From power Line Blog dot com and produced by Ricochet dot Com. This is
the power Line Show with your host Steve Hayward. Way back around nineteen sixty,
Leo Strauss wrote the following in the Encyclopedia of the Social Sciences. Quote
natural law, which was for many centuries the basis of the predominant Western political
thought, is rejected in our time by almost all students of society who are
not Roman Catholics end quote. Well, that may have been true in nineteen
sixty, but things have certainly changed since then. Law law has made a
comeback of sorts. It's partly implicated in the revival of constitutional originalism that is
so important at the Supreme Court these days. Although the role in place of
natural law thinking is still obscure, contested, and not always evident in the
Supreme Court opinions. So it's not clear that all is going. But there
also is a lot of what is called new natural law theory, and I
have to say I find a lot of it very abstruse and complex and hard
to follow. Now. It's not that the classical authors of natural law theory,
like Aristotle or Cicero or Aquinas, are simple or easy to follow.
But they tend not to use the refined, specialized jargon of modern philosophy.
In other words, I think a lot of the so called new natural law
theory makes too many concessions to modern thought and modern philosophy, And in some
specific examples it's as though modern philosophy begins with Bentham and the classical tradition is
not really reckoned with at all. Now, one happy exception on this dismal
outlook, in my mind is the great Hadley Arcus, Professor emeritus of Jurisprudence
from Amherst College and founder of the James Wilson Institute on Natural Rights in the
American Founding. He has been writing great books on the subject for several decades
now, but his latest book, I think, really gets at the common
sense of the matter. The new book is called Mere Natural Law, Originalism
and the Anchoring Truths of the Constitution, And although Hadley has his own very
specialized style, it's a book that any reader of common sense and ordinary intelligence
can follow and learn quite profound aspects of the truth of natural law and its
importance and relevance to the way we think about the world today. So it
was my pleasure to host Hadley for a lecture at Berkeley Law last week,
and we did sit down beforehand to have a conversation not only about natural law,
but also about the connection it bears to the issue of free speech,
and especially the current controversies about whether the reaction to the prohma demonstrations on college
campuses represent right wing cancel culture as it is being alleged by the left.
Of course, that's all nonsense, and he will explain that and many other
things in our conversation and will start right now. All right, Hadley,
let's begin at the beginning. As a famous teacher we're both familiar with,
used to like to say, what is natural law? I mean, it
sounds like may be a dumb question, except that there's so many new natural
law theories that I find gravely defective in a number of ways. They seem
to be overly sophisticated, make too many concessions to modern philosophy and our boring
reading. Whereas your books have always approached natural law from the entirety of the
long tradition and in a common sense way accessible to any ordinary human being of
average curiosity. So let's start the beginning, and you know, what is
natural law? For people out about it. I've been getting that question,
you know. I'm just going to tell a group today, I've been doing
these interviews where it's been something like Brian Lamb at Sea spam would remind their
audience who again was Lincoln, you know? And who Andrew Johnson? And
an interviewer asked me earnestly, what is tell me what is natural law?
And of course I draw upon manual count to Thomas Read and even a quint
Us to say, it is the law that underlies all of the law.
It's the law that tells us why we be justified. And having positive law,
the enacted law in the first place. So we see the signs of
the road saying sixty five at BAH thirty five, but behind those numbers,
as a manual count would tell us, it's a deeper natural law that tells
us why we be justified in restraining the freedom of people to drive at speeds
that put innocent life at hazard. But then the trick, as ever,
is to make a translation that translates the underlying natural law it terms that apply
to the circumstances and to train before us sixty five and open highway thirty five,
and that winding growth. This is why natural law always gives rise to
positive law. But the natural also tells us who has the authority to make
that positive law in the beginning. So I was at a conference years ago
with that professor from no name, Amy Coney Barrett, and yeah, and
a student us, a devotee of Nino Scalias for the positive law. And
the student asked her, you know, why do you have such reference for
the positive law? What makes the positive law in America stand on a higher
plane than the positive law in Stalines, Russia? And she's still taken aback
by it. But the key lies in that string of three questions from John
Locke, What is the source of the law? The legislature that makes the
law? Well, then what is the source of the legislature? Well,
the constitution that tells you whether you have a sature, how many chambers were
kind of powers? But then Locke asks, well, then what is the
source of the constitution. It must be, he said, something wholly antecede
into the positive law, evolving the right of the people to the determined the
terms of their governance. In our own case, it took this form.
