CHAPTER 1 The Natural Law Challenge

In story or song, there are few caricatures of the moral skeptic sharper than the figure drawn by Tom Stoppard, with his usual dash, in his play Jumpers. The temper of the skeptic was caught in Stoppard’s description of the man who is reluctant to concede that the train for Bristol has left Paddington Station unless he himself has been there to see it leave—for after all, that piece of intelligence might be “a malicious report or a collective trick of memory.” And even then he would credit that report only under the proviso that “all the observable phenomena associated with the train leaving Paddington could equally be accounted for by Paddington leaving the train.”¹ What was a caricature in 1972 quickly became real, for that character walks among us.

But even the savvy and clever Tom Stoppard, writing in 1972, could not have imagined just how far the passion for relativism would unfurl—to the point where people with advanced degrees forcefully insist that we cannot tell the difference between a male and a female. That difference now is regarded in some quarters as merely “assigned” at birth. And so we are required by the courts to affirm that a man may pronounce himself a woman—or a woman, a man—solely on the strength of an earnest report on his (or her) feelings. The people around them in their offices or businesses will be compelled to respect that judgment, in word as well as deed—or else put themselves and their employers in legal peril.

No one who has spent some time in the academy over the last fifty to seventy years could have failed to see this movement revving up for a long while. But no one who has lived through it all, and paid attention, could be anything less than staggered by the way in which these doctrines of relativism have spread out from the colleges and universities to the broader public, upending many churches and finding aggressive support now in the boardrooms of the leading corporations.

In the face of these trends, even many people who count themselves as “liberals” have had the experience of feeling, as the saying goes, disoriented. As they recoil from this long march to liberation—from what they see as “a bridge too far”—they find themselves reaching longingly back. But reaching back for what? For one thing, they may want to recover the simple willingness to recognize what is there, before our eyes. It’s the old “what is” question: What is a chair? What is a man? What is a woman? It may soon kick in on them that they are really asking for a willingness to respect the “truth” about what is before them and the way the world moves—though if they have come through an American college, they may be shy of speaking that loaded word “truth.” And if they are concerned with questions of right and wrong, at a time when children are lured away from parents for surgeries, they may realize that they had always taken for granted that, among the things we may really know as truths, some of them must have been moral truths.

But if they find themselves moving along this path, looking for some ground of confidence in speaking seriously of moral truths, then they are on a path that, in one way or another, will lead back to… the Natural Law. We might be tempted to say that they are engaged in a “recovery” of the Natural Law, except for one cardinal point: the Natural Law has never been missing. It has always been with us. It has been blocked from view at times, in part because it is so deeply planted in our assumptions and language that we may hardly be aware of it. But it has been further blocked from view as people have been more and more drawn to a world of theories bold and novel, and so removed from the language of ordinary folk that only people schooled at the most expensive colleges can understand them. What has been lost, without much notice, is that commonsense understanding of ordinary people, in which the Natural Law finds its ground.

Cicero, reaching for the heights in his Republic, gave us the most stirring description and the loftiest hopes for the Natural Law: that “there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times.”²

Those are summoning lines, but for many people they may sound like airy sentiments flying high above, without meaning in our lives as lived every day.

That same ordinary man is likely to grasp immediately the sense of a practical ranking, or ordering, of “rights” that has been understood since the days of Cicero. And so he is likely to understand, without trouble, the unfolding of this scene:

A plane lands in New York with passengers coming from Britain and other countries. One of the passengers happens to be mugged or assaulted when he reaches the streets of New York. We assume that we don’t have to look at his passport before the police dash to his aid. His claim to the protection of the law against a lawless assault would not seem to depend on his citizenship.

But the same man may not take himself over to the City College of New York and expect to be enrolled, especially with that subsidized tuition that the people of New York have generously made available to the citizens of New York—to people who live and work there and have some attachment to the place.

