Institutional Settlement, Determination, and “Mere Natural Law”

It would be an understatement to say that the last few years have been enormously important at the Supreme Court. With the appointment of Amy Coney Barrett, legal conservatives have gained a 6-3 majority. Conservatives have won major victories in old fights concerning abortion, in Dobbs v. Jackson Women’s Health, affirmative action, in Students for Fair Admissions v. Harvard, and the administrative state through the emergence of the Major Questions Doctrine in cases such as West Virginia v. EPA. They have also been dealt somewhat unexpected setbacks in the past few years, such as with Neil Gorsuch’s majority opinion in Bostock v. Clayton County. Bostock extended Title VII of the Civil Rights Act of 1964 to protect gay and transgender individuals against employment discrimination, a 6-3 decision which predated Justice Barrett’s nomination.

These developments make 2023 an opportune time to assess the successes and failures of legal conservatism, both pragmatic and theoretical. Hadley Arkes’s Mere Natural Law, published earlier this year, is a welcome addition to that ongoing debate. The book focuses on the failures of both liberal and conservative contemporary judicial theory. It makes the important case that American jurisprudence from both ends of the spectrum has become unmoored from the anchoring moral principles which must serve as the basis of any coherent legal doctrine.

Professor Arkes’s book makes three important theoretical moves. First, he argues that constitutional as well as statutory interpretation should be guided by moral reasoning rather than the amoral, positivistic jurisprudence which has guided conservative legal theory for the last half-century. Conservative jurists such as Robert Bork and Antonin Scalia were generally hesitant to directly invoke moral reasoning in their opinions, instead treating morality as if it were a matter of “mere values,” subjective preferences which a society is free to take or leave at its whim. Such whims are best advanced, the theory goes, by public opinion and democratic lawmaking, not through judicial consideration of moral truths. More than once Professor Arkes references Oliver Wendell Holmes’s hope that “every word of moral significance could be banished from the law altogether,” a goal which in rhetoric and practice has enthusiastically been taken up by legal conservatives in a number of core decisions. This amorality was a theme in works as early as Robert Bork’s 1971 “Neutral Principles and Some First Amendment Problems.” Then-Professor Bork wrote colorfully that if the state was to be in the business of dictating fundamental (moral) values, it made little sense to entrust the job to courts instead of “some other group, say the Joint Chiefs of Staff, a body with rather better means for implementing its decisions.” The judge’s job, then, was to invoke neutral principles, those which were derived from the positive law itself, without invoking relativistic value judgments for or against abortion, or the rights of the criminally accused, or the power of politically unpopular groups to speak on matters of public concern. Not amongst the menu of options was an appeal to those moral principles which are directly at the core of our legal order, unstated because, like all fundamental truths, they usually go without saying.

Second, Professor Arkes argues that the relevant standards of moral reasoning do not rely on highly theoretical abstractions. Instead, the moral principles which directly infuse our law are fully accessible to common people, grounded in principles which are written, in an expression often used by natural lawyers, on the hearts of all men. Professor Arkes discusses several such principles, including that we should do good and avoid doing evil and that people should not be praised or blamed for that which they could not influence. At several points in the book, Professor Arkes shows with great care how properly considering such general ideas can sometimes dispositively impact legal disputes. Here he relies on Thomas Reid, an underappreciated theorist of the Scottish Enlightenment. Reid believed that (a) human reason is grounded in axioms of common sense without which rational thought and discourse are impossible and (b) that such axioms are sufficient to rebut philosophical skepticism on their own. Applying this form of common sense in the realm of practical reason, Arkes writes “[M]y contention is that the Natural Law does not find its ground in ‘theories’ but in those axioms of understanding that are readily accessible to ordinary people….[T]hese understandings precede the grasp of theories, for they run back to those things we are simply compelled to take for granted as we get on with our lives.”

