What happens if we break the law from its moral foundations? What are the consequences of seeking the essence of law in will instead of reason? The answer is found only in natural law. It is a classic thought that seemed dead but has risen from its dust.
“I did not think anything which you proclaimed strong enough to let a mortal override the gods and their unwritten and unchanging laws. They’re not just for today or yesterday, but exist forever, and no one knows where they first appeared.” Antigone told King Creon after burying her brother, Polyneices, despite the monarch’s attempt to ban it.
Sophocles ’drama depicts the conflict between unjust man-made positive law and natural law. Although many people understand the concept pair in many ways, Antigone’s dilemma has returned regularly throughout history.
Think of the rigid positivist conception of law in Hitler’s Germany, where the written laws of the state were often used to destroy justice. This rigid form of legal positivism is essentially philosophical nihilism, its practical application traps human dignity in the mud and it has operated and still operates factories of death today. This view eliminates all connection between law and morality. However, the idea of natural law tells us more about the nature of law than the classic line of the Codex Justinian: “Whatever the emperor pleases has the force of law.“
Natural law is perhaps a foreign-sounding term for a contemporary lawyer, even though it is a cornerstone of Western culture and ever since the nineteenth century has been part of mainstream philosophy. Throughout the last two millennia of European legal history, natural law was seen as the ultimate measure of the distinction between good and evil, the pattern of a good life, an examined life. An eternal and unchanging justice, which human power expresses, or should express.
It follows that it is above the will of the legislature because it also binds the legislators. It was the basis of social and political institutions; it gave a justification for a conservative or even revolutionary approach. The classical expressions of the idea were led by Plato, Aristotle and Cicero, and St. Thomas Aquinas, and the modern school, which radically transformed the original theory includes Grotius, Hobbes, Pufendorf or even Locke.
The use of the term ‘nature’ can be misleading, because when we hear natural law, we must not think of the phenomenon studied by the natural sciences, but of human behaviour. We are not considering chemistry or biology, but in ethics and politics.
But what is the purpose of the law at all? If we try to determine the meaning of the law, we can turn boldly to Roman jurists. For they made it clear that the law is inseparable from its moral foundations, that it must administer justice within its own framework. The essence of justice is that everyone gets what they deserve. It follows that not only morality but also law prescribes the three basic rules of human life: “to live honestly, to harm no other, to render to each his own.”
If we search contemporary legal literature, we cannot give anything better than John Finnis’s definition: “Law is a means of introducing and maintaining the rule (governance) of reason (…), in place of the dominance of private violence or fraud, or the force of dominant groups directing the community’s affairs for the profit of some but not all its members.” He then added that contemporary British and American philosophy was increasingly accepting this definition of natural law, but it was not always the case.
In the Western world between 1850 and 1950, law was seen as a manifestation of power, dominance, and command. The legal system witnessed rigid legal positivism: sovereign persons or bodies determined by political will how political communities should behave. Efforts were made to enforce order with the prospect of sanctions.
Several popular objections have been made to natural law thinking. Some have said it is an overly religious theory because it does not work without faith or God. Others ruled out the possibility of objective morality based on the human mind, saying there are too many different concepts of morality. Finally, a logical error was discovered in the naturalism that underlies most natural law theories. It has been argued that no ethics can be deduced from facts established through the description of human nature. “It” does not follow “ought to”. In the nineteenth century, the teachings of natural law were generally considered as unfounded and harmful.
However, in the field of jurisprudence, interest in natural law has strengthened again. A key factor in this was the bankruptcy of the positivist model, which was unable to provide a theoretical basis for the post-World War II Nuremberg trials. The conception of law belonging to the will tradition could not provide a satisfactory explanation for the theoretical substantiation of the facts of crimes against humanity.
On what basis should we convict criminals if they have done “nothing wrong” under the laws of their country? How can legislation and law enforcement respond to this problem?
The trend is shown by the fact that the Trump Administration established the Inalienable Rights Committee on May 30, 2019. The purpose of the panel is to provide fresh thinking about human rights discourse where such discourse has departed from the nation’s founding principles of natural law and natural rights. The advisory and proposing body, backed by Professor Robert P. George and set up for Secretary of State Mike Pompeo, sparked strong protests from some pro-abortion and LGBT activists who see the term natural law as hateful. Without a coherent system of natural law, there can be no reassuring answer to fundamental questions of politics and ethics. If unjust law conflicts with natural law, I am with Antigone.
Click here to see the piece in Hungarian on Axioma.