That is a distinction, I think, that any ordinary person will readily grasp even if he doesn’t have a college degree. But when he does grasp it, he may not realize that he touches the core of the gravest argument that has ever arisen in our politics, in our crisis of “the house divided.” That was the argument engaged in the classic debates between Abraham Lincoln and Stephen Douglas, an argument that ran to the moral root of the American regime. For the heart of the question was whether those “unalienable rights” mentioned in the Declaration of Independence were rights grounded in nature or if they were simply rights that could be created or withdrawn by the authorities in any place—as in the right to use the squash courts. The chief conclusion emerging from the logic of natural rights was that the only rightful government over human beings is based on “the consent of the governed.” Or, to put it in the way it was understood in the years of the American Founding, no man is by nature the ruler of other men in the way that men are by nature the rulers of dogs and horses. To think otherwise is, in Jefferson’s words, to assume that “the mass of mankind” are “born… with saddles on their backs,” while a privileged few are born “booted and spurred, ready to ride them legitimately.”³

If there was a right of human beings to be governed only with their consent, where would those rights hold? The answer was this: everywhere in the world where human nature was the same and human beings were distinguishable from horses and dogs. Hence the notion of rights grounded in nature, or natural rights. As Lincoln would say, the framers had the wit to incorporate, in a revolutionary document, “an abstract truth applicable to all times and places.”

For Lincoln, the core of the matter was that “no man is good enough to govern another man, without that other’s consent.

that according to our ancient faith, the just powers of governments are derived from the consent of the governed. Now the relation of masters and slaves is, PRO TANTO, a total violation of this principle. The master not only governs the slave without his consent; but he governs him by a set of rules altogether different from those which he prescribes for himself. Allow ALL the governed an equal voice in the government, and that, and that only is self government.⁴

But Stephen Douglas, as the leader of the Democratic Party, with its stronghold in the South, was compelled to defend the legitimacy of slavery. And in defending slavery, he was compelled to put himself at odds with that deep principle of human freedom and natural rights. For Douglas, the rightness or wrongness of slavery was not grounded in nature, in the enduring things that separate men from animals. It depended solely on the rights created by the people who had the power to rule, whether they were monarchs or a ruling majority in a popular election. Returning for a moment to that ranking of rights I mentioned earlier, the full force of Douglas’s position becomes brutally clear: All of our rights would fall into that last category, of rights created or rejected in different enclaves. Our right not to be enslaved would stand on the same plane as our right to use the squash courts or to receive a subsidized education. It would be a right dependent entirely on the sufferance of the ruling majority in any given time and place, a right that might be expanded or withdrawn as it suits the interests of those who rule.

James Wilson, a Scotch emigre who became one of the premier figures of the American Founding, saw the same slide into the denial of natural rights on the part of learned men who were not attentive enough to what they were saying.

[If we were to credit Blackstone,] the connection between man and his natural rights is intercepted by the institution of civil society…. If this view be a just view of things, then, under civil society, man is not only made for, but made by the government: he is nothing but what the society frames; he can claim nothing but what the society provides.⁵

But what were those rights “grounded in nature,” and how do we know them? On that subject I will have more to say in these pages that follow—though I confess that, on this matter, I have already had more than my share to say. Those compelling questions have been my concern, as the Bible would say, “going out and coming in.” I never planned it that way, but my books led there as I followed the train of questions from The Philosopher in the City (1981) to First Things (1986). I had the chance in those books to give a fuller account of the reasoning that explained the moral truths that, as Lincoln said, are “applicable to all men and all times.” Or at least to explain them with as much deftness as I could summon as a young professor in his early forties. I might have offered some slight improvements and illuminations in my book Natural Rights and the Right to Choose (2002), and I sought to bring everything together, at the root, with an account contained in one chapter, “The Natural Law—Again, Ever,” in Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law (2010). I mention these previous writings in part to alert readers to the many things I’ve said about Natural Law that I will not be troubling my readers by repeating in this new book, which has been shaped to a different purpose. Nor will I take the time in this work to offer a historical survey of the theories of Natural Law, plausible or implausible, that have flirted with the credulity or drawn the attachment of serious people over the years. One singular advantage is that I will not trouble to review here, for my readers, all the nonsense spoken on this subject by estimable writers who should have known better.

