Robert H. Bork



Copyright (c) 1999 First Things 94 (June/July 1999): 17-21.


The continuing contemporary interest in Thomas More (1478“1535) is hardly to be accounted for by popular fascination with sixteenth“century English politics or even by admiration for a martyr to a religious cause no longer universally popular. It is more likely that More’s memory remains fresh after almost half a millennium because his life casts light on our time. More lived, as we live today, in a time of rapid social and cultural unraveling. The meaning of his life, at least for us, is not so much his worldly success and religious piety, extraordinary as both of these were, but rather the courage and consistency with which he opposed the forces of disintegration.


The culture war of the early sixteenth century was fought over the breaking apart of Christianity, its loss of central authority, and the consequent fragmentation of European civilization. Our war rages about the collapse of traditional virtues across all of the West and the rise of moral indifference and cheerful nihilism. Many parallels between the two eras could be drawn, but a crucial similarity lies in the central role played by law in each. Though More was a profoundly religious man, it should not be forgotten that he was also a preeminent lawyer and judge. The law, quite as much as Catholicism, is crucial to an understanding of the man and the martyr. Law and its institutions were, of course, major forces of cohesion in More’s age, and are perhaps the primary symbols in ours of stability and continuity as well as justice. When moral consensus fades, as it did in More’s time and does in ours, we turn to law; when law falters, as it must when morality is no longer widely shared, society and culture teeter on the brink of chaos.


That is another way of saying that law cannot be divorced from morality”and, there is reason to think, morality, at least in the long run, cannot be divorced from religion. Law and religion are alike, therefore, as reinforcements of social order. It is a subject for speculation at least, whether either can long remain healthy and self“confident without the other. Each imposes obligations, but each is subject to the therapeutic heresy, softening those obligations to accommodate individual desires. It is a sign of our distemper that Thomas More is today so often regarded as a hero of civil disobedience, a man who refused to obey law with which he was in profound moral disagreement. That is a considerable distortion of the truth, and it was not More’s understanding of his motives. For him, in a very real sense, law was morality. It is equally true that for More morality was superior to law and was the standard by which law must be judged. If that seems a paradox, I do not think it truly is one.


More, as his biographers make clear, had the utmost respect for authority, hierarchy, and social discipline. He was born into an age when schooling stressed these virtues. Early education, including the study of musical harmony, as Peter Ackroyd informs us, emphasized the paramount importance of order and hierarchy. Then came the study of rhetoric, memorization of simple syllogisms and verbal formulas, by which young students were “made aware of the presence of external authority while at the same time becoming familiarized with the implicit demands of order and stability . . . . Beyond all this, too, was the image of God.” These tendencies were confirmed in More’s study of the law. “The central and important point,” Ackroyd writes, “is that both [religion and law] were conceived to be visible aspects of the same spiritual reality . . . . The attitude More adopted towards the primacy and authority of law governed all his subsequent actions.”


Contrast this with today’s anarchic popular music and primary education, embodied at their extremes in rap and the self“esteem movement, which cater to and encourage the natural indiscipline of the young. It should not be surprising that similar manifestations of the disorder appear in adult fields of endeavor, including law and religion. These tendencies were present in More’s age as well, as Ackroyd makes clear:



It is of the greatest significance in understanding his [More’s] behavior . . . to realize that he wrote about the law in precisely the same way he described the Church. There was, for him, no essential or necessary difference. That is why he understood at once the nature of Martin Luther’s heresy, when the German monk spoke of judgment “according to love . . . without any law books.” When Luther emphasized the importance of the “free mind,” as opposed to the tenets of “the law books and jurists,” More recognized instinctively that he was mounting an attack upon the whole medieval polity as constituted by the Catholic Church; when Luther argued that law was written within the heart of man, and that judges should ignore matters of precedent and tradition, he was assaulting the principles by which More’s life and career were guided.


More saw Luther’s advocacy of lawless law to be at the heart of their culture war. Luther spoke for the individual conscience and so necessarily attacked the authority of precedent and tradition in the law. More’s view of law and the duty of judges was quite different. R. W. Chambers quotes him as saying: “If the parties will at my hands call for justice, then, all were it my father stood on the one side, and the devil on the other, his cause being good, the devil should have right.” Luther and many modern jurists would reinterpret the law to do the devil down, and the moderns, at least, would reserve to themselves authority to decide which is the father and which the devil.


