“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.
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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.