Spinoza, for example, identified Natural Law with the laws of nature that govern the ways of each individual thing. “Fishes are determined by nature to swim, and the greater to devour the less by sovereign natural right.”⁶ I have referred to this as the Kern and Hammerstein theory of Natural Law: “Fish gotta swim / Birds gotta fly.”⁷ But we can count on the fact that the fish are not likely to be litigious in defending such a “right.” As the venerable Samuel Pufendorf observed, it was a profound mistake to confuse these two meanings of Natural Law, to confound the laws of determinism with “laws” and “rights” in their moral significance. Over a hundred years earlier (in 1539) Francisco de Vitoria had rejected a comparable argument to the effect that the stars had a natural right to shine and the sun to emit light. By that reasoning, as Vitoria pointed out, we would be doing “an injustice to the sun by closing the blinds” and blocking the light.⁸

For the past ten years I have been making the case anew for Natural Law to audiences of lawyers, judges, businessmen—and citizens who are not burdened with a degree in law. That has been the work of my James Wilson Institute on Natural Rights and the American Founding. It is a curious mark of our time that a defense of the American Founding and its grounding in Natural Law should be taken as “conservative” in our politics. The American Revolution was seen, for good reason, as one of the most liberating events in the sweep of history. For the Americans at the time did not seek to vindicate merely their rights as Englishmen, but rights that could be claimed by human beings wherever they were to be found. One would think that for the left, even today, the Founding should be the lodestar for any politics that would call itself “progressive.” But the difficulty for the left today springs from the fact that the Natural Law supplied for the Founding an anchoring moral truth about the rightful and wrongful governance of human beings.

With that governing moral sense, every moment of liberty pointed to the question of whether our freedom was being directed to ends that were good or bad, rightful or wrongful. People of the Founding era seemed commonly alert to the point that every instance of freedom carries the possibility of “license,” or the abuse of freedom for wrongful ends. But that stance has put the Natural Law and the American Founding at war with a passion of the progressives in our own day, who seek a liberation unbounded, a liberation not to be stifled or cabined by cramped moral restraints. And the deepest liberation of all has been from any moral or legal restraints on sexuality. With the Bostock case in 2020, “transgender” people were anointed as a protected class under the Constitution—that is to say, it would not be legitimate for the law to cast an adverse judgment on those who are transgender any more than it could cast any longer a critical or adverse judgment on anyone on the basis of race. And with that move, the trend of nihilism may have reached its terminus. Unless, of course, the ethic of liberation truly has no bounds, and it will push on further even as it devours itself.

Natural Law, as the bearer of moral truths, must be marked now as anathema to the left in our own time. For liberal jurisprudence today, the “right to abortion” is taken truly as the anchor of personal freedom, far more than the freedoms of religion and speech. That gradual but decisive shift may also explain why the passion to promote abortion and to compel its acceptance in settings both public and private has risen over the willingness to respect religious aversions to abortion. Or to indulge even a liberal tolerance for speech that calls abortion into question. And after all, it stands to reason that the most natural question to ask about “natural rights” is this: When do they begin? The elementary answer, tendered by James Wilson, came in his classic lecture on natural rights. Those rights begin as soon as we begin to be: “In the contemplation of the law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.”⁹

This commonsense understanding will always mark the Natural Law in our own time as the deep opposition to the advanced agenda of the left. Along with the Catholic Church, the Natural Law may be branded as the enemy of all things just and rightful in our own day, or simply derided with the confidence that it will no longer be taken seriously. The role of enmity to the Natural Law has been taken on directly by the left; the derision has been left to the conservatives.

