How American Lawyers Once Used Natural Law and Why They Stopped
STUART BANNER
1
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Library of Congress Cataloging-in-Publication Data
Names: Banner, Stuart, 1963– author.
Title: The decline of natural law : how American lawyers once used natural law and why they stopped / Stuart Banner, UCLA School of Law.
Description: New York, NY : Oxford University Press, 2021. | Includes bibliographical references and index.
Identifiers: LCCN 2020043255 (print) | LCCN 2020043256 (ebook) | ISBN 9780197556498 (hardback) | ISBN 9780197556511 (epub)
Subjects: LCSH: Natural law. | Common law. | Religion and law.
LC record available at https://lccn.loc.gov/2020043255
LC ebook record available at https://lccn.loc.gov/2020043256
DOI: 10.1093/oso/9780197556498.001.0001
1 3 5 7 9 8 6 4 2
Printed by Sheridan Books, Inc., United States of America
CONTENTS
Acknowledgments vii
INTRODUCTION 1
PART I: BEFORE THE TRANSITION
1. THE LAW OF NATURE 11
2. THE COMMON LAW 46
PART II: CAUSES OF THE TRANSITION
3. THE ADOPTION OF WRITTEN CONSTITUTIONS 71
4. THE SEPARATION OF LAW AND RELIGION 96
5. THE EXPLOSION IN LAW PUBLISHING 119
6. THE TWO-SIDEDNESS OF NATURAL LAW 137
PART III: THE TRANSITION AND AFTER
7. THE DECLINE OF NATURAL LAW AND CUSTOM 167
8. SUBSTITUTES FOR NATURAL LAW 188
9. ECHOES OF NATURAL LAW 222
Index 251
ACKNOWLEDGMENTS
I’d like to thank Mark Greenberg, Dick Helmholz, Maximo Langer, Seana Shiffrin, participants in colloquia at UCLA and SUNY Buffalo, and the readers for Oxford University Press, who all offered extraordinarily helpful suggestions.
Introduction
This book is about a fundamental change in American legal thought that took place in the late 19th and early 20th centuries. Before the change, natural law played an important role in our legal system. Lawyers believed that human affairs were governed in significant part by laws of nature, laws that could be discovered in much the same way as the natural laws governing the nonhuman realm. These laws were understood to have an existence independent of human volition. They were not human creations. Before the change described in this book, for example, the law forbidding murder was understood to be a natural principle that regulated the behavior of human beings. It was a law that we found, not one that we made. To be sure, nations might enact legislation forbidding murder, but American lawyers before 1870 or so would have said, with virtual unanimity, that murder would still be illegal even in a nation that had not enacted any such legislation. It would be illegal because murder was contrary to the law of nature. The law forbidding murder was like the law of gravity or the laws of optics. It was a law that existed in nature, waiting to be discovered—not made—by humans.
This understanding of law almost completely disappeared from the legal system in the late 19th and early 20th centuries. After the change, lawyers believed that natural law plays no role in our legal system. Today, lawyers still consider murder to be wrong, of course, and they would deplore as grossly deficient the legal system of any nation that fails to prohibit murder. But they would say that murder is not illegal in that nation. Lawyers once believed that some of the rules of our legal system were not created by humans. They now believe that all the rules of the legal system are created by humans. In 1850, when a lawyer spoke in court, it would have been entirely normal for the lawyer to discuss the law of nature alongside statutes and court decisions as acknowledged sources of law. Today, if a lawyer tries to discuss natural law in court, the judge will look puzzled, and opposing counsel will start planning the victory party. Natural law is no longer a part of a lawyer’s toolkit.
The decline of natural law was a fundamental change, because it caused lawyers to think differently about whether, in difficult cases, law is something judges find or make. When natural law provided a reservoir of principles for judges to draw upon in deciding cases that existing human-made law did not easily resolve, judges were understood to be finding the law. But when natural law was no longer available to judges, the process of judging looked very different. Now, when existing humanmade law did not supply a ready answer, judges had nothing else to draw upon. Now judges were understood to be making the law, not merely finding it.
The routine use of natural law in the legal system seems so strange to a modern American lawyer that it raises some obvious questions. I began working on this book because I wanted to figure out the answers.
The first group of questions concerns the “before” picture. How did natural law work in practice? How did people ascertain its content? How did it relate to the law made by humans? In what contexts was it frequently invoked? Why did lawyers believe in it?
