Johnston – Natural Law and the Rule of Law
NATURAL
LAW AND THE RULE OF LAW
Joseph F. Johnston, Jr.
The
Philadelphia Society National Meeting
April 26, 2003, New Orleans
When
America’s founders adopted the Declaration of Independence in 1776, they based
their action on certain “self-evident” truths, specifically, that men are
endowed by God with inalienable rights, including the right to life, liberty and
the pursuit of happiness, and that governments are instituted to secure these
rights. From the very outset of the
nation, therefore, its independence was based upon the tradition of natural law,
which holds that there are objective rights of liberty and property, and that
these rights in turn rest upon a higher moral law.
The natural law is in sharp contrast to the opposing theory of legal
positivism, which asserts that law is merely the will of the sovereign.
In the real world of today, the will of the sovereign means the power of
the state. The difference between
these views of law is critical: if there is no “higher law,” then there is
no conceptual basis for arguing that any human law is unjust.
We live in
an age in which the public is understandably captivated by the achievements of
science and technology. Sometimes
this attachment to science becomes excessive and results in attempts to apply
scientific method to subjects that cannot be quantified or tested by the methods
of experimental science. One of
these subjects is the law. Ever
since the late nineteenth century, a series of doctrines has appeared purporting
to reduce law to an empirical or experimental discipline using, to the maximum
extent possible, the methodology of science.
These efforts have proceeded under a number of labels, including legal
positivism, sociological jurisprudence, legal realism and, more recently, “law
and economics.” All of these
variations are “positivist” in the sense that they tend to separate law from
its moral sources.
In this
cultural climate, natural law appears to many lawyers to be a throwback, an
obsolete category that ought to be discarded altogether.
If confronted with the term “natural law” a practicing lawyer today
is likely to say that there is no such thing, or that it is a religious notion
that has no place in legal analysis. On
the other hand, if you mention “the rule of law” he will probably indicate
that he knows what this refers to, that it is a good thing and that we ought to
preserve it.
And yet many if not all of the basic principles that we
usually include under the rubric “rule of law” can be derived directly or
indirectly from natural law sources. Today,
unfortunately, the connection between natural law and the rule of law, which
formerly was so close as to amount to virtual identity, is largely neglected by
the law schools and the legal profession.
This is a
great shame, because the defense of the rule of law becomes much more difficult
when it is unhinged from its intellectual, historical and moral roots.
As Professor Ellis Sandoz has argued in a recent paper, under the rule of
law “there is an appeal to a higher standard of law and justice than the
merely mortal or, at the least, than the enacted law of merely contemporary
rulers.”[1]
In this
paper, I first want to address a difficult semantic problem: what does the term
“natural law” mean? Then I will
consider some of the ways in which traditional natural law principles have
influenced what we call “the rule of law.”
Finally, I will emphasize the critical importance of the
Anglo‑American common law tradition, which over many centuries has
effected a unique merger of natural law principles with customary law.
One reason
why natural law is such a slippery subject is that there is no easy way to
define it. If, for example, you ask
a physicist and a theologian to define natural law, you will get two
contradictory definitions. The
physicist will say that natural law means the scientific laws of nature (such as
gravity) which act upon humans regardless of their will.
For theologians and for some traditional philosophers and legal scholars
as well, natural law operates through the free will of humans and is closely
identified with morality. The
“nature” in this kind of natural law does not refer to biology but to the
nature of man as a free, rational and social being.
In the words of Heinrich Rommen:
The
order of the world is an order of absolute necessity for unfree creatures, but
it is an order of oughtness, a moral order, for rational and free beings.
In the former case the eternal law is a law of necessity; in the latter,
it is a moral law of freedom.[2]
The
scientific order of physical reality is separate ontologically from the moral
natural law, which, as Rommen says, is an order of “oughtness.”
The human moral order derived from the free, rational and social nature
of man is often supported by reference to the divine order, as in the reference
to “the laws of nature and of nature’s God” found in our Declaration of
Independence.