A deep irony of our time is that the Natural Law has become anathema to the left, and yet it has become every bit as much scorned by “conservative jurisprudence.” Over the last forty to fifty years, conservative jurisprudence has been shaped by the recoil from the radical remaking of the Constitution by the Warren and Burger courts—a remaking that was at best slowed by the Rehnquist and Roberts courts that followed. Despite the succession of these Republican chief justices, and a Court amply filled by Republican appointees, the Court managed to unfold, in a long series of cases, a culture of radical “autonomy” detached from any moral principles that could mark the limits of that autonomy. And so the Court moved in a train of decisions from contraception and abortion to same-sex marriage and transgenderism. With each step, conservatives recoiled from the moral substance of what was done, but they took care to say almost nothing about the moral substance of the cases. For they had quite absorbed the notion that moral judgments ran beyond the proper sphere of judges and the boundaries of jurisprudence itself. My own late friend Justice Antonin Scalia made the focus of his moral passion the fact that the defenders of marriage were deprived of “the peace that comes from a fair defeat.”¹⁰

What he carefully omitted from his dissents was a substantive defense of marriage as it had been sustained in the laws: the union of one man and one woman with a commitment made binding in the law. On the moral rightness of that position, I do not think he ever suffered a flicker of doubt. But in his understanding of his office, or his official duty, Justice Scalia did not think that his legal judgment here should be governed by his moral judgment. As he put it in his dissent in Obergefell v. Hodges, “It is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”¹¹ And this much must be said on his behalf: with a political elite more and more inclined to take the gravest decisions in our law out of the hands of ordinary people and voters, Scalia, joined frequently by Justices Thomas and Alito, offered the main resistance.

In the style of the celebrated Justice Oliver Wendell Holmes, the conservatives seemed to cling to a science of law rendered ever purer as “law” by the fact that it was radically detached from the moral sentiments and convictions of judges. To take the most striking case, the conservative critique did not touch the wrongness of taking innocent human life in abortion. The most damning indictment conservatives could muster was that the Constitution said nothing about the subject of abortion and that judges therefore had no grounds for declaring any right to abortion emanating from the Constitution. Of course, the Constitution itself had said nothing about marriage when the Supreme Court in 1967 struck down the laws that barred interracial marriage and declared a new constitutional right to marriage. And yet, no conservative luminary declared that decision to have been a flexing of “raw judicial power” by taking the issue of interracial marriage out of the hands of voters in the separate states. No conservative figure asked where “marriage” was found in the text of the Constitution.

For conservatives, the major fault in this long train of decisions remaking the law and our culture was not with the specious moral reasoning employed by the other side but with the fact that moral reasoning had been used at all. The cardinal vice, for the conservatives, was that liberal judges kept moving outside the text of the Constitution to invent new rights with reasoning ever more ingenious. For the deep certainty of the conservatives was that any move beyond the text of the Constitution, any appeal to principles that had existed before the text, was simply a move into the world of arbitrary, subjective judgment, where nothing more could be found than the personal feelings of the judges themselves. There, stripped down, was the story that told all: not just the liberals but even mainline Republican judges had come to regard the claim to know moral truths as a lovely relic, to be treated with bemusement but not taken seriously by the urbane. The more conservative judges, Democrat and Republican, respected the conventional lines about moral truths as a matter of lingering piety. But in their heart of hearts they had lost their conviction that there really were genuine moral truths accessible to reason. Antonin Scalia would insist on the authority of local legislatures, or the ruling majority in any place, to prohibit entertainments that were contra bonos mores, for the purpose of encouraging, rather, good morals, shaping the character of the community and its people. But when it came to the content of the legislation, he was convinced that the local community was simply exercising the right to make a “value judgment” on the things it regarded as decent and fitting. “Value judgment,” though, is a term that came into play with Nietzsche and Max Weber. The phrase came into use when people found their surety fading when speaking of “moral truths.” Things were simply endowed with the standing of “goods” for the people who “valued” them; they could not claim the adherence of people who did not “value” the same things.

