Prof. Arkes responds to Prof. Baur

A few days ago, I linked to an essay by Prof. Michael Baur on natural law, positive law, and the role of judges. The essay was, among other things, a response to the recent work of Prof. Hadley Arkes, with whose work I'm sure MOJ readers are familiar.  Hadley sent to me the following, which I am happy to post (with his permission):  

          A friend alerted me that my name was taken in vain in a recent exchange in the Mirror of Justice:  My friend Rick Garnett had recommended a recent essay done by Michael Baur at Fordham in response to a lecture on natural law by another good friend, Judge Diarmuid O’Scannlain.  O’Scannlain made the curious move in that lecture of identifying me with what he called an “aggressive” style of natural law reasoning---curious because he had reviewed my book, Constitutional Illusions & Anchoring Truths:  The Touchstone of the Natural Law, and if nothing else in my writing could have diverted him from that characterization of my “work,” there should have been ample refutation of that characterization in the chapter titled “A Good  Word for the Legal Positivists.”

          It may come as a surprise to Professor Baur that the position he offers as a sensible middle way, drawing on Aquinas, is one I had long  encompassed in my own work—he might go back to my book The Philosopher in the City (Princeton, 1981), especially in the last two chapters, dealing with “Law,  Morals and the Regulation of Vice.”  But even if he had read only the most recent books, he would known that we were, as  a colleague of mine says, in “heated agreement” on the arguments he was making.  As  I’ve made the point in  the  most  recent and other books:

          --The natural law has long made a place for the necessity of the positive law.  We may understand a principle that bars us from driving at speeds that put life at hazard, but we need a regulation of the positive law to translate that principle into a measure that bears more precisely on the terrain and circumstances at hand (35 mph on a winding country road, 65 mph on the highway).

          --It  is a deep principle of the natural law that positive laws made in a lawful way should be obeyed, even when  they are bad laws—until those laws can be changed in a lawful way.   If there is something right in principle about government by consent, we  should be obliged to respect the laws enacted by the legislators authorized to act until they can  be changed through lawful means.

          --There must be room for statesmen to make accommodations with an evil for the sake of compressing that evil.  As Aquinas taught, we cannot obliterate all evil among human beings;  the best we can do is compress evils to certain tolerable limits.  Hence the accommodations with slavery made by the American Founders—accommodations, as Lincoln said, that were done with the hope of putting  slavery “in  the course of ultimate extinction.”

          Professor Baur, sensible as he is, sounds rather  like those intrepid explorers described by Chesterton:  After a while at sea, they spot land,  and discover that they’ve landed at … Brighton.    Professor Baur offers an inspired middle way only to discover that he has landed at the spot that I’ve occupied, marked off, explained for many years.

          It is curious also that Baur cites only one line of mine to illustrate what he calls that “aggressive” style of natural law: 

 [T]he task of judgment, in our constitutional law, persistently moves us away from the text, or from a gross description of the act [being judged], and it moves us to the commonsense understanding of the principles that guide these judgments: the principles that help us in making those distinctions between the things that are justified or unjustified. 

          The fire department blocks me from walking down the street to my apartment because it’s fighting a fire there.  My liberty has been impeded, but my rights have not been impaired or denied, for that liberty was restricted with evident “justification.”  The Constitution bars “unreasonable” searches and seizures.  At every turn we are faced with the question of whether the law is restricting our freedom,  taking our property or even our lives, with or without justification. Our judgments will turn on those principles we use to the measure the  presence of an adequate justification; principles that lie outside the text.  Surely it could not have passed Prof. Baur’s recognition that what he describes here as an “aggressive” use of natural law is indeed the work of the law, and moral judgment, every day,  not only by lawyers but by ordinary folk, not burdened with law degrees. 

          And yet, the heart of the argument with Judge O’Scannlain is not altered in  the least, but simply replicated by Prof. Baur.  For what is this sensible “third way” that Rick Garnett finds in Baur’s addition to O’Scannlain?  One way or another it involves an account of how judges  might be authorized to invoke understandings of the natural law, whether or not they are valid, because the natural law is given some grounding in the positive law, and the distinct circumstances, in the polity in which we are living.  Something of that kind?  The authorization involves the articulation of this understanding, formed into a kind of rule to explain why a judge may be justified in invoking notions of natural law.   Now, is it worth pointing out to Prof Baur that this construction he is offering is nowhere contained in the Constitution or the positive law?   And yet it would apparently regard it as an understanding sound enough to guide the judges and the rest of us.    I gather that he regards this understanding as something sensible in itself—as Alexander Hamilton would say,  an understanding “which, antecedent to all reflection or combination, commands the assent of the mind.”   Which is to say, it is one of the “first principles,” not at all dependent on the Constitution.  We are back with the  natural law, and the truth of the matter is that we never left it.  

          Reflective of this state of mind is this telling passage from Professor Baur as he tries to crystallize his argument:  

[I]t is never the case that the norms on the basis of which judges (or we) may legitimately evaluate existing positive laws, can be given apart from the actual and concrete practices, interactions,and patterns of behavior (in short, the positings) that inform us and make us the social, linguistic, concept-wielding, and hence rational beings that we are.

            Everything is subject to a context of “actual and concrete practices”—except this proposition itself. This understanding, so critical to Baur’s argument, is never itself subject to a context. Evidently it is to be taken as true under all conditions.  We are back again to first principles. 

            The question emerging from all of this then:  How often is it necessary to keep backing into self-refuting propositions, before that recognition finally dawns?    And as it dawns, commentators may recognize that, as they seek to resist the “laws of reason” that form the ground of natural law, they keep backing into those same laws as they try to fashion their own arguments.   They keep landing at Brighton. The surprise, yet to dawn for them, is that they have never left  the natural law. 

            The readers of the Mirror of Justice, instead of relying on other accounts, may be interested in seeing my own response to Judge O’Scannlain.  It will be part of the “Natural Law Manifesto,” a talk I gave in Washington on June 4^th, as we inaugurated our new Center for Natural Law in Washington,  under the sponsorship of the Claremont Institute. The fuller text will appear in the Claremont Review, but it will be available also, with those footnotes we esteem and dread, in an upcoming issue of the Notre Dame Law [Review].

I'll invite Prof. Baur to respond in detail (or, perhaps, to Robby, to weigh in).