Anthropology as Prolegomena: First Principles of Human Jurisprudence
Whether we realize it or not, have all witnessed the slow demise of background metaphysics in American jurisprudence. Think back to Ketanji Brown Jackson’s confirmation hearing. After briefly recounting Justice Ruth Bader Ginsburg’s 1996 opinion in U.S. v. Virginia (1996) which struck down the Virginia Military Institute’s male-only admissions policy, senator Marsha Blackburn (R-TN) turned to the nominee and asked her if she agreed that the late Justice that differences between the sexes were “enduring,” and whether she could define “woman.” Judge Jackson demurred. “I can’t, not in this context. I’m not a biologist.” A nominee for the highest court did not have, or did not care to share, a commitment to any particular understanding of human nature at the most basic level. Or, at least, and perhaps worse, she did not think anthropology relevant to her jurisprudence or qualifications as a jurist.
True enough, confirmation hearings are largely theatre and often performatively dominated by the side opposing the nomination. The audience is their constituencies, not the nominee or their fellow senators. Some commentators sought to rehabilitate the now-incoming justice’s statements as a sort of nod to biology as the dispositive definitional source on the question. Of course, that’s more or less what Justice Ginsberg was doing before her. Even read in this favorable light, however, Justice Jackson’s quip is not heartening. Neither was Justice Gorsuch’s unilateral decision to adopt an intersectional approach to Title VII, nor was Justice Kennedy’s ahistorical and amoral expansion of marriage beyond natural boundaries.
Albeit, men and women are obviously biologically distinct, that is not all there is to it. Clinging to the modern, liberal satisfaction with the science, the material, and external as a singularly authoritative source of instruction on the most pressing moral issues of the day will do nothing but recreate the conditions presently emerging, viz., the metaphysical and moral overhaul of our law and culture via its detachment from the transcendent, invisible realities.
Men and women are not distinct simply on account of their genitalia. Sex is deeper than the body. More importantly and basically, man is more than his body; he has a soul too, and his nature is, in a mysterious sense, a reflection of his maker. The dissolution of body and soul occurs only at death. Until then, man qua man is body and soul. Both aspects of his duality are determinative of his duty and destiny. More than temporal purpose belongs to him. He is bound for the eternal.
Material and structural conditions, important as they are, cannot be the sole focus of law if it is to serve, direct, and correct human beings. It must recognize, and account for, man’s whole nature. (We have seen this truth demonstrated in real time over the past two years as pandemic measures prioritized the economic over the spiritual and, in turn, suicide rates, drug use, and domestic violence skyrocketed. Recognition of psychological well-being by law at present is a feeble, secular admission of the soul (psyche).) And this goes beyond conflicts over sexuality, marriage, and reproductivity, or lack thereof. That is to say, the loss in American jurisprudence of more fundamental truths about man’s nature, jettisoned not so long ago, is at the root of many of our present ills.
The cause of this loss is multifaceted, to be sure, but two developments stand out. First, the self-conscious abandonment of the classical natural law tradition, led by the positivist Supreme Court of the early twentieth century. To the chagrin of Protestants, that shift coincided with an ahistorical adjustment in our theology to the same effect. A second development was the bifurcation (and professionalization) of disciplines within the academy. (Contrast James Wilson’s conviction that “religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other.”)
Jurisprudence is a subordinate or subalternate science. That is, it receives its moral inputs, its metaphysical parameters, from disciplines outside itself, higher than itself, viz., philosophy and theology. Detached from its compliments, jurisprudence is bound to err.
Not so long ago, American jurists understood this. As William Novak has observed, the most important questions for such jurists in the early republic or antebellum period were plainly understood to be moral, metaphysical, and natural. James Kent (1763-1847) told his students at Columbia in 1794 that the “mere Mechanical Professors of our Laws” were wrong to discard “doctrines of Moral Philosophy” as the “foundation of Human Laws,” which he considered an “essential part of Juridical Education.” (Query today whether we are tapping mere mechanical professors of our laws for judicial nominations.) For Kent and his contemporaries, the science of jurisprudence began not with abstractions but with “the nature and moral character of Man.” Modern, psychological man is not in view here, but rather man as he was created, body and soul. As James Wilson (1742-1798) put it in his famous Lectures,
Man, the nexus utriusque mundi [“the joining point of the two worlds,” that is, of the material and the immaterial worlds], composed of a body and a soul, possessed of faculties intellectual and moral, finds or makes a system of regulations, by which his various and important nature, in every period of his existence, and in every situation, in which he can be placed, may be preserved, improved, and perfected.
Returning to our inquiry proper, what aspects of classical anthropology, once imbedded in our law, do we need to recover if we are to attempt a course correction?
