Thanks for joining this episode of the No. 86 lecture series, where we discuss classical and modern Jurisprudence. Today’s episode features Joshua Kleinfeld, Professor of Law at Northwestern Pritzker School of Law. Professor Kleinfeld teaches and writes in legal and political philosophy; legislations and statutory interpretation; and criminal law and procedure. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. In this episode, I want to talk specifically about the Natural Law tradition. Is this necessarily a religious tradition? Is Natural Law the law handed down by God? Some people think that natural law is just equated with religiosity or religious law, God's law. What natural law really means philosophically is that you think there is a necessary connection between law and morality. I just couldn't make sense of my experience as a lawyer, my experience going to law school, being a law clerk, working for a firm, I couldn't make sense of what it is I was doing without thinking that there was some connection between law and morality that was informing my practice. So I was trying to make sense of my experience. I came through an effort to understand my own experience to natural law ideas, secular natural law ideas. On that note, I want to point out a stereotype about what natural law is, what natural law means. That is a gross error, an oversimplification that tends to get discussions of natural law off on the wrong track. So the stereotype is that what natural law means is God's law and it's something religious people believe so it's like an equation sign, like an equal sign between religiosity and natural law. What natural law means is that there's a code of conduct written by God that's in the sky; human law has to correspond to that universal code written in the sky. If it doesn't, it isn't law at all. It's not just bad law. It's non-law because it doesn't correspond to God's law. That stereotype is a major problem in trying to have a good discussion about natural law. Why? Two reasons. The first one is it grossly oversimplifies the tradition of Christian natural law, the religious tradition of natural law and the other is it totally overlooks the secular natural law tradition, which exists and which really matters. So the first prominent natural lawyer is Aristotle, but Aristotle was a pagan. He didn't believe that there was a personal God who is issuing the moral law. He lived hundreds of years before anybody thought that. Aristotle was a natural lawyer in that he thought there was a connection between morality and law and he was trying to explain that connection, but not because he had a metaphysical view about a code of conduct written in the sky. Then you look at the tradition and that followed. You think about the leading lights of the natural law tradition: Aquinas, Victoria, Grotius, Blackstone, John Locke; among contemporaries Finnis, Dworkin, Fuller. What you see as a mixture of some Christians. Although, I hasten to add that the Christians, even Aquinas, are by no means so simpleminded as to just say there is a code of conduct written by God in the sky and human law corresponds to it or it doesn't and it's not law at all. They did not think that way. But then, there's also people, particularly Fuller and Dworkin, who are like me. They're contemporary secular lawyers who are trying to make sense of their experience and think there needs to be a moral center of some kind. It might not be a code written in the sky but it's something that grounds our legal practices and is deeply-rooted in how law works. Here's my takeaways. If you're trying to understand natural law, you're trying to define it, think of it most simply as this proposition, that law and morality are necessarily connected. There's something about law, something intrinsic about law, something non-contingent that links it to justice or human welfare. Here's the further point. There are some Christians who have thought that for religious reasons, and there are some secular people who have thought that for non-religious reasons. If you're looking at the Christian tradition, it's a gross oversimplification to just think that they view all human law as either corresponding to God's law or not being law at all. That stereotype is still inaccurate even of them. Among the secular natural lawyers, that stereotype has no grounding at all. The secular natural lawyers are just thinking about something else. Now that we’ve talked a bit about what the Natural Law tradition isn’t, let’s talk about what it is. What does it mean for law to be natural? What is the purpose of such law? The version of this I find most compelling is Aristotle's. Let's go back to Aristotle's understanding of what law exists to do. Aristotle, when he was trying to understand the nature of law, he started from why human beings live in communities. He made the argument that it's human nature to band together in societies. First, for the purpose of survival, and then for the sake of human flourishing, as he put it, for the sake of living and then for the sake of living well. We organize in society, so that we can better achieve human well-being or flourishing or welfare. Justice is one part of human well-being and flourishing and welfare, but not the sole part. His understanding of law, and here's the fascinating move that is really the beginning of the natural law tradition. His fascinating move was to say that human beings organize in communities for the sake of human flourishing and welfare and law exists for a purpose. Law exists to serve the goals of human communities. Law exists to advance the cause of human welfare or flourishing or to order those communities in the direction of flourishing and justice. Perhaps that's the best way to phrase it, that law