Category: Natural Law

Alicea’s Noble Lie

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Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. The author is a recent federal judicial law clerk.

“ATHENIAN: Tell me, Strangers, is a God or some man supposed to be the author of your laws?”

“ATHENIAN: And do you, Cleinias, believe, as Homer tells, that every ninth year Minos went to converse with his Olympian sire, and was inspired by him to make laws for your cities?”
 – Plato, Laws 624a-b

Joel Alicea has striven mightily to reconcile a form of positivist originalism with natural law theory.  He claims to have given originalism a “moral authority” derived from the natural law.  Yet his arguments reduce to either a noble lie in the vein of Plato’s Republic or an act of faith in liberalism’s founding mythology.  Alicea’s recent review of Hadley Arkes’s Mere Natural Law: Originalism and the Anchoring Truths of the Constitution demonstrates this point. There, Alicea makes a startling argument for the moral authority of positivist originalism.  He writes:

Who has care of the community in the United States? That is, who is the legitimate lawmaker in the United States? The answer — as deduced from the natural-law tradition’s teaching on the nature of political authority — is the people, the same people who, the Preamble declares, “ordain[ed] and establish[ed]” our Constitution. Once we understand this, the judicial obligation to obey the Constitution as the people understood it becomes clear — as does the moral force undergirding Dobbs.[1]

Claiming to follow the Thomistic definition of law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated,”[2] he posits that someone must have the “care” of, that is, authority for the direction of, the political community that is the United States.  So far so good.  But then he goes on to make the remarkable assertion that the “the people,” considered apart from any authority, have this authority under the natural law.  Because the people have this authority, their choices in establishing the Constitution are morally binding until revolution or regime change via the mechanisms the people set forth in the Constitution.  The same is true, he claims, of the people’s understanding of the Constitution.  This argument is fundamentally flawed.  

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The Owl of Minerva and “Our Law”

Adrian Vermeule

Conor Casey & Adrian Vermeule[1]

On 28th February, William Baude of the University of Chicago Law School delivered the annual Scalia Lecture at Harvard Law School,[2] titled “Beyond Textualism?”—with startling results. Startling but also welcome, as we will explain.

The main question posed by Baude at the outset of his lecture is whether textualism is “missing something important”? Baude began in a conventional register by suggesting that textualism is said to reflect the “basic insight central to the structure of our government…and fabric of our law” that the job of the interpreter is (a) usually to enforce rules that have been made some place else, not to make the rules herself; and (b) not to imagine decisions that were actually never made by the legislature. In general, says Baude, the results of the “textualist revolution” have been “salutary” for embedding these ideas into legal practice and thought.

The talk, however, then took a sharp and surprising turn—indeed a turn towards the very approach to legal interpretation, the classical approach, that Ius et Iustitium was founded to advocate. Baude’s answer to the question posed at the start of his lecture turned out to be an emphatic yes. Textualism is grievously incomplete, Baude now argues, chiefly because it fails adequately to take account of other sources of law, including “unwritten background principles” and “natural law.” (Yes, everything in quotation marks is a quote from the lecture). Continue reading “The Owl of Minerva and “Our Law”” →

Aquinas and Human Rights

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Aníbal Sabater is a lawyer in New York City specializing in international arbitration.

Whether subjective rights in general and human rights in particular exist in the classical legal tradition is a vexed question that most contemporary Thomists answer in the negative.   In 2019, however, Fr. Dominic Legge OP, Director of the Thomistic Institute, published “Do Thomists Have Rights?,”[1] an article of some popularity in integralist circles that presents Aquinas as a human rights forerunner.[2]  These lines are offered in a spirit of constructive criticism of that article.

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Law Is Upstream of Morality, Exhibit 473

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Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. The following note was submitted by a practicing attorney, who wishes to remain anonymous.

