It is always an honor to be included in conversations where law and morality come together, and it is an even greater delight to be drawn into a conversation with a text like this one. Indeed, I am happy to say that my own understanding of the natural law has deepened as a result of reading Andrew Forsyth’s text. And as someone who is himself interested in retrieving a natural law that constructively engages the insights that come from both queer thinkers and critical race thinkers, I take and strongly support Forsyth’s point that maintains that the natural law tradition of moral reasoning—which Forsyth defines for us as “a universal morality naturally accessible to all rational people” (xii)—continues to live with us, even if its presence is that of a ghost in the midst of a postmodern culture like our own that (rightfully) interrogates any transcendence in our thinking about justice.

As a moral theologian, however, I want to continue this conversation by extending it in a different direction and asking: can the natural law tradition be given new life again as a foundation for envisioning the justice that our laws should pursue? Or—using different words—can this ghost of the natural law live, once again, as a being with bones and flesh? A cautious hope, I believe, is possible. More than this, I believe that we can place into conversation some of the figures Forsyth profiles in order to give more substance to that hope. I’d like us to consider Forsyth’s presentation of the approaches to the natural and common law taken by Joseph Story, by Oliver Wendell Holmes, and by Columbus Langdell, just for this sort of purpose.

Joseph Story—both a Harvard law professor and US Supreme Court justice—believed that the law provided a history of a given people’s moral reflection, and as such, the law tied together a society’s history with its use of reason to ascertain right or wrong actions enforceable through the mechanism of the law. What saved this sort of account from the charge of moral arbitrariness was precisely the notion of natural law, which prescribed “those fit and just rules of conduct which the Creator has prescribed to Man, as a dependent and social being” (at 84). What made a law just, then, was whether that law comported with the natural law. Important for our discussion here is to recognize this as a species of moral realism, which is the conviction that there are such things as moral facts, and that, furthermore, it is possible for us to know at least some of them. The guarantor of such moral realism in Story’s system is God Godself, since, as Story maintains, “the obligatory force of the law of nature upon man is derived from its presumed coincidence with the will of his Creator” (at 88).

Another observation that’s important for our consideration here is that Story’s understanding of the relationship between natural law and the positive law left great room for human judgment in promulgating it. Now, ideally, these judgments would be commensurate with the natural law, but there were times when judgments were, instead, all too human. Story himself—to give an example of the latter instance—would unfortunately subject the natural law to sexist interests when he argued against the right of women to vote (89–90). Slavery, as Forsyth also points out, was another example of this pattern of reasoning that subsumes the natural law to other sorts of interests (89). These two rationalizations notwithstanding, however, the point here is that for Story, the positive law incarnates a society’s understanding of natural law at any given point in time, even if that society’s understanding of the natural law ultimately turns out to be false.

I imagine it takes only a moment’s reflection to perceive why such an account of justice would be attractive to a Christian theologian. After all, Story’s framework provides coordinates for God, law, and society in such a way that the rightness of the law depends upon God’s will, and it does so in a way that involves human judgment meaningfully in the process. But this is not to say that this framework doesn’t generate its own theological problems. For if the natural law cannot effectively be appealed to against immoral states of affairs like slavery and the disenfranchisement of women, because, as Forsyth maintains of Story, the natural law can admit of exceptions and is generally unenforceable without some sort of legislature instituting it in the common law (96), what good is the natural law for someone who is wary of the influence of sin in human understandings of justice?

The positions of two other persons analyzed in Forsyth’s text give us insight into possible responses to this question, and I think that the one taken by Oliver Wendell Holmes might strike many of us as a plausible representation of Western society’s current epistemic mood. As a legal theorist, Holmes rejected the belief that the law has some inherent connection to truth, whether through the natural law or otherwise. As Forsyth relates for Holmes, “The law is not a ‘system of reason,’ then, or ‘deduction from principles of ethics or admitted axioms or what not.’ . . . Instead, law for Holmes is simply ‘what is decided by the courts of Massachusetts or England’” (127–28). The law, in other words, reflects the will of those who have power over adjudicating it. No doubt, this sort of attitude goes beyond the courts of Massachusetts and England and goes a long way towards explaining, for example, the obsession American culture has with the United States Supreme Court. For if the law is not about justice, this perspective maintains, then it is about power; therefore, politics is about making sure that those who have the power to decide the law agree with you and not with your opponents. It’s why it seems to be the case that we care more about rulings than about opinions when it comes to Supreme Court decisions. Arguments don’t matter; bottom-line positions do.

This position is described by Forsyth as a legal realist one, but when it is transmuted into a conversation about justice, it becomes a moral anti-realist one. The exact strain of moral antirealism advocated by Holmes in this instance is emotivism, which is the view that moral statements are ultimately expressions of feelings rather than statements capable of truth or falsity (130). Nomenclature notwithstanding, though, the political mandate remains virtually unchanged: convince as many people as possible to believe what you believe, or—if you can’t convince them—render them harmless to stop you. In the wake of such conviction, the study of the law, rather than being intrinsically tied to some notion of truth is instead maintained to have an intrinsic relationship to anthropology, with the result that if we really want to know what makes something true we turn to sociology, economics, critical race, and queer studies in order to shed light. Any sort of assertion of some pre-political, pre-sociological, pre-economic foundation to understanding what is just is understood to be ultimately a rationalization—indeed, another all too human rationalization—of some ultimately all-too-human interest.

