Natural Law

I’ve said that the problems of the justice system in the United States, both for civil and criminal cases, run very deep, and one of the main sources of trouble is a reflexive hostility to what is called ‘natural law‘.

Interesting discussion from the other day hosted by Judge Kopf at his blog, Hercules and the Umpire, about the death penalty.  Interesting not least because it wasn’t just about the death penalty, but also Judge Kopf’s rejection of natural law.

There is a line of reasoning by which the political concept of “pluralism” degenerates into rejecting natural law that is peculiarly American and is perfectly illustrated by Judge Kopf.  It’s largely derived from Thomas Hobbes’ political philosophy.  And indeed Judge Kopf mentions Hobbes specifically in his post describing his thinking about the death penalty.

The first thing to be said about this is that in the long history of what is often termed western thought Hobbes is barely a footnote, not to be taken seriously as a launchpad for anything that could be remotely described as a “school of thought”.  He was not, properly speaking, a philosopher.  Even a cursory comparison of his writings and ideas with those of Plato, or Aristotle, or DesCartes, or David Hume or Kant or Leibniz or Hegel or indeed dozens of others I and nearly any other somewhat educated person could rattle off (Edmund Husserl and phenomenology, anyone?) will demonstrate beyond any debate how relatively mundane Hobbes is, in a totally different – and clearly lesser – league.  Any semi-serious undergraduate student of western philosophy in his second year of study would regard Hobbes as little more than an amusement or distraction, intellectually speaking.

Put simply, it’s a profound intellectual error to base any kind of outlook on the world, or an analysis of any serious issue, on Hobbes.  He simply doesn’t have the depth, the intellectual gravitas.  It’s like basing your opinions about roadrunners on the cartoon.  And since Judge Kopf actually went to the trouble of including Hobbes’ portrait in his death penalty essay:


The only depth that follows in Judge Kopf’s analysis after making this mistake is the kind when you are further down the rabbit hole.  For the love of God, he starts bringing up Oliver Wendell Holmes as some kind of ‘theorist’.  Ugh:

The positive law theorists (like Hobbes and Holmes*) would say “yes, it is just”–so long the judge acts pursuant to the law. To them (and probably me) there is no justice without law. Legal positivists believe (a) Justice and injustice are dependent on positive law; (b) Law itself is independent of justice; (c) Justice consists in conformity to positive law; (d) Justice, apart from legality, is merely a subjective [individual] norm; (e) Justice is obligatory ultimately only because of legal and political sanctions; and (f) The virtue of justice is identical with obedience.

At least Holmes had the excuse of extremely traumatic experiences in the Civil War, but the point – well, one point – is that while Hobbes can barely make it onto the most expansive possible list of thinkers in the history of western thought one might give the slightest consideration to, Holmes doesn’t even make that list.  The only reason anyone outside of lawyers has ever even heard of him is that damn unforgettable name.  His most important ‘contribution’ as a judge was to place his imprimatur on Alger Hiss, who of course turned out to be a communist, a spy and a perjurer.  I often call Alger Hiss the most important but obscure American political figure of the 20th century.  And I don’t mean that in a good way.  But in any case I find his association with Holmes endlessly amusing.

I guess the bottom line here is that there’s a lot to be said about the death penalty but if somebody brings up Hobbes or Holmes you might as well absent yourself from the discussion and turn on the TV.

Not a suggestion I’d normally make.

Of course it’s not as if Judge Kopf doesn’t have a lot of company.  Contemporary judges might rightly be called liberal or conservative, but the vast majority bristle at the notion of natural law, and that includes Scalia.  But maybe not Justice Thomas:

In 1991, shortly before Supreme Court Justice Clarence Thomas’s Senate confirmation hearings, Harvard Law School professor Laurence H. Tribe wrote in The New York Times that Thomas was “the first Supreme Court nominee in 50 years to maintain that natural law should be readily consulted in constitutional interpretation.” Thomas was repeatedly grilled on this point during the hearings that followed. Though he acknowledged that the Constitution is “[t]he positive law,” he added, “We look at natural law beliefs of the Founders as a background to our Constitution.”

So there’s that, then.

Now, there are intellectually respectable reasons to question or maybe even reject natural law.  In my view they’re all wrong, but they might be intellectually respectable.  But rejecting natural law “because Hobbes” is like rejecting high school physics “because Curly“.  It may well be, as Judge Kopf says. that he’ll always come to an impasse with natural law adherents, but how you get to the impasse can be important.  Intellectually, I mean.

Does that make all this merely an intellectual exercise?  Not if the subject is the death penalty and you’re a judge.  Or for that matter a lawyer.

Besides, what’s wrong with an entirely intellectual exercise?  Oh, I forgot:  there’s a strong strain of anti-intellectualism in the American political arena, of which a devotion to Hobbes is a part.  Or maybe a product.

And the reflexive hostility to natural law is part of the peculiar American brand of anti-catholicism as well. Even if a lot of Catholics go along.

