Symposium Introduction

“How should law, morality, and religion interact in America today?” Andrew Forsyth asks in the concluding paragraphs of Common Law and Natural Law in America. The placement of this question at the very end of the book is appropriate. Forsyth does not seek to directly answer the question. Instead, he turns our attention to the long history of American reflection on law, morality, and religion as it was organized by the categories of natural law and common law. Forsyth’s history—extensive in scope, yet impressively concise in telling—scrambles common contemporary ways of thinking about and with the categories of natural law and common law. And as the reader’s perception of these ideas is reframed by this history, the question of how law, morality, and religion should relate is sure to be provoked anew. The contributions of the panelists witness to the way Forsyth’s book allows us to think better about this question today.

Natural law and common law, Forsyth tells us, are today seen as completely distinct and even unrelated ideas. The common law is often called “judge-made law.” Natural law, by contrast, is taken to be the timeless and universal moral law founded on nature, reason, or the will of God. What Forsyth offers is something quite different: the story of “a centuries-long stream of American legal thought [that] presupposed—sometimes tacitly, sometimes explicitly—that natural law and common law are intertwined,” a story in which one sees clearly that natural law “undergirded the development of American jurisprudence” (xi).

Common Law and Natural Law in America traces the interactions of natural and common law from the Puritans to the twentieth century. Despite its clarity, the book admits of no easy summary. Some panelists see it as a narrative of decline; others resist this characterization. The difficulty of fitting the story into a simple narrative structure is to Forsyth’s credit. Simple narrative structures are bound to betray an important aspect of the story that Forsyth will not let us miss: natural law means different things in different eras and to different thinkers. The same can be said about common law. These shifting ideas, Forsyth shows us, are responsive to religious and philosophical developments over time. Just as importantly, they are also responsive to changing institutional conditions. One of the great merits of Forsyth’s book is that intellectual history remains rooted in the institutions—educational, legal, and religious—in which the ideas were invoked.

Although no simple summary is possible, Forsyth’s narrative is no doubt one in which natural law, which is ever-present in the legal thought of the seventeenth through the nineteenth centuries, nearly disappears from legal pedagogy and practice in the twentieth century. The juxtaposition of the historical importance and rapid disappearance of talk of natural law prompt the question: If natural law was the traditional locus for the relationship between law, morality, and religion, how should we think about the relationship today? While some questions are raised about the history itself, most of the contributions by the panelists turn to this contemporary question.

* * *

Affirming the value of both the historically common appeal to natural law and the more recent suspicion of natural law, Craig Ford asks: “Can the natural law tradition be given new life again as a foundation for envisioning the justice that our laws should pursue?” Ford answers this question by putting the thinkers treated by Forsyth into a constructive conversation. Ultimately, he sees the greatest promise in the work of Columbus Langdell, the founder of the inductive case study method of legal pedagogy. Ford argues that an inductive approach is appropriate not only to case law but also to natural law. Cathleen Kaveny, by contrast, registers her sympathies with Joseph Story. Drawing from her understanding of the natural law as well as her experience as a law professor, Kaveny pushes back against what she sees as an elegiac tone in Forsyth’s history. The language of natural law may not be viable at the moment, she argues, but legal practice remains deeply imbued with and shaped by morality.

Joshua Mauldin focuses on one feature of the American natural law tradition that differs from many other natural law traditions: common law is understood to bear an inherent connection to natural law, one that is refined through time by history and precedent. And while this tradition has lost its intellectual standing, Mauldin, like Kaveny, sees its continuing influence in the practice of law. For Mauldin, this can help restore faith in the law in a time in which courts are increasingly politicized. Vincent Lloyd also recognizes the ongoing influence of this tradition, and he praises Forsyth’s history for giving us a clearer and non-supersessionist picture of it. But Lloyd also worries that this tradition has the effect of subtly naturalizing the status quo. He directs us instead to an alternative tradition of natural law, which operated beyond the boundaries of the legal establishment: that of abolitionists like Frederick Douglass and John Brown. Lloyd’s alternative tradition echoes the legal realists in seeing law’s distortion by power and interests, but it points toward a higher law—not with supersessionist logic but through apophatic negation. Lloyd contends that this countertradition can speak to our contemporary moment when abolition is again part of our political conversations.

Finally, R. H. Helmholz focuses his comments on the history itself. He praises Forsyth’s telling of the history but remains bothered by a further question: Why has the natural law disappeared from the professional lives of lawyers and from the legal academy? Helmholz raises a few possibilities that suggest themselves from Forsyth’s history, but he finds none of them convincing. He leaves us with the open question.

Response

Reasons for Hope

Andrew Forsyth’s new book examines the relationship of natural law and common law through the lens of the history of American legal education. Beautifully written and meticulously documented, it has a certain elegiac tone, at least to my ears. Common Law and Natural Law in America: From the Puritans to the Legal Realists is a story of the decline of belief in and commitment to a common morality, which can serve as the basis of a (somewhat) just and stable legal system, a system with some internal resources for self-critique and correction.

But is that decline as steep as Forsyth describes it to be? Are there loci in our law and culture today that can be marshaled to resist that slippery slope? I ask this question with some sense of urgency, even desperation. I write these words in early June 2020, after enduring three months of quarantine due to the pandemic, and filled with dismay at the vicious outbreaks of racism and xenophobia that now plague our country.

Nonetheless, I will answer try to this question with a brief argument for hope. Like Forsyth, I am a Christian theologian as well as a lawyer. St. Peter enjoined us to “always be prepared to give an answer to everyone who asks you to give the reason for the hope that you have.” Of all the characters Forsyth discussed, my own methodologically sympathies were most aligned with those of Joseph Story: Forsyth writes:

Unlike in its usual interpretations by contemporary critics and proponents, then, Story’s natural law is exemplary of the ways in which natural law can be historicized and relativized, at least in its relationship to common law. Natural law was known in the historical details of the positive law: specifying duties; serving as a yardstick, from which positive laws can deviate only so far; acting as a limiting point; furnishing rights, classifying and justifying branches of the law; and forming a source of law, albeit one among several. (104)

I have hope that an epistemologically chastened, historically informed, and factually sensitive understanding of a common morality can continue to inform our law.

But Story’s day is long gone. Forsyth argues that legal realism and its intellectual progeny have long dominated and in many ways continue to dominate legal education. He crisply encapsulates the import of this approach: “In the realists’ minds, if the law is nonobjective it is thoroughly political. It is a tool to be used for good or ill” (141). He rightly notes that modern legal movements such as critical race theory and feminist studies see their task as exposing the hidden political agendas of the powerful, and calling for the law to be marshalled for the well-being of the powerless. Law is now a tool in the struggle for power. In short, in the present day, law school is where one learns to operate that tool to achieve objectives specified from the outside. It has no intrinsic rationality or moral orientation.

