Natural Law and the Foundations of Government

November 1991

Thomas Nomination Stirs Old and New Controversies

By James W. Skillen

WASHINGTON, D.C—More than a little bit of dust was stirred up during the months between President Bush's nomination of Clarence Thomas to the U.S. Supreme Court and the Senate's final vote on confirmation.

Much of the controversy arose simply from politics—liberals hating to see a conservative president get his way on such an important appointment; the president looking for a clever way to help his nominee survive the Senate confirmation process. In fact, the Senate hearings showed American political and constitutional discourse at one of its least enlightening levels. Judge Thomas decided to avoid engaging in serious discussion before the Senate panel (even though such discussion might have helped to illuminate the shadowy recesses of American understanding); many Senators simply looked for ways to expose Thomas' potential judicial conclusions to which they stand opposed (instead of trying to promote serious discussion of constitutional law and judicial review).

But despite the inadequacy of the hearing process, a certain degree of valuable public debate did take place in the media over the issue of "natural law." Mr. Thomas was the cause of that debate because earlier he had voiced his support for some kind of natural-law philosophy.

What was valuable collided with what was superficial, however, in an article that Sen. Joseph Biden (D-Del.) published in The Washington Post on September 8.

The Delaware Senator, who chairs the judiciary Committee that conducted the hearings, correctly acknowledged that "there are a wide range of philosophies that fit under the rubric of 'natural law' or 'natural justice.'" He was correct to point out that Clarence Thomas' stance on the subject is not entirely clear. But Sen. Biden's questioning of Thomas (both in the article and at the hearings) amounted to little more than opinion mongering.

The debate over "natural law," which goes back at least to the origins of Greek philosophy and biblical revelation, concerns the question of whether there are lasting standards higher than human will and opinion that have binding force on human beings in the conduct of their responsibilities. Reference to natural law is a reference to some form of principle or norm by which particular human laws can be judged either just or unjust, either good or bad. And, of course, natural law has to do with issues such as the proper limits of government, the appropriate balance between individual and institutional obligations, and the very nature of human freedom.

Sen. Biden missed and distorted a great deal, therefore, when he asked Mr. Thomas whether he saw natural law as either a "moral code" or the protector of personal freedom. "We must never forget," wrote the Senator, "that the central natural-law commitment made by this country is the commitment to individual freedom." According to Sen. Biden, since Mr. Thomas once wrote that natural law "provides the key to how men ought to live their lives," Thomas might harbor the belief that natural law "dictates morality to us, instead of leaving matters to individual choice."

What foolishness. Even if Mr. Biden's preferred version of "natural law" does nothing more than affirm individual freedom, it functions in that respect as a "moral code," namely, as a code that obligates government and all citizens to protect individual freedom since that is a good and moral thing to do. The either/ or of "moral code" versus "individual freedom" is a false dichotomy. Furthermore, if the issue at stake in appealing to natural law is to find a standard by which to judge what is just or unjust, then natural law cannot be reduced to individual freedom and still be natural law. For Sen. Biden to prefer a standard that essentially leaves "matters to individual choice" is to drain all meaning from the very idea of natural law. If one holds that the "higher law" for government is simply individual freedom, then the appropriate word for that "philosophy" is "anarchy" not "natural" or any other kind of law.

Of course, Sen. Biden doesn't want complete anarchy. The decisions he wants governments and courts to make are ones that will improve and enhance human well-being in society. But each and every one of those decisions will place some limits on the freedom of some individuals—and he knows it. So we are back to square one. The question is: On what basis, according to what standards, ought government to act to limit individual freedom in the interest of public well-being. That is the juncture where a fruitful debate over "legal oughtness" (and natural or higher law) ought to come in. But the Senator never joined the debate.

When Sen. Biden criticized Mr. Thomas for possibly being willing to "use natural law to impose a national moral code" with respect to abortion, for example, what he meant was that the judge might base his judicial reasoning on the conviction that the unborn deserve the protection of the law. Biden's alternative does not avoid imposing a national moral code but rather imposes another code, namely, that the unborn ought not to be given the law's protection because they are not legal persons and because pregnant women ought to be free under the law to choose abortion. The divide is not between a "national moral code" on Thomas' side and "individual freedom" on Biden's side. The divide is between two different views of the unborn and of which freedoms the law ought to protect.

The American public is currently in disarray over issues of fundamental moral and legal principles. We don't even know how to argue clearly about these matters. Now is a good time then for serious discussion and historical study. Readers may find some or all of the following recent publications useful for such a purpose: (1) Charles Rice, "Some Reasons for a Restoration of Natural Law Jurisprudence," Wake Forest Law Review vol. 24, (1989); (2) George Wright, "Legal Obligation and the Natural Law," Georgia Law Review vol. 23 (1989); (3) David M. Smolin, "The Enforcement of Natural Law by the State," Dayton Law Review, vol. 16 (1991); (4) Paul Sigmund, ed., Natural Law in Political Thought (Cambridge, Mass.: Winthrop Publishers, 1971); (5) James Skillen and Rockne McCarthy, eds., Political Order and the Plural Structure of Society (Atlanta: Scholars Press, 1991).