Scalia himself did not have the slightest doubt about the existence of enduring moral truths. Still, he was adamantly averse to making an appeal to the moral truths of the Natural Law because, as he said, those truths could not command a “consensus.” His friends would gently ask whether he had taken a survey and found a “consensus” on that proposition: that the presence of disagreement marked the absence of truth. We would protest that we had never been asked for our own opinion or given a ballot, and if we had been polled, we would have deprived the world of a “consensus” on that point. He was well aware, of course, that even the plainest truths could never command a consensus, for there would always be people who would not see them or who would flatly deny them. But he had seen more than his share of judges, soaring with moral passion, proclaiming grand new rights anchored in neither the laws of reason nor the Constitution. His pessimism was about bringing moral truths into the law when they inspired wide disagreement. He was simply not confident that he could expect anyone to share or honor moral truths on the ground of reason alone. That left it to others to try to make the case that there are indeed moral truths accessible to reason—and not merely airy, high-sounding sentiments, but axioms that guide and govern our most practical judgments. No one thinks of testing to see if those principles command a “consensus,” for no one ever has reason to wonder whether they are true. But over the years, the conservatives had lost their conviction about any such anchoring truths grounded in the canons of reason, and along with that loss of conviction came a posture of mirthless derision of the Natural Law.

To adapt a line then from Henry James, it might be said that when it comes to the question of Natural Law the liberals and conservatives among our lawyers and judges have come to be merely “chapters in the same book.” To restore an understanding of Natural Law in our own time is not, then, to bring forth another version of “conservative jurisprudence.” For that jurisprudence of Natural Law would be neither liberal nor conservative. It would be simply anchored in the laws of reason, much as the American Founders understood the principles of law they were drawing upon in shaping the regime and the Constitution they brought forth.

But the case for Natural Law comes to us with a new sharpness following the defection of Justice Neil Gorsuch from the bloc of conservatives in the cases on transgenderism in 2020 (Bostock v. Clayton County and Harris Funeral Homes v. EEOC). Through the alchemy of “textualism,” Justice Gorsuch sought to show that the Civil Rights Act of 1964 banned discrimination based not only on sex but also on “sexual orientation” and on the various ways that people could conceive anew their own “gender identities.” Gorsuch was the highly celebrated successor to Justice Antonin Scalia. He was vetted and heralded as an “originalist” and “textualist” by the reigning conservative authorities. He was endorsed and vouched for as representing the best that “conservative jurisprudence” could produce. With Bostock the conservative legal movement felt the shock of embarrassment running deep. That embarrassment was hardly attenuated, but rather amplified, when one young professor critical of the decision nevertheless pronounced it a proud moment for conservative jurisprudence: “One can agree on method,” he cheerily said, “and still disagree in particular cases. That all of the opinions were textualist is a huge victory in and of itself!” If the justices had decided to take out pen and quill and write the opinions in longhand, that professor could have pronounced this a grand day for penmanship. The professor had given us the latest ringing affirmation of Justice Holmes. For what he celebrated is a style of jurisprudence so serene in its detachment from moral judgment that it is proud to have nothing to say, as a system of jurisprudence, on the things that are right or wrong, just or unjust.

As Justice Alito pointed out in his dissenting opinion to the Bostock case, virtually no one in 1964 could have dreamed that the Civil Rights Act banned discrimination against homosexuals or transgender people.¹² But in a piece written before the decision, I had warned that it just would not do for the conservatives to cite the dictionaries on the meaning of sex in 1964. Liberals would be free to play the trump card of Lyman Trumbull. Senator Trumbull of Illinois had steered the Fourteenth Amendment to passage in the Senate, and he had had to assure his colleagues up and down that there was nothing in the Equal Protection Clause that barred interracial marriage. But today we have a fuller, clearer sense of why the Fourteenth Amendment would indeed forbid laws against miscegenation. In the same way, judges could easily argue now that we must bring to the Civil Rights Act a more amplified view of what “sex” has come to mean. The only way to counter that argument is to make the move that conservative judges have been so averse to making: the move beyond the text of the statute to those objective truths, confirmed in nature, on the differences that must ever separate males from females.

