Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. The following essay was submitted by Brian Quigley, Research and Reference Librarian at NSU Shepard Broad College of Law at Nova Southeastern University in Davie, Florida. This post is adapted from a longer article available here.
The classical legal tradition is ever-new. Its history is one of repeated displacement and revival. Stuart Banner identifies several persuasive reasons for the decline in the use of natural law reasoning that began in the late nineteenth century. These include a greater reliance on written constitutions, that law and religion were increasingly viewed as separate domains, a dramatic increase in the volume of legal publishing, and a feeling that the natural law lacked useful content.[1] In the face of these headwinds it is easy to imagine the classical legal tradition becoming a matter solely of historical, rather than practical, interest. Instead, the tradition has been subject to repeated revivals, first in the 1910s and early 1920s, and again—in more sustained fashion—in the 30s, 40s, and 50s as a response to the rise of totalitarianism and the horrors of the Second World War. While our legal culture has changed dramatically in the intervening decades, interest in the classical legal tradition has never fully receded and may be in the early stages of widespread resurgence.
This perennial quality finds poetic expression in one of the classic texts of the post-war natural law revival, Heinrich Rommen’s The Natural Law. Rommen sees a few reasons for the endurance of the natural law tradition. Even when seemingly vanquished from serious academic consideration it has lived on in “the common sense of ordinary men and women.” In everyday disputes fairness and integrity are prioritized over adherence to set rules and legal formalities. This impulse is only intensified when applied to issues of broad societal concern. Rommen notes that “When he becomes interested in issues of economic, social, or political reform, the avowed positivist frequently turns, in practice and as it were unconsciously, to the idea of natural law and to standards of unchanging justice.”[2] The natural desire for justice, however confused or suppressed, cannot be subdued for long. He continues with the following elegant lines: “The idea of the natural law may thus be compared to the seed which, buried under snow, sprouts forth as soon as the frigid and sterile winter of positivism yields to the unfailing spring of metaphysics. For the idea of natural law is immortal.”[3]
When confronted with immortal principles legal theorists are presented with a challenging, albeit fulfilling, task–that of translation. The insights of the classical legal tradition are to be applied to contemporary problems. Indeed, one of the main criticisms of the post-war revival was that it remained too centered upon history and theory. A 1957 article noted that “Even in the Neo-Scholastic tradition, where a concerted effort at translation and integration is going on, too many works presuppose basic courses in scholastic metaphysics and a fingertip knowledge of an involved terminology.”[4] Writing in 1959, Johannes Messner agreed that discussion had been overly focused on the description and justification of principles. The next step would be the “application of the natural law principles to the changing world in the political, social, economic [and] cultural field.”[5]
The post-war years did see a flurry of articles considering American law through a natural law lens. While many concerned high-minded constitutional law issues, others dealt with more mundane topics. A 1949 report by an ABA committee on tax and the natural law held that taxes must be “imposed for a just purpose” and “connected with the common good and proportioned to the current necessity, as is required by legal or social justice.”[6] Property scholars wrote approvingly of contemporary regulations on economic activity. A review of Kaiser-Frazer v. Otis saw that ruling as adhering to “the fundamental natural law principle of the unenforceability of contracts in derogation and injury of the rights of the innocent and unprotected public investor.”[7]
The reasons for the fading of the revival are multifaceted, historically contingent, and deserving of further investigation. Banner posits that as fascism receded the natural law tradition was no longer seen as a necessary antidote. Breen & Strang credit the failure to create lasting institutions.[8] An underappreciated factor may be the difficulties inherent in the process of translation. One must understand classical legal principles well enough to apply them to contemporary problems. These applications must chart a middle path between two errors. The first is to too closely imitate interpretations and solutions from the past that fail to fit the current moment. The second is to read modern theory into the classical tradition.[9] All of this must be done while writing for a general legal audience unfamiliar with this sort of scholarship. A common criticism of the post-war revival was that its key figures spent too much time writing for a specialized and sympathetic audience.