That is certainly true for many contemporary legal theorists. But maybe not for most people who teach law, or most people who learn law—or so I hope. I teach contract law to first-year students. I do not see in most of them the raw moral skepticism about the law that one finds in the thought of Oliver Wendell Holmes. I see my students as ready to assume there is some connection, however imperfect, and unspecified, between law and justice, between law and norms which apply to human beings and their interactions because they are fellow human beings who live in community.

I think these strange days present an opportunity to make explicit the connections between law and morality. When I was in law school, economic analysis of law was in its heyday. The point of law, so this theory argued, was to promote economic efficiency. The Great Recession of 2007 took the wind out of the sails of this theory in two ways. First, it showed that economic efficiency is not an all-inclusive value. Second, it revealed that not all values and goods can be construed as constituted by human desire. Having access to basic elements of life and security is a precondition to developing one’s own set of life goals, as perfectionist liberals such as Joseph Raz have long argued. Human autonomy must be cultivated by a liberal society and given socially recognized and organized opportunities for expression.

More recently, the COVID-19 pandemic has challenged some extreme liberal understandings of law as promoting the maximum sphere of individual freedom of action. The pandemic showed that no one is actually an atomistic individual, who can maximize his or her own utility without reference to the good of the community. Moreover, the response to the pandemic showed that many Americans see the importance of acting with solidarity, understood in the definition of the late Pope John Paul II: “a firm and persevering determination to commit oneself to the common good; that is to say for the good of all and of each individual, because we are all really responsible for all” (Sollicitudo rei socialis, no. 38).

As the pandemic progressed, it has disproportionately affected vulnerable populations, including the elderly, the African American community, and other minority groups. The murders of George Floyd, Ahmaud Arbery, Breonna Taylor, have exposed the sickening persistence of racism in American life.

Power analysis, on its own, can tell us who benefits and who is disadvantaged by structural racism. But it is the normative vision of the individual in community invoked by Dr. Martin Luther King—a vision of all human beings as equal participants our society, as brothers and sisters, as beloved children of the same God—that can tell us why structural racism is an abomination.

I am now beginning to think about how to teach contracts this fall, incorporating both online learning and socially distanced in-person encounters. I am grateful to Langdell for inventing the case method, because I think reading cases exemplifies the insights of casuistry common to law and many traditions of moral reflection: rules and principles interact with facts in a complicated way that cannot be neatly subsumed in either the category of induction or deduction.

There is a hermeneutical circle involved in reading case law. But it is a three-dimensional hermeneutical circle, almost like a living cell. It is not a two-dimensional grid that can be studied without loss entirely in a library. The law is like the cell membrane, bringing certain moral norms into the hermeneutical circle, and conducted others back out into society. For example, the doctrine of promissory estoppel allows courts to enforce promises that the promisor ought to have expected would have been reasonably relied upon (even without consideration), with enforcement limited as justice requires. To decide a promissory estoppel case, a jury needs to think about the rich intersection of practical reasonableness and justice, drawing communal moral norms into the application of law. Yet the law also has a pedagogical function. A key point of the Civil Rights Acts is to transform hearts and minds so that they willingly go beyond the letter of the law to combat unjust discrimination. While legislative enactments more frequently carry out that function, landmark judicial decisions (e.g., Brown v. Board of Education) also carry pedagogical weight.

Even the ongoing debate between the formalists (those who emphasize the strict and deductive application of rules in the adjudication of cases) and contextualists/realists (those who want a fact-sensitive, policy-sensitive application of rules to specific cases) can be understood as a debate about the priority of different normative values. As I tell my students, suppose I need an attendance policy for my class. On the one hand, I could have a bright-line rule—e.g., more than three absences, and you fail the class. On the other I could have a more nuanced policy—e.g., no more than three unexcused absences, with me doing the excusing. At first glance, the second policy seems to be fairer and more compassionate—but is it actually? Suppose I give excuses for hospitalizations, and deaths of immediate family members. But suppose your beloved aunt dies—or your beloved service animal. Do they count? My decisions will inevitably become mired in arbitrary choices, leaving the class worried about uncertainty, and even unfairness. Whatever its flaws, the first policy does not have those defects. Each policy has its normative benefits and detriments. To put the point more broadly, the clear-eyed rules of law and the nuanced analysis of equity need to remain in some sort of balance.

I think one reason “natural law” has so little credibility these days is that it has become virtually identified with a very traditionally restrictive sexual morality. This identification is sad but not surprising. One of the main focuses of the new natural law theorists (e.g., John Finnis, Germain Grisez, Robert George) has indeed been supporting traditional sexual prohibitions against contraception, fornication, and same-sex relations. One does not need to accept their particular arguments on these issues in order to think that broader norms of practical rationality and justice are relevant to ordering our common life together. Moral realists, even religiously inspired moral universalists, tend to shy away from the language of natural law because it is so susceptible to misconstrual and so focused on sex in the popular imagination. That is a shame. But I am not sure it is fixable, at least right now.

At any rate, my current worry about conservative Christians in the public square is not that they are holding too tightly to the norms of natural law and universal reason, but that they are abandoning those norms in favor of the power analysis so long advocated by the left. Populism is about the assertion of power. As the election of Donald Trump to the presidency shows, conservative Christians still retain significant political power in this country. Learning from the Left, many religious conservatives have gotten themselves elite legal credentials, and mobilized and organized in groups such as the Federalist Society. Trump has now appointed three Supreme Court judges and over 110 circuit court judges. Whatever its other merits or features, their favored theory of “originalism” allows religious conservatives to sideline arguments about what respect, autonomy, and solidarity require in the twenty-first century. The religious majority mobilizes and exercises political power for its own reasons (religious or not), and the courts uphold their legislative initiatives because they are not inconsistent with the vision of the Framers.

Consequently, I think a major task of Christian ethicists and political theologians is to ask our fellow believers to return to fundamental questions of justice: even if we are in the majority, what do we owe fellow citizens who do not have the same beliefs that we do? This is not a question of exercising our power. It is not a question of asserting our rights. It is a question of justice, shaped by the Golden Rule.

  • Andrew Forsyth

    Reply

    Justice: Response to Kaveny

    What’s law’s connection to justice in a pluralistic society? Cathleen Kaveny’s rich essay is a challenge to her readers to articulate “what we owe fellows citizens who do not have the same beliefs that we do.”

    In Common Law and Natural Law in America, I put forward one set of answers to Kaveny’s challenge. These answers emerge from the particular history of American interactions of common law, the stuff of the courtroom, and natural law, a law purportedly built on human reason, nature, or the mind or will of God. The major figures in this history are connected by their belief that our human laws are rightly in harmony with natural law, and structured and justified by it.1

    Today’s philosophers of law most often name as “natural law” the view that law has a necessary connection to morality or substantive justice; proponents of natural law are those who think that (common) law is just when, and to the extent, it accords with natural law. This straightforward definition is useful if limited. Its implicit starting point is not the centuries of reflection on natural law but rather the twentieth-century legal positivist position that law has no necessary connection to justice (xii). “Natural law” is cast as positivism’s opposite. Theorists of natural law began their enquires elsewhere, including with justice and not human law. And justice was explained, for example, as among the (cardinal) virtues or the basic goods, of which human beings have implicit knowledge and which makes human actions intelligible.

