Why Conservatives are Suspicious of Natural Law

Every day on their web journal First Principles , the Intercollegiate Studies Institute posts an entry from their indispensable American Conservatism: An Encyclopedia. Today’s feature is Russell Hittinger on ” Natural Law “:

At least in the English-speaking world, modern conservatives have been ambivalent, skeptical, and sometimes hostile to natural law. While most conservatives have held the philosophical or religious conviction that there are timeless moral truths, many have been cautious about the political and legal implications of natural law discourse. In the Anglophone political culture, the common law was thought to contain and, as Sir Matthew Hale said, to “radiate” the natural law, making explicit appeal to natural law unnecessary. Although American colonists frequently used the rhetoric of natural rights, their justification for American independence relied chiefly on arguments concerning the history and rights of Englishmen.

Among conservatives, nothing discredited theories of natural rights more than the French Revolution, in which appeals to the “rights of man” were used to overthrow the social, political, and ecclesiastical orders. Both Jeremy Bentham’s positivism and Edmund Burke’s defense of custom and tradition represented reactions to the revolutionary effects of natural-rights theories on the Continent. The waning of natural-law jurisprudence in the English tradition was due in large part to the revulsion caused by the French experiment . . . .

In the contemporary debate, conservative suspicion of natural law has been aroused by the activist judiciary, which has used various kinds of natural-law reasoning to justify federal supervision and abrogation of the moral police powers of the states. The Robert Bork and Clarence Thomas nomination hearings indicated the extent to which natural law, as a tool of jurisprudence, has become a mainstay of Left-liberal theorists. Both nominees were criticized for being “originalists” in jurisprudence and for failing to respect the alleged moral grounds of modern privacy rights.

Of course, there is no necessary reason why natural law requires judicial supremacy—Aquinas, for example, argued that judges ought not to be given principal authority to make the natural law effective in the political community. Yet the continuous and seemingly arbitrary use of “natural law” by the judiciary, usually for the purpose of reaching egalitarian social results and in order to vindicate individual rights against traditional morals legislation, has deeply soured conservatives on the subject.