The second group of questions concerns the transition. When did lawyers cease using natural law? Why did they stop believing that it should play a role in the legal system?
The final group of questions concerns the “after” picture. When natural law dropped out of the legal system, what took its place? That is, how did lawyers adjust to the absence of natural law? What served the functions that natural law had once served? To what extent did natural law survive within the legal system, either explicitly or implicitly? To what extent did the change in the sources of law produce a change in the content of the law?
These are the questions this book tries to answer.1 The book is divided into three parts, corresponding to these three sets of questions.
1 The history of the use and decline of natural law in the American legal system has received very little scholarly attention. The last two chapters of R. H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice (Cambridge: Harvard Univ. Press, 2015), discuss the status of natural law in early American legal education and litigation. (Most of Helmholz’s book is about continental Europe and England.) The first two chapters of the present book expand upon Helmholz’s indispensable account, and the final seven chapters pick up where Helmholz left off, by charting the causes and effects of natural law’s decline. Andrew Forsyth, Common Law and Natural Law in America: From the Puritans to the Legal Realists (Cambridge: Cambridge Univ. Press, 2019), is a valuable study of how natural law figured in early university curricula and in the thought of writers such as William Blackstone and Joseph Story, but it says little about the use of natural law in the working legal system. The topic received more attention in the early 20th century, when the use of natural law in the legal system was still within living memory. See, e.g., Charles Grove Haines, The Revival of Natural Law Concepts (Cambridge: Harvard Univ. Press, 1930); Benjamin Fletcher Wright Jr., American Interpretations of Natural Law: A Study in the History of Political Thought (Cambridge: Harvard Univ. Press, 1931); Edward S. Corwin, “The ‘Higher Law’ Background of American Constitutional Law,” Harvard Law Review 42 (1928): 149–85, and 42 (1929): 365–409. In recent times the history of
Part I is about American legal thought before the late 19th century, when natural law was an important part of the legal system and when lawyers believed that judges were finders, not makers, of law. This part demonstrates that natural law was not as strange a concept as it may sound. When judges used natural law, they were usually engaging in what today we call policymaking—the explanation of why one rule makes the most sense, in situations where alternative rules are possible. In any judicial system there will be cases for which the existing rules do not provide a clear answer. Judges today use a different vocabulary to describe what they do in such cases, but the process itself is similar in many respects.
It is not exactly the same, however. One key difference is that in 1800, a judge elaborating a new rule for the very first time could sincerely believe that he was finding the law, not making it. This belief seems clearly mistaken to us today. We wonder how the lawyers and judges of the past could have been so obtuse as not to see the reality of what they were doing. But that is because we have a different understanding of the grounding of our legal system. The task of chapters 1 and 2 is to reanimate this now-defunct conception of the legal system—to explore how it worked and to explain why it seemed like common sense to the lawyers of the time.
Among lawyers of the 18th and 19th centuries, the term “natural law” had a meaning different from two conceptions of natural law that are widely held today. We need to clarify this difference at the outset, or else this book will be hard to understand.
First, many people today, both lawyers and nonlawyers, think of natural law as a set of Christian doctrines with origins in the Bible. Natural law in this sense tends to yield conservative outcomes, such as the unlawfulness of abortion and same-sex marriage. For this reason, today natural law is often viewed with favor on the right and with suspicion on the left. But there was nothing conservative about the natural law practiced by the lawyers of the 18th and 19th centuries. Natural law had no political valence one way or the other. It was just one more source of law, like statutes or court decisions, that all lawyers employed. Lawyers used natural law to argue on all sides of an issue. To employ natural law did not brand a lawyer as conservative; it merely branded him as a lawyer.
Indeed, much of the time there was not even anything particularly religious about natural law. Natural law rested on a Christian foundation, but lawyers did not believe that the Bible offered answers to most of the litigated questions that arose in a complex commercial society like that of the United States. To the
natural law has received more attention from historians of philosophy than from legal historians. See, e.g., Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge: Cambridge Univ. Press, 1996); Brian Tierney, Liberty and Law: The Idea of Permissive Natural Law, 1100–1800 (Washington, DC: Catholic Univ. of America Press, 2014).
extent that religious belief was involved in the elaboration of natural law, it was often nothing more than the belief that God had created humans with a power of reason that enabled them to work out answers to difficult legal questions. The version of natural law advanced by its religious proponents today scarcely resembles the natural law that pervaded the legal system in the 18th and 19th centuries.