Robert Bolt’s A Man for All Seasons got More remarkably right. In one scene, More, then the Lord Chancellor, argues with family members who are urging him to arrest Richard Rich, the man who was later to betray him. More’s daughter, Margaret, says, “Father, that man’s bad.” More answers, “There is no law against that.” His son“in“law, William Roper: “There is! God’s law!” More: “Then God can arrest him . . . . The law, Roper, the law. I know what’s legal, not what’s right. And I’ll stick to what’s legal . . . . I’m not God. The currents and eddies of right and wrong, which you find such plain sailing, I can’t navigate. I’m no voyager. But in the thickets of the law, oh, there I’m a forester.”


Bolt, in a familiar passage, has More say when assailed by his son“in“law with the charge that he would give the devil the benefit of law:



MORE: Yes. What would you do? Cut a great road through the law to get after the devil?

ROPER: I’d cut down every law in England to do that!

MORE: Oh? . . . And when the last law was down, and the Devil turned round on you”where would you hide, Roper, the laws all being flat? . . . This country’s planted thick with laws from coast to coast”man’s laws, not God’s”and if you cut them down . . . d’you really think you could stand upright in the winds that would blow then? . . . Yes, I’d give the Devil benefit of law, for my own safety’s sake.


To understand More, then, it is equally important to realize his absolute commitment to law and his recognition of the fallibility of human moral reasoning. To be ruled by each individual’s moral beliefs is to invite, indeed to guarantee, social tumult and disorder. The law alone is uniform, a composite or compromise of varying moral assessments, to be applied to all alike, regardless of personal attitudes about the persons involved: father or devil, it makes no difference. If an acceptable mix of freedom and order are to be maintained, obedience to law must be accepted as a primary moral duty.


The veneration More gave to law, he also gave, and for the same reason, to constituted authority. More served Henry VIII, a sovereign whose policies he often believed to be immoral or profoundly unwise. He was under no illusions about his king, even as we should be under no illusions about our governors or even the democratic will. When Roper rejoiced at how friendly Henry was to More, he replied, “I have no cause to be proud thereof, for if my head could win him a castle in France it should not fail to go.” Yet he did not disobey; he might give contrary advice, but, the policy or the law once decided upon, he complied. He disapproved of Henry’s ruinous war with France, but, as Speaker, he asked Parliament for extraordinary and unpopular taxes to support that war. Later, when More was Lord Chancellor, and it was proposed to put Parliament in control of the Church, Richard Marius tells us “More was sick at heart at the prospect . . . [but] he could not control events. Worse, he was a respectable figurehead, kept by the government to lend it whatever authority his reputation gave him, serving by his very presence in the post of Lord Chancellor a cause which was to him abominable.” He wanted to resign. “Yet he could not resign, for to do so would have been to run the risk of making his opposition to the king public.”


Henry commanded More to speak in the House of Lords to say that the king was pursuing his divorce from Catherine as a matter of religious scruple and not for love of any other woman. In doing so, More pointed out that various universities agreed the first marriage had been unlawful. Someone asked More’s opinion and he replied that he had given it to the king and said no more. As Chambers put it, “Respect for authority . . . was the foundation of [More’s] political thinking.” He presented the king’s case, but would not go an inch further.


Why, then, this obedience to constituted authority and to law, even when he regarded them as immoral? It may have been partly ambition; it was surely, in large part, fear of the alternative to law. An Elizabethan play, probably written by Shakespeare, has More attempt to quell rioters against aliens in London:



Grant them removed, and grant that this your noise

Hath chid down all the majesty of England.

Imagine . . .

Authority quite silenced by your brawl . . . .

What had you got? I’ll tell you. You had taught

How insolence and strong hand should prevail,

How order should be quelled; and by this pattern

Not one of you should live an aged man;

For other ruffians, as their fancies wrought

With self same hand, self reasons and self right

Would shark on you; and men like ravenous fishes

Would feed on one another.