    To be fair, twentieth-century legal positivists’ particular interests were aligned with the political necessities and philosophical priorities of the post-WWII period: questions of authority, legitimacy, and legality; questions about the existence or otherwise of law; and what makes a law binding, rather than just good advice. Shaping debates in these terms, positivists often cast natural lawyers as failing in the task at hand; positivists saw natural lawyers as wrongly concerned with illustrating or explaining justice (or morality) in the law without showing how law’s existence requires justice.

    That does not mean, however, that positivists did not recognize any connection between law and morality. Indeed, Oliver Wendell Holmes could say that “the law is the witness and external deposit of our moral life” (129–30).2 Kaveny’s challenge to speak justice, as I understand her, however, is not about the technical debate of whether law’s existence requires morality. Positivists and natural lawyers alike can agree that, in fact, our law incorporates or expresses conceptions of justice. Kaveny’s challenge, therefore, is about the content of this justice. Her answer, in part, is to point to the day-to-day workings of common law that simultaneously reflect, instantiate, and shape some kind of “common morality.”

    This “common morality” was familiar, and commended, by the principal figures of the book. But Kaveny notes some unexpected contemporary opponents. Conservative (Catholic) Christians, who might have been thought to champion substantive justice in law have turned instead, she says, to political expediency. Indeed, “originalism”—their favored theory of legal interpretation—purports to avoid engagement today with justice. Originalism instead treats as authoritative the Constitution’s understood meaning at the time of its promulgation (46, 68–69).

    Putting aside questions of whether we should accept—as originalism does—that the views of the founding generation are authoritative, and of whether the Constitutional framers intended their own interpretations to forever govern, a quirk of originalism is that it turns today’s judges into historical moralists of a kind. Judges become archeologists of ideas, sifting the past for moral meaning. They must pin down the open texture of constitutional language today by attempting to understand how evidently moral considerations were understood in the past: for example, what was meant by “excessive” or “cruel and unusual” in the Eighth Amendment?3

    Common Law and Natural Law in America also attempts to depict historical morality. But unlike some originalists, the book makes clear just how hard it is to neutrally read off meaning from our impressions of the past. And it makes clear that there are differing controversial presuppositions behind arguments and texts that, at face value, agree. Those who challenge originalism do so, in part, by challenging whether original meaning is readily apparent today without significant, necessarily controversial, interpretation. The book adds the further challenge that we cannot even assume congruence between the building blocks of thought and meaning-making of then and now. Many people today, for example, do not share the understanding of sense perception or rationality that ungirds the “modern natural law” of US revolutionaries and republicans (24–30). To reach right verdicts, must judges inhabit the composite moral psychology of the framers, even where it differs from today’s common sense?

    Kaveny calls her readers to properly consider justice. “Common morality” is one source. Another is the moral and social views of legislators, judges, and society at large, which—consciously or otherwise—find shape in law, and which could be known and shared by natural lawyers and positivists alike. Kaveny goes further, however. Whether as “common morality” or “natural law,” Kaveny shows that law has pedagogical power; law, says Kaveny, is an authoritative, if circumscribed, moral teacher in a pluralistic society. Indeed, as she does in her Law’s Virtues (Washington, DC: Georgetown University Press, 2012), Kaveny argues that law allows for, cultivates, and commends autonomy—the basic element of life that allows for our developing goals—and solidarity, a commitment to the common good, perhaps even to society’s most vulnerable. As true of William Blackstone, the great eighteenth-century organizer of common law (57–59), law for Kaveny is structured and justified by its moral building blocks.


    1. The story I tell ends before the post-Second World War rebirth of Anglophone philosophical interest in law. A sequel could tell that story, which includes natural lawyers, among them many proponents of human rights: a concept, vocabulary, and way of thinking that is of widespread interest beyond academic legal philosophy (142–48). Adding these figures might temper the book’s “elegiac tone,” even the “story of decline,” that Cathleen Kaveny identifies.

    2. The original quote is from Holmes’s “The Path of the Law,” Harvard Law Review 10 (1897) 457, 459.

    3. The Eighth Amendment of the US Constitution reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Response

Nature’s Law and Ours

Andrew Forsyth has provided an important historical narrative of how the common law and natural law are intertwined in the American legal tradition, including the story of how these connections threatened to unravel early in the twentieth century. What is more, Forsyth tells this complex history in a concise set of chapters that are a pleasure to read. He brings together a large set of historical resources in a manner that is both succinct and yet detailed. He delves into the details but always explains to the reader why the details matter. Tracing the connection between common law and natural law, we move from the Puritans to American revolutionaries and republican thinkers, to a chapter on the American reception of Blackstone, to the jurisprudence of Joseph Story, Christopher Columbus Langdell, and concluding with Oliver Wendell Holmes and the tradition of legal realism he spawned. This book tells an important story about the role of law in American public life that will be of interest to anyone concerned with law, ethics, religion, and democracy.

While the book is no narrative of decline, we are told toward the end of the book that the natural law “of the Puritans, Revolutionaries, Blackstone, and Story . . . perhaps remains viable” (147). While Langdell and especially Holmes represent a departure from this tradition of connecting common law and natural law, Forsyth avoids claiming that with these departures some golden age of natural law jurisprudence has been forever lost. Instead, Forsyth suggests, this earlier tradition can itself be drawn on in contemporary conversations about natural law and its connection to common law. While Forsyth’s purposes in this project are primarily historical rather than normative, he has helpfully made these resources available for more explicitly normative work. This essay will focus on these normative implications.

Central to Forsyth’s book is the way that common law and natural were inextricably linked throughout most of American history, before and after the revolutionary period. As Forsyth notes in conclusion, “Common law and natural law are co-constitutive and, in at least some ways, inseparable in American history” (147). The various examples the author provides bear this out, showing how common law and natural law are conceived of by the Puritans, revolutionaries, Blackstone, and so on. These figures were agreed that common law and natural law had some relationship, were intertwined in some way, but how they conceived of the connection between the two varied considerably, even before legal realism augured a break with tradition. To put it bluntly, how much do we get from the mere fact that this tradition of thinkers thought common law and natural law were somehow connected? If they didn’t agree on what the nature of that connection was, or conceived of the relation in mutually exclusive ways, what is the upshot of their shared belief that there was some connection?

Even if we all agreed that the common law and the natural law are somehow connected, we might very well disagree as to the nature of that connection. As Forsyth concludes in the last sentence of the book, “Not merely the accretion of quotidian past practice, then, nor truth existent beyond our interpretation, common law and natural law are enmeshed in and articulated through the presuppositions of a particular time and place, our own included” (148). The relation between common law and natural law will thus vary from one historical period to the next, and we cannot presume that the mere fact of their interconnection gets us very far. But perhaps that is the point: the relation of common law and natural law has been variously understood in American history, and in our debates today about how to conceive of this relation we can avail ourselves of this rich and diverse tradition. Looking to the past won’t provide us with pat answers, but it might highlight examples to prod out thinking. A book that is mostly historical in nature thus bears important normative implications for law and society today.

