Natural Law in Court: A History of Legal Theory in Practice
by r. h. helmholz
harvard, 288 pages, $45

Justice Oliver Wendell Holmes gave voice to the “modern” project in law: It would be a gain, he said, “if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law.” The law would attain its standing as science by simply fixing on the law “posited” or enacted by the people with the power to have their edicts regarded as binding law.

The modern project broke with the view of William Blackstone in his Commentaries: that the law represents “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.” At the heart of the law were judgments about the things that are rightful and ­wrongful, just or unjust. Underlying these judgments was a body of principles, or moral truths. Blackstone simply registered in a rough way the lesson taught by ­Aristotle in the first books of political science: The mark of the political order is law, and law springs from something distinctive in human nature. Animals emit sounds to indicate pleasure or pain; human beings give reasons over matters of right and wrong.

Even in this age of animal liberation, we are still not signing labor contracts with our cows and horses, but we continue to think that beings who can give and understand reasons deserve to be ruled with a rendering of reasons, in a regime that elicits their consent. We speak then of certain rights that arise from this nature for all human beings, and that remain the same in all places and times. The American regime was founded on that proposition—as Lincoln called it, “an abstract truth applicable to all men and all times.” A spirited band, standing against the currents of the legal profession, has sought to restore that teaching of natural law in our own time. They find themselves in the curious position of making old arguments that come as news these days to most lawyers and even judges.

And that is what makes it all the more remarkable that we find R. H. Helmholz, a Distinguished Service Professor of law at the University of Chicago, making the most thorough plea for the place of natural law in our jurisprudence. His new book, Natural Law in Court: A History of Legal Theory in Practice, is an impressive work of scholarship. He has command of the languages that can carry him back to the ancient sources and the medieval period. He traces the understanding of natural law, then, not only in the treatises on law but in a host of decisions by legal tribunals in Europe, England, and America.

Against the vulgar opinion, well settled in legal circles, that natural law was rarely taken seriously, Helmholz shows that it was widely understood as the very ground of the positive law, the law that is “posited” and enacted in particular places and times. Natural law could be flippantly dismissed as the study of Thomas Aquinas, but Helmholz shows that Aquinas rarely surfaced in these jural records. As Aquinas himself said, the divine law we know through revelation, but the natural law we know through that reasoning that is accessible to human beings as human beings. The natural law involves those axioms so fundamental, so bound up with the laws of reason, that one doesn’t need a law degree to understand them. And so woven are they into our understanding that we may rarely be aware that we are leaning on them.

He also shows that even though reliance on natural law has been pervasive, there have been persistent misunderstandings of what natural law is. In the first place, there was the confusion of identifying natural law, as Spinoza did, with the “natural ways” of things. And so, as he said, “fishes are determined by nature to swim, the large ones to live off the smaller; therefore fishes are using this greatest natural right when they possess the water.” This is what I once called the Kern & Hammerstein theory of natural law: Fish gotta swim / and birds gotta fly. Classic commentators would often invoke the “natural” propensity to self-defense as the first natural law, viewing it as all the more natural because it was evinced by animals. But as one commentator, Samuel ­Pufendorf, put it, it is improper to describe as a natural law “whatever is done in a fixed and determined manner.” It is especially inapt to attribute a moral intention, or a moral understanding, to “animals that are not endowed with reason.” The fish may swim, but it is hard to say that they are exercising their rights as they glide about.

Helmholz recognizes that from the beginning natural law has involved not merely reflexes but the reason that is distinct to human nature. And so it was understood that “natural law also meant . . . congruence with natural reason, with which God had also imbued his creatures. Men and women knew right from wrong without any special training.” Humans grasp as true what Aquinas regarded as the “first law of practical reason”: that the “good” is what we approve, applaud, promote, and reward, while the “bad” is what we condemn, reject, discourage, and even punish. That ordinary people naturally understand this difference can be seen in the different behavior of two crowds—the crowd that showered the Kansas City Royals with affection and celebration after they won the World Series, compared with the crowd that erupted in Chicago when a video was released showing the shooting of a young black man. The two crowds somehow knew how to react to the things they found either commendable or condemnable.

From this elementary point, many things follow. Kant held that “moral laws have to hold for every rational being as such.” After all, a law displaces private choice in favor of a rule imposed on everyone. For that reason, it should find its ground in a principle that would hold true for everyone who comes under the law. The laws governing a “rational being” would find their ground then in the laws of reason, the laws that begin with the law of contradiction (that two contradictory propositions cannot both be true). From that point other axioms follow—such as “people should not be held blameworthy and punishable for acts they were powerless to affect.” That axiom holds true under all conditions. Kant warned then against the tendency to make laws based merely on generalizations about the traits of human character, or the kinds of acts, that were thought to be good and just most of the time.

Yet judges, in England and America and on the Continent, would claim to find a ground in natural law for freedoms that just seemed useful and innocent . . . well, at least most of the time. There would be claims of a natural right to hunt and fish, or even to make playing cards. The natural right to hunt was asserted, in one case, against the authority of lords to forbid hunting by their vassals. In another case, men were barred from entering a company of merchants unless they married the widows or daughters of the current members. In both instances, judges found reasons to sustain these policies, even against the claims of a natural right. But in England, in 1602, a monopoly on the manufacture and sale of playing cards was struck down as an “unlawful restraint on trade”—an unwarranted bar to making a living at a legitimate occupation (Darcy v. Allen).

