Excerpt from Constitutional Illusions and Anchoring Truths - The Touchstone of the Natural Law by Hadley Arkes
The Natural Law – Again, Ever
A dear friend, who has done premier work in the neural sciences and several books on philosophical psychology, remarked that he wanted, as the epitaph on his gravestone, “He died without a theory.” A former colleague of mine remarked that I had a “theory” of natural law. But I can join my friend in saying that I, too, have no “theory.” To say that someone has a “theory” of natural law is to suggest that an observer, looking on, can see played out before him people seized with “theories” – that he may stand there, in a wholesome detachment, seeing theories of various sorts whizzing past. From that vantage point we are encouraged to make judgments about the theories, or fragments of theories, that are plausible or implausible, right or wrong, true or false. I said then: Just tell me the ground on which you are making those judgments about the theories that are plausible or implausible, true or false, and you would have been led back to the ground of what I understand as the natural law. For you would have been led back to the ground on which we have confidence in the things we can truly know about the properties of propositions, about the statements that are true and false, and finally, then, about the things that are morally right or wrong. You would be led back to what Blackstone called “the laws of reason and nature.”
Many high-flown things have been said about natural law, including many high-flown mistakes by people rather accomplished in the law. And so Richard Posner, a legend in his own time as professor and federal judge, has suggested that “the survival of the fittest” may be taken as an example of “natural law,” because it purports to describe a law of behavior that finds its source in the “nature” of human beings.1 By this reasoning, infanticide and genocide seem to be a persisting, intractable part of the human record, and so it seems plausible that they spring from something deeply planted in human nature. And yet, natural law has ever set itself against the killing of the innocent.
Spinoza identified natural law with laws of nature that governed the ways of each individual thing. And so, as he said, “[F]ishes are determined by nature to swim, the large ones to live off the smaller; therefore fishes are using this greatest natural right when they possess the water.”2 This may be called the Kern and Hammerstein theory of natural law: fish gotta swim/birds gotta fly. But as one commentator, the redoubtable Samuel Pufendorf, rightly put it, it was a mistake to confound these meanings of natural law, to confuse the laws of determinism with “laws” and “rights” in their moral significance.3 It was especially inapt to attribute a moral intention, or a moral understanding, to “animals that are not endowed with reason.” The fish may swim, but it would be hard to attribute to them the understanding that they were engaging their rights as they glided about.4
Over a hundred years earlier (in 1539), Francisco de Vitoria rejected a comparable argument, to the effect that the stars had a natural right to shine, and the sun to emit light. By that reasoning, as Vitoria had pointed out, we would be doing “an injustice against the sun” by closing the blinds and blocking the light.5 And of course, in these arguments, Pufendorf and Vitoria had been preceded by Aquinas.6
These are all venerable confusions, but it is time we stopped falling into them, for they have been persistently countered, with compelling reasons. The expounders of natural law did not confuse natural law with regularities in nature, or with generalizations about the behavior of humans over time, drawn from the checkered history of our species. Immanuel Kant had warned about that temptation to draw principles of moral judgment from “the particular natural characteristics of humanity” or the “particular constitution of human nature.”7 The teachers of natural law began, rather, with an understanding of the things that were higher and lower in human nature. Which is to say, they had to begin with an understanding of what was in principle higher or lower. On that point, they could take their bearings in part from Aristotle, on the things that made human beings decisively different from animals. Animals could emit sounds to indicate pleasure or pain, but human beings could “declare what is just and is unjust”; they could give reasons over matters of right and wrong.8 In the culminating lines of his First Inaugural Address, Lincoln appealed to “the better angels of our nature.” He could invoke the understanding of what was higher and lower in the nature of human beings.
With Aristotle and Lincoln we had an appeal to what could be called a “commonsense” understanding: We would begin with the kinds of things that were accessible to ordinary folk, without the need for any specialized, scientific vocabulary. That kind of perspective found its understanding of the “human” by separating human things from the things that were subhuman or superhuman. And there it would begin with the things nearest at hand, in the difference between men and animals.
What seems to come as a surprise to many accomplished lawyers, who affect dubiety over “natural law,” is that the natural law may take its bearing from this very notion of the things that mark a distinctly human nature. Which is to say, what seems to have fled from the memories of the lawyers are the plainest things that Aristotle taught in that first book on politics and law. And lost in the same way is the recognition of how widely the reasoning of natural law has been absorbed in the common sense of ordinary people. That point was less obscure in a time when the language of moral reasoning was used by political men with the art of speaking to the multitude, or making themselves understood among a large, public audience. When Lincoln spoke of natural rights he spoke of the rights that arise distinctly from human nature, and he spoke in a manner that was instantly intelligible:
Equal justice to the south, it is said, requires us to consent to the extending of slavery to new countries. That is to say, inasmuch as you do not object to my taking my hog to Nebraska, therefore I must not object to you taking your slave. Now, I admit this is perfectly logical, if there is no difference between hogs and negroes.9
Or, in the same speech, the famous Peoria Speech (October 1854), Lincoln noted that even people from the South had not understood black people to be really nothing more than horses or cattle. He noted that, in 1820, congressmen from the South had joined congressmen from the North almost unanimously in outlawing the African slave trade as a form of “piracy” and “annexing to [that crime] the punishment of death”:
Why did you do this? If you did not feel that it was wrong, why did you join in providing that men should be hung for it? The practice was no more than bringing wild negroes from Africa, to sell to such as would buy them. But you never thought of hanging men for catching and selling wild horses, wild buffaloes or wild bears.10
And then, in a passage as moving as it was analytically pointed, Lincoln observed that there are in the United States and territories, including the District of Columbia, 433,643 free blacks. At $500 per head they are worth over two hundred millions of dollars. How comes this vast amount of property to be running about without owners? We do not see free horses or free cattle running at large. How is this? All these free blacks are the descendants of slaves, or have been slaves themselves, and they would be slaves now, but for SOMETHING which has operated on their white owners, inducing them, at vast pecuniary sacrifices, to liberate them. What is that SOMETHING? Is there any mistaking it? In all these cases it is your sense of justice, and human sympathy, continually telling you, that the poor negro has some natural right to himself – that those who deny it, and make mere merchandise of him, deserve kickings, contempt and death.
And now, why will you ask us to deny the humanity of the slave? and estimate him only as the equal of the hog? Why ask us to do what you will not do yourselves? Why ask us to do for nothing, what two hundred million of dollars could not induce you to do?11
Lincoln would deftly bring his listeners back to that original ground, the difference between men and animals. In the hands of Lincoln, that casting of the argument was critical to the point that the rights articulated in the Declaration of Independence had a natural foundation. They were not “rights” that were merely established or posited in any place by the people with the power to lay down rules, like the right to use the library in town or the squash courts at the club. They were rights that would arise for all human beings by nature, and they would remain the same in all places where that nature remained the same. Drawing on the same ancient understanding, John Locke would put the matter in this way:
For men being all the workmanship of one . . . wise Maker . . . and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us that may authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of creatures are for ours.12
And in his own work on the Social Contract, Jean-Jacques Rousseau could add:
Since no man has natural authority over his fellows, and since Might can produce no Right, the only foundation left for legitimate authority in human societies is agreement.13
As the understanding ran then, no man was by nature the ruler of other men in the way that God was by nature the ruler of men and men were by nature the rulers of horses and cows. Therefore, in the second step, if we find a state of affairs in which some men are ruling over others, that situation could not have arisen from nature. It must have arisen from convention, agreement, or consent. To deny that understanding, said Jefferson, was to suggest that the “mass of mankind” had been “born with saddles on their backs,” and that a favored few had been born “booted and spurred, ready to ride them legitimately, with the grace of God.”14
Even in this age of “animal liberation” we do not find people signing labor contracts with their horses and cows, or seeking the “informed consent” of their household pets before they authorize surgery upon them. But we continue to think that beings who can give and understand reasons deserve to be ruled with a rendering of reasons, in a regime that elicits their consent. And yet, in our own day, these classic arguments, grounded in the plainest things we can know, have actually been derided and rejected by the orthodoxies now dominant on the American campuses. The fashionable doctrines of postmodernism and radical feminism have denied that we can know moral truths, let alone truths that hold across different countries and cultures. And at the foundation of everything, the exponents of these doctrines often deny that there is really a human nature. What we take to be human nature they regard as “social constructs” that vary from one place to another according to the vagaries of the local cultures. I have had the chance to address this problem in another place,15 but it is worth noting yet again that the people who take this line nevertheless keep casting moral judgments across cultures: They condemn genocide in Darfur, as they had condemned a regime of apartheid in the old South Africa, and they seem able to discern “wrongs” done to women. In fact, they seem to be able to recognize women when they see them, even in exotic and primitive places. And so, in the world of the postmodernists now on the campuses, there are human rights to be vindicated all over the globe, but strictly speaking there are no humans. For there is no human nature. And since there are no moral truths, there are no human “rights” that are truly rightful.