The other widely held conception of natural law today is held by philosophers and law professors. On this view, “natural law” means a view of law in which what the law is depends at least in part on what it ought to be. It is conventionally contrasted with “positivism,” the view that what the law is and what it ought to be are two separate questions. As we will see, this use of the term “natural law” arose only in the mid-20th century. It captures one feature of natural law as it was understood by lawyers of the 18th and 19th centuries, but it lacks several of the other features that lawyers would have recognized as essential to natural law. The natural law discussed by a present-day philosopher of law would not have been called by that name in the 19th century. Nor would 19th-century lawyers have drawn a distinction between natural law and natural rights, as some philosophers of law do today. Rather, 19th-century lawyers would simply have said that a natural right is one protected by natural law, as distinct from a right protected by some other kind of law such as a constitutional provision or a statute.
“Natural law” today thus often has a meaning different from the one it had to lawyers in the 18th and 19th centuries. I urge readers who are familiar with natural law in either of these two present- day senses of the phrase to put that knowledge aside for the moment. Do not suppose that the lawyers of 1800 shared your understanding of the term. It is likely that they did not.
Part I of the book presents the “before” picture. It includes two chapters.
Chapter 1, “The Law of Nature,” explores how natural law worked in the legal system of the 18th and 19th centuries. It discusses how lawyers believed natural law could be discerned, how natural law related to positive law, why natural law seemed so plausible, and how natural law was used in practice.
Chapter 2, “The Common Law,” discusses 18th- and 19th-century lawyers’ understanding of common law, the law found in court opinions. Today lawyers think of the common law as consisting of the opinions themselves, and they think of judges as making the law when they write the opinions. Before the late 19th century, by contrast, lawyers believed that the common law had an existence independent of court opinions, and that the opinions were merely evidence of the law rather than the law itself. Common law was understood in large part as natural law applied to specific situations. It was considered to be something found, not made, by judges.
Part II of this book is about the long-term causes of the transition from this older way of thinking to the way lawyers think today. Why did lawyers reconsider the status of natural law within the legal system?
I had two expectations about this question when I began working on this book, both of which, I am now persuaded, were wrong. I will explain them briefly because I suspect some readers may share them.
One expectation was that the decline of natural law within the legal system would be a product of lawyers’ declining belief in natural law more generally. I expected to find that lawyers would have rejected the use of natural law in litigation because they came to doubt there was any such thing. The more I read, however, the more I realized that the primary change was not in how lawyers thought about natural law. It was in how they thought about the legal system. Some lawyers did indeed reject natural law in all domains of life, but most seem to have made a smaller move: they merely came to conceive of natural law as a matter of personal conscience rather than a tool to be used in litigation. They still believed or at least recognized the possibility that natural law existed, but they came to think that the courtroom was just not an appropriate venue for discussing it. One could invoke natural law in political debate, or in conversations within a religious congregation, or in thoughtful discussions among friends, but in court, human-made sources of law were the lawyer’s only tools.
My second expectation was that the causes of the change would be something outside the legal system—perhaps a big event like the Civil War or the Industrial Revolution, or perhaps a big intellectual rupture like Darwin’s account of evolution. Most legal history these days tends to be written this way, by attributing outcomes within the legal system to causes external to the system. I have followed this practice in my own prior writing, and I assumed I would do so here as well. Indeed, historians sometimes consider the opposite strategy, finding causes within the legal system, as a mark of unsophistication, because it has often been done very poorly by lawyers with a myopic focus on court opinions and an apparent lack of interest in the relationship between law and the wider world. I certainly did not set out to write an “internalist” account of the decline of natural law.
But that is what I ended up with, in large measure. The more I read, the less I was able to tell a credible story in which some set of events or intellectual trends outside the legal system caused lawyers to stop using natural law in litigation. Rather, the shift was caused by a few changes in how lawyers thought about the legal system itself. This dashed expectation, my second, is related to my first. The thing I am trying to explain is not why lawyers stopped believing in natural law, because it is not clear that most of them stopped believing in it. The thing I am trying to explain is why they stopped using natural law in their work.
It is a question about a change in lawyers’ argument style, a question about professional technique. It is the kind of question most amenable to an internalist explanation.
Part II consists of four chapters, each of which focuses on one reason American lawyers of the 19th century began to doubt whether natural law should play any role in the legal system.
