Why Bother Discussing Morality and Natural Law

Theories of natural law hold that the world follows fundamental rules of justice that are always and forever morally correct. Those who unironically call themselves “legal realists” counter claim that values are variable, and that what is ruled to be fair true or moral turns only on the perspective of the relevant lawmaker. I posit, however, that even the most seemingly clearcut manifestations of legal realism (such as two judges ruling differently on the same set of facts), are never completely devoid of the fantasy of natural law. I then propose that even if we know natural law does not exist, we should still pretend it does.

To claim that legal realism is totally unconcerned with morality and monogamously grounded in efficiency is patently false, but we all know that. The world and every system of law is full of compromises on growth in the name of liberty or equality. It is fine to concede that universal morality is a sham, but we do, in practice, ground much of our legal systems in this faith. Thus, it’s perhaps worth defining what it is or what it should be, for even if morality cannot be objective, I still think it a worthy venture to define justice, and to put our finger on what we mean or think when we call something just or unjust.

Is justice liberty? In the name of candor and open bias, I will confess that my personal belief is: No it is not. Regardless, it’s a common conception and thus worth exploring. If justice is indeed liberty, is that misleading? Is it sad? If liberty is the freedom to act as one desires, then it is inherently individual and thus inescapably incomplete. There is no way to, in the simultaneous name of both liberty and justice, uphold one’s freedom to discriminate and another’s freedom to not be discriminated against. Guaranteeing liberty requires making somebody else provide it. This problem is why T.H. Green held that the absence of compulsion isn’t enough to make a person free. How can you separate one’s liberty to enslave from one’s liberty to not be enslaved without seemingly compromising on pure liberty and admittedly incorporating other moral principles? If justice is symbolized by scales, and liberty is inherently imbalanced, justice cannot be fully described as and incapsulated by unfettered liberty.

Is justice inequality? Is this unrealistic? Is it scary? Is it inefficient? Is it backwards? It’s hard to envision a society we would call “just” with pervasive inequality, and yet harder to envision any society with no inequality at all. The first question to tackle in deciding whether justice is equality is whether inequality is natural or engineered. America's founders believed the principle of equality to be “self evident,” however, what is self-evident today in fact is gross, nearly vulgar, inequality in power, wealth, influence, education, achievement, and ability. I am not convinced that it is worthwhile to venture through history to determine whether inequality has always existed, because just as societies have conquered many of the challenges of the natural world — making childbirth safe for women or beating back common illnesses that once were frequent killers — we can alter the course of inequality, too. Moreover, it is at least certain that a nation’s level of inequality is the result of its policies and institutions, so even if perfect utopian inequality is unrealistic, the pursuit of justice can be the pursuit of moving away from dystopia. With that being said, if inequality is natural and universal, when can we say that it is unjust?

I am struggling deeply to articulate why equality is a worthwhile goal or value. In stubbornly resisting the urge to resort to efficiency arguments about mobility and growth, I am left with nothing but timid ambition that to cite compassion is sufficient, convincing, and true. I am consistently disenchanted with theories lodged in the assumption that people are inherently selfish and individualistic. I see no reason why we care about justice and defining it as we do if not because we are inherently concerned with being benevolent. Ostrom’s work on common pool systems – societies in which the resources were pooled for the good of the community, is often at odds with individualistic conceptions of human nature and the supposed inevitability of private property and “natural” value of liberty. I said in my first paragraph that even if natural law doesn’t exist, we’re better off pretending it does, and that’s because individualism is a self-fulfilling prophecy. If we believe “society” is but a constant struggle to keep a lid on an underlying selfish and evil human nature, it shapes the way we relate to our humans. As a society, if we subscribe to the theory of inevitable individualism, we condemn and limit ourselves to trying to manage individualism, just to prevent it from getting out of control. Managing individualism shouldn’t be out priority or structural basis because our individualism is not the sum total of who we are, for we are actually, maybe even naturally (?), more cooperative than selfish. I hold sincerely that compassion exists deep in our nature, and perhaps we can ground the objectivity of the natural law of justice not in the truth of the universe, but in the truth of humans. If compassion, and a belief in community and equality, exists within us, then it is true and natural. It is the natural law.