WEBVTT 1 00:00:15.560 --> 00:00:20.879 From power Line Blog dot com and produced by Ricochet dot Com. This is 2 00:00:20.920 --> 00:00:37.039 the power Line Show with your host Steve Hayward. Way back around nineteen sixty, 3 00:00:37.320 --> 00:00:42.359 Leo Strauss wrote the following in the Encyclopedia of the Social Sciences. Quote 4 00:00:42.600 --> 00:00:47.399 natural law, which was for many centuries the basis of the predominant Western political 5 00:00:47.439 --> 00:00:52.600 thought, is rejected in our time by almost all students of society who are 6 00:00:52.640 --> 00:00:56.759 not Roman Catholics end quote. Well, that may have been true in nineteen 7 00:00:56.799 --> 00:01:00.000 sixty, but things have certainly changed since then. Law law has made a 8 00:01:00.000 --> 00:01:06.319 comeback of sorts. It's partly implicated in the revival of constitutional originalism that is 9 00:01:06.359 --> 00:01:10.920 so important at the Supreme Court these days. Although the role in place of 10 00:01:11.000 --> 00:01:15.079 natural law thinking is still obscure, contested, and not always evident in the 11 00:01:15.079 --> 00:01:19.319 Supreme Court opinions. So it's not clear that all is going. But there 12 00:01:19.359 --> 00:01:23.640 also is a lot of what is called new natural law theory, and I 13 00:01:23.640 --> 00:01:26.319 have to say I find a lot of it very abstruse and complex and hard 14 00:01:26.319 --> 00:01:30.920 to follow. Now. It's not that the classical authors of natural law theory, 15 00:01:32.000 --> 00:01:34.840 like Aristotle or Cicero or Aquinas, are simple or easy to follow. 16 00:01:36.400 --> 00:01:40.760 But they tend not to use the refined, specialized jargon of modern philosophy. 17 00:01:41.280 --> 00:01:44.519 In other words, I think a lot of the so called new natural law 18 00:01:44.599 --> 00:01:49.040 theory makes too many concessions to modern thought and modern philosophy, And in some 19 00:01:49.079 --> 00:01:55.640 specific examples it's as though modern philosophy begins with Bentham and the classical tradition is 20 00:01:55.680 --> 00:02:00.719 not really reckoned with at all. Now, one happy exception on this dismal 21 00:02:00.760 --> 00:02:06.719 outlook, in my mind is the great Hadley Arcus, Professor emeritus of Jurisprudence 22 00:02:06.719 --> 00:02:10.240 from Amherst College and founder of the James Wilson Institute on Natural Rights in the 23 00:02:10.240 --> 00:02:15.719 American Founding. He has been writing great books on the subject for several decades 24 00:02:15.759 --> 00:02:19.080 now, but his latest book, I think, really gets at the common 25 00:02:19.120 --> 00:02:23.080 sense of the matter. The new book is called Mere Natural Law, Originalism 26 00:02:23.159 --> 00:02:28.759 and the Anchoring Truths of the Constitution, And although Hadley has his own very 27 00:02:28.759 --> 00:02:32.800 specialized style, it's a book that any reader of common sense and ordinary intelligence 28 00:02:32.840 --> 00:02:38.840 can follow and learn quite profound aspects of the truth of natural law and its 29 00:02:38.840 --> 00:02:42.639 importance and relevance to the way we think about the world today. So it 30 00:02:42.719 --> 00:02:46.360 was my pleasure to host Hadley for a lecture at Berkeley Law last week, 31 00:02:46.879 --> 00:02:51.319 and we did sit down beforehand to have a conversation not only about natural law, 32 00:02:51.759 --> 00:02:54.159 but also about the connection it bears to the issue of free speech, 33 00:02:54.680 --> 00:03:00.639 and especially the current controversies about whether the reaction to the prohma demonstrations on college 34 00:03:00.639 --> 00:03:06.639 campuses represent right wing cancel culture as it is being alleged by the left. 35 00:03:06.800 --> 00:03:08.879 Of course, that's all nonsense, and he will explain that and many other 36 00:03:08.960 --> 00:03:15.080 things in our conversation and will start right now. All right, Hadley, 37 00:03:15.240 --> 00:03:17.199 let's begin at the beginning. As a famous teacher we're both familiar with, 38 00:03:17.520 --> 00:03:22.479 used to like to say, what is natural law? I mean, it 39 00:03:22.560 --> 00:03:25.240 sounds like may be a dumb question, except that there's so many new natural 40 00:03:25.319 --> 00:03:30.439 law theories that I find gravely defective in a number of ways. They seem 41 00:03:30.439 --> 00:03:35.960 to be overly sophisticated, make too many concessions to modern philosophy and our boring 42 00:03:36.080 --> 00:03:39.960 reading. Whereas your books have always approached natural law from the entirety of the 43 00:03:40.039 --> 00:03:46.639 long tradition and in a common sense way accessible to any ordinary human being of 44 00:03:46.680 --> 00:03:50.840 average curiosity. So let's start the beginning, and you know, what is 45 00:03:50.919 --> 00:03:53.319 natural law? For people out about it. I've been getting that question, 46 00:03:54.039 --> 00:03:57.479 you know. I'm just going to tell a group today, I've been doing 47 00:03:57.520 --> 00:04:01.240 these interviews where it's been something like Brian Lamb at Sea spam would remind their 48 00:04:01.280 --> 00:04:09.479 audience who again was Lincoln, you know? And who Andrew Johnson? And 49 00:04:10.639 --> 00:04:15.000 an interviewer asked me earnestly, what is tell me what is natural law? 50 00:04:15.439 --> 00:04:20.199 And of course I draw upon manual count to Thomas Read and even a quint 51 00:04:20.240 --> 00:04:24.480 Us to say, it is the law that