LESSONS FROM THOMAS MORE'S DILEMMA OF CONSCIENCE: RECONCILING THE CLASH BETWEEN A LAWYER'S BELIEFS AND PROFESSIONAL EXPECTATIONS

St. John's Law Review, Fall 2004 by Morant, Blake D

D. More 's Tacit Embrace of Contextualism

Discussion thus far might suggest that Thomas More, in adherence to his natural law-based beliefs, repudiated Henry VIII's positivist proclamations. A careful review of his actions, however, indicates that his repudiation may not have been absolute. Prior to his conviction for treason, More never publicly denounced the King's proclamations.125 He expressed privately, not publicly, his protest to the King's proclamations.126 As a contextual tactic, this unwillingness to openly oppose the King arguably constituted a minimal accommodation. Public silence, which did not violate More's natural law-based beliefs,127 might have functioned to appease the sovereign and fulfill some measure of will.

Yet More's behavior intimates the tacit adoption of a contextual strategy during his struggle with Henry VIII and Cromwell. While More never endorsed the King's proclamations, he refrained from open rejection until after his conviction for treason.128 Given the strength of his beliefs,129 and the King's clear violation of the natural law principles that were central to those beliefs, one might surmise that More would have publicly rejected the proclamations at the outset of the controversy. If natural laws are integral to humanity,130 then they encourage actions that best foster humanity. Certainly public rejection at the time Henry VIII's proclamations were presented for ratification would have constituted an act most congruent with More's natural law-based beliefs. More's initial abstinence from overt rejection of the Acts of Supremacy and Succession symbolizes his possible attempt at compromise with the King. While More could not be labeled a true contextualist,131 his protracted public silence certainly signifies a marginal embrace of the contextual compromise between personal beliefs and professional expectations.132

Perhaps More's compromise through initial silence demonstrates the virtual inevitability of contextual decision-making. An adjudicator, even one who adheres strictly to natural law-based principles, would utilize some measure of context as she applies those principles to humanistic circumstances. The application of legal rules to specific problems or controversies remains a contextual exercise.133 Thus, even the most stalwart natural law proponents cannot avoid context as a variable in the interpretation of legal rules and prudent decision-making.

An adjudicator who is strongly influenced by natural law, however, might restrict the reality of context to that which preserves world order in accordance with her natural law-based norms. Such a limited contextual application signals the dominance of natural law in decision-making. This rationale explains, to some extent, More's initial, contextual strategy of public silence. Societal order during that time would not have been served by a public debate on his crusade to the seeming illegitimacy of the King's proclamations. Private protest of these proclamations furthers a cognitive balance between beliefs grounded in natural law and its tendency to foster humankind and further societal order, and expectations of the sovereign which are expressed in terms of positive law. Those like Thomas More naturally gravitate toward contextual compromise that can balance competing values.