CHAPTER 2 The Path of Vignettes

It must surely be one of the most venerable truths, though still widely unnoticed, that comedians are in the same business as philosophers. Comedians make their living by playing off the shades of logic contained in our language.

And there was Henny Youngman’s advice as to how one keeps a marriage going, preserving the romantic spirit for forty years and more. “Twice a week,” he said, “we go to an intimate dinner with candlelight and wine. Twice a week we go—she goes on Tuesdays, I go on Thursdays.”

At times a joke touches an idea that people take as one of the anchoring principles in their lives. One thinks here of Bertrand Russell’s joke about Mrs. Christine Ladd-Franklin, who claimed to be a “solipsist.” She earnestly professed to believe that she could not know for sure that there was anyone in the world apart from herself, but at the same time she was deeply disappointed that she could not find other solipsists who might come to a meeting of solipsists.

Now if our ears were properly trained, the following proposition, which has become one of the most widely travelled fallacies in our public discourse, would induce the same urbane giggling: If there were indeed moral truths that held their truth in all places and times, those truths would be recognized and affirmed in all places. But the very fact that moral questions inspire such widespread disagreement is prima facie evidence that those truths do not exist.

As the philosophers would point out, this argument reduces to this proposition: The very presence of disagreement on any matter of consequence must mark the absence of truth. But I would be compelled to register my own disagreement with that proposition, and by its very terms that should be enough to establish its falsity.

The mistake now runs through our political life, across the spectrum. As I have noted, Justice Scalia cited the widespread disagreement on moral matters as the ground for doubting that the Natural Law had any serious truths to propound, and so as a matter of high prudence he set himself against an appeal to Natural Law in the course of deciding cases in our law. He thought that it would be easier to appeal to the historical record, to establish just what principles of right had been planted and accepted in our history. The justice never seemed jarred when his own “historical” account of, say, the right to bear arms would simply elicit a rival and contentious reading of the historical record by his liberal colleagues. The fact that disagreements on the history ran deep did not dislodge him from his confidence that, even in the presence of disagreement, there were truths for his theory of jurisprudence to unearth. Justice Neil Gorsuch, years later, would acknowledge that the tenets of “originalism” and “textualism” favored by Scalia could bring forth answers widely divergent. But for Gorsuch, as for Scalia, those doctrines did not lose their plausibility or truth because they failed to inspire widespread agreement.²

The self-refuting proposition above collapses in seconds because it falls into self-contradiction—which is to say it runs afoul of the proposition that anchors the “Laws of Reason,” namely the Law of Contradiction, that two contradictory propositions cannot both be true.

My late dear friend Daniel Robinson used to say that he wanted as the epitaph on his gravestone, “He died without a theory.” He had written eighteen books, and he ended his days lecturing on Kant at Oxford—he was no stranger to “theories.” But he was drawing rather on the “common sense” school of philosophy, expounded so handsomely by Thomas Reid during the Scottish Enlightenment. As Reid appealed to “common sense” he was drawing his readers back to those things so simple, so evident to any functional person, that they are things we must be able to know before we start trafficking in theories. Before we move to the level of bantering with David Hume about the meaning of “causation,” the ordinary man knows of his own active powers to cause his own acts to happen.

As Daniel Robinson remarked, the man with amnesia may doubt just who he is, but he cannot be in doubt that he is.⁵ Thomas Reid jestingly twitted Descartes for his curious obtuseness on this matter of personal identity. Descartes professed to escape from the quandary of proving his existence by offering the aphorism Cogito ergo sum—I think, therefore I am. But as Reid observed, it was “evident he was in his senses all the time, and never seriously doubted of his existence; for he takes it for granted in this argument, and proves nothing at all”: “I am thinking, says he—therefore I am. And is it not as good reasoning to say, I am sleeping—therefore, I am? or, I am doing nothing—therefore, I am? If a body moves, it must exist, no doubt; but, if it is at rest, it must exist likewise.”⁶

Who among us could possibly remember the morning we awakened as youngsters and realized that we were, today, the same persons we had been yesterday? That ball and those clothes we thought were ours, those parents we thought were ours, were presumed to be ours today as well.