While the movement from theory to practice presents challenges, it also can serve to clarify our thinking and present openings for reform. This is particularly true in the environmental context. The legal order of a given community inevitably shapes how that community regards the natural world. Many common law doctrines have an ecological component. These include the public trust doctrine, nuisance, and – as most fully expressed in the Nordic counties – the right to roam. These precepts reflect an understanding that the sovereign has a right to regulate resources for the benefit of the public, that environmental harms have a nasty habit of traveling, and that access to wilderness areas is a good due to all. Over the last century we have come to a much greater understanding of the complexity and interconnectedness of the natural world and of man’s capacity to commit lasting ecological damage. In response the 1970s saw the creation of the Environmental Protection Agency and the passage of, among others, the Clean Air, Clean Water, and Endangered Species Acts.
A stable and healthy environment is a paradigmatic example of a common good. Pollution, climate change, and the destruction of natural areas affect us all. Indeed, the purposes provisions of environmental statutes reflect their broad importance. Among those of the Clean Air Act is to “protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.”[10] The classical tradition would rightly regard environmental stewardship as a just goal. Jurists would be broadly deferential to legislative and administrative efforts at environmental protection and management. This outlook would have ramifications in areas including statutory interpretation, property, federalism, and standing.
To choose one timely example, West Virginia v. EPA would have been decided differently. The Clean Air Act authorizes the EPA to regulate power plant emissions. Complex procedural history aside, the Court was called on to decide “whether restructuring the Nation’s overall mix of electricity generation, to transition from 38% coal to 27% coal by 2030, can be the “best system of emission reduction”” as defined by the relevant CAA Section.[11] Under the classical legal framework, lawmakers are tasked with promoting the good of the community. Congress delegates regulatory power to agencies because agencies have the scientific and administrative expertise to accomplish complex goals. Reducing emissions though a gradual 9% decrease in the use of coal for electricity generation is a model example of the EPA functioning as intended. Classically minded jurists would be deferential to agency determinations. Barring concerns of basic justice not implicated here, edits to the EPA’s plan would be left to the executive and legislative branches, not the courts.
Instead, the Court ruled against the EPA under the major questions doctrine. Under the MQD, “administrative agencies must be able to point to ‘clear congressional authorization’ when they claim the power to make decisions of vast ‘economic and political significance.’”[12] Problems with this doctrine are many and obvious. The MQD is incredibly vague. Administrative agencies are tasked with trying to predict whether courts will find that a given regulation tackles problems of too great a political significance or economic impact. They are given almost no guidance in doing so. Indeed, it is hard to imagine how a legislature could draft delegations of power resistant to MQD challenge. This vagueness seems to be by design, as it allows courts to interfere with the functioning of administrative agencies at will.
Environmental law remains a young field. Its future will be shaped both by scientific and jurisprudential developments. Much good can be accomplished through thoughtful application of the principles of the classical legal tradition. Environmentalists and classical revivalists can both benefit. Indeed, environmental consciousness and the natural law tradition share similarities on a deeper level. In both instances we are confronted with realities much larger than ourselves. A right relationship with the natural world is one that recognizes its inherent value. This value exists apart from its utility to man and is connected to broader questions of meaning and right. Contemplating these themes can lead to insights of both theoretical and practical importance. A legal culture dedicated to the common good would play an important role in accomplishing a society in harmony with nature.
- Stuart Banner, The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped (2021). ↑
- Heinrich A. Rommen, The Natural Law: A Study in Legal and Social History and Philosophy 117 (1947). ↑
- Id. at 118. ↑
- Natural Law for Today’s Lawyer, 9 Stan. L. Rev. 455, 459 n.5 (1957). ↑
- Johannes Messner, The Postwar Natural Law Revival and Its Outcome, 4 Nat. L.F. 101, 105 (1959). ↑
- Joseph F. McCloy, et al., The Moral Issue, 27 Taxes 9, 10 (1949). ↑
- David C. Bayne, Kaiser-Frazer v. Otis: A Legal and Moral Analysis, 2 DePaul L. Rev. 131, 192-193 (1953). ↑
- See John M. Breen and Lee J. Strang, The Forgotten Jurisprudential Debate: Catholic Legal Thoughts Response to Legal Realism, 98 Marq. L. Rev. 1203, 1253-1256 (2015). ↑
- Adrian Vermeule, The Theory and Practice of Common Good Constitutionalism, Ius & Iustitium (Aug. 8, 2022), https://iusetiustitium.com/the-theory-and-practice-of-common-good-constitutionalism/ ↑
- 42 U.S.C. §7401(b)(1) ↑
- West Virginia v. EPA, 597 U.S. __ (2022) ↑
- Id. ↑