Forsyth helpfully shows the way in which natural law as understood in the American common law tradition does not neatly map onto a Thomistic conception of natural law and human law, a mapping that will be familiar to theologians. Discussing the jurisprudence of the renowned nineteenth-century Supreme Court Justice Joseph Story, Forsyth writes, “Common law, once again is not a positivist alternative to natural law in Story’s thought, but a body of laws the proper content of which is natural law and history, where history itself is not value-free but the arbiter and refiner of morals” (96). It is tempting to read the natural law thinking of figures like Joseph Story into a Thomistic framework, where common law corresponds to the Thomistic conception of human law, which must correspond to natural law in order to be authentic human law. The American tradition Forsyth highlights conceives of the common law differently. It is a conception of the common law that can be jarring today, trained as we are to be suspicious of anything that smacks of an apology for the “status quo.”

Forsyth notes that Story “sought, and expected, the congruence of customary law and natural law” (101). We tend to look at the “way things are” and see unjust social arrangements so corrupted that the only solution is some kind of revolutionary overthrow. Story, by contrast, saw in human practices, including customary law, a kind of slow accretion of truth, a progressive alignment with natural law that was achieved not in a moment but over centuries. Later, Forsyth highlights the understanding of common law found in Thomas Hedley’s parliamentary speech of June 28, 1610: “The Comon lawe tried by tyme, which is wiser than all the Judges in the land. By tyme out of mynde” (quoted in Forsyth, 118n51). The common law is wiser than we are. It puts us closer to what natural law requires than anything we could dream up on our own.

Common law in this tradition is not merely positive human law which may or may not accord with natural law. If that were all common law provided it would not get us very far, as the question would quickly arise as to which laws accord with natural law and which do not. Instead, common law bears a kind of inherent connection to natural law. Through the refining power of history and precedent, the common law becomes a historical vehicle for natural law. We are thus not in a position where we have a set of laws which could conceivably all be in violation of natural law. On the contrary, the tradition assumes we have good reason to adopt a posture of deference to the common law as a repository of human reflection on the natural law. It is not merely or even primarily that the common law as human law should accord with natural law. The American common law tradition makes a stronger claim: the common law in fact does reflect the natural law.

We might ask whether this account is sufficiently aware of the human propensity for sin. While in its early Puritan version the common law was maintained alongside a conception of human sin and corruption, by the time the nineteenth-century jurist Joseph Story discussed the common law this conception of sin seems to have receded. Joseph Story’s conception of the relationship between common law and natural law assumes that human beings have access to the natural law, access which shines through in the common law as it has developed over centuries. Perhaps Story exemplifies a nineteenth-century optimism which failed to account for the extent to which our ways of living, even as developed over centuries, fall far short of the requirements of natural law and justice. Even if human beings have access to natural law, the common law, we might reply, exhibits not only this access but also human corruption and evil. This puts us back where we started, claiming merely that the common law should reflect the natural law, instead of assuming that it in fact does so.

In the final chapter, “Breaking with Natural Law: Oliver Wendell Holmes and the Legal Realists,” Forsyth narrates how the traditional American connection between common law and natural law began to unravel. The tradition seems to have faded away not with a boom but with a whimper, as though when challenged it simply gave up rather than meet the challenge through argument. The “legal science” of Christopher Columbus Langdell was an important intermediate stage, an attempt to conceive of a value-free “science of law” that could be undertaken by legal experts comparable to scientists in other fields. The position that the later legal realists would attack was not so much the broader tradition of common law but rather the “Formalism” of Langdell. A pejorative term, “Formalism” stood for the belief that the law is constituted by universal principles, which determine judicial decisions. Legal realists argued that any number of other factors contributed to how judges decide cases, including politics, considerations of social policy, and the judge’s own moral intuitions, biases, and feelings. The realists changed the topic of conversation, removing from the agenda the question of what judges should do and replacing it with a discussion of what they in fact do, and what we can predict judges will do in the future.

Forsyth points to the common claim that “we are all realists now” (142), observing that legal realism both cracked open the longer common law tradition and opened the floodgates to so many new approaches to jurisprudence that various reappraisals of natural law are once again possible. While it is harder than ever before to assume that the common law is a source of wisdom and truth passed down from “Tyme out of mynde,” judges continue to evince a remarkable level of deference to precedent, across the spectrum of judicial philosophies and political persuasions. Judicial practice reveals more deference to the common law than our theories of jurisprudence would let on. This is an example where our practice outperforms our theory. Almost no one argues that judges should just make up the law according to their political or even moral whims, without reference to legal precedent. An implicit assumption about the connection between common law and natural law endures in the actual adjudication of cases in the United States, even if our legal theory does not adequately account for it. No judge defends her decision by saying, “I decide this case this way because it accords with the political platform of the elected official who appointed me.” We might have our suspicions that this happens, occasionally or even often, but there nonetheless remains a sense that judicial decisions at least should accord with legal precedent, and often do.

Some aspects of the common law deserve to be changed, and indeed it is of the essence of the common law tradition that it is a living tradition developing through time. Despite its imperfections, the common law as passed down through history is closer to the truth than what we could come up with if we started from scratch. That is a basic assumption of the common law tradition, and I see little reason to think that that way of thinking has been lost in American jurisprudence. Forsyth helps us understand the history of common law, and in so doing to make more explicit what is implicit in our legal system. Understanding this history can restore faith in our legal system, so that we see it not as yet another site of political dysfunction and recrimination but instead as the locus of human wisdom passed down through the ages, and continuing to be refined through the give-and-take of reasons. Forsyth has undertaken a great service in reminding us of this history.

  • Andrew Forsyth

    Reply

    Tradition or Worldview? Response to Mauldin

    “Common law” is a legal system in which laws—whatever their seeming source in, say, a constitution or statute—are made explicit through interpretation by judges; in common-law jurisdictions, judges’ decisions in individual cases expound and develop the law. In Common Law and Natural Law in America, I show the ways in which the content of the law in the American common-law system was understood for several centuries as tied to the universal morality of “natural law,” yet known and expressed in the customs and common reasoning of the American people.

    Joshua Mauldin agrees that there are inextricable links between common law and natural law in the mainstream of American legal reflections. We agree on a good deal. But he offers an important challenge to the idea that the history of thinkers and events I trace is a coherent tradition; the existence of inextricable links only takes us so far. Do we have a tradition, in fact, if these links were interpreted differently over time?

    Mauldin’s point is a good one. Analogously it applies, in varying degrees, to many complex long-lasting traditions, which always seem on the edge of splintering apart. (Political parties or movements are obvious examples.) For certain analytical purposes, therefore, one response is to reserve the term “tradition” for something narrower than its common use: a self-conscious argument across time, for example.1 We might distinguish this self-conscious argument from “worldview,” say, or from the “common sense” of a time and place: a community’s widely held and usually unreflective views, together with the conglomeration of sense, feeling, and judgment that underlies them.

