Christopher A. Colmo
Professor of Political Science
In an article on Justice William J. Brennan for the 1988 Cardozo Law Review, George Anastaplo writes that “it may require considerable effort to clear away the superstructure of interpretation that conceals from view the original framework” of the Constitution (CLR, 217). I think the central section of his carefully crafted article shows Mr. Anastaplo at work trying to clear away the superstructure for one aspect of nature.
In his Cardozo article, Anastaplo seeks to discover, “however tentatively, the natural reach of the law” (CLR, 213). He suggests that this task is in some way similar to looking for the “original intent” of the Constitution. In the case of the Constitution, Anastaplo, in a commentary on the Constitution of 1787 (which was written two years before his Cardozo article), bypasses the voluminous scholarly and judicial interpretations in order to look directly at the text of the Constitution (CLR, 214-15).
In the case of nature, however, it may be impossible to go directly to the natural things, bypassing everything that human beings may have added to nature. Anastaplo turns not to nature (however one might access nature directly) but to what human beings say and have said about nature. Whether in so doing he is consciously recurring to Socrates’ turn to speeches in Plato’s Phaedo (99d ff.), I do not know. However that may be, Anastaplo, in his Cardozo article, turns to the speeches of Thomas Hobbes in order to discover the “original intent” of our own “rule that we are free to do whatever the law does not forbid us to do.” Lawyers, he notes, “are typically asked by clients, ‘Can I do such-and-such?’” (CLR, 207). Anastaplo’s archaeology of this Anglo-American opinion about liberty leads him back to Chapter 21 of Hobbes’s Leviathan. “In cases where the Soveraign has presented no rule, there the subject hath the Liberty to do, or forbeare, according to his own discretion.” Anastaplo thus finds in Hobbes the origin of what some “identify as natural-right principles to support the cause of individualism and private property” (CLR, 207).
Does Hobbes thus reveal the nature of nature? Anastaplo writes, “We can better appreciate the Hobbesian, or modern, position by noticing how different Aristotle’s approach to these matters seems” (CLR, 209). Anastaplo then goes on to explicate Aristotle’s observation in the Nicomachean Ethics that “the law does not command killing oneself. And those things which it does not command, it forbids” (CLR, 210). “Aristotle,” he says, “challenges our facile assumption that our lives are ours to do with pretty much as we please” (CLR, 210). Anastaplo means to do more than to juxtapose two views of the scope of the law and, hence, of the nature of the political. His detailed discussion of the rules and customs that bind the nursing profession (CLR, 208) is just one of the ways in which he tries to show us that the Hobbesian doctrine obscures for us “the natural comprehensiveness of the claims of law” (CLR, 210). “[W]e do not recognize how broad the scope of the law, in its full sense, is for us as well” (CLR, 211). Anastaplo says, in a discussion of psychiatry and the law, that “it is natural to have conventions” (The American Moralist, 414). Our failure to see the natural scope of the law may leave us “very much subject to chance even as we believe ourselves free agents” (CLR, 211).
Part of Anastaplo’s argument is that “the religious teachings that can be so important to us are really the directives of some community, however much this fact is obscured for us by our doctrines about ‘the separation of church and state’” (CLR, 210-11). We do not recognize the theological dimension of the theological-political problem, but that does not mean it is not there.
Anastaplo’s appeal to nature is at least in part an attempt to expose the opinions that cloud our view of things that might otherwise seem obvious. His exploration of the “natural comprehensiveness of the claims of law” (CLR, 210) certainly casts doubt upon the attempts of John Rawls and others to distinguish between the right and the good. But Anastaplo goes further than to expand (reveal?) the sphere of the political by asking in addition whether there are “knowable standards of right and wrong” and whether these might be regarded as “objective” standards (CLR, 204). Indeed, he goes so far as to suggest that a “natural-right teaching…is likely to include a determination of what the proper roles are in a constitutional system for judges, legislators, and executive” (CLR, 206). Can all of this be derived from the “natural reach of the law” (CLR, 213), or does not the reach of the law set natural limits to what can actually be based on nature? It is natural that there be conventions.