underlies all of the law. 52 00:04:24.560 --> 00:04:29.360 It's the law that tells us why we be justified. And having positive law, 53 00:04:29.399 --> 00:04:31.439 the enacted law in the first place. So we see the signs of 54 00:04:31.480 --> 00:04:36.839 the road saying sixty five at BAH thirty five, but behind those numbers, 55 00:04:38.240 --> 00:04:42.079 as a manual count would tell us, it's a deeper natural law that tells 56 00:04:42.160 --> 00:04:46.879 us why we be justified in restraining the freedom of people to drive at speeds 57 00:04:46.879 --> 00:04:50.399 that put innocent life at hazard. But then the trick, as ever, 58 00:04:50.600 --> 00:04:56.079 is to make a translation that translates the underlying natural law it terms that apply 59 00:04:56.639 --> 00:05:01.519 to the circumstances and to train before us sixty five and open highway thirty five, 60 00:05:01.560 --> 00:05:06.000 and that winding growth. This is why natural law always gives rise to 61 00:05:06.360 --> 00:05:12.360 positive law. But the natural also tells us who has the authority to make 62 00:05:12.399 --> 00:05:17.120 that positive law in the beginning. So I was at a conference years ago 63 00:05:17.160 --> 00:05:24.040 with that professor from no name, Amy Coney Barrett, and yeah, and 64 00:05:25.120 --> 00:05:30.079 a student us, a devotee of Nino Scalias for the positive law. And 65 00:05:30.079 --> 00:05:33.000 the student asked her, you know, why do you have such reference for 66 00:05:33.079 --> 00:05:38.519 the positive law? What makes the positive law in America stand on a higher 67 00:05:38.600 --> 00:05:43.959 plane than the positive law in Stalines, Russia? And she's still taken aback 68 00:05:44.000 --> 00:05:47.800 by it. But the key lies in that string of three questions from John 69 00:05:47.879 --> 00:05:53.240 Locke, What is the source of the law? The legislature that makes the 70 00:05:53.319 --> 00:05:57.959 law? Well, then what is the source of the legislature? Well, 71 00:05:58.000 --> 00:06:00.600 the constitution that tells you whether you have a sature, how many chambers were 72 00:06:00.680 --> 00:06:04.040 kind of powers? But then Locke asks, well, then what is the 73 00:06:04.079 --> 00:06:10.920 source of the constitution. It must be, he said, something wholly antecede 74 00:06:11.000 --> 00:06:15.279 into the positive law, evolving the right of the people to the determined the 75 00:06:15.360 --> 00:06:17.759 terms of their governance. In our own case, it took this form. 76 00:06:18.000 --> 00:06:20.560 No man is by nature to the rule of other men the way that God 77 00:06:20.639 --> 00:06:24.839 is by nature the world of men men are by nature the rule of dogs 78 00:06:24.879 --> 00:06:29.279 and horses. The only rightful form of government over human beings involves the consent 79 00:06:29.319 --> 00:06:32.480 of the governed. My dear beloved friend Nino Scale would say, that's a 80 00:06:32.519 --> 00:06:36.680 lovely sentiment, but it's never been enacted in our loss. And the answer 81 00:06:36.800 --> 00:06:41.040 is, of course it couldn't be enacted. It's a thing that had to 82 00:06:41.040 --> 00:06:46.000 be in place before we knew who had the authority to enact anything. Now, 83 00:06:46.040 --> 00:06:47.480 picking up the thing I was gonna mention today, I pick up one 84 00:06:47.480 --> 00:06:53.399 of your lines. A foreign president Amherst said, Hadley has a theory of 85 00:06:53.519 --> 00:06:59.079 natural law as when you say that, you suggest that people are standing by 86 00:06:59.360 --> 00:07:03.959 it hastened to touchment watching theories was passed, and somehow you're able to form 87 00:07:03.959 --> 00:07:09.600 a judgment on the strands of those theories that are plausible or implausible, truth 88 00:07:09.639 --> 00:07:12.879 false. And I said, take me back to that ground in which you 89 00:07:12.959 --> 00:07:16.639 make those judgments about the things you reliably know, And you be led back 90 00:07:16.720 --> 00:07:20.879 to the ground that some of us take to be the ground of the natural 91 00:07:21.040 --> 00:07:26.399 law, not theory. My dear late friend Dan Robertson, who wrote eighteen 92 00:07:26.439 --> 00:07:30.040 books figured that he's key figured in the neurosciences. He said he wanted his 93 00:07:30.079 --> 00:07:36.680 tombstone. He died without a theory. And what he said he was really 94 00:07:36.759 --> 00:07:43.319 enjoyed on the Great Thomas read the Great Scots Philosophy the eighteenth century, closely 95 00:07:43.360 --> 00:07:49.439 read by James Wilson. John Adams among the founders. In fact invoked by 96 00:07:49.560 --> 00:07:55.800 James Wilson the opening lines of Chisholm versus Georgia, the first case to elicit 97 00:07:56.199 --> 00:07:59.480 a report in the US reports. He said, we're at the beginning of 98 00:07:59.519 --> 00:08:03.560 the law. We have no kin, no presidents to draw upon. We 99 00:08:03.600 --> 00:08:07.000 have to talk about the general principles of jurisprudeness. But before that we have 100 00:08:07.079 --> 00:08:09.800 to talk about the principles of mind and how we know anything. That we've 101 00:08:09.839 --> 00:08:16.120 run back to those Thomas Reich's teaching on those principles of common sense, those 102 00:08:16.199 --> 00:08:18.800 things that the ordinary man not only has to know, that has to know 103 00:08:18.920 --> 00:08:22.839 in getting on with the business of life. And so if they'd argue before 104 00:08:22.879 --> 00:08:28.000 the ordinary man would