As they
developed, the moral and the scientific concepts of law have shared certain
“law-like” goals: both seek to achieve regularity, objectivity and
predictability. In human societies,
these goals are realized through such customary social habits as cooperation,
trust and loyalty. Modern
scientists, however, tend to argue that these habits are explained by Darwinian
natural selection. What we call
moral responsibility, biologists assert, has been naturally selected to favor
behavior conducive to the survival of the organism; and every aspect of human
behavior is explained by a combination of genes and environment.
The eminent biologist Jacques Monod argued three decades ago that we are
entirely the product of chance and necessity.[3]
For evolutionary biologists, basic rules of law are the result of natural
selection. “The common law or any
other existing body of law, if it could be traced back sufficiently far, would
turn out to be directly descended from the evolved predilections for
rule‑based behavior.”[4]
E.O. Wilson argues for “a purely material origin of ethics.” Moral
sentiments, like other human reactions, are products of the interaction of genes
and environment. “Ought”
Wilson concludes, “is the product of a material process.”
Even religious beliefs “can all eventually be explained as brain
circuitry and deep, genetic history.”[5]
From the standpoint of evolutionary biology, “free will is an illusion,
brought to us by evolution.”[6]
A persuasive
case, however, can be made against the determinist hypothesis.
The science writer Matt Ridley, for example, argues that we are
genetically equipped to exercise free choice.
Natural selection has placed in humans “the ability to stand up and
transcend the limitations of the environment.”[7]
Our genetic inheritance, in other
words, is a necessary condition of our behavior, but not a sufficient condition.
Scientific determinism cannot fully explain the action of human beings
because there are limitations to the scope of science.
As the physicist Stephen Hawking has observed:
Goedel’s
theorem, Heisenberg’s uncertainty principle, and the practical impossibility of
following the evolution of even a deterministic system that becomes chaotic,
form a core set of limitations to scientific knowledge that only came to be
appreciated during the twentieth century.[8]
This
recognition of the limitations of science validates the common-sense view that
the scientific model of causation does not apply to moral discourse.
In moral reasoning, as Anthony O’Hear has argued, “the giving of
intelligible reasons displaces the ultimately brute‑factish quest for
causal regularities.”[9]
This capacity to give intelligible
reasons for human choices is the conceptual basis for both law and morality.
I find
Professor O’Hear’s argument persuasive, and I believe that we are justified in
using the term “natural law” in its traditional sense to refer to a system
of principles for the guidance of human conduct, derived from the nature of man
as a free, rational and social being, and ascertainable independently of
specific positive law as enacted in any given polity.
Because man
is both a rational and social being, he is able to think about the basis of his
mutual relationships with others and to derive through the use of his reason the
principles of human association in society.[10]
The application of reason to human
conduct is the essence of the rule of law.
In the words of Aristotle, “he who bids the law rule may be deemed to
bid God and Reason alone rule, but he who bids man rule adds an element of the
beast …. The law is reason
unaffected by desire.”[11]
The Stoic
philosophers constructed from these principles a universal system based on the
concept that all men have received from nature the gift of reason, and law is
right reason as applied to the regulation of human behavior.
The best-known formulation of the Stoic concept of natural law is in
Cicero’s Republic:
True law
is right reason in agreement with nature; it is of universal application,
unchanging and everlasting; it summons to duty by its commands, and averts from
wrongdoing by its prohibitions … We cannot be freed of its obligations by
senate or people, and we need not look outside ourselves for an expounder or
interpreter of it.”[12]
tIn the centuries following
Cicero, the Roman jurists formulated a system of jurisprudence which, in its
essential characteristics, adhered to the Stoic premise that law should
correspond to natural and universal justice.
The Institutes of Justinian, published in the sixth century A.D.,
restated the basic principles of natural justice: “The precepts of law are
these: to live honestly, not to injure anyone and to render to each person what
is due.”[13]
The
best-known traditional summary of natural law doctrine is found in the Summa
Theologiae of St. Thomas Aquinas. The
natural law, for Aquinas, “is promulgated by the very fact that God instilled
it into man’s mind so as to be known by him naturally.”[14]
The natural law can be perceived by
the mind without recourse to revelation, although it is strongly supported by
revelation. The most basic
proposition of natural law, which for Aquinas is indemonstrable and necessarily
true (“per se nota”), is that “good is to be done and promoted and evil is
to be avoided.”[15]
This is often called the “first principle of practical reason.”