    What does that mean for my story of American common law and natural law? Does it depict a tradition, narrowly defined as an ongoing argument over time? It does. For the law, after all, builds on precedents, it accretes on existing material, not passively but through engagement and reuse; it has an ongoing social purpose of organization and direction, of maintaining “order”; it has distinctive practices, of adjudication and argument, and personnel, of judges, lawyers, and juries. One focus of the book, indeed, is an even tauter thread of tradition: American education about the law and for its practice.

    We needn’t view the book’s material solely through the lens of “tradition,” however. An alternative approach generates meaningful additional insights. If we think of the link between common law and natural law not thorough “tradition” but rather “worldview” or an era’s “common sense,” we find greater difference in some concepts across time—in how, for example, human rationality was understood—yet relative coherence in the long haul, in common law’s intellectual structure and its institutions and organization, certainly across the period of the book and arguably to the present.

    This long-term coherence is intriguing, but proves too much for my purposes. I want to say that Oliver Wendell Holmes and the legal realists break with a tradition and show how they do so, even as it is true that they are tradition-formed in needing to make the break (125–45). Likewise, common law today may carry natural-law assumptions, but for most practitioners and jurists these are stated without further argument rather than grounded in some deeper truth. (We might say the same about related ethical assumptions. Think of “post-Christian” concepts in other aspects of western culture. Jürgen Habermas, for one, speaks of the “legacy of the Judaic ethic of justice and the Christian ethic of love” in the “universalistic egalitarianism” of Western political discourse, with its assumptions of “the individual morality of conscience, human rights and democracy.”)2 When viewed both through the lens of tradition and of worldview, one interesting ambiguous or pivot figure is Joseph Story (1779–1845), US Supreme Court justice and legal teacher, who believed that natural law could animate the vision and moral purpose of common law, even when not explicitly invoked (70–104).

    All that being said, in the history I trace, too decisively dividing tradition and worldview would disguise the ways in which moments or instantiations of the tradition—whether “Puritan” (1–23), “modern” (24–45), or “legal science” (105–24)—are both distinct and not wholly bounded to particular moments or figures. And dividing tradition and worldview too carefully would disguise the ways in which ongoing American legal practice and reflection are a form of moral reasoning, with an identifiable historical development and social location, if not always agreement on key concepts, the nature of the “link” between natural law and common law included.3

    Depicting a particular tradition-based form of moral reasoning has its normative ironies or lessons, of course, even if the book’s principal contribution is historical. In Common Law and Natural Law in America, I depict as particular what was treated as universal.4 By showing the discontinuities and contingencies, I stand outside the tradition even as I commend it as a possibility to readers.

    On the other hand, if “tradition” is indeed a self-conscious argument over time, such self-consciousness can surely extend not only to the existence of a tradition but to its content. That makes particular sense with law. And there is the simple but profound fact that in a case-based system like common law, results are determined through the application of rules and principles to differing fact patterns, and the law changed and developed thereby. The book shows the ways in which, by its ties to custom and history, as much as abstract reason (80–83), development and contingency were integral to the common law across four hundred years in America, even as common law stayed linked, in differing ways, to natural law, so often stereotyped as rigid and unchanging. As a tradition, natural-law inflected common law changed yet stayed itself.


    1. Of course, sometimes “tradition” is used by scholars to mean the opposite: inherited practices and assumptions that are unselfconscious. In this framing, to put it crudely: once you notice that something is a “tradition” it is no longer traditional; its continued enactment becomes traditionalism.

    2. Time of Transitions, trans. Ciaran Cronin and Max Pensky (Cambridge: Polity, 2006), 150–51.

    3. For how natural law can be seen as a form of moral reasoning, see Jean Porter, “A Tradition of Civility: The Natural Law as a Tradition of Moral Inquiry,” Scottish Journal of Theology 56.1 (2003) 27–48.

    4. Indeed, one early definition I give for natural law is a “universal morality naturally accessible to all rational people” (xii).

Response

Superseding Common Law

Andrew Forsyth has written a book that is at once sweeping and concise. It is at once a history of the ideas underlying all American law and a close examination of the very specific institutions that played a key role in shaping that law. It is a story of dramatic change and surprising continuity. It is also a story about a deep philosophical and theological problem that is made visible through the history Forsyth tells.

In the American public sphere, natural law talk has degenerated into partisan political rhetoric. It signals—as it supposedly justifies—opposition to abortion, contraception, homosexuality, and transgender recognition. In technical discussions about the philosophy of law, natural law refers to the belief that there is a necessary connection between law and morality. Historically, in progressive social movements ranging from the movement to abolish slavery to the civil rights movement to the recent Moral Mondays movement, invocations of natural law motivate dramatic transformation of the status quo.

Forsyth, in contrast to all of these, is interested in law proper, as practiced in the courts and as codified in textbooks. As he helpfully shows, what the practice of law looked like underwent dramatic shifts from the Puritans to the present. He focuses on legal education to track these shifts. From the Puritans’ vision of the world through Christian glasses to the growth of professional law schools, from the imported commentaries of Blackstone to today’s casebook, from the legal science of Christopher Columbus Langdell to the legal realism of Oliver Wendell Holmes, Forsyth makes vivid the shifting contours of law’s meaning through very specific, concrete institutions and practices.

Too often we are captured by what might be called a supersessionist imagination with respect to natural law. From this perspective, the law on the books and in the courtrooms is stale, formulaic, inhumane. By accessing something outside law, something having to do with nature, the law can be redeemed. Its abstractions and mechanistic tendencies can be corrected, and law can become more humane (and divine, if God is the author of our humanity). What seemed like law turns out not to be law at all; new law—or new law implicit within old law—replaces the old.

Forsyth’s book offers an important antidote to this supersessionist imagination. In the contexts he discusses, up until the legal realists, there is a tight relationship between natural law and law on the books and in the courtroom. Puritans drew on biblical and classical sources to understand the broad authority of natural law in their contemporary world, arguing about such issues as whether the Sabbath was mandated by natural law. Natural law was not imposed from outside human law as a corrective; it named the principles guiding human law at its best. The image of God is stamped on the human, and despite the fall, when human engagement with the world is at its best, human practice follows natural law—formalized in legal practice. Forsyth demonstrates in detail the varied, debated ways in which Puritans thought about natural law not trumping civil law but implicit in civil law.

From the other end of Forsyth’s historical narrative is Harvard’s first law school dean, Christopher Columbus Langdell, appointed in 1870. Between the Puritans and Langdell, American law was codified as a system of rules. Langdell shifted legal education to focus on appellate cases, where the task of the lawyer, a sort of legal scientist, was studying how appellate cases were decided and discerning the rules implicit in those decisions. Langdell’s emphasis on the authority of precedent leads some scholars to classify him as an opponent of natural law, but Forsyth convincingly argues that Langdell’s turn to precedent combined with his belief that scientific (rational, systematic) inquiry into appellate decisions could yield knowledge about the law meant that Langdell was implicitly committed to a more-than-positivistic understanding of law. Coupled with the understanding of natural law as arising from human nature distilled in community over time, what Langdell’s legal science is investigating turns out to really be derived from human nature.

