The Tyranny of Equality

Part 2: The Natural vs. Positive Law

The idea that there is a Good that is common to all people, of all cultures, throughout all time can be found in both Athens and Jerusalem.  This Good as articulated in the Natural Law.  It is “Natural” because it is rooted in man’s nature, that is, it exists within us as part of our essential being. Because it is part of the essential nature of humanity it is not contingent upon time or culture. It is accessible by reason and informs conscience. Those who subscribe to Natural law theory believe that it is the basis of all just human law.  The Natural Law presupposes that man has the potential for Freedom and thus has the ability and responsibility to choose the Good by following the law that is natural to him.

Natural Law theory has its first articulation in the writings of the Greeks. Sophocles (496-406 BC) articulated one of the first descriptions of the Natural Law in his tragic play, Antigone. The heroine, Antigone, defends her decision to violate the edict of King Creon prohibiting her from burying her dead brother:

“I did not suppose your decree had strength enough, or you, who are human, to violate the lawful traditions the gods have not written merely, but made infallible.  These laws are not for now or for yesterday, they are alive forever; and no one knows when they were first shown to us.”

Plato, the student of Socrates and the teacher of Aristotle wrote, “The unwritten laws of nature hold universally and underlie the civil law.”  Aristotle wrote: “Political Justice is of two kinds, one natural, the other conventional. A rule of justice is natural that has the same validity everywhere, and does not depend on our accepting it or not. A rule is conventional that in the first instance may be settled in one way or the other indifferently, though having once been settled it is not indifferent.”  There can be little doubt that these ideas influence Aristotle’s pupil, Alexander the Great, who then spread and applied these ideas throughout his vast empire. 

We see in the Roman Empire a continued articulation of the Natural Law.  The early Libertarian, Marcus Cicero wrote: “There is a true law, right reason in accord with nature; it is of universal application, unchanging and everlasting….It is wrong to abrogate this law and it cannot be annulled….There is one law, eternal and unchangeable binding at all times upon all peoples….”

The Natural Law was also part of early Christian Tradition.  In the Epistles to the Romans, Saint Paul wrote: “Pagans who never heard the Law [of Moses] but are led by reason to do what the law commands, may not actually possess the Law, but they can be said to be the Law.  They can point to the substance of the Law engraved on their hearts.” Romans 2:14-16

As Christianity grew and increased in influence in the Western world the concept of Natural Law continued to develop.  Saint Ambrose wrote: If men had been able to keep the natural law which God the Creator planted in the breast of each one, there would have been no need of the law…written on stone tablets….”

The Late Medieval Philosopher, Thomas Aquinas, developed perhaps the most comprehensive Natural Law theory based upon Christian theology in which he attempted to place it in the broader context of law and society.  Aquinas articulated a system of Law that incorporated the entirety of Eternal, Divine, Natural, and Civil Law.  Let’s examine this in more detail since it had extraordinary influence in Western jurisprudence.

The Eternal Law, according to Aquinas, is “…the Divine Reason’s conception of things…” All other laws (including physical laws) have their origin and validity in the Eternal Law. Divine Law is that subset of the Eternal Law revealed to man.  This is accessible by faith.  Examples of the Divine Law include the Ten Commandments & the Sermon on the Mount.

Aquinas understood “…the Natural Law is nothing else than the rational creature’s participation in the Eternal Law.”  According to Aquinas the Natural Law included certain basic human inclinations:
• To seek the good, including the highest good, which is eternal happiness with God.
• To preserve himself in existence.
• To preserve the species—that is, to “fruitful and multiply” which includes to nurture and make provisions for offspring.
• To live in community with others.
• To use his intellect and will—that is, to know the truth and to make his own decisions.

From these inclinations we apply the natural law by deduction.  However, because of the limitations of reason due to sin people may come to wrong conclusions in their understanding or application of these principles.  Consequently, the Divine Law (known by faith) is an indispensable aid to the understanding and application of the natural law (known by reason). Human laws are specific applications of the Natural Law to meet the needs of the community.  Although they are contingent with respect to time and circumstance justice requires that they be appropriately derived from natural law for the Common Good. 

