Ninety-Nine percent of lawyers in the United States graduate from law school and practice their profession without much if any consideration of the ultimate underpinnings of the laws, regulations, and processes with which they work. I mean something deeper and more eternal that a mere constitution or the tradition of Anglo-American law. This lack of knowledge is not necessarily their fault. Law schools rarely teach or even mention said underpinnings. Legislatures, executive officers, and courts now operate without the slightest acknowledgment of that from whence they derive their just authority. Most citizens seemed confused about the nature and base concepts of law, rights, and justice generally. This is all forgivable to a fault (especially for the lay audience). Let me tell you briefly about where “law” comes from.
Long ago, policy makers and attorneys such as Thomas Jefferson, Thomas Paine, and Patrick Henry did understand and acknowledge the source of their governmental efforts and the results thereof. This deeper sense of purpose was never limited to American statesmen. Pre-Americans and even pre-Christians such as William Blackstone, Cicero, Aristotle, and Solon also were aware of the greater power behind their actions.
That power and influence is called “Natural Law,” sometimes referred to as “Natural Rights” and similar names. These are fundamental concepts which are imbued into each human spirit by their Creator. Made-man law is or is supposed to be an expression of the natural law. David Miller, et al., eds, The Blackwell Encyclopedia of political Thought (Oxford 1987). Some argue that the individual rights associated with natural law must be or may be curtailed to a degree in a complex society. Miller, et al, supra. I, like many libertarians, disagree with this notion insofar as one person’s rights do not become an infringement on the rights of another.
So, where did natural law come from? To answer that question let us journey back in time – way back, to the beginning of time, if fact. Natural law along with all principles of science, measure, and understanding were created by God, the Almighty, as a product of His grand universal creation.
The concepts of natural law are, thus, as eternal and fixed as the laws or rules of physics or mathematics. Regarding those rules of “hard” science, humans are on a continuing mission to explore, understand, master, and apply the same. So it is with natural law. Being imperfect and tainted by original sin, it is unlikely that we shall ever have complete mastery of any of these ideas. Therein lies another agony resulting from the original disobedience and the ensuing free will dominated “knowledge” with which mortals outside the garden must grapple. As natural law relates to human behavior and society – “soft” sciences, academically speaking, it is much more difficult to grasp, let alone use than some other universal truths. Four plus four equals eight and gravity almost always attracts separate bodies together. Whether people should have a king or a board of selectmen is a wholly different and subjective problem.
As a note, one need not be a Christian or a believer in any specific faith in order to respect natural law. For those so inclined, just consider it another facet or force of the universe we happen to inhabit. As alluded to above, many, many philosophers and legal scholars and practitioners observed natural law millenia before the founding of the United States and centuries before Christ.
In describing the “visible world” the Catechism of the Catholic Church (“CCC”) (No. 341) describes man’s progressive discovery of the laws of nature as he observes the interaction and beauty of the universe. “The natural law is written and engraved in the soul of each and every man, because it is human reason ordaining him to do good and forbidding him to sin…” Pope Leo XIII, Libertas, 597; CCC, 1954.
God originally, long after the expulsion from paradise, gave us ten simple Commandments by which to live – they are a direct and further exemplification of natural law. Jesus gave us the most simple explanation possible of natural law with his Law of the Gospel, “new commandment:” “love one another.” John 13:34; CCC, 1970. People, it seems, are unwilling or simply unable to follow clear, simple admonishment. The history of the past twenty centuries bears this out.
As a result of our collective incompetence, we are now subject to laws, regulations, and rules both innumerable and incomprehensible (and mostly unnecessary). However, at their core, if these human statutes are valid, they are based on some interpretation of natural law.
“The natural law is immutable, permanent throughout history. The rules that express it remain substantially valid. It is a necessary foundation for the erection of moral rules and civil law.” CCC, 1979 (entirety). The question for us, is how to interpret and apply these immutable principles as we create civil law. Rest assured that nothing we do will ever be perfect. The best we can strive for is an approximation. Harken though and remember that this whole body of law is contained in our souls; we only need to tap into it when necessary. This never-ending task has been the study of great men throughout history.