For Langdell, as for the Puritans and, in different ways, for the other examples Forsyth suggests, natural law does not step on top of common law, invalidating it, but rather gives it shape. This does not mean natural law is flattened to practical reason—a direction toward which some recent discussions of natural law have tended. Nor does it mean each element of common law, taken alone, derives from natural law. We would search in vain for a natural law reason for red lights to mean stop and green lights to mean go. Similarly, it does not mean that common law taken as a whole can be identified with natural law.

Through his detailed historical inquiries, Forsyth shows how there is an irreducible tension baked into the phenomenology of law. This tension becomes evident once supersessionist accounts of natural law are rejected. Present but inaccessible to us is harmony between legal norms and nature (the natural world and human nature). We can imagine this as a primal scene where the earth, human life, social practice, and social norms are perfectly aligned. But as social norms become legal norms, formalized and abstracted, and in the process made vulnerable not only to staleness but also to capture by individual and group interests, that harmony fades. Not completely. We are left with the impossible longing to return to a prelapsarian world where natural law just is common law. But what holds together the American legal tradition during the period Forsyth discusses is its refusal to evade this impossibility, its investment in grappling with the elusive presence of natural law in courts, textbooks, and schools.

The overall shape of Forsyth’s narrative is one of decline. From the seventeenth to the early twentieth century, American law wrestled with a tension; in the twentieth century, it resolved the tension—too easily. Legal realists began by assuming law and morality are divorced, then unmasked the political and economic interests that decided law. More recently, in its partisan uses and in philosophy of law debates, the supersessionist imagination shapes how Americans see law. In a sense, Forsyth’s story reminds us of a more complex (and thus better) time.

Readers of Common Law and Natural Law in America may wonder about the degree to which law in a narrow sense can be isolated from law in a broad sense. Indeed, when Forsyth is discussing the Puritans, this distinction falls away, but when we enter the nineteenth century, social movements such as abolitionism that contribute to the public discourse of law are bracketed in favor of the practices and institutions that compose law in a narrow sense.

Perhaps both the legal realists and social movements like abolitionism represent apophatic natural law. They are concerned with the ways in which abstract, formalized law can be captured by worldly interests, diverging too far from the primal scene where common law and natural law are identical. Where Frederick Douglass and John Brown appeal to a thinly sketched higher law that runs against the law of the land, the legal realists do not claim that their alternative has to do with natural law. It has to do with politics, and law as unabashedly an instrument of politics. In both cases, the emphasis is on the negative, with a gesture toward the positive that can only be made by abandoning the traditional domain of law. Understood apophatically, concerns about supersessionism begin to fade.

To what extent does insisting upon the connection between common law and natural law serve a policing function? Instead of the heavy-handed policing of today’s partisans of natural law, who take particular pleasure in disciplining the bodies of women and queer and trans folks, the tradition Forsyth sketches suggests a much subtler form of policing through naturalizing the status quo, current legal practice. In a moment when abolition has again entered our political conversation, it will be useful both to tap resources from countertraditions of natural law, like those of Douglass and Brown, formed far outside elite institutions, and, with the help of scholars like Forsyth, to understand the subtleties of mainstream natural law from which the countertraditions must be differentiated.

  • Andrew Forsyth

    Reply

    The Danger of Natural Law: Response to Lloyd

    There’s a pincher movement in Vincent Lloyd’s take on Natural Law and Common Law in America. He identifies two-directional danger. There’s danger in our opting out of ordinary legal process and danger in hermetically sealing off ordinary legal process from external critique: states of exception open up possibilities, but not only for the good; unchecked confidence in the system benefits some, not all.

    In his generous essay, Lloyd identifies the book’s contribution as an “antidote” to the former (opting out), which he calls the “supersessionist imagination.” The deficiency of the book—or at least of the figures it tracks—is lack of critical engagement with the latter (sealing off) and its refusal of disruption from outside the system. The two prongs of the pincher needn’t be equal, of course. Indeed—as I understand him—knowing the sealing-off tradition is most valuable for Lloyd in clarifying the possibilities and limitations of the opposing opting-out approach.

    * * *

    It’s easy for us in 2020 to judge and find wanting our all-too-human laws. So, too—and a fortiori—our legal system. Across centuries, “natural law” has been a standard for such judgment. It names a “higher law” that comes from God, nature, or reason (perhaps all three simultaneously). Prophets of this higher law have differed, however, in whether its content is, or even can be, part of our mundane human laws. Are prophetic visions and condemnations a blueprint for human law or reflection of its continual failure? Can prophecy’s content become the status quo?

    Lloyd’s 2016 Black Natural Law (New York: Oxford University Press, 2016)—the subject of an earlier Syndicate symposium—holds out a tradition of natural law as continual critique, a challenge to worldly wisdom. In his current Syndicate essay, he names as “supersessionist” an analytically simplified if similar vision of natural law, which “gesture[s] toward the positive that can only be made by abandoning the traditional domain of law”; gospel must replace law.

    The “mainstream” of natural law, as he calls it, sees gospel in the law. Its principal figures think that our mundane human law does and should accord with higher law. Human law properly accords with reason. Or rather: inasmuch as human law accords with reason, it is properly law. In the particular version I trace, American common law over four centuries is yoked to natural law. Most minimally, its proponents saw American common law’s internal coherence and logical organization as a reflection of a higher law. More robustly, proponents saw the substance, too, of higher law in this human law: as the building blocks and starting points for international law (100–101), contracts (92–93), crimes and their punishments (97–98), marriage (94–96), and property (60–62). Stretching natural-law orthodoxy but still within the common-law fold were some proponents’ views that higher law disappears into the background of mundane human law, becoming its “common sense” or invisible infrastructure (78). And that the lived experience of a people—custom, history, and reason together—might sufficiently reflect the higher law to be its proximate source for human law (80–83).

    Whether as formal organization, substantive content, or sublimated backdrop, however, the understood “harmony” of higher and human law should give us pause. There is the ever-present danger of imagining that human law is the higher law. If you already have everything, why look outside the system or listen for discontented voices? More particularly, who among us would wish to claim that the history of American law, wholesale, corresponds with morality?

    More than Lloyd tells, however, shards of self-criticism pierce the confidence of common-law proponents of natural law: “We often mistake for nature what we find established by long and inveterate custom,” said William Blackstone (62). Human beings only have access to “some relics of the law,” said Puritan William Ames, akin to “some dim aged picture” (9). Puritan confidence, instead, was in “the voice and power of God,” which “renews as with a pencil” the dim aged picture (9). Of course, the Puritans brought less circumspection to their understanding of what they “knew” by God’s voice and power; reason they thought mediated, revelation immediate; self-criticism in one domain bolstered certainty in another. Then again, certainty and uncertainty wrestle in all claims to truth, including the opting-out tradition of external critique that Lloyd, in part, commends. Critique must itself be continually critiqued.

