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.

7 Responses to Philip Hamburgers New Book is a Rare Find

  • I thoroughly agree with this post, but would add that I think that there are appropriate roles for both positive law and natural law in our society. In my view, the judiciary generally should be entrusted with applying the positive laws made by legislatures representing the body politic. It is neither a judge’s charism nor his understood role to substitute his understanding of natural law for that of the legislature. That said, the positive laws enacted by legislatures and applied by judges should reflect and be consistent with natural law, and that obligation rests with legislatures. Moreover, it is the role of the body politic to elect and influence legislators to enact laws consistent with natural law (i.e., the law written on the hearts of men).

    While the concept of natural law is certainly true and worthy, its discernment can be elusive and difficult. Intelligent men and women of good will can and do disagree. Accordingly, a practical political mechanism must exist in order for decisions, albeit imperfect decisions, to be made. And our system assigns that responsibility to elected legislators, not judges. It is dangerous for judges to substitute their judgment for that of legislatures since judges are far more immune to correction (e.g., Roe v Wade), and it serves to essentially make the judiciary into a superlegislature and the legislature into nothing more than a committee of suggestions. Further, people would not be able to make reasonable attempts to rely on the law since the law would be whatever a judge says it is rather than what is enacted in writing in statutes.

    Some very erudite Catholic commentators insist that because positive law that is not consistent with natural law is not law at all, judges should ignore such positive law and apply natural law in deciding cases. In my view this is dangerous and incompatable with a republican form of government. Government by indirect democracy is imperfect and often ugly, but it is far superior to a government by council of wise men. If you doubt that give some thought to who would compose that council today. It would not be any American bishops, that’s for sure.

  • Mike,

    Thank you for your comments. I readily agree with what you say. I hope I did not imply there is no use for the positive law. I tried to say that natural law or something like natural law is required for liberalism to work. Like you say, it is the duty of the legislators (in a democracy this is us, the people), to ensure that our laws are in accordance with the natural law, or at least it’s most basic precepts.

    My intention was to provide a brief balanced and friendly critique of liberalism. I think sometimes such a critique can show you why outright rejection of liberalism is in a certain sense foolish, and thoughtless acceptance or cheerleading is naive and even dangerous.

  • Zach, absolutely agreed, and you did a very good job of that. Indeed, no political, legal, or economic system can work without well-developed moral impulses ordered in natural law, and liberal systems are no exception no matter how well crafted. But such systems do seem to work better than others all things equal.

    I apologize if I took your post into an unexpected direction (because I was not at all responding to any implication), but I do know several serious Catholic thinkers who view natural law as something incompatable with positive law, and like you I don’t think that is the case in a representative democracy with a separate and independent judiciary.

  • It seems we have reached “heated agreement”.

  • I prefer violent agreement. ;-)

  • Nothing really to add because I’m in peaceful agreement with the above, but nice post and discussion!

  • Haha – I think heated agreement was a phrase the late Fr. Neuhaus used to use to describe his conversations with Hadley Arkes etc.

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