A Pragmatic View of Natural Law

Brian Tamanaha

One of the themes in my recent book, Law as a Means to an End (sidebar), centers on the adverse consequences of the gradual loss of belief in natural law over the past several centuries. Many in the founding generation and throughout the nineteenth century accepted some version of natural law or natural principles. It was widely thought that these principles were built into the common law and had a background role in the constitutional arrangement. But we have not thought about the law in these terms for a long time. Now the Constitution and the law are seen as positive declarations of rules that we can alter in any way we desire, and that we can use to serve whatever ends we desire. Natural law has no recognized place in this scheme (other than a residual sense in the Bill of Rights). Although law was once thought to have a built in core of principles, it is now seen as an empty vessel.

The book elaborates on the worrisome implications of this shift, but I do not advocate a return to natural law because, in my view, society, culture, the economy, politics, and law have changed so much that those long lost views cannot and should not be recovered.

I should also admit that I don’t believe in natural law, at least not in the traditional sense of timeless, universal, objective fundamental principles. Reading a lot of John Dewey, Richard Rorty, and other pragmatists has made it impossible for me. Pragmatists assert that there are no such things as timeless, universal, absolute, objective principles. These are human ideas that arise, take hold, and are given meaning in specific social-cultural contexts. Appending the label “natural law”—or today: “human rights”—and calling them objective and universal is a way of according them emphasis and a higher status, but they are socially invented ways of speaking about socially constructed norms.

It must be emphasized that a pragmatist can deny that “natural principles” are objective, yet still recognize that many people believe that they are objective and universal and that this belief can have positive social consequences (as William James argued with respect to religious beliefs). From a pragmatic perspective, these beliefs are useful and valuable to that extent.

A pragmatist will also insist, however, that we must consider the negative consequences of these beliefs. Dewey wrote that “one of the chief offices of the idea of [natural law and justice] in political and judicial practice has been to consecrate the existent state of affairs, whatever its distribution of advantages and disadvantages, of benefits and losses; and to idealize, rationalize, moralize, the physically given.” We must remember that bad things have been done, and will be done, in the name of natural law or natural rights (this prudential concern is the core of my article on the contemporary relevance of legal positivism).

Opponents castigate pragmatists for being moral relativists. The charge seems to fit the pragmatists, except for this consideration: criticizing someone as a “relativist” is meaningful only if it is possible to be a non-relativist.

These critics—let’s call them “objectivists”—deny that their position is a relativist one because objective natural principles really do exist. When making this claim, objectivists are saying not only that they believe that these principles exist, but more so that they do in fact exist.

The pragmatist will respond that, while the belief of objectivists in natural principles is sincere and has consequences (when they act on this belief), the claim itself is wrong—there are no such things as universal, objective, absolute principles. The referent of the claim does not exist. If it is meant by the objectivist as a factual claim, it is false. If it is a metaphysical claim, then it is a myth or fiction on a par with belief in the existence of ghosts.

Assuming these responses are correct (a big assumption, which cannot be discussed here), the charge of relativism senseless. It has no bite because objectivists are in exactly the same position as pragmatists—they too have no objective, universal grounding for their principles. One could say that we all are relativists—and the objectivists just don't know it—but a better understanding is that the term relativism is misleading and inapt because it posits an alternative position that is not available.

These passages from Isaiah Berlin (“Subjective Versus Objective Ethics”) help explain this view:

"The fallacy of this position [denouncing Hume for subverting moral order by arguing that "objective" truths applies to logical and empirical realms, but not normative] consists in the tacit assumption that ethics, which is, alas, subjective, might in principle have been objective, although it has been shown by Hume's cold reasoning not to be so in fact. But if Hume is right...then he is in effect implying (though he never himself saw this clearly enough) that ethical statements are in principle different in the way they are used from logical or descriptive statements, and the distinction between subjective and objective may turn out to not apply to them at all."

Berlin goes on to indicate his agreement:

"Can a world be conceived in which normative statements acquired 'objective status'? It is only when we realize that this is a meaningless suggestion--that the note of regret which the word 'subjective' often expresses springs from what has been called a pseudo-lament,' because it deplores the absence not of something which could be present..., but of something whose presence cannot be conceived, of which to say that it is present is to utter a meaningless phrase--it is only then that we grasp the unsuitability of such an epithet as 'subjective' when applied to ethical, political or other normative disciplines."

A reader might accept these passages, yet not be able to shake the despondent feeling that we have been thrown into relativism. Yes, but that’s because we previously thought (mistakenly) that we were not in that position. A better way of describing matters is that we are now “disappointed objectivists” rather than “relativists.”

The good news is that a pragmatist will insist that we can still talk about right and wrong—about good and valuable principles—without making apologies. Shorn of the former objectivist language and its supportive belief structures, these kinds of statements remain what they have always been: normative claims invoked in discourse. Granted, they are no longer bolstered by the former objectivist beliefs, but the bottom line has not changed: One must still persuade an interlocutor in any normative exchange that one’s normative claim should be accepted. Even in the old days, when the arguments were couched in terms of natural principles, there was plentiful disagreement on moral and legal claims.

Does the pragmatic view leave open the possibility of constructing a natural law position? Maybe. It would have to be brought down to earth, empirically grounded, and argued for in pragmatic terms. H.L.A. Hart argued that there is a minimum content of “natural law”—that is, universally applicable—based upon the core requirements necessary for humans to live together peaceably in a social group. A pragmatist would find this kind of argument unobjectionable. Another possible approach, gaining attention of late, is to build upon some form of “moral naturalism,” which argues that moral norms are natural facts based upon our existence. An important new article on this subject is Larry Solum’s “Natural Justice,” which sets out a detailed argument about the implications of natural justice for judging. The pragmatist in me is concerned about precisely what is claimed by invoking the term “natural” here (other than identifying its grounding in us), but I find the specifics of his account of virtue in judging attractive and convincing.

To return to a point I made at the outset—natural law principles of the past are beyond recovery. Nostalgia is pointless, and revivalist movements can be reactionary precisely because they require us to suppress much that has changed. We can construct a sound view of integrity in law that is realistic and comports with who we are now. There is no option but to build with the pieces that we have at hand.
Posted 5:03 PM by Brian Tamanaha [link]