As we are drawn back persistently to these anchoring and necessary truths, we need to keep returning also to the proverbial Man on the Street, or to any ordinary person in our own time. How do we think he would react if he were asked, “Why is it, in this age of ‘animal rights,’ that we’re still not signing labor contracts with our horses and cows? Or that we are not seeking the ‘informed consent’ of our dogs before we authorize surgery on them?” I think we would expect him to be baffled by the question, as something it never occurred to him to ponder.

In these natural reactions, our proverbial Man on the Street would have grasped the very point of the “proposition,” as Lincoln called it, that “all men are created equal.” That was, as Lincoln said, “the father of all moral principle” among us. It does not mean that all human beings are equally intelligent and virtuous, that everyone deserves the same rewards or penalties. It means simply that human beings are not suited by nature to rule over other humans in the way that humans are compelled by nature to rule over horses and cows. Or to put it another way, beings who can give and understand reasons deserve to be ruled by a regime that elicits their consent. Hence the conclusion drawn in the Declaration of Independence: the only rightful government over human beings is one that draws “its just powers from the consent of the governed.” That was the central “truth” of the Declaration, and where would that truth hold? Answer: in all times and places where that difference in nature between humans and other animals continues to hold. Hence the notion of “natural rights,” rights that are grounded in nature and that remain the same everywhere and always.

In our own time, we find people with degrees in law who profess to find something mysterious about the notion of “natural rights,” as though the matter were engulfed by a fog of abstraction. But there is nothing abstract about the matter as it has been understood in our politics and law. Lincoln observed that holding a human being as a slave was the clearest instance of governing a man without his consent. There was nothing abstract about this notion of “natural rights” in the understanding of those slaves who petitioned for their freedom in Massachusetts in 1774:

We have in common with all other men a natural right to our freedoms without being deprived of them by our fellow men, as we are a freeborn people and have never forfeited this blessing by any compact or agreement whatever…. But we were unjustly dragged by the cruel hand of power from our dearest friends, and some of us stolen from the bosom of our tender parents…. We therefore beg… that we may obtain our natural right, our freedoms, and our children be set at liberty at the year of 21.⁷

To these men in slavery the notions of “nature” and “natural rights” were strikingly clear. And indeed my point here is that the Man on the Street, that ordinary man who thinks it obvious that we cannot make contracts with animals, has essentially grasped the core of the principle here. He understands why humans cannot be rightly ruled, or dealt with, in the way that humans are compelled to deal with animals. And in that way he has grasped what Lincoln understood as the “first principle” that marked the character of the American regime. He may not be able to name that principle, any more than he can name the Law of Contradiction even as he spots people telling him inconsistent stories. But it is part of his very nature to grasp the heart of the matter, and the rest can be drawn out simply by asking the questions that will unlock his understanding.

Anyone having commerce these days with “theories” will find himself dealing most often with generalizations that, at best, may claim to be true most of the time. But as we shall see, the anchoring ground for Natural Law is found in propositions that are not merely true most of the time, but true of necessity, true under all conditions. Thomas Reid warned against the tendency to extract “principles” from “inductive propositions” or generalizations drawn from experiments. For “experience informs us,” he said, “only of what is, or has been, not of what must be”: “Though it should be found by experience in a thousand cases, that the area of a plane triangle is equal to the rectangle under the altitude and half the base, this would not prove that it must be so in all cases and cannot be otherwise.”⁸

If we couldn’t grasp the principles that mark the character and properties of a triangle, we would have to measure each time we make use of a triangle and need to calculate the length of lines. It is a well-known truth that married men are likely to be healthier and lead longer lives. But as everyone knows, that is not necessarily true—it is not true in all cases. It is not true in the way it must indeed be true that it is wrong to hold people blameworthy or responsible for acts they were powerless to effect.⁹ Thomas Reid and also Immanuel Kant, in his own way,¹⁰ recognized that point as the very “first principle” of all moral and legal judgment.

