Legal scholars who have been combing the scant body of scholarly writing produced by Judge Clarence Thomas in his 20 years as a lawyer, public official and appellate-court judge have turned up a number of references to ''natural law'' or ''higher law.'' Let us hope President Bush's nominee for the Supreme Court will be questioned closely at his confirmation hearings about just how he proposes to apply those benign-sounding concepts to the judicial process if he becomes a justice.
The ''natural law'' debate is one which most legal scholars thought was settled long ago in America. It is true that, for much of the 18th century and well into the 19th, legal philosophers like Blackstone in England and early jurists like John Marshall in the United States relied heavily on ''natural law'' in fashioning their jurisprudence. Early American court decisions are filled with stock phrases like ''fundamental principles,'' or ''the reason and nature of things'' or ''the general principles of justice and humanity.''
It's not surprising that this would be the case; there was not a great deal of written law in those days. England was still largely governed by the Common Law -- what Blackstone described as ''our own immemorial customs'' -- and that system was imported largely intact to the American Colonies.
But as society became industrialized and urbanized, it became increasingly apparent that ''natural law'' had to give way to written law -- law which was fashioned through political compromise, often compromise between good and evil, sometimes even compromise between evil and evil.
Starting in the latter part of the 19th century, a school of ''positivist'' legal philosophers led chiefly by Oliver Wendell Holmes prevailed, and today it is accepted as an article of legal faith that judges must rely on written statutes and constitutions, not evanescent concepts of ''natural law.'' Or at least it was accepted until Judge Thomas reopened that old argument.
The problem with ''natural law'' is that it rests largely on the conscience of the judge, and thus represents the ultimate form of ''judicial activism'' which conservatives profess to deplore (while often practicing when it suits their purposes.) The consciences of the judges can vary as greatly as the length of the judges' feet; what is morally acceptable to one judge in one age often becomes morally repugnant to another judge in another age.
No issue more sharply drew the distinction between ''natural law'' and written law than the slavery issue in the 19th century. Justice Joseph Story, one of America's greatest jurists, could write on the one hand that slavery was ''repugnant to the great principles of Christian duty, the dictates of natural religion, the obligations of good faith and morality, and the eternal maxims of social justice.'' Yet when it came time to enforce the fugitive-slave law against his own conscience, the same Justice Story could only lament to a friend, ''You know full well that I have ever been opposed to slavery, but I take my standard of duty as a judge from the Constitution.'' Story was not a ''natural ++ law'' judge.
But let us put the issue in a modern context. Anti-abortion forces have long maintained that abortion is the 20th century's equivalent of slavery in the 19th century -- in each instance
defenseless human beings are being denied the elemental right to life and liberty. To reach this conclusion, of course, one must accept the premise that a fetus in 1991 is no less a human being than a slave in 1861.
In a much-studied speech, Judge Thomas has implied that he shares this view of ''natural law'' as applied to the abortion issue. If so, then it follows that his conscience and his view of the law would require him not only to overrule Roe v. Wade, the 1973 abortion-rights decision; it would require him to invalidate any state laws which even permitted abortion.
But suppose another judge did not share the belief that a fetus is a person with the full panoply of rights. Such a judge no doubt would argue that compelling a woman to have a baby that she did not want is no less repugnant than compelling a woman to have an abortion she did not want. So two equally conscientious judges come to opposite conclusions.
''The jurists who believe in natural law,'' Oliver Wendell Holmes wrote 75 years ago, ''seem to me to be in that naive state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere.''
Carried to its logical extreme, ''natural law'' makes every judge a law unto himself, and thus becomes a recipe for perpetual anarchy, which of course is the antithesis of law.
Ray Jenkins is the editor of The Evening Sun's editorial pages.