When a claim of freedom is asserted, the question arises of whether there is a plausible “justification” for restricting that freedom. For example, I am blocked by the fire department from walking down the street to my apartment because they are fighting a fire. My liberty to move has been impaired, but it is restricted out of a legitimate concern to protect life, including my own. We would say that the restriction is patently justified and that therefore I’ve suffered no denial of my natural or constitutional rights. We could go on postulating rights to do many things springing from our nature—the desire to swim, to drive fast, to sit in the front of the bus, to drink more than sixteen ounces of soda, or to use marijuana. And in all cases, the judgment will turn on the things not set down in the text of our constitutions or laws. It will have to turn on those commonsense principles of judgment that we call on when we need to decide what restrictions of freedom are justified or unjustified. It will turn, in short, on the “laws of reason and nature.”

In that vein, Helmholz cites that classic statute from Bologna, in the late Renaissance, “that whoever drew blood in the streets should be punished with the utmost severity.” Blackstone noted the case in his Commentaries, and he reported the judgment, reached after a long debate, that the statute was “not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.” And the rest of us say: Shouldn’t that have been clear from the beginning? Couldn’t we have assumed that anyone would have supplied that “commonsense” moral reading of the statute, without the need to spell it out?

Helmholz also cites the implausible American case of Riggs v. Palmer (1889): Francis Palmer made his grandson, Elmer, the chief beneficiary of his will. But when Francis contemplated remarriage, Elmer took the expedient of poisoning him before he could marry and change his will. In spite of his prospects for life in prison, Elmer had the chutzpah to insist on claiming his inheritance based on the text of the will and the governing statutes in New York. As the case went up on appeal, the majority in the court in New York invoked that maxim of the common law: that “no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong.” But the remarkable thing is that two judges on the court dissented, in a gesture of unrelenting positivism: They would have held to the statutes as written. They would not indulge an appeal to those moral principles hovering out there somewhere, beyond the text of the law as written and enacted.

For that is how this exercise is still understood—and resisted—in some quarters of conservative jurisprudence. That aversion to moving outside the text seems to be shaped by the sense that when judges appeal to moral principles beyond the text, they are simply invoking their own likes and dislikes—that there are no canons of reason, no real truths, to govern and constrain them. And yet it was long understood, by Blackstone and others, that it was quite necessary for judges to invoke the “laws of nature and reason” in order to fill in the crevices, where the positive law was silent. That rule came into play most dramatically in the case of slavery: As the old line had it, slavery was so clearly in violation of natural law that it could be sustained only by positive law. That is, it could be supported only when political men were making an accommodation with the evil of slavery for the sake of containing it or, in Lincoln’s phrase, putting it “in the course of ultimate extinction.” But where the law was silent, it was understood by jurists in America, South as well as North, that the natural law would kick back into force.

Helmholz notes that the natural law is at work even in cases in which it is not explicitly invoked. And yet, even Helmholz falls into the mode of judges in our own day when he says that it only seldom forms the ground of judgment. What is missing is the recognition that natural law is ­simply bound up with the deepest canons of our reasoning, and so of course it shapes our judgments of right and wrong, even when it isn’t explicitly invoked.

Justice Scalia has famously complained that there is no agreement on what the principles of natural law are or how they would offer any precise guide in reaching judgments. But these principles are so axiomatic, so woven into our understanding, that we are hardly aware any longer of their force in governing our most practical judgments. As it turns out, these axioms are so self-evident, so readily understood by ordinary folk, that there is not the slightest disagreement about them. Just to test the matter, we might propose these problems to the proverbial man on the street: What would you say if you learned that Jones, accused of a ­serious crime, was in intensive care, recovering from surgery, at the time the crime was committed? Or that Jones was heavily medicated at the time and had no firm control of himself? Does anyone doubt that ordinary people, undistracted by theories, would quickly say that, of course, Jones could not have been guilty of the crime, that he should not be tried or convicted? That is to say, virtually everyone would back into that proposition that Thomas Reid and Kant, in different ways, took as the first principle of moral judgment: that we don’t hold people blameworthy and punishable for acts they were powerless to affect. As Reid put it, “what is done from unavoidable necessity . . . cannot be the object either of blame or moral approbation.”

That doesn’t mean, of course, that there is no need for serious reflection or even imagination in weighing the way that these kinds of principles bear on the case at hand. There may be the most difficult questions of whether Jones was so deeply under medication, or hypnosis, or so incapacitated, that he could not have performed that burglary. All of these things are quite contingent on the circumstances, and maddeningly variable in their possibilities. But the decisive point comes in recognizing the one thing that is never variable, never contingent, never open to question: If Jones really were “powerless to affect” the acts in question, he cannot be judged blameworthy or responsible for this crime. That principle will never cease to be true under any circumstance. It will be the one thing remaining stable—and readily grasped—while everything else may be in doubt.

How many of these propositions do we have? More than people seem to realize. From that first principle, as Reid had it, one could begin drawing out a skein of implications: that we should visit punishment only on people who are guilty of wrong­doing; that if we respect the difference between innocence and guilt, we should, in a demanding way, test with the canons of reason the evidence for wrongdoing, rather than extracting a confession with the pummeling of a suspect; that people accused of crimes should have access to the evidence and to witnesses against them, for the sake of rebutting them and arriving at a verdict that distinguishes accurately between innocence and guilt. By this moral logic, a person would have a right “to be informed of the nature and cause of [an] accusation; to be confronted with the witnesses against him.” Those rights would be “rightful,” with a claim to our respect, even if they hadn’t been set down in the Sixth Amendment.

It is not merely, then, as Helmholz so rightly says, that the natural law underlies our law, or that it threads through our law even without our noticing it. The point, rather, is that these canons of “the laws of reason and nature” come into play at every moment of practical judgment, and they supply a ground of judgment that is irreducibly moral. If that recognition broke through—if we came to see the legal landscape through that lens—we would have to ask: What difference might that make to the moral coherence of our law?

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College.