comes into being in order to organize communities in the direction of human flourishing and justice. Law comes with its end, with its purpose built-in. Its purpose derived from the very nature of human social organization. Its purpose is to direct the community in the direction of flourishing and well-being and justice. This is called Aristotle's teleological view of law. That word "teleological" might be unfamiliar, so let me explain it. Philosophers have long observed that some things in the world exist for the sake of an end. An obvious example is any artifact. I have a can opener. How did it come into being? Why did it come into being? To open cans. I have a house. Why does it exist? To give me shelter, to give me a place where I can safely live. I have a kitchen. Why does it exist? To enable me to cook food. I mean, a lot of artifacts that we create with our hands are made for a purpose. Likewise, Aristotle observed that a lot of human activities have the same "teleological nature". That is, why do we educate? Well, we educate so that we can, we bring into being this social enterprise, the whole structure that is education, so that we can raise the young to be intelligent and productive. Why do we engage in natural science? Experimental science? It's so that we can better understand nature and produce better technology. Many of our social activities serve some end. Just like our artifacts, our social activities serve some end. He had a teleological view of law. What makes Aristotle a natural lawyer? To the fact that he had a teleological view of law. Law is not just something posited by a power holder, a government with the power to enforce it. It's not just an edict from the government. It is something that exists for the end of promoting the flourishing of the community. He thought that you could have a lot of variation in law because there are variations and ideas about what will best serve the flourishing of the community. You could have things that partake of some of the features of law, but not others. For example, they could be purportedly designed to serve the interest of the community, but actually just designed to exploit one part of the community in the name of the other. But he thought that at some extreme, when this thing that purports to be law is totally disconnected from the end that it's supposed to be. Imagine a house. Imagine a house that we're modern architects and we're so modern that we don't care about giving shelter anymore. We do away with the whole walls thing. We do away with the whole roof thing. What we actually have is arranged pillars in an open sculpture of the house. One might very well look at that and say, "That's not a house anymore." At first, you were just doing really modern architecture, but when you got rid of the walls and the roof, it became a sculpture not a house. Think about modern music. Traditional music has harmony and melody and rhythm and is supposed to be beautiful. A lot of modern music dispenses with those things and it's supposed to be some sort of other organization of sound. But at some point, it might be so far afield from harmony and melody and rhythm and beauty that you say, "That isn't music anymore. That's some kind of conceptual art involving sound." Maybe it's not even involving sound anymore, and then you say, "well, that's just not music at all." You just totally lost the category. Aristotle looked at law in the same way. He thought law in the typical case is aiming at the ... is the tool by which we organize communities in the direction of their flourishing injustice. There could be a lot of variety consistent with that basic goal, and there can be attempts that fall short. But at some extreme, imagine someone comes to power, but they have no legitimacy whatsoever. They just rule at the end of a gun, and they just bully people into submission and they give certain orders, but the only basis for those orders is that they'll shoot you if you don't comply with it, Aristotle would say, "That isn't law, that's just violence." Like a gang takes over our neighborhood and the gunmen in the gang come to our doors and say, "Pay tribute, give us your money or we'll shoot you." Is that robbery or taxes? Aristotle, because of his teleological view of law, could say, "That's robbery, that's not taxes, because it has none of the features of law." It's not meant to serve the community's flourishing. It's not meant to serve justice. It's not part of the organization of the community and the direction of justice and flourishing. It doesn't come from a legitimate lawgiver. It doesn't follow any sort of the procedural norms that make law law. That's just force. The glory of Aristotle's teleological view of natural law is that he had the ability to think about what law is for and in thinking about what law is for, think about when things that purport to be law are actually just force and not really law. By the way, we hear this in ordinary conversation all the time. You heard people saying when very controversial cases are decided; when Bush v. Gore was decided, you could hear in the hallways of law schools around the country, "That's not law, that's just politics." Now, I'm not holding forth on whether that view is right about Bush v. Gore, but just notice the thought there, "That's not law, that's just politics." That's an Aristotelian thought. That's a thought that what law is… at the core of law are certain kinds of norms that have to do with the ends it's supposed to serve, and when you get too far away from those organizing ends or values, you have something that purports to be law, but isn't really. Likewise, Lon Fuller said that Nazi law wasn't really law at all, and that was because, as he argued, it had so much in common with just violence