Saturday, April 02, 2022

Event: "Natural Law and the US Constitutional Order" Organized by the Penn State Law Federalist Society 12 April 2022


Objectively speaking, natural law, as a term of politics and jurisprudence, may be defined as a loosely knit body of rules of action prescribed by an authority superior to the state. These rules variously (according to the several differing schools of natural-law and natural-rights speculation) are derived from divine commandment; from the nature of humankind; from abstract Reason; or from long experience of mankind in community. (Russell Kirk, "The Case For and Against Natural Law").

Ius naturale est, quod natura omnia animalia docuit: nam ius istud non humani generis proprium, sed omnium animalium, quae in terra, quae in mari nascuntur, avium quoque commune est. (The law of nature is the law instilled  by nature on all creatures: this law does not just pertain only to humans but is common to all creatures of the land and  the sea, as well as birds.)  (Justinian, Institutes Book One Tit. I.2).

 Humans appear to have spent the greater part of the millennia in which they have sought develop and institutionalize collective in a grand project of rationalization and legitimization of those efforts. That has produced an extraordinary ecology of system efforts--both exogenous and endogenous to the rationalized and legitimated collective--to provide the foundation against which the large forests of right and wrong, good and bad, ideal and deviation, can be identified, measured, cultivated, and protected.  Such efforts have been rewarded at times by equally powerful countering systems of rationalization.  All of this is "natural" in the sense that  it is unavoidable.  And it is unavoidable because is is inherent somehow either in the individual, in the fundamental character of collectives, or in the relationship of humans and their collectives to fundamental determinants of operating rules from which all values may be derived and against which they may be measured. 

Natural Law, like its successors and challengers, then, is ultimately  semiotic--in the sense that whatever the nature of the "natural" it remains to be observed, discovered, revealed, and applied not by its source, but by those individuals who are charged with its interpretation.  These priests--however they call themselves, and whatever they worship or draw their authority--then humanize the project (here).  And  in the end, whether it is undertaken by the priests of religion (traditionally understood, or of liberal democracy, or of Marxist-Leninism, or of identitarian collectives; in the end it is in the relationship between the ideal and the priest that the great theories and machinery of collective institutions are built, operated and ultimately challenged, progress, decline, or endure.

That building, operation, challenge, progress, decline or enduring are all a function of the ideal against which these concepts are deployed.  The ideal, then, serves as the great object of collectives, the infusion with meaning and the protection of that meaning becomes a core function of those charged with its protection. Natural law, then, speaks to the ways in which this process of meaning making may itself be idealized and given form. It serves as a complex of premises against which  the ideal may be discerned, its meaning extracted, and then applied to the construction and operation of collectives. It becomes the rationalization of rationalization--and the imprimatur of legitimacy that may be deployed against competitor complexes of meaning making and their human priest-protectors. 

Natural Law is in a sense the striving toward perfection that requires the identification of the perfect--the perfect person, the perfect state, the perfect relationship among all of these. It is to the sources of the identification of that perfection, it is into the excavation of its manifestation and source, that one encounters the politics of perfection in which natural law, like other theories of perfection are both made and challenged. Notions of perfection around which individuals and collectives must be authoritatively constructed have permeated ancient and modern builders of states and government.  It has become embedded in the expression of that search for perfection, its meaning, through the instruments of law and the law-administrative state. The opening of Book One of Justinian's Institutes provide the still relevant semiotic invitation to meaning founded on an unavoidable perfection the evidence of which exists around collectives to be discovered (the "firstness" of meaning objects, what is natural) and then signified through the symbolic or generalized power of these objects (observable phenomena as signs or mediums) and thus privileged as foundations of meaning universes, abstracted into meaning legitimating the forms and approaches of collective organization.  

