Brian Tamanaha: Beware Illiberal Natural Law
Michael Ramsey
Brian Z. Tamanaha (Washington University in St. Louis - School of Law) has posted Beware Illiberal Natural Law (101 pages) on SSRN. Here is the abstract:
Natural law has burst onto the American legal scene with the publication of Adrian Vermeule’s Common Good Constitutionalism (2022). A prominent constitutional and administrative law scholar, Vermeule castigates originalist jurisprudence as a fraudulent illusion perpetuated by conservatives to achieve their objectives, and he condemns progressive jurisprudence as a departure from objective moral values. In their place, Vermeule advocates recovery of the natural law tradition that undergirded Western law for over two millennia and provided the basis for American law from before the founding of the country until it was unceremoniously discarded in the mid-twentieth century. “Common good constitutionalism draws upon an immemorial tradition that includes, in addition to positive law, sources such as the general law common to all civilized legal systems (ius gentium) and principles of objective natural morality (ius naturale),” he declares. His manifesto comes on the heels of a recent outpouring of academic writings on natural law.
This essay critically examines Vermeule’s invocation of natural law, and natural law theory and discourse more generally. Part I focuses on Vermeule, revealing the implications of his illiberal Catholic integralist position, and the conservative political bent of natural law espoused by contemporary proponents. Countering his account, I explain why references to natural law virtually disappeared in the American legal tradition by the turn of the twentieth century. Part II articulates several theoretical clarifications about natural law and the implications that follow. Among other topics, I draw a fundamental distinction between natural law as such versus social-historical natural law; I show that Vermuele’s portrayal of classical legal understandings of ius naturale is at odds with the consensus of Roman law scholars; I identify the origins of natural law thought in ancient myths about divine law; and I discuss the law aspect of natural law. Part III takes up the natural law theories of Aristotle, Cicero, and Aquinas. I show that in all three cases their theories reflected their background assumptions and existing relations of power, and all three made dubious arguments about what natural law requires, particularly with respect to slaves and women. Part IV addresses contemporary natural law theories. After explaining how modern science and the fact/value distinction undermined traditional natural law theory, I critically examine contemporary teleological and evolutionary theories of natural law, and Finnis’s philosophical argument for natural law. Neither holds up to scrutiny. The theoretical point I press is that without God, natural law as such is a fiction, although the social construction of natural law has genuine social consequences. The lesson of the essay is that claims about universally binding natural law have always reflected contestable religious, cultural, political, and legal positions that must be evaluated on their normative merits and social consequences.