Reason and morality are prior to the law

The opening chapters of the Bible reveal three elements of creation order that are necessary for human civilization.

These pillars, revealed in Genesis 1-2, are basic ingredients to survival and flourishing. A sane and just society would recognize them. Indeed, in times not so distant, our society—and its laws—did make that acknowledgment.

The first is the very fact of our existence implies that the lives of human beings are the result of divine action. To be human, by definition, is to live, which expresses itself in the desire of those alive to continue living. A decent society will respect the human person and afford to him or her the ability to develop and live.

The second element the earliest two chapters of Genesis teach is that human beings are not an ungendered species. We are male and female. Male and female are fixed categories, and at every point of our existence our lives are mediated through either male or female embodiment.

Third, these living beings who are either male or female possess the bodily design fit for reproduction. Reproduction is not just another bodily act like playing basketball. It requires two persons given entirely to one another with the understanding that the potential for reproduction implies a uniquely deep commitment. Under ideal conditions, the pair who create new life are uniquely suited to care for their offspring. Marriage, which the Bible prescribes as the context where new life ought to be brought into being, has existed for millennia as the comprehensive bond that seals the fact of embodiment with the potential for reproduction and the need for children to be nurtured.

There’s a sequence in Genesis that fills out the foundation for social order, including an acknowledgement, respect, and privileging of life, embodied identity, and family formation. All are deeply moral realities meant for our good and call out for universal recognition in the surest way possible, namely, in legal code.

Increasingly, our culture and our laws are deeply hostile to creational order as revealed in Genesis. Abortion, transgenderism, and gay “marriage” are all acids to the formative scripts that people need to live out in order to thrive. As society slouches more into the direction of Gomorrah, political authority will seek to enlarge itself to repair what is broken and, in turn, weaken its own legitimacy by making it harder to discern and achieve what is necessary to prosper.

Conservatives have our own share of blame for this. At least in their jurisprudence, conservatives have sometimes sought to bypass the substantive questions of morality and its inherent connection to law and base arguments instead in the thin gruel of “proceduralism.” Consider David French’s column where he lambastes the Florida legislature’s revocation of Disney’s special privileges. Recall that the Florida legislature revoked Disney’s privileges after Disney came out against a popular Florida law that would restrict the teaching of controversial sexual topics for young students in public schools.

Now, on the surface, I cannot accuse French of outrightly defending laws that allow public schools to teach highly sensitive topics to children. At some later point in the chain of reasoning, though, substantive moral claims end up merely disguised as procedural defenses of constitutional liberty claims. One can conceivably insist upon defending a procedural liberty to do X (which may be morally neutral) but eventually, if you end up defending the liberty of Y (that is, in fact, morally wrong) you end up defending Y outright, not just the liberty claim. Behind all law is ultimately a moral claim that the freedom to do X is in some measure defensible in the pursuit of the common good. But not everything actually aims at the common good.

But what is the purpose of law if it cannot differentiate between that which is prurient, perverse, and contrary to the common good from that which furthers humankind’s true end, as Florida’s law sought to do? If law cannot forbid teachers from talking about gay sex with young kids, we may need to question whether our understanding of “liberty” is worth defending at all.

As Hadley Arkes writes in a new book releasing today, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, the logic of law should be symmetrical with the logic of our morality. Law should direct individuals in the pathway of what is good and true. As Arkes writes, “if we seek to close down the freedom of people on any point, or close down their private choice, we are obliged to show that we have, as the ground of our policy, a principle of justice that would hold its validity for everyone who comes under the law.”

Arkes is not trying to justify an authoritarian use of natural law, only the application of natural law where the principles of justice and practical reason’s consideration of moral goods demand it. Indeed, as Arkes argues, borrowing from the likes of C.S. Lewis, if law aims at what is just, there are axioms of reason that one must employ in order to know what is just. In the words of Arkes, morality is unavoidable in legislating. If justice is to be achieved, we must first know what justice means.

Hadley Arkes’s argument should advance some important conversations in conservative circles. Those conversations need to begin with the acknowledgement that morality and reason are prior to the law.