If we follow again Aristotle’s understanding, the nature that is enduring becomes the source in turn of laws that spring enduringly from that nature. Aristotle would speak then about the law that is peculiar to any place or people and the kind of law that would be true in all places. And Cicero could write then in his Republic that “there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times.”16 The late Heinrich Rommen drew upon recognitions of this kind when he remarked of the natural law that it was “an imperishable possession of the human mind.”17 It was an imperishable part of the things we could know, either because there was something permanent and enduring in the truths that it grasped, or something enduring in the nature of a creature that had a distinct access, through his reason, to those truths. It should occasion no surprise then that, in countless ways, those truths break through in the most ordinary cases. A visitor from London gets off a plane in New York, and we do not think we have to look at his passport, or take note of his citizenship, before we protect him from an unjustified assault in the street. But we seem to understand that the same man may not take himself over to the City College of New York and claim admission, or claim the same, subsidized rate of tuition that the people of New York are willing to make available to citizens of New York. The latter is a claim or right that arises in a particular place, out of a particular association (like the right to use the squash courts at Amherst College). But the right to be protected against an unjustified assault is a right we would expect to be respected in all places by governments that purport to be decent and lawful governments.
During the recent, tumultuous demonstrations on immigration, we found many illegal aliens and their sympathizers carrying banners urging the conferral of citizenship even on those who came to this country illegally (in violation of the “positive laws”). What the demonstrators were arguing, I take it, was the rightfulness of conferring citizenship upon them quite apart from what the positive law had stipulated. They themselves were not citizens, but they wished to be, and they believed they had a rightful claim to be recognized as citizens. But again we may be surprised by the obvious: Since these people are not citizens, the “rights” they are invoking cannot spring from any rights they possess now as citizens. They must be invoking an understanding of right and wrong that stands quite apart from the positive law, the law that is “posited,” set down, enacted in any place. The demonstrators were evidently invoking a standard of right and wrong that could be posed against the positive laws in judging the rightness or wrongness of those laws. In other words, they were appealing, in effect, to an understanding of natural right or natural law. And once again, they were doing it without any particular awareness that they were doing anything distinctly philosophic or juridical.
In the same way, we find that ordinary people show a commonsense understanding of the properties of a moral argument, even if they have not had a college education. And so, without making too much of it, people seem well aware of the difference between the things that are of the day, evanescent, and the things that are permanent, the things that are always. Or they grasp the difference between the things whose goodness is merely contingent upon their results, as opposed to things good or bad in themselves. Even people who have never been instructed in philosophy, and do not have the terms or the jargon, are aware of things whose goodness and badness is contingent on matters of degree and circumstance. They may readily grasp that the taking of an alcoholic drink is not always harmful; that it matters notably if it is taken in moderation, or taken in excess, without restraint. But we do not find the same people saying that “genocide, if taken in moderation, may be harmless or inoffensive.” Ordinary people may have a keen sense of those things whose wrongness will not be effaced by matters of degree and circumstance. In that vein, we may find ourselves raising the question of whether racial discrimination – the willingness to assign benefits and disabilities to people solely on the basis of their race – is in principle wrong or merely contingently wrong, depending on its result from case to case. If it is in principle wrong, we would be led to conclude that it is wrong even if we do it just a bit of the time or, as the saying goes, that “we take race into account” at the margins of certain cases. Imagine saying that “it is wrong to kill on the basis of race, but perhaps legitimate to ‘take race into account,’ to let any decision on killing hinge on the matter of race.” And so, if it is wrong in principle to make decisions on admission to universities hinge on race, then it would be quite as wrong to “take race into account” in making decisions in marginal cases. Just how we show that something is indeed in principle or categorically wrong in that way is a matter that may run well beyond the facility of the man on the street. And yet there is, without doubt, an awareness among ordinary people that there are certain things so wrong that their wrongness will not be diminished even if they are done only occasionally, in small doses.
It is one of the oddities of our recent experience that we can count on ordinary people to have the sense of these things, even as academics contrive theories to talk themselves out of these moral recognitions. But that may confirm the ancient truth that these are the kinds of things that we are simply constituted, in our nature, to understand. That lingering truth may account for the willingness of that eminent jurist Antonin Scalia to be open to the possibility of natural law, even as he has been rather scathing in rejecting natural law as a plausible scheme for judging in our own law.18 One gathers that, for Scalia, the telling mark against natural law is that it inspires too ample a variety of theories and interpretations. But as we have to come to see in other domains, the mere presence of disagreement cannot be taken itself as proof that there are no truths to discern. Still, even a generation of Founders who were quite clear about natural right and natural justice could find certain advantages in a written Constitution. Many of them thought, with Scalia, that a written Constitution, published and confirmed over the years, would make it far easier for the public and for lawyers to become clear on the meaning of the “fundamental law.”
But as I have tried to show, with a certain persistence in my own writing, none of this dispenses with the need and the utility of natural law reasoning. At almost every practical turn, as we try to apply the Constitution to the cases that come before us, we find the need to move beyond the text of the Constitution to those premises, or principles, that were antecedent to the text.19 They were the first principles of “lawfulness,” so fundamental that few people thought it necessary even to state them. (One of them, as we have seen, was the principle that barred “ex post facto laws.”) But in their axiomatic quality, they touched the first principles in logic or the “laws of reason.” James Wilson, one of the truly premier figures among the Founders and the members of the first Supreme Court, put it most aptly when he observed that, as we sought the ground of the law, we were brought to nothing less than the “principles of mind” or to the grounds on which we can claim truly to know anything.20 The first generation of jurists made these moves with little strain. And yet, it seems to come as a surprise to many jurists and lawyers today that they are relying on these axioms of reason when they are “doing” law, or that these axioms of reason are indeed at the foundation of what the Founders understood as the “laws of reason and nature.”
Among our current jurists, Justice Scalia has invoked those grounding truths with the most telling effect, even while professing his deep skepticism or wariness about natural law. As we shall see in a moment, Scalia, too, has had to make appeals to these canons of reason. That may be but another way of confirming that even the presence of a written Constitution does not relieve us of the need to deliberate in this manner, with a discipline of reason that was there, after all, to guide the framers even as they set about the task of drafting a constitution. And surely we have had ample experience by now to know that we have encountered some of the deepest disagreement over the meaning of terms in the most familiar passages in the Constitution – for example, laws “Impairing the Obligation of Contracts,” or violating the Due Process of Law, or abridging the Equal Protection of the Law. We have seen judges fully willing to insist that a Constitution that refers at several points to Capital Offenses somehow, in its truer meaning, precludes capital punishment. On the other hand, as we shall see, some of the precepts or principles of natural law are so firmly in place, so bound up with the axioms of our reasoning, that there is no serious dispute about them. Nor is there any sense that they are “hazy,” vague, incapable of being grasped and applied in the most practical way. In fact, these axioms are so woven in with our understanding that we may no longer even be aware of them as first principles.
