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The Intersection of Natural Rights and Positive Constitutional Law Georgetown University Law Center Scholarship @ GEORGETOWN LAW 1993 The Intersection of Natural Rights and Positive Constitutional Law Randy E. Barnett Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1253 25 Conn. L. Rev. 853-868 (1993) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Constitutional Law Commons, Human Rights Law Commons, and the Legislation Commons THE INTERSECTION OF NATURAL RIGHTS AND POSITIVE CONSTITUTIONAL LAW Randy E. Barnett* N his article, Constitutional PositivisiJl/ Fred Schauer makes a I number of intriguing observations about the possible relevance of natural law to constitutional adjudication. He identifies the natural law position as holding that law itself, just like the content of many laws, is derived from fundamental conceptions of morality. As a result, legal sys­ tems (and perhaps even particular laws) unfaithful to those moral conceptions are exemplars of erroneous derivations from first moral principles and are therefore not genuinely legal at all.2 Against this view stands legal positivism which holds that laws and legal systems satisfying certain sociological criteria count as laws and legal systems, regardless of their moral con­ tent. Hence the central positivist claim [is] ... that the exis­ tence of law is conceptually distinct from its moral worth.3 As a conceptual description of law, Professor Schauer endorses consti­ tutional positivism," although he in no manner denies that moral rea­ soning might be relevant to adjudication in some legal system or even every existing legal system. In this brief essay, I wish to describe what I see to be the unavoid­ able connection between natural law--or, more accurately, natural rights-and the positive law that is the subject of constitutional adjudi- * Norman & Edna Freehling Scholar and Professor of Law, Illinois Institute of Technology, Chicago-Kent College of Law. 1. Frederick Schauer, Constitutional Positivism, 25 CONN. L REV 797 (1993). 2. ld. at 799. 3. ld. at 800-01. 4. Elsewhere he identifies his position as "presumptive posith·ism." See Frederick Schauer, Rules and the Rule of Law, 14 HARV. J.L. & Pus. PoL'Y 645, 674-79 (1991). 853 854 CONNECTICUT LAW REVIEW [Vol. 25:853 cation. This connection would exist whether or not there is a conceptual distinction between natural and positive law of the sort that Schauer maintains. Because of this connection, judges in a world in which legal positivism is "true" should act, on occasion, as though the natural rights approach is' correct. And if this is true then, I maintain, the nat· ural rights position, in some important sense, is correct. Finally, I will take issue with Professor Schauer's intimation that the appropriate do· main of moral reasoning is limited largely to constitutional adjudica· tion and to the Supreme Court of the United States.5 I. THE MORAL IMPLICATION OF A PERCEIVED DUTY TO OBEY THE LAW My thesis is really quite simple. While it may be true-as Profes· sor Schauer argues-that we can distinguish conceptually between what the law "is" and what it "ought to be," between "law," on the one hand, and "justice," on the other,6 this distinction establishes less 5. Because Professor Schauer offers so much of his analysis as suggestive and concludes that "[t]here are no answers here," my thesis may not actually be inconsistent with his claims. But I think it is inconsistent with at least some of the impressions his presentation evokes. 6. Dworkin's criticism of this central claim of positivism is considered by Schauer. He rc· sponds that: If Dworkin is right ... the only hope for those who would be morally disturbed by the results that Justice Thomas would reach is to try to get better judges, for the task of trying to get Justice Thomas to lower his moral sights by focusing only on some pula· tively narrower range of materials is, as a descriptive matter, a complete nonstarter. Schauer, supra note I, at 824. In his later writings, however, Dworkin has made clear that he limits the range of interpretation to that which is "internal" to the particular legal system in question. That is, Hercules does not attempt to enforce only just laws, but to lind interpretations of the law that would make it the best law it can be in light of all other decisions, statutes and other authoritative legal pronouncements. In sum, Hercules' task is to rationalize the authoritative legal directives from within his legal universe. Having accomplished this Hercules has stated what the law "is." Nonetheless, this law-even so interpreted-may still be unjust. So while I may agree with Schauer that "the constitutional positivist can study and identify constitutional law as such without approving of it morally, and without feeling any part of the enterprise," id. at 806, I agree with Dworkin that to do constitutional