Immanuel Kant put out an apt and pointed warning about writers who sought to deduce principles of moral judgment, and what might be called “a theory of human nature,” by generalizing on “the particular natural characteristics of humanity” or the “particular constitution of human nature.”¹¹ And in our own time, one of our most highly published jurists did not exactly enhance his distinction when he suggested that incest and infanticide may be in accord with Natural Law because they seemed to be an intractable part of the human record. They must, he thought, spring from something deeply planted in human nature. This eminent lawyer and judge had fallen precisely into the mistakes that Kant had warned of so tellingly: the tendency to work out a theory of human nature by simply generalizing upon the checkered record of our species. Killing has ever been a part of the human experience, and yet the Natural Law has always condemned the killing of the innocent. It has also made the clearest distinction between the higher and lower parts of human nature. The man who can respect a law beyond his appetites has enduringly been regarded as a far better man than one who recognizes no law beyond his own personal wants. Lincoln touched that sense of the matter when he appealed, in his first inaugural address, to “the better angels in our nature.”

That understanding of things “higher or lower” is entailed, as we shall see, by the very logic of moral judgment—that the good is preferable, more desirable, higher, than the bad. That logic has little to do with the conventions or “culture” that prevail in one place or another. Even in a criminal band there is a ranking of “virtues”; those of unbroken loyalty who keep their word or preserve their silence at key moments are marked as the supremely “better” men, to be admired and emulated. But that brings us back again to the only creature who by nature has the capacity to respect a law or a moral code beyond his own appetites. As Aristotle taught us at the very beginning, in the Politics, the political order arises by nature for only one kind of creature, precisely that same creature who alone can respect a law that may not be of his own making. The defining mark of the polis is now, as it was with Aristotle, the presence of “law”: the capacity to make decisions that are binding on everyone who comes within the boundaries of the community. And there is only one kind of creature who has the competence to frame the kinds of propositions that can rightly command the respect and assent of other creatures of reason. That sense of human nature is bound up with the rationale or justification of law, as it has been understood ever since there have been laws.

That sense of things has endured even after Justice Holmes led the modern movement to deny the connection between law and a distinctly human nature in the sweep of his contempt for Natural Law. What he also denied, with the same sweep, was that need to offer a justification for those measures imposed as laws.¹²

In the fetching early pages of Mere Christianity, C. S. Lewis appealed to the moral understanding that can be grasped, at its root, with the common sense of ordinary people. He conjured up some familiar lines, likely to be heard any day from “children as well as grownups,” from “educated people as well as uneducated”: “They may say things like this: ‘How’d you like if anyone did the same to you?’—‘That’s my seat, I was there first’—‘Leave him alone, he isn’t doing you any harm’—‘Why should you shove in first?’—‘Give me a bit of your orange, I gave you a bit of mine’—‘Come on, you promised.’ People say things like that every day….”¹³

“People” may say these things every day, and yet Lewis drew his examples mainly from the things said by, or to, children. And what is intriguing is that the children were not merely complaining about someone else’s behavior. They were expressing more than their “likes” and “dislikes.” As Lewis noted, the complainant, even as a child, “was appealing to some kind of standard of behavior which he expects the other [person] to know about.” As they fall into an argument, “it looks, in fact, very much as if both parties had in mind some kind of Law or Rule of fair play or decent behavior or morality or whatever you want to call it, about which they really agreed.” If they didn’t have that awareness of a rule lurking somewhere, “they could not quarrel in the human sense of the word. Quarrelling means trying to show that the other man is in the wrong. And there would be no sense in trying to do that unless you and he had some sort of agreement as to what Right and Wrong were.”¹⁴ Or: without the silent surety that they had access to certain standards of reason or judgment in arriving at answers that were better or worse.

In their natural reactions, moving along this path, children show their grasp of the same foundational point made in a striking and witty way by that remarkable Scot Thomas Reid. Reid was read closely by the American Founders, and especially by Scottish emigre James Wilson, who managed to quote Reid in one of the earliest decisions of the Supreme Court. Reid was addressing the moral “skeptics” who insisted that moral judgments did not hinge on reasons, that they simply reflected the subjective judgment in any case on what gave people pain or pleasure. Reid put the problem in this way:

Suppose that, in a case well known to both [my friend and me], my friend says, Such and such a man did well and worthily; his action is highly approvable. This speech… expresses my friend’s judgment of the man’s conduct….

Suppose again, that, in relation to the same case, my friend says, The man’s conduct gave me a very agreeable feeling.