No man is by nature to the rule of other men the way that God
is by nature the world of men men are by nature the rule of dogs
and horses. The only rightful form of government over human beings involves the consent
of the governed. My dear beloved friend Nino Scale would say, that's a
lovely sentiment, but it's never been enacted in our loss. And the answer
is, of course it couldn't be enacted. It's a thing that had to
be in place before we knew who had the authority to enact anything. Now,
picking up the thing I was gonna mention today, I pick up one
of your lines. A foreign president Amherst said, Hadley has a theory of
natural law as when you say that, you suggest that people are standing by
it hastened to touchment watching theories was passed, and somehow you're able to form
a judgment on the strands of those theories that are plausible or implausible, truth
false. And I said, take me back to that ground in which you
make those judgments about the things you reliably know, And you be led back
to the ground that some of us take to be the ground of the natural
law, not theory. My dear late friend Dan Robertson, who wrote eighteen
books figured that he's key figured in the neurosciences. He said he wanted his
tombstone. He died without a theory. And what he said he was really
enjoyed on the Great Thomas read the Great Scots Philosophy the eighteenth century, closely
read by James Wilson. John Adams among the founders. In fact invoked by
James Wilson the opening lines of Chisholm versus Georgia, the first case to elicit
a report in the US reports. He said, we're at the beginning of
the law. We have no kin, no presidents to draw upon. We
have to talk about the general principles of jurisprudeness. But before that we have
to talk about the principles of mind and how we know anything. That we've
run back to those Thomas Reich's teaching on those principles of common sense, those
things that the ordinary man not only has to know, that has to know
in getting on with the business of life. And so if they'd argue before
the ordinary man would start bantering with David Hume about the meaning of causation,
he knew his own active powers to cause his own acts to happen so I
called this book mere natural logically drawing upon the lines that the sense in CS.
Lewis. But he's seeing in con in the g A arguments among among
children, you see the rudiments of moral reasoning at work. It's not minus
yours. I mean, we kept they being at ruts. We did this
last time. Why aren't we doing this today? They're not merely aren't over
likes and dislikes, matters of rights and wrongs. And they work on the
assumption that there are standards of judgment to douch a different thing right or wrong
answers, And he assumed everyone knows it. So I want to take us
back, find us to those things we find the ground of the natural law,
and those things that are accessible to ordinary people you don't have, and
the things that lawyers are not as upt to see these anymore because they're looking
through this with a with with with a lens of a theory. It's like
that line from Jefferson. I quote from Jefferson out of line letters to Peter
Carr, and he said, he said, you can give the same world
problem to a professor and a ploma, and the plowman is apt to get
its right because he's not going to be diverted by by artificial rules, called
them theories. Okay, so that's my I'm I think to take the we
find that the ground of the natural law. You know quite a said the
divine law we know the revelation, but the natural law we know for that
recently that it's accessible to human beings as human beings, except that ordinary people
understand. I try to point out people that these precepts of common sense are
readily recognized by ordinary people, and in fact, you have to be schooled
in theories in order not to see them. Right. By the way,
let's linger on that point about divine law and natural law accessible to human reason
alone for a moment. You know, our late great friend Angelo Codevilla,
he liked to make the argument that actually the right what wasn't the Quintas said
somewhere that the second Table Decalogue was accessible to an assisted human reason. That's
right. That was like for the Jews, and no hide laws like that.
Yeah, and the first five or you know, honor, your mother
and father have no gods before me. Those are peculiar to specific divine revelation.
But Angelo said, actually, there's a reasonable basis for those two.
Sure, let's try it this way. You shall have many gods and disrespect
all of them. You shall kill your mother and father and another family member.
