Morality and law in a global society: a place for natural law theory?

• Author: Hon. Rollin A. Van Broekhoven
• Pages: 626-672

FRONTIERS OF LAW IN CHINA

VOL. 12 DECEMBER 2017 NO. 4

DOI 10.3868/s050-006-017-0032-0

ARTICLE

MORALITY AND LAW I N A GLOBAL SOCIETY: A PLACE FOR NATURAL LAW

THEORY?

Hon. Rollin A. Van Broekhoven*

Abstract There are basically four stages of a person’s thinking. The first is a person’s

quest for meaning. It is a time for questions. Socrates said that an unexamined life is not

worth living. Yet in America, living an examined life is rare. The challenge is to live an

examined life in a culture of unexamined lives. The second stage is a time for answers.

We cannot avoid the realism of evil, yet today, few have seriously examined absolute

evil. The third stage is a time for confirmation and assurances to our answers of evil and

pain. The fourth stage is the time for commitment and beginning of the journey. For the

simple person who has all the answers, there is no further journey. At the other extreme

is the intellectual who never has all the answers. There is always a question for another

day and there is never any really settled resolution on what he or she believes or why.

There are two basic philosophical systems that have influenced our thinking about

morals and about law. The first is naturalism, which began in the 6th century B.C., in the

Greek Ionian culture with a certain set of cosmologies, most of which were naturalistic

in nature where reality was expressed in terms of water, fire, earth, or air. Naturalism has

experienced great growth since in the Enlightenment. However, the notion at the heart of

morality and law is idealism. Indeed, for much of the history of legal thought, the

connection between morality and law was found in idealism. It is within the philosophy

of idealism that we find the history of natural law theory. This matters because how one

thinks about the nature and purpose of law, what forms the foundation of law and how it

is made, either legislatively or through the courts is one of the most elusive and

persistent problems in the entire range of human thought. This article explores some of

that history.

Keywords worldview, morality and moral authority, jurisprudence, constitutionalism

* Hon. Rollin A. Van Broekhoven, B.S., Wheaton College Wheaton, IL.; J.D., Baylor University School of

Law; LL.M., University of Virginia and George Washington University Schools of Law, Charlottesville, Va.

and Washington, D.C.; DPhil, DLitt, Oxford Graduate School, Jurisprudence and Socio-Legal Policy, Dayton,

TN and Oxford, UK; DPS (Hon) Gordon College; LL.D., Wenham, MA; (Hon) Collegium Augustinianum,

Rome, Italy and Mohnton, PA. Retired federal judge, Washington, D.C. and professor of legal philosophy and

legal history, author and frequent lecturer on federal litigation, bioethics, and charity law in Europe, North

America, and Asia. Admitted to the U.S. Supreme Court, the U.S. Court of Appeals (Fed. Cir.), the U.S. Court

of Federal Claims, the U.S. Court of Military Appeals, and the Supreme Court of Texas. Contact:

HonRVanB@cs.com

2017] MORALITY AND LAW IN A GLOBAL SOCIETY 627

INTRODUCTION .................................................................................................................... 627

I. PROBLEMS WITH NATURAL LAW THEORY............................................................... 627

II. WORLDVIEWS AND NATURAL LAW ........................................................................ 629

III. THE PROBLEM STATED .......................................................................................... 633

A. A Time for Questions .........................................................................................633

1. The First Is: Why Do People Obey the Law?................................................ 633

2. The Second Set of Questions Is Related, But Looks at the Question of Law

from a Slightly Different Perspective ...........................................................634

3. The Third Set of Questions Deal with Moral Reasoning and the Law .......... 635

IV. A TIME FOR ANSWERS .......................................................................................... 637

A. The Goals of Social Studies of Law................................................................... 637

B. Jurisprudence and the U.S. Courts ...................................................................641

CONCLUSION........................................................................................................................ 672

INTRODUCTION

As a guest in your country, I am an outsider looking in as I try to understand how and

whether any theory of natural law would fit into your cultural legal history, situation, and

jurisprudence. It seems that it should, but more about that later. My paper is primarily

about the theory and my experience in the United States. I am quite aware that my own

experience and background may color what I address here.

