by Hadley Arkes. New York: Cambridge University Press, 2010. 280pp. Cloth $85.00/£50.00. ISBN: 9780521518178. Paper $25.99/£17.99. ISBN: 9780521732086. eBook format. $21.00. ISBN: 9780511784224.
Reviewed by Justin Buckley Dyer, Department of Political Science, University of Missouri-Columbia. Email: dyerjb [at] missouri.edu.
“The ancient and honorable doctrine of natural law,” philosopher Henry Veatch once noted, “is dead, is it not? And many would add, ‘Long dead and well dead!'” In the late 1970s, Veatch had reason to answer, “Not so, though” (Veatch 1978, p.7). There had, in fact, been a renaissance of interest in the classical doctrines of natural law and natural right, marked significantly by the publication of Leo Strauss’s NATURAL RIGHT AND HISTORY in 1953. Hadley Arkes, the Ney Professor of Jurisprudence at Amherst College, was one of Strauss’s students, but he has, for the better part of five decades, made his own distinctive contribution to the growing body of work on natural law. In his scholarly and popular writings, Arkes has been a fierce critic of legal positivism, and he has long insisted that moral reasoning is an essential, even inescapable, part of legal and constitutional adjudication. Though an outspoken political and social conservative, Arkes has reserved much of his criticism for conservative judges such as Robert Bork, William Rehnquist, and Antonin Scalia, whom he accuses of wedding the premises of historicism and moral relativism to their own approaches to constitutional interpretation. According to Arkes, however, the positive law of the Constitution cannot be understood apart from universal principles of justice and morality. In “applying the Constitution to the cases that arise in our law,” Arkes maintains, “it becomes necessary to trace these passages back, beyond the text of the Constitution, to those deeper principles that lie behind them. In effect, then, we are making our way to those axioms or those principles of the natural law that will have to provide, of necessity, the ground of the law” (p.227).
In CONSTITUTIONAL ILLUSIONS AND ANCHORING TRUTHS, Arkes reflects on the place of natural law in the American constitutional landscape, and, over the course of eight chapters, he suggests that the moral axioms of natural law have unsettling implications for many familiar, and seemingly settled, constitutional cases. In one of the more provocative chapters Arkes undertakes a rehabilitation of Rufus Peckham’s opinion in LOCHNER v. NEW YORK (1905), which is routinely hailed by conservatives and liberals alike as one of the worst decisions in the Supreme Court’s history. Yet, as Arkes demonstrates, the myriad caricatures of LOCHNER that have proliferated since the Progressive Era have largely screened from our view its serious jurisprudential foundation. Only by retracing the logic undergirding Peckham’s opinion, Arkes suggests, can [*2] we begin to appreciate the ways in which LOCHNER has, in fact, set the cast for our contemporary jurisprudence. Arkes’ surprising conclusion about the legacy of LOCHNER is twofold. First, he argues that our modern judges routinely follow the structure of Peckham’s reasoning by drawing distinctions between justified and unjustified restrictions on individual liberty. Second, and perhaps more importantly, he claims that “any serious defense of rights will find its way back to the logic of natural rights, and there the understanding of Peckham and the old Court would provide a more coherent fit” than the varieties of legal positivism that abound today (p.10). Following a similar pattern, Arkes spends three chapters critically analyzing the Court’s doctrine against prior restraint of the press as it has moved from the landmark NEAR v. MINNESOTA (1931) to the PENTAGON PAPERS CASE (1971) and on to SNEPP v. UNITED STATES (1980). At each turn, Arkes shows how the central question involved in these cases—whether a particular restraint of the press is right or wrong, justified or unjustified—has all too often been obscured and hidden from view by the Court’s “faux jurisprudence and . . . clichés” (p.219).
The chapter on LOCHNER and the three chapters on prior restraint are bookended by more substantive inquiries into natural law theory and the challenges posed by legal positivism. At first glance, much of what appears in the book’s pages seems to be somewhat desultory. Nonetheless, “the thread that runs through [each of the chapters], and connects everything,” the author insists, “is the move back to first principles and the moral ground of the law” (p.11). In the second chapter, “The Natural Law – Again, Ever,” Arkes tries to flesh out exactly what he means by the normatively loaded (and often misunderstood) phrase “natural law,” and the theoretical work in this chapter is, by far, the most challenging and rewarding part of CONSTITUTIONAL ILLUSIONS. Despite his own protestations against theorizing, Arkes borrows heavily from Immanuel Kant and insists that the laws of nature are nothing less than “the laws of reason, the canons of logic, that command our judgment in the domain of freedom” (p.63). In other words, moral persons act within a realm of genuine free choice, and they are subject to the laws of reason. Just as the “law of contradiction” (i.e., the maxim that a thing cannot both be and not be at the same time in the same respect) is the starting point for genuine theoretical inquiry, so, too, according to Arkes, is the law of contradiction at the foundation of practical ethics. All moral falsehood is based, at root, on a logical contradiction.
To put the matter differently, a person’s moral choices are justified within the domain of freedom if they are “fit to be installed as a universal rule” (p.65). Take the example of racial discrimination. The principle behind racial discrimination is that race is somehow determinative of moral character. But if this were true, “no one would be responsible for his own acts, and no one could possibly merit either praise or blame, rewards or punishments” (p.66). The act of discriminating based on race would presuppose a principle that could not be universalized without descending into incoherence and contradiction, for the very idea of moral character presupposes [*3] a genuine freedom undetermined by racial classifications. Arkes’s argument on this point seems sensible, as incoherence is surely one mark of a bad moral theory. Still, Arkes’s Kantian account of the natural law as rational consistency will leave many readers disappointed. Traditional Thomists, no doubt, will want to see more about basic human goods, moral virtues, and, perhaps, even a bit about God as the ultimate source of moral obligation. Straussians, on the other hand, may take issue with Arkes’s appeals – often in the same breath – to sources as varied as Aristotle, Aquinas, Kant, and Lincoln and his insistence that “there is a convergence of teaching emanating from Jerusalem and Athens, with the moderns as well as the ancients” (p.62). Kantians of a more Rawlsian variety will probably not recognize their own constitutional prescriptions in those advanced by Arkes, and legal positivists of all stripes will take issue with Arkes’s insistence that universal principles of morality are essential to the judicial process. CONSTITUTIONAL ILLUSIONS & ANCHORING TRUTHS is, in this way, an ambitious and provocative book, and every serious student of the law would be remiss not to wrestle with the questions and puzzles it poses.
Strauss, Leo. 1953. NATURAL RIGHT AND HISTORY. Chicago: University of Chicago Press.
Veatch, Henry B. 1978. “Natural Law: A Bibliographic Essay.” LITERATURE OF LIBERTY: A REVIEW OF CONTEMPORARY LIBERAL THOUGHT 1(4): 7-31.
© Copyright 2011 by the author, Justin Buckley Dyer.