It may be counted unfortunate that More’s speech was followed immediately by a riot. He was no more successful than were a few professors in the sixties extolling the virtues of prudence and order to rampaging students.


But there is more than the fear of lawlessness and tumult. There is the thought that he is not sure about morality, that he may be wrong. When Roper says to him, “The law’s your god,” More replies, “Oh, Roper you’re a fool, God’s my god . . . . But I find Him rather too subtle . . . . I don’t know where He is nor what He wants.”


Again he says: “God made the angels to show Him splendor”as He made animals for innocence and plants for their simplicity. But man He made to serve Him wittily, in the tangle of his mind.” Not in the pride and certainty of the individual conscience, but in the tangle of his mind. It was because More recognized the fallibility of individual minds that he obeyed authority but saw no need or virtue in doing more than authority required when his mind told him that what was ordered was wrong.


The recalcitrance that brought More to the headsman was his refusal to take the oath that Henry was the Supreme Head of the Church in England and endorse a series of acts ending the supremacy of the Pope. The source of More’s devotion to papal supremacy illuminates the man. The point was not that the Pope’s authority had been instituted immediately by God (indeed Christianity was several centuries old before papal authority as it would come to be understood was clearly established), but that the Pope’s power rested upon the inherited traditions and beliefs and the general councils of the Church. The councils, of course, and the evolution of the Church were believed to be guided by God. Here again, More’s faith and his view of law became almost indistinguishable.


His recalcitrance may be seen, as it often is, as More’s one great act of disobedience. Bolt writes that More seemed to him “a man with an adamantine sense of his own self.” “He knew where he began and left off, what areas of himself he could yield to the encroachments of his enemies, and what to the encroachments to those he loved . . . . But at length he was asked to retreat from that final area where he located his self. And there this supple, humorous, unassuming, and sophisticated person set like metal, was overtaken by an absolutely primitive rigor, and could no more be budged than a cliff.” It is this behavior that causes Bolt to refer to More as a “hero of selfhood.” Indeed it was extraordinary behavior: More was the only person not a member of the clergy who died rather than take the oath.


Yet it seems wrong, or at least potentially misleading, to attribute More’s behavior to “selfhood.” It is a symptom of our disorder that we glorify, practically deify, the individual conscience. It was not always so. It must have been well into this century before “civil disobedience” and “heresy” became terms of praise. To the contrary, More’s behavior may be seen as submission to external authority, a conscious and difficult denial of self.


The refusal to take the oath should not, of course, be viewed as disobedience at all. There was a law higher than Henry’s and Parliament’s, and More knew that the oath violated that law. There were few other occasions on which that could be said with certainty. More, an exemplary courtier, servant, and confidante of the king, did not suppose that God’s will was clear enough to require refusal to serve the king even when his purposes seemed to More unjust; he even assisted the king in temporal struggles against the Pope, as, given his understanding of his respective duties, he should have. God’s law is not often clear to the tangled mind of man, but there was a central fact about which More could have no doubt: Christ did not leave behind a book but a Church, and that Church must not be divided. As to this ultimate thing, he, at last, knew where God was and what He wanted. More was caught between two authorities and the question for him, the commands of both being clear, was which authority was superior. At this extremity, God was no longer too subtle for him, and More obeyed God’s law and went to his death. This was not disobedience but obedience, a thought he expressed in his last words as he placed his head on the block: “I die the king’s good servant, but God’s first.”


II


Individualism in the law, as in matters of faith, produces the substitution of private morality for public law and duty. This is precisely what More thought Luther was encouraging in his own day, and it is even more prominent in ours. That may be seen in the growth of legal nullification, the refusal to be bound by external rules, that is not only widespread among the American people but, more ominously, in the basic institutions of the law. More applied his injunction as much to the judge on the bench as to rioters in the street. We all recognize rioters as civil disobedients but we are less likely to recognize that the judge who ignores law or who creates constitutional law out of his own conscience is equally civilly disobedient. In 1975 Alexander Bickel, in The Morality of Consent , recounted the then recent American experience with disrupters in the streets, but added: “The assault upon the legal order by moral imperatives was not only or perhaps even most effectively an assault from the outside.” It came as well from a Court that cut through law to do what it considered “right” and “good.” Our law schools now construct theoretical justifications for that particularly corrosive form of civil disobedience, explaining that judges should create, and enforce as constitutional law, individual rights that are nowhere to be found in the Constitution.