Chapter 3, “The Adoption of Written Constitutions,” traces the effect of 19thcentury constitutional thought on the decline of natural law. Written constitutions were an American innovation with no direct parallel in the English legal tradition. Natural law had long been understood as a constraint on legislation, but constitutions served the same function, which raised the question whether American judges had the authority to invalidate legislation that conflicted with natural principles rather than written constitutional text. In the course of this debate, American lawyers voiced their first sustained critiques of the use of natural law within the legal system. The adoption of written constitutions in the late 18th century thus lay the groundwork for the eventual disappearance of natural law from the legal system.
Chapter 4, “The Separation of Law and Religion,” discusses an important change in lawyers’ understanding of the relationship between the spheres of law and religion during the 19th century. In the early Republic these spheres substantially overlapped. Natural law was understood to have been created by God. Christianity was considered to be part of the common law. Americans may not have become any less religious in the 19th century, but they increasingly came to think of religion as part of one’s private, personal life, separate from the public sphere of law. As law and religion separated, the notion that natural law should play a role in the legal system came to seem more and more anomalous.
Chapter 5, “The Explosion in Law Publishing,” considers a more practical development—the rapid proliferation of case reporting that took place in the 19th century. There were few published court opinions available to lawyers in the early part of the century. Lawyers necessarily grounded their arguments on broad principles, including principles of natural law. But by the century’s end, lawyers complained that they were drowning in reported cases. It was a common observation in the second half of the century that the glut of published opinions had changed the nature of law practice. Precedents had pushed principles aside.
Chapter 6, “The Two- Sidedness of Natural Law,” examines several divisive issues of the 19th century in which arguments based on natural law were prominent—capital punishment, property rights, the role of women, and slavery. These were highly salient political debates, and they were also issues that often arose in litigation. Participants on both sides framed their arguments in terms of natural law. By the later part of the century, lawyers began to wonder
whether, if natural law could be invoked to support both sides of such hotly contested questions, it was too indeterminate to be used in court.
Because of these four developments, American lawyers of the late 19th century were ready, to an extent they never had been before, to drop natural law from the legal system. There had been arguments against the use of natural law all through the 19th century, but they fell on deaf ears until near the century’s end, when they became persuasive for the first time.
Part III of the book is about the transition itself and its aftermath.
Chapter 7, “The Decline of Natural Law and Custom,” takes a close look at how natural law and custom disappeared from the legal system in the late 19th and early 20th centuries.
Chapter 8, “Substitutes for Natural Law,” offers a fresh perspective on some familiar aspects of the legal thought of the late 19th and early 20th centuries, by connecting them to the decline of natural law. Much of what we now call classical legal thought can be understood as the profession’s attempt to replace natural principles with principles located somewhere other than nature. At the same time, the decline of natural law led to the emergence of the view that judges are makers, not finders, of law.
Chapter 9, “Echoes of Natural Law,” examines the status of natural law in the legal system over the past century. In law schools, natural law never ceased to be a topic of study. This academic interest in natural law has had almost no effect on the working legal system, where natural law has been relied upon by only the most idiosyncratic of judges and lawyers. The history of our use of natural law has nevertheless continued to exert influence on the legal system, which still contains doctrines and practices that were once based on the law of nature.
There are a few points I should make at the outset, to avoid misunderstanding.
First, this book is about the role of natural law specifically in the American legal system, not in political discourse. Natural law has always figured prominently in American politics, from the Declaration of Independence, which relies on “the Laws of Nature and of Nature’s God,” right up through our own era. Martin Luther King famously cited natural law to explain why it was permissible to violate southern segregation statutes. “There are just laws, and there are unjust laws,” King explained in his 1963 Letter from Birmingham Jail. “A just law is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law.”2 More recently, the 2016 Republican Party Platform declared that “man-made laws must be
2 King’s Letter from Birmingham Jail is widely available on the internet, including at https://www. africa.upenn.edu/Articles_Gen/Letter_Birmingham.html
consistent with God-given, natural laws.”3 In 2018, after a gunman killed seventeen people at a high school in Florida, the chief executive officer of the National Rifle Association insisted that the right to use firearms “is not bestowed by man, but granted by God.”4 An interesting book could be written about how natural law has been used in political argument throughout American history, but this is not it.
