Francisco Suarez, James Madison, St. Thomas Aquinas (left to right)
After Harvard law professor Adrian Vermeule published his op-ed Beyond Originalism in 2020, the conservative legal movement engaged itself once more in a fierce debate about originalism, legal positivism, civil libertarianism, public space neutrality, and the limits of law.
On one hand, post-war conservatives and libertarians see the state’s primary role as protecting natural rights: law as the words of statutes, with procedures as sacrosanct. On the other hand, Professor Vermeule and other postliberal authors appeal to the necessity of teleology, the common good, and natural law as informing the positive law and binding on the conscience.
Contrary to some commentators, the Supreme Court’s opinion in Dobbs did not end this debate. Quite the opposite. One need not be a subscriber to The New Digest (though I would recommend you do) to see that Professor Vermeule’s work to revitalize the classical legal tradition and the natural law is reshaping the legal landscape on the Right. The rise of original law originalism, Jud Campbell’s scholarship on regulable fundamental rights at the Founding, Randy Barnett’s work on the Fourteenth Amendment, and Hadley Arkes’s James Wilson Institute all show that natural law-thinking is here to stay. At a more granular level, law students and the judicial law clerks serving throughout the judiciary are more conversant in natural law concepts and more open to its application than ever.
But is this bad? Does the revitalization of the natural law spell the end of the American republic, or does it herald a great remembering? I lean to the latter.
While this essay cannot persuade skeptics that the natural law has played a key role in American legal history, nor can it fully explain what the return of natural law reasoning would entail, I hope to briefly respond to two common concerns: (1) that a natural law regime would abandon limited government, and (2) that it would inevitably become highly centralized.
Unlimited Government
The first, and probably most common, objection is that embracing the natural law tradition will transform the American regime of limited government into a regime of unlimited power. But a careful examination of the natural law tradition shows that this couldn’t be further from the truth. Start with the classical definition of law. Law, according to Saint Thomas Aquinas, is “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” (Summa Theologiae I-II, Question 90, Article 4) Consider its key elements.
Law as an ordinance of reason bars arbitrary rule or the rule of whim. And promulgation rules out secret laws. This forecloses many of the hallmarks of totalitarian regimes—secret police, secret trials, secret or unknowable laws. Proper authority also has justice-based limits, as I will explain in the next section. But the greatest limitation on the state comes from its orientation toward the common good.
The common good is “the sum of those conditions of social life which allow social groups and their individual members relatively thorough and ready access to their own fulfillment.” (Gaudium et Spes) So the natural law orders civil law to create the conditions in which groups and individuals can flourish. At the very least, that means the law must protect life. But it doesn’t directly produce flourishing. It secures the necessary conditions for it. But what is necessary for human flourishing?
Because human beings are rational and social by nature, we find fulfillment in relationships with others and in achievement, knowledge, play, aesthetic experiences, friendship, productive work, health, marriage, and religion. Humans do not enjoy or obtain these goods passively. Instead, they pursue and obtain them through human action: reason and free will. Accordingly, our participation in these goods—and by extension flourishing—cannot result from force or the threat of force. Coercion substitutes the coercer’s reason and will for the coerced person’s reason and will. So the coerced individual cannot evaluate, appreciate, and act according to their reason. They are hearts that beat because they have a pacemaker, not because they are healthy. That is not flourishing. Flourishing requires a moral space of liberty for individuals to deliberate, reason, evaluate, appreciate, and act with immunity from coercion. Natural lawyers, like Suarez, call this protected moral space ius—an entitlement to a zone of liberty over one’s person, acts, and just acquisitions.
To be sure, this does not mean that force or the threat of force is never justified. Force is justified to protect ius and vindicate its value; otherwise the unvirtuous would dominate the virtuous, subject them to their will, and reap the unjust rewards of their actions. Also, force can justly be used in a fiduciary capacity to protect those who cannot fully exercise their reason and will, either because of age, illness, or some other condition. That is why it is just to protect children from pornography, drugs, alcohol, and sexual exploitation, even when doing so incidentally burdens an adult’s ability to access something or interact with a child. It also justifies preventing a person from “consenting” to assisted suicide or sexual mutilation.
Thus, the common good requires both the punishment of those who would harm others and subject them to their will, and the creation of procedures and regulations that prevent injustice. These rules ensure the public authority deprives individuals of liberty or property only in accordance with justice, while guaranteeing that people can enjoy their moral space without intruding on the moral space of others. Otherwise, flourishing becomes impossible. So the common good is far from opposing natural rights as classical liberals and libertarians often fear. It upholds them.
This remains true even when individuals do not use their natural liberty well, provided they do so consistently with the moral space of others. As Dignitatis Humanae explains, the immunity from external coercion that our natural dignity or ius requires “continues to exist even in those who do not live up to their obligation of seeking the truth and adhering to it and the exercise of this right is not to be impeded, provided that just public order be observed.” When the public authority ignores that truth, neither the coerced nor the coercer flourishes. The coerced is thwarted in his ability to self-direct, while the coercer, by perpetuating injustice, robs himself of flourishing as well.
It would be easy to conclude from this that I am suggesting that all the common good justifies is a “night watchman state” that protects liberty and nothing else. The common good requires more than just protecting rights in a libertarian manner. Consider two more concrete examples.
