Western Creed, Western Identity: Essays in Legal and Social Philosophy

7. Thomas on Natural Law: What Judge Thomas Did Not Say

     THOMAS ON NATURAL LAW What Judge Thomas Did Not Say  The Senate Judiciary Committee’s hearings on the qualification of Judge Clarence Thomas for appointment to the U.S. Supreme Court raised for a worldwide audience questions concerning the role of natural law in the legislative and judicial processes, that is, in the framing and the interpreting of law. The media debate that ensued more often than not led to confusion rather than clarification. Many were left wondering what indeed is “natural law” that views about it should prove so controversial? Given the complexity of the matter, it is not surprising that Judge Thomas could not satisfy his interrogators . What the hearings did show is that law is not created in a vacuum but presupposes an intellectual and cultural history, including philosophical considerations. I do not want to put words into Judge Thomas’s mouth or suggest that I know any more than what is publicly available, but on the basis of evidence it is my judgment that what makes him a good Supreme Court justice is that he shares the outlook of the Framers of the Constitution . He shares with them the principles upon which the Constitution was built, principles that are supported by a time-transcending, natural law philosophy. That he has many detractors is due to the fact that the morality embedded in the Constitution has been repudiated by much of modernity. It is a morality secure in its conception of  human nature and in its conception of human fulfillment, a morality that favors the common good over special interests, a morality that recognizes spiritual as well as material goods and the transcendent as well as the temporal end of man. Of one mind with the Framers, a judge, as a member of the bench, will find it easy to be a strict constructionist . Such an outlook will put him at odds with the intellectual establishment or, as Thomas Sowell calls it, “the anointed,” but not at odds with the people. The confirmation hearings were not about qualifications or judicial temperament. They were the clash of two intellectual systems, one embedded in the Constitution, the other its antithesis. Lord Patrick Devlin, writing in the early s, speculated that if a society’s laws are based on a particular worldview and that worldview collapses, the laws themselves will crumble. Ronald Dworkin, in his work Law’s Empire, argues the converse thesis: in a moral pluralistic society only law can provide the unity required for the social order. The concept “natural law” is but a symbol in this debate; it is not surprising that it arose during the Judiciary Committee’s hearings. The concept of natural law, of course, is an ancient one. We find it in the Greek poets, in the Athenian philosophers Plato and Aristotle , and in the Roman Stoics Cicero and Seneca. The notion is rather simple. There are laws of nature, some of which we have discovered and have articulated for ourselves and for others. A law of nature is simply a report on what is. It is a description of a process that under specified conditions remains invariant through time and place. A law of nature is opposed to an accidental generality—for example, all the senators from the southern provinces have deep brown eyes. Examples of other natural laws known to antiquity might include: copper expands when heated, silver is malleable, wine loosens the tongue, to be fruitful the vines must have at least eightyfive days of sun, credibility follows a habit of speaking the truth, a well-ordered household permits leisure. In addition to these homey, prescientific laws, we can add the modern laws of physics, chemistry, and biology and the laws that govern music, painting, architecture, corporate management, and personal fulfillment. They can be stated Thomas on Natural Law  flatly in the form of declarative sentences, for example,“Bodily health is contingent upon a proper diet”; or as admonitions, for example, “One should observe a healthful diet,”“Desiring other people’s property will make you miserable,”or“Thou shall not covet thy neighbor’s goods.” Some of the laws that deal with personal self-fulfillment we call “moral laws” as distinct from rules that promote good manners. The Fulbright Scholars Program, for example, is promoting good manners when it suggests to American youths going abroad to bring flowers to the hostess when invited to a dinner party. To be...