NARRATOR: Thanks for joining this episode of the No. 86 lecture series, where we discuss classical and modern Jurisprudence. Today’s episode features Eric Claeys, Professor of Law at Antonin Scalia Law School at George Mason University. In his scholarship, he studies theories of natural law and natural rights and their implications in property law. Professor Claeys’s main teaching interests include Property, Torts, Jurisprudence, and Intellectual Property. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Professor Claeys, in the last episode, you talked about Ronald Dworkin who challenged Positivism and its premises. What other prominent theorists resist Positivism? How do they compare to Dworkin’s project? ERIC CLAEYS: Positivists dominate in scholarly discussions about law and in the philosophy of law. There are a couple exceptions and Dworkin is one, but another is Lon Fuller. Fuller was a contemporary of Hart. He was a professor at Harvard, a professor of contract law and professor of jurisprudence. And Fuller was writing, he was active in World War II, in the forties and in the fifties, and like a lot of other lawyers and legal philosophers, he was very troubled by Nazi Germany, and worried that the fact that the laws in Nazi Germany were posited something was not satisfying about the philosophy of law at the time. It couldn't explain adequately why, like there was something missing or something defective or deficient about laws in the Nazi system. And that made Fuller sympathetic to what might have been called before then, traditional, natural law views. When Hart published his main works in the late fifties and the early sixties, Fuller took them very seriously, but Fuller found them unsatisfying because Fuller thought that Hart's internal point of view, positivist account of law, didn't give enough of an account of the ways in which law was related to justice. Fuller offered a critique of Hart, and he tried to identify ways in which the internal point of view didn't give enough information about law's connection to Justice. Fuller was not like anywhere close to being a Thomist natural lawyer in that he thought that law had a connection to justice; he thought that connection was manifested clearly in procedural norms that are in the law. Fuller offered an account of law and its connection to justice, that would explain a lot why laws that did things that seemed procedurally unfair were problematic as laws were unjust in law, but he resisted the idea that laws could be judged on their substance. In his account of law, if this legislature enacted a law that made it a crime to do something that happened five years in the past, and then let people be put in the jail for that; Fuller would say that law, it's clearly unjust and it's dubious as law because it's penalizing people for conduct that was lawful when they made it, and they had no reason to expect that it would be made criminal. But because that law violated basic expectations about procedural regularity, it's, dubious as law, both morally and as a positive matter. But Fuller was not, willing to say that, laws that were procedurally regular, but unfair to particular groups; he was reluctant to say that they were any less instances of law. Fuller was an American law professor. He taught for a long time at Harvard. He was a leading scholar in contracts. He became a prominent scholar in jurisprudence. He got a lot of respect for offering a natural law or a non positivist alternative to Hart's concept of law project. Fuller's main work was the Morality of Law, and the title that was a response to the concept of law by Hart. For Hart, when Hart's book was called The Concept of Law, Hart was saying you can conceive of whether something is a law without saying anything about whether it's a good or a bad instance of law. Fuller, like natural lawyers, like all natural lawyers, was saying: no, there's an interplay between law and morality. You can never quite get all the moral questions out of law. But Fuller didn't go as far as thomistic natural law thinkers would, in that for Fuller, the questions about justice that seeped into law are more about procedural issues than they were about whether particular laws were just ,and what they required people to do. Dworkin and Fuller stand as two examples of scholars who reject the conventional wisdom, or the consensus, that law can be studied adequately using positivist theories. Dworkin's project and Fuller's projects are really different; both of them are serious alternatives to Hartian positivism. PUBLIUS: Has Natural Law theory had a resurgence in response to the Positivists? What does modern Natural Law jurisprudence look like? Does it have to be religious? ERIC CLAEYS: When people talk about secular natural law and classical natural law, they're assuming some breakdown like this. In Thomas and other traditional natural law thinkers, there were two currents of natural law that ran together in the same direction. There was natural law understood as a set of directives in theology, and natural law as a set of principles of right reason. And these principles of right reason were accessible by people no matter what Revelation says. But those two currents are running in the same direction. Most principles of classical natural law could be understood solely as principles of philosophy, without backing from theology. But all of the classical natural law thinkers assumed that theology and philosophy were running in the same direction. Secular natural law is inquiry about morality, inquiry about law, inquiry about other parts of human social life. That focus is entirely in philosophy, without support from theology. And secular natural law, it's kind of taken for granted. It's inquiry in scholarship that's being done in the 20th century, long after positive, analytical philosophy has kind of taken a major role to play in scholarship about law and morality. H.L.A. Hart set the stage for most analytical philosophy coming after about law. And lots of the positivists have debates about what the most satisfying, positive account is. And Dworkin offers one alternative to