Among the most profound conflicts dividing Americans today is that between progressive elites and champions of conscience rights. The former, intent on putting the culture wars behind us, are vigorously harnessing the influence of governmental, professional, and corporate bodies to effect the legal and social normalization of practices (such as abortion and same-sex marriage) they deem essential to achieving justice. The latter protest that they cannot cooperate in these practices without violating deeply and reasonably held moral convictions.
In a constitutional republic like the United States, it is natural for citizens in both camps to appeal to legal principles such as the equal protection of the law, religious liberty, and freedom of speech. Yet judges are as divided as others over the meaning of such principles. Fostering a political and legal discourse capable of defining the nature and scope of conscience rights in relation to competing claims is thus a priority for our troubled times.
Unfortunately, the understanding of law prevalent in today’s legal and political culture constitutes an impediment to such discourse. This is because contemporary legal theory is dominated by positivism, which denies the relevance of objective moral principles to the determination of legally binding rules. From this perspective, conscience appears to be something alien to law, undercutting efforts to discern a common ground capable of paying due respect to both.
According to its classical definition, human law exists to specify and enforce certain objective ethical principles known as the natural law. In this view, the same moral framework informs sound consciences and valid laws, rendering them natural allies. When particular consciences and laws conflict, a common language of moral reasoning assists in adjudicating the dispute according to principles both parties ought to recognize as their own.
If today’s warring factions are to pursue a peaceful and just accommodation, our culture’s virtual abandonment of this common moral framework must be reconsidered.
H. L. A. Hart and the Reign of Positivism
From Plato to the Declaration of Independence, some version of natural law has long informed the theoretical and practical structure of free societies. Only in recent times has progress been associated with “the separation of law and morals,” and even that brief history supplies reasons to doubt the wisdom of accepting positivism’s progressive credentials.
One of positivism’s most influential proponents was Oliver Wendell Holmes, Jr. Though still celebrated for some of his opinions, Holmes’s dark side is undeniable. Ridiculing natural law as “a philosophy that tells us what we should want to want,” Holmes openly reduces law to the imposition of the preferences of the culturally dominant upon their social inferiors.
The illiberal implications of this view were confirmed when Adolf Hitler cited Holmes’s legal justification of eugenically motivated compulsory sterilization as a precedent for his own government’s mass murder of human beings “lawfully” proclaimed unworthy of life. This, and the explicit appeal to positivism by many of those (including judges) who facilitated the Holocaust, led some in the post-war era to revisit the merits of natural law theory.
Against this setback, the continued dominance of positivism reflects in no small part the herculean efforts of H. L. A. Hart. Distancing himself from the harshest statements of Holmes and other pioneering positivists, Hart presents a nuanced and ambitious case that law and morality must be strictly separated for the sake of morality as well as law.
A consideration of certain theoretical and practical flaws in Hart’s argument will help us to see the indispensability of natural law in achieving a harmony between law and conscience.
Hart’s Defense of Positivism
Hart whittles positivism down to two “simple” claims: first, that a rule may be immoral and yet legally binding; second, that a rule may be morally but not legally binding.
Whether Hart realizes it or not, classical natural law theory is in accord with his second claim. In this view, law serves to direct human beings toward the preservation and perfection of their being, a perfection that requires the practice of freely chosen virtues. Since the administration of human law relies heavily upon external evidence and coercion, even in the best cases it is incapable of punishing all or even most vices or mandating more than the rudiments of virtue. It follows that few rules of morality are strictly binding in the court of human law.
Even so, Hart is right to associate the natural law tradition with the view that an immoral law is no law at all. This conclusion follows from the very definition of law, which is “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” Since morality itself is rooted in reason, immoral commands are unreasonable and hence “do not bind in conscience, except perhaps in order to avoid” a greater harm such as “scandal or disturbance.”
In effect, Hart accepts the classical view that law must be promulgated by a recognized authority, while rejecting the view that it must be morally sound. Like Holmes, he readily admits that, by his lights, unjust and oppressive laws may be legally binding. Unlike Holmes, he refrains from denying the existence of objective morality altogether.
In the face of “the failure of the German legal profession to protest against the enormities which they were required to perpetuate in the name of law,” Hart defends positivism by asserting that moral goods transcending individual survival, even if real, are “too conflicting and varying” to serve as the basis of sound legal reasoning.
As a consequence, Hart sees two evils resulting from the attempt to make positive law’s authority conditional on its morality. He fears that such reasoning will lead some citizens to deny the morality of any law they merely dislike, and others to deny that anything legal can be immoral. In the first case, law is threatened by anarchy; in the second, morality is endangered by conformism.
