SOURCE: Russello, Gerald J. “The Jurisprudence of Russell Kirk.” Modern Age 38, no. 4 (fall 1996): 354-63.

[In the following essay, Russello examines Kirk's theories of jurisprudence.]

“Juris praecepta sunt haec, honeste vivere, alterum non laedere, suum cuique tribuere.”¹

The works of Russell Kirk contain a number of reflections on the place of law in society and its philosophical and cultural bases. Neither a legal philosopher nor a practical politician, Kirk rarely touched in any detail on particular legal issues or concentrated in any systematic way on the structure of legal institutions, with the partial exception of legal education. He was, however, concerned with discerning the twin bases of moral conduct. Kirk loosely grouped one under the term natural law, which provides a guide to our actions, and the other he called justice, which evidences a proper regard for what is rightly due to others.

Resting beneath these concerns is the question of order, in Kirk's thought a question logically prior to any question of law. Order gives rise to the laws, although a well-ordered state includes more than the law. Likewise, a just state will have just laws. Laws alone, even if “just” in an abstract sense, will not create a just society—a lesson learned all too well by any number of people who have suffered under laws supposed just by philosophers, beginning with the French in 1789.

Law is not an ideological blueprint, to which a society is grafted Procrustes-like; rather, the rule of law is a series of compromises and principles that will arise out of the habits and dispositions of the people subject to them. Kirk adheres to the ancient belief that the laws of a society are a reflection of the character of its members. The people must willingly give their assent for a body of law to be consistently enforceable.² Those who attempt to create a perfect world here below by means of legal coercion will end up subverting the legal order they claim to champion.

This paper will examine the work of Russell Kirk insofar as he deals with the bases of law. Kirk's last writings were on the subject, and he was developing a sophisticated approach to the connections between positive law and the natural law, and the place of imagination in the legal order.³ Kirk took from the Roman tradition the idea that law and justice are not composed only of commands from the sovereign; law, properly understood, is “at base a knowledge of the ethical norms for the human being.”⁴ His writings on the law reveal Kirk's deep concern with returning these ethical norms to public discourse on the law, and with reminding lawyers that there is more to their high calling than technique.⁵

II

Kirk's idea of the purpose of law was deceptively simple. In contrast to theories advocating law as an agent of social change, Kirk stated quite forcefully that the purpose of law is to keep the peace.⁶ Indeed, in his earlier writings, it was virtually the only opinion concerning law that Kirk clearly supported, although he was later led from respect for the rule of law as such to consideration of its moral bases.⁷ Only if citizens know they are protected from oppression or fraud by the rule of law can they be free to develop a common culture and exercise their freedom. Kirk warns that when this purpose is forgotten or superseded, the rule of law becomes an instrument of injustice and extortion.⁸

Kirk observes three general characteristics of Anglo-American legal thought. These are as follows: the idea that the law is not an arbitrary system used by those in power to punish those in opposition; the idea that no one is above or exempt from the law; and finally the idea that law arises from custom, tradition, and the decisions of judges.⁹ The rule of law is a subtle and ever-changing complex of rules, principles, and compromises, adapted to the changing needs of a people and bound by circumstance and tradition. Kirk has no desire to enumerate more specific components of a general “rule of law.” To delve into the peculiarities of a nation's legal system and to pick and choose among its features according to an abstract standard is an exercise in folly. The rule of law cannot be divined out of the air by what Kirk called “coffee-house philosophers.” Kirk cites as a cautionary example Bentham trying to devise a legal code for the United States, a country he had never visited, by means of an abstract utilitarian calculus.¹⁰

The sources of law are precedent, statute, and custom. Precedent, the uncodified collection of opinions by common law courts, is flexible and adapts to the changing factual situations of particular litigants. At the same time the common law is able to retain sufficient certainty for parties to determine the legal boundaries of their actions. In a common law system, the contending parties, the facts of their case, the judge and jury all participate in making new law that is conformed with precedent. As Kirk noted, part of the strength of the common law rested upon the belief of the English people that the common law was “their” law, the product of their own historical experiences, and the result of centuries of effort.¹¹ Prior cases are cultural artifacts that must continually be sifted and searched to draw out their meaning for the present.¹²

Statutes, too, are part of the legal landscape. That they are written by legislators elected by the people is sufficient in most cases to assure their responsiveness to the desires of the electorate. Kirk does not often discuss codified law, for he prefers to emphasize the general principles that should guide all law, common or statutory. Application of Kirk's insight on the use of natural law ought to inform a conservative theory of statutory interpretation as well, given the ever-increasing reliance in the United States upon statutory law to fix legal and equitable remedies.