Aquinas, following Aristotle, argues from a teleological perspective: the
good is a natural end or goal of mankind, which is to be pursued for its own
sake. Under the category of the
naturally good, Aquinas emphasizes certain natural inclinations of man,
including the inclination to preserve human life, to educate one’s offspring, to
live in society and to avoid offending those among whom we have to live.
The norms derived from these inclinations conform to man’s rational
nature and are implicit in the human social order.
To
summarize, the concept of “nature” in traditional natural law theory does
not refer to materialistic biology but “to the rational nature of each
individual man [and] to man’s endowments of intellect and free will, on which
rest the dignity, liberty, and initiative of the individual person;….”[16]
For man, as
a free, rational and social creature, the order of being becomes an order of
“oughtness” ñ a moral order. As
St. Paul said, what the divine law requires of all men is “written on their
hearts.”[17]
The word “natural” is thus
prescriptive and not merely descriptive. The
Latin word “naturalis” suggests a necessary condition or presupposition of
social order. The function of law
is to establish and preserve a just, predictable and stable order of human
relationships. Human society
depends upon the recognition of basic principles of possession, reciprocity and
obligation. From these requirements
can be derived a number of general principles that form the basis for
contractual and other obligations. “Thus
there is a naturalis possessio at the root of all property.
There is a naturalis obligatio, which may or may not be legally
protected, but which is the necessary prerequisite of all obligations.”[18]
It is here that we can see the
essential link between natural law and the rule of law.
As critics
of natural law theory have often pointed out, the natural law position requires
some basic assumptions which are difficult or impossible to prove empirically.
These include the assumptions that human life has intrinsic value; that
humans are capable of free moral choice; that there is an intelligible “order
of oughtness” that is discoverable by human reason; and that human beings have
a natural desire to maintain an orderly society.[19]
The
recognition that certain fundamental assumptions are unproven, however, should
not surprise or discourage anyone. Every
organized field of human knowledge is based on unproven assumptions.
Science itself accepts the intelligibility of the world but cannot
explain it. Moreover, science rests
upon the logical laws of identity and contradiction and, in addition, is
dependent upon measurability and mathematical formulation.
Mathematics, which is essential to the very existence of science, is a
non-material, conceptual scheme that cannot itself be “proved.”[20] Scientists
cannot avoid using such terms as order, form, structure, equivalence,
simplicity, coherence and elegance to describe their view of the world, but
these are ideal, nonempirical concepts. They
represent metaphysical assumptions that underlie the scientific enterprise, just
as the principles inherent in the moral and social order underlie the natural
law.
tBased on the assumptions
previously discussed ñ that human life has intrinsic value; that humans are
capable of free moral choice; that there is an intelligible “order of
oughtness”; and that humans have a natural desire to live in an orderly
society ñ we can infer certain principles that bring us closer to the “rule
of law.” The following principles
are not intended to be exclusive, but are among the most important.
The protection, preservation and procreation of human life.
The prohibition against murder, the right of self-defense and the
obligation to care for children follow from the principle that human life has
intrinsic value. The value and
dignity of the human person are also supported by the Christian doctrine that
man has a special place in the divine order.
Individual liberty. The
Roman jurists assumed that personal freedom was a part of natural law.
Ulpian, writing in the second century A.D., states that “by the law of
nature all men are born free.”[21] The
natural law concept of liberty was brought into English constitutional law
principally by chapter 39 of Magna Carta, which established that no free man
shall be imprisoned except by the law of the land (later called “due process
of law”).
By the time of Bracton (thirteenth century), Magna Carta was
known as a charter of “common liberties” or a “constitutio libertatis.”
In modern natural law theory, personal liberty is a necessary condition
of the natural desire to pursue one’s own goals, subject to the qualification
that the similar liberty of others is to be given equal respect.
