By Reverend Patrick J. Travers, J.C.L., J.D.
(Fr. Travers made the following presentation on Natural Law following the annual Archdiocese of Anchorage Red Mass, which was celebrated in Anchorage, AK on October 4, 2015.)
It has been my opportunity as a practitioner both of American secular law and the canon law of the Catholic Church to observe a variety of differences and similarities between these two legal systems. The similarities are not surprising, given the important role that canon law played in the development of the English legal system during the Middle Ages. The differences can largely be attributed to the close relationship between canon law and the Roman “Civil Law” that lies at the basis of many continental European legal systems. One sharp difference between the two systems of law that has long puzzled me, and has come increasingly to the fore in recent years, is the clear acceptance by canon law of the natural law as a source of foundational legal principles, contrasted with the almost total silence about and even hostility toward natural law in modern American legal doctrine and practice. My purpose here is to suggest that there is no good reason for this radical difference; that the rejection of natural law as a direct source of legal norms has been a development that has detached American law from its foundational roots in natural justice; that natural law approaches have nevertheless continued to play an important role in the American system of justice, albeit one that is largely hidden; and that there would be significant advantages to a more honest and open recognition of this fact.
Libraries can be and have been filled with the writings of eminent philosophers, theologians, legal scholars, judges, and statesmen on the nature and definition of natural law. For present purposes, I would define it very generally as those principles of law that are inherent in the nature of the world and particularly of human beings that can be discovered through the activity of human reason. This vision of natural law incorporates a number of propositions that have been contested and defended repeatedly over the centuries. It regards natural law, first of all, as “law” in the proper sense, consisting of norms of behavior that directly bind human beings, capable of implementation and enforcement by human governmental authorities. While natural law is an object of philosophical reasoning and speculation, its actual content does not consist of merely speculative and theoretical abstract propositions, but rather of directly binding and enforceable legal norms. Secondly, these norms have their basis in the nature of the world and especially of human nature. Natural law is based on the insight that the facts of human nature give rise to norms of human behavior: that the “is” of human life forms a basis of the “ought” of human conduct and relationships. While this has been formulated in many different ways in the course of philosophical and legal history, one useful way states that the natural law consists of those foundational norms by which human beings individually and human society generally are helped to fulfill the potential of human nature.
Thirdly, the norms of natural law can be discovered through and are consistent with human reason. They do not depend for their force on the will of any human authority, nor can they be contradicted by such authority. The fact that they are inherent in human nature does not mean that natural law principles are automatically known by all human beings. They are, however, accessible to those human persons who are able and willing to reflect honestly on human reality through the activity of the intellect, and are thus referred to as “self-evident.” Because of differences among human individuals and their circumstances, not all persons will perceive the content of natural law principles in exactly the same way, and the foundational principles themselves are very broad. Among them is the very basic principle that good should be done and its opposite, evil, avoided; with good being identified as what is most conducive to the fulfillment of human nature. Another is the principle of contradiction—that something cannot both be and not be at the same time. Still another is the principle of justice: that each human person must be accorded what rightfully belongs to him or her. The general content of the “Second Tablet” of the Judaeo-Christian Ten Commandments governing human relations and condemning disrespect of family members, killing and other violence, sexual infidelity, stealing what belongs to another, dishonesty, and coveting the good to which others are entitled also seems to be widely accepted by natural law theorists regardless of their religious background.
It is in moving beyond these very general formulations and applying them specifically to a wide variety of circumstances that different approaches to the content of natural law have arisen. This is true even when lawmakers and judges are aware that they are working in the realm of natural law. As I hope to show later, it is even truer when they adopt natural law approaches without even knowing it. But this is true of any source of law, such as constitutional provisions, statutes, or judicial precedents. If we in the legal profession were to reject a proposed source of law as legitimate simply because it admits of differing interpretations, we would have very little to work with and very little to do! And indeed, from the time of the ancient Greeks until the present day, many visions of the foundations and content of natural law have had a significant impact on human affairs. The most highly developed and, at certain times, most widely accepted approach to natural law has been that of the Catholic Scholastic tradition, exemplified by the work of the great Thirteenth Century philosopher and theologian, Saint Thomas Aquinas. It would be a mistake, however, to regard this as the only natural law approach available to modern American jurists, as powerfully influential as it continues to be. Important insights can be derived from a study of the ancient natural law theorists such as Aristotle, Cicero, and Saint Augustine; of Protestant authors like Hugo Grotius, the Seventeenth Century Dutch philosopher and theologian; of great figures of the Enlightenment like Thomas Hobbes and John Locke; and of contemporary theorists such as John Finnis and Robert George. The richness and continuing vitality of these natural law traditions offer fertile sources of inspiring intellectual inquiry for anyone who might choose to study them. Some of them have provided the soil in which the roots of the American legal system have been planted, and should be of special professional interest to American lawyers. That this has not, by and large, been the case for about a century and a half is thus quite surprising, and the main concern that I am addressing here.