Kirk highlights the common law because it is less open than legislation to arbitrary use of power. It is “a body of rules prescribing social conduct,” under the control of no one party or class, and with a strong presumption against innovation.¹³ The common law, with its fact-based procedures and adherence to the principle of stare decisis, makes it possible to ensure both that no one will escape the law's strictures and that no one can control it completely for private ends.

Of course, Kirk's account of the common law system can be attacked as too romantic; indeed, his discussion of how law is or should be interpreted is the weakest part of his thinking in this area. In the United States, the common law system of judicial primacy and stare decisis have been criticized from time to time as being merely covers for political agenda or personal predilection, from the right as well as the left. The Legal Realists, for example, did much to expose the weaknesses in traditional judicial reasoning and its reliance on allegedly outmoded canons of law.¹⁴ Kirk is making a more subtle point. He wishes to restore the moral framework that the judiciary has lost, so that, when circumstances require, judges can in good conscience change the law within the bounds of proper authority and justice. He calls for judges to remember the old English practice of equity, which offered principles of justice to correct and soften the sometimes harsh rigor of the common law.¹⁵

Common law and statute are supported by custom, the “unwritten law” that furnishes cohesiveness to the written law. This unwritten code is a collection of political compromises, conventions, habits, and ways of living in a social order that have developed among a people over time.¹⁶ These conventions support the legal order and supply a check on rash innovation, whether by judges following their own private muse or legislatures pressed into hasty action.

In his two terms as a Justice of the Peace in Mecosta County, Michigan, Kirk exemplified his understanding of the rule of law. Faced with a boundary dispute or other controversy, Justice of the Peace Kirk did not resort to abstract notions of “right” or “the rule of law” to decide the issue. Nor did he pause to determine according to his own lights who was more “entitled” to judgment. He turned instead to previous judicial decisions, the statute-books, local custom, and the records in the county commissioner's office.¹⁷ Although this example is drawn from Kirk's actual experience, nearly two decades before he had made a similar point on the propriety of seldom applying abstract concepts when adjudicating disputes.¹⁸ Adjudication necessarily involves interpretation of precedent and other authority and Kirk made his decisions within a framework of conventions, norms, and the accepted ways of acting within his community.

His example of the small-town peace officer is not merely a pleasant illustration. It encompasses all the features of the law that Kirk finds important: continuity, authority, order, prudence. When these features of the law are subverted, the legal structure begins to unravel. The “fundamental law would crumble for lack of an enduring consensus; and every faction or interest would feel free, or perhaps obliged, to pursue its own objects in disregard of the general public interest.”¹⁹ Where there are recognizable common law or statutory provisions available as grounds for legal decisions, the rule of law is subverted by private appeals to justice, even to an alleged “natural law.” Those with primary responsibility for upholding and defending the legal system—judges and legislators—have a duty to abide by stated legal principles, and not to substitute their own private opinions of justice, lest the rule of law seem irrational and uncertain. The legal profession as a whole is likewise charged with preserving the stability and fairness of the legal system.²⁰

Despite this emphasis on continuity, Kirk's system is not static and allows for flexibility and evolution in the legal regime. In an essay entitled “The Original-Intent Controversy,” Kirk discusses the possibility of changing the constitution (which he defines as the body of basic laws) of a nation.²¹ Kirk favors letting judges alter the law “by degrees” rather than permitting change by executive or legislative fiat.²² This is not surprising, given Kirk's preference for a common law rather than a statutory system. Common law judges should be allowed to “interpret precedents in the light of altered social circumstances, and so in effect [to] establish fresh precedents more suited to a different era.”²³ This gradual change of legal principles “by vigorous action and prudent reform” is sufficient to bring about the additions and subtractions to the body of legal principles necessary for an active society.²⁴ Kirk saw this as the safest way to protect established liberties. With Hamilton, he thought that the judiciary in a constitutional republic should be the weakest branch and the least prone to introduce drastic change. In that same essay, and elsewhere, Kirk indicates that the judiciary has in recent years overstepped its bounds, and has led the nation to the brink of what he calls “archonocracy,” the rule of judges.

