Thanks for joining this episode of the No. 86 lecture series, where we discuss classical and modern Jurisprudence. Today’s episode features Lee J. Strang, the John W. Stoepler Professor of Law and Values at University of Toledo College of Law. Professor Strang writes and teaches about Originalism, Constitutional Law, Property, and religion and the First Amendment. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. How would you explain jurisprudence to a student, or anyone else, who might be interested in learning more about it? If a person was looking to learn more about jurisprudence I think the best way to think about it is in terms of what is the fundamental question that jurisprudence is trying to answer? The fundamental question that jurisprudence is trying to answer is what is law, what are its characteristics, what's its role in the life of an individual or the life of a human community? And that question has been with us in the West since the beginning of philosophical reflection on humanity. So starting with Plato you have a number of the dialogues written by Plato, so Plato's Republic, the Statesman is a more mature statement from Plato about the role of law. In fact, in the Statesman one of my favorite quotes about law is articulated by Plato, which is that law is like a stubborn stupid old man. And his reference was that by that point in Plato's life he had lived a long life, including some errands where he tried to implement some of his earlier views and he became arguably disillusioned with those earlier views. And by that point later in his life he came to see that law is like a stubborn old man but it has some of the virtues of a stubborn old man, which is it's stable, it's clear, it's reliable. And that may be the best that we can hope for in our human circumstances. One of Plato's students, of course, was Aristotle. Aristotle carried on some of Plato's ideas. Identified other ways of approaching the question ... The nature of humanity and the nature of law. Aristotle actually spent less time talking about law in particular and spent more time talking about human beings as individuals, how we should live, and communities of human beings and how we should live. And from that later thinkers have drawn on those resources from Aristotle. But Aristotle continued the thought about how human beings should live and law was a part of that but it tended to be a subsidiary part of that. The Roman Empire came to dominate the Mediterranean and the ancient world. And the Roman civilization had a number of accomplishments, architectural accomplishments, military accomplishments, but law was actually one of the Roman Empire, the Roman civilization's greatest accomplishments. Roman law itself is a tremendous subject. And what you see over the centuries is starting off with the Twelve Tables, which was the historic law of the republic. And continuing, at least rhetorically and symbolically, to pay homage to the Twelve Tables Roman law developed from the law governing a small tribe along the Tiber in Italy to this world striding empire that was flourishing. And Roman law culminated under the emperor Justinian's reign with the Corpus Juris Civilis, which is the law of the Roman civilization. And it was viewed by many, up through the 19th century, as the greatest legal achievement by humanity, by a civilized community. And Justinian's law took all the different various aspects of law, discreet law, giving moments in Roman history and tried to systematize them. It actually didn't spend a lot of time thinking about the deeper questions of what law is. There are inferences of it, there are hints of what the Roman legal system thought of law. But the Roman legal system, like Roman's, generally was a relatively practical enterprise. Not that there weren't people in the Roman civilization, like Saint Augustine, like Cicero, who dealt to some degree with the role of law, but it was relatively submerged under the practical imperatives of ruling the empire. The Western Empire collapsed and so you had a slow decline, and then ultimately revival, in the early and then high Middle Ages. And one of the aspects of that revival was a reacquisition of Roman law and then now coupled with two new phenomenon. One new phenomenon was this religion of Christianity. How did Roman law interact with Christianity? But in addition to that you had an ecclesiastical institution that had been creating its own laws on an ad hoc basis and what did those laws mean? And how did they relate to the civil law? And into that context Thomas Aquinas, and other scholastics in the 13th and 14th centuries, came to try and find a way to create an internally coherent, and rationally attractive, way of looking at law. Looking at law theologically, looking at law philosophically, and looking at law sociologically and how it actually operates in real human communities. The Thomistic tradition continued to be taught in most of the Western world. During the Reformation there were certain religious divisions but much of the same thinking continued in Northern and Southern Europe. There was a revival of Thomistic thought in the 16th century in Spain, centered in the University of Salamanca with figures like Francisco Suárez. Not that they were mere mimickers