Treating Natural Law as Law

Brian Tamanaha

Seldom do I come across a jurisprudence article that uses a simple shift in framing to place an old topic in a completely new light. “What is Natural Law Like?” by Jeremy Waldron prompted questions about natural law that had not occurred to me in two decades of following the subject. The standard ways of discussing the topic cover the natural law tradition, starting with Aquinas and moving to the present; take up what qualifies a theory as “natural law,” usually a claim of objective principles; elaborate on the debate between natural law and legal positivism; and lay out the positions of various “natural law” theorists, including John Finnis, Ronald Dworkin, and others.¹ Much of this territory is familiar and well-worn.

Waldron starts with a standard question, “what is a law of nature?”, but immediately adds a twist by positing, “we should expect natural law to be law-like. It should be like law.”²  This seems innocuous as he states it, but it quickly produces unusual implications.

Before laying out those implications, Waldron points out that John Finnis’s Natural Law and Natural Rights, which sets out a list of basic human goods and principles of practical reason, “has not really given us a theory of natural law at all,”³ for what he discusses is not law, but a kind of moral theory.⁴

Waldron insists that natural law must possess the basic qualities of “law” or it does not qualify for the label. “It must be the sort of thing that can order human affairs in the forceful way law does.”⁵ This produces five criteria: 1) it must impose requirements and prohibitions (be deontic); 2) it must be understood as enforceable in some sense; 3) it must be supported by ancillary principles (fairness, culpability, etc.); 4) it must be separate from ethics and morality; and 5) there must be shared recognition.⁶

Waldron uses each requirement as a point of departure for wide-ranging and complex discussions that cannot be summarized here. Instead I will focus on aspects of three requirements (2, 4, and 5), which I found particularly thought-provoking, though additional nuggets of insight are scattered throughout his analysis.

Waldron introduces the discussion of enforceability with a claim: “It has long been considered part of law’s inherent character that it be enforceable.”⁷ He acknowledges that this usually refers “to availability of coercive practices or institutions,”⁸ but sets this aside to take up a different angle. He inquires about “the sense of its being appropriate, or at least not inappropriate, to uphold a given norm with force,”⁹ which leads to issues surrounding the proper level of punishment. His discussion is fascinating, but an unaddressed question lingering in the background is who or what is supposed to uphold the norm. Waldron divorced the issue of the appropriateness of applying force from the mechanism. Is natural law sufficiently law-like when it is appropriate to apply coercive force but there is no possibility of it happening? This is a critical question because if the answer is negative, then what makes natural law law, it seems, is the prospect of divine punishment (or some substitute), which brings us back to the original understanding.

Waldron uses the separability of natural law from ethics and morality to clarify several points about the relations between positive law, conventional morality, and objective (or critical) morality. He also shows various respects in which ethics, morality, and law are not coextensive. Ethics addresses personal values and virtue, some of which are purely self-regarding, whereas law is other-regarding and deontic. Morality encompasses a range of normative evaluation, whereas law is more narrowly rule-like and preemptory. Waldron suggests that, rather than a total separation, natural law is a subset of objective morality.

With respect to the fifth requirement, Waldron argues that people generally must be able to recognize natural law because “It rules us; it orders what we do to and with one another; therefore it must be something we share and know that we share.”¹⁰ The answer in classical theory was that people know natural law through natural inclinations or reason, or because it is self-evident (at least to the wise or thoughtful), though various limitations and perversions can interfere with its recognition. Waldron acknowledges that the fact of disagreement is a major objection raised against natural law. “If Aquinas is wrong about the self-evidence of natural law propositions or wrong about the degree of deference that is required to convince people of their self-evidence, then different people may accept different norms that are at odds with one another, and different wise men may try to convince people of different conclusions so far as the chains of self-evident reasoning available only to them are concerned.”¹¹ Disagreement in itself does not mean objective principles do not exist, as natural law theorists have argued. However, by asserting that people generally must recognize it if it is to count as law, as Waldron does, then it would seem to follow that it must be broadly recognized (or at least recognizable) via reasoned reflection across cultures. This is a demanding requirement.

In the final part of his essay, Waldron takes what resembles a sociological turn, or arrives at a position that could be explained naturalistically, though he holds to natural law. It bears quoting in full:

From a human point of view, we can only be governed by what we think is natural law. God’s rule in the world aside, that is all natural law can be so far as our actions and interactions on earth are concerned.

In a way this generates something like the idea of the positive presence of natural law among us. What governs us in the name of natural law is a set of human propositions, commonly recognized as purporting and perhaps succeeding in capturing laws that apply objectively to us in the absence of human institutions. This conception does not, I think, blur the distinction between natural law and positive law. Positive law is institutional, but the rule of natural law that I am imagining is not. Positive law is understood to be changeable at human hands; natural law is not, though of course our understandings of natural law can change. Positive law often has canonical formulations (in statutory and constitutional texts); natural law never does. Positive law can be understood to command things that are decisively wrong; natural law cannot, even in spite of our arguments under heading 4 about its separation from morality. These differences matter. But they should not lead us to neglect the importance of the positive presence among humans of (what they think are) natural laws.¹²

This resembles a sociological turn in the sense that, from a sociological standpoint, even if natural law theory is false (or a fiction), it nonetheless has real consequences in the world in so far as people act on belief in natural law.¹³ A naturalistic explanation would characterize commonly recognized principles, to the extent they exist, as the product of human evolution.

What distinguishes Waldron’s position from these other two perspectives is that he ties the existence of natural law beliefs directly to the reality of natural law (via the 5^th requirement) as a genuine form of law. Natural law is thus the genesis of the “positive presence of natural law,” albeit manifested in human societies shrouded in uncertainty owing to limits of knowledge and human fallibility. (A reader might wonder, as a follow up, what explains the genesis of natural law itself, though Waldron does not address this.)

I have addressed just a few of the fascinating issues raised by this essay. It should be read by anyone interested in the topic. It would also serve as useful supplemental reading in a Jurisprudence course because it is relatively brief and clearly written, and takes up many interesting topics that bear on law, morality, and natural law.

1. For an excellent essay on the topic, see Brian H. Bix, “Natural Law: The Modern Tradition,” in Oxford Handbook of Jurisprudence and Philosophy of Law, Jules L. Coleman & Scott Shapiro, eds., Oxford University Press 2002.
2. Jeremy Waldron, “What is Natural Law Like?” 2.
3. Id.
4. Waldron points out that Philip Soper raised this question in an early review. Philip Soper, “Legal Theory and the Problems of Definition,” 50 U. Chi. L. Rev. 1170 (1983).
5. Waldron, “What is Natural Law Like?” supra note 2.
6. Id.
7. Id. 8.
8. Id.
9. Id.
10. Id. 13.
11. Id. 15.
12. Id. 18.
13. See Brian Z. Tamanaha, A General Jurisprudence of Law and Society (Oxford: Oxford Univ. Press 2001) 156-162, 230.