And how's that going to work out for us? Right? It's not
Oh he's got a point there, so okay, so the great I don't
know if you want to say more about that or no. No, it's
just like, yeah, it's it's of course we say thy father and mother.
It can't be merely the biological father, because in case, you'd have
to honor the man who sired you in the course of a rape. So
it must. If you must be referring to the person who fulfilled then the
moral function of fathering. Who's there na? And of course we think,
yeah, these things are deeper. I used, I wondered, you know,
uh, like Harry Jeffa said, the the Moses comes down from Sinai
and they have the Golden calf, and and he's told our people, we've
just discovered religious freedom. We want we want to we want to worship a
calf. Oh, it comes down and we say and and and and and
Moses says the Lord that I told you, don't worry overly much about lying
down with somebody else's wife, and I think the people's grathered round with would
scratch their head and say, are you sure you got that one right?
Yeah? Yeah, ordinary folks understood these sites, right right, the plowman
again, right right. So you know the I'm sure you know the Ostrauss's
Great Essay on Natural Law in the Encyclopedia of the Social Sciences from I think
nineteen sixty or sixty one, and that's where the opening lines are something like
natural laws increasingly held in disrespect today, with the partial exception of a few
Roman Catholics. Now I think that maybe it may have changed since then,
But again, some of these are these very sophisticated new natural law theories.
One reason it gets back to your opening orcs. One reason for this eclipse,
and there's several important ones, but one of them is we have translated
so much of the natural law into the positive law in the ordinary course of
legislating, which you referred to speed limits and stuff. We don't have to
puzzle out the logic of that too much, but along the way we have
forgotten the logic of how the natural law became the positive law or is vindicated
to the posit Now all of a sudden, we think and and you know,
we have people along the way like H. L. A. Hart
who seem to think moral reasoning begins with human moral reason it begins with Bentham.
That's the most astonishing thing about his famous with Bentham. Yeah, that's
the right, so right, nonsense on skill still right, right, Well,
you know, you know Bentham had himself stuffed and he uh and they
take him off with department meetings. I think the school. I thought I
might give myself as a gift to my old departments that way. But uh,
the I was a threat of where we were at with what I'm saying.
We've we've we've we've gone through forgetfulness. Yeah, we don't see we
no longer notice it. The the stat is it not a principle of our
law that all cases be treated under like rules? Oh? Why is that
a principle of law? Or put in another way, the statute says it
is it is wrong to discredit the base of race. Private businesses opened the
transactions for the public. Is it wrong for Jones? Was wrong for anyone?
It is? Why do you assume that you're going to apply that law
equally universally to everyone who comes within the region under those descriptions, why would
you do that unless you're saying you're put in the question if it is wrong
for whom, it is wrong for anyone everyone in otherwise you build a moral
logic into that. Now who put it there? Where did that come from?
Right? Constitution doesn't tell us we have to have it there. Uh,
it's just been so absorbed in the law that we don't are. Taking
a classic example, of course, David and Bathsheba. David puts Ryan husband
Hum's way so you can access to her. Then the prophet Nathan comes to
him and put the question, there's an old man, rich man and a
poor man, and this wayfair comes and the rich man, instead of taking
from his own takes from this poor man. I gives it the one new
lamb. And David was because anger was kindled. He said, the man
who did that deserves to die. And Nathan said, well you are the
man right, Okay, Now they say, see why did he do that
way? Why do you do that way? He casts it in personally for
whom would that be wrong? He's bringing the moral logic into it. He
casts it in the personal terms, which is all underlies the notion of Bill
of the tainer. Don't name names, give us explain to us the nature
the wrong when done by anyone. Okay, the subject is we do it.
He cast it I personally because he's importing the logic of a moral proposition
for whom would it be wrong? And not really few, but for anyone.
In other words, the logic of moral so called was already in work,
at work long before analytics philosophers were telling us about the logic of morals
in England, and in the twentieth century. It's just it's been there all
along, okay, right right, right, yeah, But again getting back
to our point, the the it's it's so woven in with what the judges
and lawyers do that they just no longer notice it's there, you see.