Arkes frequently shows that these principles of Natural Law are not based in theology, but in those axioms of reason to which all men accede. In a powerful discussion on the constitutional thought of Abraham Lincoln, Arkes notes the incoherence of Stephen Douglas’s agnosticism regarding the institution of slavery. The very espousal of such agnosticism entails that nothing is wrong with the institution and it thereby was morally permissible to vote slavery up or down in the territories, as Douglas advocated. However, Lincoln countered that one cannot be agnostic on the morality of slavery, because to argue that a polity is free to accept or reject slavery at its preference is to argue that slavery is not wrong. About some things, one cannot be morally neutral, Douglas’s desire to appeal to both northern and southern Democrats notwithstanding. Arkes shows that introducing into our law arguments like Lincoln’s, arguments similarly grounded in fundamental moral truths concerning human equality, is thus no more an infusion of theology than it was when Holmes’s moral relativism or Mill’s libertinism on speech was written into our constitutional jurisprudence generations ago.

Third, Arkes argues that the relevant, common-sense standards of Natural Law are based on axioms of thought which are universally valid. They do not change based on time or place. Contrary to the governing principles of contemporary legal conservatism, they are not ideals that a polity (or its governing caste) are free to adopt or reject at its pleasure. A society is not free to reject or embrace slavery as its tastes dictate, and neither, according to Professor Arkes’s reasoning, is it free to take whatever stance it likes on the allowance of forms of inequality between morally equivalent persons in domains as diverse as segregation, affirmative action, and abortion.

Despite my views coming from well outside the Natural Law framework, there is much I agree with in Arkes’s discussion. Even if one isn’t a natural lawyer—perhaps even if one is a certain kind of moral relativist—a lot of what Professor Arkes says rings true. I would like to explore Professor Arkes’s framework on the operation of Natural Law reasoning with my own sense of the practical necessities of interpretation. For example, it is unclear to me what proportion of contemporary constitutional questions can be directly answered through appeal to the Natural Law, either metaphysically or within the framework of the book. In the book, Professor Arkes teases such views as the necessity of the Confrontation Clause and the impermissibility of elective abortion from Natural Law principles. I wonder at the extent to which Professor Arkes believes less morally-loaded issues, say, whether the Major Question Doctrine should inform background principles of administrative law (as a substantive canon or otherwise), can be tested according to their coherence with Natural Law reasoning.

My suggestion here has two parts. The first is that views on many such matters cannot be derived from Natural Law in any direct sense, at least not as more than what Aquinas would call a second-order determination of Natural Law, and, second, that even in those matters in which valid appeal to Natural Law is impossible, it is equally important–perhaps even more important, practically speaking–that legal cognition be infused with moral reasoning, abandoning the positivism of much conservative jurisprudence. Such a view is, I believe, consonant with the conservatism of a Burke or an Oakeshott, which stresses the value of past institutional settlement of moral controversies, as well as a way of enriching Professor Arkes’s powerful critique of contemporary conservative and progressive jurisprudence.

I just suggested that there arguably exists a body of legal and moral principles (widely speaking, including social norms and principles of conventional, as opposed to universal morality) which are not themselves derived from Natural Law or discoverable through universal reason, instead being second-order  determinations. On this point, Aquinas writes that: “It must be noted that something may be derived from the natural law in two ways: first, as a conclusion from premises, secondly, by way of determination of certain generalities…. The second mode is likened to that whereby, in the arts, general forms are particularized as to details: thus the craftsman needs to determine the general form of a house to some particular shape…. Some [principles] are derived therefrom by way of determination; e.g. the law of nature has it that the evil-doer should be punished; but that he be punished in this or that way, is a determination of the law of nature.” Determination is, in a sense, required by Natural Law—where a house is required, it is also required that the house take one particular form or another—but the specifics of that determination owes its force only to posited law.

Determination, in short, provides even from within the Natural Law framework a realm of discretion within which the lawmaker can exercise creativity in applying the Natural Law to reach solutions to concrete social problems. He must particularly do so in a way consonant with the social and political context of his own society, just as a good house builder will take into account the specific needs of the family which will inhabit it. Professor Arkes has made this point understandable to the ordinary man in invoking the example of speed limits. Speed limits, as a form of positive law, take many different forms depending on circumstances such as the tradition and history of a locality’s roads. But all just speed limits manifest the Natural Law principle that “we should not put innocent life at risk by driving at speeds that raise the dangers.” Thus, the Natural Law leaves room for tradition and history to put meat on the skeleton dictated by the law of nature.