Hart’s Misreading of Law and Morality
Hart’s argument is ingenious, but fails on both counts. To begin with, Hart believes that, by separating law and morals, he has placed law on a conceptually clear and practically stable basis. In fact, he has not eliminated but shifted the locus of uncertainty in matters of law.
In the classical view, every law as such is binding in conscience, though particular proclamations of recognized authorities may be unlawful. For Hart, every decree issued by lawful authority is law—but it is up to each citizen to decide whether his “moral duty” is to obey or disobey the law!
Far from strengthening law by separating it from morality, Hart’s position leaves law subject to moral judgment, while throwing the basis of that judgment into radical doubt. We may regard the law itself as certain, but our response to it becomes a matter of “disputable philosophy.”
The same problem besets conscience as Hart conceives it. Though he clearly admires the courage of those willing to question the soundness of existing laws, Hart’s dismissal of natural law theory as rooted in passion and moral naïveté must apply to the arguments of legal dissenters. What happens to the Declaration of Independence if we regard its case for revolution as expressing emotional frustration with English authorities, or Martin Luther King Jr.’s “Letter from a Birmingham Jail” if its condemnation of segregation merely represents one group’s discontent?
Hart’s theory does not eliminate the possibility of dissent any more than it renders all laws suspect. Yet it does cast both critics and defenders of the law into a dynamic more forthrightly described by Holmes. If moral principles are unreal or endlessly disputable, only psychological or physical force can ultimately resolve legal disputes, and only those willing and able to employ such force need enter the fray. Contrary to Hart’s intentions, law is reduced to a rationalization of the demands of dominant social powers.
Natural Law as a Guide to Conscience and Human Law
Classical natural law theory acknowledges the contingency of human affairs by distinguishing between changeless moral principles and their specification by persons (virtue) or communities (positive law). It respects and limits both law and conscience by requiring each to justify its demands on the other in terms of principles available to every unbiased mind. It does not provide a formula for resolving every dispute in advance, but it does provide a superior framework for adjudicating disputes when they inevitably arise.
This is evident if we take a case Hart uses to illustrate the alleged flaws of natural law theory. “In 1944 a woman, wishing to be rid of her husband, denounced him to the authorities for insulting remarks he had made about Hitler,” expecting him to face execution. After the war, prosecutors tried the woman under a criminal statute promulgated in 1871 and never rescinded. To her defense that she was following “Nazi statutes,” the court responded that the relevant statue was “contrary to the sound conscience and sense of justice of all decent human beings.”
Hart attributes approval of this decision to “hysteria,” remarking that it would be better to impose “a frankly retrospective law” than to declare “a statute established since 1934 not to have the force of law.” He speaks as if the court were substituting its own specification of natural law for duly enacted positive law, but the facts as he relates them show otherwise.
Though it is the province of courts to rule in accordance with promulgated law, they are also tasked with identifying which laws apply to a given case. Since the natural law is available to and binding on man as man, neither the court in 1949 nor the defendant in 1944 was authorized to regard a morally repugnant 1934 statute as legally binding. Neither, lacking legislative authority, could supply this deficit with fresh legislation, but neither needed to do so. Both the woman using a pseudo-law to rationalize attempted murder and the court pronouncing her guilt were able to find and follow a statute promulgated in 1871, which clearly forbade her actions in agreement with principles definitive of both “sound conscience” and sound law.
Reconciling Law and Conscience Today
The political institutions of the United States are explicitly grounded on “the Laws of Nature and of Nature’s God.” Appealing to these laws constitutes neither an invitation for judges to “legislate from the bench,” nor an affront to the liberties our Constitution enshrines. Rather, it represents a call to discern the true character of the legal rights and duties by which we are honored and obligated as citizens and human beings.
At first glance, an appeal to natural law would seem likely to add to the acrimony of contemporary debates, given that this theory is often associated with opposition to practices endorsed by progressives and resisted by adherents to traditional moral codes.
To the extent that progressives have embraced a paradigm according to which liberty consists in each person’s “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” natural law discourse would demand of them a significant shift. Yet such relativism cannot account for the existence of legal duties common even to those who accept it, much less to those who do not. The need to reconcile competing factions ought to persuade progressives to reframe their arguments in terms capable of obligating human beings, and fellow Americans, as such. For this, an appeal to natural law is indispensable.
As for champions of conscience rights, if natural law reasoning has often supported their views on currently contentious issues, it also demands that one deal with particular issues prudentially in order to foster civic harmony and minimize civic discord. Given the present state of our culture, this is a monumental task. Though it will be challenging for both sides, however, a renewed discussion of contemporary controversies informed by natural law discourse will be eminently worth their efforts.
L. Joseph Hebert is Professor of Political Science and Leadership Studies at St. Ambrose University, where he directs the Pre-Law Program. His books include More Than Kings and Less Than Men: Tocqueville on the Promise and Perils of Democratic Individualism.