Despite this understanding of the judicial role, Kirk never defined at what point he would consider judges to have usurped their traditional common law role as arbiters of a community of people developing their law in real controversies. Kirk is vague on how wide a berth to give judges, except to say that they should hold to following the original intent of the Framers or lawmakers as much as possible.²⁵ It is unclear under what circumstances Kirk would allow judges to contravene the Founders, assuming their intent could be clearly ascertained.

Kirk indicates how strictly he would hold judges to clear legal principles in his examination of the Higher Law controversy of the 1850s. In March of 1850, Senator William Seward made a speech on the Senate floor declaring, “there is a higher law than the Constitution,” referring to the justice of proposals on the emancipation of slaves. The polemicist Orestes Brownson wrote in response his brilliant essay, “The Higher Law,” published in January, 1851. Brownson argued that while Seward was correct in stating that there is a higher law than the Constitution—the law of God—he was not justified in appealing to his own interpretation of that higher law to overturn the concrete written law by which he held his authority. Private appeals to a law superior to that which actually governs the state will eventually lead to anarchy.

Kirk draws from this controversy an important lesson on the relationship between the higher, or natural law, and positive human law. Recourse to natural law, especially when that law is interpreted by an individual or small group, should not take precedence over legally constituted authority in settling conflicting claims.²⁶ Kirk is suspicious of so-called “natural law” principles being used as the basis for governing the body politic without being first incorporated into the social customs of the people. Where every individual is free to determine the status and force of legal norms, civil society collapses.²⁷ Natural law provides the authority for positive law, not an alternative to it, and natural law principles are effected through properly enacted laws.²⁸ Members of the judiciary are the least restrained in their ability to impose personal views upon the law. Judges have shown an increasing inclination to derive ex caelo principles devoid of connection with reality and at odds with the historic understandings of the American people.

A modern counterpart to the Higher Law controversy is the jurisprudence relating to church and state. Entire programs have been struck down, despite their strong community support and lack of discoverable harm, because they violated a judicial notion of the “wall of separation.”²⁹ The basic law of the nation has been left to the “impulses, prejudices and ideological dogmata of the nine Justices of the Supreme Court”³⁰—and to many lesser judges besides. Reliance on private revelation transforms eternal truths into an ideology, a tendency to which natural law is particularly susceptible.³¹ This is a world away from the position Kirk advocates for judges: the careful emendation of established precedent by means of equitable principles according to tradition and the needs of the particular case.

Natural law should not be used as a supervening authority to trump a carefully crafted legislative and judicial structure except, as we shall see, in the most desperate of circumstances. This position reveals Kirk's deep-seated anxiety, not that natural law will be used as a basis for statutory or common law, but that invocation of natural law will serve as a cover for abuse of the legal and political system. For this reason, Kirk places the meaning of natural law in the guidance of individuals, not as a plan for society or the legal system.³² The civil law should, of course, mirror the natural law, but the vagaries of private judgment and the necessity for political compromise preclude an exact fit between the two. Application of the natural law to society as a whole is an exercise in prudence. Statute and common law, united by custom, are generally enough to keep the peace; indeed, Kirk states that both natural law and positive law are subverted by private impositions of supposed normative principles. As the Higher law controversy shows, that way leads to violence.³³