In that vein, one of the first things we understand about the domain of moral judgment is that we cast judgments only on those acts that take place in the domain of freedom, where people are free to choose one course of action over another. As Thomas Reid observed, then, one of the first principles of moral reasoning is a proposition I have recast in this way: that we don’t hold people blameworthy and responsible for acts they were powerless to affect.21 If Smith is thrown out the window and on the way down lands on Jones, we don’t hold him responsible for an assault. If Smith was born after the crime was committed we take that as powerful evidence of his innocence. If Smith was acting under hypnosis, so that his acts were directed by someone else, and sprung from no reasons or motives of his own, we take those facts as diminishing or dissolving his fault. If Smith met some clinical test of insanity, if it could be shown that he was not really in control of himself, that too would argue against his guilt. All of these are but instances informed by the same principle. As it turns out, there are no contingencies or circumstances in which that underlying principle will fail to be true. And yet from that proposition may spring, as I say, things like the insanity defense or the wrong of people suffering discrimination over something like their race, which is beyond their control.22
But of course “race” is not entirely beyond one’s control: there are many black people of light skin who “passed” for white, and in this age of many mixed racial marriages, we find offspring who have choices in the racial definition they offer of themselves. The wrong of racial discrimination reaches a slightly different variant with the same ground of principle. For the issue is bound up with the enduring question of “determinism” as the radical denial of “freedom.” I have argued this matter at length in other places,23 and it may be enough here to offer this more compressed account. Behind the will or passion to discriminate on the basis of race is a species of “determinism”: the notion that race exerts a kind of deterministic control over the character and moral conduct of persons. Under this persuasion people may slide into the assumption that if they know someone’s race, they can draw some plausible moral inferences about him: whether he is, on balance, a good or bad man; whether his presence in the firm or the neighborhood would improve the business or the community, or whether that presence would have a degrading effect. To know someone’s race, then, on these premises, is to know something about that person that would mark him, with a high probability, as being fit or unfit for any place, more or less deserving of hiring and promotion. In short we would have the clearest ground for assigning benefits and disabilities to people on the basis, decisively, of their race.
But if this sense of things were true – that we are “determined” or controlled in our conduct by our race – then none of us could plausibly bear responsibility for our own acts. It might be said, in this respect, that the willingness to discriminate on the basis of race denies that moral autonomy, or freedom, that is the very premise of our standing as “moral agents.” If we were not in control of our own acts, we would never deserve punishment at the hands of the law – and neither would we ever deserve praise. And so in all strictness it could be said that if this notion of “racial determinism” were not wrong, then nothing literally could ever be “wrong,” for there would be no plausible standards of right and wrong to which persons might be held accountable. The whole language and logic of moral judgment, and of legal judgment, would be stripped of its meaning. These words “right” and “wrong” would be reduced to the oddity of words without meaning or function. They might imply a vague approval or disapproval, but not strictly a ground for casting judgments of right and wrong on other people.
When understood in this way, the wrongness of racial discrimination is anchored in the very logic of law and moral judgment. The wrong then is not merely “contingent” on circumstances, or on its effects in any case, but is categorical: There are no circumstances under which it fails to be wrong. That sense of the matter would stand in sharp contrast to the way in which the case against racial segregation was made in the federal courts, in that celebrated pattern of litigation carried through from the 1930s to the 1950s, with Brown v. Board of Education. And so the argument was heard that discrimination in colleges and law schools would be wrong because black students would be deprived of the acquaintances and “contacts” that would enlarge their horizons and the prospect for their careers.24 Or with the Brown case, the argument was made that the separation of children on the basis of race would impair the motivation of black children to learn and, with that, their performance in school.25 Never mind that there were cases of all-black high schools, with motivated pupils, families, and teachers, that went on to produce many black people for professional life.26 And never mind, too, that these conjectures were inherently probabilistic: In the nature of things, one could not know for sure that, by bringing together people of different races, the mixture would beget affection, conversation, and friendships carried over into business. These were all predictions quite hostage to the results. And the radical defects in this mode of argument would make themselves manifest as soon as one posed the question in this way: If we separate students on the basis of race and their reading scores go up, would that mean that the racial segregation had ceased to be wrong? Or are we inclined to say, rather, that the segregation is wrong in principle? I once offered the example of the redoubtable Cecil Partee, the legendary black ward committeeman in Chicago. In Partee’s account, he had graduated from the University of Arkansas in 1938 near the top of his class, and he applied to the law school. But Arkansas would not permit blacks to attend the law school of the public university. The state offered instead a voucher that would permit Partee to pursue his studies in law schools outside the state. And so, barred by law from the law school of the University of Arkansas, Partee was compelled to choose instead between the law schools of the University of Chicago and Northwestern. As Partee later put it, “I laughed all the way to Chicago.”27 Cecil Partee did not suffer a material harm as a result of the policy of segregation in Arkansas; but he was “wronged.” He was treated according to the maxims of an unjust principle.
To take the matter from yet another angle, a sober reckoning of violent crime in New York or other cities would point to a clear “demographic” cohort, quite likely to produce assaults well beyond the levels shown by other groups. Young black and Hispanic males, between fourteen and twenty five, are far more likely to commit violent, armed assaults than white male accountants or female lawyers in their forties and fifties. If it were a matter strictly of playing the odds, or being governed by the probabilities, it would be entirely conceivable at least to cast an argument on utilitarian grounds for a certain preventive detention, or perhaps “closer official governance,” of young males in this category. Balancing risks against gains, it is certainly arguable that the community would be a net gainer in the lives saved and the families preserved against the loss of productive members. And yet no one would come even close to offering such a proposal for discussion, let alone a serious plan to act upon. When we recoil from a scheme of that kind, the aversion can be explained only by the recognition that a policy of that sort would catch, in its sweep, many innocent people. They may be poor, but they may have no disposition to make their way in life by hurting others. But that is to say, when we hold back from that scheme, we seem to recognize that the features of ethnicity or race, mingled with poverty, do not control or “determine” character. We back into the recognition that we are imputing, even to ordinary folk, a certain capacity to hold themselves back from the ethic that may be dominant in their neighborhood or among their racial group, and reach their own judgments about the things that are right or wrong. To put it another way – without royalties to Immanuel Kant – we are recognizing a certain moral autonomy that must be characteristic of human beings. And it must be indeed the predicate of that freedom we impute to moral agents.
It is another of those curiosities of our own day that the notion of “moral autonomy” has been taken by liberals as the anchoring ground for new rights of sexual liberation. And at the same time, those extravagant claims have stirred a recoil among conservatives. In both instances, the notion of autonomy is gravely misunderstood. We may coherently impute a certain moral autonomy only to moral agents – those creatures who are capable of deliberating about the grounds of their well-being, and giving reasons. But it is in the nature of moral agents also that they have an understanding of right and wrong. They could grasp then, as Aquinas and Lincoln recognized, that there cannot be a “right to do a wrong.” They could grasp, in other words, the things they can have no right to do or to claim in the name of their “autonomy.” To invoke “autonomy” is not to invoke a license for a freedom emancipated from moral restraint, in private or in public. But when we fill in the portrait of that creature bearing this moral autonomy, we are describing again that creature described by Aristotle, standing somewhere between the beasts and the gods. It is the only animal fitted for political life and law because it is the only creature who can frame propositions, grasp the nature of an obligation, and respect a law beyond himself; a law that runs counter to his own inclinations or interests. When viewed through the lens of the American Founders, these are the creatures encompassed by that proposition, as Lincoln called it, “all men created equal.” The political Left in our own day reproaches the American Founders for their putative failure to respect that principle. In that argument, the Founders have been indicted for the accommodations they made with the evil of slavery. But as we have seen, the embarrassment for writers on the Left is that they deny that there is a “nature” that provides the ground for these claims of equality and rights. They take a moral high ground in relation to the Founders, and yet they deny that there are moral truths that reason can know. And so, while they elevate “equality” as a principle, they deny that principle, or any other moral principle, the standing of a truth.
The confusion suffered here by the Left may be bound up with certain confusions suffered by many other people on what it means to regard “all men are created equal” as a self-evident or necessary truth. A “self-evident” truth is not one of those things “evident” to every “self” happening along the street. It was closer to what Aquinas described as a truth that had to be grasped per se nota, as something true in itself. Aquinas remarked that it was one of those “evident” principles of what he called “speculative reason,” a truth that is “the same for all, but . . . not equally known to all. Thus it is true for all that the three angles of a triangle are together equal to two right angles, although it is not known to all.”28 If a person could not grasp the law of contradiction – that two contradictory propositions both could not be true – there would be no way of explaining it to him. For virtually anything we said could be contradicted, and if he thought that everything said was equally plausible – if he could entertain at the same time propositions that were at war with one another – there was nothing he could ever literally come to “know.” If we sought to stage a controlled experiment – say, with a ball rolling down an inclined plane – we might test one plane with a slight angle set against a plane with a steeper angle. We could measure then what effect the steepness of the angle had on the acceleration of the ball. But we would need to understand at once that we were dealing with two different angles – that we have angle A, we might say, set against non-A. If we did not know the “law of contradiction,” we could hardly understand the significance of comparing two or more distinct angles. We would have to know that A does not equal non-A if the experiment is to make sense. If we did not know the “principle of identity,” we might not grasp the importance of the things held constant during the experiments, retaining their identity through changes in positioning. In other words, someone would have to understand these first principles before he could understand an experiment. And if he professed not to understand, say, the law of contradiction, then there would be no way to convey the point to him in the form of an experiment.
