Liberty Matters

Reclaiming Higher Law

Central to Adam MacLeod's argument is a statement that should be axiomatic: Self-rule requires the rule of law, and law cannot rule unless it is supreme over both governors and governed. MacLeod is right to point out that legal positivism has undermined our ability to recognize the necessity of higher law, thereby helping judicial and other elites seize arbitrary power. The question is, how are those who value self-government to restore higher law understandings among the people, and especially among the lawyers who traditionally have been its guardians?
Today law is seen as mere power, and natural law, in the traditional sense of permanent, universal truths of right and wrong, is seen as mere myth. This is unfortunate for ordered liberty because constitutional law has meaning, can establish and maintain limited government, only when it is seen and practiced as a form of higher law, obligatory as a matter of unchanging principle on both governors and governed. And constitutional higher law is no mere theory that can be safely manipulated for short term advantage. It is a hard won civilizational good, developed in tandem with deep cultural norms over centuries, that will crumble if left undefended.
Since early modernity, the rule of law has been under especially strong assault by partisans of "sovereignty." Most influential on the European continent, modern sovereignty was imported to Great Britain most famously by Thomas Hobbes. It may be summed up as the assertion that unquestioned supremacy must reside somewhere in all governments. It always has appealed to those who see politics' primary purpose as controlling an unruly populace. In the United States Hobbesian sovereignty found little purchase. The concept was neutralized by a constitutional higher law that separated powers along both horizontal and vertical axes and could be changed only by a supermajority of determined people.
But constitutional republicanism requires virtue. Only a people capable of self-restraint will hold governors to constitutional forms at the cost of satisfying their wants-of-the-moment. Over the last several decades, Americans' choice of government protection over freedom and equality over opportunity has increasingly empowered national elites to break the bonds of constitutional structure. Legal positivism was thus part of a broader corruption in the body politic. But this ideology of law as power was especially important because it undermined the norm of law-abidingness, thus producing judges who "say what the law is" in light of their own preferences, and encouraging government officials as a class to reject their constitutional duties.
Donald Trump's election was made possible by millions of Americans' shared revulsion at the smug overreaching of today's ruling classes. Sufficient numbers of ordinary Americans finally recognized the imminent danger to their way of life posed by would-be despots who despise the people's core values of family, faith, and local freedoms and pursue a future beyond human nature and social order. The people at last have begun fighting back in a struggle that lies deeper than law or politics, concerning the nature of society, the person, and reality itself.
Few lawyers or academics wish to engage such issues, instead preferring, like Bagehot, to dismiss or ignore them. Our cognoscenti believe that metaphysics is another word for religion, and that religion is at best a set of private beliefs and at worst the means by which ignorant masses oppress people like themselves. Among more reasonable lawyers, aversion to natural law reasoning has been strengthened by leftist judges' references to "natural justice" and "fundamental rights" when making law. A number of contemporary theorists also provide grounds for this prejudice. Some reduce natural law to a civil religion based on a few phrases from the Declaration of Independence. Others reduce it to a set of logical deductions from presupposed human goods that seem more a set of personal preferences than universal principles.[1]
Simplified natural law gives way to judicial will as legal positivism aids those seeking to destroy our society. The latest wave of ideologues portraying law as mere power—identity politics radicals—show both the danger of calls to abstract principle and the incoherence (and lust for power) at the heart of "value free" analysis. Under the guise of "social justice" they would destroy law and replace it with a system in which administrators distribute life chances according to the place one's group holds on the current pyramid of victim status. The inevitable result can be summed up in the word "Venezuela."
Such concerns are relevant only if there is, in fact, a discernible order to our existence, accessible to human reason, that can guide us in judging how best to rule ourselves consistent with the common good. There is. But to see it interested parties first must unlearn contemporary prejudices and remember some history.