law even a positivist must learn how to think as though he believed in the constitutional enterprise. Schauer himself attributes something like this internal point of view to constitutional scholars and particularly natural law scholars when he asserts that "the typical American constitutionalist thinks that the American constitutional tradition is generally worthy," id, at 805, and that "there is a tendency from a natural constitutional law perspective to think that a good deal of the Ameri· can constitutional tradition has been morally tested and found worthy." /d. To the contrary, natu­ ral law-and especially natural rights-thinking has always been primarily a radical philosophy and for that reason opposed. See, e.g., 2 JEREMY BENTHAM, Anarchical Fallacies, In THE WORKS OF JEREMY BENTHAM 489, 49 I -94 (John Bowring ed., 1962) ( 1838). The basic conservatism of the American judiciary has led it to reject, not embrace, natural law as positing a "brooding omni· presence in the sky." Southern Pac. Co. v. Jensen, 244 U.S. 205, 222 {1917) (Holmes, J., 1993] ON CONSTITUTIONAL POSITIVISM 855 than meets the eye. To understand why, we must consider an interpre­ tation of the natural law-positivist debate that nowadays is dismissed as mundane: "that the natural law position is merely a claim about lan­ guage and about the criteria for proper use of the word 'law' ... ." 1 Though this semantic interpretation of the natural law-positivist debate may be well known and boring, it has a significant moral implication that is widely overlooked. This implication derives from the widespread belief tha_t there is at least a prima facie moral duty to obey the law. While modern legal positivists may deny-as they must if they wish to preserve the value-neutral use of the term "law"-that there is such a duty of obedience, this denial is simply beside the point. For, so long as speaker and listeners both believe that law carries with it at least a prima facie duty of obedience-that law qua law binds in con­ science-then how we use or define the term law is not an arbitrary or value-free matter. The conclusion that a particular course of action is required by law will carry with it the perception that this action is, in a real sense, morally obligatory-at least prima facie. Schauer himself professes neutrality about the issue. He asserts that "nothing about legal positivism entails any attitude whatsoever about obedience to law."8 This claim holds, however, only if law is a strictly value-neutral concept. Only then would the mere fact that something is a valid law carry with it no duty of obedience. When, however, the popular perception that law does carry with it a duty of obedience is taken into account, then asking what counts as law, and thus as binding law (as opposed to positivist law simpliciter), is no longer a value-neutral inquiry. Consider this example: A duly enacted statute requires that people own, possess, and are proficient with handguns.9 If the fact that this statute was duly enacted says nothing about whether a citizen is bound in conscience to obey it, as Schauer maintains, then the positivists are correct in asserting both the conceptual and operational separation of law and justice. If, on the other hand, the fact that this statute was duly enacted means in the relevant community of discourse that people "ought" to obey it, then, at least prima facie, a person would be dissenting). 7. Schauer, supra note 1, at 799 (emphasis added). 8. /d. at 806 n.18. 9. Cf. Alaska Votes to Bar Towns from Regulating Guns, NY TIMES, June 6, 1982, § I, at 27 (describing Kennesaw, Georgia's ordinance requiring a head of household to own and maintain a firearm). 856 CONNECTICUT LAW REVIEW [Vol. 25:853 thought to be acting wrongly not to do so and, significantly, it may then be considered justified to coerce this person to so act. Thus, in a particular community of discourse, the positive meaning of a statute is not limited to what actions it directs (e.g., "own, possess, and be proficient with a handgun"), but implicitly includes the further proposition that "one has a moral obligation (at least prima facie) to own, possess, and be proficient with a handgun and can be sanctioned justly for disobedience." Consequently, as an operational matter, we-meaning both participants in and those observing the legal system in question-must ask whether this further proposition is true. If some person-say a sheriff-files a complaint and seeks legal sanctions10 against a person who has failed to possess a handgun, is this complaint valid? More specifically, is it valid merely because the al­ leged conduct violates a legally enacted statute? Or must considera­ tions of justice or rights be brought to bear so as to decide whether it is in fact justified to coerce a person to perform these actions? Positivists cannot use the term "law" both ways.
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