So if Holmes, the anti-realist, is going to reply to Story, the realist, on the question of the usefulness of the natural law, the natural law becomes nothing more than a strategy for attaining and maintaining power. But another sort of response is possible, and this is represented by Forsyth’s presentation of the view of Columbus Langdell, whose chapter happens to be situated between those on Story and Holmes, and indeed, his position ideologically is also located between the two of them as well.

As a legal theorist, Langdell is the herald of the inductive case study method that now is commonplace in the legal academy. And as Forsyth notes, the attractiveness of this method in part comes from the fact that Langdell’s innovation made studying the law more scientific in its approach. “As knowledge of natural science was understood to rightly proceed from observation of particular organisms,” Forsyth notes, “so in legal science, the stuff of common law—the written record of judicial opinions—was to be the sole source for the law” (111, emphasis his). It was from this rigorous study of cases that students were to be able discern operative legal principles of right and wrong (just as in the study of physical phenomena could yield a greater understanding of the law of motion that are also generally operative).

What makes this method attractive to me as an ethicist, however, comes from the epistemic commitments implied in Langdell’s approach: for to believe that one can come to a greater, albeit partial understanding of justice by studying various applications of it presumes a moral realist position. Indeed, it is this face of Langdell’s framework that places him squarely within the natural law tradition for Forsyth and Langdell’s other interpreters. But if it is a moral realist position, it is certainly a weak one, since it can be criticized by moral antirealists just as much as it can by other moral realists, and this comes to the fore particularly strongly when one asks about justification or about what it is that gives us grounds to know that these principles we are deriving in the name of justice actually are just. For example, Holmes (along with other moral antirealists) will dismiss any sort of explanatory coherence beyond expedience or self-interest as nothing more than a delusion, and Story (along with other moral realists with express theological commitments) will see Langdell’s framework as failing to properly provide a foundation for the coherence that he is observing. Indeed, as Forsyth rightly asks of Langdell, “Why should we expect to find case law reasonable? It is Langdell’s silence on this question that allows his interpretation as either natural lawyer or positivist” (123).

For my part, I glimpse great possibilities in the midst of this sort of silence, and so I’d like to suggest that, if there’s any future for a theological natural law account of justice, it’s going to need to look something like Langdell’s. To see how this might work, let’s step out of the legal world and into the ethical realm of human rights. As many commentators have noted, human rights have many defenders, but even where people agree about the enumeration of those rights, people are still divided about what it is that makes them truly rights, rather than something like a list of attractive normative claims about human subjectivity in the modern world. Analogously to thinkers like Joseph Story, Christians will want to claim that human rights are ultimately founded in God’s will or in some other theological concept like the imago Dei. The problem with claiming this, though, is that it would not necessarily follow that human rights are reasonable in the sense that they can be arrived at through whatever sort of rigorous reflection is necessary it would take to derive them. In this case, though human rights would ostensibly be universal, their justification would be positively sectarian, and—for that reason—not very productive in our pluralistic context, to say nothing of how secularism places a distinctive inflection point into that context.

A theological account of the natural law tempered by the inductive approach not only highlights the reasonableness that ultimately lies behind our understanding of the principles of justice, but it also emphasizes human fallibility. For just as Langdell’s approach to the natural law opens up the possibility of human error when it comes to understanding justice in the legal realm (something that becomes more obvious when one examines cases that have been decided wrongly), so does emphasizing an inductive moral epistemology recognize that, in retrospect, human judgments can be not only wrong, but can also be gravely wrong and rationalized according to the logics of domination that we have come to understand variously as white supremacy, patriarchy, and heterosexism. But rather than following the moral antirealists in the moral realm (or the legal realists in the legal realm), advocates for this inductive approach to the natural law can take their point—that yes, human beings seem profoundly disinterested in justice even when they claim to be deliberating about it—while nevertheless integrating these miscarriages of justice into a larger project aimed at recognizing that, whatever justice is, it lies on the other sides of oppressions like racism, sexism, and homophobia.

After all, there is something agreeably scientific about this approach. Just as we make mistakes in the scientific realm, so we also make mistakes in the legal and moral realms. The intuition here, then, would be just as it would be positively unreasonable to abandon a moral realism about truth because scientists have made incorrect judgments in the past, so it would also be unreasonable to abandon a realist perspective about justice because human moral judgments have been incorrect—even evil. The same goes, by extension, for human rights.

So, then, what are we left with? We’re left with an inductive account of the natural law that finds its analogy in the legal framework of Columbus Langdell—one that looks at the concrete realities of people’s lives in order better to discern how to make this world a better place than when we found it. We delve, in other words, into the case law generated by studying the cultures and histories of the world, and we seek to distill whatever normative truths about it that we can.

But if this is supposed to be a theological account of the natural law, where does God fit into this? The answer: in the silence; in the “still small voice” of Elijah’s encounter with God (1 Kgs 19:11–12); in the apophatic moment that, stirred by faith, performs a negation of “nothing,” to leave us alone with the ground of our being.

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 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 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.

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.