Natural Law
Law and Ethics in Tension
by
Sam Cassidy
Natural law lies at the crossroads of disciplines as diverse as law, philosophy, ethics, sociology, and religion. It is hardly surprising then that one might pause in trying to offer a definition for this school of thought because to offer such a definition will likely cause much dispute. Acknowledging this, I would offer the following, more as a focus for this paper than as a definition. As it will be treated in this paper “natural law” observes certain common principles, chief among those are: 1) that there exists a higher law which is above man-made law, 2) that it is discoverable by human endeavor, 3) that it is universal in application, and 4) that all humans are duty bound to act in accord with that law regardless of the circumstances.
An American Interpretation
Thomas Jefferson boldly declared in the Declaration of Independence that all men are created equal and endowed by their creator with certain inalienable rights, among which are life, liberty and pursuit of happiness (Jefferson, 1992). Greatly influenced by thinkers such as Locke, Mill, and Hobbes, Jefferson and his revolutionary brethren felt strongly that the Creator gave humans certain rights which other humans did not have a right to take away whether the would-be appropriator of rights be a king or a democratic majority. For many thinkers these God given rights bestow on humans also the natural right (or duty) to defend those rights against government infringement.
Even as those revolutionary brothers moved away from the central values of individual liberties, opting instead to form a strong central government to better insure security and commercial development still they found certain inalienable rights to be off limits to government infringement. The Bill of Rights, the first amendments to the US Constitution attempt to define these God given rights. Personal freedoms such as speech, free exercise of religion, privacy, assembly, the right bear arms, due process, and so forth were removed from the powers granted to the federal government, to be placed forever beyond the reach of the majority to infringe for whatever reason. (Ellis, 2000)
Deep Historical Roots
Two thousand three hundred years ago Aristotle explained natural law as follows: “A rule of justice is ‘natural’ when it has the same validity everywhere, and does not depend on our accepting it or not.” Even before Aristotle, Heraclitus wrote: “All human laws are nourished by one, the divine.” (IEP, 2004). Heraclitus of Ephuesus, regarded as the first or originator of Natural Law (544-484 B.C.), asserted that nature rules the universe according to reason and that humans must order their affairs in accord with reason if they are to be in accord with the laws of nature. (Sahakian, 1968)
Even Eastern thought includes a heavy current of natural law thinking. In The Doctrine of the Mean, the first proposition of Confucius is: What Heaven confers is called ‘nature”. Acting in accordance with nature is called “Tao”. Living in harmony with these principles is to live harmoniously and education should be directed toward that end. (Confucius, 2004)
How Do We Discover Natural Law?
Most natural law thinkers, at least the more ancient thinkers, have connected these universal truths to a divine consciousness. Thomas Aquinas is well known for the preservation and development of Aristotle’s work on the subject. Aquinas taught that all human beings are born with a sense of good and evil and that the most important of those natural laws is that good is to be done and evil avoided. There was however some rigorous work to be done by humans to make this awareness explicit through a process of reflection. His examples of good (not an exhaustive list) included life, knowledge, society, procreation, and reasonable conduct. His examples of evil included lying, adultery, sodomy, blasphemy. Taking the life of an innocent human was seen as particularly evil. (Aquinas, 1988)
Like Kant, Aquinas felt that the intention with which an act is committed is very important in judging the moral value of the act. If Martin Luther King chose to be arrested because he felt it would attract more press to his cause and increase his influence then the action is less moral than if he is motivated by allegiance to the principle that the law under which he has been arrested is against nature and should be broken.
Hobbes’ standard for natural law requires less faith in a deity. Hobbes taught that we are able to rationally determine morality or natural law because it is based upon the enforcement of universal principles of right and wrong which benefit society as a whole. (Albert, 1988) So for Hobbes, (similar to Kant) we can take a proposed moral rule (or imperative for Kant) and if we can universalize the rule (make it apply to all people in all situations) and, if so universalized, it benefits society as a whole, then it is natural law. So we do not have to depend upon a Creator to tell us what is good and evil. We can rationally define these natural laws by reference to the standard of being beneficial (or not) to society.
This analysis would hardly shock the deity based natural law proponents. Aquinas would examine a proposed rule which benefits society and would say well of course it does because the grand design of God would have it no other way.
Hobbes says that the right to self-preservation is a natural right. He also advocates a social contract between all members of the community to protect one another’s rights. With the social contract, Hobbes believed that we can rationally expand our list of natural rights to include all of the rights we would like for ourselves so long as our list is no broader than the list of rights we are willing to insure to all other members of society. This point has been taken by many to state the Golden Rule of “do unto others as you would have them do unto you”. By others it is interpreted as a formula which can be applied to all natural law which requires that it is natural law only if we are willing to universalize the principle. If we cannot say that this rule of conduct should apply to all humans in all situations then it is not a natural law.