Aversion to natural law reasoning rests on the false, positivist presumption that law is a rule of action imposed by a lawgiver. Hence natural law must be a code from God, or nothing. But this is not how law works. Most law is customary; it grows from human interaction in which courts participate by working to vindicate the reasonable expectations of the parties. Natural law merely points to the assumptions (e.g. force cannot produce a binding promise) that practical reason and experience tell us underlie decent human interactions. One need not even recognize a transcendent God to observe that there is a moral order to existence. At its most basic, natural law is the commonsense recognition that virtue supports human flourishing as vice stymies it.
Of course, a true relativist will ask how we know what virtue and vice truly are, dismissing any generalized answer as mere abstraction. But all goods and truths are instantiated in history. Beauty is not just a category but something we find in a painting or landscape, as justice is found in the actions of an honest judge or business partner. Likewise, the moral truths of natural law are made concrete in traditions—sets of customary rules and practices that shape the minds of judges, legislators, and citizens, to be used according to the task at hand.
Legislators and citizens have a direct relationship with natural law. Within our tradition, legislators must make law. Citizens must participate in social life and the transmission and growth of custom in light of their understanding of right and wrong. Judges have the job of adjudicating under law. Thus, judges properly utilize natural law only in the limited sense of setting aside personal preferences in favor of the assumptions regarding human nature and the common good that shaped the text at issue and, where the common law has been allowed to survive, in the customs of the people.
The Ten Commandments provides a classic example of how natural law is "codified" in only a limited sense yet serves as the basis for the tradition of constitutional higher law. The Decalogue was a fundamental leap in being for the Israelites less because of its specific content than because of its source. Contemporary codes contained much the same material. Moreover, the Decalogue is rather general, leaving room for historical differentiation. For example, it does not forbid all killing, only murder. Murder has been defined differently—consider the duel and changing conceptions of self-defense—in accordance with culture and circumstance. Importantly, Judeo-Christian culture and law have been protective of innocents and hostile toward intentional cruelty, in accordance with our understanding of human dignity.[2]
The Decalogue is unique and important because it came from a source higher than the ruler. It was supreme law, to which rulers and people alike would answer. As such it was foundational to both the rule of law and the natural law tradition. The Israelites "used" the Decalogue to order their common life, binding themselves in daily interactions and binding their rulers because they preceded rulers' proclamations in time and importance.[3]
The line of development from Decalogue to modern constitutionalism is long but rather direct. The ancient Greeks, as Publius noted, had less to do with this development than many philosophers would like to admit. Greek regimes were liable to constant, murderous violence. The Greek polis or city community (there was no separate "state") exercised unlimited control over institutions and people, using law only as convenient.[4] It was the Israelites who instantiated the rule of law. The practice was further developed by those pious (though brutal) Romans with their rights of citizenship, and then more fully in the diversity of powers, rights, duties, and jurisdictions that was Christendom. It was the determination to put an end to this diversity, which so limited royal and other powers, that fostered the call for sovereignty.
The framers of our Constitution self-consciously looked behind modern sovereignty to build on the tradition of constitutional higher law. We should not allow recognition that they were men of the (moderate) enlightenment to obscure the fact that they understood the cultural bases of self-rule. Nor should we forget that those cultural bases were embodied in very public expressions of religious belief as well as clear moral standards effected at the local level. The natural law is accessible to all. But only a flourishing, public religion can maintain the people's ability to recognize their own true dignity, rights, and duties.
[1.] John Finnis, Natural Law and Natural Rights (Oxford: 2011).
[2.] I think, here, of the relative hostility in the Western tradition toward honor killings, early attempts to limit and eventually eliminate torture, and the elimination of the Roman rights of the paterfamilias.
[3.] Space limitations prevent me from discussing the specifically religious importance of the Decalogue and how its religious norms bound the people to a particular understanding of the highest good (communion with God) and the manner in which it could be achieved within the community. A full understanding of natural law must include such fundamental considerations because they shape societies and souls, but it lies in the far background of the judge's understanding of law as such; it is not adjudicable.
[4.] Giovanni Sartori, The Theory of Democracy Revisited (Chatham House, 1987) 279.