by the state. So much of what purported to be law was secret, was enforced by gangs, was just a form of power. He wouldn't concede that just the power of the state is law. His thought was that the organization of violence is law. His thought was law has to be geared in a certain direction and with certain kinds of procedural norms or it fails to be law altogether. Is all law natural? It seems like a lot of our legal statutes are pretty far removed from the big picture considerations that you are describing. Great question. The answer is no, not even for Aristotle, not for Aquinas, not for Finnis or Fuller or Dworkin, not for anybody in the natural law tradition. There have always been an appreciation that some law is just conventional and some law is natural. Sometimes there is some aspect of natural law that requires a convention to be realized. It may be that it is part of the natural order of things that we educate children. But the nature of that education, whether it's a modern American education or an ancient Spartan education, is not part of nature, it's part of our social community. It may be part of the nature of things that we claim things as our own, thus establishing property. But it's conventional how we structure our property laws, whether we think property is alienable or not and how we exchange and what our rights are with regard to it. There's always this intermingling of natural and conventional elements. It's never the case for anyone in the tradition that the entire legal system, every case, every statute is all part of what is given by nature. The closest anyone ever came to that thought is actually probably Blackstone. We think of Blackstone as the great organizer of English common law. He was that. He wrote books that gave definitive structure to the edifice that was English common law. There are various cases dispersed as they were that made English common law what it is. It was an enormous achievement just as a form of doctrinal organization. But he even had his eye on bigger game. Blackstone was a natural lawyer who thought that the process of reason applied to particular problems discerned over time, especially multiple minds contending with different problems in different ways over time, discerned a sort of order given by reason to society, and that was what he meant by natural law. He thought that the English common law had discovered natural law principles. In describing Tort law and nuisance, in describing contract law and promise or whatever else, he actually thought he was describing a universal law given by human reason everywhere. Color me quite skeptical of that view, but it makes his project more inspired than you might otherwise think it is. I mean, he thought that in describing what the common law had achieved, he was describing what human reason means as effectuated in the world. He was discovering the natural law through discovering the common law. As people contend with certain problems over time and many minds work over the way to resolve a particular kind of dispute that keeps recurring in society, it's reasonable to think just through the process of the pressure of time and experiment that you work your way to a sensible policy, and that sensible policy might well be sensible everywhere and might be sort of the best human reason can do with respect to a certain problem. There is another view, a critical legal studies view that says you don't work your way to, or should we call it reason justice over time, you just effectuate a power structure over time. You make sure what happens in all of those individual disputes is the haves prevail over the have-nots, and they get to embed their preferences in the form of law, which purports to be ... they see Blackstone very darkly, they see Blackstone as imagining or pretending that he's discerning what reason dictates to the world when he discerns property rights and tort rights and contract law and the like. What they think he's actually doing is discerning a power structure and calling it natural law, which is a very - and by the way in a fascinating way, Bentham also thought that. Bentham was no crit. He wasn't a critical legal studies person who thought that the social order was basically dictated by power relations. Bentham was a utilitarian. He was the original utilitarian, and he thought what law is supposed to do is make things better. He thought what the common law often did was embark on foolish policies that often disserve the poor and even more often just disserved human welfare in general, and what we need to do is overcome its association with reason itself, with justice itself, with God, with natural law. We needed to push all of that away, so we could see it as the bare human creation that it is and the deeply flawed human creation that it is, so that we can overcome it and write rational codes. In fact, I was once doing research in the archives, but I came across a letter that Jeremy Bentham wrote then-president of the United States, James Madison. In the letter, Bentham says, "The common law that you have inherited from England, ill befits an enlightenment nation founded as a Democratic Republic. You should slough off the inheritance, the bad inheritance of the common law, and instead embrace rational codes on every legal subject, and I hereby offer me, Jeremy Bentham, to write those codes for the new country of the United States." James Madison responded. It took him a few years. He responded after he had finished being president. He essentially said, "While I share some of your misgivings about common law and admiration for rational codes, I do not think it would be in the interest of this nation to have you write our legal codes for us." 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!