Philip Hamburgers New Book is a Rare Find
Michael McConnell, a Law Professor at Stanford, offers this in a First Things review of Philip Hamburger’s new book titled Law and Judicial Duty:
Hamburger traces the development of modern conceptions of the law to the realization, in Europe and especially Britain, that human reason rarely provided clear answers to moral questions and therefore that an attempt to ground law in divine will, or a search for abstract reason and justice, would inevitably lead to discord. As a result, “Europeans increasingly located the obligation of law in the authority of the lawmaker rather than the reason or justice of his laws.” The task of judges, then, was not to seek after elusive notions of justice and right reason but to enforce the law of the land. Natural law shifted in emphasis from moral content to legitimacy and authority, and increasingly to an understanding of authority based on the will of the people.
This seems to me a profound explanation of how and why we understand law today the way we do. It simultaneously shows you what is wrong with the modern conception of the law and what is right.
As Hamburger argues, Europeans and the British especially were right in an important way in seeing the insufficiency of human reason in uncovering moral truths. They were also right to be skeptical of claims to divine authority in public life because of the fact of pluralism. Not all persons are of the same mind: there is moral, cultural and philosophical divergence that necessarily produces social discord. In light of these truths, the Europeans were right to change the emphasis of the law as they did. But it is immediately apparent that something is deeply wrong with this emphasis placed on the authority of the lawmaker (i.e., the will of the people).
Without a firm or solid grounding in natural law, the will of the people is and will be arbitrary, unfixed and anarchical. Without the natural law, politics becomes a contest of competing desires. This is part (perhaps the most important part) of what is wrong with liberalism. Insofar as liberalism is foundationless, it will produce social discord. But its foundationaless nature is also its greatest strength: it produces a certain social stability by resting the authority of the law in the hands of those it serves. No one is excluded by philosophy or religious belief from the liberal society. Tocqueville said Liberalism requires a moral and religious people: a people with a particular character. He was right. In the absence of such people, liberalism cannot produce social harmony, and this is what we see today in the faithless 21st century America.
The task of the person who appreciates the virtues of liberal republican government (the conservative) is then clear. We must promote the proper understanding and relevance of natural law and religious faith in our public life. How we do this, exactly, I’m not sure. I think the best place to start is at home, in our families and our local communities and fraternal associations. Personally I like to drink beer and talk about important things.