By JOHN C.P. GOLDBERG
Review of Natural Law in Court: A History of Legal Theory in Practice, by R. H. Helmholz
Harvard University Press, 2015
In its 5-4 decision in Alden v. Maine (1999), the Supreme Court held that the defendant state was immune from suit by employees seeking back pay under federal labor law. Writing for the majority, Justice Kennedy reasoned that the Framers of the Constitution did not mean to enable Congress to use its power over interstate commerce to abrogate states’ sovereign immunity. In dissent, Justice Souter accused the majority of erroneously attributing to the Framers a “natural law” understanding of sovereign immunity, according to which it was treated as “a universally applicable proposition discoverable by reason.” In reply, Justice Kennedy insisted that his opinion rested on an “appealto no higher authority” than the Constitutional text.
Evident in this exchange are three ideas about natural law. First, it is “universally applicable” across societies and “discoverable by reason.” Second, it possesses a “higher authority” than mere positive or enacted law. Third, it is not today recognized within our legal system as a legitimate, freestanding ground of judicial decision, which is why reliance upon it is to be disavowed.
In this compact but rich volume, the eminent legal historian Richard Helmholz invites us to look back to times and places, some not so long ago or far away, in which jurists were not so shy about invoking natural law. For each of three legal ‘theaters’—continental Europe from about 1500 to 1800, England during the same period, and antebellum America—he reviews teaching materials and records of court proceedings to give readers a sense of how natural law figured in legal practice.
In Europe, for example, students read and re-read standard texts of Roman and Canon law, many of which contained substantial discussions of natural law and its relation to positive law. Knowable through ordinary reason, natural law was understood as a collection of general principles that reflected the order and ends divinely established for humanity. It called for right to be done and wrong to be punished, for each person to attend to his duties and to receive his due, for the promotion of the common good, and so forth. Positive law implemented and refined these broad principles. Parents were under a natural-law obligation to support their children, but positive law was needed to settle questions as to whether this obligation extended to illegitimate children, or to prosperous adult children of penurious parents.
Helmholz points out that the texts used for training lawyers were neither naïve nor simplistic. They acknowledged uncertainty about whether given principles fell within natural law, and that extant positive law could sometimes conflict dramatically with natural law. Indeed the texts commonly suggested that the entire institution of private property was an abrogation of a natural law principle holding that the earth’s resources are owned by humanity as a whole. Private property, on this view, was a bit of positive-law expedience necessitated by population growth and the need for cultivation. Yet the natural law principle of common ownership still lingered: in cases of dire need, private property rights could sometimes justifiably be violated or suspended. (Further attesting to the fact that natural law was as much a locus of disagreement as consensus is John Locke’s famous effort to explain—against the view just described—how certain forms of private property were authorized by natural law.)
Turning from legal education to European practice, Helmholz plowed through vast collections of decisiones (descriptions of court cases summarizing the lawyers’ arguments and listing the authorities they invoked) and consilia (legal analyses written by jurists about particular disputes), searching for references to ius naturalae, lex naturae, and the like. Such references turn out to have been quite common. (In an endearingly self-deprecating aside, Helmholz hypothesizes that his failure to find references to natural law in some of the collections was probably “the result of fatigue on my part: some days it was quite difficult to keep going.” (42))
For the most part, when lawyers did invoke natural law principles in court, they did so in conjunction with positive law authorities, as grounds for favoring one or another interpretation of those authorities. Where brought to bear, these principles were not typically thought to dictate outcomes, but instead functioned as considerations carrying a certain amount of weight.
Thus, the natural law principle that a person is entitled to defend herself against accusations of wrongdoing was sometimes successfully invoked to support defendant-friendly interpretations of notice requirements. Yet principles of fair procedure nonetheless failed to prevent the application of a sixteenth-century Naples statute calling for the summary execution of “any man taken at night in the act of climbing a ladder set up under the window of a house in which maidens dwelt.” (60) In family law, natural law supported yet also limited the discretion enjoyed by parents in setting the terms of their children’s inheritances. In commercial law, the natural law prohibition on usury generated a complicated jurisprudence concerning permissible forms and rates of interest. And in statutory interpretation, natural law both called for close attention to the wording of statutes but also counseled that statutes be construed so as to avoid rendering them “odious.” (It perhaps should go without saying that odiousness attached to different phenomena back then than it does today. Enslavement was considered unnatural, but statutes instituting slavery were not regarded as odious—though they were to be construed narrowly. Meanwhile, statutes meting out harsh punishments for blasphemy and sodomy were regarded as entirely consonant with natural law principles.)