An article published recently by Slate should add yet more evidence that law and morality are intertwined in the popular mind, that what is legal or illegal impacts what people believe is moral or immoral. The article takes the form of an extended comment, edited for length and clarity, by the director of an abortion clinic in Granite City, Illinois, across the river from St. Louis. The Granite City clinic has seen a substantial increase in out-of-state women seeking abortions since the Dobbs ruling and subsequent enforcement of restrictive laws and bans in nearby states such as Missouri, Kentucky, Tennessee, and Indiana. Slate has been conducting occasional interviews with the director about changes they have seen since Dobbs. Here are a few excerpts from that article:

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A notable new opinion from the heart of the classical tradition

Pat Smith

On May 25, 2022, the United States Navy-Marine Corps Court of Criminal Appeals (“NMCCA”) handed down an opinion in United States v. Dereck Tabor, No. 202100046. The case involves the unpleasant question of whether encouraging someone via text message to commit self-abuse while lying in bed next to a sleeping child constituted a lewd act upon the child for the purposes of Article 120b of the Uniform Code of Military Justice. See United States v. Tabor, No. 202100046, slip op. at 2–3 (N-M. Ct. Crim. App. May 25, 2022). Ultimately, under military precedent, this becomes a question of whether the acts were committed in the presence of the child, which, in Tabor, turns on whether the child was aware of the lewd acts. Id. at 5. The provisions at issue, which have been amended and restated several times since the promulgation of the UCMJ, have vexed the military courts since they were introduced in 1951. Judge Christopher Deerwester’s opinion for the Court admirably traces the statutory developments and the responses of the military courts over the last sixty years and comes to the conclusion that it is sexual abuse of a child to encourage someone to abuse herself while the child sleeps next to her. 

In and of itself, United States v. Tabor deals with lamentable criminal conduct by a member of the armed forces and a statute that has given the military courts no end of trouble. However, Senior Judge John Stephens’s separate concurrence is worthy of special attention. He begins by acknowledging that “we are supposed to use a textualist approach to statutory interpretation.” Id. at 42. But, in his view, textualism “has contributed to the confusion over the meaning and effect of Article 120b(c) . . . and whether it possesses some penumbric ‘awareness’ element.” Id. To “cut the modernist Gordian knot,” id., Senior Judge Stephens proposes returning to the classical legal tradition. Id. Looking to Adrian Vermeule’s Common Good Constitutionalism, Thomas Aquinas, and Blackstone’s Commentaries, Senior Judge Stephens proposes interpreting Article 120b from the perspective of the common good. See id. at 44–46.

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Symposium: Securing the Common Good

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The classic legal tradition has seen a revival in recent years. There has been a jurisprudential turn amongst US- and European-based scholars to revive this tradition in mainstream academic discourse and to prise conservative legal thought away from classic liberalism, libertarianism, and arid positivism. A core part of this intellectual project has involved probing foundational questions about law and political authority: What is the purpose of law? What justifies law’s claims to authority? How should we conceive of the relationship between the precepts of natural law and posited law?

While these big foundational questions are critically important, also of paramount importance for this project to continue to flourish is answering second-order juridical questions about how the basic precepts of the classic legal tradition are best made concrete under contemporary social, economic and political conditions. While the classic legal tradition is emphatic that questions of institutional design within a polity are within the scope of reasonable determination—provided they are oriented toward the basic charge of upholding the common good—it is nonetheless worth asking if some arrangements may be particularly conducive to this task under current conditions.

This symposium hosts several scholars offering insight into how a legal order might best be ordered to secure the common good. Their remarks are adapted from presentations given at the International Society of Public Law Annual Conference on 9 July 2021.

The first piece, “Myths of Common-Good Constitutionalism” is by Adrian Vermeule and Conor Casey. Subsequent pieces include “Property and the Common Good—Reviving Old Debates” by Rachael Walsh,  “Reclaiming the Natural Law for 21st Century Constitutionalism” by Xavier Foccroulle Ménard, “Rights and the Common Good” by Michael Foran, and “On the Tyranny of Rights” by Jamie McGowan.

Justinian Goes Fox Hunting

Yves Casertano

Perhaps without realizing it, most United States-educated lawyers are familiar with Book II.1.13 of Justinian’s Institutes. Here is the relevant excerpt:

Does an animal become yours when it is wounded and ready to be caught? Some jurists thought it became yours at once and stayed yours till you gave up the chase, only then becoming available again to the next taker. Others thought that it became yours only when you caught it. We confirm that view. After all, many things can happen to stop you catching the animal.