Against the backdrop of Justices disregarding the law, it is not surprising that jurors are refusing to be bound by either law or evidence if the results do not fit their personal views. Our representatives enact the laws but juries scattered across the country vote on them again, often overturning the democratic choice. This pernicious practice occurs not only sub silentio but is coming into the open. There is even a national organization, the “Fully Informed Jury Association,” to justify and encourage jury lawlessness. Some nullification occurs because black jurors think the law is arrayed against them or out of racial solidarity (the O. J. Simpson verdict), but other defiances reflect libertarian attitudes and personal disapproval of the law (the Jack Kevorkian acquittals). According to the Washington Post , a poll shows that three out of four Americans say they would disregard the judge’s instructions if the law contravened their own ideas of right and wrong.


Now we have seen Senate nullification of the law of impeachment. The evidence left no doubt that the President had deliberately and repeatedly committed perjury, tampered with witnesses, and obstructed justice. Felonies, all of them. Nor is there any doubt, based on the Framers’ understanding and prior Senate precedent, that these offenses constituted “high crimes and misdemeanors” requiring removal from office. Yet the Senate felt free to prefer partisan interests to law, and refused to convict.


These are manifestations in the law of the absorption with self and the disrespect for inconvenient rules that permeate our culture. This absorption, variously called radical individualism or autonomy, is taken to justify even institutional lawlessness. As Bickel noted, civil disobedience, no matter by whom or in what cause, is always “a decision in favor of self, in favor of the idea of self.” That is why, in the law, it encourages moral relativism, which is a leading feature of modern constitutional adjudication as well as jury verdicts and legislatures sitting as courts of impeachment.


To all this Thomas More provides the sharpest contrast. As Chambers notes, “From [his book] Utopia to the scaffold, More stands for the common cause, as against the private commodity of the single man.” If obedience to constituted authority and to established law was at the center of More’s morality in the reign of Henry VIII, how much more would it have been his guiding principle when law and policy owe their legitimacy to being democratically made, when they are, in the most real sense they can be, the will of the community?


For More, morality was superior to both human law and the will of the sovereign in that it could be used to shape or to alter that law and that will, though not to justify disobedience to it. This clearly appears in Utopia , where he argued that it was a man’s duty to enter public life despite the evil necessarily entailed, saying, “That which you cannot turn to good, so to order it that it be not very bad.” In a word, try to make law as moral as you can, More constantly argued, but when it is made, whatever it commands, morality lies in obedience. If disobedience is ever justified, it is only when the issue is of transcendent importance and when you are absolutely sure of the right and wrong of the matter. In a democratic polity there can be such occasions, but they will be extremely rare.


These are issues of law and morality internal to the United States, but they arise internationally as well. What we call international law is, of course, in many respects not yet law in any real sense. It is in a formative stage, the stage at which More would have felt free to infuse morality. This raises the increasingly important question whether we should try to build an international law, or pretend there is one, about the use of armed force between nations. In the present condition of the world”a condition that looks permanent or at least likely to be of indefinite duration”I think More would say no. It must be “no” because such law cannot be moral, since, to be called international, rules about armed force must necessarily express a “morality” acceptable to immoral regimes.


Go back to the debate over the legality of the United States’ invasion of Grenada in October 1983. At the time, a number of people denounced the invasion as illegal, while others defended its legality. In a discussion with an international law expert, I pointed to three factors that most people deemed relevant to the American action in Grenada. First, the Grenadan government had been formed by a minority that seized power by violence and maintained it by terror. Second, it was a Marxist“Leninist regime and so represented a further advance in this hemisphere of a power that threatened freedom and democracy throughout the world. Third, the people of Grenada were ecstatic at being relieved of that tyrannical government.


