Is There A Higher Law? Does It Matter?

Our friends at Pepperdine mailed to me this week a copy of a recent law review symposium issue devoted to the topic, "Is There A Higher Law?  Does It Matter?"  Pepperdine law professor Robert Cochran offers an overview in his introduction (page iii):

This symposium brings together people from the fields of law, history, economics, theology, and philosophy to address whether there is a higher law, whether it matters, and the numerous other questions that flow from these questions.

Here's the lineup of articles:

PREFACE
Steven D. Smith, Higher Law Questions: A Prelude to the Symposium

HISTORIC PROPONENTS AND THE CRITICS OF HIGHER LAW
Patrick McKinley Brennan, Persons, Participating, and “Higher Law”
Albert W. Alschuler, From Blackstone to Holmes: The Revolt Against Natural Law

LAW AND ECONOMICS, CRITICAL LEGAL STUDIES, AND THE HIGHER LAW
Kenneth G. Elzinga, Law and Economics: Is There a Higher Law?
Peter Gabel, Critical Legal Studies as a Spiritual Practice
John Henry Schlegel, For Peter, With Love

THEOLOGY AND THE HIGHER LAW
Elizabeth Mensch, Cain’s Law
Ellen S. Pryor, What Can We Hope For from Law?
Joan Lockwood O’Donovan, Law and Redemption: Political Judgment and the Church’s Proclamation
William S. Brewbaker III, Law, Higher Law, and Human Making
Yitzchok Adlerstein, Theology and the Higher Law

PHILOSOPHY AND THE HIGHER LAW
Connie S. Rosati, Is There a “Higher Law”? Does It Matter?
V. Bradley Lewis, Higher Law and the Rule of Law: The Platonic Origin of an Ideal
Dallas Willard, Why It Matters Whether There Is a Higher Law or Not

Your law library probably has a copy of the issue (Volume 36, published in 2009).  The Pepperdine Law Review can be reached at 310-506-4764.

Comments

[Alfred]

Thanks for the heads-up, Tim. Looks like a great symposium. For those with access to Hein On Line, here's a link to volume 36:
http://heinonline.org/HOL/Page?handle=hein.journals/pepplr36&id=1&size=2&collection=journals&index=journals/pepplr

[Brian]

It seems like it should have been a short symposium: no, there isn't a higher law; yes, it would matter if there were one, just as it would matter if humans were immortal, or could fly like birds, or cuold become invisible at will.

[Alfred]

Brian's comment reminds me of Daniel Webster's quip during debate over the Fugitive Slave Act of 1850 (I think it was), to the effect of, "how high is this higher law?" That was designed to mock the ideas of abolitionists, obviously.

[Brian]

That's to confuse there being a "higher law" with there being the morally right thing to do, and so actually has nothing to do with my joke.

[Patrick S. O'Donnell]

A sympathetic introduction to the natural law tradition, which of course need not be "religious," is found here in three parts:
(1) http://ratiojuris.blogspot.com/2009/10/natural-law-introductionpart-1.html
(2) http://ratiojuris.blogspot.com/2009/10/natural-law-introductionpart-2.html
and (3) http://ratiojuris.blogspot.com/2009/10/natural-law-introductionpart-3.html

To the reading list in the last post above I would now add S.A. (Sharon) Lloyd's book, Morality in the Philosophy of Thomas Hobbes: Cases in the Law of Nature (Cambridge, UK: Cambridge University Press, 2009). Those not familiar with Lloyd's work on Hobbes should begin with her earlier, and equally remarkable volume, Ideals as Interests in Hobbes's Leviathan: The Power of Mind over Matter (1992).

Incidentally (or not), the most philosophically perspicuous justification of jus cogens norms in international criminal law remains beholden to the natural law tradition, as evidenced, for instance, in the recent works of Larry May (which I've cited on this blog several times). And while Allen Buchanan's tentative yet analytically sound and philosophically sophisticated articulation of a moral philosophy for international law (Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law, 2004) is not, strictly speaking, described by him as part of the natural law tradition, I suspect it could easily be seen as quite close to if not part of same (at the very least, as it is not at all positivist, we can say it relies on a 'higher' law, in this instance, a Kantian-inspired Natural Duty of Justice). When in correspondence I asked Allen about this, his reply suggested that he was wary of the associations of natural law philosophy with religion, although of course there is plausible if not persuasive secular or non-religious natural law philosophy as well (much as there exists 'spiritual' worldviews or philosphies that are not 'religious' in the conventional sense, like Stoicism (or some interpretations of philosphical Daoism), as John Haldane, among others, has made clear).

[Patrick S. O'Donnell]

While I understand Brian's comment, it is interesting that Hobbes referred to the Laws of Nature (which are 'theorems of reason') as "the sum of MORAL philosophy," believing, furthermore, that they were captured in the Golden Rule (what Lloyd terms Hobbes's 'reciprocity theorem').