Kant also weighs into this argument along with other rationalist thinkers by writing at length about the rational process of identifying these natural laws. His categorical imperative to treat all men as ends and not as means to an end is an example of natural law which can be deduced by rational thought. Again, Kant argues that these categorical imperatives must never be violated regardless of the circumstances and even if the conduct required by the categorical imperative should violate a law. (MacIntyre, 1968)
If the law in Atlanta Georgia in 1859 says that slavery is legal and that aiding a slave to escape is illegal, the natural law advocate would ask whether you are willing to universalize this law. In other words would it ok for the legislature to decide that any human can be a slave (Caucasian, Jew, Native American) and aiding them in attempts to escape would be criminal activity? Would you think this a good law if you were the slave? If not it is a violation of natural law. Natural law would include the principle that humans have a natural right to liberty and that is an imperative that we would all be willing to universalize. Kantian analysis is often attributed to Abraham Lincoln because of his allegiance to universal rights on the slavery issue. Importantly, it is the individual’s duty to observe the principle of natural law regardless of the consequences. This obligation can, by the same test, be viewed as a rule we would be willing to universalize: that all humans act in accord with natural law at all times. Abraham Lincoln is quoted as saying:
“For though volume upon volume is written to prove slavery a good thing, we never hear of the man who wishes to take the good of it by being a slave himself!” (Miller, 2002)
In a sense ethical inquiry is a grand effort to identify those universal principles of natural law. Ethical analysis requires that we independently analyze conflicting values and, using our own God given intellect, discover the natural laws which bind us and empower us as a distinct species. The premise is that humans are not just self-interested creatures but have another dimension which reveres outcomes like justice, fairness, liberty, and security. Both ethicists and religious leaders have pursued the definition of these higher laws.
Political leaders have also wrestled with the identification of these natural laws with the aspiration of implementing them as conventions of society insofar as political institutions are able. The Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on December 10, 1948, is a striking example of this endeavor. The preamble of the Declaration begins with these words:
“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world,…” (Universal, 1948)
What of Conflicts Between Manmade Law and Natural Law?
Proponents of natural law strongly believe that natural law is above man-made law and if the two ever come into conflict one should follow natural law and, if necessary, violate man-made law. The Declaration of Independence states that men have a duty to overthrow any government which violates natural law. Even man made law begrudgingly acknowledges the standing of natural law. William Blackstone, foremost authority of his time on the law, in Commentaries on the Law of England Wrote:
“The law of nature being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the
globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them that are valid derive all their…authority …from this original.” (Blackstone, 1979)
The basic English Common Law is built upon the assumption that a Judge can create a new rule, for universal application through application of the legal principle of stare decisis et non quieta movere, by thoughtful reflection on the natural dictates of justice in any given case.
One of the four recognized schools of judicial thought is called the “natural law school”. Judges which fall into this category are characterized by their willingness to ignore precedent and even statutory law when necessary to avoid a violation of higher natural law, a miscarriage of justice. (Cross, 2004) Tracing its roots to Aristotle, this school advocates the supremacy of rationally identified universal principles which apply without exception to all people regardless of local custom or legal requirements.
Lon Fuller, one of the twentieth century’s great natural law proponents in his work The Morality of Law, was concerned more with the process of making and applying laws. His central concern was to examine the central function for law in society. He concluded that law’s central moral value was in achieving social order. Natural law then rationally required that if the value of law is social order then certain principles could be used to measure whether a specific law did or did not promote social order. He suggested eight universal principles which can be used to qualify all man made law:
- Laws must be general.
- Laws must be publicized.
- Laws cannot be retroactive.
- Laws must be understandable.
- A set of laws must not contain contradictions.
- Laws must be within the power of citizens to obey.
- Laws must maintain a certain stability through time.
- Laws as announced must be in agreement with their actual administration.
