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Hadley Arkes spoke at Benedictine College in Atchison, Kansas, about the Natural Law in a lecture sponsored by the Center for Constitutional Liberty. Isaac Michael, a Constitutional Fellow who recently won a regional moot court competition, introduced Arkes.
Dr. Arkes is the author of many books on politics, political philosophy and jurisprudence, including First Things (1986), for which the ecumenical magazine First Things was named. Arkes spoke at Benedictine College on his newest book, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution (2023).
In addition to academic writing, he has been published in Wall Street Journal, the Weekly Standard, and National Review. He is credited for the bill that became known as the Born-Alive Infants’ Protection Act. The account of his experience with that bill is published in his book Natural Rights & the Right to Choose.
Following are quotes from his lecture. Watch the whole thing here.
Children See It
“In C.S. Lewis’s Mere Christianity he pointed out that in the conversation of children we find the rudiments of moral reason. They’re not really arguing over likes and dislikes — they’re having moral arguments of things that are right and wrong, and they’re bringing forth rules. ‘We did this last week. Why aren’t we doing it this week?’ They’re bringing forth rules and the conversation makes no sense unless everybody assumes their standards for judging right and wrong. The move here is to go back to those Common Sense principles of moral reasoning that children and ordinary people will grasp before they’ve been immersed in theories of all kinds.”
“I’m appealing here to that great Scottish philosopher Thomas Reid, who was read closely by American Founders such as James Wilson and John Adams. Reid made the impressive case for those ‘principles of common sense’ that the ordinary man not only has to know but must virtually take for granted in getting on with the business of life. These are the things that ordinary people have to understand before they start trafficking in ‘theories.’”
“The true “first principles” in our law are indeed instantly understood by ordinary people, even though the vocabulary of lawyers or philosophers doesn’t come as readily to their lips. But from those anchoring points, we can draw out the strands that run pervasively through our laws.”
Natural Law and the Speeding Limit
“I’ve been doing ‘round the clock interviews on this book and podcasts. I’m often asked, ‘Professor, could you explain to this audience: What is natural law?’ Fair question! So I dip into Emanuel Kant and Aquinus and tell them it’s the laws that underly all of our laws. They tell us why we’re justified in having positive laws. We see the signs saying 65 mph 35 mph — but behind those laws, as Kant would tell us, is an underlying natural law that tells us why we are justified in restraining the freedom of people to drive at speeds that put innocent life at hazard.”
Our Law vs. Stalin’s
“I was on a platform years ago with that Professor from Notre Dame — Amy Coney Barrett — and someone asked her, ‘Why do you have such reverence for the positive law? What makes the positive law in America stand on a higher plane than the positive law in Stalinist Russia?’ She was a bit taken aback by the question. This was not what she was used to. But the key really lay in that string of three questions from John Locke:
Who Can Enslave You?
“In my teaching I found have no example which when offered is more instantly understood as an example of natural law reasoning then that fragment Lincoln wrote for himself in which he imagined himself to be engaged in a conversation with an owner of slaves. He puts the question, ‘Why are you justified in making a slave of the black man? Is it because he’s less intelligent than you? I’d beware the next white man who comes along more intelligent than you. He may rightly enslave you. Is it because he’s darker than you? Beware again the next white man who comes along with a complexion even lighter that yours. He may enslave you.’”
“We drew on just the same natural law reasoning on the matter of abortion. ‘Why is that offspring in the womb anything less than human? Because it doesn’t speak yet? Neither do deaf mutes. It doesn’t have arms or legs? Other people lose arms or legs in the course of their lives without losing anything necessary to their standing as human beings due to receive the protections of the law. There’s no appeal to Faith here. You don’t have to be Catholic to understand this position.”
The Clarity of the Natural Law
“There’s nothing the least foggy about these principles. They may be precise and concrete as they bear on the cases before us. There is nothing inscrutable about them — they do not suddenly become wooly or inscrutable to any man if he puts on the robe of a judge. This jurisprudence I’ve been describing finds its ground in real principles, propositions true of necessity.”
The Ubiquity of the Natural Law
“It was just as Socrates was said to have brought philosophy down out of the clouds to bear on questions of right and wrong that arise every day. Now what we’re trying to do is bring natural law down out of the clouds where people regard as some kind of a foggy theory. To ask whether the judge can get through the day with without relying at every turn on the strands of natural law is rather like asking can I order the coffee without using syntax. He’s using it every time, even when he’s unaware that he’s using it.”
The Constitutional Order Is Not Relativistic
“The constitution is not based on a doctrine of moral relativism. The god of the Declaration was not indifferent to Satanism, radical evil. Some people say, ‘If we have religious freedom it must include everything that calls itself a religion, including Satanism or the Church of the Flying Spaghetti Monster.’ It is radically wrong to assume that this Constitution and its understanding of religion or anything else was based on such doctrines of relativism. We are not delivered from the need to reach moral judgments even about some things that are taught and offered under the name of religion.”