positivism, Fuller offers another. And that discussion left out the kinds of issues that Thomas and Scholastics and other classical natural lawyers would've found important. PUBLIUS: Has Scholastic Natural Law theory made a comeback? How does it fit into the modern academic discourse? ERIC CLAEYS: The person who has done more than anybody else to make thomism respectable again in contemporary academics' discussion of jurisprudence is John Finnis. Finnis in his political theory, and his meta-ethics, has a lot of affinities with Thomas, though I think he's different from Thomas. In his account of law, he relies very heavily on Thomas's account of law, and his account of law is quite similar. And Finnis's great contribution was to start where Hart had started, and saying even if you start where Hart starts, and even if you start where other positivists start, you end up getting entangled in questions about law and morality, like the questions that a thomistic natural lawyer would think are the important questions. Finnis is a natural lawyer. Finnis is associated with a philosophical approach called the new natural law, and there's got to be an old natural law, and the old natural law would probably be classical or traditional thomist principles. And so in traditional thomism, it's taken for granted that a human is a being with a telos, and you talk about this telos in terms of an end that's rationally knowable, and that then gives information about what it is that people are and what they aspire to be. The idea of being having a telos or an end crams together, fuses together observations about what a thing is and what it ought to be. Things that are teleological; to know what they are, you have to know what they're built in ends are, and so to know what they are you have to know what they ought to be when in the best instances of what they can be. The New Natural Law Project respects and keeps separate the is and the ought; the new natural lawyers hold that there are certain knowable human goods, and people act on the basis of those, but these goods aren't tied to teleology the way that a classical Thomist would think. And so on a lot of questions in practice, new natural lawyers are side to side, or in lockstep with classical natural lawyers, but the meta ethics by which each gets to those positions differ very much. Finnis thought that Hart had made huge contributions to the study of jurisprudence. Finnis gave great credit to Hart for saying that a good definition of a social object needs to use a central case method, not a one size fits all method. A good definition of a hammer has to account for an ornamental hammer, not just the hammer that pounds nails. Finnis also gave great credit to Hart for Hart's insights about the internal point of view. And again, Hart had criticized Austin and other early positivists because their positivist accounts couldn't differentiate or distinguish between the order that a gunman or a gang gives a subject, and the order that a government gives to the subject to be a good subject. And Hart thought that distinction was really important. And any positivist account of law that missed the way in which a citizen knows that an order is an order of the government that you're just supposed to follow was an unsatisfying account. Finnis took both of those insights and said: if you'd agree on both of those, you're assuming basic premises that you're not admitting. And the premises are: you're looking at the observer the way a well socialized, moral, ethical person would. And Finnis then asked the question of Hart and Hartians: why is it that you're looking at the legal system from the perspective of the person who's already a law abiding citizen, why, to say: I know that this order is an order coming from the government. Finnis took that as a huge concession. Finnis is saying Hart is trying to study a legal system from the perspective of a disinterested sociologist, but if he were to do that, he ought to give equal weight to the view of an anarchist in this society, the view of a crazy person in this society, the view of a really mature and virtuous person, and the view of somebody who's kind of a slouch and a cheat. And Finnis believed that Hart and other people like Hart were cherry picking. They were favoring the points of views of well socialized citizens, who get that there's a big difference between following the order of government and following the order of a gang. And once you can see that the point of view of the well socialized citizen counts more and deserves to be counted more than the point of view of an anarchist or a crazy person or a seedy citizen, than one's doing a little bit of natural law in the background. And assuming that there's a theory that the perspectives that count are the perspectives that are consistent with a good, just political community; and so Finnis then said: okay, I agree with the positivists that there's a lot of worth in studying what law is, but one needs to conduct a parallel project to understand the conditions for a just political order, and the constraints that a just political order puts on the kinds of opinions that one can respectfully have about laws as a positive construct. And so then in his book, Natural Law and Natural Rights, Finnis offers an account of law, and he offers an account of law in which law is a positive institution that's meant to coordinate behavior for the common good. But he offers that account at the end of eight or nine chapters of working out what a just community looks like. And so for Finnis then, he has to conduct two projects in Natural Law and Natural Rights. The meaty middle of his book is natural law political theory, explaining what makes a community a just community. And once one knows that, then one can go back and study the kinds of questions that Hartian positivists are interested in answering. In the last few chapters of Natural Law and Natural Rights, Finnis goes back and studies what law is, and what unjust law is and what its problems are. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series on Jurisprudence. