The James Wilson Foundation on Natural Rights and the American Founding

“Why I Am A Natural Lawyer”: Prof. Paul R. DeHart in Law & Liberty

In an essay for Law & Liberty, James Wilson Institute friend Prof. Paul DeHart responds to Prof. F.H. Buckley’s attack on natural law as the foundation for conservative jurisprudence. In an earlier piece for Law & Liberty, Prof. Buckley accused natural lawyers of Pelagianism and argued that natural law theory fails to answer the Humian is-ought problem, the epistemological claim that no ethical “ought” fact can logically follow from an empirical “is” fact. Prof. DeHart responds by pointing out the dangers of moral relativism explicit in David Hume’s work and argues, invoking Scottish ethicist Alasdair MacIntyre, that the is-ought problem is no problem at all for a metaphysic that does not reject final causes (teleology). He answers Buckley’s charge of Pelagianism by arguing, in agreement with C.S. Lewis, that the fundamental reality of humanity is that people both know the natural law and transgress it. According to DeHart, any intelligible account of law and moral order requires that rational creatures be able to know a priori moral principles, even if their fallen disposition is to violate those principles.

Some quotes from the article:

“[Buckley’s] essay advances an account of natural law advanced by no natural lawyer of my acquaintance and struck me as deeply unsound. Moreover, Buckley proposes replacing natural law with a radical ethical voluntarism that make good and evil wholly arbitrary and dependent on nothing but arbitrary omnipotent will or irresistible power.”

“In Western thought the idea of natural law is as old as Antigone’s invocation of the eternal, unwritten laws against Creon’s insistence that the ruler established by the city must be obeyed no matter what—whether what the ruler commands is big or small, just or unjust.”

“The voluntaristic ‘Augustinian’ Buckley describes would be in as much trouble as the natural lawyer if Hume’s argument is both valid and sound. Fortunately it is not (certainly not in any kind of incontestable way that proponents of natural law are bound to take seriously).”

“Scratching my finger or the preservation of all humanity—there is no moral reason, on Hume’s position, for preferring the one to the other. There’s no moral reason for preferring saving a drowning baby to genocide on Hume’s account of rationality. Hume’s position entails radical normative skepticism.”

“As Lewis says at the end of Chapter 1 in Mere Christianity, ‘the foundation of all clear thinking about ourselves and the universe we live in’ is that human beings ‘know the Law of Nature’ and ‘they break it.'”

The full article can be found here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790