That the American Founders understood this matter of truths that had to be grasped per se nota was nowhere confirmed with more eloquence or clarity than by Alexander Hamilton in his opening paragraph for the Federalist No. 31. I have had the occasion to quote this passage before, but it is never out of season to quote it, for it still offers the most compelling example of what that generation of lawyers and Founders understood about the nature of axioms. This is the way Hamilton set up the problem in the Federalist No. 31:
In disquisitions of every kind there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind. . . .Of this nature are the maxims in geometry that the whole is greater than its parts; that things equal to the same are equal to one another; that two straight lines cannot enclose a space; and that all right angles are equal to each other. Of the same nature are these other maxims in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation.29
Hamilton, in this passage, clearly grasped the properties of a “first principle.” The question persistently arises as to what kind of a proposition, exactly, was “all men are created equal” if that proposition really had the standing of a first principle. Some people have regarded it as an inductive proposition – that it is drawn as a generalization from experience, in taking account of the differences between men and animals, differences accessible to people of common sense. But as Thomas Reid pointed out, an inductive proposition claims to offer nothing more than a generalization drawn from experience, and therefore it cannot rise above a statement of probability.30 If “all men are created equal” were really an inductive proposition, it would have to be recast as “Most men are created equal, most of the time.”
In my childhood, in the early days of television, there was a program called Candid Camera, and in one of the early episodes the producers set up a microphone in a mailbox. The mailbox then would engage the people dropping in letters. The mailbox would say something like, “Is it still raining?” And what was astonishing was just how many people, without skipping a beat, would answer and fall into a conversation with the mailbox. It occurred to me recently that we could put the question: If most of us don’t talk to mailboxes, do we make that judgment inductively or deductively? That is, if we are asked why we don’t speak to the mailboxes, are we inclined to say, “They usually don’t talk to me”? That is, do we induce what strikes us as a general rule, likely to be true, as we draw the lessons from experience in the past? Or is it that we grasp something about the nature of mailboxes, and we have no expectation of carrying on conversations with mailboxes, household appliances, or other inanimate objects?
As Reid taught, a “first principle” had to state a “necessary” proposition, and “propositions of this kind, from their nature, are incapable of proof by induction.” They could not be demonstrated by experiments because experiments depend on experience, and “experience,” he said, “informs us only what is, or has been, not of what must be”:
Though it should be found by experience in a thousand cases, that the area of a plane triangle is equal to the rectangle under the altitude and half the base, this would not prove that it must be so in all cases, and cannot be otherwise. . . . 31
The hard fact was that one could not “experience” a necessary proposition. Experience could tell us only of the things experienced, and we have no experience of the future. At the most, we might say that, in certain cases, the future is likely to be similar to the past and yield similar outcomes. That the advent of major league baseball in any city will foster many new jobs and lift the level of prosperity may be a high probability indeed. Still, that relation of cause and effect would not be true of necessity. But that it is “wrong to hold people blameworthy or responsible for acts they are powerless to affect” would in fact be true under all conditions and circumstances, now and in the future. A necessary proposition would hold true at all times, in all cases. When Lincoln said that the American republic began, not with the Constitution, but with that “proposition” that “all men are created equal,” he seemed to regard that proposition as conveying the principle that defined the character of the regime. From that proposition, everything else radiated. That proposition, he said, marked “an abstract truth applicable to all men and all times.” The notion of government by consent, or as Lincoln put it, “the doctrine of self-government,” was, as he said, “absolutely and eternally right.”32 And with that, he left us the clearest sense that this principle, the founding principle of the regime, was nothing less than a first principle, with nothing merely contingent or probabilistic about it.
In the same way that ordinary people reveal a philosophic sense without being quite aware of it, some of my best friends among lawyers tend to back into these first principles even while professing that they cannot reliably know them. One judge I know insists that we should not be legislating on matters of moral consequence in the absence of a consensus – to which his friends respond by asking, “Do you claim to have arrived at that proposition or rule on the basis of a consensus? Have you taken a survey and established that this rule you announce has elicited the widespread, or even unanimous, agreement of the public? If so, we have to report that we didn’t receive our ballots. And if we had, you would not have had any consensus to report.”
But of course this judge had not taken a survey before he announced this proposition, which he evidently regarded as a cardinal point in jurisprudence. To take those lines from Hamilton, he had apparently regarded this proposition as one of those truths “which antecedent to all reflection or combination commands the assent of the mind.” Which is to say, he took it as nothing less than a first principle, from which we could draw a substantial body of judgments in the law. But a principle of that kind could not depend on a consensus or the taking of a vote. And if we can know at least one proposition of that kind, whose claim to our respect does not depend in the least on a consensus or the vote of a majority, we may reasonably expect to know one or two others.
What undoes this offhand gesture toward a first principle on the part of the jurist is that it backs into self-contradiction. It runs afoul of the laws of reason. The nearest variant on this mistake is probably the most familiar refrain, on the political Right as well as the Left, among those who express dubiety about natural law. It usually runs in this way: “If there were moral truths that held universally, they would be acknowledged in all places. The fact that they are not – that we find instead a widespread disagreement over the things that are right and wrong – stands as prima facie evidence that those ‘universal moral truths’ do not exist.” As I have pointed out in another place, that argument really reduces to this proposition: that the absence of consensus or agreement indicates the absence of truth. Now of course I would have to register my own disagreement with that proposition, and on its own terms that should be enough to establish its falsity.
There are no tricks, and this is not a game with words. It is a matter of people simply falling into what the philosophers call a self-refuting proposition. What is odd is to see how many people experienced in law still regard that proposition with evident seriousness, and that some judges are willing to take it as a foundational point in their jurisprudence. There is surely no more telling example on that head than that proposition offered earnestly by Justice Harry Blackmun:
When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus [on the question of when human life begins], the judiciary, in this point in the development of man’s knowledge, is not in a position to speculate as to the answer.33
Actually, there was no want of consensus in the textbooks on embryology and obstetric gynecology on this matter of when human life began. That point was amply established by the Senate Committee on the Judiciary in 1981, when it surveyed all of the leading textbooks in the field.34 Obviously, Blackmun had undertaken no survey to gauge the absence of a consensus; he was simply stating what he took to be a truism. But if he had been alert to the property of propositions he might have recognized that he too had simply backed into a self-refuting proposition. Again, what seems to come as a surprise for lawyers and judges, whether conservative or liberal, is that natural law is bound up with the laws of reason, or the canons of logic. One of the most gifted lawyers this country has produced, a man who made his way into the profession by “reading at law,” gave us the simplest example of natural law reasoning. And in the spirit of natural law, it could be grasped readily even by people without training in law. In a fragment he had written for himself, Abraham Lincoln imagined himself in a conversation with the owner of black slaves, raising the question of how he could justify making a slave of black people:
You say A. is white, and B. is black. It is color, then: the lighter having the right to enslave the darker? Take care. By this rule, you are to be slave to the first man you meet, with a fairer skin than your own.
You do not mean color exactly? – You mean the whites are intellectually the superiors of the blacks, and therefore have the right to enslave them? Take care again. By this rule, you are to be slave to the first man you meet, with an intellect superior to your own.
