Few of us are lawyers but all of us benefit from law-abiding communities. St Thomas Aquinas defined a law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” There are, Aquinas explained, four different kinds of law. There is an Eternal Law, resident in the mind of God and largely known only to Him, whereby all creation functions. We discern aspects of this in such things as the law of gravity and second law of thermodynamics. There is also the Divine Law—Revelation—given by God to His prophets, best evident in the Ten Commandments received by Moses. Then there is Positive Law, set forth by legislators and interpreted by judges, giving purely human decrees that are constantly changing and dramatically different in various cultures. Setting speed limits or leveling taxes or establishing schools are all illustrations of positive laws.
Finally, there is the Natural Law, rooted in our ability to reason, described by Moses when he gave his final address to the children of Israel, saying: “For this commandment which I command you today is not mysterious for you, nor is it far off. It is not in heaven, that you should say, ‘Who will ascend into the heaven for us and bring it to its, that we may hear it and do it? Nor is it beyond the sea, that you should say, ‘Who will cover over the sea for us and bring it to us, that we may hear it and do it?’ But the word is very near you, in your mouth and in hour heart, that you may do it” (Dt. 30:11-14). Centuries later St Paul, writing the Romans, said much the same: “for when Gentiles, who do not have the law, by nature do the things in the law, these, although not having the law, are a law to themselves, who show the work of the law written in their hearts, their conscience also bearing witness, and between themselves their thoughts accusing or else excusing them” (Ro 2:13-14).
Abraham Lincoln, deeply read in the Bible, illustrated his commitment to the Natural Law in his debates with Stephen A. Douglas in 1858. Douglas championed “popular sovereignty”—allowing the people to decide whether or not to enslave people, making laws purely conventional, rooted in whatever people momentarily desire. He was, in today’s terms, a “pro-choice” advocate of “cultural relativism.” For him, right and wrong were ultimately a matter of power—the power of the ballot box. The majority rules simply because it has more votes. It uses its power to dictate whatever it wants. To Douglas, only positive laws authorized by the people mattered. As Lincoln understood: “When Judge Douglas says he ‘don’t care whether slavery is voted up or voted down’ . . . he can thus argue logically if he don’t see anything wrong in it; but he cannot say so logically if he admits that slavery is wrong. He cannot say that he would as soon see a wrong voted up as voted down. When Judge Douglas says that whoever, or whatever community, wants slaves, they have a right to have them, he is perfectly logical if there is nothing wrong in the institution; but if you admit that it is wrong, he cannot logically say that anybody has a right to do wrong.”
Lincoln, however, insisted there’s a higher law, a moral law, an eternally and universally true standard, that decreed slavery intrinsically wrong. This Natural Law forever supersedes human laws. Lincoln believed that this nation’s Founders set forth revolutionary documents (the Declaration of Independence and Constitution) rooted in “abstract” truths “applicable to all times and places.” He opposed slavery not because he disagreed with the legislators in Alabama or Missouri but because he thought it was immoral— something contrary to the Natural Law. As many legal scholars explain, the same philosophical issues that divided the country in 1860 now divide us when dealing with abortion, same-sex marriage, and the notion that one can decide whether to be a man or a woman. Nor was Lincoln alone in rejecting the legitimacy of slavery. A Supreme Court Justice, Benjamin Curtis, dissenting from the majority opinion in the Dred Scott case, declared that slavery was condemned by the Natural Law and no number of state statutes could make it right.
For many decades Hadley Arkes (a retired professor from Amherst College) has espoused a Natural Law ethic and effectively worked in the political sphere for legislation such as the “born alive infant protection” and “defense of marriage” acts. A secular Jew for most of his life, he recently entered the Catholic Church, influenced by pro-life Christians defending unborn children, concluding the Church is a “truth-telling institution” that opposes relativism. Forty years ago he cogently set forth his views in FirstThings: An Inquiry into the First Principles of Morals and Justice, and he recently reaffirmed his positions in Mere Natural Law: Originalism and the Anchoring Truths of the Constitution (Washington, D.C.: Regency Publishing, c. 2023; Kindle Edition). The distinguished editor of the New Criterion, Roger Kimball, says: “Mere Natural Law deserves to be set alongside C. S. Lewis’s Mere Christianity in its profundity and gimlet-eyed appreciation of the manifold depredations of our relativistic culture, hankering everywhere after false gods. Arkes is a natural teacher, and his deep appreciation of the Natural Law roots of the American Founding make this book an indispensable Baedeker for our amnesiac times.”