of Thomas Aquinas, that they often made their own innovations. Many people argued that they made their own errors. And there were other natural law thinkers in Northern Europe who had their own followings, continuing to today. Hugo Grotius would be one example who is generally credited to be the founder of international law or modern international law. Pufendorf is another figure. Richard Hooker was another figure. What about modern jurisprudence scholarship? So I would say the next large publicly accessible expression of the natural law tradition, and deep thought about jurisprudence, was in the early to mid 20th century in a movement called neo-Thomism or neo-scholasticism. The most prominent example of that was Jacques Maritain, a person who was from France, emigrated to the United States during the Second World War. And he had a large number of books that he published. He was very influential. A public intellectual, and one that was read by lawyers and political leaders alike. He had tremendous practical impact. He was one of the authors of the UN Declaration of Human Rights, which if you were to read it today you can see an impact of his particular brand of Thomism. In the mid to late 20th century, in the Anglo-American world, legal positivism became the by far dominant strain of looking at jurisprudence. H. L. A. Hart in his justly famous The Concept of Law, written during his long tenure at Oxford University, was a statement of legal positivism that seemed to overcome some of the earlier inadequacies of his predecessors John Austin and Jeremy Bentham; while at the same time providing an accurate description of law. And one that, at the same time, seemed to some degree, or maybe in a large degree, account of law's normativity. The legal positive tradition continues in the Anglo-American world today. There are prominent proponents, especially in the American and English legal academies. Scott Shapiro has a recent book called Legality, which was maybe the most prominent recent statement of the legal positivist position. In the natural law tradition there's been a tremendous resurgence since the 1980s, John Finnis being the leader of that. In the natural law world there are at least two competing camps of what it means to be within the natural law tradition. One camp either is given the name, or has accepted the name, of the New Natural Law. And in some scholars' views that's a negative term of opprobrium and for others it's just a statement about a revivification of the natural law tradition in a way that's faithful to, but still different from, Thomas Aquinas' position. John Finnis is the most prominent example. Robert P. George and there are many other scholars as well. The last thing I would say would be that if a person's interested in jurisprudence one of the places that I think is a great introductory resource, and then a great source of additional places, and scholars, and books to go and read, is the Stanford Encyclopedia of Philosophy. Look at the jurisprudence entry, look at the entry on natural law and natural law ethics. There are two separate entries. And they're written by the leaders in their field and they give, I think, fair, accurate summaries of those different bodies of thought. Then give you resources and citations of where to go to learn more. You work in the Natural Law tradition of Jurisprudence. Is that relevant anywhere outside of the classroom? The influence of the classical natural law tradition has ebbed and waned in the West, as proponents and the attractiveness, or perceived attractiveness, of the natural law tradition has ebbed and waned in response to a variety of sociological, religious, and economic, and political conditions over time. One of the ways in which the natural law tradition continues to deeply influence the American legal system, both in the constitutional law but then I think as well in the private law sector, is the formative influences on the American common law system occurred in the United Kingdom and occurred during time periods in which the natural law tradition was more or less flourishing. And you see evidence of that continuing today in the legal doctrines that you learn in law school. One of the examples that I see, because I teach property law, is the Doctrine of Necessity. So when you think about American law one of the things that you think about American property law is that Americans love to protect private property. It's a core commitment of our legal system. We protect it in lots of ways and we protect it very robustly. But one of the perceived exceptions anyway to that is the Doctrine of Necessity. Necessity is the idea that there are circumstances in which a person, because of the extreme need that they're under, maybe it's for food, maybe it's for shelter, is privileged under the law to utilize another person's private property. And normally we would say that that's stealing but in the law that's not stealing, it's actually privilege. And it's hard to justify the Doctrine of Necessity, which is a widespread doctrine accepted by all states. It's hard to justify the Doctrine of Necessity under a non-natural law perspective on the nature of law. And, in fact, Thomas Aquinas in the Summa Theologica directly addresses, and extrapolates, and