The Good Society 12.3 (2003) 38-42
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Understanding Natural Law
Natural law is a term that has been used with a multitude of incompatible meanings, and this certainly has not helped its cause. In this paper I would like to sort through some of the meanings of natural law in an effort to bring some more clarity to contemporary discussions of the subject. In particular, I want to try to identify four different forms or levels of "natural law" thought. They range from the very broad—highly abstract and formal—to the relatively concrete and specific, and can be differentiated partly by the range of thinkers that are comprehended within each level.
Natural Law as Objective Value
The first and most abstract notion that can be called "natural law" is that human beings are a certain kind of being, and the features of that being should direct our understanding of how human beings should live. This approach implies the existence of some sort of objective moral law knowable through reason. It is implicit in what are perhaps the most basic intuitions giving rise to natural law, namely, the sense that there must be some general standard in light of which it is possible to judge human laws or conventions. The classic instance of this idea is found in Sophocles' Antigone, in which a sister disobeys a law by burying her brother, and claims a warrant in higher law for so doing.
At the same time, the understanding of natural law at this level of generality is very formalistic. Almost any thinker would fall in this category, except for those who resist the temptation to think that there are any norms or standards independent of human will that govern human action.
This understanding of natural law is described well by Russell Hittinger in his broad-ranging and insightful article, "Liberalism and the American Natural Law Tradition."1 Hittinger points out that some contemporary uses of "natural law" identify it with the position that "values are woven into the fabric of the world" and thus, "value judgments and the moral prescriptions derived from them are not regarded as merely subjective statements of approval or disapproval; nor is the binding quality of the judgment about objective goods simply a function of the standards which we invent."2 In this view, virtually "any account of morality—whether personal, moral, or political—that grounds at least some reasons for action in objective values, or at the very least, anthropological values" qualifies as natural law. "Natural law, then turns out to be any understanding of the relationship between law and morals which is neither positivistic nor nihilistic" and "formulated at this level of generality, natural law theory of one sort or another represents the great tradition of the West."3
Hittinger cites a classic discussion of "higher law" by Edward Corwin, an influential constitutional scholar in the first half of the twentieth century:
There are, it is predicated, certain principles of right and justice which are entitled to prevail of their own intrinsic excellence, altogether regardless of the attitude of those who wield the physical resources of the community. Such principles were made by no human hands; indeed, if they did not antedate deity itself, they still express its nature as to bind and control it. They are external to all Will as such and interpenetrate all Reason as such. They are eternal and immutable. In relation to such principles, human laws are, when entitled to obedience save as to matters indifferent, merely a record or transcript, and their enactment an act not of will or power but one of discovery and declaration.4
Hittinger goes on to point out that this definition of natural law includes many thinkers who would never have used the term of their own work and who are ambivalent, or hostile, to the "epistemological ideal of attunement to an evident order of being"5 : for example, Kant and his descendants, including John Rawls and Alan Gewirth, and contemporary legal thinkers such as H.L.A. Hart, Lon Fuller, Lawrence Tribe, Ronald Dworkin, David A...