For starters, we can say two things about man’s nature that law must recognize to be just: he is fundamentally and invariably social and religious. In other words, he is made for communion with his fellow man and with his God. He is not made for isolation. In turn, he is not made for, nor morally capable of, self-definition. American jurists used to know these prolegomena, affirm them openly, and employ the same as the foundation for juridical reasoning.
Sociability
Nathaniel Chipman (1752-1843) began his Sketches of the Principles of Government (1833) with an acknowledgment that man has an “appetite for society… man desires to associate with man,” and to make “social improvements.” Indeed, it is man’s desire for justice, for approbation, in his conscience that leads him to social affiliation. He needs the polis because he desires an embodiment of the judging and approving performed in his intellect. “The sense of accountability is a very principal ingredient in the moral nature of man. When he has done well, he is conscious that he is deserving of approbation; when ill, of punishment.”
Likewise, Zephaniah Swift’s (1759-1823) System of the Laws of Connecticut (1795) ardently denied any Hobbesian (or Lockean) state of nature, as man’s starting point, actually existed. He is not born to barbarism (and neither is he everywhere in chains). James Wilson expressed these convictions most poetically in 1791:
It is not fit that man should be alone, said the all-wise and all-gracious Author of our frame, who knew it, because he made it; and who looked with compassion on the first solitary state of the work of his hands. Society is the powerful magnet, which, by its unceasing though silent operation, attracts and influences our dispositions, our desires, our passions, and our enjoyments…
Some philosophers, however, have alleged, that society is not natural, but is only adventitious to us; that it is the mere consequence of direful necessity; that, by nature, men are wolves to men; not wolves to wolves; for between them union and society have a place; but as wolves to sheep, destroyers and devourers. Men, say they, are made for rapine; they are destined to prey upon one another: each is to fight for victory, and to subdue and enslave as many of his fellow creatures, as he possibly can, by treachery or by force. According to these philosophers, the only natural principles of man are selfishness, and an insatiable desire of tyranny and dominion.
Their conclusion is, that a state of nature, instead of being a state of kindness, society, and peace, is a state of selfishness, discord, and war. By a strange perversion of things, they would so explain all the social passions and natural affections, as to denominate them of the selfish species…
But if we attend to our nature and our state; if we listen to the operations of our own minds, to our dispositions, our sensations, and our propensities; we shall be fully and agreeably convinced, that the narrow and hideous representation of these philosophers is not founded on the truth of things; but, on the contrary, is totally repugnant to all human sentiment, and all human experience.
If man is inherently social, as Aristotle first claimed, then the law he promulgates, which must always accord with the higher law of nature and nature’s God, cannot be self-serving. This is the definition of faction and demagoguery, as James Madison rightly defined it in Federalist No. 10. Law must be for the common good, reasonably fitting appropriate means to justifiable ends. Each society within a polity, the family being preeminent among them, possess a common good. Those discrete common goods must then organically relate to the larger associations outside of them, congruent with the whole polity. In every case, elevation of private interest is the bane of any polity, especially a republic.
As John Adams wrote to Mercy Warren in 1776, republic governments require not only “pure Religion, or Austere Morals,” but also public virtue. That is,
There must be a positive Passion for the public good, the public Interest, Honour, Power, and Glory, established in the Minds of the People, or else there can be no Republic Government, nor any real Liberty. And this public Passion must be Superiour to all private Passions. Men must be ready, they must pride themselves, and be happy to sacrifice their private Pleasures, passions, and Interests, nay their private Friendships and dearest Connections, when they Stand in Competition with the Rights of society.
American jurists must recover the classical definition of law which prioritizes the common good because it knows that man’s individual good, his flourishing, is never found apart from communion with others of his species. So much more so in our particular form of polity wherein, as Barry Shain has discerned, the demand for public service—the genuine article—and a debasement of self-interest were even higher than they had been under monarchy.[10] (Arguably, in a more monarchical, aristocratic society, individualism finds a happier home.)
All of this may be tough for libertarian ears to hear, but a pseudo-positivist jurisprudence controlled only by the maximalization of “liberty” cannot contemplate the true nature and needs of human beings.[11] Man’s liberty must always be defined according to his nature, which is communal. This does not subvert his dignity but establishes it. Human rights are relational. By extension, society as the compound moral person, to invoke Samuel Pufendorf (1632-1694), possess rights qua society, as the forgotten case, Mott v. Pennsylvania Railroad Company (1857), explained so well.