Kirk, in one of his last writings on the subject, defined natural law as “a loosely knit body of rules of action prescribed by an authority superior to the state.”³⁴ The important point to grasp about Kirk's approach to the natural law is his reluctance to describe its functions or characteristics in any detail. He prefers to rely on general principles bounded by historical illustrations. When Kirk does venture a definition of natural law, he hedges it with qualifications and limitations. He fears the modern temptation to establish the state or some component thereof as the only source of normative principles. The state, when legitimate, is indeed an authority, but there are other authorities with which it may conflict, such as those of conscience or church. When there exists a conflict between authorities, “the conscientious man endeavors, according to what light is given him, to determine which representatives of authority have claimed too much.”³⁵

This reluctance to believe that the natural law, when applied by state power, can solve every human ill, itself follows sound authority. Saint Thomas Aquinas has said that natural law only supplies the principles for human action but cannot by itself provide specific solutions.³⁶ As Ernest Fortin has written, “[B]ecause of its very generality, the natural law does not provide a sufficient guide to action and must be supplemented by the human law.”³⁷ The Anglican divine Richard Hooker, whose great Laws of Ecclesiastical Polity was an important influence upon Kirk, echoes this sentiment, as did the twentieth-century natural law theorist A. P. d'Entrèves.³⁸

For lawmakers, the natural law has a specific function: “to guide the sovereign; the chief of state; the legislator; the public prosecutor; the judge—to guide you and me, indeed, there endures the natural law, which in essence is man's endeavor to maintain a moral order.”³⁹ And again, “Natural law is not a harsh code that we thrust upon other people: rather it is an ethical knowledge” that we employ to restrain will and appetite in our ordinary lives.⁴⁰ It is a mistake to conceive of the natural law as a ready-made body of rules to which the positive law must conform.⁴¹ But he does concede that many cultures have developed similar moral precepts, based in the natural law and expressed in proverb, maxim and injunction.⁴² He does not believe, however, that these are the materials for a comprehensive legal code. Instead, Kirk sees the appearance of these patterns of belief in many cultures as evidence of a common literary and imaginative tradition of justice.⁴³ The development of a legal code is a work of reason, which relies on the imaginative tradition of the natural law and adapts its teachings to particular circumstances.

III

Man is a particular type of animal, and the law for man must be attuned to man's nature.⁴⁴ The individual human mind recognizes that man is part of a natural and moral order that he did not create but in which he must participate. This recognition is central for Kirk, as it diminishes the force of the will and appetite and allows for the operation of prudence in shaping the principles of this normative external order to concrete circumstances.⁴⁵

Kirk never defines precisely his understanding of the interrelationship between natural law, right reason, and the moral imagination. Some clues are given in a suggestive passage in The Roots of American Order. In discussing Cicero, Kirk defines the Roman statesman's natural law theory as a system of justice that grows out of human recognition of enduring natural laws, a recognition that enables choice between justified and unjustified claims.⁴⁶ This process of recognition is an operation of reason, but one informed by a body of normative imaginative literature and tradition. These are themselves conditional and change over time in response to sober consideration of their claims to authority.⁴⁷

Kirk's understanding of natural law has been criticized for being overly “intuitive”—that is, to some Kirk seems to place too great an “emphasis on the moral imagination as an immediate, intuitive grasp of the good [and] appears to unduly depreciate the role of reason in preference to … the intuition.”⁴⁸ The point is valid, insofar as Kirk believes that the imaginative or poetic modes of thought permit an apprehension of the good as effectively as that achieved by pure reason. Kirk states that “properly understood, the law of nature is the moral imagination.”⁴⁹ It is a significant feature of his writings on the natural law that Kirk thought it could be understood primarily through poetry and imaginative reasoning, and those “men of genius” who are able to perceive the permanent things in this manner are accepted by others as authorities.⁵⁰

Kirk has likewise been faulted for not providing a proper “philosophic” defense of his moral and legal thought; indeed, it has been alleged that Kirk's “intuitional” system makes conceptual philosophy almost useless.⁵¹ Critics have claimed Kirk's thought lacks a logic that allows for philosophical discussion of the permanent things and their relation to the world of experience.⁵²

