Friday, March 17, 2017

The Natural Law Debate: Predilections and Predictions

Neil Gorsuch, by all accounts, has been an excellent judge, and has not left much of a paper trail that stirs up controversy. That should be no surprise given the history of confirmation hearings since the Bork failure.  Any judge contemplating a move up the judicial ladder (and yes, people do plan for their futures long before they become judges) strikes a balance between their philosophy and their written opinions and published articles.  To become an advocate for any judicial position puts that potential nominee too far out there to become a nominee in our current divided climate.

Nominee Gorsuch has a background in natural law, having studied at Oxford under John Finnis, a leading scholar on the natural law philosophy. So, you are about to hear a debate on that legal philosophy intended to confuse you, strike fear in your heart and make Gorsuch look like a radical nominee.  It is unfortunate, because natural law has been one of the leading legal ideas in our history for over a century, waning and rising on the economic tides of history.

Fundamentally, natural law is a system that posits that the law's legitimacy rests on the moral values intrinsic to human nature."If a law is unjust considering those values, it really is no law at all" would be the most direct statement of the natural law principle.
[You can find a pretty good summary of natural law at :

The principle is worthy of discussing, but unfortunately, our current politics constricts every discussio into a soundbite.  You will hear the defenders and contenders of Gorsuch conflate past cases, about property rights v. workers rights, to contend that natural law is an anachronism befitting of the white old men of the 19th century, and damning to our multi-cultural, progressive sensibilities.

But consider this debate on the Court: Are there any moral principles derived from human nature that should form the foundation of government action? (All law is derived from governments action; that is not in serious dispute. The source of the power granted to  government to implement law is another story.)
I have asked this question, in a different form, to the class numerous times.
Are there any universal truths?

Consider the debate on the Court going something like this: Is slavery ever moral? If it is not, why, what is the principle that supports our position? Is that the value of every human life, the right of every human to decide for themselves their course, their path, for good or ill? Is that right universal to every living human being, without  regard to capacity, ambition, personal goals?
And then, after a slight pause, heads nodding in progressive approval, of course, that is fundamental to freedom, that the rights of each of us are derived from our innate humanity, given to us by God our creator.....
Then, someone raises this question: When, if that is true, does that right begin?

With every legal issue, the rub comes in the implementation. And the complications become clear as the answers more difficult. Unless we abandon consistency, the very principle that our law is supposed to provide to the polity. If our law is not consistent, what good is it.

Pay attention to the upcoming debate, if only to discern how it is used by both sides to obfuscate the facts. A good healthy debate about natural law principles would force the citizens to come up with some very hard answers for issues we have dumped off on the judicial  branch, and perhaps allow a reckoning among disparate views long thought impossible.


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