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"Inescapably Natural" --Prof. Hadley Arkes in First Things
By The James Wilson Institute •
Posted on Mar 2 2016
In a review at First Things of Natural Law in Court: A History of Legal Theory in Practice by Prof. R.H. Helmholz, Prof. Hadley Arkes reminds us of some common misconceptions about the natural law. For example, the natural law does not illuminate or explain those behaviors or occurrences that may occur through forces of nature. He also reminds us that the natural law itself may not have always been understood or defined correctly. However, these errors do not serve as evidence for the lack of the presence of the natural law. If anything, they are evidence of its presence: of an objective truth discernible from falsehoods through reason.
"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 plain; human beings give reasons over matters of right and wrong."
"There have been persistent misunderstandings of what natural law is. In the first place there was the confusion of identifying natural law, as Spinoza did, with the 'natural ways' of things. And so, as he said, 'fishes are determined by nature to swim, the large ones to live off the smaller; therefore fishes are using this greatest natural right when they possess the water.' This is what I called once the Kern & Hammerstein theory of natural law: Fish gotta swim / and birds gotta fly. Classic commentators would often invoke the 'natural' propensity to self-defense as the first natural law, viewing it as all the more natural because it was evinced by animals. But as one commentator, Samuel von Pufendorf, put it, it is improper to describe as a natural law 'whatever is done in a fixed and determined manner.' It is especially inapt to attribute a moral intention, or a moral understanding, to 'animals that are not endowed with reason.' The fish may swim, but it is hard to say that they are exercising their rights as they glide about."
"Humans grasp as true what Aquinas regarded as the 'first law of practical reason': that the 'good' is what we approve, applaud, promote, and reward, while the 'bad' are the things we condemn, reject, discourage, and even punish. That ordinary people naturally understand this difference can be seen in the different behavior of two crowds—the crowd that showered the Kansas City Royals with affection and celebration after they won the World Series, compared with the crowd that erupted in Chicago when a video was released showing the shooting of a young black man. The two crowds somehow knew how to react to the things they found either commendable or condemnable."
Read the whole piece here.