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! TRANSCRIPT - VERBATIM FOR YOUTUBE Thanks for joining this episode of the No. 86 lecture series, where we discuss classical and modern Jurisprudence. Today’s episode features Eric Claeys, Professor of Law at Antonin Scalia Law School at George Mason University. In his scholarship, he studies theories of natural law and natural rights and their implications in property law. Professor Claeys’s main teaching interests include Property, Torts, Jurisprudence, and Intellectual Property. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. Professor Claeys, in the last episode, you talked about Ronald Dworkin who challenged Positivism and its premises. What other prominent theorists resist Positivism? How do they compare to Dworkin’s project? Positivists dominate in scholarly discussions about law and in the philosophy of law. There are a couple exceptions and Dworkin is one, but another is Lon Fuller. Fuller was a contemporary of Hart. He was a professor at Harvard, a professor of contract law and professor of jurisprudence. And Fuller was writing, he was active in World War II, in the forties and in the fifties, and like a lot of other lawyers and legal philosophers, he was very troubled by Nazi Germany, and worried that the fact that the laws in Nazi Germany were posited something was not satisfying about the philosophy of law at the time. It couldn't explain adequately why, like there was something missing or something defective or deficient about laws in the Nazi system. And that made Fuller sympathetic to what might have been called before then, traditional, natural law views. When Hart published his main works in the late fifties and the early sixties, Fuller took them very seriously, but Fuller found them unsatisfying because Fuller thought that Hart's internal point of view, positivist account of law, didn't give enough of an account of the ways in which law was related to justice. Fuller offered a critique of Hart, and he tried to identify ways in which the internal point of view didn't give enough information about law's connection to Justice. Fuller was not like anywhere close to being a Thomist natural lawyer in that he thought that law had a connection to justice; he thought that connection was manifested clearly in procedural norms that are in the law. Fuller offered an account of law and its connection to justice, that would explain a lot why laws that did things that seemed procedurally unfair were problematic as laws were unjust in law, but he resisted the idea that laws could be judged on their substance. In his account of law, if this legislature enacted a law that made it a crime to do something that happened five years in the past, and then let people be put in the jail for that; Fuller would say that law, it's clearly unjust and it's dubious as law because it's penalizing people for conduct that was lawful when they made it, and they had no reason to expect that it would be made criminal. But because that law violated basic expectations about procedural regularity, it's, dubious as law, both morally and as a positive matter. But Fuller was not, willing to say that, laws that were procedurally regular, but unfair to particular groups; he was reluctant to say that they were any less instances of law. Fuller was an American law professor. He taught for a long time at Harvard. He was a leading scholar in contracts. He became a prominent scholar in jurisprudence. He got a lot of respect for offering a natural law or a non positivist alternative to Hart's concept of law project. Fuller's main work was the Morality of Law, and the title that was a response to the concept of law by Hart. For Hart, when Hart's book was called The Concept of Law, Hart was saying you can conceive of whether something is a law without saying anything about whether it's a good or a bad instance of law. Fuller, like natural lawyers, like all natural lawyers, was saying: no, there's an interplay between law and morality. You can never quite get all the moral questions out of law. But Fuller didn't go as far as thomistic natural law thinkers would, in that for Fuller, the questions about justice that seeped into law are more about procedural issues than they were about whether particular laws were just ,and what they required people to do. Dworkin and Fuller stand as two examples of scholars who reject the conventional wisdom, or the consensus, that law can be studied adequately using positivist theories. Dworkin's project and Fuller's projects are really different; both of them are serious alternatives to Hartian positivism. Has Natural Law theory had a resurgence in response to the Positivists? What does modern Natural Law jurisprudence look like? Does it have to be religious? When people talk about secular natural law and classical natural law, they're assuming some breakdown like this. In Thomas and other traditional natural law thinkers, there were two currents of natural law that ran together in the same direction. There was natural law understood as a set of directives in theology, and natural law as a set of principles of right reason. And these principles of right reason were accessible by people no matter what Revelation says. But those two currents are running in the same direction. Most principles of classical natural law could be understood solely as principles of philosophy, without backing from theology. But all of the classical natural law thinkers assumed that theology and philosophy were running in the same direction. Secular natural law is inquiry about morality, inquiry about law, inquiry about other parts of human social life. That focus is entirely in philosophy, without support from theology. And secular natural law, it's kind of taken for granted. It's inquiry in scholarship that's being done in the 20th century, long after positive, analytical philosophy has kind of taken a major role to play in scholarship about law and morality. H.L.A. Hart set the stage for most analytical philosophy coming after about law. And lots of the positivists have debates about what the most satisfying, positive account is. And Dworkin offers one alternative to