The Founders of the American governmental and legal system were convinced that all they accomplished was based on, and had to be consistent with, the natural law. This is illustrated most visibly in the invocation by the Declaration of Independence of “the Law of Nature and of Nature’s God” and the “self-evident” truths “that all men are created equal, that they are endowed by their Creator with certain unalienable rights, [and] that among these are Life, Liberty and the pursuit of Happiness.” But the depth of the roots of the natural law vision of the Founders is perhaps best illustrated by the words of Sir Edward Blackstone, whose Commentaries on the Law of England provide the most comprehensive account of the state of Anglo-American legal thought in the late Eighteenth Century and was of paramount importance in legal doctrine and practice in the early decades of the American republic. In Section 2 of the Introduction to his Commentaries, Blackstone states, in part:
“The will of [man’s] maker is called the law of nature. For…so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.
…These are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due….[God] has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised; but has graciously reduced the rule of obedience to this one paternal precept, “that man should pursue his own true and substantial happiness.” This is the foundation of what we call ethics, or natural law….This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other—It is binding over all the globe in all countries, and at all times; no human laws are of any validity, if contrary to this: and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.”
To many, perhaps most, American lawyers today, Blackstone’s words might appear to be quaint platitudes, reflecting the world view of another time, and having little if any direct legal force. For the Founders of American law and government, however, they expressed the juridical bedrock of all that they accomplished in establishing the new Republic, matching and even exceeding the binding effect that would later be accorded the Due Process and Equal Protection Clauses of the United States Constitution. Indeed, it is clear from the discussions and debates that accompanied the ratification of the original Constitution and the Bill of Rights that even this new “supreme Law of the Land” could not displace the foundational natural law, which continued to govern directly a wide array of matters; and that the new constitutional provisions must always be interpreted in a manner consistent with natural law. Some feared the contrary result—that, for example, the enumeration of civil liberties in the Bill of Rights would be read to revoke other rights that could be claimed under natural law. This was the reason for the inclusion of the Ninth Amendment, providing that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Thus, while the Bill of Rights protects such rights as freedom of religion and speech, the source of these rights is the law of nature. It would be incorrect, then, to suggest that these rights are “granted” or “provided” by the First Amendment to the Constitution, or by parallel provisions in State constitutions. Even the Supremacy Clause of Article VI of the Constitution refers to the supremacy of Federal law only in relation to “any Thing in the Constitution or Laws of any State to the Contrary.” For most of the Founders, formed and steeped in the natural law vision represented by Blackstone, any claim that their handiwork could be applied to contradict the law of nature would have been sacrilegious, if not wholly unthinkable.
Throughout the early years of the United States, roughly until the time of the Civil War, this ready acceptance of natural law as a source of legal norms, to be considered together with constitutional and statutory provisions and judicial precedents, prevailed in American courts and other branches of government. By the late Nineteenth Century, however, such direct reliance on natural law had become quite rare, a situation that has continued to the present day. Indeed, a contemporary American attorney who based his or her argument in a case on a direct appeal to the natural law might well be laughed out of court, subjected to sanctions, and held liable for malpractice! There seem to be a number of reasons for this development, which was generally unheralded and appears to have attracted little notice as it took place. One such reason was probably the normal development of American positive law at the State and Federal levels through the development of judicial precedents, the enactment of statutes, and the adoption of new constitutional provisions, especially the post-Civil War Reconstruction Amendments to the United States Constitution. The new law posited by the different branches of government to a great extent declared and interpreted the natural law in authoritative ways that reduced the number of occasions on which it was considered necessary to appeal directly to natural law itself. In particular, the Due Process Clauses of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the latter Amendment were interpreted more and more as declarative of rights that previously would have been recognized under natural law. This “substantive due process” approach that was adopted by courts in the late Nineteenth and early Twentieth Centuries was used so frequently to invalidate regulatory and social welfare statutes that benefited the poor and members of the working class at the behest of large, wealthy corporations that it fell into disrepute in many legal and political circles. It was finally abandoned during the 1930s as a result of the political and social pressures and changes in judicial personnel that resulted from the Great Depression and President Franklin Roosevelt’s New Deal.