“It is not … contrary to
the nature of society to look out for oneself and advance one’s own interests,
provided the rights of others are not infringed; ….”[22]
Protection of property. Liberty
and property have often been linked together, since both are essential to the
advancement of man’s proper goals in society.[23] Most
natural law writers argue that, because private property is essential to social
peace and good order, the right to own property is a part of natural law.[24]
Without property, the individual would be wholly dependent on others and
therefore could not be free in any meaningful sense.
“The institution of private property is of natural law.
In the long run man cannot exist, cannot make good his right to marriage
or to a family or to security of life, and cannot maintain his sphere of
individual right to a life of his own, unless he is entitled to ownership
through the acquisition of goods.”[25]
Richard Weaver argued that, in a
society he saw as culturally and morally decadent, “the right of private
property… is, in fact, the last metaphysical right remaining to us.”[26]
Weaver deemed this right
“metaphysical” because property reflects the deep and essential relationship
between man and the part of the world around him that is his own.
Reciprocity. Reciprocity
is the conceptual basis for the natural law principle that “promises should be
kept” (pacta sunt servanda), which in turn is the basis for the law of
contracts.[27]
All known societies have customary
rules of promise making and promise keeping.
Reciprocity follows from the Aristotelian principal, “give to each his
due” which was one of the cornerstones of natural justice set forth in the
Institutes of Justinian (Sixth Century A.D.).
Injure No One. This
principle of natural law is the basis of the law of torts.
It gives rise to the principle of restitution for harm done.
“Among those Duties we account Absolute, or those of every Man towards
every Man, this has the first Place, that one do no Wrong to the Other;….
hence it follows, That if any Harm or Damage be done to another, he who is
truly chargeable as Author of the Wrong, ought, as far as in him lies, to make
Reparation“:[28]
Trust (fidelity). The
obligation of trust or fidelity is a necessary condition of social harmony.
The loyalty required of a trustee or other fiduciary is set forth in the
Biblical precept that “no man can serve two masters.”[29]
It is at the heart of the law of
trusts, agency, partnerships and all other arrangements involving fiduciary
obligations, in which one person is entrusted with control over some aspect of
the life or property of another.[30]
Fiduciary obligations have been
invoked by courts of equity for centuries.
The duties of loyalty and care expected of trustees, corporate directors
and other fiduciaries are derived from natural law principles and reflect the
institutionalization of trust that is essential to the survival of human
associations. Because of its
universal applicability, the moral principle of trust should be considered a
principle of natural law.
It is
obvious that the foregoing principles of natural justice are quite general.
All of them, in practice, are necessarily surrounded by multiple
exceptions and conditions required by actual circumstances.
It has often been noted by critics of natural law that the more specific
the principles become, the more readily they are subject to challenge.
It is for this reason that natural law principles, in order to be given
effect, must be embedded in the actual customs and practices of a given society.
In Anglo-American law, this means the common law tradition, as modified
by acts of Parliament representing the “public policy” of the community.
As Corwin indicates, “the notion that the common law embodied right
reason furnished from the fourteenth century its chief claim to be regarded as
higher law.”[31]
The lengthy history of
“embedding” the natural law in the common law gives us the rule of law
operating as a real practice and not just an abstraction.
Moreover, because of its insistence that the ruler is subject to the law,
the common law provides a powerful defense of individual freedom against the
state.
For the sake
of simplicity, I use the term “common law” to include the equitable
principles traditionally applied by the Chancery Courts in England and America.
Equity applies “where the principles of law, by which the ordinary
courts are guided, give no right, but upon the principles of universal justice
the interference of the judicial power is necessary to prevent a wrong, and the
positive law is silent.”[32]
The influence of the natural moral law is apparent in the well-known
principles of equity, such as the doctrines of equitable rescission,
unconscionability, estoppel, “entire fairness” in fiduciary dealings, and
the equitable maxim that no one may profit from his own wrongdoing.
In addition
to the substantive principles that can be inferred from natural law, there are
“process” requirements that are equally basic.