So maybe this makes clear how deep the divide really is between someone like Judge Kopf and someone like me.  We barely speak the same language, really.  And that’s one big reason why, for me……juries.  People – other than judges – naturally believe in and understand natural law.  Because it’s natural.




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12 responses to “Natural Law

  1. John Kindley

    Very nice! But, as SHG’s post today suggests, as things stand now we have very little to hope from jurors, as the average citizen sucks bad. They’re all “the law this” and “the law that,” “hang em high, take their cars even before they’ve been convicted of drunk driving.” But in my view, empowering jurors goes hand in hand with and entails and would facilitate the dispelling of this false “sacred awe” of “the law.”


    • It’s all relative. Very little to hope for from jurors. Far less from judges.

      As a lawyer or jurist, Holmes was intellectually aberrant for his day, but constitutionally pretty much the same as everyone else in terms of basic decency. But intellectual aberrations of the kind he embraced erode basic decency over time, and over generations. Natural law is in every way except the most esoteric epistemological sense a complete given, so much so that even those who deny it are observing it all the time. Rejecting it is a luxury – or maybe a trendy affectation – that owes its indulgence to the fact that no one, really, in their heart of hearts rejects natural law in the first place.


      • John Kindley

        Well said, and I myself may be one of those guilty of “trendy affectation” based upon an “esoteric epistemological sense.” In my defense, Justice Thomas isn’t the greatest role model. Max Stirner I find a cleansing thinker, but I appreciate him particularly through the lens and interpretation of Ernst Jünger, who I think you’d find more congenial than Stirner. An honest search for God can lead one through the “atheism” of Schopenhauer, who was very Christian in his way, and who had the decency to admit say that Madame Guyon, e.g., picked up where his philosophy left off. The realization that we may be called to stand contra mundum for what in our own judgment we see as right, and our recognition of the weakness of human reason, our own and others, may lead us to regard “natural law” as an imperfect symbol of what it represents, as connoting a rationalism and a humanism that is suspect. But on the level of common sense, which is the level with which law properly deals, I think I wholly agree with you.


        • Well, I don’t think I’d call it “common sense”, exactly. I mean, you can dive head first into the question of how we “know” anything or what it means to know, and in modern terms I’d guess you could start with Kant and go forward through the bizarre contortions of Wittgenstein, but setting all that aside to preserve your sanity, if nothing else, is not just common sense. I’d say it’s a respectable intellectual position.

          To draw an analogy (probably quite strained), the early 20th century on has seen ‘classical’ music described as “atonal”. I don’t think it’s “common sense” to view that as an oxymoron. It’s an intellectually justifiable position, to some extent validated by the fact that practically no one listens to atonal music.

          ‘Music’ that isn’t music. ‘Reasoning’ that isn’t reasoning. Am I off here?


  2. RGK


    I understand your affection for “natural rights.” But you do your readers a bad turn by making fun of Hobbes. Legal positivism, of which Hobbes is one of the primary adherents, is by any measure one of the great contributions to legal and political philosophy. Any competent survey of that waterfront will prove the truth of my assertion.

    As for “natural rights,” you remember Bentham, the utilitarian. He wrote that the natural rights theory was “nonesense on stilts” Why? Because it is like a dog chasing his tail. Natural rights proponents like the theory because it allows them and their religious organizations (think the Catholic church) to set out reguirements for political behavior that are made up out of thin air.

    All the best.



    • John Kindley

      You assume “natural rights” are code for Catholic?? Are you sure you’re not carrying around some anti-Catholic bias? (“Some of my best friends are Catholic” doesn’t mean anything.)

      Think instead American Revolution. Was it “lawful”? Was it “just”? If it was, it could only be justified, as it in fact was in the Declaration of Independence, on the basis of natural rights, as it sure wasn’t in conformity with the “positive law.” For that reason, you very well may say the Revolution was both unlawful and unjust. But try telling most Americans the Declaration of Independence was “nonsense on stilts.”


      • RGK

        I may carry around a relligous bias, but it is is not limited to, or focused upon, the Catholic church. All the best.




        • John Kindley


          My view is that, although I wouldn’t call natural law “nonsense,” it, like all things (particularly ideas) in the world, doesn’t stand on firm ground, but stands on much firmer ground than the positive law or social good theories of justice, both of which ultimately rest for any justification they might or might not have on natural law, which really just amounts to morality (the very objective existence of which, as I admitted above, can be doubted). I “should” obey the “positive law” (leaving aside the fact that the actual content of the positive law is often far from clear)? Why is that? Presumably, following Hobbes, for the sake of peace. But if I care about peace, it’s because of my understanding of the social NATURE of man and the MORAL obligations it entails.