The most telling criticism of the decision in Bostock, truly penetrating to the core, was the one offered by David Crawford, Michael Hanby, and Margaret Harper McCarthy of the John Paul II Institute in Washington, D.C. They were focused on the companion case to Bostock, the case of Harris Funeral Homes v. EEOC. They had argued in an elegant brief for the case that the main issue was not the freedom of Anthony Stephens to dress and present himself as a female. For the Court to come down on the side of Stephens was to do nothing less than confirm Stephens’s understanding of his gender—and compel everyone around him to affirm that understanding. If they did not, they could be accused of sustaining a “hostile work environment” and put themselves and their employers at legal risk.¹³

In the aftermath of the decision, the three writers sharpened their critique, saying that the Court had legislated, in their judgment, a new “metaphysic”: the judges had struck at the very root of the law in denying the necessary way that human beings by nature must be constituted. And in doing so, they said, the Court had given us, as C. S. Lewis put it, “the abolition of man”—and woman.¹⁴ For a child moving into adolescence it could raise the most serious confusion on what it is that truly distinguishes his father from his mother. Or himself from his brothers and sisters.

And yet, as conservative critics offered their most serious critique of the decision rendered by Gorsuch and his colleagues in Harris and Bostock, they typically focused on errors in the reading of precedents and statutes; confusions in the meaning of “discrimination on the basis of” as opposed to “because of”; errors in the true methods of “textualism”; and the confounding of “sex” with “sexual orientation.” As conservative critics took stock of the depth of mistakes in this opinion, what was missing was any recognition that this decision struck at the very meaning of “the human person” as we are constituted by nature as males and females. If that anchoring truth about “the human person” were taken as what it is, that would alter the lens with which “conservative jurisprudence” looks out on the landscape of the law. And once it was altered, how many other matters would be seen in a different light through this lens of the Natural Law?

But ignoring this truth about the nature of the human person has not been counted by conservatives as the deepest wrong in this decision. In fact, it has hardly even registered as one of the faults in this judgment as a legal judgment. For conservatives, this is not the kind of subject that comes into sight when their minds turn to “law” and “jurisprudence.” What was revealed in the conservative reaction to Bostock—and revealed in a jarring way—is that the appeal to the anchoring moral truths of the law has been, by and large, ruled out by what counts now, in our own day, as “conservative jurisprudence.”

For those of us who have been part of a project to recover the teaching of the Natural Law, the shock of this crisis presented a moment of breakthrough: conservative lawyers and judges, caught up short in disbelief, were finally suspecting that something had gone awry. And so I am writing at a time when people seem to be open, as they have rarely been open, to the simple and compelling things that can be said in introducing them anew to the Natural Law. I say introduce them anew, though some are hearing it for the first time. But in the style of Plato’s Meno, they discover that the truths of Natural Law are simply locked away in their own souls. Once the right questions are posed, the answers spring forth unforced, and the real surprise of the Natural Law is that people have the sense that they have known these things all their lives.

Justice Elena Kagan grandly announced, at her confirmation hearings to the Supreme Court, that “we are all originalists” now.¹⁵ But I must count myself, for the record, as an original originalist. For many years, I had the privilege of teaching on the American Founding, with the sublime task of reading closely the writings of those remarkable men who shaped this American regime and the Constitution. Men such as John Marshall and Alexander Hamilton had a knack of tracing their judgments back to those anchoring truths that were there before the Constitution, truths that would be there even if there were no Constitution. Jonathan Gienapp has made a beguiling case that the sources feeding the Revolution and the Constitution were much wider and deeper than the things relayed into print:

[W]hile writing constitutions down fueled several transformations, doing so did not immediately or necessarily oblige Revolutionary-era Americans to imagine their constitutions as [John Marshall and other jurists] later would. Nothing about the sheer act of reducing constitutions to paper either signaled a clear break from prior constitutional assumptions or automatically clarified anything about those new constitutions’ basic attributes. Thus, when the federal Constitution first appeared, the simple fact that it was written offered only preliminary guidance….