In Natural Right and History, Leo Strauss explored the origins and ideas of natural law. He noted Plato’s theory that freedom from and doubt of human law is the “indispensable” beginning of the search for natural law. Strauss, Natural Right and History, pg. 84, U. Chicago Press, 1953. This means “thinking outside the box” about law, rather than civil disobedience – although that may come later. Strauss goes on to differentiate between the “classical” view of the law as espoused by Socrates, Plato, Aristotle, and Saint Thomas Aquinas and the “modern” (17th century and on) views held by Locke, Hobbs, and more contemporary thinkers.
Some of these differences are obviously products of their time and the accumulation and interpretation of previous work. Others are matters of opinion, albeit well-reasoned opinion. St. Thomas’s observations along with those of other Christian theologians are influenced by Biblical and Church teachings; however, this concept would not be wholly lost on ancient Greek or Roman philosophers. In their time, those ancients usually attributed the law to nature itself, with perhaps a whimsical nod to Olympus. As Juvenal quipped: “The wrath of the gods may be great, but it certainly is slow.” Satirae, XIII, 100.
I will go no further, directly, with Strauss’s differentiation. This is the interpretation of Perrin Lovett and is mostly concentrated towards a modern, American view of the law and how it applies to our societal relations.
Before we get back to our America we still need a bit more history. An exhaustive examination of natural law was one of the central themes of St. Thomas Aquinas’s great Treatise on Law, part of his larger Summa Theologica. Expanding upon Plato and Aristotle’s “outside the box” approach, Thomas concludes, with reference assistance of Saint Augustine that law “which is not just seems to be no law at all. Hence a law has as much force as it has justice.” St. Thomas, Treatise on Law, R.J. Henle, S.J., editor, pg. 287, U. Notre Dame Press, 1993. St. Thomas goes on to say that a civil or earthly law with conflicts with natural law is a perversion rather than a law. Thus, did Walden and others, claim a basis for civil disobedience to repugnant laws.
Saint Thomas notes that natural law may be divined directly from principle (i.e. a law against murder would be based on God’s commandment not to kill or the principle that each human has a right to live). The other more subjective method is through examination of generalities. Enter, here, the fuzziness of the human brain. A natural law-compliant statute which prohibits murder may also prescribe punishment for murder; what the punishment should be and how it is applied is a matter of determination based on assessment of the factors of the case, with natural law as a field guide. See: St. Thomas, Treatise, supra, pg 288.
Seemingly, most of the core laws of our nation and our states derive (or did derive)from Biblical or other ancient sources. Most are straightforward in definition. Murder is prohibited in Georgia the same as it is in California (and just about every jurisdiction worldwide). The procedure governing a murder case and punishment following a conviction are also dictated by law. In keeping with natural law, a criminal defendant should be accorded all protections of Due Process, else his conviction, if any, is tainted with perversion. In name and theory at least, American laws and courts have erected elaborate barriers to protect an accused citizen from state malfeasance. Consideration of possible punishments, as well as any type of considerable sub-crime (manslaughter, for example) have been designed (again in theory) to assess the factors and circumstances of each particular case.
Often voices arise in a society, particularly regarding emotionally charged cases, crying for “justice” at all costs. These voices essentially call for lynchings based on such novel theories as: “Everyone knows so and so is guilty!” and “Some people just need killing!” On our quest for natural law, we must put aside emotion and observe the larger picture. That picture encompasses the possibility that even a seemingly guilty criminal may still be innocent; our procedures of justice are the mechanisms for definitive (though imperfect [humans again]) adjudication. “It is better that ten guilty persons escape, than that one innocent suffer.” Sir. William Blackstone, Commentaries on the Laws of England, 1783 (this sentiment has been echoed by Benjamin Franklin and Voltaire to name a few).
Blackstone commented that nothing is more essential to the “common good” than the protection of individual liberties. Blackstone, Commentaries, supra. This reasoning was shared by Thomas Jefferson and John Locke, etc.
Jefferson, of course penned the Declaration of Independence. In its first paragraph our great severing/founding document based the authority of the American people on the “Laws of Nature and of Nature’s God.” The second paragraph is (was) well known: “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…” (italicized emphasis added). Those rights are the natural rights enjoyed by every human, which need not be necessarily acknowledged by any document and can never be legitimately infringed upon by any government. The rest of the Declaration was dedicated to addressing King George’s abuse of those rights and the implementation of the natural law recourse – secession.
