Hadley Arkes has a characteristically compelling essay at the Wall Street Journal (paywall) arguing that judges should root their rulings in the enduring truths that precede and undergird the law. For example, he writes, an appeal to natural law can resolve the question of abortion on firmer ground than the traditional claim of conservative judges that the Constitution does not speak to the issue.
It’s worth the read, as Arkes always is. But it is also problematic. I’ve argued against Arkes’ views more completely here. A couple of brief points are worth noting. One is the issue of authority, which is itself a moral issue beneath the law. The argument that natural law should undergird positive law does not mean judges should impose it. As Robert Bork explained, legislators must have ideas of right and wrong. So, he writes, should judges in their personal capacities. But it is legislators who have the authority to enact those ideas.
Arkes briefly acknowledges the question of authority:
That question of jurisdiction, of who has the authority to decide, is always critical, for it reaches the moral logic underlying the separation of powers…. Yet conservative jurisprudence has too often been distracted in a stylish way by procedural formulas that divert the judges from the substance of the cases.
This is too facile a turn. If jurisdiction is a matter of the moral logic of the law, it pertains to questions like abortion or same-sex marriage as well. Thus the second point: The moral logic of the law is not pristine. Even good values bump into each other, such as, to use Arkes’ example, the separation of powers on the one hand and the morality of abortion on the other.
The resolution of these conflicts is not a matter of Euclidean axioms. It is a matter of prudence. Prudence requires a deep familiarity with both general principles and particular circumstances. Judges may understand the former. Legislators should strive to. But the latter is ultimately about political judgment and accountability.