Posted on 02/08/2017 7:04:50 AM PST by Academiadotorg
Don't expect the Senate hearings on prospective Supreme Court nominee Neil Gorsuch to get into the question of natural law, not because it isn't worth it but because it is.
Really relevant questions are anathema to politicians and pedagogues alike and the question of whether our rights come from God or government is one of them, particularly since most people working in either sphere would like you to think your liberties are the product of a benevolent state. At his nomination hearings, sitting Supreme Court Justice Clarence Thomas was pilloried by Senate Democrats because of his interest in natural law. Johnny Carson, then the king of late night television, took sharp aim at one of them.
Noting that the hearings hinged on the question of natural law and that it is “a dicey thing to explain,” Carson said, "To Ted Kennedy it means that part of the cocktail waitress that hangs over the table is yours." Scholar Hadley Arkes offered a more rarefied description in a speech delivered six years ago, but then, he actually entered academia, where he served for many years as a professor at Penn, in search of truth.
"We announce here nothing new to the world, much in the way that James Wilson, at the origin of the Constitution, proclaimed that we were not, under this Constitution, inventing new rights," Arkes said in a speech which has been reprinted by the James Wilson Institute that he founded. Wilson was one of the early Supreme Court Justices, who signed both the Declaration of Independence and the U. S. Constitution.
"The object of the Constitution, he said, was 'to acquire new security for the possession or the recovery of those rights' we already possess by nature," Arkes argued. "The great Blackstone had famously said that, on entering civil society, we give up those unqualified rights we had in the State of nature, including the liberty of 'doing mischief.'"
"To which James Wilson asked, in a Talmudic question, 'Is it part of natural liberty to do mischief to anyone?' In other words, as Abraham Lincoln and Thomas Aquinas had it, we never had a 'right to do wrong.'"
Malcolm A. Kline is the Executive Director of Accuracy in Academia. If you would like to comment on this article, e-mail mal.kline@academia.org.
This is exactly what I teach (or try to teach) students in the first lecture of my business law course. Some of them seem to actually get it.
that is heartening
“Man … must necessarily be subject to the laws of his Creator.. This will of his Maker is called the law of nature…. This law of nature…is of course superior to any other…. No human laws are of any validity, if contrary to this: and such of them as are valid derive all their force…from this original.” – Sir William Blackstone (Eminent English Jurist)
The Founders DID NOT establish the Constitution for the purpose of granting rights. Rather, they established this government of laws (not a government of men) in order to secure each person’s Creator endowed rights to life, liberty, and property.
Only in America, did a nation’s founders recognize that rights, though endowed by the Creator as unalienable prerogatives, would not be sustained in society unless they were protected under a code of law which was itself in harmony with a higher law. They called it “natural law,” or “Nature’s law.” Such law is the ultimate source and established limit for all of man’s laws and is intended to protect each of these natural rights for all of mankind. The Declaration of Independence of 1776 established the premise that in America a people might assume the station “to which the laws of Nature and Nature’s God entitle them..”
Herein lay the security for men’s individual rights – an immutable code of law, sanctioned by the Creator of man’s rights, and designed to promote, preserve, and protect him and his fellows in the enjoyment of their rights. They believed that such natural law, revealed to man through his reason, was capable of being understood by both the ploughman and the professor. Sir William Blackstone, whose writings trained American’s lawyers for its first century, capsulized such reasoning:
“For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the…direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.”
What are those natural laws? Blackstone continued:
“Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due..”
The Founders saw these as moral duties between individuals. Thomas Jefferson wrote:
“Man has been subjected by his Creator to the moral law, of which his feelings, or conscience as it is sometimes called, are the evidence with which his Creator has furnished him …. The moral duties which exist between individual and individual in a state of nature, accompany them into a state of society . their Maker not having released them from those duties on their forming themselves into a nation.”
Americas leaders of 1787 had studied Cicero, Polybius, Coke, Locke, Montesquieu, and Blackstone, among others, as well as the history of the rise and fall of governments, and they recognized these underlying principles of law as those of the Decalogue, the Golden Rule, and the deepest thought of the ages.
An example of the harmony of natural law and natural rights is Blackstone’s “that we should live honestly” – otherwise known as “thou shalt not steal” – whose corresponding natural right is that of individual freedom to acquire and own, through honest initiative, private property. In the Founders’ view, this law and this right were inalterable and of a higher order than any written law of man. Thus, the Constitution confirmed the law and secured the right and bound both individuals and their representatives in government to a moral code which did not permit either to take the earnings of another without his consent. Under this code, individuals could not band together and do, through government’s coercive power, that which was not lawful between individuals.
America’s Constitution is the culmination of the best reasoning of men of all time and is based on the most profound and beneficial values mankind has been able to fathom. It is, as William E. Gladstone observed, “The Most Wonderful Work Ever Struck Off At A Given Time By he Brain And Purpose Of Man.“
We should dedicate ourselves to rediscovering and preserving an understanding of our Constitution’s basis in natural law for the protection of natural rights – principles which have provided American citizens with more protection for individual rights, while guaranteeing more freedom, than any people on earth.
“The end of law is not to abolish or restrain, but to preserve and enlarge freedom.” -John Locke
Whether we like it or not, we moved on to positive law from natural law in the 18th century. Our country was founded on a combination of such beliefs.
Positive legal theory, or legal positivism, takes its name from the verb “to posit.”
The idea of positive law was developed in the 1600s and grew in opposition to the concept of natural law, which can be subject to cultural relativism and personal interpretation.
The early proponents of positive law, such as Thomas Hobbes and John Austin, argued that manmade and state-enforced laws are necessary to protect the rights of the governed, resolve civil disputes and to maintain safety and order in society.
According to Hobbes, this reflects a social contract between the governed and those who are entrusted with the power to both create and enforce laws.
Further complicating matters was disagreement among the utilitarians (act v. rule utility) and Kantians who insisted on “categorical imperatives” calling utilitarianism a political philosophy fit for swine. (See Planned Parenthood: “We have quotas.”)
Natural law was often a churchman, chancellor or king saying, “This is the way it is because God says so” when in fact it was the churchman, chancellor or kings saying so. You see it today from popes, rabbis and TV preachers.
We have moved on from legal positivism to something else: neo-positive law? Those in power ignoring both natural law and positive law for the “greater good” (See: “Our immigration laws don’t suit my agenda, so I’m making law.” Obama)
IOW, natural and positive law has become corrupted by political ideology. Democrats are the biggest offenders, politics being their religion.
I don’t understand mechanical engineering, yet I embrace it when I drive across a bridge.
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