positivism, Fuller offers another. And that discussion left out the kinds of issues that Thomas and Scholastics and other classical natural lawyers would've found important. Has Scholastic Natural Law theory made a comeback? How does it fit into the modern academic discourse? The person who has done more than anybody else to make thomism respectable again in contemporary academics' discussion of jurisprudence is John Finnis. Finnis in his political theory, and his meta-ethics, has a lot of affinities with Thomas, though I think he's different from Thomas. In his account of law, he relies very heavily on Thomas's account of law, and his account of law is quite similar. And Finnis's great contribution was to start where Hart had started, and saying even if you start where Hart starts, and even if you start where other positivists start, you end up getting entangled in questions about law and morality, like the questions that a thomistic natural lawyer would think are the important questions. Finnis is a natural lawyer. Finnis is associated with a philosophical approach called the new natural law, and there's got to be an old natural law, and the old natural law would probably be classical or traditional thomist principles. And so in traditional thomism, it's taken for granted that a human is a being with a telos, and you talk about this telos in terms of an end that's rationally knowable, and that then gives information about what it is that people are and what they aspire to be. The idea of being having a telos or an end crams together, fuses together observations about what a thing is and what it ought to be. Things that are teleological; to know what they are, you have to know what they're built in ends are, and so to know what they are you have to know what they ought to be when in the best instances of what they can be. The New Natural Law Project respects and keeps separate the is and the ought; the new natural lawyers hold that there are certain knowable human goods, and people act on the basis of those, but these goods aren't tied to teleology the way that a classical Thomist would think. And so on a lot of questions in practice, new natural lawyers are side to side, or in lockstep with classical natural lawyers, but the meta ethics by which each gets to those positions differ very much. Finnis thought that Hart had made huge contributions to the study of jurisprudence. Finnis gave great credit to Hart for saying that a good definition of a social object needs to use a central case method, not a one size fits all method. A good definition of a hammer has to account for an ornamental hammer, not just the hammer that pounds nails. Finnis also gave great credit to Hart for Hart's insights about the internal point of view. And again, Hart had criticized Austin and other early positivists because their positivist accounts couldn't differentiate or distinguish between the order that a gunman or a gang gives a subject, and the order that a government gives to the subject to be a good subject. And Hart thought that distinction was really important. And any positivist account of law that missed the way in which a citizen knows that an order is an order of the government that you're just supposed to follow was an unsatisfying account. Finnis took both of those insights and said: if you'd agree on both of those, you're assuming basic premises that you're not admitting. And the premises are: you're looking at the observer the way a well socialized, moral, ethical person would. And Finnis then asked the question of Hart and Hartians: why is it that you're looking at the legal system from the perspective of the person who's already a law abiding citizen, why, to say: I know that this order is an order coming from the government. Finnis took that as a huge concession. Finnis is saying Hart is trying to study a legal system from the perspective of a disinterested sociologist, but if he were to do that, he ought to give equal weight to the view of an anarchist in this society, the view of a crazy person in this society, the view of a really mature and virtuous person, and the view of somebody who's kind of a slouch and a cheat. And Finnis believed that Hart and other people like Hart were cherry picking. They were favoring the points of views of well socialized citizens, who get that there's a big difference between following the order of government and following the order of a gang. And once you can see that the point of view of the well socialized citizen counts more and deserves to be counted more than the point of view of an anarchist or a crazy person or a seedy citizen, than one's doing a little bit of natural law in the background. And assuming that there's a theory that the perspectives that count are the perspectives that are consistent with a good, just political community; and so Finnis then said: okay, I agree with the positivists that there's a lot of worth in studying what law is, but one needs to conduct a parallel project to understand the conditions for a just political order, and the constraints that a just political order puts on the kinds of opinions that one can respectfully have about laws as a positive construct. And so then in his book, Natural Law and Natural Rights, Finnis offers an account of law, and he offers an account of law in which law is a positive institution that's meant to coordinate behavior for the common good. But he offers that account at the end of eight or nine chapters of working out what a just community looks like. And so for Finnis then, he has to conduct two projects in Natural Law and Natural Rights. The meaty middle of his book is natural law political theory, explaining what makes a community a just community. And once one knows that, then one can go back and study the kinds of questions that Hartian positivists are interested in answering. In the last few chapters of Natural Law and Natural Rights, Finnis goes back and studies what law is, and what unjust law is and what its problems are. Thank you for listening to this episode of the No. 86 Lecture series on Jurisprudence. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!