The speech, if approbation be nothing but an agreeable feeling, must have the very same meaning with the first…. But this cannot be…. The first expresses plainly an opinion or judgment of the conduct of the man, but says nothing of the speaker; to wit, that he had such a feeling.¹⁵

In the second case, the man would be giving us a report on his own sensation. His remark would convey no judgment of whether the man was justified and worthy of approval—worthy of being approved in the same way by other men. If our moral judgments were reduced merely to personal feelings, then, as Reid wryly observed, there would be no need for anyone to fulfill the function of a “judge”: “He ought to be called a feeler.”¹⁶ As G. E. Moore would point out, about a hundred years ago, there could be no such thing then as a “moral argument.”¹⁷ For what are we challenging? Whether the person arguing on the other side earnestly has strong feelings in favor of his position? Two people may have different feelings in strongly approving or condemning abortions. Neither party can refute the other’s claim to his own feelings. But in the meantime, they have ceased to argue about the rightness or wrongness of abortion itself.

Lewis used the disarming example of children to teach another lesson that Aristotle had taught in his Politics: that it is the distinct nature of human beings to complain, show outrage or a sense of grievance on matters high and low, and to be given to argument. As Aristotle said, animals may emit sounds to indicate pleasure or pain, but the speech of human beings is of a world apart. Human beings can offer judgments on what is good or bad, just and unjust. They can reason over matters of right and wrong.¹⁸ Indeed, they have an incorrigible tendency to give—and resist—reasons as they seek to justify their own judgments. What Lewis managed to show, in his homely example, was just how natural these reflexes are, so natural that they find expression even among children in complaints about “fairness.”

My argument in this book is that the very ground of Natural Law—and the principles that govern our judgments in Natural Law—can be drawn from precisely the same common sense that is accessible to children and to ordinary folk. In that vein, I would submit that the child, with his natural understanding, grasps something that clearly runs beyond the judgment of Justice Holmes and his epigones.

Take, for example, the case of a seven-year-old who has been set upon by a band of roughnecks in school—he was beaten up and his pocket money stolen. Now what reaction seems more plausible to impute to that seven-year-old:

· That he feels set upon, hurt without warrant—that he has a sense of grievance, a sense of having been wronged? Or,

· That he has the sense that the kids who beat him up must have been right; that their very success in overpowering him must reveal that right was on their side?

My own reading is that the second response is quite implausible. The first response is, and will ever be, the most likely and sensible response. But if that’s the case, we assume that the child understands, as part of his natural reactions, this cardinal point in political teaching: that power cannot be the source of its own justification, that the success of some people in overpowering others cannot itself establish the rightness of the act. But we would be saying then that the child would grasp at once the understanding that was put forth with a sharp, eloquent force by Jean-Jacques Rousseau:

Strength is a physical attribute and I fail to see how any moral sanction can attach to its effects. To yield to the strong is an act of necessity, not of will. At most it is the result of a dictate of prudence. How, then, can it become a duty?… [T]o admit that Might makes Right is to reverse the process of effect and cause. The mighty man who defeats his rival becomes heir to his Right. So soon as we can disobey with impunity, disobedience becomes legitimate. And since the Mightiest is always right, it merely remains for us to become possessed of Might. But what validity can there be in a right which ceases to exist when Might changes hands?…

If I am waylaid by a footpad at the corner of a wood, I am constrained by force to give him my purse. But if I can manage to keep it from him, is it my duty to hand it over? His pistol is also a symbol of Power. It must, then, be admitted that Might does not create Right, and that no man is under an obligation to obey any but the legitimate powers of the State.¹⁹

Rousseau managed to convey in the most dramatic and compelling way the question that has always attended the presence of political or legal power when it is seen clearly for what it is: The logic of the law is that it binds (ligare); it overrides personal choice and private freedom and replaces them with a uniform rule or policy imposed on all. People may be committed through the laws to policies or ends they regard as morally objectionable. And the question raised over the years by the leading writers in political philosophy is just how that state of affairs can be justified. How is it that some men, invested with the trappings of authority, may rightly expect to have their edicts treated with the force of law? On what ground do they expect people to obey, to acquiesce in the overriding of their personal interests and the closing down of their freedom to take a different path? But to ask whether this state of affairs can be “justified” is to put the moral question up front. For we are asking: What principle can we cite, what reasons can we give, to show that there is something rightful or just about this law, even when it seems to cut against the interests of some groups or to offend the sentiments of others?