But, say you, it is a question of interest; and, if you can make it your interest, you have the right to enslave another. Very well. And if he can make it his interest, he has the right to enslave you.35
Lincoln offered, in the most concentrated form, a model of principled reasoning: There was nothing one could cite to disqualify the black man as a human being, and the bearer of rights, that would not apply to many whites as well. There was an apt lesson to be drawn in pointing out that nowhere, in this chain of reasoning, was there an appeal to faith or revelation. Lincoln’s argument could be understood across the divisions of religion or race or class – it could be understood by Catholics or Baptists, by geologists or carpenters, and even by people unburdened with a college education. It could be understood then by ordinary people, using the wit of rational creatures, and in my own experience no one, hearing the argument, has failed to grasp it. For the natural law to function as law, it has to be accessible, fairly commonly, to those creatures of reason who walk among us.
As Aquinas observed, the divine law we know through revelation, but the natural law we know through that reason that is natural to human beings, accessible to ordinary people as creatures of reason. That understanding was carried down over the years to the American Founders through other sources confirming that teaching. James Wilson often cited the formidable Jean- Jacques Burlamaqui in his classic work The Principles of Natural and Politic Law (1748), and Burlamaqui thought it critical to get clear on why natural law could not be dependent on revelation. No doubt, he wrote, “God was at liberty . . . to create or not create man,” and to impart to him quite a different nature. But “having determined to form a rational and social being, he could not prescribe any thing unsuitable to such a creature.” In fact, Burlamaqui suggested that the notion of law and its principles would be subverted if they were thought to depend on “the arbitrary will of God”:
For, if these laws were not a necessary consequence of the nature, constitution, and state of man, it would be impossible for us to have a certain knowledge of them, except by a very clear revelation, or by some other formal promulgation on the part of God. But . . . the law of nature is, and ought to be, known by the mere light of reason.36
Long before Burlamaqui and the teachers of international law, the same point was made by “the judicious Hooker,” as Locke called him. Richard Hooker, in his Laws on Eccesiastical Polity, explained the elementary point that the natural law would be known through that reason that is distinctive to human beings:
Law rational therefore, which men commonly use to call the law of nature, meaning thereby the law which human nature knoweth itself in reason universally bound unto, which also for that cause may be termed most fitly the law of reason.37
But long before Hooker were the Church fathers – vide St. John Chrysostom: “We use not only Scripture but also reason in arguing against the pagans.” And of course, running back to the beginning of the Church, St. Paul in Romans: “When the gentiles, which have not the law, do by nature the things contained in the law, [they] are a law unto themselves” (Romans 2: 14). On the central place of reason, then, in natural law, there is a convergence of teaching emanating from both Jerusalem and Athens, with the moderns as well as the ancients. In fact, as John Paul II and his successor have argued in our own day, the tradition of philosophy coming down from the Greeks has been, as John Paul II said, “the hedge and protective wall around the vineyard” of the Church. For the discipline of philosophy has been critical in helping to discriminate between readings of revelation that were plausible or spurious. John Paul II thought that it was the considerable service of the “fathers of philosophy to bring to light the link between reason and religion”:
As they broadened their view to include universal principles, they no longer rested content with the ancient myths, but wanted to provide a rational foundation for their belief in the divinity. . . . Superstitions were recognized for what they were and religion was, at least in part, purified by rational analysis.38
The tie to philosophy, even for religion, marked the unity of knowledge, and it provided the anchoring point of conviction that there could be no real division between religion and science. As John Paul II observed, “[T]he two modes of knowledge lead to truth in all its fullness. The unity of truth is a fundamental premise of human reasoning, as the principle of non-contradiction makes clear” [my italics]:
Revelation renders this unity certain, showing that the God of creation is also the God of salvation history. It is the one and the same God who establishes and guarantees the intelligibility and reasonableness of the natural order of things upon which scientists confidently depend. . . . 39
I would not want to claim that John Paul II was coinciding with Immanuel Kant in all critical respects; but I would point out that the Holy Father saw no strain in finding the ground of moral reasoning, as Kant did, in the laws of reason, anchored in the law of contradiction. It should not have come as news to writers in our own day, and yet it seems to come as a kind of revelation to discover that “natural law” does not depend on religious beliefs, ever evading the test of reason. Quite to the contrary, natural law has ever been bound up with “the laws of reason,” and the laws of reason find their own touchstone, or their anchoring ground, in the law of contradiction.
By the time we have taken these simple steps, tracing back the tradition, we will have backed into Immanuel Kant’s recognition: that what we mean by the “moral laws” is nothing more than those laws of reason themselves. They are the laws of reason, the canons of logic, that command our judgment in the domain of freedom. For it is only in the domain of freedom that a practical judgment becomes possible. It is only when we have the freedom to choose that we are drawn outward to the standards that govern our choice between the things that are good or bad, right or wrong, just or unjust. Kant used that curious expression “the laws of freedom” to mean the “moral laws.” At first glance that might sound like an oxymoron, for if there are laws governing us we would not be free exactly to do as we wished. But the point rather was that the “moral world,” with the casting of moral judgments, makes sense only in that domain in which people are free to choose one course of action over another. The “laws of freedom” are those “laws of reason” that command our judgment in the domain of freedom. We do not impute wrongs to the movement of rocks in a landslide; we do not say it would be morally wrong if Smith, falling out of a window, fell down upon Jones. The “laws of freedom” would refer then to those “laws of reason” that command and guide our acts in the domain of freedom. But they are “laws” only if they have about them the quality of necessity. And they can have that quality only if they find their ground indeed in the “laws of reason” strictly understood – in propositions we cannot deny without falling into contradiction.
Still, one might ask, How are they “laws” like the “laws of physics”? After all, we cannot repeal the “laws of gravity.” And those strike us more forcibly as laws: laws that cannot depend on our will or intentions, laws that we are obliged to respect because they are forces of nature. In contrast, people are every day violating the law of contradiction; they often find ways of being inconsistent, especially on things that matter to them. The “laws of reason,” anchored by the “law of contradiction,” would be a different species of “law.” And what makes them a species of “law” is that they have the force of being inescapably true. The ceiling does not fall in when we do things that are contradictory. The law of contradiction claims the standing of law because it has the sovereign attribute of being not only true, but true of necessity. It commands our respect then as creatures of reason in the domain of freedom. These are creatures who have reasons for their acts, and beyond that, creatures who may be concerned to describe, in their own acts, a principled course of conduct.
As Aristotle reminded us, we would not assume that all human beings, at all ages or stages of maturity, would have that concern as a matter of high rank in their lives. For those people, as he said, life may consist of a series of disconnected emotional episodes, so that the decision taken yesterday bears no relation to the decision taken today.40 Yet, even ordinary people, not especially reflective, will show that concern in one degree or another; and even if they do not, the main point is not dislodged. To the extent that we would govern our acts by principles of judgment that are true, the standards that are grounded in this way, in propositions that must be true of necessity, have an unsurpassed claim on us. To the extent that we are governed and guided by them, they offer the grounds on which we can give a compelling account of our own acts. And if our acts find their ground in the “laws of reason,” in propositions that are true of necessity, those reasons will hold in all places. They will hold, that is, in all places where human creatures can be found and the laws of reason are intact. Hence the understanding summarized in such a compressed way in the Categorical Imperative: Act only on that maxim fit to be installed as a universal rule.
The subject of this sentence is the unexpressed “You,” a person in the domain of freedom who faces a choice over different courses of conduct. To extent that you allow yourself to be governed by “the laws of reason,” by propositions that must be true of necessity, your acts are guided by a proposition “fit to be installed as a universal law.” If a proposition is true of necessity, then as we say, “perforce” it must be true in all places. It must be universal in its reach or application.
Let me recap quickly and offer an example. We know that we are dealing with a proposition true of necessity when we confront a proposition that cannot be denied without falling into contradiction. The skeptic who denies that we are in the domain of freedom manifests his own freedom to stand apart and refuse his assent to our claim that freedom, as a practical matter, does exist. To the extent that he insists that we are “wrong” or mistaken to assert the existence of freedom – or assert the truth of anything – he does not merely register his feelings or his personal aversion. He is telling us that we are wrong, that we are mistaken. But that move must imply that he has access to standards of reason, accessible to us as they are to him – standards of judgment that would tell us that we are wrong. He has merely found another way of confirming his own access to the “laws of reason.” With these moves he not only backs into self-contradiction; he also confirms the Kantian proof of what we mean by “the laws of freedom” or moral laws: (i) that in some parts of our lives at least we are in the domain of freedom, with the freedom to choose our own course of conduct, and (ii) that we have access to the “laws of reason” in gauging whether the maxims, or reasons, underlying our acts are true or false, right or wrong.