Arkes dedicated this book to his late wife, Judy, who remembered Lincoln’s statement that we Americans were conducting a great “experiment” in self-governance. She lamented that it now seemed as if “everything touching the terms of principle on which a people lived, the way we governed ourselves, and the moral codes by which we would try to live our lives together” was collapsing. Perhaps, she feared, the great “experiment” was failing! She realized that our country is now led by folks such as Barack Obama, who (in The Audacity of Hope)rejected any “absolute” truths in order to achieve what he believed is “implicit in the very idea of ordered liberty.” For Obama and our cultural elites, relativism rules. To Nietzshe: “You have your way. I have my way. As for the right way it does not exist.” Supreme Court Justice Oliver Wendall Holmes declared: “Moral rights—if there are any—These are for the philosopher,” lacking any practical value. He rejected moral truths, saying rights come from a gun barrel, reducing them to whatever works for those win power. This position subsequently informed the opinion of Judge Jon Newman in Connecticut, who said: “Abortion and childbirth, when stripped of the sensitive moral arguments surrounding the abortion controversy, are simply two alternative medical methods of dealing with pregnancy….” To kill or not to kill an innocent child is simply a pragmatic decision without moral content.
Arkes, looking back over the past half-century, confesses he can hardly believe “just how far the passion for relativism would unfurl—to the point where people with advanced degrees forcefully insist that we cannot tell the difference between a male and a female. That difference now is regarded in some quarters as merely ‘assigned’ at birth. And so we are required by the courts to affirm that a man may pronounce himself a woman—or a woman, a man—solely on the strength of an earnest report on his (or her) feelings” (p. 2). But this confusion is easily understood once we admit to having lost the “commonsense understanding of ordinary people, in which the Natural Law finds its ground. Cicero, reaching for the heights in his Republic, gave us the most stirring description and the loftiest hopes for the Natural Law: 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’” (p. 3).
The Natural Law is both deeply moral and thoroughly logical. As such it is rejected by progressives such as Barack Obama and Kamala Harris, who insist the right to abortion is the flag of freedom, far more important than freedoms of religion and speech. Amazingly, even conservative politicians and jurists (including the late Justice Scalia) who personally oppose abortion fail to craft their case in accord with the Natural Law! By saying individual states may decree whether or not abortion is legal they fall back into the position of Stephen Douglas—popular sovereignty! By and large, conservatives “lost their conviction about any such anchoring truths grounded in the canons of reason, and along with that loss of conviction came a posture of mirthless derision of the Natural Law” (p. 13). But there are inescapable “anchoring truths” evident in the Laws of Reason, especially in the Law of Contradiction. Two contradictory propositions cannot both be true. Self-contradictory propositions collapse into nonsense when rightly analyzed.
This nation’s founders—including Supreme Court justices James Wilson and John Marshall—routinely cited “axioms” supporting their judgments, revealing the influence of the “common sense” philosophy of Thomas Reid. Immediately following its ratification, Wilson insisted the Constitution was written “not to invent new rights ‘by a human establishment,’ but to secure and enlarge the rights we already have by nature” (p. 81). “Reid caught the precise sense of this matter in his classic Essays on the Active Powers of the Human Mind: ‘[T]here are truths, both speculative and moral, which a man left to himself would never discover; yet when they are fairly laid before him, he owns and adopts them, not barely upon the authority of his teacher, but upon their own intrinsic evidence, and perhaps wonders that he could be so blind as to not see them before’” (p. 24). There are things we can’t not know because they are simply self-evident. They are always, everywhere, undeniably true—per se nota. “Thomas Jefferson caught the sense of the matter quite aptly when he remarked, in a letter to Peter Carr in August 1787, that one could ‘state a moral case to a ploughman and a professor. The former will decide it as well, and often better than the latter, because he has not been led astray by artificial rules’” (p. 42). When highly educated people, including a current justice on the Supreme Court, claim to not know what makes a woman a woman one rightly turns to a rancher who will explain it to her in a brief phrase!