It is part of the essential nature of man to live in community.  It is in community that man experiences actualization.  Communities also experience development.  Law is instrumental in individual and community actualization.  Laws ordered to the Common Good subordinates man to society in as much as he is social, but respects man as a person and promotes opportunities for his actualization.  Thus, there must be maintained a delicate balance between personal liberty and the subordination of the individual citizen to the Common Good.  In this balance individuals and society share rights and responsibilities.  If laws become injurious to the individual pursuit of his inclination either by quantity or quality then these laws become contrary to the Natural Law and the Common Good.

Natural Law theory reached America by way of the English Common Law tradition:

“…This law of nature being coeval with mankind, and dictated by God Himself, is, of course, superior in obligation to any other.  It is binding all over the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority mediately or immediately from this origin.”—Sir William Blackwell (1723-1780)

The Natural Law provided the philosophical justification for the American Revolution:

“When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them…. We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”

The Natural Law was invoked against the institution of slavery:

“Now as to California and New Mexico, I hold slavery to be excluded from these territories by a law even superior to that which admits and sanctions it in Texas.  I mean the law of nature.  That law settles forever that slavery cannot exist in California and New Mexico.”  —Daniel Webster

The Natural Law was invoke by Martin Luther King, Jr. as justification for civil disobedience:

“A just law is a man made code that squares with the moral law of God….  An unjust law is a code that is out of harmony with the natural law.” —Letter from the Birmingham Jail

During the Nuremberg Trial Nazi leaders were tried for “crimes against humanity.” But to convict them of crimes it had to be demonstrated that the Nazis had broken laws.  In fact, they had broken no German laws and the laws of one state do not apply to the citizens of another.  The prosecutors had to appeal to the Natural Law in order to achieve a conviction.  After the War and Trial, the German Courts recognized the necessity of Natural Law in preventing the abuses of lawless law:

“…law must be defined as an ordinance or precept devised in the service of justice.  Whenever the conflict between an enacted law and true justice reaches unendurable proportions, the enacted law must yield to justice, and be considered lawless law.  The accused may not justify his conduct by appealing to an existing law if this law offended against certain self-evident principles of the Natural Law.” (from:  Süddeutsche Juristen Zeitschrift  1947)

Positive Law is a man-made law or code.  As articulated by the Reverend Martin Luther King, Jr. it can be in “harmony with the natural law” or it might not be.  Those who believe in the existence in the Natural Law hold that a positive law is only just when “it squares” with the moral or Natural Law.  Those positive laws that do not “square” with the Natural Law have no moral authority. 

There are those who reject the existence of a Natural Law, or to the Good for either the individual or that which is Common to all people.  They hold that only man-made or Positive Law exists.  If the Natural Law draws its authority from the Good of Man and from the Eternal and Divine Law, from where does the authority of Positive Law originate?  It must resides within the sovereign—the king, despot, or people (democracy) from which it originated. The validity of Positive Law rest not in its inherent rightness, but in whether or not it can successfully be enforced.  As we have seen in our discussion on Freedom vs. Determinism Materialists see no ontological justification for the existence of the Natural Law.  What then becomes the purpose of the Positive Law if it is not to direct man toward the objective Good?  What limits the lawgiver(s) from re-defining the Common Good so that it can expand endlessly into the sphere of Personal Liberty? Is there any justification to objecting to a Positive Law?

The answer to the first question, that is, what is the purpose of Positive Law?— it is simply whatever the lawgiver(s) ascribes to it.  It needs no justification other than that.  As to what are the limits to re-defining the Common Good in order to achieve the ends for which the law was written?—there are none, unless the lawgiver(s) decides to impose such limits.  Finally, is there justification to objecting to a Positive Law?—Perhaps in some cases where the law is not appropriately executed, enforced or adjudicated, but in regard to the law itself?—None, as there are no transcendent criteria by which to judge the Positive Law.  At this point, an objection might be raised that a Positive Law that was inconsistent with a written document, such as the US Constitution, could be annulled without reference to transcendent criteria such as the Natural Law.  However, the rights outlined by the Bill of Rights and other amendments to the Constitution are presumably no longer seen as “endowed by their [transcendent] Creator,” but are bestowed by the self-same lawgiver(s) who are also the guardians of said Constitution.  Such state-given rights could be “reinterpreted” or denied completely for the sake of the Common Good.

Next: The Four Horsemen of the Philosophical Apocalypse