By the “legal process” I mean both the formal requirements of an
enactment that make it part of a system of “law” and the procedural
requirements of adjudication that satisfy “due process of law.”
These two aspects of the legal process are closely
interrelated.
The natural
law tradition, in contrast to the positivist principle of the will of the
sovereign, holds that legal systems possess certain intrinsic elements that
distinguish genuine law from arbitrary commands and decrees.
The most basic of these elements are regularity and predictability, which
enable the citizens to guide their conduct.
Other more specific requirements of natural legality were summarized by
Professor Lon Fuller in his important book, The Morality of Law (1969).
Based in part on his experience with the Nazi legal “system” at the
Nuremberg trials, Fuller claimed that there were certain requirements that must
be met by any legislation as necessary conditions of legality.
These requirements, which he called the “internal morality
of law” were as follows: the non-retroactivity of rules; the ability of those
subject to the rules to comply with them; public promulgation; coherence of the
laws with one another; intelligibility; sufficient constancy over time so that
people can rationally order their conduct; generality (so as to avoid bills of
attainder and other legislative acts which are really judicial sentences
operating on individuals, thereby depriving them of the procedural rights of due
process); and administration of the laws in a manner congruent with their
wording.[33] These
characteristics have deep roots in the natural law tradition and in the history
of the English common law. One can
quarrel with one or more of Fuller’s requirements of legality, but any political
system that departed drastically from Fuller’s rules of internal morality could
not fairly be called lawful.
We then move
to the level of adjudication. The
requirements of regularity and predictibility apply here too.
The existence of legislation meeting the formal requirements of law does
not ensure that the law will be fairly applied in actual cases; regular
adjudicative procedures are also needed. These
procedures are based not solely on abstract reason but emerge out of long
experience.
In the Anglo-American common law, they are reflected in a
series of precedents going back to Magna Carta, supported by the legal writings
of Bracton, Fortescue, Coke, Blackstone and many others.
The most
basic of these adjudicative principles is the necessity for adequate notice and
opportunity to be heard in one’s defense. This
principle has for centuries been closely identified with Chapter 39 of Magna
Carta, providing that the Crown will not proceed against any free man “except
by the lawful judgment of his peers and by the law of the land.”
As Professor A.E. Dick Howard persuasively argues, “the principle of
procedural fairness, above all, of notice and opportunity to be heard in one’s
defense, born of Magna Carta and nurtured through centuries of English and
American cases, remains one of the cherished presuppositions of our system of
justice.”[34]
The notion of “due process of
law” is among the “higher law” principles incorporated into the Bill of
Rights in our Constitution (see Amendments V and VI).
At all times
in its history, America’s economic strength and political health have depended
upon adherence to the rule of law, a set of institutionalized principles
designed to defend the individual against invasions of person and property and
to provide a mechanism for the fair adjudication of disputes.
This structure of rules is based on the permanent principles of the moral
order and on long-standing custom. The
rule of law as developed in England and America is not merely the abstract
“right reason” invoked by Cicero and the Stoics, and deemed to be universal
and unalterable.
Instead, the Anglo-American rule of law has been achieved
through a centuries-long series of fierce and often bloody conflicts, from the
revolt of the barons against King John to the Glorious Revolution in England and
the American Revolution. The
principles of natural law are available to all, but each society traces the path
from despotism to liberty through its own history, customs and struggles.[35]
Examples of these hard-won
principles, now considered axioms of the rule of law, are the independent tenure
of judges, habeas corpus and the doctrine that the rulers are subject to the
law.
tIt is therefore wrong to assume
that the rule of law can be explained by Lockean or other contractarian
doctrines that fail to take into account the lengthy historical process in which
the rational principles of natural law have become embedded in the real
experience of the English people and their successors.
It is equally misguided to assume that this tradition can simply be
transferred wholesale to other societies with vastly different cultural
histories.
tThe United States is a republic
based on the rule of law. But, as
Benjamin Franklin might have asked, can we keep it?
We are fortunate that the rights of speech and property are
better protected in this country than in most others.
