Arkes’ Right Reason

A good day for devoted readers of Hadley Arkes’ work and for anyone concerned with the natural law and its expression in American public life. The Claremont Institute has launched Right Reason , a “journal dedicated to the application of natural law reasoning to past and current court cases.” It is a project of the Claremont Institute’s Center for the Jurisprudence of Natural Law, which Hadley directs.

And such a site is needed, given the intellectual dominance of a way of thinking about the law not only divorced from but hostile to any suggestion that some things are right and wrong and the law ought to express that fact. As the Center’s statement of purpose says:

Justice Oliver Wendell Holmes offered the voice for the modern project in law when he expressed his hope-and his surety-that “every word of moral significance could be banished from the law altogether.” Holmes would raise the banner of legal “positivism”: the law did not find its ground in truths about the nature of right and wrong; it acquired its standing as law because it was “posited,” enacted by the people with the power to have their edicts treated with the force of law. In that way, Holmes would mark the radical break from the principles of the American Founding . . . .

The result: We have now brought forth a generation of lawyers and judges who explain their judgments by giving us clever spirals of theories, all safely detached from anything that would give a coherent moral account of the “wrong” they are trying to reach, and the “justice” they would render.

And these lawyers and judges include some of the most eminent of conservative legal thinkers, notably Antonin Scalia and Robert Bork. Readers wanting a longer and deeper exposition of the philosophy underlying Right Reason , and one that pointedly addresses these conservatives even more than liberal legal thinkers, should read Hadley’s A Natural Law Manifesto . The American founding, he insists there,

and the second Constitution it brought forth, found its  telos , its central purpose, in the securing of  natural rights , the rights that had to be there even before a government came into place. That understanding of the regime could not be explained without the recognition then of moral truths, of standards of moral judgment that had to be there before we could even conceive a Constitution . . . . But that brought us back instantly to the N-word:  nature . As Aristotle taught at the beginning, the defining mark of the  polis  was the presence of law, and law sprang from the nature of only one kind of creature . . . .

The American Founders understood that there was nothing distinctly American then about the idea of a rule of law, or the principles that barred  ex post facto  laws, or established the wrongness of bills of attainder. They understood that these principles would  not be brought into being  by the Constitution they were framing. Those principles had to be in place as guidance in our framing of a legal structure. The founders knew they could draw then on what Blackstone called the “laws of Nature and reason.”