This critique simplifies Kirk's view more than is warranted. Kirk was reluctant to embrace a purely rationalistic explanation for moral action, ever wary of taking on what he liked to call “the prophetic afflatus.” Rather than positing a strict separation between reason and “intuition,” he seems closer to the medieval distinction of ratio and intellectus. As Josef Pieper explains in Leisure: The Basis of Culture:

Ratio is the power of discursive, logical thought, of searching and examination, of abstraction, of definition and drawing conclusions. Intellectus, on the other hand, is the name for the understanding in so far as it is the capacity of simplex intuitus, of that simple vision to which truth offers itself like a landscape to the eye.⁵³

The actual process of knowing consists in the operation of both at once.⁵⁴

Reason is only the active mode of knowing; it is interpenetrated by intellectus, the passive capacity to receive truth which Kirk calls “intuition.” Kirk has been contrasted unfavorably with proponents of a natural law tradition that posits predetermined goods which are the same for all places and times and which must be discovered through the use of reason alone.⁵⁵ Judged by these standards, Kirk's connection with the natural law tradition has been called into question.⁵⁶ Whatever the merits of this version of natural law, it is not Kirk's, but neither was it the natural law thinking of the ancients or the Schoolmen, who developed the ratio/intellectus distinction.⁵⁷

Kirk forthrightly proclaims that what makes man unique is his reason and his ability to know the difference between good and evil.⁵⁸ “Law is a natural force; it is the mind and reason of the intelligent man, the standard by which Justice and Injustice are to be measured.”⁵⁹ Intuition is suprarational, a sort of “participation in the simple knowledge which is proper to the higher beings” that speaks to the deeper nature of humanity.⁶⁰ Imagination is a necessary condition to a rational and humane application of the law, both customary and statutory.⁶¹ In emphasizing both the active and the passive aspects of apprehension, Kirk allows for a degree of creative freedom in applying the natural law. His critics have misinterpreted this complex interaction as a cloudy reliance on “intuition”; it is more like the determinatio of St. Thomas Aquinas.⁶²

The philosopher Yves Simon has a similar notion of the transmission of natural law, which he calls the “way of inclination,” as opposed to the “way of cognition.” The former method is the only way, he maintains, to ascertain practical judgments considered concretely.⁶³ Simon goes on to say that the “last word” belongs to inclination.⁶⁴ He does not discuss the source of this “inclination” in the same terms as Kirk, but both agree that there are both rational and suprarational components. Knowledge of the natural law can come by way of cognition first, or by way of inclination. This inclination is “not purely intellectual [but] that of the good, honest will.”⁶⁵

Kirk's perception of the natural law has a strong historical component; he derives a set of exemplars from past examples of good behavior or moral excellence.⁶⁶ He knows that history is not the final arbiter of value; he has stated that history is meaningful only insofar as it “reveals the general principles to which men and societies, in all ages, are subject.”⁶⁷ This hesitation to accord history the final judgment reflects Kirk's recognition of human frailty. At its best, history can only teach us the outlines of the eternal Logos, through the “splendor and misery of our condition.”⁶⁸ Yet it is this recognition that allows Kirk to use history in the first place. Uneasy with the use of principles without foundation, Kirk is always prepared to limit the reach of abstractions by placing them within historical context.

In sum, then, the natural law is composed of a set of universal rules of individual action. Such precepts are found in the tradition and in the religious principles animating every true civilization.⁶⁹ The means used to find these precepts are the active reason proper to man and the passive intuition, both of which allow humanity access to a higher order of being.

IV

Some closing observations about Kirk's conception of law are now in order. The foregoing essay by necessity has had to extrapolate from what Kirk had been writing on the law, especially in the years since 1980, in order to discern some overall consistency and to discover where he seems to have changed his mind or shifted emphasis.

Kirk planned to write a book that would collect his thoughts on these questions. It was never completed, however, and did not get beyond the planning stages. Given Kirk's dislike of systematizers and theoreticians, evident throughout his work, it is unlikely he would have laid out any grand plan or general theory had such a book been written. He knew all too well that the vagaries of human existence make the codification of natural law a phantom project. His reading of natural law theorists such as d'Entrèves (whose book Natural Law Kirk helped bring back into print) introduced him to the historical volatility of the natural law.