start bantering with David Hume about the meaning of causation, 105 00:08:28.399 --> 00:08:35.960 he knew his own active powers to cause his own acts to happen so I 106 00:08:37.080 --> 00:08:43.159 called this book mere natural logically drawing upon the lines that the sense in CS. 107 00:08:43.279 --> 00:08:46.159 Lewis. But he's seeing in con in the g A arguments among among 108 00:08:46.320 --> 00:08:50.440 children, you see the rudiments of moral reasoning at work. It's not minus 109 00:08:50.480 --> 00:08:54.440 yours. I mean, we kept they being at ruts. We did this 110 00:08:54.519 --> 00:09:00.279 last time. Why aren't we doing this today? They're not merely aren't over 111 00:09:00.440 --> 00:09:03.440 likes and dislikes, matters of rights and wrongs. And they work on the 112 00:09:03.480 --> 00:09:07.159 assumption that there are standards of judgment to douch a different thing right or wrong 113 00:09:07.200 --> 00:09:11.600 answers, And he assumed everyone knows it. So I want to take us 114 00:09:11.679 --> 00:09:15.159 back, find us to those things we find the ground of the natural law, 115 00:09:15.200 --> 00:09:18.039 and those things that are accessible to ordinary people you don't have, and 116 00:09:18.159 --> 00:09:22.639 the things that lawyers are not as upt to see these anymore because they're looking 117 00:09:22.720 --> 00:09:26.799 through this with a with with with a lens of a theory. It's like 118 00:09:26.840 --> 00:09:31.399 that line from Jefferson. I quote from Jefferson out of line letters to Peter 119 00:09:31.559 --> 00:09:35.960 Carr, and he said, he said, you can give the same world 120 00:09:35.039 --> 00:09:39.399 problem to a professor and a ploma, and the plowman is apt to get 121 00:09:39.399 --> 00:09:46.679 its right because he's not going to be diverted by by artificial rules, called 122 00:09:46.679 --> 00:09:50.240 them theories. Okay, so that's my I'm I think to take the we 123 00:09:50.320 --> 00:09:56.080 find that the ground of the natural law. You know quite a said the 124 00:09:56.080 --> 00:09:58.480 divine law we know the revelation, but the natural law we know for that 125 00:09:58.600 --> 00:10:03.480 recently that it's accessible to human beings as human beings, except that ordinary people 126 00:10:03.600 --> 00:10:09.080 understand. I try to point out people that these precepts of common sense are 127 00:10:09.080 --> 00:10:11.399 readily recognized by ordinary people, and in fact, you have to be schooled 128 00:10:11.440 --> 00:10:15.960 in theories in order not to see them. Right. By the way, 129 00:10:16.240 --> 00:10:20.799 let's linger on that point about divine law and natural law accessible to human reason 130 00:10:20.840 --> 00:10:24.720 alone for a moment. You know, our late great friend Angelo Codevilla, 131 00:10:24.360 --> 00:10:28.200 he liked to make the argument that actually the right what wasn't the Quintas said 132 00:10:28.240 --> 00:10:33.399 somewhere that the second Table Decalogue was accessible to an assisted human reason. That's 133 00:10:33.440 --> 00:10:35.960 right. That was like for the Jews, and no hide laws like that. 134 00:10:35.039 --> 00:10:37.759 Yeah, and the first five or you know, honor, your mother 135 00:10:37.799 --> 00:10:43.759 and father have no gods before me. Those are peculiar to specific divine revelation. 136 00:10:45.080 --> 00:10:48.320 But Angelo said, actually, there's a reasonable basis for those two. 137 00:10:48.720 --> 00:10:52.960 Sure, let's try it this way. You shall have many gods and disrespect 138 00:10:52.039 --> 00:10:56.240 all of them. You shall kill your mother and father and another family member. 139 00:10:56.279 --> 00:10:58.399 And how's that going to work out for us? Right? It's not 140 00:10:58.480 --> 00:11:05.639 Oh he's got a point there, so okay, so the great I don't 141 00:11:05.639 --> 00:11:07.399 know if you want to say more about that or no. No, it's 142 00:11:07.399 --> 00:11:09.720 just like, yeah, it's it's of course we say thy father and mother. 143 00:11:09.799 --> 00:11:13.519 It can't be merely the biological father, because in case, you'd have 144 00:11:13.600 --> 00:11:16.360 to honor the man who sired you in the course of a rape. So 145 00:11:16.399 --> 00:11:20.639 it must. If you must be referring to the person who fulfilled then the 146 00:11:20.840 --> 00:11:24.080 moral function of fathering. Who's there na? And of course we think, 147 00:11:24.120 --> 00:11:26.000 yeah, these things are deeper. I used, I wondered, you know, 148 00:11:26.559 --> 00:11:33.159 uh, like Harry Jeffa said, the the Moses comes down from Sinai 149 00:11:33.200 --> 00:11:35.840 and they have the Golden calf, and and he's told our people, we've 150 00:11:35.879 --> 00:11:41.240 just discovered religious freedom. We want we want to we want to worship a 151 00:11:41.360 --> 00:11:45.480 calf. Oh, it comes down and we say and and and and and 152 00:11:45.639 --> 00:11:50.679 Moses says the Lord that I told you, don't worry overly much about lying 153 00:11:50.720 --> 00:11:54.320 down with somebody else's wife, and I think the people's grathered round with would 154 00:11:54.919 --> 00:11:58.879 scratch their head and say, are you sure you got that one right? 