Let us assume for the moment that some standards of right and wrong are based on nature. Perhaps the right against self-incrimination would be a good example (CLR, 209). Is nature authoritative even when she does speak? In a wonderful essay called “Are the Moral Virtues Grounded in Nature?,” Anastaplo raises this question in two paragraphs he identifies as a digression:
“What, if any, basis is there, then, for morality in nature? A digression may be of some use as we refine this question further. Aside from the question of whether morality is grounded in nature, there is the intriguing question, which I can do little more than allude to here, of whether nature herself should be obeyed, assuming that nature makes her guidance known.
“Does not nature make us feel that we should obey her? But is it right or necessary that we should obey? Should we do so only because nature moves us to do so? If we cannot help acting one way rather than another in a particular situation, where is the moral element in that action? Still, one should take care here (whatever Kant may seem to tell us) not to disparage a proper habituation and its consequences. (But Not Philosophy, 317)”
As Anastaplo notes in his Cardozo article, “Nature is complicated” (CLR, 204). One of those complications Anastaplo indicates when he refers to “a just community and human perfection” as “natural fulfillments” (CLR, 213). On at least one occasion, he asserts that philosophy “as an end in itself” does not need to be “either explained or justified” (Human Being and Citizen, 179). But no philosopher could live by the rule that what the law does not command, it forbids. Not even Averroes really believed that the law commands philosophy. This is not to suggest a conflict between nature and philosophy. On the contrary, “It is nature, at the foundation of genuine philosophy, which holds the secret of the status of virtue” (On Trial, 30). But it does mean that the relation between nature as politics and nature as philosophy is complicated.
Another complication touched on in the Cardozo article is that between reason and passion, both of which can be said to be parts of nature (CLR, 203). “Reason,” writes Anastaplo, “is a critical tool bestowed by nature upon human beings” (CLR, 204). Perhaps reason is the tool that mediates among the conflicting passions. While reason is easily overcome by passion, perhaps reason has, at least at times, a singleness or unity that gives it an advantage over the many conflicting passions.
Whatever may be the case with respect to reason, Anastaplo suggests that the passions either are not all equally natural or that nature is not always authoritative. In writing of Aeschylus’ plays, The Libation Bearers and The Eumenides, Anastaplo can speak of the choruses of those two plays as being “eventually liberated from implacable passions that, however vital to humanity at one time, have outlived their usefulness, at least in their most primitive form” (On Trial, 48). We are somewhat surprised to read of passions that were vital “at one time.” Did human nature change, so that what was once vital is no longer vital? Or is it only the circumstances of human life that have changed? Anastaplo raises similar questions about the Garden of Eden story. “Did human nature change decisively because of the disobedience in the Garden? Or have only the circumstances of the human being changed, for which adaptations are required?” (On Trial, 20). How much of the authority of nature is ceded to reason when we observe that certain vital passions have outlived their usefulness? Are there some passions, such as eros, that are vital in a way that could never outlive their usefulness?
In his Cardozo article, Anastaplo poses the issues joined between the advocates of “original intent” and the advocates of “a living Constitution.” While recognizing the truth in both positions, Anastaplo suggests that “their advocates do not appreciate how they can be properly reconciled” (CLR, 214). I assume that he would say the same about any alleged aporia between the historicity of the passions and the authority of nature or of human nature as a standard. One needs to understand how they can be “properly reconciled.”
Anastaplo appeals to nature in an attempt to find both a support for civilized human life and a basis upon which human beings might freely philosophize. His life and work attest to the possibility that these two goals can indeed be properly reconciled.
An earlier version of this paper was delivered at the annual conference of the Midwest Political Science Association, held in Chicago, April 14, 2012, as part of a roundtable on “George Anastaplo, Reader and Thinker,” organized by Charles Butterworth. Citations are to the following works by George Anastaplo. “Justice Brennan, Natural Right, and Constitutional Interpretation,” 10 Cardozo L. Rev. 201 (1988); Human Being and Citizen: Essays on Virtue, Freedom, and the Common Good, Swallow Press, 1975; The American Moralist: Law, Ethics, and Government, Ohio University Press, 1992; But Not Philosophy: Seven Introductions to Non-Western Thought, Lexington Books, 2002; On Trial: From Adam & Eve to O.J. Simpson, Lexington Books, 2004. The Anastaplo essay, “Are the Moral Virtues Grounded in Nature?” (found in his But Not Philosophy), has been posted on the anastaplo.wordpress blog.