This review was originally published on June 27, 2022 on my personal blog. A shorted version of it was also published in the Florida Bar Journal’s Sept/Oct 2022 issue.
Review of Stuart Banner, The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped, Oxford University Press, 2021.
“We hold these truths to be self evident…” is not how one would begin an argument in a modern courtroom–at least, not if you intended to actually win your argument. Nevertheless, thus begins the Declaration of Independence, a legal document not out of step with its day, when legal argument could appeal to the “laws of Nature and Nature’s God” and its advocates not be laughed out to the courthouse steps. Indeed, such an argument could be vindicated in that courthouse— not just on the field at Yorktown. What changed? Stuart Banner’s recent legal history The Decline of Natural Law sets out to answer that question.
Banner’s history begins in the era before the change, to describe to the modern reader what a legal system based on natural law looked like in practice. The early modern common lawyer’s lodestar was the avoidance of arbitrariness in law. This was the goal, per many of its most famous jurists, of the common law system—and it was a common law system with its grounding in natural law principals. Common law judges were not tasked with interpreting or making the law, as we would commonly describe their job today—but rather, they were tasked with finding the law. This law was found in the customs and traditions of the British people, but it was also found in reasoning from principals of the law of nature. An amalgamation of these two ideas occurred when early American judges would overturn well-established elements of the common law that did not work in the American context. When either the nature of the American continent or habits of the American people did not support a traditional British legal doctrine, colonial judges could overturn it as being contrary to reason and the natural law.
The foundations of natural law jurisprudence would begin to show cracks with that second essential document of the United States’ founding—our Constitution. While Banner points to the Ninth Amendment as example of how the Framers did not intend to obviate natural law, the very act of creating a written constitution began to undermine the idea of appealing to unwritten law. With an unwritten constitution, the only constraint on Parliament’s authority to act was natural law. But debates immediately began about whether unwritten law could constrain the legislative power in a system with a written constitution. Natural law moved from the very foundation of the legal system to a mere component of it.
After the founding generation, the change from a legal system with natural law to one without occurred gradually but distinctly throughout the 1800s. Banner locates the change in a number of concepts, including the lessened role of Christianity as foundational to the common law. While undoubtedly Christianity’s influence on the United States continued and continues to be prominent, it seems like the lack of institutional Christianity may be responsible for the other change Banner identifies: the inability of natural law theorists to come to consistant conclusions on things like slavery, women’s rights, and the death penalty. On all of these issues, attorneys and judges using freewheeling concepts of natural law could come to different and contrary conclusions, and usages of natural law began to appear as the very thing they were intended not to be—arbitrary.
The most fascinating part of this change, however, is the role that legal publishing played. The United States experienced an explosion of new case reporters in the second half of the nineteenth century. Previously, an opinion, if written at all, was only evidence of what the law was, but the law itself existed apart from the written word. After the proliferation of legal publishing, it became more common to say—as we do today—that the opinion is the law. When the spread of legal publishing began, it was common to disparage a lawyer that quoted from cases rather than appealing to general principals as a “case lawyer”—one lacking in legal and moral intelligence. By the early twentieth century, everyone was a case lawyer. There was no other way.
The disappearance of natural law, however, left a void. What are we to ground law in if not nature and nature’s God? Some theorists, like Justice Holmes, would peer into the void and say that void was all there was—that all law was essentially arbitrary and upheld by the will of the powerful. Other theorists looked back to history for the grounding of the common law, especially the Germanic past of the Anglo-Saxons. Some theorists appropriated the phrase “natural law” for a backward looking form of law associated mainly with conservative Catholic intellectuals. Perhaps the most durable replacement, however, has been the line of substantive due process cases. Banner points to Justice Kennedy’s opinion in Obergefell as a primary example of the principal-based moral reasoning that a lawyer using natural law based arguments would have been accustomed to. So it is that natural law still, in some form exists. But certainly, as recent rulings would suggest, not on as sturdy a foundation as it once did—always subject to the check and balance of that thing seems to have done it in: written law.
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