155 00:12:01.840 --> 00:12:05.320 Yeah? Yeah, ordinary folks understood these sites, right right, the plowman 156 00:12:05.399 --> 00:12:11.600 again, right right. So you know the I'm sure you know the Ostrauss's 157 00:12:11.639 --> 00:12:15.120 Great Essay on Natural Law in the Encyclopedia of the Social Sciences from I think 158 00:12:15.200 --> 00:12:18.360 nineteen sixty or sixty one, and that's where the opening lines are something like 159 00:12:20.000 --> 00:12:24.480 natural laws increasingly held in disrespect today, with the partial exception of a few 160 00:12:24.559 --> 00:12:28.399 Roman Catholics. Now I think that maybe it may have changed since then, 161 00:12:28.759 --> 00:12:33.240 But again, some of these are these very sophisticated new natural law theories. 162 00:12:33.639 --> 00:12:39.919 One reason it gets back to your opening orcs. One reason for this eclipse, 163 00:12:39.919 --> 00:12:43.360 and there's several important ones, but one of them is we have translated 164 00:12:43.480 --> 00:12:46.080 so much of the natural law into the positive law in the ordinary course of 165 00:12:46.120 --> 00:12:50.679 legislating, which you referred to speed limits and stuff. We don't have to 166 00:12:50.679 --> 00:12:52.759 puzzle out the logic of that too much, but along the way we have 167 00:12:52.879 --> 00:12:58.600 forgotten the logic of how the natural law became the positive law or is vindicated 168 00:12:58.600 --> 00:13:03.200 to the posit Now all of a sudden, we think and and you know, 169 00:13:03.200 --> 00:13:03.960 we have people along the way like H. L. A. Hart 170 00:13:05.000 --> 00:13:07.639 who seem to think moral reasoning begins with human moral reason it begins with Bentham. 171 00:13:09.000 --> 00:13:13.240 That's the most astonishing thing about his famous with Bentham. Yeah, that's 172 00:13:13.240 --> 00:13:16.000 the right, so right, nonsense on skill still right, right, Well, 173 00:13:16.039 --> 00:13:20.399 you know, you know Bentham had himself stuffed and he uh and they 174 00:13:20.480 --> 00:13:24.480 take him off with department meetings. I think the school. I thought I 175 00:13:24.559 --> 00:13:30.159 might give myself as a gift to my old departments that way. But uh, 176 00:13:30.639 --> 00:13:35.440 the I was a threat of where we were at with what I'm saying. 177 00:13:35.440 --> 00:13:41.720 We've we've we've we've gone through forgetfulness. Yeah, we don't see we 178 00:13:41.799 --> 00:13:50.960 no longer notice it. The the stat is it not a principle of our 179 00:13:52.039 --> 00:13:54.960 law that all cases be treated under like rules? Oh? Why is that 180 00:13:56.000 --> 00:14:03.759 a principle of law? Or put in another way, the statute says it 181 00:14:03.840 --> 00:14:09.799 is it is wrong to discredit the base of race. Private businesses opened the 182 00:14:09.840 --> 00:14:15.440 transactions for the public. Is it wrong for Jones? Was wrong for anyone? 183 00:14:15.639 --> 00:14:18.960 It is? Why do you assume that you're going to apply that law 184 00:14:18.559 --> 00:14:26.720 equally universally to everyone who comes within the region under those descriptions, why would 185 00:14:26.759 --> 00:14:30.679 you do that unless you're saying you're put in the question if it is wrong 186 00:14:30.720 --> 00:14:35.320 for whom, it is wrong for anyone everyone in otherwise you build a moral 187 00:14:35.440 --> 00:14:39.000 logic into that. Now who put it there? Where did that come from? 188 00:14:39.200 --> 00:14:43.720 Right? Constitution doesn't tell us we have to have it there. Uh, 189 00:14:43.759 --> 00:14:48.679 it's just been so absorbed in the law that we don't are. Taking 190 00:14:48.759 --> 00:14:56.000 a classic example, of course, David and Bathsheba. David puts Ryan husband 191 00:14:56.080 --> 00:14:58.600 Hum's way so you can access to her. Then the prophet Nathan comes to 192 00:14:58.639 --> 00:15:03.600 him and put the question, there's an old man, rich man and a 193 00:15:03.639 --> 00:15:07.200 poor man, and this wayfair comes and the rich man, instead of taking 194 00:15:07.200 --> 00:15:11.480 from his own takes from this poor man. I gives it the one new 195 00:15:11.679 --> 00:15:16.519 lamb. And David was because anger was kindled. He said, the man 196 00:15:16.559 --> 00:15:20.840 who did that deserves to die. And Nathan said, well you are the 197 00:15:20.879 --> 00:15:22.799 man right, Okay, Now they say, see why did he do that 198 00:15:22.960 --> 00:15:26.720 way? Why do you do that way? He casts it in personally for 199 00:15:28.000 --> 00:15:31.519 whom would that be wrong? He's bringing the moral logic into it. He 200 00:15:31.639 --> 00:15:35.639 casts it in the personal terms, which is all underlies the notion of Bill 201 00:15:35.679 --> 00:15:41.000 of the tainer. Don't name names, give us explain to us the nature 202 00:15:41.080 --> 00:15:46.200 the wrong when done by anyone. Okay, the subject is we do it. 203 00:15:46.279 --> 00:15:50.759 He cast it I personally because he's importing the logic of a moral proposition 204 00:15:50.879 --> 00:15:54.120 for whom would it be wrong? And not really few, but for anyone. 