Sunday, August 30, 2015

Law, Naturally - New Rambler Review John Goldberg on Helmholz

Law, Naturally - New Rambler Review
For reasons beyond my current capacity to explain little heed is paid in the academy to theory's impact on practice; and little heed is paid in practice to theory.  But as John Goldberg shows lawyers have used Natural Law" theory to shape the law.  The idea that truth can be revealed by reason is a powerful one; muddied too often in recent times by positivism and cultural relativism.  Liberals have been particularly prone to dismissing natural law - seeing it as Catholic and therefore suspect.  But the tradition is much richer than that (not that there's anything wrong with being Catholic).
For me the notion persists that there are some fundamental ideas and values that arise necessarily from human society - from human nature.  Respect for each other seems tome to be an irreducible principle of justice. - gwc

by John C.P. Goldberg - Review of Natural Law in Court: A History of Legal Theory in Practice, by R. H. Helmholz
Harvard University Press, 2015

In its 5-4 decision in Alden v. Maine (1999), the Supreme Court held that the defendant state was immune from suit by employees seeking back pay under federal labor law. Writing for the majority, Justice Kennedy reasoned that the Framers of the Constitution did not mean to enable Congress to use its power over interstate commerce to abrogate states’ sovereign immunity. In dissent, Justice Souter accused the majority of erroneously attributing to the Framers a “natural law” understanding of sovereign immunity, according to which it was treated as “a universally applicable proposition discoverable by reason.” In reply, Justice Kennedy insisted that his opinion rested on an “appealto no higher authority” than the Constitutional text.

Evident in this exchange are three ideas about natural law. First, it is “universally applicable” across societies and “discoverable by reason.” Second, it possesses a “higher authority” than mere positive or enacted law. Third, it is not today recognized within our legal system as a legitimate, freestanding ground of judicial decision, which is why reliance upon it is to be disavowed.

In this compact but rich volume, the eminent legal historian Richard Helmholz invites us to look back to times and places, some not so long ago or far away, in which jurists were not so shy about invoking natural law. For each of three legal ‘theaters’—continental Europe from about 1500 to 1800, England during the same period, and antebellum America—he reviews teaching materials and records of court proceedings to give readers a sense of how natural law figured in legal practice.
A third reading of Helmholz’s study—one he seems reluctant to embrace—would take it to suggest that once we better understand what past jurists actually had in mind when they talked about natural law, we will recognize that (for better and worse) we continue to think about law similarly, even though we sometimes use different terminology. Consider in this regard the Supreme Court’s 1950 decision in Mullane v. Central Hanover Bank and Trust Co. It held unconstitutional a New York statute allowing trustees of common trusts to alert potential beneficiaries of trust settlements exclusively through notices published in newspapers. Said Justice Jackson for the Court: “Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” While Mullane rests most immediately on an interpretation of the Fourteenth Amendment’s Due Process Clause, its morally informed reading of that text seems very much of a piece with the medieval ‘notice’ cases that Helmholz describes and, more generally, with the methods of the jurists whom Helmholz so vividly brings to life.

Maybe we aren’t quite the natural law skeptics we think we are.

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