I said then that these three factors seemed to me morally relevant and asked whether they were relevant in international law. The answer was no. That answer was correct because there is no consensus among nations that any of these considerations justifies an invasion. This means that when we act for moral reasons, we cannot give those reasons and must, to the degree we acquiesce in the false notion that there is already a binding international law, cast ourselves in a false position. When the rules we are asked to call “law” must exclude, and indeed condemn, moral action, it would appear better not to call them laws or confer upon them the prestige of that name. Otherwise, we are forced to renounce our morality or else accept the role of disobedients. Thomas More could hardly approve of either course.


A somewhat different problem with international law is posed by the detention in London of General Auguste Pinochet with the possibility of extraditing him to Spain for crimes”namely, the murder of Spaniards”allegedly ordered or condoned by him in Chile. The claim is that there exists an international law that justifies his trial and punishment. I pass by a point that some may consider to have weight: Pinochet saved Chile from a Marxist dictatorship and the despotism, horrors, and bloodshed all such regimes inevitably bring, and, having converted the economy to prosperity through free market reforms, he voluntarily relinquished power to a democratic government. We cannot know what Thomas More would have thought of this episode, but if his attitude toward the heretics of his day is any guide, he might have approved what Pinochet did. The worldwide Communist advance was certainly an assault upon the human soul.


However one comes out on that issue, what is perhaps more worrying is that Pinochet’s arrest sets a precedent all free countries may come to regret. By a parity of reasoning, Ronald Reagan might have been subject to arrest and trial abroad for the bombing of Libya, George Bush for the invasion of Iraq, and Bill Clinton for the air strikes on Afghanistan, Sudan, Iraq, and Yugoslavia. These may not be realistic examples, but one wonders about a “law” that will, inevitably, apply only to leaders of small nations who happen to be caught abroad. After all, nothing is said about international law when our government greets with elaborate ceremonies the most murderous Chinese officials. More’s warnings to the rioters in London could equally be applied to England and Spain in Pinochet’s case: You have taught that insolence and self“righteousness should prevail. Other nations may shark on you and like ravenous fishes feed on one another.


International “law” provides a warning of what domestic law can become if the nullification of law by courts, juries, and legislatures continues on its present course. If some find the obedience More taught too austere for comfort, they ought at least reflect on the question of how much glorification of the individual conscience any legal order can tolerate and remain a legal order. They ought also to ask how much privatization of morality the moral order can withstand and remain a moral order.


In the culture war of the sixteenth century, More was an active combatant for the binding force of law and the uniformity of religion under the Catholic Church. Our culture war is more confusing and diffuse, but at its center it too is a struggle over the uniformity and stability of law. What is true of law is true of other social restraints, not only of morality, ethics, and manners, but also of respect for craftsmanship, which requires, at its highest, the sublimation of self“will to external standards. Hence, as one might expect from the progress of radical autonomy in the law, we observe formless music, meaningless and offensive art, adolescent entertainment, subjective journalism, and an enthusiasm for genetic technology that may soon threaten the essence of what it is to be human. One important segment of a culture does not collapse and leave the adjacent structures intact. Law both reflects the state of our culture and actively alters it. The divisions between areas of culture are only membranes, and permeable ones at that.


More’s life reminds us that the struggle between order and disorder, between authority and the urges of self, is a permanent feature of our condition. Liberty of conscience is a concept easily blurred, or indeed born blurry, and, misunderstood, it can be a force for social fragmentation. Liberty of conscience, insofar as it means the freedom of the individual to construct his own norms, moves from religion to morality, from morality to law, and hence to religious, moral, and legal anarchy. As Ackroyd said: “[More] embodied the old order of hierarchy and authority at the very moment when it began to collapse all around him.” He died for the sake of that order.


More lost, and so may we, but he has much to teach us nonetheless, about steadfastness as a minority, even perhaps as a permanent and dwindling minority. He may even teach us that sometimes staunch minorities are remembered well.



Robert H. Bork is the John M. Olin Scholar in Legal Studies at the American Enterprise Institute and author of The Tempting of America: The Political Seduction of the Law and Slouching Towards Gomorrah: Modern Liberalism and American Decline .