Legal Historian Helmholz Makes Case for Studying History of ‘Natural Law’ at ASLH Annual Meeting

Former Washington University School of Law professor and current National Council member Dick Helmholz returned to campus recently to deliver the plenary lecture at the American Society for Legal History (ASLH) Annual Meeting.

Helmholz, currently the Ruth Wyatt Rosenson Distinguished Service Professor of Law at the University of Chicago, began by noting that he had grown up “a few blocks from” the university, where his father taught in the Chemistry department.

“When I had finished graduate study and was looking for employment, I was lucky enough to land back here,” Helmholz said. “I have watched the improvement both in the university’s substance and its reputation with great pleasure in the years since I struck out on my own.”

A renowned legal historian, Helmholz focused his plenary address on “Five Half-Truths of Natural Law in European and American History.” The plenary session and reception, held at the law school, was part of a two-and-a-half-day conference that brought more than 300 international scholars in legal history to St. Louis. David Konig, professor of law and of history, served as the Local Arrangements Committee chair. Committee members also included Deborah Dinner, associate professor of law, and Elizabeth Borgwardt, associate professor of history.

In his keynote address, Helmholz noted that natural law, which refers to the belief that natural order provides the basis for our actions, has strong historical roots.

“Before sometime in the middle of the 19th century, the law of nature was accepted as a legitimate source of law by virtually all lawyers in Europe, England, and America,” Helmholz said. As a result, its “present status as the enthusiasm of a few, and a doubtful enthusiasm in the opinion of most of us, should not blind us to its importance in history.”

Helmholz said his study of court cases from the European Continent from 1550-1700, of England before 1800, and of the American Republic from its founding to the Civil War demonstrates that several generalizations about natural law “may be fully true as a matter of jurisprudential theory, but only half-way true as a matter of what the law meant in practice.”
Helmholz’s five half-truths of natural law are: 

  • St. Thomas Aquinas was the leading and most influential expositor of the law of nature. This pronouncement, although defensible, ignores the intervening writers on the law of nature, such as Hugo Grotius or Francisco Suárez. In addition, Helmholz observed that “Aquinas was virtually never cited in the Continental Decisiones or in the American or English case law.” 
  • The application of the law of nature was deductive—one moved from self-evident principle to its application in the world. However, Helmholz’s readings of natural law jurists contained numerous examples that are much more than “bloodless deduction.” He notes that Suárez, for example, “held that the value of natural law principles could be shown not only by logic but also by what he called ‘a certain induction,’ which he illustrated by stories taken mostly from the Bible.” 
  • Laws of nature were unchangeable over human history and invariable throughout the entire world. This was true, but in practice, Helmholz observed, natural lawyers left room for change in the natural law’s application. Suárez argued that while natural laws may not vary, “the application of their precepts in law and society might.” In case law, “variation seems to have been the order of the day,” he noted. 
  • The law of nature had a strong impact on the European continent, but made little headway in English and American law. As evidence to the contrary, Helmholz noted that Sir William Blackstone—“the English lawyer who had the greatest impact on the early years of American law”—often “evoked the concept of the law of nature or natural law” in his writing. In fact, Europeans “made use of natural law but in no greater numbers and in no greater import or impact than one finds in the American and English decisional case law.” 
  • Positive law was tested against natural law for validity. Helmholz said that his study of the Continental Decisiones and English and American cases suggests “that the law of nature was used to challenge the application of statutes to specific cases, but it was balanced by competing arguments from policy and it was virtually always coupled with citations to positive law.”

Other conference highlights were a reception in honor of Senior Circuit Judge Morris Sheppard “Buzz”Arnold of United States Court of Appeals for the Eighth Circuit, meetings of various ASLH committees, and more than 25 panel discussions and roundtables on topics ranging from “Revolutions, Coups, Constitutions, and Religion in the Modern Middle East” to “Legal Innovation in Twentieth-Century California.” Visiting Assistant Professor Julian Lim presented “African Americans and the Construction of Immigration Law on the Border” as part of a panel on “Immigration Law in the Americas,” chaired by Adrienne Davis, vice provost and the William M. Van Cleve Professor of Law. Konig also served as a commentator for a panel on “Property and Liberty in the Long Nineteenth Century.”

 

For more information on the conference, visit the website.