But if all of that is the case, then we would confirm in the same way that proposition I mentioned earlier, as the first implication springing from the logic of morals: namely, that moral judgments cast upon others make sense only if we can assume that people were free to form their own acts; that we may not hold people blameworthy or responsible for acts they were powerless to affect. With but a short step, we may add the implication that springs up for racial discrimination: that we cannot credit the notion that race essentially controls or “determines” the moral character of any person. For under those conditions, no one would be responsible for his own acts, and no one could possibly merit either praise or blame, rewards or punishments. With those elementary points in place, consider one application of the Kantian understanding:
Let us suppose that we have two owners of restaurants in that liberal town called Amherst, Massachusetts, a college town, peopled richly with persons of the most advanced liberal reflexes. The two owners decide to arrange their establishments on the rule that there shall be no discrimination on the basis of race in admitting customers to their places of business. But we know that people may act in the same way even when their conduct springs from reasons or maxims that are strikingly different. Restaurant Owner A is working on the maxim that “it is good to accord the rules of one’s business with the local ethos or the ‘culture’ of that community in which the business is located. It would be thoroughly bad for business in liberal Massachusetts if the word got out that the proprietors of this restaurant were racist, that they were willing to find certain customers undesirable solely on the basis of their race.”
In contrast, Restaurant Owner B works on this maxim: “It would be incoherent to assume that race determines moral character, and that I could draw any interesting inferences about my potential customers based upon their race. It might be reasonable to discriminate, say, on the basis of a dress code, but it would be utterly indefensible to mark my customers worthy or unworthy solely on the basis of their race.”
But then, in the usual license of a thought-experiment, let us imagine that both owners are somehow transported to South Africa during the regime of apartheid. Restaurant Owner A holds to his maxim as one that is eminently portable, but he is now in a different place, with a different ethos, and so the result is that he now flips in his operating rule. All around him people make the most important discriminations based on race, and he will not offend the local culture; he will adopt its racial principles as his own. With Restaurant Owner B there is the same willingness to stick with the same maxim, because it has not been affected by the shift in locale. He still understands that it would be not only wrong, but incoherent, to indulge the assumption that people are controlled or determined in their conduct by their race. The difference, however, is that Owner B’s maxim is grounded in a law of reason, a proposition that is true of necessity. We need not be overly romantic and suppose that Owner B is utterly indifferent to “results.” It may matter profoundly to him that he might not be able to stay in business, and make a living, if he adheres to the maxim that claimed his respect, and governed his acts, when he was in Amherst, Massachusetts. He is bound to understand all of that. It is just that, in all honesty, he still finds that the principle he recognized earlier has not been diminished at all in its validity merely because he has moved from Massachusetts to South Africa. If he would be governed by a moral principle that is true and commands his allegiance, he simply reports that he can do no other. Lincoln once remarked on the young man aspiring to be a lawyer that “if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.”41 Advice aptly and soberly offered to lawyers would not become wildly utopian when addressed to the owners of restaurants.
But what we have then, with Owner B, is the case of an actor in the domain of freedom who accorded his conduct with a maxim fit to be installed as a universal rule. The maxim was as valid in South Africa as in Amherst, and the validity of that maxim was utterly unaffected by the prospect that the results could be dire, that he could fall out of that business. And that is what we may tenably mean by that language, often appearing grandiloquent, that something categorically wrong retains its standing as a wrong even if the results are unhappy and even ruinous.
If that construction is intelligible, then we could see more readily what Kant meant when he said that everything that has standing as a moral principle has that standing as it is drawn as a logical implication from this core: an actor in the domain of freedom, seeking to accord his acts with a maxim grounded in the laws of reason. And so as Kant said, “[W]e ought . . . to derive our principles from the general concept of a rational being as such, and on this basis to expound the whole of ethics.”42 The body of principles we draw in that way may be quite economical or parsimonious. We are not asking, “What do most people around here regard as good or bad, right or wrong?” We would be lifting the bar – which is to say, we would be far more demanding and cautious before we invoke the language of “morality” and impose those judgments as law. But what comes as surprising in another degree is just how much, in our public discourse, or in our moral judgments, may be drawn as implications from this limited, precise sense of the “logic of morals” itself.
In fact, I think we would find that most of our judgments would fall into a class of propositions that are understood readily, even instantly, by ordinary people, even if they have no awareness that they are seeing merely instances of the same, simple principle at work. And what I have in mind are those recognitions, grasped by virtually everyone, of the attributes or conditions that have “no moral significance” and cannot supply the ground then of any adverse moral judgments. To put it another way, the point is so obvious that we may be startled even to hear it raised as a question. If we were told, for example, that a person was tall or short, thin or heavy, that he had dark hair or light hair, would we think that any of these points had given us the ground for any inferences on whether we were dealing with a person who was brilliant or dim, admirable or corrupt, someone who deserved praise or blame? We grasp these points readily, but if there was a need to explain the ground of the understanding, it would lie once again in the problem of “determinism”: We know that none of these features – height, weight, color of hair – “determines” in any way the moral character of any person, and therefore none of them would supply a ground for any inferences as to whether this person deserved to be celebrated or shunned, rewarded or punished.
Traced to its core, this is how we would explain what we mean when we say that these features are utterly wanting in moral significance. But they are but part of a larger scheme that actually does find expression in our law, for the same underlying principle would finally explain why it would be unwarranted to draw adverse inferences about people who are suffering from various disabilities. People quite brilliant may be afflicted with stuttering, or with diabetes, with poor eyesight and tremors. Their maladies may act as barriers to many activities – the stutterer may not work well as an actor or as an announcer on the BBC; the nurse afflicted with poor eyesight may be disqualified to participate in serious surgery. But their disabilities would not bar them from many other occupations, and that sense of things would stand behind the laws that now bar certain discriminations based on “disabilities.” In the infamous case of Baby Doe on Long Island in the 1980s, the child was afflicted at birth with spina bifida and Down’s syndrome.43 The parents, in league with the doctors, refused to provide medical care to this newborn, with the sense that she had, with these afflictions, a life not worth living. The case became difficult to disentangle as the Reagan administration was perpetually stymied in the effort to gain access to the records of the hospital and to determine the ground on which the medical care had been withheld from this newborn. If the situation had been inoperable, the administration would not have been seeking to press people into futile surgery. But if the withholding of care turned on a moral judgment – that people afflicted with Down’s syndrome or spina bifida had lives “not worth living,” lives that could be “terminated” without the need to render a justification – then that was a case that came within the moral understanding that barred discriminations based on “disability.” The “discriminations” in these cases involved nothing less than a willingness to end the life of a person on the premise that a person with these afflictions did not really deserve to live.
In comparable cases, we’ve seen patients who were quadriplegic seek a “right” to end their lives on the claim that their lives were devoid of “dignity and purpose.” In one notable case, of Elizabeth Bouvia in Los Angeles, a court sustained her “right” to end her life on the reasons she tendered – but at the same time commended her for being “brave and feisty.” Not only that, the court awarded her lawyers’ fees for propelling through the court, through the force of her own will and advocacy, a holding that could advance the public interest. The judges were willing to credit her account that her life was fixed now in “uselessness,” and “her existence meaningless.”44 And yet, even without control of her limbs, she had argued and pressed a case receiving high praise from the court. The combination virtually refuted the claims. Even a quadriplegic, dependent on the care of others at every turn, had the means of acting upon her world, and the people around her, with the most pronounced moral effect.
In the cases that keep arising over a “right to die,” the courts are persistently being asked to confirm the rightness, the moral justification, for ending the life of a patient because he may be afflicted with AIDS, or with cancer, and perhaps even with deafness. Deafness could be the most disabling of conditions for a conductor in an orchestra, and there are surely people who will claim that, for them, a life without music is a life not worth living. But to leap then to a moral conclusion – that a person afflicted with deafness has no means of living a life of moral consequence – is to make an extravagant and deeply incoherent move.
