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A Thomist at Berkeley

BOALT HALL NATURAL LAW SCHOLAR

By George Neumayr

The Natural Law is a passé subject at many Catholic law schools today. It survives, if at all, as an embarrassing relic from the Church's distant past. "It is almost impossible to have a conversation about religion and philosophy," says law professor William Basset, referring to the Jesuit University of San Francisco's law school. Students "don't care about religion" and law and few faculty members "have a background in the Catholic faith."

The Natural Law, ironically, finds a more a congenial home these days at serious secular universities. James Gordley, a professor of jurisprudence at Boalt Hall, UC Berkeley's law school, is an outstanding local example of this phenomenon.

A convert to Catholicism, Gordley told the Faith that Boalt Hall is far from hostile to the Natural Law tradition. "I got tenure for defending medieval theories of just price.That was my article."

The Natural Law-- God's plan for man-- isn't a legal theory, but an ontological reality, says Gordley, without which law is absurdly arbitrary." Deny that there is any good or evil in human actions or any better or worse ways of living your life and very rapidly human choice becomes meaningless.... Deny it and see what happens-- you will get a conclusion that either takes you nowhere or takes you to some absurdity."

Gordley teaches property law, torts, and contracts. The Natural Law, he says, is not explicity contained in his courses. However, "I think there are better and worse answers to the questions every law professor raises when he teaches contracts, property and torts. And to say there are better and worse answers to a legal problem, I think, is to say exactly the same thing as there is a Natural Law."

Gordley's approach to teaching is Socratic, Aristotelian and Thomistic. He starts his discussion with students with concrete instances of right and wrong and then moves to general principles of justice. "Suppose somebody makes lot of smoke on his land and it smokes out his neighbor. You are not going to be able to figure out the limits on how much smoke he can make by saying the owner ought to be able to do whatever he wants with his property, which is what 19th century people like to say. You can say that but it does not help. The reason is that if I made so much smoke that my neighbor could not use his property, it sounds like that would interfere with his rights. But the minute you tell me how much smoke I can and cannot make on my property it sounds like you have interfered with my rights. So you have to go at that and then search around for a more sophisticated set of principles and explain where one person's rights end and where the next person's rights pick up.

"You can have a class discussion about where that limit should be and you're approaching the problem in just the way your colleague in the the next classroom would be discussing the same problem with his group of students. You are also approaching it the same way people did 400 or 500 years ago, beginning with particular instances of right and wrong. Making too much smoke is bad but not being allowed to make enough smoke to cook a hamburger is bad. If you were doing it the other way, for example, by starting out with some big axioms about justice and man and then deducing downward you would be doing the very rationalist thing that got natural lawyers a bad name. It is not Thomas; it is not Aristotle."

Gordley's favorite books, naturally, are Aristotle's Nicomachean Ethics and Aquinas's treatment of Justice in the Summa. But he didn't begin his intellectual life in their tradition. After graduating from the University of Chicago, he attended Harvard Law School, where he learned the positive law tradition, a system in which all law is merely man-made. Unimpressed, Gordley began reading a friend's copy of the Summa. He quickly discovered in it "solutions" to the confusions inherent in the positive law tradition.

"Positive law is like saying that the answers to any legal problem must be there in the sources which are legally authoritative in your country. But how can the answers be there? With every legal problem you can see that they haven't thought of all the answers to every legal problem. So it must be that there are no answers, which is distressing because that would mean we just make up the law when we decide the case, or it must be that there are answers which are more or less appropriate to the problem just given the nature of the problem independent of the lawgiver....[For example], if you think that contract means nothing except what the parties expressly had in mind to be willed to be bound by, you have a tremendous number of problems to make contract law work because there are all sorts of situations that come up which the parties never thought about....And morevoer it is hard to see how a contract can be fair or unfair if it is nothing more than the will of the parties. And yet judges are always declaring contracts to be fair or unfair. And when they interpret a contract they are trying to put in fair terms."

Gordley notes that the positive law tradition borrows from the Natural Law tradition without acknowledging it. His positive law colleagues "spend half of their time trying to find principles that make sense and the other half of their time believing that there is nothing in particular that might make one principle more sensible than another." This ambiguity hardly bothers them. "Most of my colleagues would not think it was a contradiction. And those who do think it is a contradiction do not worry particularly about it. I have one colleague who said, 'Maybe it is like Mickey Mouse in the cartoon walking off a cliff. As long as he doesn't look down, he doesn't start falling."

Having studied the Cartesian turn in philosophy away from realism-- a shift which established as the philosophical norm that mind is the measure of reality, not reality the measure of mind-Gordley understands his colleagues' attachment to positive law.

"There is a very strong intellectual tradition that goes back to the 17th century and came with the rise of modern philosophy that says that there cannot possibly be a Natural Law or anything like it...I understand it is very difficult when you are brought up in a modern philosophical tradition to get out of it. It is not just a matter of questioning its premises, because its premises do not take the form of a series of propositions which one might question. They take the form of a certain method that is to be followed in establishing if something is true. {In their system} you can't deduce it from something you have observed...All reason is deductive reason. It is very hard to get away from that if you have been brought up in it."

Gordley also suspects that the positive law tradition-- as an expression of moral skepticism and relativism-- is bound up with a mistaken view of Democracy.

"In a Democracy one of the important principles is that, in general, as a matter of principle, each person's voice counts that same; each person's opinion counts the same. Now it is very easy to move from that principle to the mistake of thinking that nobody's opinions are worth more than anybody else's. I think some people like moral skepticism because then it makes it sound like nobody's principles or opinions could be worth more than anybody else's. So they think it is a defense of Democracy. The fact is you can believe in Democracy and still believe that some of the people are right and some of the people are wrong. In fact, you might think Democracy is a good way to tell."

Gordley, who has taught and lectured, among other places, in Milan, Cologne, Munich, and Florence, believes that the Natural Law tradition is growing in popularity. "There are more people around today in law schools who are willing to take the Natural Law tradition seriously than there were 50 years ago. In that sense you can say it is on the rise." But popularity or no, the Natural Law is perennial principle, says Gordley. "It is either there or it isn't. If it is there, it is for everybody."

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