    Whatever the force and extent of the tradition’s recognition of its fallibility, it is undoubtedly “conservative.” Arguably, its basis in common law makes that inevitable. After all, common law gathers and take forward the past and present. It looks to prevailing custom and puts things down on paper. It makes past judgments authoritative in the present. Edmund Burke gets only a fleeting reference in the book—and as parliamentary politician not theorist (63)—but “Burkean” well describes the common-law idea that wisdom is practically bound up, refined, and communicated forward by institutions and practices—not by external appeals to justice—and that a broad tributary of thought is better than a radical voice.

    * * *

    For much of American history it was a mainstream assumption that American common law was not just in fundamental harmony with natural law, but structured and justified by way of reference to it. In his attention to “counter traditions,” Vincent Lloyd rightly shows that “natural law” names, too, the mainstream’s antagonists. Appeals to higher law can reinforce or upend.

Response

What Explains the Disappearance of Natural Law?

I remember telling a senior colleague at the University of Chicago’s law school that I intended to investigate the history of natural law as it was understood and used by lawyers in earlier centuries. This was some years ago now, but I still recall exactly what he said when I had mentioned the law of nature. It was a challenge: “But does it exist?” That’s what he said. He (obviously) doubted that it did, at least it did not as a meaningful source of law. I remember fumbling for an answer and saying something like, “Well, it used to.” Not much of a reply, I admit, but it was all I could think of at the time. I have always wished I had known more and done better.

But perhaps my experience was worth something. This episode stuck with me as I later worked through the history of the law of nature, finding abundant evidence in earlier centuries of the frequent references lawyers and judges of earlier centuries made to it in arguing and deciding cases brought before the courts. There was little or no criticism there, much less rejection, of natural law’s existence and its substantial place in a legal system. It actually occupied a secure place in the thinking of all lawyers and judges. The contrast between what I found and my colleague’s attitude was particularly striking; it was real change. Today, it seems that apart from groups of enthusiasts for natural law—most of them academic philosophers or political scientists—the subject had disappeared from the thinking of the professional lives of lawyers and the academy. How can this dramatic change have occurred? What happened to explain its disappearance? From the earliest days of Western legal history to the nineteenth century, natural law counted. Virtually all lawyers accepted its existence and even its utility in their professional lives. Today they do not.

You may imagine, therefore, the immediate interest I took in the book under discussion in this symposium. It was a pleasure to read, clear in exposition and mercifully free from grand and abstract statements that too often confuse more than they inform. Also, the book concerned the very period in which the change occurred. It brought me into today’s world, the world of the legal realists. Of course, its topic was to trace the change, not necessarily to explain it, but in doing the former, I found that the author had suggested several avenues for exploring the reasons for the disappearance of the law of nature from the professional lives of lawyers. They are the subject of this intervention. I will discuss the three I found.

The first, a current running through the book’s first chapter, is that over the course of centuries, the law of nature had led to so many disagreements, so many uncertainties that lawyers gradually lost faith in its value. In other words: if it did not lead to secure conclusions, what was its real worth to a lawyer? Calvin’s law of nature was not the same law of nature as that espoused by Thomas Aquinas. Thomas Hobbes did not draw the same conclusions from natural law that Ulpian did. They used many of the same words, but they meant different things. So, it seems, by the late nineteenth century, there were too many divergent viewpoints of what natural law meant. Once lawyers woke up to this fact, they lost their respect for it.

I find this argument unlikely for two reasons. First, it is true of virtually all fundamental statements of law—Magna Carta, the Bible, the United States Constitution, for instance. They have not lost their value or forfeited their respect among lawyers despite long-continued variations in the conclusions to be drawn from their contents. Second, natural law itself did not claim to provide definitive answers to most legal questions that arose in practice. As Forsyth’s book notes, it was not a trump card. It was subject to amendment by the ius gentium and by positive law, whether customary or enacted. A famous example taken from history is the controversy over the freedom of the seas between Hugo Grotius and John Selden. Was it a mare liberum or a mare clausum? These two jurists reached opposite conclusions, but it was not because they held divergent views of the law of nature. Indeed, they agreed that in its origin the seas were open to all. The disputed question was whether that remained true in the organized society in which they lived. It was on that question that their disagreement rested. So it proved in cases brought before the courts.

A second possible explanation for natural law’s disappearance from modern legal practice, one raised in chapter 5 of Forsyth’s book, leads to Christopher Columbus Langdell and the rise of the casebook as the method of instruction in American law schools. Dean of Harvard Law School from 1870, he abandoned lectures about the character of law in favor of the exclusive study of decided cases. Law, he thought, was to be understood as a science, the rough equivalent of physics or chemistry. Its contents were to be discovered not by a priori reasoning, but by observation what reported cases themselves taught. This is, as you know, the method that now prevails in American law schools. Langdell’s approach leaves little space for big theories. So, as if by accident, study of the law of nature passed out of the notice of future lawyers. They were trained to use decided cases, not to think about ideological underpinnings.

This second possibility for explaining natural law’s disappearance from the attention of modern lawyers also seems open to doubt for two reasons. First, natural lawyers themselves drew conclusions from the observation of facts—the facts observable in human behavior. One has only to read Hugo Grotius’s treatise De iure belli ac pacis to appreciate how relevant these facts were for him. How men behaved and how they thought mattered; he went into considerable detail to demonstrate that the laws of war and peace had been observed (or violated) in practice. It is true that Thomas Aquinas did not do this. Few historical examples grace his pages. But he was not a lawyer. Second, on Langdell’s point of reliance upon decided cases rather than moral theory, the fact is that references to natural law itself would have been found in many of the decided cases. Judges themselves used it in their opinions. Reliance upon past judicial opinions, far from ruling out any mention of the law of nature, might actually have encouraged it. This is the subject of my own recent book on the subject, Natural Law in Court (2015), and I will not say anything more about it. I may also have misunderstood our author’s argument on the subject, and it certainly seems that Langdell himself was not much interested in natural law. However, that his case bound approach itself caused lawyers to abandon any reference to its place in deciding cases seems unlikely to me.

The third possible explanation for natural law’s disappearance from the professional lives of lawyers that I found suggested in the book we are discussing points directly at Oliver Wendell Holmes. Holmes was a skeptic and a soldier—three times wounded in the American Civil War. That experience taught him, he said, that in life the stronger side prevails. Morality in warfare counted for little or nothing, and he concluded that the same thing was true of the law. On this basis he derided the existence of natural law. An article of his that appeared in the Harvard Law Review summed up his position. Natural law was actually a “naïve belief” held by men who thought that what they themselves accepted as obvious and true must also hold true by all other men. In this they were deceiving themselves.