205 00:15:54.639 --> 00:15:58.759 In other words, the logic of moral so called was already in work, 206 00:15:58.879 --> 00:16:03.440 at work long before analytics philosophers were telling us about the logic of morals 207 00:16:03.519 --> 00:16:07.960 in England, and in the twentieth century. It's just it's been there all 208 00:16:07.960 --> 00:16:12.799 along, okay, right right, right, yeah, But again getting back 209 00:16:12.840 --> 00:16:19.559 to our point, the the it's it's so woven in with what the judges 210 00:16:19.559 --> 00:16:25.759 and lawyers do that they just no longer notice it's there, you see. 211 00:16:26.240 --> 00:16:29.559 True, although I mean, as you know, as listeners will know, 212 00:16:29.919 --> 00:16:36.879 we now have jurists, uh and legal academics openly arguing for different standards of 213 00:16:36.960 --> 00:16:40.799 judgice, judgment justice based on the color of people scan you know, leniency 214 00:16:40.879 --> 00:16:44.639 for black defendants because of you know, racial justice and equity. As we're 215 00:16:44.679 --> 00:16:48.960 calling right, you know, we're we're we're we're seeing this contributing and we 216 00:16:48.000 --> 00:16:51.600 see the consequences of this, right. So yeah, so I could to 217 00:16:51.600 --> 00:16:56.879 prosecute back black kids for for conjacking, right right. Uh. And so 218 00:16:56.759 --> 00:17:03.720 we're seeing that even the residual uh logic of the matter of law is now 219 00:17:03.840 --> 00:17:08.160 escaping escaping reality. Yeah, that's why I say, for whom is it 220 00:17:08.200 --> 00:17:14.000 wrong to to carjack anyone? Oh? Anyone? Except for black people? 221 00:17:14.160 --> 00:17:15.359 You know? Yeah? Y you you you take you know, we've well, 222 00:17:15.799 --> 00:17:21.079 but then that lead give DESI well, why on the base of color 223 00:17:21.200 --> 00:17:23.920 do you think people deserve? Are you drawing more impetous people are basis of 224 00:17:25.000 --> 00:17:27.200 color? I thought that was the original problem. If we know somebody's grace, 225 00:17:27.519 --> 00:17:30.079 we know that they're not good, not good people to have in the 226 00:17:30.079 --> 00:17:33.920 neighborhood. There are people to be shunned, not people who to be welcomed 227 00:17:33.920 --> 00:17:38.440 into schools. We've been through that before. Yeah, okay, I'm sorry, 228 00:17:38.240 --> 00:17:42.400 Nohad, Well, I your your indication. The example of David and 229 00:17:42.480 --> 00:17:48.200 Nathan telling him that you are that man. One of the low and simple 230 00:17:48.279 --> 00:17:52.960 reasons for the rejection of natural law is that people think it is inhibition on 231 00:17:53.000 --> 00:17:57.160 their will. I mean, it's the case of David, uh David, 232 00:17:57.240 --> 00:18:00.359 until someone points out to him that there is this moral law. But in 233 00:18:00.400 --> 00:18:04.160 modern times people want to hear about moral law because that impinges on there. 234 00:18:04.519 --> 00:18:08.480 Of course, these days it's their sexual freedom, their gender freedom. But 235 00:18:08.519 --> 00:18:11.240 also the flip side of that, I think in this case is liberal killed. 236 00:18:11.359 --> 00:18:21.200 Right. This is largely white liberals feeling guilty that poor blacks for whatever 237 00:18:21.279 --> 00:18:22.839 reason, have been treated unjustly over the years, and therefore we have to 238 00:18:22.839 --> 00:18:26.640 make up for it by having a lower standard of and opposing the costs and 239 00:18:26.720 --> 00:18:30.319 everybody else, right, yes, for being people who are not of that 240 00:18:30.400 --> 00:18:33.039 price, right, right, Yeah, But it's I mean when I say 241 00:18:33.039 --> 00:18:37.880 a forgetfulness by get back to the more sort of serious version of the forgetfulness 242 00:18:37.960 --> 00:18:41.640 is that we've forgotten the how well I think of Like you know, one 243 00:18:41.680 --> 00:18:45.960 of the texts I like to use with students is Blackstone's Chapter on homicide, 244 00:18:48.319 --> 00:18:52.359 because you know, the book one of Blackstone's commentaries full of natural law general 245 00:18:52.400 --> 00:18:56.720 thoughts about it. There is his statutory interpretation five point scheme for that that's 246 00:18:57.039 --> 00:19:00.000 stuck over the years. But then you get to volume four and he's going 247 00:19:00.000 --> 00:19:03.400 through specific problems in the law and you get these fine distinctions. But if 248 00:19:03.400 --> 00:19:07.079 you follow they're all based on the logic of reasoning that you can trace out 249 00:19:07.279 --> 00:19:10.920 right, and that that's where you see how those things we have in our 250 00:19:11.039 --> 00:19:14.960 laws of homicide and murder and manslaughter and so forth, negligent homicide and whatnot, 251 00:19:15.880 --> 00:19:18.839 are you Actually it was your late teacher, Herb Storing, I think 252 00:19:18.839 --> 00:19:22.039 who wrote about that chapter. I think it was story. I'm not sure 253 00:19:25.359 --> 00:19:29.000 it might have been. The only line I remember for them is the in 254 00:19:30.200 --> 00:19:36.240 I taught them militia in ages malice the eighty the eight year old who kills 255 00:19:36.480 --> 00:19:42.920 the person and hides the body is aware of what he's doing. So uh, 256 00:19:44.000 --> 00:19:48.000 yeah, it's in the act you find you find the ground of the 257 00:19:49.319 --> 00:19:52.559 helding something responsible. Well, one of the ways I back into this is, 258 00:19:52.680 --> 00:19:59.000 uh uh is the old line about Chesterton's fance, you know GK. 259 00:19:59.119 --> 00:20:00.920 Chesterton saying, before you tear down that fence, we ought to have an 260 00:20:00.960 --> 00:20:03.799 inquiry about why it was put there in the first place, and we might 261 00:20:03.839 --> 00:20:07.880 discover forgotten reasons why it made why it made sense, and why it might 262 00:20:07.920 --> 00:20:11.000 still make sense. Right, And so that's part of what uh. I 263 00:20:11.240 --> 00:20:14.039 think that's a you know, a good metaphor for the natural law project. 