Second, because this book is about natural law’s use and decline within the legal system, it focuses primarily on lawyers, judges, and law professors. Most of these people were not thinking about natural law in a systematic way. Most were practitioners, not theorists, and even the theorists were often writing for practitioners rather than fellow intellectuals. It may be helpful to think of this book as an exercise in the history of thought at a middling level. It is about neither the thoughts of intellectuals nor those of “the people” broadly conceived, but rather those of the members of a distinct professional culture, a set of people who were more educated and literate than average but who, with a few exceptions, were not self-consciously engaged in intellectual work. One could write a worthy book closely analyzing the work of a small number of philosophical writers who had the time and the inclination to think more thoroughly about natural law, but, again, this is not it. I do consider the work of such people where there is evidence that it had some influence on conventional thought within the legal profession, but the focus of this book is on practicing lawyers and judges.
Finally, this book is not about whether the use of natural law was good or bad, or about whether natural law should or should not be reintroduced to the working legal system. Today some wish for the revival of natural law, while others consider natural law a superstition we have happily outgrown. Both sides of this debate tend to misunderstand the way natural law was used in the legal system in the 18th and 19th centuries. Both sides are mistaken, moreover, in assuming that reviving natural law would cause the substance of the law to revert to what it was when lawyers used natural law. One of the lessons of this book is that the content of the law does not depend on whether natural law is part of the legal system, because the same results can be obtained with or without it. If we could somehow flip a switch and once again treat nature as an accepted source of law for purposes of litigation, I do not think the content of the law would change much, if at all. Lawyers would use different words in their arguments, but the substance of their arguments would remain largely the same.
3 Republican Platform 2016, at 9, https://prod-cdn-static.gop.com/media/documents/DRAFT_ 12_FINAL[1]-ben_1468872234.pdf.
American lawyers of the late 18th and early 19th centuries had no doubt that natural law played an important role in the legal system. “The law of nature,” Supreme Court justice Joseph Story explained, “is that system of principles, which human reason has discovered to regulate the conduct of man in all his various relations.” Story was summarizing the fundamentals of American law for the first American encyclopedia, the Encyclopedia Americana. “We call those rights natural,” he continued, “which belong to all mankind, and result from our very nature and condition; such are a man’s right to his life, limbs and liberty.”1 Lawyers and judges often made arguments based on natural law.2 “The law of nature forms part of the municipal law,” noted the Supreme Court justice Henry Baldwin. “There are certain great and fundamental principles of justice which, in the constitution of nature, lie at the foundation and make part of all civil law, independently of express adoption or enactment.”3 Law students read treatises and heard lectures on natural law.4 American lawyers had to be familiar with natural law, observed the Maryland law professor David Hoffman, because “in the decisions of courts” they would find “perpetual references to the elementary principles of that science.”5
But what exactly was natural law? Where did it come from? What was its content, and how was it discerned? How did it relate to human-made law? And why was it so firmly a part of early American legal thought? Why were lawyers so certain that natural law was a basic part of the legal system?
1 Valerie L. Horowitz, ed., The Unsigned Essays of Supreme Court Justice Joseph Story (Clark, NJ: Talbot Publishing, 2015), 259, 261.
2 R. H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice (Cambridge: Harvard Univ. Press, 2015), 142–72.
3 United States v. Holmes, 26 F. Cas. 360, 368 (C.C.E.D. Pa. 1842).
4 Helmholz, Natural Law in Court, 127–42.
5 David Hoffman, A Lecture Being the Second of a Series of Lectures, Introductory to a Course of Lectures Now Delivering in the University of Maryland (Baltimore: John D. Toy, 1825), 15.
The Sources of Natural Law
If an American lawyer were asked, circa 1800, “Where does the law come from?” his response would likely have begun with a distinction between positive or municipal law, the law made by humans, and natural law, the law made by God. Both were understood to govern human affairs. “The natural or moral law,” lectured the Pennsylvania judge Jacob Rush in 1796, is “that law which is founded upon the eternal reason and fitness of things, and enjoins those duties, which, as dependent creatures, we owe to our Creator, and to each other.” Rush, like many writers, cited murder as an example of an act contrary to natural law, in that murder was “universally evil, in every age and nation.” Positive law, by contrast, was a matter of human preferences. “By a positive law,” Rush continued, “is understood a law, which does not necessarily flow from the nature of things, but is founded solely on the will of the law-giver.” He gave as an example “the human law, which forbids the obstructing our high-ways, or navigable waters.”6 Different jurisdictions might have different positive laws because the acts those laws prohibited, such as obstructing a highway, were not wrong in themselves. They were wrong simply because they had been made illegal by human legislation.
