Natural Law, Human nature, duties to obey the law
I hope everyone is safe and warm and happy to stay wherever you are. I have just a couple thoughts on a couple of the posts to share.
Mark Murphy suggests that a milder or softer version of the natural law thesis is not subject to the ambiguity i argue afflicts stronger versions. The ambiguity I identify and discuss in the book is this: the claim that an unjust law is not a law can mean that unjust positive laws are not truly Law, or it can mean that anything the sovereign passes, so to speak, is not only law, but also, by virtue of that, it is just as well. The sovereign commands both the content of the law and of justice. The first interpretation lends itself to MLKing or Gandhian styled civil disobedience or even revolution; it allows the dissenter to claim the mantle of Law-abiding while disobeying particular unjust laws or legal regimes. The second interpretation allows the state to claim the mantle of justice as well as law, as it governs. This is a restatement of the same ambiguity Bentham noted, in his words, natural law lends itself to either anarchy or reactionary politics.
Mark dismisses Bentham as a credible commentator on natural law,, and then suggests that there may be exemplars of the reactionary interpretation of the strong natural law thesis, citing Hobbes. He then though suggests that the softer interpretation of the natural law thesis, that there are moral criteria for the enactment or identification of law, does not lend itself to reactionary or unduly conservative interpretations. Natural law, so to speak, is always the friend of the critic or disobedient, never the handmaiden of the sovereign, the powers that be, the status quo, etc.
I’m not sure. It seems to me that contemporary natural lawyers, and particularly John Finnis, spend an inordinate amount of time justifying the existence of a Duty to Obey the Law. Positivism is now more routinely identified with (and rightly) skepticism toward the existence of such a duty, and Natural law identified with the opposite: with the existence of a robust duty to obey the law. This is, to my mind, simply the softer version of the ambiguity Bentham first identified. Its also the flip of the associations with each tradition in the legal academy and to some degree in the general culture, or at least academic culture. We think of natural law as the jurisprudence of ML King and Gandhi and other people of conscience, and legal positivism a the jurisprudence of Nixonian devotees of law and order. Cover did a lot to promote these associations….I think it is at least half wrong. Natural law is sometimes employed politically toward these ends. In academic writing, however, if not in political rhetoric, it is these days far more often pressed toward the end of understanding the virtues of law abidance, not disobedience. The law, according to neo-natural lawyers, has an internal moral structure sufficiently robust to imply a duty to obey it. The work for natural lawyers is simply to identify what that structure might be. It is legal positivists, these days, Raz most prominently, simply denying the existence of any such duty. We might of course have duties to obey rules that are themselves good rules for reasons other than their identity as law — they may be concurrent with moral rules, or they may lay out sensible schemes of cooperation. But the duty to follow them, if it exists, exists for those reasons, not by virtue of their legal stature.
To my mind the positivist has the better of the argument, but all i want to suggest here is that natural law, today, is far more identified with the position that there exists a duty to obey the law, which is itself an echo of the what i called the conservative interpretation of the natural lawyer’s claim that law is definitionally, simply by virtue of being law, therefore also just.
It seems to me that Aquinas clearly did not intend this interpretaion, but rather, the critical interpretation, that there is no moral obligation to obey an unjust law.
Peter suggests an additional reason to be skeptical of the possibility of invigorating a progressive natural law: that there is no support, at least in Aquinas for an interpretation of the natural law tradition that isn’t reliant upon religious commitments. It seems to me the strength of Aquinas’s contribution in Summa Thelogica is the insight that reason gives us a window to god’s law, and that at the heart of god’s law is basically a commitment to human happiness. REason then should give us a guide to human happiness….
Mark Spindelman rehearses the reasons to worry of any claim, progressive or otherwise, that invokes human nature to justify much of anything, not only because such claims are as often as not incoherent, but also because they are more often than not retrogressive. I find that Marc’s own work constitutes a pretty clear counterexample. Marc has argued in a number of articles that liberal and postmodern positions on sexual liberty threaten sexual safety and integrity. These arguments generally, i believe, (like some similar claims i’ve made) depend on a conception, whether stated or not of human nature, and more clearly, on the claim that once was straightforward enough that people create texts rather than texts creating people. It is the latter commitment that gives him the latitude to argue against so many texts so convincingly — against the texts, on the basis of solidarity with the people.
So much else, I simply agree with, including, Deborah, your commitment to the thin constitution, although as you noted, our reasons are very different. Thank you so much for your thoughtful comments! Many thanks to Kathy Baker for her wise reflections on sex and marriage, and more pointedly for her exhortation to progressives to attend the case for civil marriage — and Kathy, i have heard my friend and colleague Jana Singer at Maryland make the same claim repeatedly, she might have written on this. Thanks as well to Meredith and Michelle for furthering the purely jurisprudential arguments of the first two chapters, Amy Uelman and John Mikhail for spelling out implications, and very different implications, for natural law views that are not dissimilar to my own, Chai and Heidi for highlighting implications and contributing complexities of an array of claims, Mary Ann for an incredibly powerful example of some of the arguments in chapter three, and a whole hearted thanks to Anita Allen for her insightful analysis of the relation between CLS and CRT, a topic i touched on but nowhere near adequately, and for her personal recollections of the genesis of both movements.
I very much enjoyed writing the book, and I’ve enjoyed this exchange hugely. I wish i could have found time to reply to everyone individually, but some will have to wait for personal conversations. The storm has taken over everything. Danielle, you are absolutely amazing, thanks again to everyone at Concurring Opinions that made this possible. I deeply appreciate it.