264 00:20:14.079 --> 00:20:18.920 In our time is reminding people of uh you you actually okay, no, 265 00:20:18.920 --> 00:20:22.119 no, it's it's he also said, he said it. He said animals 266 00:20:22.160 --> 00:20:23.440 have no religious sense. When was the last time he heard of a cow 267 00:20:23.519 --> 00:20:29.359 giving up grass on Fridays? And they say, and we say, the 268 00:20:29.480 --> 00:20:33.279 man of us have no moral sense either. Leo the thirteenth pointed out that 269 00:20:33.519 --> 00:20:37.119 uh, humans are the only animals who can deliberate on whether they are directing 270 00:20:37.160 --> 00:20:42.640 their liberty to ends rightful or wrongful. Yeah, a a a cower horse 271 00:20:42.759 --> 00:20:48.839 cannot impart moral purpose to inanimate matter. That's why they say they they cannot 272 00:20:48.839 --> 00:20:53.319 be the bearers of property rights. They cannot impart a moral purpose to property 273 00:20:53.519 --> 00:20:56.640 right. But that gets us into the what what's different about? We begin 274 00:20:56.720 --> 00:21:00.480 with awareness of human beings as moral agents who can reason about matters of right 275 00:21:00.559 --> 00:21:04.799 and law, and we can't. We don't make contracts with horses. At 276 00:21:04.839 --> 00:21:10.359 don't even this agent of animal liberation. We're not making labor contract horses and 277 00:21:10.400 --> 00:21:14.960 cows. There's only one kind of creature who understands what it means to give 278 00:21:15.000 --> 00:21:19.160 a promise and to bear that obligation, even when he wants counted to his 279 00:21:19.200 --> 00:21:25.680 own interests and inclinations. Only one kind of creature made for contracts and for 280 00:21:25.759 --> 00:21:30.559 law. The only kind of creature could understand what there is about this law 281 00:21:30.319 --> 00:21:36.000 that commands his assent, either because he understands the reason behind it, or 282 00:21:36.000 --> 00:21:38.960 he understands that there may be got a sanction that goes along with it. 283 00:21:41.039 --> 00:21:44.839 So the version that that I have used, I had never heard, the 284 00:21:44.839 --> 00:21:48.359 one about the count can be a gress on Friday like that the example I've 285 00:21:48.440 --> 00:21:52.880 used with students. This may seem to your listeners ridiculous, but I said, 286 00:21:52.160 --> 00:21:56.599 I'm unaware of any example of a pride of lions sitting around deliberating should 287 00:21:56.640 --> 00:22:00.200 we eat that gazelle? Well maybe that's someone say oh, maybe that gazelle 288 00:22:00.200 --> 00:22:03.519 has rights. You know. No, that's not how it works. As 289 00:22:03.519 --> 00:22:07.759 I used to say, what have the whales done for us? Well, 290 00:22:07.400 --> 00:22:11.759 it's all the moral agents, right, Adams. I'm more likely to be 291 00:22:11.759 --> 00:22:15.119 preserved and well governed by moral agents being so good reason about these things. 292 00:22:15.119 --> 00:22:21.279 And I've got a concern about protecting sandhill cranes right now, I have made 293 00:22:21.279 --> 00:22:25.559 the argument you just made about human You know, we don't have labor contracts 294 00:22:25.559 --> 00:22:27.839 with our animals. Human beings are the only creature that has this power of 295 00:22:27.880 --> 00:22:33.559 deliberation and reason. I made an argument to some left meaning students and occasionally 296 00:22:33.559 --> 00:22:37.839 provoked great outrage. I never get a counter argument about it. What the 297 00:22:37.839 --> 00:22:40.559 outrage represents and I want to use this to shift gears here, to shift 298 00:22:40.559 --> 00:22:44.000 our focus from it to the current moment on campus. What it represents is 299 00:22:44.039 --> 00:22:48.519 this commitment and really has to be described as a commitment to I'm not sure 300 00:22:48.519 --> 00:22:52.440 what it was the right description, a nihilist project, the culture repudiation, 301 00:22:52.519 --> 00:22:56.000 as our old late friend Roger Scrutin like to put it. And now I 302 00:22:56.079 --> 00:22:59.519 want to bring it on the free speech, which is connected to our general 303 00:22:59.559 --> 00:23:03.319 theme. But we're now seeing what to my mind represents the crisis of the 304 00:23:03.440 --> 00:23:11.400 university in the response over the Hamas massacre of October seven, And one of 305 00:23:11.440 --> 00:23:15.039 the things that's being said back to conservatives is I should preference by saying that 306 00:23:15.079 --> 00:23:19.079 I've been saying for years now that it was a mistake for conservatives to embrace 307 00:23:19.119 --> 00:23:23.960 the old ACLU position on free speech. Oh yes, yes, it's nothing. 308 00:23:25.000 --> 00:23:30.319 So it's a bedrock principles, sam Alito. And they say that that 309 00:23:30.319 --> 00:23:34.000 that you cannot restrict speech because it is offensive. They see the offensive simply 310 00:23:34.079 --> 00:23:38.920 subjective that they rule out the possibility that there could be some speech that is 311 00:23:40.000 --> 00:23:44.119 so offensive it's offensive and principle, it's like years ago with the ACLU when 312 00:23:44.160 --> 00:23:48.680 I was invited by ISU to state the other side, the opposite, the 313 00:23:48.000 --> 00:23:52.799 other side in the case of the Nazis and SCO and Dave Dave Hamlet of 314 00:23:52.880 --> 00:23:57.119 ASO said, the first man protects all speech, whether popular or despised, 315 00:23:57.759 --> 00:24:03.039 and he gave us their translation. By despise, you mean unpopular. That 316 00:24:03.079 --> 00:24:06.640 you're ruling out the notion that there could be certain kinds of speech that's simply 317 00:24:07.200 --> 00:24:11.599 despicable. Principle. Right, So let's say you have people now standing outside 318 00:24:11.359 --> 00:24:19.559 the home as nat Lewin had this Wall Street journalists defend a synagogue outside de 319 00:24:19.559 --> 00:24:23.480 emissaries outside of a synagogue thing down with the Jews, and now take the 320 00:24:23.519 --> 00:24:29.720 inter people say it was justified to kill those those Jews that here are people 321 00:24:29.759 --> 00:24:34.079 standing out there. It would have been recognized and assault, a verbal assault. 