On the other hand, we are enveloped in a heavy fog of constantly changing
legislation, codes, rules and regulations, administered by swarms of bureaucrats
sent “to harrass our People, and eat out their Substance”.[36]
We are
burdened by an out-of-control litigation system that bankrupts entire industries
primarily for the benefit of lawyers.[37]
In constitutional adjudication, the founding document is too often
construed by the Supreme Court in accordance with the ideological predilection
of judges rather than the intent of those who wrote and ratified it.
If we look at Lon Fuller’s indicia of lawfulness, it is obvious that
something has gone badly wrong. Take,
for example, the requirement that laws be intelligible, coherent, general and
constant over time (enabling people to conform their conduct to the rules).
How clear and coherent is the Internal Revenue Code?
How easy is it for the citizens to plan their conduct in
accordance with the Byzantine body of “law” that surrounds us?
Intellectual
history moves in cycles, in the legal profession as elsewhere.
If we are to realize the moral strength and political wisdom of which our
nation is capable, we need to turn the cycle of ideas back toward first
principles. This means the
rediscovery of the tradition of natural law, which can still be dimly perceived
through the obscurity of our overloaded legal system.
The current revival of natural law theory gives us an opportunity to
reinvigorate a great tradition and restore an essential framework for the rule
of law.
[1]
Ellis Sandoz, “Foundations of American Liberty and Rule of Law” (2003).
Professor Sandoz’ paper is available on the Philadelphia Society’s
web site. It sets forth
concisely and effectively the historical and philosophical roots of American
constitutional doctrine.
[2]
Rommen, The Natural Law, p.158 (Liberty Fund 1998 [1936]).
[3]
Jacques Monod, Chance and Necessity (N.Y. 1971).
[4]
Paul H. Rubin, Darwinian Politics: The Evolutionary Origin of Freedom,
p.83 (Rutgers 2002).
[5]
E.O. Wilson, Consilience: The Unity of Knowledge, pp. 263, 274, 285
(Vintage 1999).
[6]
Robert Wright, The Moral Animal: Evolutionary Psychology and Everyday
Life, p.350 (Vintage 1995).
[7]
Matt Ridley, Genome: The Autobiography of a Species in 23 Chapters,
p.313 (N.Y. 1999).
[8]
Stephen Hawking, The Universe in a
Nutshell, p.139 (Bantam 2001).
[9]
Anthony O’Hear, Beyond Evolution, p.10 (Oxford 1997).
[10]
Aristotle, Politics, Bk. I, Ch. 2, 1253a and Bk. III, Ch. 16, 1287a;
Samuel Pufendorf, Of the Law of Nature and Nations, Bk. I, Ch. VI
(London 1717) (natural law is “that which is so exactly fitted to suit
with the rational and social nature of man that human kind cannot maintain
an honest and peaceful fellowship without it;.”).
[11]
Politics, Bk. III, Ch. 16, 1287a.
[12]
Cicero, Republic, Bk.3, Para. XXII (Loeb Classical Library 1961).
[13]
“Juris praecepta sunt haec: honeste vivere, alterum non laedere, suum
cuique tribuere.” Inst.
1, 1, 3. Blackstone considered
Justinian’s three principles to be among the “eternal, immutable laws of
good and evil…” Commentaries
on the Laws of England, Vol. I, p.40 (Oxford 1765).
[14]
Summa Theologiae, Q.90, Art. 4.
[15]
Q. 94, Art. 2.
[16]
Rommen, The Natural Law, p.135.
[17]
Rom. 2:15.
[18]
Alessandro D’Entreves, Natural Law: An Introduction to Legal Philosophy,
p.33 (New Brunswick 1994).
[19]
Some critics have argued that the attempt to derive the moral principles of
natural law from empirical or factual propositions about the nature of man
is an example of the “naturalistic fallacy” which asserts that a
normative proposition cannot be validly inferred from a statement of fact.