Any law which did not conform to these eight principles could not inform citizens’ decision before their decision is made to act or not to act in a certain situation and therefore could have no positive effect on achieving social order. (Fuller, 1964)
The Requirement for Independent Judgment
The highly regarded theories of Lawrence Kohlberg on moral development place independent rational determination of ethical duties at the top of the development continuum. (Goslin, 1969) (F. Clark Power 1989) This again emphasizes the duty of each individual to decide whether laws are natural, not relinquishing the authority to make such a judgment to a legislature, a judge or a policeman. Martin Luther King and Mahatma Gandhi are sited as examples of this higher order of behavior in which conscience is followed even when, perhaps especially when, such behavior involves a violation of the law. Following is a small except from Martin Luther King’s famous letter from the Birmingham jail which discusses the principle of natural law:
Martin Luther King's Letter from Birmingham Jail
AUTHOR'S NOTE: This response to a published statement by eight fellow clergymen from Alabama (Bishop C. C. J. Carpenter, Bishop Joseph A. Durick, Rabbi Hilton L. Grafman, Bishop Paul Hardin, Bishop Holan B. Harmon, the Reverend George M. Murray. the Reverend Edward V. Ramage and the Reverend Earl Stallings) was composed under somewhat constricting circumstance. Begun on the margins of the newspaper in which the statement appeared while I was in jail, the letter was continued on scraps of writing paper supplied by a friendly Negro trusty, and concluded on a pad my attorneys were eventually permitted to leave me. Although the text remains in substance unaltered, I have indulged in the author's prerogative of polishing it for publication.
April 16, 1963
MY DEAR FELLOW CLERGYMEN:
While confined here in the Birmingham city jail, I came across your recent statement calling my present activities "unwise and untimely." Seldom do I pause to answer criticism of my work and ideas. If I sought to answer all the criticisms that cross my desk, my secretaries would have little time for anything other than such correspondence in the course of the day, and I would have no time for constructive work. But since I feel that you are men of genuine good will and that your criticisms are sincerely set forth, I want to try to answer your statements in what I hope will be patient and reasonable terms.
… You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there fire two types of laws: just and unjust. I would be the Brat to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all"
Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distort the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an "I-it" relationship for an "I-thou" relationship and ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and awful. Paul Tillich said that sin is separation. Is not segregation an existential expression 'of man's tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.
Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal.
Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state's segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured?
Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First Amendment privilege of peaceful assembly and protest.
I hope you are able to grasp the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.
Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.
We should never forget that everything Adolf Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal." It was "illegal" to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country's antireligious laws. I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro's great stumbling block in his stride toward freedom is not the White Citizen's Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to "order" than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: "I agree with you in the goal you seek, but I cannot agree with your methods of direct action"; who paternalistically believes he can set the timetable for another man's freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a "more convenient season." Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.
I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice and that when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. I had hoped that the white moderate would understand that the present tension in the South is a necessary phase of the transition from an obnoxious negative peace, in which the Negro passively accepted his unjust plight, to a substantive and positive peace, in which all men will respect the dignity and worth of human personality. Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with. Like a boil that can never be cured so long as it is covered up but must be opened with its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.
In your statement you assert that our actions, even though peaceful, must be condemned because they precipitate violence. But is this a logical assertion? Isn't this like condemning a robbed man because his possession of money precipitated the evil act of robbery? Isn't this like condemning Socrates because his unswerving commitment to truth and his philosophical inquiries precipitated the act by the misguided populace in which they made him drink hemlock? Isn't this like condemning Jesus because his unique God-consciousness and never-ceasing devotion to God's will precipitated the evil act of crucifixion? We must come to see that, as the federal courts have consistently affirmed, it is wrong to urge an individual to cease his efforts to gain his basic constitutional rights because the quest may precipitate violence. Society must protect the robbed and punish the robber.”
Please note that the foregoing is but a small excerpt from Dr. King’s compelling letter justifying the strategies of his movement. A complete study of the entire text is strongly recommended. (Ravitch, 1992). Jails are hardly strangers to natural law proponents. In Civil Disobedience, Henry David Thoreau, who also went to jail rather than pay taxes to a government he believed to be acting against principles of justice, wrote as follows:
“But government in which the majority rule in all cases cannot be based on justice, even as far as men understand it. Can there not be a government in which the majorities do not virtually decide right and wrong, but conscience?...Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator?...It is not desirable to cultivate a respect for the law, so much as for the right…if it is of such a nature that it requires you to be the agent of injustice to another, then I say, break the law…Under a government which imprisons unjustly, the true place for a just man is also a prison…the only house in a slave State in which a free man can abide with honor.” (Thoreau, 1849)
Herein lays one of the most powerfully articulated contributions of natural law proponents. Humans have a personal obligation to independently comprehend what natural law requires of them and, more importantly, to act in accord with that law. To fail in either respect is to fail morally and to fail to live to one’s potential as a human.
References
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Confucius: (2004) Http://www.hm.tyg.jp/~acmuller/contao/analects.htm
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Jefferson, Thomas: (1992) ‘The Declaration of Independence’, in Ravitch, Diane and Thernstom,Abigail, The Democracy Reader, (Harper Collins Publishers, New York, New York)
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Universal Declaration of Human Rights: (1948) http://www.un.org/Overview/rights.html