322 00:24:34.880 --> 00:24:38.480 It's threatening. It's telling you that Jews, Jews deserve to die. 323 00:24:38.960 --> 00:24:42.720 And the old you know, and the old Chaplinsky is about about fighting words. 324 00:24:42.759 --> 00:24:48.440 We know words who have the function in the language of assaulting, and 325 00:24:48.480 --> 00:24:53.960 you can remove those words by those words without preventing people from giving any substantive 326 00:24:55.039 --> 00:24:57.480 arguments. Yeah, in in the press or in their books and so on. 327 00:24:59.400 --> 00:25:03.359 But as you say, right now in a position where the conservatives have 328 00:25:03.519 --> 00:25:06.720 taken a position close into the aso U, and I think we don't know 329 00:25:06.799 --> 00:25:12.759 what the conservative court now would do about having these demonstrations against Israels right now 330 00:25:14.079 --> 00:25:18.359 taking place in front of people's homes of synagogues. In fact, Matt Lewlan 331 00:25:18.400 --> 00:25:23.319 had this piece about that case in arbor of the synagogue and someone wrote into 332 00:25:23.440 --> 00:25:27.400 picking up the recent decision and said, but they have a right to offend, 333 00:25:29.400 --> 00:25:30.839 they have a right to offend. Well, we've had I mean, 334 00:25:30.880 --> 00:25:34.359 I've had people here in the campus at Berkeley asked me and ask our partner 335 00:25:34.440 --> 00:25:38.599 John, you gee, isn't this conservative cancel culture that you guys say they're 336 00:25:38.640 --> 00:25:41.559 against. And the first pass is where's the council, where's the council? 337 00:25:41.799 --> 00:25:45.799 Well that you know, student groups should be you know, Ronda Sanders in 338 00:25:45.839 --> 00:25:48.319 Florida said student groups that are you know, anti Semitic should be decertified as 339 00:25:48.319 --> 00:25:52.240 student groups on campus, and people are saying some of these professors, like 340 00:25:52.279 --> 00:25:57.920 the professor at UC Davis who published online a threat to pro Zionist journalists. 341 00:25:57.960 --> 00:26:00.920 I don't know if you saw that tweet, was we know where you live, 342 00:26:00.920 --> 00:26:03.160 we know your children go to school. Well, we have no trouble 343 00:26:03.200 --> 00:26:07.519 with people threatening threatening letters, Yeah, threatening threatening phone calls. So that 344 00:26:07.559 --> 00:26:10.599 was never protected by the first thre meat right, right, Well, I 345 00:26:10.640 --> 00:26:12.400 mean the first pass as a simple one, but I want to do the 346 00:26:12.400 --> 00:26:15.640 second pass with you. First pass is if you can't tell the difference between 347 00:26:17.160 --> 00:26:25.240 somebody misgendering somebody on campus and somebody celebrating the barbarous murder of innocent people, 348 00:26:25.599 --> 00:26:29.400 that you're a moral idiot. But there's the deeper argument, which I think 349 00:26:29.440 --> 00:26:33.880 you know this is Harry Jaffers famous argument, which was the intelligible principle is 350 00:26:33.880 --> 00:26:40.880 is the Nazis, if their exercise of free speech realize their objectives, it 351 00:26:40.880 --> 00:26:44.440 would be to deny the fundamental rights to free speech of everyone else, starting 352 00:26:44.440 --> 00:26:48.079 with Jews, but going down the list right and then that alone was sufficient 353 00:26:48.119 --> 00:26:51.319 reason to restrict their right of free speech. In other words, the only 354 00:26:51.319 --> 00:26:53.000 people who have a right to free speech are the ones who have the mutual 355 00:26:53.000 --> 00:26:59.960 and reciprocal respect for every other individual's fundamental right to free speech. And people 356 00:27:00.079 --> 00:27:04.119 are saying from the river to the sea or the other cliches, they don't 357 00:27:04.200 --> 00:27:07.359 want to respect the writer free speech for Jews. You know, we had 358 00:27:07.359 --> 00:27:11.200 student groups here at Berkeley Law last year saying, you know, we think 359 00:27:11.240 --> 00:27:15.920 student groups should not invite any speakers who are pro Israel. Right, So 360 00:27:15.799 --> 00:27:19.839 I have no trouble saying if that's your standard, you render any ground of 361 00:27:19.920 --> 00:27:23.920 legitimacy. You have to be a recognized student group. So I don't know. 362 00:27:25.480 --> 00:27:27.720 No. During the during the debate with the Nazis and Skokie, they've 363 00:27:27.759 --> 00:27:30.960 had listen, we must be free to hear the Nazis because you must be 364 00:27:32.000 --> 00:27:34.720 free to choose. Free to choose, then, right, okay? The 365 00:27:34.880 --> 00:27:41.480 freedom to choose the Nazis emanates from a principle on the old on free election. 