In understanding the law this way, Americans were following a long English and continental European tradition.7 Early American legal thought in this respect scarcely differed from contemporary thought across the Atlantic. Much of what American lawyers wrote about natural law was remembered, or even copied directly, from English and European books that circulated in the United States. Because of this tradition, a few basic ideas quickly became accepted principles of American legal thought.
One of these ideas was that the source of natural law was God. “The only sure foundation of all right, is the will of the great Creator,” declared the Boston lawyer Benjamin Oliver.8 Such had long been the conventional view among English lawyers. Edward Coke, the most prominent English judge of the 17th century, explained, in a case well known among American lawyers, that “the law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction.”9 William Blackstone, the
6 Jacob Rush, Charges, and Extracts of Charges, on Moral and Religious Subjects (New York: Jonathan Weeden, 1804), 12–13.
7 Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge Univ. Press, 1979); Knud Haaknonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge: Cambridge Univ. Press, 1996); Tamar Herzog, A Short History of European Law: The Last Two and a Half Millennia (Cambridge: Harvard Univ. Press, 2018), 152–64.
8 Benjamin L. Oliver, The Rights of an American Citizen (Boston: Marsh, Capen & Lyon, 1832), 9.
9 Calvin’s Case, 77 Eng. Rep. 377, 392 (1608).
18th-century English judge and law professor whose four-volume Commentaries was the standard reference work for American lawyers for a century, provided a similar account of the source of natural law. “As god, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion,” Blackstone observed, “so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature.”10 In an era when belief that God influenced human affairs was nearly universal, it was not a controversial proposition that the law of nature had been created by God.
Natural law was understood to be based on the nature of human beings (or the nature of “man,” as writers of the period put it). Natural law was not a set of arbitrary rules, but was rather, as Francis Lieber explained, “the body of rights, which we deduce from the essential nature of man.”11 For example, people needed food to survive, noted the lawyer-poet William Hosmer, so the law of nature “evidently points to some exertion to procure food,” and people naturally enjoyed the company of others, which suggested “that man was made for society.” Such examples indicated that “at least in some things we are bound by conditions—that is, laws—which we must abide, because it is not in our power to set them aside. That is to say, physical existence acknowledges a higher law.”12
Because natural law was created by God and was based on human nature, it followed that natural law, unlike positive law, was the same everywhere and at all times. The Ohio lawyer John Goodenow published his 1819 treatise on American jurisprudence to show how American law differed from the law of England, but Goodenow began by acknowledging that “the law of nature is common to all rational beings.”13 This too was a staple of transatlantic thought. The Swiss philosopher Jean-Jacques Burlamaqui, whose Principles of Natural and Politic Law was published in a few American editions, considered it an “essential characteristic of the laws of nature . . . that they be universal.” As Burlamaqui explained, “This is what distinguishes natural from positive laws; for a positive law relates only to particular persons or societies.”14 The French Baron de Montesquieu, whose Spirit of Laws was also widely known in the early United States, likewise emphasized the universality of natural law, which regulated
10 William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765–69), 1:39–40.
11 Francis Lieber, Manual of Political Ethics (Boston: Charles C. Little and James Brown, 1838–39), 1:65.
12 William Hosmer, The Higher Law, in its Relations to Civil Government (Auburn: Derby & Miller, 1852), 19–20.
13 John M. Goodenow, Historical Sketches of the Principles and Maxims of American Jurisprudence (Steubenville, OH: James Wilson, 1819), 7.
