NATURAL LAW IN COURT: A HISTORY OF LEGAL THEORY IN PRACTICE


Vol. 27 No. 1 (January 2017) pp. 1-3

NATURAL LAW IN COURT: A HISTORY OF LEGAL THEORY IN PRACTICE, by R.H. Helmholz. Cambridge, Massachusetts: Harvard University Press, 2015. 260 pp. Cloth $45.00. ISBN 978-0-674-50458-5.

Reviewed by Whitley Kaufman, Department of Philosophy, University of Massachusetts Lowell. Email: whitley_kaufman@uml.edu.

NATURAL LAW IN COURT presents a novel and surprisingly neglected approach to examining the natural law or the law of nature, the idea that there are fundamental, eternal principles of justice that are binding on us and that guide (or should guide) positive law. Typically, discussions of natural law tend to be highly theoretical and abstract, and it is a frequent criticism of the natural law theory that it provides us with nothing but a set of high-sounding ideals of little relevance to practice. Often the focus is on Aquinas’ famous principle that an “unjust law is no law at all,” with its implication that any positive law that fails to accord with natural law is null and void. Critics point out that this scenario is so rare and unlikely that therefore the very idea of natural law is discredited.

Helmholz instead gives us a careful, systematic historical and empirical approach to assessing natural law. Rather than engaging in the philosophical debate about what it could mean for there to be eternal, universal principles of justice, Helmholz asks a much more tractable question: what does history tell us about the influence and importance of natural law in the Western tradition. This analysis provides a means of testing a thesis: that the natural law has had an important influence on the history of Western legal thought. It thus addresses a specific and important aspect of the debate, the skeptics’ claim that, even if such a thing as natural law really existed, it has never been all that important in practice.

Helmholz focuses his inquiry on three places and time periods, those where the sources are ample enough to allow for a systematic analysis. First, he looks at Continental Europe in the early modern period (1500 – 1800), followed by a look at England in the same period, and finally the United States in the period between Independence and the Civil War. His survey ends in the 19th century, he explains, because that was when the rise of positivism led to a widespread rejection of the idea of natural law (p. ix).

Helmholz asks two sorts of questions for each of these periods. First, what was the role of natural law in legal education; were legal students exposed to the idea of natural law in any significant degree? Second, what influence did the natural law have in legal practice, specifically in the deciding of cases? How often did natural law ideas appear to have an influence on the results?

Helmholz is admirably transparent about questions of method, and of the limits and challenges of statistical analysis in such a matter as this. One cannot simply do a word search to tabulate references to “natural law.” For one thing, there are far too many ways of referring to the law of nature, and often the references are subtle and oblique (for example, when a judge refers to “reason” he may be invoking the natural law idea that laws should be guided by “right reason”). Moreover, one must also judge whether a reference to natural law is merely an empty formalism, or whether it seems to have been taken seriously. Thus at every level, there is a need for interpretive judgment on this matter. But Helmholz appears to be a judicious, careful, and reliable interpreter of the evidence. What is also apparent is the immense amount of effort that he undertook for such an analysis. All of this gives the reader confidence that the conclusions he reaches are quite reasonable and plausible.

Also reassuring is the modesty of Helmholz’s conclusions. In the end, he judges that (contrary [*2] to the skeptics), natural law has played a significant if not necessarily dramatic role in all three of these places and time periods, both in legal education and in court decisions. Students are regularly exposed to natural law principles, and natural law ideas are frequently referred to in legal arguments. Lawyers and judges genuinely believed in natural law and saw it as having practical implications.

Helmholz importantly corrects the common view that the test of natural law must be its ability to override unjust laws, as in the case of slavery. He rightly argues that this is not the proper way to assess natural law, for it represents an extreme case, and judges have long been extremely hesitant to override the laws of monarchs and legislatures even when they appear unjust. The real test of natural law is not these extreme cases, but rather the ways in which natural law had a more subtle influence in guiding law and policy – for instance in the influential traditional principle that unjust laws will be strictly construed and limited as far as possible, whereas just laws will be broadly construed. Moreover, as Helmholz notes, even in the case of slavery, though natural law did not overturn slave laws, in the long run the natural law principle won and slavery was eliminated. Helmholz provides a convincing case that lawyers and judges in these periods genuinely believed in natural law and saw it as an important guide to practice.