Kirk began concentrating on legal questions late in his life. Indeed, as of 1981, aside from general discussions in books like The Roots of American Order there were barely a dozen items under the entries “Justice” or “Law” in his bibliography.⁷⁰ The situation changed dramatically in the subsequent decade and a half. Kirk wrote a number of significant articles on the law for both the popular and the scholarly press. Understandably, his thinking was still nascent in some areas of legal scholarship. He had yet to engage, for example, the economic and “liberal” theories of law that are now dominant in American jurisprudence, though his last lecture on justice to be given at the Heritage Foundation was to deal with these approaches.⁷¹ Despite his interest in history, Kirk had not in his published work made serious use of the enormous volume of historical materials, both primary and secondary, on the common law tradition that would have provided more substance to his arguments as he developed them.

Nonetheless, there were distinct continuities in his thinking. Kirk's reluctance to base political and legal change on abstract notions of “right” are as evident in 1976 as they are in 1993. His reflections on the sources of the common law's strength can be traced as far back as the first edition of The Roots of American Order. Most of the changes are ones of emphasis. In his discussions of law, Kirk is concerned with the tension between abstract right and prudent action: Brownson and Seward, Burke and Hastings, Hitler and his assassins. This study of historical examples confirmed his innate wariness concerning the use of abstract principles, and led him to consider natural law either as a poetic and spiritual insight into the moral order or as a carefully nuanced application of basic principles of justice to concrete problems.

Kirk remained convinced that natural law was important more for the person than for the society at large. He saw that natural law could be important to society only if each individual lived a life that was honest, harmed no one, and rendered to others their due. Kirk knew that political and social controversies are at root crises of faith. For society to recover from its troubles, men and women must rediscover that law written upon their hearts.

Notes

1. Institutes of Justinian, I, i, 3; Blackstone's Commentaries, I, 40. “The precepts of the law are these: to live honestly, to harm no man, and to render each his due.”

2. Kirk's friend, the essayist Albert Jay Nock, expressed this point more cynically by saying, “[t]he law is whatever the people will back up.” The State of the Union: Essays in Social Criticism, C. Hamilton, ed. (Indianapolis, 1990), 143.

3. That Kirk gained a greater appreciation for natural law is evident by comparing the various editions of The Conservative Mind. The first edition (1953) lists as a conservative canon the “belief that a divine intent rules society as well as conscience.” Later editions replace this with “belief in a transcendent order, or natural law.” W. Wesley McDonald, “The Conservative Mind of Russell Kirk: ‘The Permanent Things’ in an Age of Ideology,” (unpublished dissertation, 1982), 98.

4. The Roots of American Order (LaSalle, Ill., 1978), 110-111. Hereafter RAO.

5. ”Lawyers Ought to Know More than Technique,” The Baltimore Sun, April 30, 1973, A15.

6. America's British Culture (New Brunswick, N.J., 1994), 29. Hereafter ABC.

7. Peter J. Stanlis, “Russell Kirk and the Roots of American Order,” (unpublished manuscript), 5 (undated).

8. “Christian Postulates of English and American Law,” Journal of Christian Jurisprudence, 1 (1981), 49.

9. ABC, 73-4.

10. RAO, 371-2.

11. RAO, 190.

12. James Boyd White, Heracles Bow: Essays on the Rhetoric and Poetics of the Law (Madison, Wis., 1985), 55-56. Edward H. Levi also makes this point; see his Introduction to Legal Reasoning (Chicago, 1949), 5.

13. ABC, 30. On this point, see also A. W. B. Simpson, “The Common Law and Legal Theory,” in Oxford Essays in Jurisprudence (Second Series) (Oxford University Press, 1973), pp. 93-94.

14. See, for example, Karl Llewellyn's “Remarks on the Theory of Appellate Decision and the Rules or Canons About how Statutes are to be Construed,” Vanderbilt Law Review, 3 (1950), 349, for a representative Realist attack. More stridently, in our own day the “Critical Legal Theorists” have made similar claims against the common law system.