Those were core values on display to the whole world in perhaps the most stunning social experiment in human history. Natural law gave life to the Articles of Confederation, an entity devoted to mutual aid and protection for the betterment of all member states and their respective citizens. Shortly thereafter, the Constitution came into being. Again, some attempted to forge a stronger union with the steel of natural law. Certain of nature’s rights were expressly set forth in the Bill of Rights. This was a case of core values mingling with the fire of powerful government – a dangerous combination. As the two plus centuries have made clear, one government is as capable as another is usurping power for its own ends while concurrently infringing on the rights of its people.
It is when we consider statutes and rules outside of the “core” of our natural human experience that real problems are confronted. Imagine, if you will, a man alone on an island. He is his own society and, if he wishes, his own government. His natural rights are as intact in the middle of the uncharted Pacific as they would be in mid-town Manhattan. He has, for instance, that right to live or for self-preservation. Absent some new addition to his little society, a rule against murder would prove difficult to adhere to; murder is the unlawful, unreasonable, and voluntary killing of a human being by another human being. Absent another person our Islander need not fear murder. He might find himself facing suicide or starvation though and then his rights to his own person would become his chief concern.
This simple Robinson Crusoe example should translate form a desert isle to any more complex society. However, some laws deal with issues not conducive to reason in any circumstance. A bill or statute proposing farm aid to certain large corporations based on their stated financial needs, the aid to come from either taking directly from the rest of society or by decreasing the value of that society’s currency (if the currency be fiat in nature) is a completely different, non-core matter. However, politics, financial tricks, and smoke and mirrors aside, such a dilemma may still be decided along natural lines. Governments today generally do not have legitimate money to give away nor are they capable of productively earning such monies. A giveaway scheme necessarily involves taking from someone else. Is this not theft? Is theft not forbidden by the Creator’s Law? Heaven aside, the earthly consideration here is one of justice.
“All virtue is summed up in dealing justly.” Aristotle, Nicomachean Ethics, 325 B.C. Justice would seem to forbid stealing from one group to pay off another, no matter how well-connected the recieving class might be. You, the reader, must know that our government has long since abandoned this rational debate. As a result we have those laws innumerable. Sadly, this has been a long-standing problem. “The more laws, the less justice.” Cicero, De Officies, 44 B.C.
As mentioned earlier, the wisdom of the ancients was once of common knowledge and practice in our Western world. George Washington wrote, “The administration of justice is the firmest pillar of Government.” Geo. Washington, Letter to Edmond Randolph, 1789. After his visit to America, Alexis Comte de Tocqueville stated: “When I refuse to obey an unjust law, I do not contest the right of the majority to command, but I simply appeal from the sovereignty of the people to the sovereignty of mankind.” de Tocqueville, Democracy in America, 1835.
Common sense even protruded into the Twentieth Century. One who knew best, Dwight Eisenhower said, “Peace and justice are two sides of the same coin.” Eisenhower, radio address, 1957. Universally speaking: “Injustice anywhere is a threat to justice everywhere.” Dr. Martin Luther King, Jr., Letter from the Birmingham, AL Jail, 1963.
Unfortunately for us, the voices of justice and reason have been growing steadily fewer and father between. Today our American government bears almost no resemblance to that which was established long ago while memories of tyranny were still fresh. Rather than engage in justice, let alone its quest, our politicians constantly engage in vote-buying schemes of unimaginable proportions. Solon’s observation has never been truer: “Laws are like spider’s webs which, if anything small falls into them they ensnare it, but large things break through and escape.” Quoted by Diogenes Laertius, Lives and Opinions of Eminent Philosophers, 3rd Cent. A.D.
For a final example, this analogy to a spider web is demonstrated time and again in the new Amerika. When greedy bankers make horrible, criminal (but foreseeable) mistakes and risk the financial ruin of the world, they are bailed out and pass freely through our laws. The poor, middle class, and average citizens are caught, seemingly forever, in a legal cesspool of debt and oppression.
(Natural law is as common as the beauty of Nature itself)
I will not end on a sour note. Rather, I offer a humble solution. If we are to be free as God’s children are supposed to be, we must cast off the burdensome trappings of our current governments. For that process to begin our citizens must each commence their individual quests throughout their spirits for natural law and justice. In particular, our lawyers and law students need to demand formal classical education, or else, they must take it upon themselves to learn what has been lost. While all of you have great deal of research and reflection to do and I may follow-up with more reasoning and explanations, I hope this article starts the process.