Archive Natural Law Nota Bene Steven Wedgeworth

Separation of Natural Law and State

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.

By Steven Wedgeworth

Steven Wedgeworth is the Rector of Christ Church Anglican in South Bend, Indiana. He writes about theology, history, and political theory, and he has taught Jr. High and High School. He is the founder and general editor of The Calvinist International, an online journal of Christian Humanism and political theology, and a founding member of the Davenant Institute.

5 replies on “Separation of Natural Law and State”

It seems even worse than you write. It seems that he is implying that the Courts can never stand against what the other branches say because those branches reflect the will of the people. But if that was really the case, then democracy really does becomes the tyranny of the majority.

To be fair, Scalia himself often associates himself with Holmes, in that both saw the job of a judge to be essentially limited to expounding already-created human laws without imposing their own judgment. As a matter of jurisprudential theory, both Holmes and Scalia are “positivists” in that they do not believe that judges are supposed to appeal to “natural law” in order to reach decisions in actual cases. But Scalia is a natural law advocate in that he does believe that there is such a thing as natural law which stands above and as a standard for the positive law (as you say, the people who make the positive laws must be guided by a transcendent moral imperative.) Holmes probably agreed with Bentham that any notion of natural law is “nonsense on stilts,” and the positive law is all there was, is, and ever shall be. But at the level of what a judge is supposed to do in the courtroom, they’re pretty similar. (They disagree strongly over how to define precisely what the positive law they are supposed to be applying actually is, of course.) Natural law as a metaphysical and ethical doctrine does not entail that judges ought to self-consciously interpose natural law over positive laws they don’t like.

Viewed in this way, telling judges not to impose natural law against positive laws is actually a form of judicial restraint. And the position that natural law must burst in to the scene and be an explicit basis of judicial decisions is actually a form of judicial “activism” that urges judges to go beyond the duties and powers they have been assigned (assigned under what? Under the positive law — the Constitution — but also quite possibly under the natural law itself, which can certainly be argued to require submission to one’s proper role when it is not necessary to do otherwise). Judicial restraint is itself something that (arguably?) a “natural law” believing justice should value.

One other thought: I don’t think this is as vox populi vox dei as it might seem. I think when Holmes speaks of society expressing its predominant will through the positive law, he means not so much the mob winning a head count but rather the entire complex machine of the federalist republican system doing its things. The “will of the people” is expressed through their representatives operating within the huge political Plinko machine the Constitution has created. So it’s not “we can generally trust the positive law b/c it’s what’s popular;” it’s “we can generally trust the positive law because it is produced out of a complex interaction of political factions, divided powers, interest group tug of war, and deliberation by legislators.” This whole complicated matrix is what expresses the “will of the people.” There is still some room for the tyranny of the majority there, but probably not nearly as much as it might seem.


Thanks for the comment. And right, you make a good point. For a judge to believe in natural law need not imply that he should then interpret and enact it. The ever-growing “human rights” theory, which is really just the new way to say “divine rights,” would be a good illustration of this very point.

But the author of the essay in question seems to think that even believing in a divine foundation necessarily leads to the need to enforce one’s interpretation. And that’s what I found so strange.

Steven, I am with you completely. I just wanted my comments to be helpful to any who might find them so, given how utterly vapid and poorly-reasoned Murray’s article was. (And the comments are a hoot, too.)

And by “sovereignty of the people” you mean “sovereignty of the elites” due to the fact that the supreme court justices are continually at odds with the majority of Americans. I feel as though the judicial branch continually evokes the populace as in their favor when in reality there is a much greater disconnect than the main stream media outlets would like to put on.

Enjoyed the piece, keep ’em coming!


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