The Institutes of Justinian provide a still relevant example of the form of this abstraction process deduced from observable phenomena and then detached from their confined form as objects through the symbolization of their existence. In the introduction to Book One of the Institutes, this rather abstract description is given its well known form: "Justice is the set and constant purpose which gives to every man his due. . . Jurisprudence is the knowledge of things divine and human, the science of the just and the unjust." (Institutes Book One Tit. 1). It is the natural that is observable--and that applies both to the world around humans and to the state of human interaction itself.  This semiosis is particularly evident in the discussion of the condition of slavery:

Those are freedmen, or made free, who have been manumitted from legal slavery. Manumission is the giving of freedom; for while a man is in slavery he is subject to the power once known as 'manus'; and from that power he is set free by manumission. All this originated in the law of nations; for by natural law all men were born free—slavery, and by consequence manumission, being unknown. But afterwards slavery came in by the law of nations; and was followed by the boon of manumission; so that though we are all known by the common name of 'man,' three classes of men came into existence with the law of nations, namely men free born, slaves, and thirdly freedmen who had ceased to be slaves. (Institutes Book One Tit. V).

What is natural is observable, and history is evidence of condition.  Yet what is natural is not inevitable, but rather mutable.  What was need not be natural forever; and what is natural need not be approached except as an ideal. Here the law of nations is opposed to natural law, and the gap is mediated by the law of manumission--a returning to the natural order, or the preservation of an equilibrium in the shadow of the natural state of humanity.  One moves here from nature to politics."Of private law then we may say that it is of threefold origin, being collected from the precepts of nature, from those of the law of nations, or from those of the civil law of Rome." (Institutes Book One Tit. I.4). This applies with equal force to the law of "things"--to property in which the law mediates between the natural law of individuals and the law of nations (Institutes Book 2).

For the US constitutional order the nature of this natural law also has a long history emerging during the period of the early Republic from the English colonial experience, the great transformations and multiple forms of the "natural" in law and its situatedness derived from religious and then secular philosophy and jurisprudence emerging from centuries of disputes and discovery efforts from the disappearance of the late classical Roman Empire in the West, and then revived in the Medieval Law Schools of Europe.   The deep embedding of natural law theories in the formation of American constitutionalism and its expression in written law (then elaborated by the exercise of an interpretive priestly function by its courts) is well known (Edward S. Corwin, The 'Higher Law' Background of American Constitutional Law 1928)) even if this knowledge, like everything else in the United States is both highly contested and mutable. 

For U.S. thinkers the issue wasn't so much about the existence of higher law--natural or not--but rather revolved around the fundamental question of cause and effect: did higher (natural) law come first, or is it merely the rationalization of the collective will of the nation expressed through its acts of will. In other words does the Constitution embody  the natural law  declared as the will of the  people of the United States, or does the Constitution reflect a set of core normative principles to which the people are subject and around which collective organization must be framed. That, in turn, implicates theories of democracy, of sovereignty, and of the relation of collectives to the principles around which it is organized. Intimately related to this fundamental question of identification of sources, was the related question of the location of the authoritative instruments for its interpretation. Does natural law, however conceived, require a class of "priests" as a legitimating source of interpretation to which the collective is obliged to conform?  For Anglo-American jurisprudence developed  through Independence, the answered varied.  Law  (and its ideal) might be the natural province of jurists; it it might be that of the political representatives of the people.  For more traditionalists, it might not reside within the state at all. 

The consequences can be significant  and have been much in evidence since constitution making became the preferred mode of expressing the ideal of organized political society  within its own geographic territories. And, of course, these fundamental question continues to fuel the nature and form of fundamental political-coercive political discourse (through or with law) in the contemporary U.S. 

In an age when the natural law is no longer a common conviction, international crises have made the rational justification of our political institutions and beliefs a matter of the utmost importance. In searching for such justification, it is natural to turn to the sources of our political philosophy. And it is for this reason that the question of the true sources of that philosophy is far from academic. (Charles M. Whelan, "Corwin: The "Higher Law" Background of American Constitutional Law" (1956), p. 728).

These are old question, of course.  And virtually everyone has had a go at them.  But they have been given a new and perhaps transforming life in contemporary times. The migration of notions of ideological anchoring does not depart far from its natural law origins.  And the role of these framing perspectives play a key role in critical modern movements--from social justice ideologies, to the forms of attacks on the structural corruption of the institutions of government. It is tho these new questions that the old forms of natural law may provide some insight. These, in turn, suggest some of the questions and issues that we hope to build into our  discussion at the seminar, "Natural Law and the US Constitutional Order" Organized by the Penn State Law Federalist Society 12 April 2022.

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