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.