Ridicule is a powerful weapon, particularly when it comes from the pen of a lawyer as famous as O. W. Holmes. However, it is doubly hard to accept that his influence was the cause of natural law’s disappearance from current legal thought. Not only because he was a single, if admittedly strong voice. The stronger reason is that moral argument has not in fact disappeared from the legal arena. The current prevalence of what its critics call “rights talk” itself shows its persistence and its power. Claims to all sorts of legal rights are supported by widely accepted principles of morality, and they seem to count in litigation for that very reason. They are not specifically tethered to natural law, as some of them once might have been, but they do not rest on simple majoritarianism. Moreover, Holmes’s stated reason for treating natural law as a naïve belief is actually very like one of the traditional reasons given for accepting its validity. That is its acceptance among civilized men. Not small or isolated groups of men, and not careless or reckless men, but all thoughtful civilized men throughout history. If there are such principles so accepted, the natural lawyers supposed, then there must be something more than convenient opinion in what they accepted as natural. History was one way of proving the existence and persistence of such principles, and at least according to thoughtful lawyers of prior centuries, it did so.

Where, then, does this leave us? Or rather, where does it leave me? It does not leave me as a critic of Forsyth’s book. Of that I am sure. Indeed, the book we have under discussion did not set out to provide an answer for my uncertainties. It actually has had the merit of having put the questions I have been discussing here into my mind. To find a satisfactory answer to the question of causation requires additional thought and investigation. Looking beyond the subject’s history in the United States is certainly one desirable approach. But, beyond that obvious source of information, it is difficult to know where to turn. What is the cause? It might be simply the love of novelty that dominates the academy today. Or maybe it has been simply the end of the ancien régime. Natural law perished along with many other long-accepted institutions. Or perhaps we simply call natural law by a different name. Declarations of basic human rights may suggest that answer. The jurists involved in its rejection have rarely admitted to anything but a search for the truth—for an accurate description of the nature of legal regimes—as the cause of their rejection of the law of nature. That was a goal they shared with jurists from many centuries, but it may have suggested a need for rethinking. A recent helpful introduction to current legal jurisprudence, Brian Tamanaha’s A Realistic Theory of Law (Cambridge University Press, 2017), provides an example. It makes its readers wonder who ever dared to put forth an unrealistic theory of law. Not many, I think. Maybe jurists have tried too hard to pattern their thought to eliminate all traces of ideology. I do not know. Perhaps there is little choice but to leave the question open to discussion. Regrettably, that seems to be where I now am.

  • Andrew Forsyth

    Reply

    What Happened? Response to Helmholz

    The mainstream of American legal thought, across centuries, presupposed—even directly articulated and explicated—the interrelation of common law and natural law; natural law undergirded the development of American jurisprudence. Colonial-college instruction tied together “what we know” and “how we should live well”; human laws, students learned, derive their authority from their correspondence with the moral order. Through Revolution and Enlightenment, investigations of human reason promised an ever-closer correspondence of legal right and natural good. In the new Republic, common law was organized and structured through natural-law categories, often quite literally in the headings and chapters of books of commentaries on the law as practiced and enforced. Natural law animated, too, the moral purpose of common law in the writings of great nineteenth-century jurists and scaffolded the construction of a putative “legal science.”

    What happened? If—as R. H. Helmholz puts it—“from the earliest days of Western legal history to the nineteenth century, natural law counted,” why, today, is this no longer so?

    Common Law and Natural Law in America offers an answer of sorts: a break between “reason” and “decision” in legal determinations left natural law beside the point. The book outlines the late-nineteenth- and early-twentieth-century histories of Oliver Wendell Holmes and the legal realists (125–45): exemplary skeptics, for whom legal rules “underdetermine” the result of a legal case, leaving political might, convention, psychology, or sociology—but not correspondence with reason or morality—to fully determine the result, fill the gap, decide the case.

    To our benefit, Helmholz digs further. He offers three additional “avenues for exploring the reasons for the disappearance of the law of nature from the professional lives of lawyers,” generously expanding on the book’s starting points, as I certainly built off the insights of his Natural Law in Court: A History of Legal Theory in Practice (Harvard University Press, 2015). Helmholz briefly walks these capacious if necessarily short avenues: of decline through perennial disagreement, of decline through changing modes of instruction, and of decline in moral argumentation in law. His observations along the way are well taken.

    Where I disagree with Helmholz—and our disagreement, to some extent, is likely just a matter of vocabulary—is with his distinction between tracing and explaining change. (A distinction that finds a parallel in debates over whether in stating laws through determining cases the common law is discovered or created [e.g., 83].) As I see it: in the practice of intellectual history, to trace a story well is to explain it, and to trace the story differently to past accounts is to offer a reassessment of the evidence.

    If my short answer to the question of why natural law is no longer vibrant in American legal practice is to point to O. W. Holmes and the legal realists, the fuller answer, therefore, is the narrative of the whole book: Common Law and Natural Law in America gives an account not only of the changing understandings of the “building blocks” of natural law—its source, content, knowability, and legal practicability—but also the changing psychological, theological, and historical assumptions of jurists and legal professionals, which allowed for its embrace and use.

    With all that in mind, perhaps the simple answer to Helmholz’s question is do what was mostly implied in the book: to compare the historical narrative to the present. When we do so, the surface sociological answer is that few lawyers today adopt the language of natural law, and, if they do, its utility for their professional lives is limited. This language’s building blocks and assumptions were shared, for all their differences, by the Puritans (1–23), revolutionaries (24–45), William Blackstone (46–70), Joseph Story (70–104), Christopher Columbus Langdell (105–124), and their ilk.

    And yet, that answer is not quite right. The story of Natural Law and Common Law in America is, in part, a narration of how and why natural law was subsumed or incorporated into common law. As the details of a particularly American common law were developed through the centuries, lawyers increasingly turned to its body of principles and precedents (103); common law proceeds on the whole from recent precedents not fresh interpretation of basic sources.1

    Where specifically philosophical interest in the law is pursued, moreover, we find reflection on natural law. In one sense, indeed, the relationship of law and morality was the primary question of twentieth-century jurisprudence. But even in jurisprudential debates, the natural-law building blocks presented in the book were more often than not swapped out for others. And if some basic assumptions remained about human reason, will, and self-interest (e.g., 51), these were likewise spelled out differently and with a skepticism hitherto unknown. Ronald Dworkin (1931–2013), the great legal philosopher, would set aside “some ghostly form of natural law” (147) in his account of Anglo-American law, even as his theory, at base, requires affirmation of the independent reality of value in the universe, which laws should recognize and track.2 And in global affirmations, proponents of basic human rights, for example, from the Second World War onward, may, as Helmholz puts it, “simply call natural law by a different name.”3


    1. Judicial interpretation of constitutions and legislation does involve a return to the sources. Even so, decisions

    2. For a short personal treatment, see his Religion without God (Harvard University Press, 2013).

    3. Beyond law proper, we find direct appeals to natural law in politics—e.g., Martin Luther King’s Letter from Birmingham Jail (April 16, 1963)—and indirect or parallel treatment in the social sciences, e.g., Martha Nussbaum’s capability approach in development economics: Creating Capabilities: The Human Development Approach (Harvard University Press, 2011).

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