for that privilege, if only to the extent necessary.  Wilson, on the other hand, retorted:  

“[T]he connection between man and his natural rights is intercepted by the institution of civil society… If this view [Blackstone’s] be a just view of things, then, under civil society, man is not only made for, but made by the government: he is nothing but what the society frames; he can claim nothing but what the society provides.”

Of course, Blackstone affirmed that “absolute rights” such as freedom of movement, security, and property were not lost upon entrance to society. Indeed, society should protect them even as the exercise of the same was limited. And civil or “relative” rights are introduced, along with concomitant duties, by joining society. There is no contradiction here. Wilson and Blackstone do not even truly differ vis a vis the so-called state of nature (pre-societal existence).

Blackstone affirmed that “man was formed for society; and, as is demonstrated by the writers on this subject, is neither capable of living alone, nor indeed has the courage to do it.” And he qualified that the state of nature hypothetical was just that, hypothetical:

“This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted: and besides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families. These formed the first natural society.”

Accordingly, familial relations were the most “natural” kind and always maintained the rights inherent therein. Nothing in Wilson’s lecture, “Of Man, as a Member of Society,” disagrees with Blackstone on this front. Commentators contemporary to Wilson like Nathaniel Chipman (1752-1843) concurred. Chipman in his Sketches of Principles of Government: A Treatise on Free Institutions:

“It appears… that there is a closer coincidence between those rights which have been denominated natural, civil, and political, than writers on law and government have generally been disposed to allow… That man, on entering into civil society sacrifices a part of his natural liberty, has been very generally asserted, or taken for granted… This notion of sacrifice must have been adopted from a very indefinite and, indeed, very absurd notion of natural liberty…”

Accordingly, if man is naturally gregarious and sociable then “the rights of man are relative to his social nature, and that they exist only in coincidence with the rights of the whole, in a well ordered state of society, and civil government.” There is no such thing as a non-social right because there is no such thing as an unsocial man. Man’s natural rights are always cognizant of and conditioned by his sociability (ingrained in his nature) such that “man, sociable by the laws of his nature, has no right to pursue his own interest or happiness, to the exclusion of that of his fellow men.” This because of “reciprocal relations of social beings,” and “this is the true principle of all commerce amongst men.”

And so “rights” are only ascertainable in a concrete political context, which is not to imply that man qua man has no natural immunities from practicing tyranny. Hence, Commonwealth v. Alger, the 1851 Massachusetts case which held that rights of property, “like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment” as shall prevent them from being “injurious” to the common good. All rights, even life, are under the sanction of that famous George Will maxim of politics: up to a point.

Arkes’s emphasis on a bifurcation between the natural and the civil obscures their interrelation. The apparent effect of this overemphasis from Arkes informs his omission of in the socio-political element of natural law, not only the extent to which secondary conclusions from general principles and application of the same are necessarily historically contingent, but also the fact that the natural law is, in a sense, intuitively known but so too is it learned. Reason must be trained. What Arkes laments at the start of Mere Natural Law is the ubiquity of untrained reason in the West at this juncture. Yet, he never directly addresses the pedagogical conditions for re-training reason. Whether this can be done apart from explicit acknowledgment of the grounds and source of natural law, viz., God himself, and the cultural apparatus that safeguarded natural law for a couple thousand years, viz., Christianity, is not at all certain. It is not as if Arkes, a committed Catholic, is unappreciative of the Christian tradition. The ninth chapter of Mere Natural Law, a treatment of the conscience and religious freedom, makes this much clear. But these teleological and epistemological wrinkles in his case are never quite ironed out.  

Other than this oversight pertaining to cultural pedagogy and particularity, and the dichotomy between natural and social, I can find little more to complain about in the latest addition to the Hadley Arkes canon. Perhaps, Mere Natural Law itself will begin to train the reason of the next generation of jurists such that the anchoring axioms are once again recognized by the learned and unlearned alike.

Timon Cline is an attorney, associate editor at American Reformer, Director of Scholarly Initiatives at the Hale Institute at New Saint Andrew’s College, and a research fellow at the Craig Center at Westminster Theological Seminary. His writing has appeared at American Mind, Modern Reformation, and the American Conservative, among others, and he is an opinion contributor at World.
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The James Wilson Institute’s Mission is to restore to a new generation of lawyers, judges, and citizens the understanding of the American Founders about the first principles of our law and the moral grounds of their own rights.
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