A man may have the means of taking his own life, but something else needs to be said in order to establish that it is “rightful” to end any life, even one’s own, on the basis of “reasons” that are irretrievably false and indefensible. And of course it is only when premises of that kind are put in place – that it is somehow rightful to end the life, say, of a patient with AIDS – that the ground is laid for relatives or even strangers to assist in the ending of that life. For if Jones has a “right” to end his life, why should he be deprived of that right when he is incapable of acting himself to end it? Why should he not be free to authorize someone else to act as an agent in vindicating his right? If he happens to be an orphan, or one without relatives or friends, why should an administrator in a hospital not be able to stand in the place of missing relatives and act as an agent in helping this man act out his “right”?
My purpose here, though, is not to probe the deeper argument that is engaged in the matter of suicide, assisted or unassisted. I am only pointing out that what is engaged in these cases is a problem that runs to the same root in principle, on the matter of “determinism.” That point, quite primary and simple, shows itself in instances spread widely in our law and public life. But to put this point into place is to provide the ground for some lessons that may be received as fairly astounding among lawyers and judges who have been the most dismissive of natural law as an enterprise too ethereal, too hazy, to provide any practical import for the law.
We may take again as an example the judgment on deafness and disabilities – the wrong of drawing adverse inferences about any person, or even ending a life, on the basis of deafness. It makes the most profound difference to know that this judgment is anchored in the laws of reason themselves. It is bound up with the rejection of determinism in all of its varieties. But if we come to understand the matter in that way – if we understand just why it would be deeply indefensible to punish people on account of their height, their weight, their deafness, their afflictions – we would understand that this moral reflex of ours does not represent merely some local custom, or some peculiarity of this tribe of Americans. We may ask then, Where in the world would it be wrong to withhold medical treatment from a newborn – or for that matter, from any other person – because he is afflicted with Down’s syndrome or deafness? Would it not be as wrong in Lichtenstein, the Ivory Coast, or New Jersey? I leave aside here the usual array of lifeboat problems in which the deaf person may be expendable because he is the least able to keep watch and be alert to noises at sea. I focus entirely on the matter of withdrawing medical care because one has drawn an adverse inference about the moral worth of a person based on his deafness or Down’s syndrome. And the answer I would earnestly offer is that this act of withdrawing care, on those grounds, would be wrong anywhere, everywhere, where the laws of reason are intact, and where creatures of reason bother to consider whether they truly have reasons to justify their acts.
I would submit then to a candid world – and to some of my friends among the judges – that there is nothing here the least opaque, foggy, imprecise; nothing that depends on the manipulation of words or a rarefied vocabulary. What is offered here is grounded in the first premises of moral judgment, and in things that are readily grasped by ordinary people even without an education in philosophy. And the judgment that is offered here would be concrete, precise, not the least hazy – and universal in its reach.
This matter of assisted suicide offers the thread of connection back to one of my favorite jurists, who has expressed often his dubiety about natural law, even as he has expressed also his reverence for the moral tradition from which natural law has sprung.
I have in mind that estimable man of the law Antonin Scalia. And I would bring this exploration of natural law to its last phase here by recalling that forceful dissenting opinion he wrote in January 2006 in Gonzales v. Oregon, on the problem of assisted suicide in Oregon.45 In that case, a bare majority on the Court came down on the side of permitting the state of Oregon a certain latitude, under the scheme of federalism, in allowing doctors to prescribe drugs, in certain supposedly “terminal” cases, to hasten the death of the patient. By now the news has diffused widely in the land that the diagnosis of a “terminal condition,” with the patient having six months to live, has been notoriously, or happily, unreliable. The law in Oregon contained all kinds of measures designed to confine the decision, but we are all wise now to the fact that those so-called safeguards, so precise in their construction, virtually dissolve in practice. They dissolve in the face of a determination on the part of some patients and their relatives to end their lives, with the complaisance of certain doctors in making themselves instruments of that policy. No matter the paper barriers cast up to provide assurances here; at the end of the day the policy results in doctors willing to make themselves agents in administering death.
In order to sustain this arrangement, the Supreme Court itself had to get past some considerable barriers of the federal law, not the least of which was that the Court itself, only several months earlier, had confirmed that the control of drugs, or the regulation of “controlled substances,” was preeminently a matter of federal jurisdiction.46 That jurisdiction by the federal government also seemed to repel, quite clearly, any attempt of the various states to install their own regime for the regulation of drugs.
In the case from Oregon, even the judges in the majority had to recognize that they needed to come up with a refined explanation to show why the exclusive federal control of drugs suddenly yields to this permission for the states on assisted suicide. The argument offered by Justice Kennedy was that it was not clear, under the statutes, that the Attorney General had the authority to make a judgment about the proper and improper uses of drugs – which is to say, the proper or improper ends of medicine.47 The judges complained also that this was a decision that the Attorney General took without bothering to consult the Secretary of Health, Education and Welfare or anyone with any recognized medical competence.48
But these points were met by Justice Scalia, in dissent, in a withering rebuttal. It was not clear why the Secretary of Health and Human Services should be armed with an authority to pronounce on the legal or illegal use of drugs, and put himself in place of the chief “law officer” of the federal government.49 But even more critically, the judgment on assisted suicide was not a medical or scientific judgment. It was a moral judgment on the rightness or wrongness, the justification or the want of justification, for assisted suicide.50 Science, by its own profession, does not claim to reach to the knowledge of moral things, to pronounce on the truth or falsity of moral propositions. If it has become clear now that the regulation of drugs is distinctly, and solely, under the authority of the federal government, then perforce, as a matter of necessity, it must fall to an officer of high standing in the federal government to pronounce on the meaning of federal law. That person figures to be the Attorney General, which means that he has to pronounce on the question, standing at the head of all questions, and bound up with the authority to engage in licensing: namely, the question of just what is a legitimate or illegitimate purpose for these drugs. In addressing that question, the Attorney General, John Ashcroft, did not invoke any sentiments merely personal: His staff recalled, in a memo, the understanding of medical ethics running back to Hippocrates. Justice Scalia summed up the memo:
[V]irtually every medical authority from Hippocrates to the current American Medical Association (AMA) confirms that assisting suicide has seldom or never been viewed as a form of “prevention, cure, or alleviation of disease,” and (even more so) that assisting suicide is not a “legitimate” branch of that “science and art.” See OLC Memo, App. to Pet. for Cert. 113a- 130a. Indeed, the AMA has determined that “physician-assisted suicide is fundamentally incompatible with the physician’s role as a healer.”51
In his opinion for the majority, Justice Kennedy was compelled to acknowledge this traditional teaching, settled over two thousand years. But in a curious move, so reflective of the stylish relativism that now prevails among the judges, Kennedy reduced this traditional understanding to – as he put it – “one reasonable understanding of medical practice.”52 In this construal, the Attorney General, by his own order, was stamping as criminal those people who simply had another reasonable view of what could be called “medical practice.” And by construing the case in this way, the judges gently conferred, on the scheme of assisted suicide, a new standing as immanently plausible and therefore legitimate in the eyes of the law.
Justice Scalia was struck by the same move to reduce the traditional teaching to but one among a number of contending views, each equally plausible. And yet, it was curious that Justice Scalia did not meet that argument head on with the most direct and important refutation that had to be summoned here. His rather oblique approach may have revealed the hesitations of a lawyer and judge who has been diffident, to put it mildly, about the claims of natural law and moral reasoning. He sought then to steer around the main moral argument: The state of Oregon had come to the judgment that the practice of medicine may be extended to encompass assisted suicide, but that move, he said, “does not change the fact that the overwhelming weight of authority (including the 47 States that condemn physician-assisted suicide) confirms that [it has not] yet been so extended. Not even those of our Eighth Amendment cases most generous in discerning an ‘evolution’ of national standards would have found, on this record, that the concept of ‘legitimate medicine’ has evolved so far.”53
Kennedy asserted that the traditional view constituted but one plausible, reasonable view. Scalia simply asserted the opinion of others that the judgment reached in Oregon has not come to be held yet by most other states. That is hardly the answer that the challenge demanded. For example, consider any proposition that has standing as a necessary truth, a truth that cannot be contradicted without falling into contradiction. We can take, as the simplest case, the skeptic who asserts that there is no truth. But that proposition he offers us, not as an opinion, but as an emphatic truth. Let’s suppose that a judge says, “The claim that there is truth is one reasonable understanding among others.” Now would we rebut that claim by taking a survey in the room and reporting that forty-nine out of sixty people think there is truth? Or would we seek to show, more aptly, that we are dealing with a necessary truth that cannot be denied without falling into contradiction?