To illustrate this, Arkes says: “In the fetching early pages of Mere Christianity, C. S. Lewis appealed to the moral understanding that can be grasped, at its root, with the common sense of ordinary people. He conjured up some familiar lines, likely to be heard any day from ‘children as well as grownups,’ from ‘educated people as well as uneducated’: ‘They may say things like this: “How’d you like if anyone did the same to you?”—“That’s my seat, I was there first”—“Leave him alone, he isn’t doing you any harm”—“Why should you shove in first?”—“Give me a bit of your orange, I gave you a bit of mine”—“Come on, you promised.” People say things like that every day….’ (p. 30). Still more: “Lewis used the disarming example of children to teach another lesson that Aristotle had taught in his Politics: that it is the distinct nature of human beings to complain, show outrage or a sense of grievance on matters high and low, and to be given to argument. As Aristotle said, animals may emit sounds to indicate pleasure or pain, but the speech of human beings is of a world apart. Human beings can offer judgments on what is good or bad, just and unjust. They can reason over matters of right and wrong” (p. 32).
Along with C.S. Lewis and Aristotle, Arkes finds much to admire in Thomas Aquinas, who “offered to us as the true ‘first principle of practical reason’ (primum principium in ratione practica): ‘that good is to be done, evil to be avoided’ (bonum est faciendum et prosquendum, et malum vitandum). That principle captures the logic of morals: that the good is higher, more desirable than the bad; that the good should be promoted and the bad discouraged, forbidden, and at times punished” (p. 63). It just makes sense, as Aquinas saw, “that in every act we take to seek change or oppose change, we must have at least some rough understanding of what things are good or bad, better or worse. Do we go to college or get a job? If we get a job, is it in a legitimate business or a business skirting the law? In any case, we move with an understanding of what things we find not only desirable or undesirable, but also right or wrong. Those judgments form the ground of our most practical acts. There is nothing airy about them, for they are precise enough to stir people to act. And if people are moved in their most natural acts to seek the things they find desirable, it follows that they tend to steer away or shun the things they find undesirable or wrong. In other words, this first principle is something we grasp a priori” (p. 65).
If we’re obliged to do good we’re equally obliged to oppose evil. We ought nurture babies and oppose torturing them. But following Roe v. Wade the Supreme Court routinely upheld the “right” to kill a child, irrationally refusing to acknowledge “that persistent, awkward truth: that the child has never been a part of the mother, and never anything but the same human being at any stage of the pregnancy. Even when it came to the later stages of pregnancy, the child was referred to persistently as mere ‘potential life.’ For the sake of staying faithful to those earlier concessions of the Court, Justice Alito was content to keep using that phrase, even though he surely knew that it made no sense: The embryo or fetus in the womb can never have been merely ‘potential life’” (p. 240). Despite much obfuscation, the courts of the country embraced and enforced the view that Might makes Right. Abortion was allowed not because it is good but because the people want it.
What the courts refused to consider was the moral aspects of abortion. And this is precisely what Aries wants done. There is a higher law that should shape human laws. There is a Natural Law that must be reinstated in our judicial system—and in our schools and churches.
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In Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law (Cambridge: Cambridge University Press, c. 2010), Hadley Arkes collected some of his essays explaining and defending the Natural Law tradition. He reflects that he has “expended most of my slender arts as a writer over the last thirty years in making the case for natural rights and natural law,” endeavoring to resist the pervasive “moral relativism in forms now so familiar that most people are hardly even aware of them. Historians seem barely conscious of any vice of ‘historicism,’ but they seem to fall easily into the assumption, for example, that the American Founders were men of their own age.” The sentiments of the Declaration of Independence and its “self-evident” truths (such as “all me were created equal”) was true enough then but perhaps not now! Arkes has written rather prolifically, but most everything can be understood as a stout defense of the currently disfavored Natural Law
Most of the book’s chapters are focused on important Supreme Court decisions, such as Lochner v. New York and Near v. Minnesota, and are only of interest to legal scholars. But the thrust of the book is to uphold the notion embraced by many great legal scholars such as Blackstone, who insisted there are some very clear “laws of reason and nature” that must be consulted as we promulgate and enforce human laws. We do have a written Constitution that is worthy of our respect, but it must always be interpreted with an eye on the “first principles” of logic and ethics that are universal and ultimately definitive. The Bill of Rights (the first 10 Amendments) is an important part of the Constitution, but too many judges and lawyers think it says our rights are given by the state rather than—as the Declaration of Independence insisted—God. There has, particularly in the nation’s elite universities, come a “subtle shift … from natural rights to positive rights, from rights grounded in the nature off human beings a ‘moral agents,’ to the sense rather of rights that have standing as rights because we have decided, as a people, too confer them on one another” (p. 7). Arkes wrote these essays to call us back to an original understanding of the Constitution as a servant of, not a lord over, the Natural Law.