First, the common good does not require the law to be morally neutral regarding marriage and sexuality. The public authority need not redefine marriage or grant so-called same-sex relationships the same public status as the natural institution of marriage, which is oriented to procreation and child-rearing. Doing so does not interfere with natural liberty. Private contractual freedoms and associational rights that are part of the natural liberty for self-direction remain. At the same time, the public authority isn’t obligated to treat all relationships as morally or legally the same. Refusing to legally recognize these relationships is not coercion or force. By doing so, the public authority protects marriage and the family, the primary authorities for child-rearing and moral formation, which is vital to maintaining the environment where flourishing can take place. And the ultimate test that remains in place in a regime undergirded by natural law is whether the arguments that are brought forth to defend legality and morality of these other relationships are justified or unjustified according to precepts of natural justice.
Second, the common good protects institutions, especially the engines of virtue in society. Because virtuous living is essential to flourishing, creating an environment for virtue formation is equally essential to the common good. As Aquinas taught, “The purpose of law is to lead men to virtue not suddenly but rather gradually.” Those in public authority, therefore, must act prudentially with limited ability to inculcate virtue directly through legal dictates. As explained above, should the public authority attempt to rely on force and censorship beyond rights‑protection, its coercive efforts would undermine the self-direction needed for virtue to form. Accordingly, most of the virtue formation as a matter of justice falls on non-public authorities, primarily the family and the Church.
The common good thus requires the public authority to protect these authorities so they can freely fulfill their duties of raising families and inculcating virtue. The public authority must prevent private interference with these authorities. But the public authority must also refrain from interfering with the family and the Church. This principle, subsidiarity, forbids a higher public authority from interfering with that of a lower authority except where necessary to prevent serious injustice, institutional incapacity, or failure of lower authorities to secure the conditions of the common good. Thus, families and the Church can freely carry out their essential work of moral formation, so long as their exercise of authority does not involve grave injustice or exceed their proper jurisdiction.
In short, the common good—the conditions necessary for human flourishing—strictly limits the scope of law. Because flourishing must be self-directed, the public authority may only use force 1) to protect the ius of others; 2) to preserve the conditions of legal order necessary to secure ius; 3) to protect authorities competent to moral formation from interference or usurpation; and 4) to act in a fiduciary capacity toward those who lack capacity for self-direction. This is far from a Handmaid’s Tale-like regime that critics suggest natural law advocates want. It is a limited government anchored in timeless principles. Natural law thus provides moral limits on state power that positivism lacks on its own.
Centralization
The second most common concern is that a natural law regime inexorably centralizes power. Critics look at the absolute monarchies of Europe or premodern kingdoms and presume that natural law advocates would have us return to that structure. To be sure, the natural law doesn’t forbid a monarchical system. But it does raise serious prudential concerns against it. Thomas Aquinas, for example, advocated for a mixed regime, meaning a regime that incorporated aristocratic, democratic, and monarchical elements. That tradition continued to Montesquieu, through him, to the American Founding Fathers. Even so, within the natural law tradition itself, there is a doctrine that puts moral limits on all centralized authorities: subsidiarity.
The principle of subsidiarity holds that social and political functions should rest with the smallest, most proximate authority competent to govern. But this isn’t merely a practical or procedural position. It rests on justice. As Pope Pius XI stated in Quadragesimo Anno (1931), “It is an injustice and at the same time a grave evil and a disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do.”
Because Americans know best our division of powers between the state governments and the federal government, subsidiarity’s application to the federal government is habitual. But as American sociologist and thinker Robert Nisbet observed, life consists of a diversity of competing authorities that include families, religion, associations, clubs, markets, and local communities. Some of these authorities are natural, some are chosen. These authorities play different roles in our flourishing by directing and forming human beings in important ways, such as virtue formation, friendship, knowledge, productive work, health, and achievement.
The public authority is a necessary authority for protecting, through force, the sphere of moral space required for self-direction by providing law and order. It is not competent to provide all goods, because coercive authority is ordered to the protection of ius, and its use beyond that proper end lies outside its jurisdiction and frustrates rather than promotes flourishing. It is therefore outside its proper jurisdiction.
So, according to subsidiarity, the public authority—including federal, state, or local governments—cannot interfere with these other authorities. Families must be allowed to carry out their role. The Church must be free to proselytize, teach, and even discipline its congregants. Individual consumers, producers, businesses, business associations, and voluntary unions must be free to order their commercial relations.
To be sure, this is not an absolute rule. Where subordinate authorities show themselves to be incompetent, the higher authority can step in. But it does so in a temporary and targeted manner and with an eye to restoring competency. It is not carte blanche for permanent overreach. And even these intrusions must adhere to the principles of self-direction and ius described above.
So natural law is not a centralizing force. Quite the opposite. Natural law creates a moral architecture for a decentralized mosaic of authorities—families, churches, associations, and markets—that order society toward the flourishing of individuals and communities. Far from centralizing, it upholds the subsidiary authorities that are essential to freedom and virtue. In so doing, it provides the moral and anthropological basis for what economists like Friedrich Hayek observed in spontaneous orders: that complex solutions arise organically when individuals and institutions are free to operate within the bounds of justice.
Conclusion
In sum, the revival of natural law does not threaten limited government or federalism. It grounds them. By anchoring law in reason, the common good, and human flourishing, natural law places firm moral limits on state power while protecting the rich ecology of institutions that make free and virtuous life possible. Far from a dangerous innovation, the return to natural law reasoning represents a recovery of the classical tradition that informed the American Founding itself. Conservatives and classical liberals rightly fear unlimited and centralized power; they should not fear the very principles that best guard against both.
