'Natural Law, An Elusive Tradition

For a time, the hearing on Clarence Thomas last week promised to provide a mini-course on the elusive concept of "natural law." But it never happened. In his opening statement, Sen. Joseph Biden offered three interpretations of natural-law doctrine, none of which was accurate, and demanded to know which version Thomas subscribed to. In his clearest response, Thomas said only that he regards natural law as a "philosophical background" to the Constitution.

In essence, natural law is a broad philosophical tradition which holds that there are certain principles of right and ,wrong which human beings, through the diligent use of reason, can discover and apply in the creation of a just society. Some natural-law exponents are religious thinkers who ground their philosophy in a divine creator; others are secular philosophers who regard certain moral principles and rights as beyond doubt or compromise. Applied to jurisprudence, natural-law precepts have acted as a cheek on those in power-medieval popes no less than democratic majorities. Historically, campaigns of civil disobedience against unjust but validly enacted laws have been mounted on the supposition that universal moral principles do exist.

Had Thomas been allowed to summon the dead as witnesses for natural law's defense, the Senate would have surely been impressed. Confucius, Aristotle and Cicero believed that human nature is bound by moral laws. Thomas Aquinas and other Christian thinkers, both Roman Catholic and Protestant, elaborated natural-law philosophies. In the 17th and 18th centuries, John Locke, Montesquieu and Thomas Jefferson espoused a related form of natural law in the guise of "natural rights." Both Abraham Lincoln and Martin Luther King Jr. appealed to natural law and rights in their efforts to overcome slavery and American apartheid. Indeed, the very words of the Declaration of Independence--"We hold these truths to be self-evident, that all men are created equal"-owe their force to the naturallaw tradition.

Why, then, was Thomas put on the defensive? In part, rays Michael McConnell, a professor of constitutional law at the University of Chicago Law School, the attack on natural law "is connected to the anti-Catholic reaction to Thomas's nomination."Thomas was schooled in the Roman Catholic tradition which holds that abortion is the unjust taking of an innocent life. But Thomas is now an Episcopalian, and most of his public comments on natural law have more to do with Locke's secular version of natural rights than with the tradition of Aquinas and the popes. As McConnell points out, natural-rights principles have been invoked on either side of the abortion issue within the realm of constitutional law: rights of the unborn versus the right to privacy.

As last week's debate made clear, some critics assume that natural law allows a justice to base decisions on his personal moral convictions. On the contrary, argues Prof Robert George, who teaches the philosophy of law at Princeton University, respect for the rule of law is central to the natural-law tradition as it unfolds from Aristotle and Aquinas down through British-American common law. "This includes regard for precedent, procedure and statutory interpretation," says George. "These things are, in themselves, necessary to a justly ordered society."

But what is a Supreme Court justice to do when the nation's highest legal authority, the Constitution, is mute on an issue before him? Time and again, Supreme Court justices have overturned laws by appealing to high-sounding notions that reflect their own presuppositions about human nature. Benjamin Cardozo cited "ordered liberty," Felix Frankfurter appealed to "the standards of decency of English-speaking peoples" and-vaguest of all--William O. Douglas found a right to privacy in "the penumbras formed by emanations from the ... Bill of Rights." "Whatever the verbal locution," says legal scholar and federal appeals court Judge John T. Noonan Jr., "the underlying sense has been an appeal to human nature and what that nature demands." Despite the barrage of questions on natural law, Clarence Thomas never revealed how he might make the same appeal if he joins those predecessors on the nation's highest court.