In the meantime, however, the excesses of substantive due process had encouraged the development of a number of currents in American legal thought and practice that directly questioned the existence of natural law or any other source of objective standards of legal reasoning and judgment. These movements, generally referred to as legal skepticism or legal realism, adopted pragmatic approaches to law and justice that sought their sources in the social and economic influences that affect the behavior of judges and political decision makers. The leading exponent of this new development, Justice Oliver Wendell Holmes, Jr., of the United States Supreme Court, has had such great influence on the American legal system that his writings have come to be regarded by many as expressive of the orthodoxy of American legal thought. This legal skepticism or realism was closely related to the acceptance of that more ancient rival of natural law theory known as legal positivism. The positivist approach denies the discoverability of objective legal principles and norms by human reason, and instead regards all legal norms as subject to the will and power of the lawmaker. Denying the existence of objective standards of human behavior, positivism views all law as, in some way, a human artifact, fundamentally the product of the political, economic, social, and cultural system to which the lawmaker belongs. Positivist movements in legal and moral thought have arisen throughout the centuries from the time of the early Greek Sophists, but had been in decline at the time of the foundation of the United States. The underlying principles of positivism are, indeed, so contrary to the vision of the Founders as handed down to later generations that they have been vigorously resisted even by many of those American jurists and practitioners whose approach to the law has been steeped in practical positivism. One result of this was the quixotic search in late Twentieth Century courts and law schools for “value neutral” standards of legal decision making that would deny the existence of the objective principles of natural law while, at the same time, avoiding positivism’s morally questionable underpinnings.
For about a century and a half, under the influence of legal skepticism and positivism, the American legal system has been detached from its roots in the natural law. Natural law is rarely acknowledged in modern legal decision making by the courts and political branches of government in the United States. Indeed, in certain American legal and political circles, there is considerable hostility to any acknowledgment of a role for natural law. A significant reason for opposition to the nomination of Justice Clarence Thomas to the United States Supreme Court was his openness to the role of natural law in judicial decision making, although this tended to be overshadowed at the time by controversy over his personal life. And yet, while it has in recent times been ignored, doubted, and even vilified and ridiculed, natural law continues to play a central, if mostly unrecognized, role in American law. It simply does so under the guise of a number of seemingly unrelated concepts and categories.
Consider, for instance, the common law itself, and its continuing development through the establishment of judicial precedent. From the earliest centuries of the English legal system and throughout the early history of the United States, the development of the common law was regarded as an enterprise of gradual discovery by judges of the principles of the natural law and their application to the specific circumstances of the case at hand. The idea of the common law as “judge-made law” came only later, and is in fact inconsistent with many aspects of the operation of judicial precedent in our system even today.
The standard of the “reasonable person” as a norm for human behavior is another instance of the continuing pervasive influence of the natural law in our legal system. This fundamental legal principle is one that is “self-evident”—it is ultimately rooted in an innate sense of human justice illuminated by reason, rather than a previous calculation of costs and benefits or other assessment of material utility. It shapes the legal standards that apply to practically every kind of human activity, guiding our behavior whether we are aware of its influence or not.
One of the most important transitions in American life at all levels was occasioned by the civil rights movement beginning in the mid-Twentieth Century under the leadership of such towering figures as Doctor Martin Luther King, Junior. Doctor King was very clear in insisting that the inspiration for that movement lay in the natural law tradition as exemplified by Christian thinkers such as Saint Augustine and Saint Thomas Aquinas. He states, in his Letter from Birmingham Jail:
“To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality.”