This passage is referenced in Pierson v. Post, a New York case from 1805 that most American law students read in their first-year property law course. Pierson v. Post involved a dispute between two hunters over who was the rightful owner of a fox killed on a beach on Long Island: The hunter who first spotted and pursued the fox? Or the hunter who intercepted, captured, and killed the fox? Apart from its usefulness in introducing law students to the complexities of property rights, Pierson v. Post undoubtedly owes its place in the first-year law curriculum to its amusingly old-timey facts (a fox hunt in Long Island!) and the playfully flowery prose employed in the opinions, particularly the dissent (“[W]ho would keep a pack of hounds; or what gentleman, at the sound of the horn, and at peep of day, would mount his steed, and for hours together, ‘sub jove frigido,’ or a vertical sun, pursue the windings of this wily quadruped, if, just as night came on, and his stratagems and strength were nearly exhausted, a saucy intruder, who had not shared in the honors or labors of the chase, were permitted to come in at the death, and bear away in triumph the object of pursuit?”)

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The risks of angelology for lawyers

Pat Smith

Anna Lukina proposes an interesting thought experiment for considering the law that exists in wicked states, like Nazi Germany, the Soviet Union, or the so-called Islamic State. She proposes looking at the fallen angels, at demons. She argues that demons have a need among themselves for hierarchy and indeed for rules. The world of demons, she notes, is not a world of chaos; there is still order among the demons. By analogy, a human community ordered toward evil ends has the same need. While she acknowledges that, by Aquinas’s definition of law, the law of an evil regime will be defective, she suggests that its law may well be effective as a coordination mechanism. 

However, Lukina’s angelology has some problems. These problems, I think, lead ultimately to problems for Lukina’s argument. The crux of the matter is this: Lukina assumes—or seems to assume—that the bad angels establish some order among themselves in response to a need for order. She suggests that they band together and coordinate through rules, even if the ends they pursue are vicious. (An understatement.) However, Lukina does not account sufficiently for the created nature of angels versus men. “Quia parvus error in principio magnus est in fine”—“A small mistake in the beginning is a big one in the end” (QD de Ente et Essentia, Prooemium).

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Notes on the Ius Commune – Part I: The Hydra of Legal Positivism

Rafael de Arízaga

Marx and Engels famously wrote in The German Ideology that «hundreds of earlier writers» (earlier, that is, than Max Stirner) agreed that «right originated from force» — i.e., from violence.

Anyone surveying the last 350 years of the history of jurisprudence may be excused for agreeing with them. It has been a history of monstrous heavings and shakings, where the law has been taken up and wielded as a tool for all kinds of delirious and utopian schemes. The common thread has been the demolition of the political-juridical principles of the prior order, which have been torn down, gutted, and redefined one by one. The justification for this razing of our juridical bastions has generally been connected to a claim that those old structures were offensive to the «rights of man». A claim about rights — a claim of justice — is thus at the heart of Modernity. But it is a claim of a perverted, defaced justice. «If the essence of “modern” culture is voluntarism (which is the intimate secret of rationalism)», wrote Cornelio Fabro, «one should not be astonished if the truth is then identified with action and right with force … The crisis of the world is a crisis of rights, in that it is first and foremost a crisis of their foundation, that is, of principles».1

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Deference and Determination

Adrian Vermeule

In his remarkable and underappreciated book on Natural Law in Court, Dick Helmholz observes that when moderns turn to the subject of the relationship between natural law and positive law, they immediately focus on the question whether the former in some sense “trumps” the latter in cases of irreconcilable conflict. To the classical lawyer, however, that question was not central. To be sure, as early as the Institutes of Gaius it was said that “changes to civil law can take away rights belonging to civil law (jus civile), but not rights belonging to natural law (jus naturale)” (I.158). But natural law had many other roles detailed by Helmholz, roles much more central in actual practice, such as supplying interpretive principles and default rules for construing statutes, supplying principles of just procedure, and suggesting remedies.

More broadly, for the classical lawyer, the whole framework within which to discuss the relationship between natural and positive law was different, centering on their complementary roles rather than on potential conflict. The positive law, the ius civile, was understood as a set of rational ordinances promulgated by the public authority for the common good —that is, in order to give more specific content to the general principles of the natural law. In a famous passage, Aquinas distinguished two ways in which positive law might be derived from the natural law:

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