Helmholz also tentatively attempts a more controversial normative thesis, that on the whole “throughout its history, the law of nature has been a modest force for good” (p. 177). This conclusion is harder to defend given that it requires assessing principles of morality, and cannot be simply a matter of empirical evidence. But the thesis again does not overreach, and there is no triumphal claim of the wonders of the natural law. Helmholz points to principles of due process and the right to be heard, the duty of parents to care for their children, and the principle that punishment should be proportional to the crime (p. 177). Indeed, the very fact that due process and proportionate punishment have become enshrined in the Bill of Rights is testimony to the importance and influence of natural law.

Helmholz also emphasizes throughout the book the difficulty that lawyers and scholars have long had in identifying just what the principles of natural law dictate. By no means has the natural law been solely a force for moral progress, as judged by our standards. It has been used as a basis for rejecting adoption (on the principle that “only God can create an heir”), for prohibiting usury, and for punishing blasphemy and sodomy, though over time these less palatable aspects of natural law have disappeared. Natural law has also had positive influences in surprising places, including as a basis for protecting copyright, for supporting religious freedom (despite the perception that natural law supports the dominant religion only), and for breaking up business monopolies. It is also useful to note that, despite the perception that the natural law reflects an inherently conservative ideology, in fact there is no single consistent political leaning in the natural law tradition. Both liberals and conservatives have made use of the natural law.

It is a minor flaw of the book that the author ties the idea of natural law a little too closely to God and religion, writing that “God himself was natural law’s source” (p. 2), and “Atheism makes acceptance of the law of nature’s existence and legitimacy difficult” (p. 141). Of course, that natural law came from God was the near-universal assumption during much of Western legal history, but then again religion was the foundation of much of Western thought during that period. There is no reason however to assume that natural law need have any connection with religious belief, or that an agnostic or atheist cannot believe in natural law. Strictly speaking, all that it requires is that one believe in objective moral truth, regardless of one’s position on religion. Indeed, even for many religious believers, God need not be the “source” of natural law – this was the point of Plato’s famous “Euthyphro problem,” that one can see the moral law as binding even on a deity. Nor did one need revelation to discover natural law; the longstanding assumption was that natural law was accessible to “right reason.” [*3] And there are plenty of contemporary natural law theorists who take a wholly secular approach, notably Lon Fuller.

Helmholz’s main thesis, and a plausible one, is that the natural law need not be overriding, absolute, and immutable in order to be an important influence on the legal tradition. In most cases where there is a conflict between natural law and positive law, the positive law will win. Yet even in these cases, the cumulative effect of the criticism of the positive law as unjust is not insubstantial. In many cases judges will recognize that a natural law principle must sometimes bend to practical necessity. But that hardly indicates that the natural law is impotent or useless. And it is not a valid criticism to say that the natural law can hardly be immutable since our understanding of it changes over time. For the obvious response is that humans cannot be expected to have infallible insight into basic moral principles. Perhaps the most important lesson is that, even in a positivistic and skeptical age like today, the role of natural law remains, though unacknowledged. We still accept the basic premise that the point and purpose of law is to secure justice and fairness, and that premise continually guides legal practice and interpretation, even if through Constitutional provisions such as “due process.” So even though natural law is hardly mentioned anymore, its presence remains significant to the practice of law. Though Helmholz does not make this point, there is a good case to be made that we would be better off straightforwardly acknowledging the role of natural law in guiding legal decisions rather than following the conventional pretense that judges are merely following the formal rules of the law or the “original intent,” for an indirect or unconscious use of natural law is likely to be less reliable or helpful than a conscious, reflective awareness of the need for moral guiding principles for the law.

***************
© Copyright 2017 by author, Whitley Kaufman.