The Decline of Natural Law:
How American Lawyers Once Used Natural Law and Why They Stopped
by stuart banner
oxford university press, 264 pages, $49.95
Depending on one’s perspective, natural law is either a dead letter or a pivotal issue. No contemporary lawyer or judge would cite natural law in a courtroom or judicial opinion. Few philosophers or theologians, on the other hand, would discuss moral law without highlighting natural law. That division has not always been so. Stuart Banner has done us a great service by charting the rise and fall of natural law in American jurisprudence alongside accompanying historical and cultural developments.
His thesis is simple: At the time of the American founding, natural law was an integral part of our social and legal culture and was regularly used by American lawyers, judges, and law professors through the mid- to late 1800s. After that time, natural law reasoning featured less and less in legal arguments and court decisions until it largely disappeared from American legal discourse.
Banner says his book “is about neither . . . intellectuals nor . . . ‘the people’ broadly conceived, but . . . the members of a distinct professional culture.” Because most within that culture “were not thinking about natural law in a systematic way,” Banner himself eschews philosophical arguments.
He characterizes the natural law of the period as “a system of principles, which human reason has discovered to regulate the conduct of man” (Justice Joseph Story), comparable to the laws of nature that govern the inanimate world. Its sources included God, reason, tradition, custom, and the common law. “Natural law was reasonableness,” Banner concludes, and although “people often differed over what reasonableness entailed,” they did not dispute natural law’s existence.
He proposes four main causes of the decline: the adoption of written constitutions, the separation of law and religion, the increased volume of reported cases, and the “two-sidedness” of natural law. He supports the facts of these events more thoroughly than he does their causal relationships to the decline. Broadly worded constitutional and statutory provisions, for example, still leave much room for debate and invite guidance from higher precepts. The increased number of decided and published cases in the late 1800s surely gave lawyers more grist for their mills, but no number of precedents can resolve new conflicts arising from new circumstances, which routinely require debates over ambiguities in legislation and prior decisions.
When Banner describes the relationship of law and religion, he refers to how, during the eighteenth and early nineteenth centuries, Christianity was identified with the common law and the public moral culture. As the nineteenth century progressed, religion became more private, even if more prevalent. By the century’s end, the maxim that the common law was founded on Christianity was superseded by a commitment to equality among religions.
Banner pegs the “two-sidedness” of natural law as a cause not only of its decline in judicial decision-making but also of increased skepticism about its very existence. He surveys opposing arguments from the 1800s, each invoking natural law, on the death penalty, property rights, the role of women, and slavery and race relations. At the outset of his survey, Banner suggests that “[i]f the law of nature was capacious enough to include both sides of disputed questions . . . perhaps it was too ambiguous and too subjective to be of practical use within the legal system.”
Banner closes his survey with a forceful condemnation: “Natural law had been created by God, but it had to be discerned by fallible human beings who had trouble looking past their own self-interest.” According to a lawyer of the day: “We want . . . some test by which to distinguish . . . Right [from] . . . Wrong. . . . But so long as each man appeals to his own particular reason, his own particular conscience, his own particular moral sentiment, as the ultimate and infallible tribunal . . . no such test does, or can, exist.”
Banner concludes that the use of natural law in American law was more methodological—or rhetorical—than substantive. “Any substantive rule that could be reached via natural law could also be reached without it. . . . It would be wrong to attribute any of [the] substantive changes [in law between 1800 and 1950] to the abandonment of natural law. They would almost certainly have taken place even if natural law had continued to play a role in the working legal system.”
Rather, American judges' abandonment of natural law reflected “a change in the way judges understood their method of discerning the law.” With natural law, “judges believed that they were finders of law.” “Today, by contrast, judges in [hard] cases think of themselves as makers of law.” Banner thus implies that we are better off without natural law. In its absence, our legal system is more honest and transparent.
Banner leaves me with the impression that the version of natural law he studied is vacuous, indeterminate, and the expression of personal preference. But perhaps it is for that reason—rather than because of written constitutions, the separation of law from religion, or the proliferation of legal publishing—that the use of natural law in legal discourse withered. Banner does not discuss whether those characteristics are fundamental to natural law itself, or whether they burdened only the version of natural law that was invoked by American lawyers, judges, and law professors in the eighteenth and nineteenth centuries.
Answering that question would require the philosophical engagement that Banner disclaimed at the outset of his book. As a result, Banner's work is not particularly helpful for the current debate on whether natural law should have a role in any of the three branches of American government. If natural law is rooted only in “reason,” “custom,” the “common law,” or divine command, as Banner asserts, then it will always be unmoored and vary as custom, common law, and individual perceptions of divine revelation vary over time.
If, on the other hand, natural law consists of ordinances that man grasps through his reasoned participation in the eternal law of God, the order with which God informs all of creation, natural law will be grounded in unchanging reality. That understanding of natural law rests upon the existence of a provident God who caused, and continues to cause, created reality to exist, to have a nature and end, and to be ordered to fulfilling that nature and end.
Enlightenment thinkers marginalized much of that account of reality. The natural law familiar to lawyers in nineteenth-century America may thus have been an unstable shadow of the philosophically grounded version just described, and may have been a primary cause of its unnecessary decline.
Notwithstanding Banner’s negative verdict, whether and how natural law, rightly understood, can or should guide American law remain live and important questions. Natural law, rightly understood, is not the rhetorical expression of personal preference that Banner describes. It is instead rooted in the nature and end of reality itself, and thus has serious implications for the ordering of our lives through legal and social norms.
William H. Rooney is a practicing attorney in New York.
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