True, although I mean, as you know, as listeners will know,
we now have jurists, uh and legal academics openly arguing for different standards of
judgice, judgment justice based on the color of people scan you know, leniency
for black defendants because of you know, racial justice and equity. As we're
calling right, you know, we're we're we're we're seeing this contributing and we
see the consequences of this, right. So yeah, so I could to
prosecute back black kids for for conjacking, right right. Uh. And so
we're seeing that even the residual uh logic of the matter of law is now
escaping escaping reality. Yeah, that's why I say, for whom is it
wrong to to carjack anyone? Oh? Anyone? Except for black people?
You know? Yeah? Y you you you take you know, we've well,
but then that lead give DESI well, why on the base of color
do you think people deserve? Are you drawing more impetous people are basis of
color? I thought that was the original problem. If we know somebody's grace,
we know that they're not good, not good people to have in the
neighborhood. There are people to be shunned, not people who to be welcomed
into schools. We've been through that before. Yeah, okay, I'm sorry,
Nohad, Well, I your your indication. The example of David and
Nathan telling him that you are that man. One of the low and simple
reasons for the rejection of natural law is that people think it is inhibition on
their will. I mean, it's the case of David, uh David,
until someone points out to him that there is this moral law. But in
modern times people want to hear about moral law because that impinges on there.
Of course, these days it's their sexual freedom, their gender freedom. But
also the flip side of that, I think in this case is liberal killed.
Right. This is largely white liberals feeling guilty that poor blacks for whatever
reason, have been treated unjustly over the years, and therefore we have to
make up for it by having a lower standard of and opposing the costs and
everybody else, right, yes, for being people who are not of that
price, right, right, Yeah, But it's I mean when I say
a forgetfulness by get back to the more sort of serious version of the forgetfulness
is that we've forgotten the how well I think of Like you know, one
of the texts I like to use with students is Blackstone's Chapter on homicide,
because you know, the book one of Blackstone's commentaries full of natural law general
thoughts about it. There is his statutory interpretation five point scheme for that that's
stuck over the years. But then you get to volume four and he's going
through specific problems in the law and you get these fine distinctions. But if
you follow they're all based on the logic of reasoning that you can trace out
right, and that that's where you see how those things we have in our
laws of homicide and murder and manslaughter and so forth, negligent homicide and whatnot,
are you Actually it was your late teacher, Herb Storing, I think
who wrote about that chapter. I think it was story. I'm not sure
it might have been. The only line I remember for them is the in
I taught them militia in ages malice the eighty the eight year old who kills
the person and hides the body is aware of what he's doing. So uh,
yeah, it's in the act you find you find the ground of the
helding something responsible. Well, one of the ways I back into this is,
uh uh is the old line about Chesterton's fance, you know GK.
Chesterton saying, before you tear down that fence, we ought to have an
inquiry about why it was put there in the first place, and we might
discover forgotten reasons why it made why it made sense, and why it might
still make sense. Right, And so that's part of what uh. I
think that's a you know, a good metaphor for the natural law project.
In our time is reminding people of uh you you actually okay, no,
no, it's it's he also said, he said it. He said animals
have no religious sense. When was the last time he heard of a cow
giving up grass on Fridays? And they say, and we say, the
man of us have no moral sense either. Leo the thirteenth pointed out that
uh, humans are the only animals who can deliberate on whether they are directing
their liberty to ends rightful or wrongful. Yeah, a a a cower horse
cannot impart moral purpose to inanimate matter. That's why they say they they cannot
be the bearers of property rights. They cannot impart a moral purpose to property
right. But that gets us into the what what's different about? We begin
with awareness of human beings as moral agents who can reason about matters of right
and law, and we can't. We don't make contracts with horses. At
don't even this agent of animal liberation. We're not making labor contract horses and
cows. There's only one kind of creature who understands what it means to give
a promise and to bear that obligation, even when he wants counted to his
own interests and inclinations. Only one kind of creature made for contracts and for
law. The only kind of creature could understand what there is about this law
that commands his assent, either because he understands the reason behind it, or
he understands that there may be got a sanction that goes along with it.