          Currently I’m reading Thomas Carlyle, who was greatly respected by illustrious contemporaries who profoundly disagreed with him – Whitman, Emerson, Thoreau. His vision of natural order was very different from theirs, which then supports your insinuation that natural law is “nonsense on stilts” (although, as I suggested above, it’s still far more sensical than the positive law theory of justice). Carlyle was an apologist for slavery, for chrissakes.

          So I’m reading Carlyle. Perhaps then you can read the first chapter of Spooner’s The Unconstitutionality of Slavery, titled What is Law? I respectfully dare you.


    • Judge, good of you to stop by. Welcome.

      Well, there’s a long discussion here, if you’re up for it. If you’re not that’s fine too. I can go on and on, of course. People tell me that all the time. And don’t worry about me misleading all three of my readers. No threats to the Republic on this blog.

      On to it, then.

      All men have hair.
      Socrates is a man.
      Therefore, Socrates has hair.

      Every reasonably intelligent person can tell you that (a syllogism) is a valid line of reasoning. What no one can tell you is how you know what a valid line of reasoning is. Reason explains all kinds of things. Indeed that is what we do with it and all it’s good for. But it cannot explain itself.

      This could be rightly called the central problem of western thought, giving rise to the subject known as epistemology. It did not originate with Christianity but several centuries earlier – with Socrates, who was informed by the oracle at Delphi that he was the wisest of all men, only to find that his wisdom consisted in realizing how ignorant he was. So you can’t blame any of this on Catholics 🙂

      Anyway, for the better part of 2,000 years this is where things stood. We reason all the time, we make our way through the world by reasoning, and to why that seems to work, well, we don’t know. It’s a mystery.

      Or….because God. That seems to be the only other answer.

      Then along come people like Hobbes, and Bentham and eventually John Stuart Mill, the utilitarians and the “positivists”. How do they address this question at the heart of western thought since Socrates?

      By saying that it’s not a legitimate question. We understand almost everything through reason and science and that’s all you need to know. The question itself is a primitive leftover from the ancient Greeks and it’s meaningless “metaphysical” crap.

      I still haven’t recovered from learning that in law school, calling something “metaphysical” was meant as an insult, by the way.

      I don’t deny Bentham’s or Hobbes’ influence on the law. You would be quite right to claim that. But “contribution”? I don’t think a regression to pre-Socratic levels of understanding can fairly be termed a contribution. Hobbes is just a latter day version of Thrasymachus, who was thoroughly discredited in the 4th century BC.

      The contribution of utilitarianism and positivism, then, is to turn our backs on a question that has animated western thought since the beginning as being somehow wrong-headed even to ask; but that is so obviously not the case that utilitarians and positivists end up in a kind of peculiar madness.

      Let’s be clear: to some extent we’re all utilitarians. We don’t second guess ourselves on the millions of bits of elementary reasoning we do every day to, you know, live life. But dogmatic utilitarianism, and especially positivism, elevates the practical utilitarian reality into a principle of thought, ruling further reflection out of bounds.

      The consequence of this in an individual and in society generally is moral and intellectual impoverishment. Recognizing the problem of epistemology will often lead to religious speculation, but if it doesn’t it can’t help but lead to a sense of wonderment and humility that all this stuff just works and no one really knows why. But denying the problem, in addition to being just stubborn and wrong, engenders a hubris that was so well illustrated by Plato’s Thrasymachus character. And the consequences in a justice system are catastrophic. The only reason our justice system isn’t one atrocity after another is that on a practical level no one really buys Hobbes, utilitarianism or positivism, not even you. It’s just too unnatural to do that.

      There, I said it.

      Not that I’m criticizing you personally here, Judge. In fact I appreciate you engaging quite a bit. Writing a blog and offering opinions on issues like this are pretty gutsy things for a federal judge to do.


  3. Min

    I have been too skeptical of the notion of natural law to even look it up. Calling beliefs natural strikes me as PR.

    So I was interested to see the title of this post, because, frankly, I value your opinions more than I do Justice Thomas’s. But it is aimed at people who already know what “natural” law is. Bu if natural law is, well, natural, then I suppose that natural law does not recognize private ownership of land. I say that both because I think that is the natural belief of humans the world over through time before civilization, and because I doubt that Justice Thomas believes that. 😉


    • Min! How the hell are ya?

      Briefly: it is not an argument against the very existence of ‘natural law’ to point out that people can differ about what natural law entails in this or that context. The idea that there is natural law flows directly and inexorably from reason. Which in turn could rightly be called ‘natural reason’.

      This all gets kind of circular I guess. But, you know, tautologies are underrated, especially by those overstuffed British “positivists”.


      • Min

        Hi, John!

        Still alive and well, as the song goes. I hope that all is well with you. 🙂

        Well, if natural law is based upon reason, I think I’ll stand with the idea of no private ownership of land. Following Kant and others, I think that rational law cannot play favorites. Equality before the law is basic. And the two main obstacles to equality before the law are the private ownership of people and the private ownership of land.

        I just thought I would throw that out there. Others have made the arguments better than I could. 🙂


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