15. RAO, 191. For a discussion of judicial qualities in some respects similar to Kirk's, see Mary Ann Glendon, A Nation Under Lawyers (New York, 1994), 117-129.

16. Russell Kirk, The Conservative Constitution (Regnery, 1990), p. 4. Hereafter CC. Kirk cites political parties, the presidential cabinet and presidential primary elections as examples of unwritten conventions that undergird our written constitution.

17. “The Case for and Against Natural Law,” (Heritage Lecture 469, 1993), 5.

18. “Bentham, Burke and the Law,” Great Issues (Troy, Ala., 1976), 164-5.

19. CC, 102.

20. On the importance of law as a craft, with certain canons of behavior, see Glendon, passim.

21. CC, 3.

22. CC, 109. This preference for smaller modifications of law on a case by case basis, rather than wholesale legislative action, again shows Kirk's preference for judicial over legislative power.

23. RAO, 188.

24. “Authority, Just Government and Ordered Freedom,” in Enemies of the Permanent Things: Observations of Abnormity in Literature and Politics (Peru, Ill., 1988), 286. Hereafter EPT.

25. Kirk's discussion on this topic can be found in “The Original Intent Controversy,” CC, 99-115. Levi argues that judges are allowed a greater amount of leeway under a written Constitution than otherwise. The doctrine of stare decisis is weakened by a written constitution, as judges may appeal directly to the text to overturn precedent. Levi, An Introduction to Legal Reasoning, 57-65.

26. “Natural Law and the Constitution of the United States,” Notre Dame Law Review, 69 (1994), 1035, 1041.

27. For a discussion of the Casey decision, which seems to have enshrined a principle of absolute personal autonomy in constitutional law, see Russell Hittinger, “Government by Dissent: A Note on Our Judicial Sovereigns,” The World & I, March 1994, 379-381.

28. “Natural Law,” Notre Dame Law Review, 69 (1994), 1047.

29. For example, in the case of Aguilar v. Felton (1985), the Supreme Court struck down a two-decades old New York City program that enabled public school teachers to teach secular subjects in parochial schools, with no evidence that such a program caused an excessive “entanglement” between government and religion. The case can be found in Religious Liberty in the Supreme Court, Terry Eastland, ed. (Washington, D.C., 1993), 382.

30. CC, 112. For an example of Kirk's encounters with the judiciary in this area, see his “Shelton College and State Licensing of Religious Schools: An Educator's View of the Interface between the Establishment and Free Exercise Clauses,” Law and Contemporary Problems 44 (1981), 169 and “Church and State in Conflict: Remarks on Religion and American Courts,” in Reclaiming a Patrimony (Washington, D.C., 1982), p. 5.

31. Yves Simon, The Tradition of Natural Law (Bronx, N.Y., 1992), 16, 23.

32. Heritage Lecture 469, 3.

33. Kirk seems to approve of the position taken by Brownson, that the Fugitive Slave Law, undoubtedly constitutional, should have been obeyed in the interest of avoiding war. Notre Dame Law Review 69 (1994), 1043-4. It is interesting to compare this controversy with Kirk's defense of the attempted assassins of Adolf Hitler, who, Kirk says, “being law abiding, in defense of true law were prepared to slay the chief of state [who was] a perverter of the laws of man's nature.” Heritage Lecture 469, 5. In Kirk's thought direct application of natural law is only for a last resort, but this begs the question. The abolitionists and Higher Law advocates surely thought they were at a last resort in ending slavery. In the case of Hitler, however, the dictator had subverted the German polity and was in no sense a legal sovereign, while the Constitution in the 1850s, though flawed, still represented the law of the land and could not be overthrown by acts of disobedience and violence.

34. Heritage Lecture 469, 1.

35. EPT, 283.

36. St. Thomas Aquinas, Summa Theologiae, I-II, q. 94, a.4.

37. “Natural Law and Social Justice,” American Journal of Jurisprudence (1982), 17.