See David Hume, A Treatise of Human Nature, Book II,
Part I, Sec. l. Traditional
natural law theory, following Aristotle, avoids the fallacy by grounding
normative “oughtness” in a natural development of man’s essence (formal
cause) toward the telos or end of what is “good” for man (final
cause). The “new” natural
law theorists resolve the problem by assuming a set of “forms of human
good” (including life, knowledge, friendship, religion and freedom) which
are allegedly self-evident and indemonstrable.
See John Finnis, Natural Law and Natural Rights (Oxford 1980);
Robert P. George, In Defense of Natural Law (Oxford 1999).
In either case, it is clear that some reasonable but empirically
unprovable assumptions are required. For
a well-stated argument that the “naturalistic fallacy” is not actually
fallacious, see Francis Fukuyama, Our Posthuman Future: Consequences of
the Biotechnology Revolution, Chap. 7 (N.Y. 2002).
[20]
Kurt Goedel showed in 1931 that, if we accept as true only what can be
logically proved from the axioms of arithmetic, there will always be some
propositions that can neither be proved nor disproved.
See Ernest Nagel and James Newman, “Goedel’s Proof” in Newman,
ed., The World of Mathematics, Vol. 3, p.1668 (N.Y. 1956).
As Stanley Jaki has said, with respect to any scientific theory
dependent on mathematical formulation, “as long as Goedel’s incompleteness
theorems are valid, the mathematical structure of that theory cannot contain
within itself its own proof of consistency.”
Stanley Jaki, The Limits of a Limitless Science and Other Essays,
p.5 (ISI 2000).
[21]
Quoted in Edward S. Corwin, The “Higher Law” Background of American
Constitutional Law, p.16 (Cornell 1979).
[22]
Hugo Grotius, The Law of War and Peace, p.54 (Indianapolis 1925).
[23]
John Locke, Two Treatises of Government, Second Treatise, Secs. 6, 87
(Cambridge 1988 [1690]).
[24]
Samuel Pufendorf, The Whole Duty of Man, According to the Law of Nature,
Bk. I, Chap. XII (Liberty Fund 2003 [1673]).
[25]
Rommen, The Natural Law, p.207.
[26]
Richard Weaver, Ideas Have Consequences, p.131 (Chicago 1948).
[27]
Edward J. Murphy, “Contract Law and Natural Law” in Common Truths:
New Perspectives on Natural Law, ed. Edward B. McLean, pp.224-25 (ISI
2000).
[28]
Pufendorf, The Whole Duty of Man, pp. 95-96.
See William N. Riley,
“Tort Law and Natural Law” in McLean, Common Truths, Chap. 11.
[29]
Matthew 6:24; Luke 16:13.
[30]
See Austin Scott, “The Fiduciary Principle” 37 Cal. L. Rev. 539 (1949).
[31]
Corwin, The “Higher Law” Background of American Constitutional Law,
p.26 (Cornell 1979). See Ellis
Sandoz, ed., The Roots of Liberty: Magna Carta, Ancient Constitution, and
the Anglo-American Tradition of the Rule of Law, pp.4-5 (U. of Missouri
1993).
[32]
Elias Merwin, The Principles of Equity and Equity Pleading, p.14
(Indianapolis 1896).
[33]
Lon Fuller, The Morality of Law, Chap. 2 (Yale 1969).
[34]
A.E. Dick Howard, The Road from Runnymede: Magna Carta and
Constitutionalism in America, p.331 (Charlottesville 1968.).
[35]
See Paul Johnston, The Tree of Liberty, pp.29-31 (The Locke Institute
1998).
[36]
Professor George Carey has called to my attention the following passage from
Federalist 62: ” It will be of little avail to the people, that the laws
are made by men of their own choice, if the laws be so voluminous that they
cannot be read, or so incoherent that they cannot be understood; if they be
repealed or revised before they are promulg[at]ed, or undergo such incessant
changes, that no man who knows what the law is to-day, can guess what it
will be tomorrow. Law is
defined to be a rule of action; but how can that be a rule, which is little
known and less fixed.” The
Federalist, ed. George W. Carey and James McClellan, No. 62 (Liberty
Fund 2001).
[37]
Walter K. Olson, The Rule of
Lawyers (N.Y. 2003).