By unavoidable necessity, the Constitution’s meaning was radically underdetermined. Only experience, mediated by the presence of discussion and adjudication, could settle it.¹⁶

As we came to see in our work at the James Wilson Institute, there were many principles so long understood in the law that James Wilson and Oliver Ellsworth regarded it as an embarrassment that they should be written down. The two were averse, for example, to putting anything in the Constitution on the wrong of ex post facto laws. As Ellsworth said, “There was no lawyer, no civilian who would not say that ex post facto laws were void in themselves. It cannot be necessary to prohibit them.”¹⁷ And Alexander Hamilton and John Marshall would offer elegant examples, in essays and judicial opinions, of when it was necessary to move beyond the text of the Constitution. They would reach back to those principles that were before the text for the sake of explaining how the Constitution bore sensibly on the cases before them. In Beyond the Constitution, I sought to add to that record the notable example of some judges in our own time who have seen themselves compelled to move along the same line.¹⁸ The Founders took for granted those anchoring axioms of the Natural Law as the moral ground of the Constitution they were seeking to put in place. But those anchoring truths were so grounded in common sense that, in a trick of the eye, lawyers in our own time had stopped noticing them. I would hold then to an originalism that contains the moral ground of the law as that Founding generation understood it.

I have been drawn then ever more to that common sense of Natural Law as a teaching that is accessible to us ordinary human beings. But more than that: readily—and instantly—understood. It cannot involve things that are esoteric, or the mastery of “theories” that can be unlocked only with advanced degrees. As Aquinas said, the divine law we know through revelation, but the Natural Law is the law that is accessible to human beings as human beings.¹⁹ We might almost say, natural to human beings. In the 1970s my late beloved friend Daniel Robinson rediscovered the work of the remarkable Scotsman Thomas Reid, from the late eighteenth and early nineteenth century. Reid’s work threads through those wondrous lectures on law that were given by the Scot emigre James Wilson, who was one of the leading minds among the American Founders. Robinson expounded on the “common sense realism” of Thomas Reid in his own luminous lectures at Oxford, which can be seen and heard with delight today on YouTube. The work of Reid and Wilson connects the teaching of the American Founders with those understandings of “common sense,” accessible to all functional persons, the things that anyone would have to understand before he starts contending with “theories.” As Robinson put it, these things involve those matters so foundational that we absorb them often without the least awareness that we know them. They are things, as he said, that we are just “compelled to take for granted every day” as we get on with the business of living.

I thought the time had come, then, to offer a book that opened the question of Natural Law by beginning with those anchoring truths of the Natural Law that are understood by virtually everyone. And I don’t mean those fuzzy aspirations often thrown out as a gesture to the high-minded, lines such as: “Try to be generous and understanding,” “Try to be kind,” or “Try not to be so quick to find fault.” All fine sentiments. But ordinary people can grasp principles of common sense that are far more precise, with a practical import. And it can be shown how those truths thread themselves through our cases in law on the gravest subjects. Contrary to the caricatures so often offered, there is nothing the least foggy or cloudy about those anchoring truths. They can be concrete and precise in the way they bear on cases. The moment seemed right, then, for a book that looked plainer and more accessible to readers. Without diminishing in any way the writers who have illuminated the problem for us in the past, I thought the matter could be addressed in a style closer to that of C. S. Lewis. That accomplished teacher of the classics and literature had a touch for conveying deeper truths in a simpler way. Hence the title of this book, mirroring one of his most famous, one that reached a wide circle of readers, beyond the professoriate: Mere Christianity. Lewis appealed, in that book and elsewhere, to those principles that are accessible even to children. This trait was picked up by a character in another of Tom Stoppard’s plays, Professional Foul: Chetwyn, a young professor of classics whose interests center on Aristotle. Chetwyn remarks to a colleague that, even with serious questions of right and wrong, “a good rule, I find, is to try them out on men much less clever than us. I often ask my son what he thinks.”

“Your son?” asks his colleague.

“Yes,” says Chetwyn, “He’s eight.”

Once or twice in this book, I have made the same move, hoping to touch in the same way those anchoring truths that virtually anyone can grasp at once. And that, once grasped, come with the sense that we have known them all the time.

Mere Natural Law.