Michael M. Uhlmann on Hadley Arkes and the Natural Law
I begin with the observation that lawyers in general are an anti-philosophical race. They like their philosophy in small, easily digestible doses and tend to disdain anything that smacks of metaphysics.
This disposition is partly a consequence of their day-to-day experience, which seems to be filled with infinite contingency, relieved only by the certitudes of positive law. But this feature of the legal trade has been exacerbated in every respect by a century or more of legal realism, which has trained lawyers and judges to think of law and morals as two categorically discrete subjects that must forever be kept separate. The good news is that lawyers are good at reasoning by analogy and can be taught to think syllogistically.Here is the entry point for the kind of reasoning about law that Hadley Arkes has devoted his life to explaining. Better than almost anyone else I know, he makes explicit the syllogistic structure of moral reasoning of a sort that lawyers (and for that matter, everyone else) employ all the time—the skeleton, so to speak, of their thought. Give him a couple of Aristotelian propositions (the law of non-contradiction, for example) and a sprinkling of Kant, and the next thing you know people who have, as it were, never thought about thinking are thinking quite explicitly like the rational moral beings they are and have always been.
The best way to instruct lawyers and judges about higher things, I think, is to stick with specific cases and hypothetical examples drawn from their actual experience. In his voluminous writings over the years, Arkes has repeatedly demonstrated an unusual, indeed brilliant, knack for doing just that. He has done it again in his recent works, where he takes well-worn and familiar topics such as ex post facto laws, liberty of contract, and freedom of the press and shows how the positive law in each instance presupposes a certain kind of moral logic that one ignores only at one’s peril.
Presented with concrete examples of this sort—and the list is almost infinite—lawyers and judges (whether they agree or disagree with particular policy conclusions) will feel a reassuring terra firma under their feet; they will, in short, feel at home, which is where you want them to be if you seek to energize their moral imagination. In a word, you cannot expect lawyers and judges to become moral philosophers—God forbid!—but you can teach them how to reason morally and, perhaps, to become confident when doing so.Beyond real and hypothetical cases, it might be instructive as well to draw out the moral suppositions that lie beneath many maxims of the common law—those dealing with the foundational principles of tort and contract, for example, or more generally the injunction that a party seeking justice must come into court “with clean hands.” More general historical inquiry has a role to play here as well: Why not seek to instruct lawyers and judges about the nature of positive-law reasoning before Oliver Wendell Holmes Jr. and the legal realists got hold of legal education? Along this line, the eighteenth and nineteenth centuries open a gold mine of opportunities. It would be instructive, for example, to walk lawyers and judges through parts of Blackstone’s or Chancellor Kent’s commentaries on the common law. On constitutional matters, what about taking a look at John Adams’s Defence of the Constitutions of Government of the United States of America or Justice Joseph Story’s treatises? And later, there is Thomas Cooley’s Constitutional Limitations, which was the treatise par excellence of legal practitioners and judges in the late nineteenth century and the first decades of the twentieth.
Such inquiries would go beyond mere historical interest. The point, rather, would be to show present-day law students, lawyers, and judges how their predecessors reasoned about the positive law and its dependence on moral reasoning. Toward the same end, it might be useful to consider some of the nineteenth-century state supreme court reports, which not only summarized the briefs but excerpted lengthy parts of the oral arguments. Modern lawyers might find it instructive, I think, to see how comfortably the language of law and morals intersected in an earlier era.
There was a time when Natural Law thinking was much closer to the surface of positive law than modern teachers and students of law—and judges as well—typically imagine or are even capable of imagining.
—Adapted from Michael M. Uhlmann, “The Need for Natural Law,” Claremont Review of Books, fall 2011