The challenge from Justice Kennedy would have been met more aptly by arguing that this traditional view of the ends of medicine was not simply “one reasonable” view among many, but the only view that reason itself could disclose and justify. But in order to make that argument, Justice Scalia would have had to appeal to an understanding of moral truth that was not finally dependent on a consensus of opinion. Yet any move of that kind, toward objective moral truths, began to touch, of course, on some version of . . . natural law. And Justice Scalia has professed himself to be uneasy about natural law, to put it gently.
But how might the challenge of Justice Kennedy have been met more aptly by an argument cast in terms of natural law? One possibility is that a response could have been made in the version of natural law offered by John Finnis and Robert George.54 Finnis and George appeal to “basic goods” – those goods that are immediately graspable as grounds of action, without any contrived, other interests or concerns to explain them. It would be rather like asking, Why did you fall in love? Why was loving another person worth doing? In the scheme marked off by Finnis and George, the interest in preserving life is one of those basic goods, which require no other reason to explain. And at the same time it is woven in with many other goods. If we need compelling reasons to deprive a person of his liberty, liberty is not even a plausible concern if there is no life, and we should require reasons even more compelling before we deprive people of their lives. People look both ways as they cross a street, absorbing into their acts the premise that their lives are worth preserving. We have campaigns to gather food and contributions for places in Africa beset by famine, and no one needs to explain why it is good to concern ourselves with the preservation of life in distant places, among people we do not know. I used to tell my students of directions that I would give babysitters when they came to sit for the evening with our two young boys. I’d point out that I had a new manuscript on a shelf over my desk. In case of fire, I said, be sure to get that manuscript out of the house. And by the way, make sure you get Peter and Jeremy out as well.
That line was taken as the joke it was because everyone understood that life came first. It was this sense of natural law that we find reflected in the radio shows of my own childhood in the 1940s – for example, in Jack Benny’s famous line when he was held up at the point of a gun by a burglar. The burglar said, “Your money or your life.” After a long interval of silence, the burglar repeated the question – and elicited Benny’s famous reply: “I’m thinking it over!”55 That joke would not have worked unless a mass audience, on radio, could be counted on as knowing that the interest in life preceded, logically, compellingly, any interest in property.
Scalia might have replied in this vein as well. It is simply unimaginable that we could find an ambulance service, or an emergency medical unit, constituted on the premise that its task was not to heal and to save, and to whisk its patients to places where their lives could be saved. It would be inconceivable to imagine an ambulance service constituted on the premise that, as soon as it gets to the scene, its mission is to dispatch the patient, to speed him to a comfortable death, to relieve him and his relatives of further suffering and debilitating delays.
We know that we have people seriously persuaded by the claims of the Hemlock Society that there is something like a “right,” a genuine “right to die.” It is entirely imaginable that a young woman, affected by this persuasion, may find herself to be a babysitter in circumstances rather like those I have described. Let us suppose that she has the prospect of getting the children out of a burning house or leaving them there to perish. If the sitter were really convinced that death is a good, a good that stands on the same plane as life, then she would have a moment of perplexity: Why, after all, should she not choose, for the children in her care, what she regards as a genuine “good” – namely, the good of death? But of course no court, and no public, would acquiesce in such a claim. And when they refuse to credit that curious argument, they would back into the recognition that the choice of death simply cannot stand on the same plane as the choice of life, as though death were in fact a rival good to life. There is only one choice reasonable for a babysitter to make, as there is only one choice that functional people would regard as reasonable in the circumstances. And yet that point seemed strangely inaccessible to the judges in the majority in Gonzales v. Oregon. In the haze they were pleased to cast about them, they seemed to make of themselves, as Henry James would say, the victims of perplexities from which a single spark of direct perception might have spared them.
But at the same time, Justice Scalia came to the edge of a remarkable threshold for someone who has expressed over the years a certain diffidence or deep skepticism over natural law. Three times in the course of his opinion Scalia remarked that the position taken by Attorney General Ashcroft, the position affirming the traditional moral understanding of the ends of medicine, was “the most natural interpretation” of the regulation and the statute.56 But what could it mean to say that the preference for the traditional moral understanding was “the most natural interpretation” for the regulation and the statute governing controlled substances? The phrase could not refer simply to the most natural reflexes of people – for example, that people favor their own, and protect their own children. Most do, but regrettably, some will kill their children. As Scalia knew, the Attorney General’s predecessor in the Clinton administration, Janet Reno, had taken quite the opposite view – that nothing in the statute barred the state of Oregon from installing a policy in which doctors could indeed become accomplices in procuring death for their patients. When Scalia said then that Ashcroft’s interpretation was “the most natural” interpretation, I surmise that he must have meant the most reasonable, the decision most in accord with the canons of reason. They are also the standards of common sense, the standards we use every day in distinguishing between the things that are reasonable or unreasonable, defensible or indefensible.
When we have put these things in place, I think we would have sketched an understanding of the grounds of moral judgment that are rooted in the nature of “a rational creature as such,” as Kant put it. Kant is not associated with natural law, at least as natural law was identified with the general tendencies that were thought to be characteristic of human beings, or necessary for the “flourishing” of human beings. Indeed, Kant went out of his way to stress that the ground of obligation “must be sought, not in the nature of man nor in the circumstances of the world in which he is placed, but solely a priori in the concepts of pure reason.”57 But at the same time, the principles of pure reason are accessible only to a certain kind of creature – by which some of us would understand a creature of a certain “nature.” From that idea of a creature of reason, in the domain of freedom, facing the task of practical judgment, Kant could draw out the principles of right and wrong that could have the standing of real principles: They would not be true only most of the time, or true under certain contingencies; they could be true of necessity, true then under all conditions, true categorically. As Kant observed, “[N]othing but the idea of the law in itself . . . can constitute that preeminent good which we call moral,” and that idea of law is “present only in a rational being.”58 Once again, only a being with reason can conceive, in the first place, the notion of a “good” or a principle of justice that may override his own self-interest. And when we connect these points, we may understand the fuller force of what Kant meant when he wrote that “since moral laws have to hold for every rational being as such, we ought . . . to derive our principles from the general concept of a rational being as such. . . . 59
There is a danger of being ensnared by the tyranny of labels and missing the substance of the teaching. Kant is not linked to the teachers of natural law, but in the substance of the matter he found the ground of moral judgment in the same nature that provided the ground for Aristotle. The enduring, irresistible fact of the matter, taught at the beginning by Aristotle, was that law itself sprung from the nature of a certain kind of creature. If we are dealing with a world of framing reasons and propositions, and respecting the force of principles or propositions beyond our own appetites and wills, we are speaking of creatures with the capacity for reason. It has taken generations of lawyers to make obscure and to forget the most obvious things around us – or within us. But perhaps those primary things are so easily overlooked precisely because they are so evidently with us.
It frequently happens that some of our friends who are most skeptical of natural law discover that they have been practicing it handsomely for many years without quite realizing it – much like that character in Moli`ere who discovers that he has been speaking prose all his life. It is rather like the man who asks, “Can I order coffee without using syntax?” He may not realize that of course he is using syntax and speaking prose without quite recognizing the conceptual world he inhabits, or the understandings that are woven into his own nature. It is no wonder, then, that we find some of our best natural lawyers among the distinguished jurists who have been the most skeptical of natural law. They may go on to discover, as a late colleague once said, that we have principles we have not even used yet. But for many of us, the task of bringing out those principles and explaining them has become, happily, steady work.
In that work we may find our model again in Plato’s Meno: Socrates feeds the right questions to a slave boy, and – wonder of wonders – the boy is soon working out, step by step, the principles of geometry. As the understanding ran, those principles were already within his comprehension; they merely had to be unlocked. In this charming scheme, knowledge was a matter of remembering. It was a matter of unlocking what is always within us, always there to be discovered anew. And the sense of the matter, experienced by our students today as ever, is that when they discover those things they know, about the grounds of their moral judgment, what is buoying in the experience is the recognition that they have known them all along.