A Natural Law Manifesto or an Appeal from the Old Jurisprudence to the New

On June 4th, a gathering was held under the auspices of the Claremont Institute to announce the formation of a new Center for Natural Law. The purpose of the new Center is to hold seminars for students in law school, or newly sprung from law school, as well as practicing lawyers and judges, who wish to get clear again on the way that natural law forms the ground of our law and comes into play every day in the practical business of deciding cases. A new seminar, the James Wilson seminars, will bring together judges and lawyers, along with professors of philosophy and law in exploring the teaching and practice of natural law. Professor Hadley Arkes of Amherst College was named as the Director of the new Center, and offered these remarks in launching the project. In marking out the mission of the Center he sought to make the case anew for natural law, in terms that would challenge both the liberal and conservative jurists who have been most adamant in resisting the claims of natural law to be applied seriously in our jurisprudence. ********** We are here today to announce a new Center, in Washington and the country, a Center launched in Washington by the Claremont Institute, a Center for the jurisprudence of natural law. And in making the announcement we want to proclaim again the case for natural law, and offer a kind of Natural Law Manifesto. We announce here nothing new to the world, much in the way that James Wilson, at the origin of the Constitution, proclaimed that we were not, under this Constitution, inventing new rights. The object of the Constitution, he said, was "to acquire a new security for the possession or the recovery of those rights" we already possess by nature. (1) The great Blackstone had famously said that, on entering civil society, we give up those unqualified rights we had in the State of Nature, including the liberty of "doing mischief." (2) To which James Wilson asked, in a Talmudic question, "Is it a part of natural liberty to do mischief to any one?" (3) In other words, as Lincoln and Aquinas had it, we never had a "right to do a wrong." (4) Even in the State of Nature we did not have a right to murder or rape, and therefore as we entered civil society, the laws that barred people from murdering and raping, never barred them from anything they ever had a rightful liberty to do. And so, what rights did we give up on entering civil society? The answer given by Wilson and Alexander Hamilton was: none. As Hamilton said in The Federalist No. 84, "Here ... the people surrender nothing...." (5) Hence there was something not quite right in a the notion of a Bill of Rights reserving to people rights they had not surrendered to the State, for that implied that they had indeed surrendered the body of their rights to the State and that they were holding back now a few they hadn't surrendered. (6) The very purpose of the Constitution--the purpose that directed all branches of the government, not merely the courts--was the securing of those "natural rights." (7) One could deny that point, as Hamilton said, only by slipping into the teaching of Hobbes and supposing that there were no rights before the advent of a government, no morality antecedent to civil society. As Hamilton pointed out, in Hobbes's view morality was all conventional. (8) We could not expect anyone to accept any moral restraints on his conduct, for until there were laws, he could have no assurance that there were moral truths out there that anyone would respect. (9) Hamilton may be taken as a telling voice here, for indeed the American Founding would not make any sense unless those doctrines of Hobbes were decisively rejected. But that is to say, again, that the Founding, and the second Constitution it brought forth, found its telos, its central purpose, in the securing of natural rights. That understanding of the regime could not be explained without the recognition of moral truths, of standards of moral judgment that had to be in place before we could even conceive a Constitution. …