In Evelyn Waugh’s novel. Brideshead Revisted, one the characters considered the historicist claim that morality continually evolves, that what’s right today may be wrong a century from now. He “seemed to grasp almost intuitively the logic that had to attach to the notion of ‘commending’ a ‘good.’ It was a matter of moving beyond ‘personal feelings,’ to the grounds of reason that made a thing ‘good’ for others as well as ourselves. It was a shift from notions of good that are entirely personal, subjective, and perhaps ephemeral, to notions of a good that are reasoned, impersonal, universal, and far more enduring” (p. 13). This was the position taken by the Founders of the United States. A clause in the Constitution cannot mean one thing in one century and something entirely different in the next. They could not envision the “legal positivism” espoused by Oliver Wendall Holmes that came to dominate the courts in the 20th century, and they would certainly have opposed it.
One of the New Deal justices appointed by President Franklin D. Roosevelt, Robert Jackson, shared Holmes’ positivism when serving on the Supreme Court. But when he was acting as prosecutor in the Nuremberg trials, seeking to punish prominent Nazis, he invoked the Natural Law! The tradition he had rejected was the only one capable of bringing criminals to justice. They hadn’t violated German laws, but they were guilty of something worse, violating universal moral principles. It’s simply wrong to deliberately kill innocent people, even when the laws of your nation prescribe it. So Jackson and his colleagues insisted the Nazis be hanged not because they violated a written law but because they failed to follow “those deeper principles of what we used to call ‘common sense,’ even without the law” (p. 37). These principles, as. Immanuel Kant said, are uniquely found in “a rational being.” They are what Aristotle (in Posterior Analytics) said “the primitive, immediate principles” that resemble axioms in geometry. If you cannot simply see that the shortest distance between two points is a straight line you will never advance in understanding plain geometry! So too, James Wilson, a member of the Supreme Court in the 1790s, relied on “principles of reason” that enable us to know anything at all. There are simply “self-evident” truths easily grasped by rational creatures. Aquinas said they are understood per se nota, absolutely true when seen. If you cannot understand the law of contradiction when it’s stated you’ll never get it!
Defending the proposed Constitution of the United States in the Federalist Papers, Alexander Hamilton said: “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…. Of the same nature are the other maxims in ethics and politics” (No. 31). Certain ethical principles have been embraced may millions of men throughout many centuries. Don’t steal. Don’t bear false witness! Don’t covet! Don’t murder! “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 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 the doctrines often deny that there is really a human nature. What we take to human nature they regard as ‘social constructs’ that vary from one place to another according to the vagaries of local cultures” (p. 47). Thus we have eminent scholars who condemn killing on the basis of race but defend admitting students to universities because they meet racial quotas!
On his final page Arkes restates what he has repeatedly asserted: “The task is to trace matters back to the root, to those first principles that anchor our judgments.” If one studies carefully: “Beneath the layers of law, embedded now in custom, is a structure of moral argument and moral understandings. Those anchoring, first principles explain, at the root, the grounds of our judgments on the things that are right or wrong, just or unjust. If we can return to the root, with an inquiry that is distinctly philosophic, we can expect to tap again the deeper principles of the law; and in opening them anew, see again their fuller reach. At the end of the day and the end of the exercise, we find ourselves, as we often do, conforming an older wisdom. We may merely remind ourselves of what that first generation of Americans managed to grasp when they said, in the Virginia Declaration of Rights, that ‘no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue’—and a ‘frequent appeal to first principles’” (p. 262).