14 J. J. Burlamaqui, The Principles of Natural and Politic Law (Boston: John Boyle, 1792), 1:116.
human affairs even before any group of humans had established positive laws to govern their communities. “To say that there is nothing just or unjust but what is commanded or forbidden by positive laws,” Montesquieu insisted, “is the same as saying, that before the describing of a circle, all the radii were not equal.”15
American lawyers were still making the same point more than a century later: Natural law did not vary across cultures or through time. “Of course, it will be expected that the peculiar genius of a people will find expression in their laws,” observed the Supreme Court justice Joseph Bradley in a lecture to law students at the University of Pennsylvania, “but human nature and the great mass of human actions are essentially the same amongst all peoples.” For that reason, he concluded, at bottom the law “is not an arbitrary and empirical set of rules; but is founded upon immutable and eternal principles.”16 Senator Thomas Bayard, who had been a practicing lawyer before entering politics, spoke at Yale Law School’s graduation in 1883. “The nature of mankind has not changed since the lark first sang,” he declared. “There is a law of nature founded on the general nature of human beings and not on the temporary and accidental situations in which they may be placed.”17
How were these principles of natural law to be discerned? Lawyers answered this question in two very different ways. On one hand, many cautioned that determining the content of natural law was no easy matter. It required considerable study, because natural law, unlike positive law, was not written down in any authoritative source. “In natural law, the principles upon which the science is founded are not made known with that clearness and firmness, with which the principles of positive law are promulgated; neither are its sources so obvious or accessible,” lamented one reviewer in the American Jurist. “Its principles must consequently be ascertained, by a laborious and painful investigation, which the systems of positive law do not demand; and the results of this investigation must necessarily be attended with a corresponding degree of uncertainty, which can only be removed by further and more profound investigations.”18 James Richardson, the president of the bar of Norfolk County, Massachusetts, in the 1830s, agreed that the law of nature could not be worked out “exclusively by the unguided reflections of the individual.” Discerning the principles of natural law instead required “the critical investigation of all questions of right, that have
15 Baron de Montesquieu, Spirit of Laws (Worcester, MA: Isaiah Thomas, 1802), 1:18.
16 Miscellaneous Writings of the Late Hon. Joseph P. Bradley (Newark, NJ: L.J. Hardham, 1901), 246–47.
17 Thomas F. Bayard, The Responsibilities of the Legal Profession in a Republic (New Haven: Yale College, 1883), 29.
18 “Jouffroy on Natural Law,” American Jurist and Law Magazine 18 (1837): 12.
arisen in all states of society, in all stages of civilization and refinement.”19 The New York judge James Kent, whose four-volume Commentaries on American Law became the leading domestic legal reference work after its initial publication in the 1820s, emphasized the importance of comparing legal systems in different countries in determining whether a principle was truly part of natural law. “The universality of the sense of a rule or obligation,” Kent observed, “is pretty good evidence that it has its foundation in natural law.”20 Indeed, the very existence of learned European treatises delineating the principles of natural law suggested that it was no pursuit for amateurs.
On the other hand, it was often said—including in some of those very same learned treatises—that the law of nature was something instinctual that could be determined by anyone, simply by attending to one’s innate sense of justice. Burlamaqui insisted that all people had a “natural bent or inclination which prompts us to approve of certain things as good and commendable, and to condemn others as bad or blameable, independent of reflection.” Even “a child, or untutored peasant, is sensible that ingratitude is a vice, and exclaims against perfidy, as a black and unjust action, which highly shocks him, and is absolutely repugnant to his nature.”21 The Scottish jurist Lord Kames agreed that “we are so constituted, as to perceive a right and wrong in actions.” Human beings had “a peculiar sense of approbation or disapprobation, to point out to us what we ought to do, and what we ought not to do.”22 Adam Smith likewise noted that “the greatest part of what are called natural rights” could readily be discerned by ordinary people. “That a man has received an injury when he is wounded or hurt any way is evident to reason, without any explanation,” Smith observed, “and the same may be said of the injury done one when his liberty is in any way restrain’d; any one will at first perceive that there is an injury done in this case.”23
In the United States, perhaps the most widely read discussion of an innate human ability to discern natural law came from Blackstone. If understanding the law of nature “could not otherwise be attained than by a chain of metaphysical disquisitions,” Blackstone reckoned, then few would make the effort, “and the greater part of the world would have rested content in mental indolence, and ignorance its inseparable companion.” Fortunately, no metaphysical disquisitions were required. God “has been pleased so to contrive the constitution and frame
19 James Richardson, An Address Delivered Before the Members of the Norfolk Bar (Boston: Torrey & Blair, 1837), 9.
20 James Kent, Commentaries on American Law (New York: O. Halsted, 1826–30), 2:263.
21 Burlamaqui, Principles, 89–90.
22 Henry Home (Lord Kames), Essays on the Principles of Morality and Natural Religion (London: C. Hitch et al., 1758), 37.
23 Adam Smith, Lectures on Jurisprudence, ed. R. L. Meek et al. (Oxford: Clarendon Press, 1978), 13.
of humanity, that we should want no other prompter to enquire after and pursue the rule of right, but only our own self-love.” That was because “he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter.”24 Natural law was what felt right to ordinary people.
