Anthony Murray worries about what effects the influence of natural law might have now that at least some of the US Supreme Court justices seem to believe in it. It looks grim, as he concludes with this apocalyptic line: “The moment a judge turns to natural law, democracy vanishes.”
But what does he mean? His essay reveals a fundamental equivocation on the term “democracy” and role of the “will of the people” in making law. For instance, he rightly explains that the natural law tradition grounds morality in a sort of religious consciousness:
The Declaration’s natural-law position embraced an ancient tradition of religious thought. Over 500 years earlier, Thomas Aquinas, the 13th-century Dominican priest and theologian, had made natural law a cornerstone of Roman Catholic philosophy. In the centuries that followed, natural-law advocates grounded their theories on religion-based theology, or simply found them “self evident,” the phrase Jefferson used. None of these believers attempted to provide an empirical basis for natural rights.
This tradition is fine (as far as it goes), according to Mr. Murray, but for judges to incorporate it in their job would be too much:
If natural law were regarded as simply a religious creed, it would not conflict with the positive laws embedded in our Constitution and laws. The threat lies in the use of natural law by courts in judicial decisions. Invoking it in construing the Constitution and statutes raises an obvious question: If natural law exists, what is in it? Is it a blank slate on which anyone may write subjective beliefs? Does it include religious dogmas? If so, of what religions?
Why is this a problem for jurists and judges? The answer is given to us from the writings of Oliver Wendell Holmes:
Addressing the subject of “jurists who believe in natural law,” Holmes wrote that they “seem to me to be in that naïve state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere.” But he argued that this notion—“our truth is cosmic truth”—was entirely unfounded. Among all of our wishes, Holmes pointed out, the desire to live probably ranks the highest. But does that fundamental urge give us a right to life? No, said Holmes: “The right to life is sacrificed without a scruple not only in war, but whenever the interest of society, that is, of the predominant power in the community, is thought to demand it.” At that point, he wrote, “the sanctity disappears.”
This reading of Justice Holmes reveals an entirely modern and skeptical point of view, but it also reveals a sort of extreme voluntarism at work. The “society” and its spokespersons are the ones who determine when its interests demand something, and this becomes “the predominant power.” Now, there is an obvious practical point here. Politics is always enacted by politicians, and laws are always written by lawmakers. Abstractions don’t craft a state. But few, if any, natural law theorists have ever denied this. What they have argued is that individuals must be and, in fact, are guided by a transcendent moral imperative. Mr. Murray seems to want to set this in opposition to parliamentary procedure. Notice this statement, posed in contrast to Justice Scalia’s recent affirmation of divine law:
But in the courtroom, the only commandments that matter are the Constitution and the laws enacted pursuant to it.
What this shows clearly is that natural law is problematic for modern democracy precisely because it places external restrictions and obligations upon the judicial branch, and thus, by implication, the whole state. In short, natural law is a slippery slope to theocracy.
And that is a great enemy to the modern notion of the sovereignty of the people.