So the version that that I have used, I had never heard, the
one about the count can be a gress on Friday like that the example I've
used with students. This may seem to your listeners ridiculous, but I said,
I'm unaware of any example of a pride of lions sitting around deliberating should
we eat that gazelle? Well maybe that's someone say oh, maybe that gazelle
has rights. You know. No, that's not how it works. As
I used to say, what have the whales done for us? Well,
it's all the moral agents, right, Adams. I'm more likely to be
preserved and well governed by moral agents being so good reason about these things.
And I've got a concern about protecting sandhill cranes right now, I have made
the argument you just made about human You know, we don't have labor contracts
with our animals. Human beings are the only creature that has this power of
deliberation and reason. I made an argument to some left meaning students and occasionally
provoked great outrage. I never get a counter argument about it. What the
outrage represents and I want to use this to shift gears here, to shift
our focus from it to the current moment on campus. What it represents is
this commitment and really has to be described as a commitment to I'm not sure
what it was the right description, a nihilist project, the culture repudiation,
as our old late friend Roger Scrutin like to put it. And now I
want to bring it on the free speech, which is connected to our general
theme. But we're now seeing what to my mind represents the crisis of the
university in the response over the Hamas massacre of October seven, And one of
the things that's being said back to conservatives is I should preference by saying that
I've been saying for years now that it was a mistake for conservatives to embrace
the old ACLU position on free speech. Oh yes, yes, it's nothing.
So it's a bedrock principles, sam Alito. And they say that that
that you cannot restrict speech because it is offensive. They see the offensive simply
subjective that they rule out the possibility that there could be some speech that is
so offensive it's offensive and principle, it's like years ago with the ACLU when
I was invited by ISU to state the other side, the opposite, the
other side in the case of the Nazis and SCO and Dave Dave Hamlet of
ASO said, the first man protects all speech, whether popular or despised,
and he gave us their translation. By despise, you mean unpopular. That
you're ruling out the notion that there could be certain kinds of speech that's simply
despicable. Principle. Right, So let's say you have people now standing outside
the home as nat Lewin had this Wall Street journalists defend a synagogue outside de
emissaries outside of a synagogue thing down with the Jews, and now take the
inter people say it was justified to kill those those Jews that here are people
standing out there. It would have been recognized and assault, a verbal assault.
It's threatening. It's telling you that Jews, Jews deserve to die.
And the old you know, and the old Chaplinsky is about about fighting words.
We know words who have the function in the language of assaulting, and
you can remove those words by those words without preventing people from giving any substantive
arguments. Yeah, in in the press or in their books and so on.
But as you say, right now in a position where the conservatives have
taken a position close into the aso U, and I think we don't know
what the conservative court now would do about having these demonstrations against Israels right now
taking place in front of people's homes of synagogues. In fact, Matt Lewlan
had this piece about that case in arbor of the synagogue and someone wrote into
picking up the recent decision and said, but they have a right to offend,
they have a right to offend. Well, we've had I mean,
I've had people here in the campus at Berkeley asked me and ask our partner
John, you gee, isn't this conservative cancel culture that you guys say they're
against. And the first pass is where's the council, where's the council?
Well that you know, student groups should be you know, Ronda Sanders in
Florida said student groups that are you know, anti Semitic should be decertified as
student groups on campus, and people are saying some of these professors, like
the professor at UC Davis who published online a threat to pro Zionist journalists.