Doctor King did not see the ultimate foundation of the movement for which so many sacrificed, and for which he gave his life, in the Fifth and Fourteenth Amendments to the United States Constitution, as important as these are. He knew that its roots were in a law that transcends times, places, nations, cultures, and constitutions: the law that is based on the fulfillment of human nature and the true happiness of human beings—the natural law.
Despite the many factors that tend to obscure the continuing force of natural law, contemporary judges, like all people of good will, cherish and yearn for the vision that inspired Doctor King—the vision of human fulfillment and happiness. In the absence of judicial methods that would permit them simply to acknowledge natural law as a direct source for their decisions, courts since the 1960s have construed constitutional provisions and statutes, often in remarkably unpredictable ways, to implement that vision as they perceive it. The Due Process and Equal Protection Clauses of the United States Constitution, and the parallel provisions of State constitutions, have, in particular, been tasked with the role that natural law would more properly play in judicial decision making. A telling and very important example of this is the reasoning of the United States Supreme Court in Griswold v. Connecticut, the 1965 case that struck down State prohibitions on the use of contraceptives by married couples. To find a “right to privacy,” the existence of which in some form would be supported by natural law theory, but about which the Constitution itself is completely silent, the Court posited the existence of “penumbras” and “emanations” derived from certain constitutional provisions on which such a right could be based, and then interpreted to invalidate the State laws in question. Once established, this right to privacy played a major role in later decisions, most notably in Roe v. Wade, the 1973 Supreme Court decision that invalidated most governmental prohibitions and restrictions on the abortion of pregnancies. Here, a right having no specific mention in the Constitution and not fully developed in natural law was held to override, in the case of first and second trimester fetuses, the right to life guaranteed by both. Even supporters of the outcome in Roe v. Wade have questioned the reasoning by which it was reached, which in substance is based on the majority’s vision of natural law without daring to speak its name. It can be cogently argued that the Supreme Court’s recent decision in Obergefell v. Hodges, recognizing a constitutional right of same-sex couples to marry, would much more plausibly have been based on the finding of such a right under natural law, rather than a determination that the Equal Protection Clause of the Fourteenth Amendment has been uniformly misinterpreted for more than 150 years. Indeed, the language by which the Court found this right to exist is very much the language of that human fulfillment and happiness that lies at the basis of natural law.
This, I would suggest, raises the fundamental problem with judicial excursions into natural law that are camouflaged as interpretations of the text and spirit of the Constitution and statutory law. As I mentioned before, the visions of human nature, fulfillment, and happiness upon which natural law is based are diverse and often conflicting. It cannot be said for certain how the honest, open adjudication of cases like Griswold, Roe, and Obergefell on the basis of natural law would have affected the results in those cases. I personally believe that the result in Griswold would have remained the same; that in Roe would have been very different; and that in Obergefell would at least have considered alternative institutional approaches to the legitimate interests of same-sex couples. A basic problem with these and similar cases is that the constraints imposed on their argument and decision by the constitutional and statutory categories into which they are forced prevents a full evaluation by the court of all aspects of the human nature, fulfillment, and happiness of the persons likely to be affected by its decision. This can and has resulted in the disregard or disparagement of those natural rights that cannot be readily accommodated by those predetermined constitutional and statutory categories.
The return of the American legal system to an open acknowledgment of the important role of natural law would actually clear the way to the recognition of a variety of legal rights that are central to the Catholic vision of natural law and social teaching, but which have yet to be recognized similarly under American law. These include the human rights to adequate food, shelter, clothing, health care, and education, and also the corresponding responsibilities of those who exercise these rights.
The natural law is a reality that can be recognized, fostered, and applied by all people of good will, with their diverse visions of human nature, fulfillment, and happiness. I believe that the commonality of these visions is far greater than their differences, and that the American legal system can offer a suitable means for their exploration and, one can hope, resolution. To a great extent, it already does this, although in ways that are not fully recognized and effective. I hope and pray that reflections like those I have presented here will hasten the day on which the natural law is restored to its rightful place in human government, both in our Nation and in others. Thank you for allowing me to share them with you as we recommit ourselves to the legal vocation that we love and share.
— The Rev. Patrick J. Travers, JCL, JD, is the Vicar General and Chancellor of the Diocese of Juneau and the pastor of Holy Name parish in Ketchikan, AK.