Liberty Matters

The Limits of Right Reason


I thank Adam Macleod for his thoughtful essay and response. Our disagreement is narrow but important because it points to how we may resuscitate the natural law mind in the United States (Britain, I'm afraid, is another matter). The assault on natural law entails rejection of both metaphysics and human dignity. But, because the natural law is not merely written on men's hearts, but interwoven with their institutions, re-establishing our connection with it is at least as much a matter of constitutional culture as of metaphysics and anthropology.
Societies rarely have direct experience of the order of the universe. Moreover, self-evident truths, while crucial and accessible to those with the necessary self-discipline and awareness, tend to be rather general. Their specification requires interaction with historical particulars. Thus, our understanding of natural law is mediated through the institutions, beliefs, and practices making up our culture. Within a constitutional republic this includes a constitutional culture—a set of norms and institutional arrangements embodying our particular vision of the common good, how people should treat one another, and how they should be treated by their government. As Macleod argues, the rule of law is an essential element of this understanding, and the rule of law entails the supremacy of law over the will of the governors. Within the United States (and, until recently in historical terms, the United Kingdom) the supreme law of the Constitution relies on a constitutional morality reinforcing the separation of powers and, in particular, limitation of the judiciary to adjudicating under, rather than making, the law.
I criticize simplifiers of natural law principally because their theorizing substitutes a philosophical mode of decision-making for the proper judicial task of adjudicating under law. Lawyers and judges are not charged with establishing justice, but with applying the law. That law may, of course, be subject to higher laws such as controlling statutes and constitutions. But lawyers and judges have no legitimate power to seek justice in the abstract—to follow "natural law" itself, unmediated by human law—because such an exercise constitutes making law. This is why judges in the Anglo-American system are to be bound down by precedents, statutes, and customary understandings encapsulated in maxims and canons of interpretation. Legal and political theorists who seek to promulgate formulae (or cribs, to use Oakeshott's term,) of natural law to guide judges outside these legal confines undermine the rule of law; they distract lawyers, whose skills have to do with grammar and history, with philosophical pretensions that often mask mere ideological expediency. None of this makes legal decision making into mere positivism. It merely means that the natural law is relevant to them as woven into pre-existing rules of action. This is no small thing, including as it does an understanding of the intrinsic purposes of laws. Macleod's purpose in reviewing Bagehot's work is to address the crisis of our age, namely the undermining of the rule of law through judicial overreach. Activist judges have muddied distinctions among governing structures, freeing those most able to manipulate constitutional mechanisms to seize unchecked power. In this context Macleod notes my concern "about theories of natural law that ignore the legal specifications provided by customs and tradition." He agrees but adds that theory is needed to determine whether an act or custom is inimical to universal human goods, and to specify matters that are not indifferent under natural law. Such investigations (whether well or ill done is another matter) are of intrinsic merit in the pursuit of knowledge and good governance, but they are not merited within the practice of law. In court at least, natural law—universal human goods—is not merely specified in concrete judgments but oftentimes is dependent upon historical circumstances. I do not mean by this that justice is merely subjective; it is not. But justice concerns what is fitting. In court that means vindicating the reasonable expectations of the parties, given what they can be expected to know of law and custom.
Only rarely should lawyers look to doctrines of natural law in doing their job. Indeed, higher law requires that they eschew such conduct, leaving it to legislators, who themselves should be guided more by history than principle. This is not to say, as for David Wootton, that the rule of law properly may be seen as merely some "set of local practices and arbitrary conventions." Rather, it is to say that constitutionalism, in both Britain and America, is best understood and practiced as an entailed inheritance that serves justice and the common good when and to the extent that its coherence is maintained.
Within our constitutional tradition, legislators and the people acting in the development of custom are the makers of law. They may choose to look beyond history and circumstance, seeking to understand how a proposed rule of action would affect the order of souls and of the commonwealth. But even this discussion will be constrained within a cultural and historical horizon. That horizon is deeply religious—as Russell Kirk, Christopher Dawson, and numerous others have pointed out, culture comes from the cult—but it remains constrained by constitutional forms and understandings. If the Constitution fails to recognize a fundamental truth of natural law essential to right governance for a given people, the answer is to amend the Constitution in the manner provided for therein.
Bagehot and his followers in administration and courts have taken on the law making role for themselves by undermining constitutional forms and morality. In Britain they have done so openly and rather thoroughly, having almost wiped from public memory a constitutional morality essential to entrenching their constitution. The question is closer in the United States. Our constitutional culture, while severely damaged and under increasing attack, yet lives. The question is whether it can be brought back to effective health and vitality.