Rousseau alerts us to the fact that from the very beginning of law, with the flexing of legal authority, we find ourselves in a binary situation. There are two options before us: We can insist that the imposing of laws on people is something that immanently calls out for justification (which is to say, an account of its moral rightness or justness). Or we can claim that power is indeed the source of its own justification, that the success of some men in seizing and holding power over other people is the surest sign of the rightness of their rule.

What needs to be understood at the very beginning is that when we reject the notion of brute power as the source of its own justification, when we insist that the exercise of power and the making of laws need to be justified, we have made a clear choice for the moral path. We have taken the “moral turn.” And that choice, that path, marks precisely the choice for the Natural Law. There is no way of prettying up any longer the fact that this moral path was explicitly rejected and ridiculed by Justice Holmes as part of his sweeping rejection of Natural Law.

In his classic essay “The Path of the Law,” Holmes famously—or infamously—registered his hope that “every word of moral significance could be banished from the law altogether.”²⁰ When Holmes wrote in that way, he was expressing the voice of the Modern Project in law. He aspired to establish a science of law, purified by the removal of any terms of moral significance. That aspiration began well before Holmes, but Holmes was gifted with the aphorisms and the turns of phrase that linger. In any case, the scholar James Herget observed that “by the last quarter of the nineteenth century, the leading jurists had practically turned all responsibility for questions of morality over to the nonlawyers. Moralists were not interested in law, and lawyers were not interested in morality.”²¹ As Holmes condensed the matter, “Moral rights if there are any—These are for the philosopher.” Not for the lawyer or judge.

This understanding came to be deeply absorbed by lawyers trained in the best schools. Nowhere was it expressed more sharply than in a line of Judge Jon Newman in Connecticut, which Justice Brennan lifted to the plane of a governing axiom in the 1970s in Maher v. Roe, a case on the public funding of abortion. As Judge Newman put it, “Abortion and childbirth, when stripped of the sensitive moral arguments surrounding the abortion controversy, are simply two alternative medical methods of dealing with pregnancy….”²² One might as aptly say that, stripped of the moral differences, a fireplace and arson are just different ways of heating a house. To strip the moral significance from the two acts simply removes any ground for judgment that the acts may be justified or unjustified, rightful or wrongful. And why would one wish to do that in anything called the “administration of justice”?

Holmes could hold more fully to that purging of moral concerns precisely because he rejected, at the root, the very notion of moral truth. “All I mean by truth,” he said, “is the path I have to travel.” That is to say, something irreducibly personal and subjective. On one occasion Holmes defined truth as “that which I can’t help believing”—or, for the ruling majority, the majority that enacts its passions into law, “the can’t help believing of a majority.” And correspondingly, a universal truth would mean, as he said, “the majority vote of that nation that could lick all others.”²³ Holmes must have known that anyone half-literate would not need him to translate his conclusion into terms that used to shock decent people: that by morality he simply meant, as Rousseau saw it so accurately, the Rule of the Strong, or Might Makes Right. As Rousseau was the sharpest in explaining, anyone taking that line has rejected the moral path, the path of giving reasons or justifications for imposing laws on people.

I would throw myself again on the commonsense understanding grasped by the youngster, or by the ordinary man who is set upon unjustly. He is almost never struck with the insight that the thugs who beat him up must have been justified, that their success in mustering power over him must stand as proof that they deserved to win and impose their will on him. Virtually any ordinary person not burdened by tutelage in law school would instantly grasp what the overly educated Justice Holmes failed to understand and spent the years of his fame actively denying. That simple recognition may provide the point of entry for this book, and the guide through its pages. For my contention is that the Natural Law does not find its ground in “theories” but in those axioms of understanding that are readily accessible to ordinary people. But more than that, as Daniel Robinson argued, these understandings precede the grasp of theories, for they run back to those things we are simply compelled to take for granted as we get on with our lives.²⁴ And as I have suggested, we may be so accustomed to taking them for granted that we are serenely unaware of them—until that moment when someone poses a simple question and we suddenly become alert to what we have long known.