Since we are addressing philosophy of law and a particular theory of law, some of

what I address obviously goes beyond the role of the judiciary in society because after all,

we are addressing the source and nature of law in a given society, but you will understand

that and be able to follow me. I will only explore several ideas that go to the question of

whether or not there is a place for natural law theory in today’s enlightened society,

whether in the U.S. or in China. For over 100 years, this theory of jurisprudence has

generally been discounted and has only been partially revived in the United States in the

last 35 years. This paper is introductory only and will be an attempt to reflect some of that

range of thought, although briefly, and its relevance to society. Because of the wide

variety of thought, it would be impossible, and indeed, boring, to try to rehearse the

history of natural law with all of its twists and turns, and theories, and so there will be no

attempt to do so. Whatever the theory, the issue is whether there is a relationship between

morality and law, and if not, how a society deals with issues of corruption.

I. PROBLEMS WITH NATURAL LAW THEORY

Joseph Boyle in an essay entitled Natural Law and Ethics of Traditions, notes that

ethical theory can be characterized as the effort to develop general criteria for

distinguishing correct from incorrect moral judgments within an overall account of moral

628 FRONTIERS OF LAW IN CHINA [Vol. 12: 626

life and experience.1 The primary representatives of ethical theory are utilitarian,

Kantianism, and various forms of contractualism. As Professor Boyle wrote, and as we

see in this paper, these theories are believed to be wanting because they are excessively

abstract and rationalistic, and because they are held to be incapable of providing a

plausible account of the rich diversity of moral life.

However, natural law has its own problems as well. First, natural law does not seem

self-evident in the contemporary context. Decades, or even centuries of Roman

Catholicism have taught natural law as the basis for dialogue with nonbelievers. But,

post-moderns reject a stable view of nature. Liberals don’t accept its conclusions and

Protestants have never been excited about it because of its history in Stoic philosophy

rather than in Biblical theology. Indeed, Protestant theology is quite diverse in its views

about natural law.

A large body of evangelical thinkers avoid the topic, or explicitly reject it, viewing it

as a relic of scholastic Catholicism. Yet, a sizable number of the magisterial Reformers of

the 16th century took natural law as an uncontroversial component of Christian tradition.

The reasons for this are complicated and will be discussed in this paper. But some of

these are shared broadly in society. It was my study of Benjamin Cardozo and

philosophical reflection as a judge that I came to the conclusion that one’s worldview was

more important in forming a jurisprudence that connects morality and law in a way that

better engages dialogue within the legal profession.

Justice Benjamin Cardozo gave a series of lectures at Yale University Law School in

1921. Although presented almost a century ago, these lectures basically address the

problem law schools have in addressing natural law and natural rights. These lectures

were ultimately published under the title of The Nature of the Judicial Process. Justice

Cardozo was clear that each of us has a philosophy of life that forces judges to be

consistent with themselves and possibly inconsistent with others. In his first lecture,

which was an introduction to philosophy, he posed questions regarding the process of

deciding cases in court.

What is it that I do when I decide a case? To what sources of information do I appeal

for guidance? In what proportions do I permit them to contribute to the result? In what

proportions ought they to contribute? If precedent is applicable, when do I refuse to follow

it? If no precedent is applicable, how do I reach the rule that will make precedent for the

future? If I am seeking logical consistency, the symmetry of the legal structure, how far

shall I seek it? At what point must the quest be halted by some discrepant custom, by some

consideration of the social welfare, or by my own or common standards of justice and

morals?...I take judge-made law as one of the existing realities of life. Not a judge on the

bench but has had a hand in the making. The elements have not come together by chance.

Some principle, however unavowed and inarticulate and subconscious, has regulated the

1 Joseph Boyle, Natural Law and Ethics of Tradition, in Robert P. George ed. Natural Law Theory:

Contemporary Essays, Oxford University Press (Oxford), (1992).