justifies the Doctrine of Necessity. And there are even some of the cases in the United States dealing with the Doctrine of Necessity that obliquely reference Thomas Aquinas' justification for it. So the Doctrine of Necessity is deeply rooted in the American common law. It came out of a period when the English common law was influenced by the natural law tradition. And it continues to be influenced today. I think the best examples describing this phenomenon, of the continuing influence of the natural law tradition, are books by James Gordley. James Gordley is a scholar at Tulane University. He has one book describing private law, so the book's title is Private Law, so it talks about torts and property, et cetera. And his claim is that there's a common origin and a common perspective that best explains the private law that we in the United States have. Then he also has another book, which goes into one area of private law in more detail, The Origin of Modern Contract Doctrine. And his claim in that second book is that the modern contract doctrine that is in the United States today was largely influenced by the neo-scholastics in Spain in the 16th century. And he has a genealogical explanation for that influence. How does the average lawyer perceive the Natural Law tradition today? Is it used in interpretation or arguments about positive law? It's often perceived that natural law today is inherently religiously oriented and therefore it's a reason for people who aren't theologically committed to not follow natural law. And I don't think that's the best reading of the natural law tradition. The best reading of the natural law tradition is that the evidence for the propositions upon which natural lawyers rely to describe the natural law norms, their derivation and our understanding of them, all of them are agnostic about the existence of God. It is the case that natural lawyers often believe that if one is theologically committed one has an even more clearer understanding of the natural law tradition but it's not a necessary component to the natural law tradition. In the American legal system today there's not a lot of evidence of direct input of the natural law tradition into the operation of the legal system. That you don't have judges who appeal directly to natural law norms. You don't have legislatures who appeal directly to the natural law tradition or Thomas Aquinas. And the same thing with the Executive Branch. But that being said I think that's fully consistent with, and in fact required by, the natural law tradition. That the natural law tradition says that the goal of a political community is to provide the conditions for the members of that community to live full happy lives. And that the legal system is an important mechanism for that and that the legal system, over time, becomes more and more thickly populated with positive law norms that describe how the members of that community should live together in peace and harmony. So over time there's less and less need to directly appeal to propositions of, let's say, distributive justice because you have statutes, you have cases, you have executive orders that implement the legal system more and more fully; and more and more fully instantiate or build out the legal system; and the laws themselves do the work of implementing distributive justice, for example. Jurisprudence isn’t offered at every law school. And even when it is offered, it might be only once every few years. Why would students be interested in taking this course? If a class isn’t offered at their school, what are some things that they could read on their own or in a group? So what might you learn from a jurisprudence class? And, in fact, what might you learn that will make you a better lawyer? I think there are two basic reasons to take a jurisprudence class. One is that you're going to have greater insight into the American legal system and the phenomenon of law generally. And if one of the basic human goods is knowledge then you're going to be pursuing that good and you'll be made better for having done it. There are lots of aspects, lots of insights, that in reading about jurisprudence one learns more about the legal system; one learns more about judges; one learns more about oneself. One of the examples would be in much of your law school experience you're reading cases, you're dissecting cases, you're reading statutes and you're mastering some bodies of law but does it all fit together? Does it all have a point? Does it all have a purpose or maybe it's just an exercise in power, as many people argue. Jurisprudence allows you the opportunity, in the comfort of a classroom with somebody who's knowledgeable about it, to think through that question and to arrive at a conclusion for yourself about what is the point of our legal system, if there is a point, and what that point is? I think the second reason to study jurisprudence is that it will actually make you a better lawyer. By knowing that different judges have different jurisprudence perspectives and knowing how to articulate arguments that are accessible to, persuasive to, those different jurisprudential perspectives then that's going to make one a better advocate for one's clients. 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!