My suggestion in this essay is that, perhaps paradoxically, with regard to valid determinations (as opposed to Aquinas’s “first” category in which the Natural Law is directly applicable), Professor Arkes’s criticisms of both legal progressivism and legal conservatism seem to have special bite. Conservatives cannot intelligibly reason through a plan of home construction, to borrow Aquinas’s example, without understanding that it is a house being built. They cannot plead indifference to principles of good house building or fidelity to the idea that a house does not require walls or a roof if the legislature does not wish for it to have them. Similarly, progressives cannot incessantly question whatever plan of construction is part of our already established social order–whatever valid determinations of Natural Law have already been made by established authorities–without unsettling existing determinations. The conservative error here, born of a kind of positivism, is based on a failure to recognize the truth that the existence of discretion within a limited menu of options does not mean that any option whatsoever is on the table, especially given the way we have already come to expect that things be done. Discretion is not necessarily (or even often, in matters of importance) unlimited discretion. The second error runs afoul of the fact that certain second-order determinations are sufficiently engrained in our extant political culture that to question them can serve only to begin anew once-settled political controversies. While conservatives sometimes defend tradition on a conception of tacit knowledge passed down over time, institutional settlement through valid determination thus serves an important value as well.

Because political controversies settled by determination are not decided by natural reason, they are far more fragile than direct application of Natural Law. The moral imperative to respect them derives only from the legitimate authority of government, and an additional prudential requirement of obedience derives from the already-mentioned value of institutional settlement. Thus (and at least where rulers behave wisely), issues settled by determination are resoluble only on the basis of principles which are distinctively ours, not applicable to all times and places, but instead the product of hard-fought political contestations and, at times, open conflict. Established authorities make determinations on our behalf so that, once they are made, we can set the battle aside and move on to other things.  It is crucial to understand that, in settling disagreements over the validity of such principles, we cannot rely on universal human faculties as our interpretive backdrop.

In short, determination of issues unresolved by Natural Law as a first-order matter exposes a weakness within both a positivism which refuses to interpret positive law in accordance with past institutional settlement (as four-corners textualism and positivistic strands of originalism do) and of progressive doctrines which see those settlements as mere impediments to imposing today’s preferences. Each jurisprudential view risks unsettling past determinations because of its relative disinterest in past exercises of practical reason. In such cases, once a hard-won settlement is broken, there can be no resolution by means of recourse to natural reason. Upending the existing determination thereby restarts whatever political battles and undoes whatever compromises previously served as the basis of a modus vivendi. Here resorting to shared moral principles and to the outcomes of past political processes, themselves the exercise of prudential judgment by government bodies, is especially important to social harmony, because the force of the principles which bind us together here derive from no source other than the fact of agreement. Once the relevant consensus is lost, there exists nothing to which one might appeal to settle the dispute on principle. And, because of this, there is no going back to a prior state of peace, because that peace was grounded in a set of historical contingencies which no longer hold power over us.  The power of ideas contingent on tradition and history thus derives from the same source as their fragility: however important to our collective way of life they may be today, if we neglect them–as conservative positivism has neglected all moral principles–they are gone forever, leaving only a culture war, interminable except through brute power, in their wake. They are similarly destroyed when progressives argue that principles which were good enough for yesterday are no longer good enough for today. (This is, of course, not to deny that yesterday’s principles are sometimes so unjust that it is worth the social cost of replacing them with something new.) Contrast with those principles grounded in Natural Law, for which there exists always the possibility of restoration, of a return to the proper way of doing things however far we might today stray. In the realm of determinations, straying off the beaten path can be a guarantee that one will never find it again.

I do not understand these remarks to be a criticism of Professor Arkes’s book, but an extension of the arguments made in it, targeting the same critics of Natural Law jurisprudence from both the right and left. Even if we do not believe that all, or even very many, constitutional issues can be resolved by Natural Law reasoning alone, as I assume many contemporary Americans think, we must carefully consider what those moral principles we share do say, and, with regard to those questions they do not directly address, about what the realm of alternatives allowable by them might be. Natural Law is, to take an expression of Rousseau’s out of context, about “taking men as they are and laws as they may be.” Professor Arkes’s book is an excellent starting point for thinking about how jurists both left and right might undertake that inquiry.

Jordan Perkins is public law scholar and political philosopher. He holds a PhD in political science at Columbia University as well as JD and LLM degrees from the New York University School of Law. His work focuses primarily on normative and positive constitutional theory, with connections to topics in the history of political thought, jurisprudence, administrative/constitutional law, and the philosophy of social science.
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