My younger son, Tobias, who is teaching Conflict of Laws this semester at NYU Law School, asked me some questions a few days ago about a debate that has gone on for a long time in the jurisprudential world concerning the nature of law, a subject related to some scholarship he is engaged in. I talked to him for a bit about a debate between the English legal theorist H. L. A. Hart and the American Lon Fuller, a debate that was very much on the minds of philosophers when I was a graduate student and Instructor at Harvard. Fuller was a defender of what is known as the Natural Law tradition in legal theory, a point of view deeply rooted in Continental European legal theory but very much out of fashion with analytic philosophers in the middle of the last century.The thesis that there is a law written by God into the fabric of nature and revealed to us by our human power of reason was of course a fundamental tenet of the belief system of the men who wrote the American Constitution, a fact that modern day conservative legal theorists remind us of on every occasion, but that liberal legal theorists would rather forget. Recall the opening paragraph of the Declaration of Independence:When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
That phrase, "laws of nature," has become so embedded in the discourse and political theory of the Western tradition that we tend to forget, if we ever knew, that when first introduced into that tradition it was presented as a deliberate paradox designed to affront the readers and make them reject their settled convictions. The phrase appears for the first time in Plato's great middle dialogue, the Gorgias. The speaker is Callicles, the third of the three opponents of Socrates in the dialogue. He reminds us of the contrast, familiar to Greeks of the time, between physis, or nature, and nomos, or convention. That fire burns is a fact of nature, of physis, and is unchangeable by our will or desire. That theft is wrong is a convention, invented by men and as easily changed. But, Callicles declares, it is natural that the strong should rule. A. E. Taylor, the great Plato scholar, glosses this rather nicely in his book, Plato: The Man and his Work [p. 117, footnote]. He writes: "The first occurrence, so far as I know, in extant literature, of the ominous phrase 'law of Nature.' Callicles, of course, intends the words to be paradoxical --'a convention, if you like, but Nature's convention, not a human device."
It was the Stoics, several centuries later, who took up the notion and provided it with a theoretical foundation. God, they taught, created the world and imposed on it a rational normative order, dictating both how nature must act and how men ought to act. This same deity implanted a spark of the divine logos in man as the power of reason. Because the objective normative order of the universe and the subjective power of human reason were expressions of this same divine logos, man's reason is capable of apprehending the objective normative order. Thus, as John Locke claimed in the 17th century, the Law of Nature is written into nature and is known by man prior to and independently of any social and political order that he may choose to establish. It is the obligation of those who guide a state, or indeed for those who establish one de novo, to write into its conventions, its positive laws, its constitution, the objective normative order that their rational power apprehends.
The natural law theorists maintain that only those human conventions or positive laws [laws, that is to say, by virtue of the position of those who proclaim them] that conform to the Laws of Nature are truly laws and hence are binding on us. This view was extremely attractive in the 1940's and 50's to legal theorists who were struggling with the fact that the horrific acts of the Holocaust had all been carried out according to laws promulgated by the German state and administered by distinguished judges who abided in every way by the legal formalities of which they were universally acknowledged to be masters.
Why on earth am I writing all of this in my blog? Because it is interesting, conceptually interesting, and after a while I begin to feel a revulsion at the mindless superficiality of the political commentary that dominates our public space. It refreshes my mind and, as it were, cleanses my intellectual palate, to devote a few minutes to writing about something that it is actually worth the time of an intelligent person to contemplate.
