Fall 2007 • Johnston wr 100 N2/01 September 9, 2007 Summary Analysis of Morton Horwitz Excerpt

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Fall 2007 • Johnston

WR 100 N2/01

September 9, 2007

Summary Analysis of Morton Horwitz Excerpt
The following excerpt is from Morton Horwitz, “Natural Law and Natural Rights,” in Legal Rights, eds. Austin Sarat and Thomas R. Kearns (Ann Arbor: University of Michigan Press, 1996), 41-43.
Much of the confusion over the role of higher law in American history derives from lack of clarity about how nineteenth-century judges and lawyers thought about the question. At the time of the drafting of the Declaration of Independence, there was confusion over at least four different conceptions of higher law.12 The first was medieval Thomistic natural law, with its premise that any positive law that violated natural law was void.13 While this view had never been as influential in England as it was on the Continent, by the late eigh­teenth century it had been largely marginalized by English jurists.14
The communitarian, organicist, and hierarchical character of tradi­tional natural law also began to be transformed by the emergence of individualistic ideas of natural rights in seventeenth-century social contract theories. Emphasizing the primacy of prepolitical rights in nature, the liberal social contract thinkers believed that positive law, especially laws dealing with property, should reflect or mirror those natural rights that individuals retained when they agreed to enter into civil societv.15
In the period leading up to the American Revolution, these two very different versions of higher law were perhaps overshadowed in English and American constitutional thought by the seventeenth­century Whig notion of fundamental law, which usuallv referred to the “immemorial rights of Englishmen” or some other version of im­memorial custom.16 Jefferson’s great accomplishment was in manag­ing to weave all these different strands of higher-law thinking into the Declaration, adding a fourth variation as traditional natural law ideas were slowly reformulated into a Newtonian (and then Kantian) vision of universal (moral) laws.17 By the time the Deist Jefferson appealed to those “self evident . . . truths” deriving from the “Laws of nature” and “nature’s god,” “‘Nature’” in Carl Becker’s words, “ . . . as never before . . . had stepped in between man and God; so there was no longer any way to know God’s will except by discovering the ‘laws’ of Nature ’ . . . ” During the nineteenth century an increasingly secularized natural rights discourse was as often concerned with de­termining what was natural as it was with defining what was right. Social thinkers became increasingly more comfortable with simply describing the inevitable unfolding of progress or of Anglo-Saxon custom, or, indeed, of the survival of the fittest, while becoming corre­spondingly less comfortable with the normative and the prescriptive, especially as it was embodied in the still dominant discourse of reli­gious culture. Under the influence of Darwinism, discovering what was natural increasingly became the dominant medium for prescrib­ing what was right.18 Nature thus became the focus for inquiries into what is desirable.
In “Natural Law and Natural Rights,” Morton Horwitz, a legal historian and critical theorist at Harvard Law School, provides a tentative account of and explanation for the unique development of natural law theory in American history. Horwitz endorses the view that in 19 century America, cases and courts dismissed natural law as grounds for decision as often as they discussed it. Horwitz contends that the understanding of natural law changed over the course of American history. He illustrates his point by discussing the strands of natural law theory entwined in the Declaration of Independence.

Horwitz describes four understandings of natural law, each of which, in his view, found voice in the Declaration:

  1. A natural law theory descended from Thomas Aquinas, whose major Catholic philosophical and scholastic works from the 13thth century remain influential.

  2. A more recent rights-based theory, influenced by social contract theorists (such as Thomas Hobbes and John Locke) who thought that government could not deprive citizens of any rights they held “in nature.”

  3. An influential theory based on English common law and tradition that self-consciously traced itself back to the Magna Charta and articulated itself in language like “fundamental” principles or customs observed since “time immemorial”

  4. A newly articulated strain of thought that reflected Enlightenment notions of universal laws (be they physical or moral).

Horwitz agrees with noted progressive historian Carl Becker that Jefferson wove these four strands seamlessly into the Declaration. The document proclaims the colonists’ right to revolt because an unjust law is void; because the Crown has violated its contract with the people by virtue of its actions; because the British have not preserved the traditional rights of Englishmen; and because people everywhere deserve those rights and protections based on their common humanity and on the will of a benevolent Creator. For these reasons, the Declaration remains one of the most enduring statements of natural law and of fundamental rights in American history. And for these reasons, a host of people and groups over the last two centuries have appropriated its words in the service of their own protests against injustice.

Horwitz goes on to observe, as have many, that the late-19th century decline in natural law corresponded with a late-19th century decline in religious observance. Although the story of natural law’s rise and fall (and, as we shall see, rise again) is far more complex than a simple one-to-one correspondence with the nation’s religiosity, quasi-religious fervor in times of social conflict generates tremendous power. Along with the theme of law and legality, nature and its meanings, and words and their force, the role of religion and belief constitute a major subject of this course.

12 See Carl Becker, The Declaration of Independence (New York: Harcourt, Brace, 1922), 24-79.

13 See O. Gierke, Natural Law and the Theory of Society, 2 vols., trans. E. Barker (Cambridge: Cambridge University Press, 1934); A. P. d’Entreves, Natural Law (London, New York: Hutchinson’s University Library, 1951).

14 See J. Gough, Fundamental Law in English Constitutional History (Oxford: Clarendon Press, 1955).

15 See I. Shapiro, The Evolution of Rights in Liberal Theory (Cambridge: Cambridge University Press, 1986); J. Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980); C. B. MacPherson, The Political Theory of Possessive Individualism (Oxford: Oxford University Press, 1962); M. Kammen, A Machine That Would Go of Itself: The Constitution in American Culture (NewYork: Knoph, 1986).

16 See B. Bailyn, Ideological Origins of the American Revolution (Cambridge: Harvard University Press, 1967), 175-98.

17 See G. Wills, Inventing America (Garden City, N.Y.: Doubleday, 1978), 93-110.

18 See Horwitz, TAL, 140-42, 210, and chap. 4.

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