Thomas Rutherforth, the Cambridge divinity professor whose Institutes of Natural Law was one of the standard works on the topic in the early United States, provided an even clearer account of how people were naturally inclined toward the law of nature. “Whatever rules therefore are, by our own nature and the constitution of things, made necessary for us to observe, in order to be happy,” Rutherforth explained, “these rules are the law of our nature.” He did not mean a selfish sort of happiness unconnected with the happiness of others. From the perspective of any single individual, Rutherforth concluded, “Although his own particular happiness be the end, which the first principles of his nature teach him to pursue; yet reason, which is likewise a principle of his nature, informs him, that he cannot effectually obtain this end without endeavouring to advance the common good of mankind.”25 Happiness in this sense—collective well-being rather than individual enjoyment—was the incentive that drove the instinctive ability to follow the law of nature.
Ordinary people discerned natural law, on this view, by using the same common sense they used to identify what was reasonable, what was fair, and what was best for all concerned. Indeed, some suggested, natural law was nothing more than what was reasonable and conducive to overall happiness. “There is no general law of nature which opposes the happiness of man,” declared the New York lawyer E. P. Hurlbut.26 David Hoffman borrowed the word utility from Hume and Bentham to describe this relationship between natural law and the collective good. “Natural rights consist in the liberty of doing and possessing every thing not forbidden by rules drawn from general utility,” he lectured. “Our individual rights are ascertained, in all states of society, by an appeal to the general utility.”27 As another lawyer put it, the law of nature was simply “the doctrine of intrinsic reasonableness.”28
24 Blackstone, Commentaries, 1:40.
25 Thomas Rutherforth, Institutes of Natural Law, 3rd ed. (Philadelphia: William Young, 1799), 1:24–25.
26 E. P. Hurlbut, Essays on Human Rights and Their Political Guaranties (New York: Greeley & McElrath, 1845), 16.
27 David Hoffman, Legal Outlines (New York: s.n., 1848), 107.
American lawyers and judges often repeated that natural law was apprehended intuitively. “It is implanted in us by nature itself,” affirmed the Philadelphia lawyer William Rawle. “It is felt, not learned.”29 A South Carolina judge lauded the “natural law that resides in the breast of the citizen.”30 A Missouri law professor explained that principles of natural law “are so called because they are approved by the instinct of justice, or the moral sense which is part of our being.”31 A New Jersey lawyer insisted that the law of nature was simply “common consciousness.”32 As late as 1905, when the Georgia Supreme Court became one of the first courts to recognize a right of privacy, the court declared that “the right of privacy has its foundation in the instincts of nature. It is recognized intuitively.”33 Natural law was the subject of a learned tradition, but it was also commonly said to be a subject for which no learning was necessary.
These contrasting methods of discerning natural law were analogous to one of the primary contrasting features of Catholicism and Protestantism, in that the former tradition placed a greater emphasis than the latter on expertise as a path to determining correct doctrine. American lawyers of the 19th century were overwhelmingly Protestant, particularly among the judiciary, so perhaps it is not surprising that they tended to think of natural law as a field well within the competence of ordinary people. Pointing in the same direction was the circumstance that the United States had not yet developed an academic legal culture along European lines. Europe had law professors who devoted much of their time to writing learned treatises, but the 19th-century United States did not.
The human instinct toward reasonableness provided one path to knowledge of the law of nature; revelation provided the other. Some principles of natural law were written down, in the Bible. “The doctrines thus delivered we call the revealed or divine law, and they are found only in the holy scriptures,” Blackstone explained. These precepts were “really a part of the original law of nature.”34 As the New York lawyer Joseph Moulton put it, “The Bible, containing these revelations is, therefore, the first law-book.”35 Interpreting the modern relevance of the Bible was not always simple, because not every command in it was intended to endure for all time. Much of the law stated in the Bible was specific to the ancient
29 William Rawle, A View of the Constitution of the United States of America (Philadelphia: H.C. Carey & I. Lea, 1825), 252.
30 State v. Bailey, 1 S.C. 1, 6 (1868).
31 Philemon Bliss, “The Right to Disinherit Without Cause,” Southern Law Review 3 (1874): 444; see also Philemon Bliss, Of Sovereignty (Boston: Little, Brown, 1885), 84.
32 E. L. Campbell, The Science of Law (Jersey City, NJ: Frederick D. Linn, 1887), 96.
33 Pavesich v. New England Life Insurance Co., 50 S.E. 68, 69 (Ga. 1905).
34 Blackstone, Commentaries, 1:42.
35 Josephy W. Moulton, Analysis of American Law (New York: John S. Voorhies, 1859), 11–12.