Helmholz finds similar patterns in English common law. English lawyers were taught that common law incorporated natural law principles. And natural law showed up in court arguments and decisions on matters of civil and criminal procedure, family law, property, etc. Here, Helmholz is content to point out the many parallels between European and English law, demurring on the much-debated question of Roman law’s influence on English common law. The book then concludes with a discussion of the use of natural law by the Framers, and of early American judicial decisions that invoked natural law principles, including, Justice Chase’s famous Calder v. Bull dictum that legislation in contravention of first principles is void.
What might a reader take from Helmholz’s elegant work? Most obviously, it provides clarification and edification. In particular, it will help correct misapprehensions about how natural law was once understood, and enable us to appreciate how lawyers in settings different from our own engaged in legal reasoning. For example, Helmholz rightly emphasizes that, in English law, the relationship between natural law, statutory law, and common law was quite complex. Though they assigned natural law authority over positive law, English jurists rarely associated this idea with the thought that judges would be entitled to invoke natural law to strike down duly enacted legislation. Thus, Helmholz joins those who have (quite plausibly) suggested that it is anachronistic and overblown to read into Coke’s account of Bonham’s Case an early, natural law version of American-style judicial review. Likewise, he points out that a jurist such as Blackstone could cogently attribute absolute sovereignty to King-in-Parliament yet still maintain that it was subject to limits set by natural law. To be sure, these limits could not be enforced by a court as against a government that had flouted them. Instead, their flouting gave the populace grounds to withdraw support for the regime. (Lest Helmholz be unfairly saddled with a lousy interpretation of Blackstone, I should emphasize that this last claim is mine, not his, though I think it is consistent with his analysis.)
Helmholz additionally claims that his study provides evidence against the skeptical conclusion that natural law discourse was mere empty talk that “had no real effect on the development of substantive law.” (viii) Indeed, he maintains that his findings support the conclusion that natural law “has been a modest force for good.” (177) As he acknowledges, however, it is probably impossible to assess such claims. How would one determine whether, in the absence of natural law, European, English or American law would have been less good? Given natural law’s close connection to prevailing Western notions of morality, what would it even mean to talk about the development of Western law without natural law? (Would the relevant counterfactual history have to exclude not just natural law’s influence on positive law, but also morality’s influence?)
As I doubt there is much profit in trying to answer these questions, I will instead conclude by noting an ambiguity in Helmholz’s efficacy claim, which in turn raises a question about his own understanding of the upshot of his analysis. The question can be put as follows: In considering the ‘effects’ of natural law on the development of positive law, does Helmholz mean to attribute causal significance to natural law itself? Or instead he is attributing causal significance to lawyers’ belief in natural law?
My sense is that Helmholz is offering a version of the latter claim. That is, out of deference to contemporary natural-law skepticism, and in adherence to the intellectual historian’s professional credo of putative agnosticism, he seems keen to separate the history of the idea of natural law from an assessment of its validity. Note, however, that one can give several distinct spins to agnosticism of this sort. It would be interesting to know which among them Helmholz is prepared to embrace.
First, one could treat Natural Law in Court as an analogue to a scientific history recounting the rise and fall of phlogiston theory, or the geocentric model of the solar system. On this reading, the book is an account of how the widespread acceptance of a demonstrably false idea can contribute to the growth of knowledge, and even operate as a force for good.
Second, and probably more accurately, the book can be understood to express a stance that is small-c catholic (or, to use a somewhat less dated label, Rorty-ian). It turns out that French, Italian, English and American lawyers once had a certain way of reasoning about law. It held together pretty well, and allowed them to accomplish some good things and also some bad things. We now talk about law differently, and our doing so allows us to accomplish some good and bad things. To ask which is the right way to talk about law is to ask an uninteresting question—these are just different discourses, each with its own logic and its own strengths and weaknesses.
A third reading of Helmholz’s study—one he seems reluctant to embrace—would take it to suggest that once we better understand what past jurists actually had in mind when they talked about natural law, we will recognize that (for better and worse) we continue to think about law similarly, even though we sometimes use different terminology. Consider in this regard the Supreme Court’s 1950 decision in Mullane v. Central Hanover Bank and Trust Co. It held unconstitutional a New York statute allowing trustees of common trusts to alert potential beneficiaries of trust settlements exclusively through notices published in newspapers. Said Justice Jackson for the Court: “Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” While Mullane rests most immediately on an interpretation of the Fourteenth Amendment’s Due Process Clause, its morally informed reading of that text seems very much of a piece with the medieval ‘notice’ cases that Helmholz describes and, more generally, with the methods of the jurists whom Helmholz so vividly brings to life.
Maybe we aren’t quite the natural law skeptics we think we are.