Anyone interested in debates over the place of the natural law and the appropriate role of the judge in a legal system, will have invariably come across a version of the following exchange: a prominent legal conservative figure is asked during an interview or post-lecture Q & A session what they think a judge should do if faced with rendering judgment pursuant to an unjust law, or even one contrary to natural law?
In response, the lawyer or judge will respond, usually in a tone of determination mingled with a tinge of regret that:
“A judge must apply what the law is, not what they think it ought to be. If a judge can’t handle that task, or if they think the law is flatly unjust, they ought to resign and follow their conscience. Furthermore, if a judge is always issuing judgments they morally agree with, then I would wager they are not a very good judge.”
As with many clichés, there is a good dose of wisdom latent within this type of response. The job of the judge in the classical natural law tradition is indeed to render justice according to law to resolve the dispute before them. At the heart of the judicial function is the faithful application of already existing law, including law posited by the community’s legitimate authority. Adhering to this function will certainly rule out judicial legislation for the community and usurpation of the lawmaker’s authority.
It is also a core precept of the classical tradition that a judge ought not to render a judgment that will clash with natural or divine law. Consider, for instance, the admonition of Beaumanior in his influential Book of the Customs and Usages of Beauvaisians, where the author notes it was well accepted in 13th-century French legal thought and practice that the ‘judge must leave the service of his lord rather than carry out an order that would violate his duty to God’. These sentiments find expression in many similar great texts of the ius commune and are truisms of the classical tradition. They are right and just.
But I think the contemporary deployment of these venerable precepts can sometimes obscure thoughtful engagement with other pressing questions about the judicial role. Like, for instance, whether there are features of a judge’s legal methodology that make it more likely they’ll render judgments that let posited law clash with principles of natural law.
In the great texts of the classical tradition, and in the work-a-day practices of classical jurists in Europe, England, and the United States, interpretative principles and maxims of the ius commune were designed precisely to prevent the appalling vista of positive law and natural law clashing from coming about. Posited law, or lex, was understood as a determination by the lawmaker that tries to make more concrete the often open-ended demands of the natural law and right reason in the context of the time, place, and socio-economic circumstances of the community.
Juristic interpretation of lex took for its starting point the axiom that the whole point of lex is to concretize the demands of reason for the good of the community. The object of legal interpretation in the ius commune tradition was the discernment of the intent of the lawmakers and the choices they enacted into law in and through legal text. But this search for the lawmaker’s intent was filtered through a rich web of legal presumptions, like the idea the lawmaker intended to act rationally and not absurdly, reasonably and not viciously, consistent with basic natural law precepts also considered part of the law, and for public and not private facing ends.
In contrast, it seems to me that some contemporary jurists make a virtue out of adopting interpretative methods that lack these kinds of presumptions. Some stripes of textualism and originalism take the sole object of the interpretative inquiry to be the communicative meaning of the posited text in the immediate context of its enactment (with the precise content of “context” expanding and contracting like an accordion depending upon the jurist in question - ranging from the very thin notion that only the written word is law, to the richer idea that lawmakers should be presumed to legislate consistently with other parts of the posited law like constitutional law and common law principles, to the very rich idea that context can include principles of natural law).
As Professor McCall has written here recently, to the extent textualists and originalists do presume the communicative content of legal text should be presumed to be consistent with natural law, it is usually only because:
“[T]he natural law meanings of these terms were part of the text when it was adopted (not because natural law was part of the law but because the authors had these meanings subjectively in mind). They are thus simply applying the text of the Constitution.”
The big difference between the classical lawyer and the positivist textualist/ originalist, then, is that the latter relies on natural law precepts to erect interpretative presumptions only to the extent “the subjective mental state of the framers and ratifiers incorporate these meanings" whereas, for the “classical lawyer, this subjective mental state is irrelevant.”” For the latter, basic natural law precepts are just as much part of the law of a community as posited laws enacted by political authorities, and play a critical internalist role in interpretative practice in discerning the content of legal enactments and intent of the lawmaker. They apply, to quote Professor John Finnis, ipso jure - of their own force, not because of the will of the lawmaker.
A major problem caused by seeing principles of natural law as only contingently part of a community’s legal system is that this attitude exponentially increases the risk lex and ius may come apart. This is because unless principles of legal justice are properly recognized as ipso jure part of the law, then the same kind of standing presumptive respect for them will not be extended. Simply put, some methodological approaches make it structurally more likely that posited law will be understood to contravene precepts of natural law, increasing the likelihood we will be saddled with the question that opened this essay - what is a judge to do when faced with a profoundly unjust law?
So I think equally profound questions to ask of conservative jurists today might include: In what circumstances would it come to pass that the posited legal text you are interpreting would come to clash with natural law? Is there anything about how you understand the status of the natural law in our legal system - whether it is binding by its own force or only where the powers that be say so - that makes it more likely you will reach a profoundly unjust understanding of lex? Is there anything about your interpretative method that helps ensure posited law will remain oriented to the common good, its basic purpose and telos, and does not misfire in this regard and devolve into a perversion of law?
To be sure there is, of course, always a possibility that a provision of lex may remain so radically unjust that it is not able to be understood as consistent with natural law. This sobering fact is one long accepted by the classical tradition. This possibility is what explains the famous dictum that “an unjust law is not a law” attributed to the natural law tradition. More precisely, Aquinas in his Treatise on Law said that a “tyrannical law, through not being in accordance of reason, is not a law absolutely speaking, but rather a perversion of law.” Aquinas, Summa Theologica, I-II, Q. 92, a. 1.
But what I have tried to stress here is that the likelihood that posited law will be understood as a perversion of law can turn, in no small part, on the assumptions and worldview of our judges and jurists and whether they are built upon false positivist or true classical foundations. How to go about securing sounder foundations for our day-to-day legal practices is just as profound a question as asking what we should do in those marginal, worst-case situations, where human will and right reason are genuinely irreconcilable.