38. A. P. d'Entrèves, Natural Law: An Introduction to Legal Philosophy (New Brunswick, N.J., 1994), 76.

39. “Natural Law,” Notre Dame Law Review 69 (1994), 1046.

40. Heritage Lecture 469, 3.

41. Russell Hittinger, “Introduction,” Yves Simon, The Tradition of Natural Law, xxvii.

42. Heritage Lecture 475, 4. For examples, Kirk used the principles listed in C. S. Lewis' The Abolition of Man (New York, 1955), 95-121.

43. Heritage Lecture 475, 4.

44. Ibid, 235.

45. “The Meaning of ‘Justice,’” (Heritage Lecture 457, 1993), 7.

46. RAO, 111.

47. EPT, at 285-286.

48. W. Wesley McDonald, “Reason, Natural Law, and Moral Imagination in the Thought of Russell Kirk,” Modern Age, Winter, 1983, 23. For a more positive evaluation of Kirk on this point, see Bruce Frohnen, Virtue and the Promise of Conservatism: The Legacy of Burke and Tocqueville (Lawrence, Kan., 1993), 172-173.

49. RAO, p. 112.

50. Heritage Lecture 469, 3. See also Kirk's discussion in EPT, 37-38.

51. McDonald, “Reason, Natural Law, and Moral Imagination in the Thought of Russell Kirk,” Modern Age (Winter 1983), 23.

52. Ibid. Mark C. Henrie has also questioned whether Kirk has adequately explained the relationship between normative principles and concrete traditions, especially with regard to the American Founding. Mark C. Henrie, “Russell Kirk's Unfounded America,” The Intercollegiate Review (Fall 1994) 30, 55-57.

53. Josef Pieper, Leisure: The Basis of Culture (New York, 1963), 26.

54. Ibid, 27.

55. W. Wesley McDonald, “Reason, Natural Law, and Moral Imagination in the Thought of Russell Kirk,” Modern Age (Winter 1983), 20-21.

56. Ibid, 22 (calling Kirk's identification with the natural law tradition “unsatisfactory and confusing”).

57. Pieper, 27.

58. “Edmund Burke and the Natural Law,” 236-237.

59. RAO, 111.

60. St. Thomas Aquinas, Quaest. disp. de veritate, 1, 1 (quoted in Pieper, 27).

61. RAO, 112.

62. Summa Theologiae I-II, q.95, a.2. For an elaboration on this idea, see Robert P. George, “Natural Law and International Order,” in Catholicism, Liberalism and Communitarianism, Kenneth L. Grasso, Gerard V. Bradley & Robert P. Hunt, eds. (Lanham, Md., 1995), 141-143.

63. Yves Simon, The Tradition of Natural Law, 125-136.

64. Simon, 129.

65. Simon, 131.

66. Donald Atwell Zoll, “The Social Thought of Russell Kirk,” The Political Science Reviewer, 2 (Fall 1972), 117-118.

67. “Behind the Veil of History,” The Yale Review, March 1957, 468.

68. Russell Kirk, “Introduction,” John Lukacs, Historical Consciousness (New Brunswick, N.J., 1994), xii.

69. With Christopher Dawson, Kirk thought religious faith that provided a principle of moral unity for civilization. See, for example, Christopher Dawson, Progress and Religion (1929; LaSalle, Ill., 1991). Unfortunately, this paper cannot explore to a satisfactory degree this aspect of Kirk's writings. His last Heritage Foundation lecture on justice, which was to have discussed several modern theories of law, would almost surely have discussed this issue, but the piece remained unfinished at his death. For some reflections on this theme, however, see Russell Kirk, “Civilization Without Religion?” (Heritage Lecture 404, 1992), 11-12.

70. Charles C. Brown, Russell Kirk: A Bibliography (Mt. Pleasant, Mich., 1981).

71. Among the books Kirk was working with at Piety Hill in preparation for this last lecture were John Rawls's A Theory of Justice (Harvard, Mass., 1971) and Judge Richard Posner's Sex and Reason (Harvard, Mass., 1992). Kirk had already discussed Rawls, albeit briefly, in The Conservative Constitution (Washington, D.C., 1990), 66.