If rights are more relational or relative than absolute insofar as they are never expressed in the abstract (i.e., apart from community), and if they only belong properly to human beings, then it follows that a “right” which subverts either human nature or society is not cognizable. Griswold, Roe, Obergefell, Bostock, and the rest are just as subversive as Plessy v. Ferguson ever was. For that matter, so was the coldness of Lochner, but I digress. (It is no coincidence that the first Justice Harlan, perhaps, the last classical jurist on the bench, dissented in both of the latter two cases.)
Religiosity
So much for man’s sociability. What of his religiosity? The sensus divinitatis is well established in the western Christian tradition. Memorably Augustine expressed it thus in his Confessions: “Thou hast made us for Thyself, and our hearts are restless until they rest in Thee.” Again, if law is to be a rule of action for man, then it must comprehend man qua man, his social and religious instincts.
At bare minimum, past American jurists recognized man’s dependence of law’s obligatory force on recognition (and even worship) of God. Citing Burlamaqui’s Principles of Natural Law, Wilson says in his lectures that it is a “solemn truth” that
properly speaking, there is only one general source of superiority and obligation. God is our creator: in him we live, and move, and have our being: from him we have received our intellectual and our moral powers: he, as master of his own work, can prescribe to it whatever rules to him shall seem meet. Hence our dependence on our Creator: hence his absolute power over us. This is the true source of all authority.
He comments further that this principle “resolves the supreme right of prescribing laws for our conduct, and our indispensable duty of obeying those laws, into the omnipotence of the Divinity. This omnipotence let us humbly adore.” This dependence of man on God is the basis of all derivative, creaturely law.
Further still, if man is made to be religious, and law must be oriented to the common good, then law must protect and even direct according to the highest common good, true religion and God himself (the most common good of all). The legislative competency, so to speak, of lawyers and lawmakers is decidedly limited to an indirect role on this front; an important one nevertheless.
Here, law can protect and privilege the means and organs or religion for man’s good. American caselaw from People v. Ruggles (N.Y. 1813) and Updegraph v. Commonwealth (Pa. 1824) to Vidal v. Girard’s Executors (1844) and Church of the Holy Trinity v. U.S. (1892), courts affirmed Christianity as intricate to the common law, as Matthew Hale had declared in Taylor’s Case (1676), and national character. Repeatedly, Christian doctrine was protected from blasphemy and Christian worshipers protected from encroachment of the economic upon the spiritual (i.e., Sabbath laws).
To boot, state constitutions codified Sabbath observance from the beginning. One representative example is article 3 of Vermont’s constitution (1777): “every sect of denomination of Christians ought to observe the sabbath or Lord’s Day, and keep up some sort of religious worship, which to them shall seem most agreeable to the revealed will of God.”
But state constitutions went beyond the Sabbath, explicitly privileging Christians (often Protestants, in particular) as to officeholding. Massachusetts (1780), South Carolina (1778), North Carolina (1776), Delaware (1776), and Vermont (1777) all did so. Article 19 of New Jersey’s constitution only extend full protection of civil rights to Protestants. And so on. The impetus for these provisions was to ensure governance by adherents of true religion so that the religion of the people would be secure. Behind this was the understanding that religion and concomitant virtue were essential to a healthy polity—most everyone of the founding generation (not just the “founders,” mind you) believed this and said as much.
If man is religious, then societies must be religious. The only real question pertains to the brand of religion in play. As Thomas Pink astutely notes, in this sense, all societies are always, already integralist. Law is informed by a central morality or cult, and, thereby, subordinated to it. Secular neutrality is an oxymoron, and was rightly understood as such by jurists of a bygone era. It is unavoidable that the sensus divinitatis finds socio-political expression.
Conclusion
On account of both qualities of man briefly surveyed here—sociability and religiosity—the sweet mysteries of life are not his to determine. If well ordered in his evident liberty, he is not permitted to dictate to, nor froth against, the givenness of his condition, his dependency on God and his fellow man. He is designed for communion with others of his species and destined to give an account to his creator for his dealings with them. In other words, he is a creature bound by standards of justice not derived from his own preferences. (Crudely that the fact of his genitalia evidences this, no matter what technologies he can develop to try to mutate it according to a learned delusion.) Man is not to atomize himself, to prioritize his will above all else. Neither is he permitted to cultivate a society purportedly or aspirationally neutral to his ultimate and final end, the glory of the Lawgiver himself.
Man’s social, rational, moral nature is the principle from which all else (in terms of social order) follows, the thing which law cannot violate and remain an ordinance of reason for man’s good. If we want just, morally coherent law, then we must recover an appreciation of man’s sociability and religiosity.
A version of this post was originally delivered as a paper at the Hale Institute Symposium, “Law at a Crossroads: Natural Family or Justice?,” May 2022.