366 00:27:41.880 --> 00:27:45.599 The only rightful government over you in beings hinges on the consent of the 367 00:27:45.599 --> 00:27:51.279 government manifested and free elections. Now Here is a Here is a party that 368 00:27:52.680 --> 00:27:56.920 in principle rejects the underlife allment of creating. We reject the underlying principle that 369 00:27:57.000 --> 00:28:02.799 gives rise and tails on regime of free elections. Uh, they are, 370 00:28:02.920 --> 00:28:07.079 they are ready to vote out the whole regime of constial freedoms to the issue. 371 00:28:07.400 --> 00:28:12.799 Now that this is no better in coherence there that of you know it 372 00:28:12.920 --> 00:28:18.319 was. It was the problem of people. We go into a voting booth 373 00:28:18.319 --> 00:28:22.079 where you have a choice of candidate, and Germany people went into voting booth 374 00:28:22.599 --> 00:28:25.799 and they're willing to vote out the rights of people in the adjacent booths. 375 00:28:25.839 --> 00:28:29.799 And we say, don't you understand we we go into voting booth apart from 376 00:28:29.839 --> 00:28:36.359 the fact you're making a choice among candidates, aren't you first affirming the rightness 377 00:28:36.759 --> 00:28:42.160 of a regime of elections? Does that that entail you to recognize the right 378 00:28:42.359 --> 00:28:47.359 of uman beings around you not to be disfranchised or deprive of their right? 379 00:28:47.720 --> 00:28:52.200 Okay, then we understand this. Don't you understand that? No, if 380 00:28:52.240 --> 00:28:56.160 you understand the moral ground of a regime of elections, you are not free 381 00:28:56.359 --> 00:29:00.839 to vote for a castrow right or Nazi or communist party that would end the 382 00:29:00.880 --> 00:29:03.960 regime of field. I'll do you understand there's a moral ground here. These 383 00:29:04.000 --> 00:29:07.839 people reject the very morall ground on which we're doing this was that online from 384 00:29:07.880 --> 00:29:11.880 her from Joff again and with Lincoln, that that if a a free people 385 00:29:11.920 --> 00:29:17.279 would be obliged to be obliged to respect in the first instance, the premises 386 00:29:17.440 --> 00:29:21.680 how much their own freedom rests. I go, and that's what we're getting 387 00:29:21.680 --> 00:29:25.119 back to. Yeah, yeah, sure is Well it's a discouraging scene. 388 00:29:25.400 --> 00:29:29.720 Uh but I'm filled and encouraged by mere natural law. I hope you're encouraged. 389 00:29:29.799 --> 00:29:33.799 Y T T T T to T. Tom Stoppard was asked by uh 390 00:29:33.960 --> 00:29:37.279 uh if fa friend about this his play Rosencrantz and Guilderstern are dead. What's 391 00:29:37.279 --> 00:29:40.720 that about? He said, it's about to make me a lot of money. 392 00:29:41.240 --> 00:29:44.680 Now it's it's not gonna make you a lot. I would make Tom 393 00:29:44.720 --> 00:29:47.839 Spence by publisher a lot of money. Oh about uh uh? Because he 394 00:29:47.880 --> 00:29:52.799 had because he had he had the the heye had the goodness goodness to grab 395 00:29:52.880 --> 00:29:56.599 the book after I almost minutes after I showed him a couple of chapters. 396 00:29:57.519 --> 00:30:00.599 Oh good grad. Well, thanks very much, and we'll look forward to 397 00:30:00.640 --> 00:30:22.519 more as the scene unfolds. Thanks so much. Well, there you have 398 00:30:22.559 --> 00:30:27.160 it. A few minutes with Hadley Arcus about Mere Natural Law, and I 399 00:30:27.200 --> 00:30:30.920 hope that will pique your interest in going out and buying and reading the entire 400 00:30:30.920 --> 00:30:36.559 book. And in the meantime, I've had a number of listeners and regular 401 00:30:36.599 --> 00:30:41.000 readers send in a special request, which is, why don't I do one 402 00:30:41.039 --> 00:30:45.599 of my long form origin story podcasts with Hadley? And I'm kicking myself for 403 00:30:45.720 --> 00:30:48.079 not thinking of doing that the other day, although we were rather short of 404 00:30:48.119 --> 00:30:52.680 time with the schedule being what it was. But I am going to go 405 00:30:52.720 --> 00:30:55.279 back and do that. And I've already told Hadley he's going to have to 406 00:30:55.279 --> 00:30:59.720 steal himself for telling me his great stories of growing up in the Jewish neighborhoods 407 00:30:59.720 --> 00:31:03.000 and Cago way back in the forties, his time in graduate school with Leo 408 00:31:03.079 --> 00:31:07.880 Strauss later on, and have his thought evolved over the years, and that 409 00:31:08.000 --> 00:31:11.200 is an interesting story. So stay tuned for that, And in the meantime, 410 00:31:11.680 --> 00:31:17.440 by Mere Natural Law, check in and become a supporter of his James 411 00:31:17.480 --> 00:31:22.640 Wilson Institute for Natural Rights in the American Founding. And then also, I 412 00:31:22.640 --> 00:31:26.559 mean he's got a great library of books from first Things Beyond the Constitution, 413 00:31:26.160 --> 00:31:30.440 the Philosopher in the City of one of his earliest books from back in the 414 00:31:30.480 --> 00:31:34.039 late nineteen seventies, that really reads very well today in live of the way 415 00:31:34.039 --> 00:31:37.319 our cities have gone to hell again. In any event, stay tuned for 416 00:31:37.319 --> 00:31:41.240 that. We'll let you know when it's up. And in the meantime we'll 417 00:31:41.319 --> 00:31:45.319 end in classic fashion and say don't forget to milk the soft power dividend. 418 00:31:45.640 --> 00:32:22.720 Bye bye, everybody, Ricochet join the conversation. Sh