I don't know if you saw that tweet, was we know where you live,
we know your children go to school. Well, we have no trouble
with people threatening threatening letters, Yeah, threatening threatening phone calls. So that
was never protected by the first thre meat right, right, Well, I
mean the first pass as a simple one, but I want to do the
second pass with you. First pass is if you can't tell the difference between
somebody misgendering somebody on campus and somebody celebrating the barbarous murder of innocent people,
that you're a moral idiot. But there's the deeper argument, which I think
you know this is Harry Jaffers famous argument, which was the intelligible principle is
is the Nazis, if their exercise of free speech realize their objectives, it
would be to deny the fundamental rights to free speech of everyone else, starting
with Jews, but going down the list right and then that alone was sufficient
reason to restrict their right of free speech. In other words, the only
people who have a right to free speech are the ones who have the mutual
and reciprocal respect for every other individual's fundamental right to free speech. And people
are saying from the river to the sea or the other cliches, they don't
want to respect the writer free speech for Jews. You know, we had
student groups here at Berkeley Law last year saying, you know, we think
student groups should not invite any speakers who are pro Israel. Right, So
I have no trouble saying if that's your standard, you render any ground of
legitimacy. You have to be a recognized student group. So I don't know.
No. During the during the debate with the Nazis and Skokie, they've
had listen, we must be free to hear the Nazis because you must be
free to choose. Free to choose, then, right, okay? The
freedom to choose the Nazis emanates from a principle on the old on free election.
The only rightful government over you in beings hinges on the consent of the
government manifested and free elections. Now Here is a Here is a party that
in principle rejects the underlife allment of creating. We reject the underlying principle that
gives rise and tails on regime of free elections. Uh, they are,
they are ready to vote out the whole regime of constial freedoms to the issue.
Now that this is no better in coherence there that of you know it
was. It was the problem of people. We go into a voting booth
where you have a choice of candidate, and Germany people went into voting booth
and they're willing to vote out the rights of people in the adjacent booths.
And we say, don't you understand we we go into voting booth apart from
the fact you're making a choice among candidates, aren't you first affirming the rightness
of a regime of elections? Does that that entail you to recognize the right
of uman beings around you not to be disfranchised or deprive of their right?
Okay, then we understand this. Don't you understand that? No, if
you understand the moral ground of a regime of elections, you are not free
to vote for a castrow right or Nazi or communist party that would end the
regime of field. I'll do you understand there's a moral ground here. These
people reject the very morall ground on which we're doing this was that online from
her from Joff again and with Lincoln, that that if a a free people
would be obliged to be obliged to respect in the first instance, the premises
how much their own freedom rests. I go, and that's what we're getting
back to. Yeah, yeah, sure is Well it's a discouraging scene.
Uh but I'm filled and encouraged by mere natural law. I hope you're encouraged.
Y T T T T to T. Tom Stoppard was asked by uh
uh if fa friend about this his play Rosencrantz and Guilderstern are dead. What's
that about? He said, it's about to make me a lot of money.
Now it's it's not gonna make you a lot. I would make Tom
Spence by publisher a lot of money. Oh about uh uh? Because he
had because he had he had the the heye had the goodness goodness to grab
the book after I almost minutes after I showed him a couple of chapters.
Oh good grad. Well, thanks very much, and we'll look forward to
more as the scene unfolds. Thanks so much. Well, there you have
it. A few minutes with Hadley Arcus about Mere Natural Law, and I
hope that will pique your interest in going out and buying and reading the entire
book. And in the meantime, I've had a number of listeners and regular
readers send in a special request, which is, why don't I do one
of my long form origin story podcasts with Hadley? And I'm kicking myself for
not thinking of doing that the other day, although we were rather short of
time with the schedule being what it was. But I am going to go
back and do that. And I've already told Hadley he's going to have to
steal himself for telling me his great stories of growing up in the Jewish neighborhoods
and Cago way back in the forties, his time in graduate school with Leo
Strauss later on, and have his thought evolved over the years, and that
is an interesting story. So stay tuned for that, And in the meantime,
by Mere Natural Law, check in and become a supporter of his James
Wilson Institute for Natural Rights in the American Founding. And then also, I
mean he's got a great library of books from first Things Beyond the Constitution,
the Philosopher in the City of one of his earliest books from back in the
late nineteen seventies, that really reads very well today in live of the way
our cities have gone to hell again. In any event, stay tuned for
that. We'll let you know when it's up. And in the meantime we'll
end in classic fashion and say don't forget to milk the soft power dividend.
Bye bye, everybody, Ricochet join the conversation. Sh