Monday, July 13, 2015

The Natural Law

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, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

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 Declaration of Independence, which specifically cited Natural Law as a basis for declaring the colonies to be independent from the United Kingdom.
One of the things that has become pretty evident due to the Obegefell decision, but which was really evident before (this draft started about a month ago, before the recent Supreme Court decisions came out) is how anemic American legal education and thinking has become.  Law Schools are pretty much trade schools nowadays, and they're producing technicians.  I suppose that's why law schools are generally enthusiastic about the UBE, as a school that educated machinists or mechanics, fine occupations I'd note, would want their graduates to have "transportable" degrees.  The law is pretty much viewed that way as a profession now.  Not a "learned profession", as it once was, but a technical skill without a philosophic origin or inclination.

But law is supposed to be different.  The degree purports to be a "doctorate" after all, and the old theory was that lawyers were educated not only in the law, but also in the philosophy and theory of law.  Oh, most or at least a lot of, law schools probably have a class on jurisprudence (UW did not when I was there), but as jurisprudence doesn't make it to the UBE, I doubt very many people take it.  It's really a gaping hole in our legal education.

In contrast, there was a time when lawyers actually pondered such things.  Justice Bloom, a long ago Wyoming Supreme Court justice, left his diaries to UW and they're filled with his pondering on Roman Law.  Now, I'm not advocating adopting the Code Justinian (the Corpus Juris Civilis), but I am advocating knowing the history and origin of law, and its theories.  If a person doesn't understand the concept of Roman Law, the concept of Common Law, and their origins, they ought to, assuming they are lawyers, and particularly if they are judges.

And I'm also advocating that lawyers at a bare minimum be taught and required to learn, and understand, the theory of law.  If they don't, then there is really no law at all. And right now, that pretty much seems to be the case.  Recent opinions by the United States Supreme Court are disappointing in these regards, and seem to suggest that the Court has no concept of the law beyond vague grasping of trying to do, what it thinks is the right thing, or the next thing, or what people would want to do if they knew what they should want.

So, I think they should learn about Natural Law.

Natural Law is an ancient concept, and frankly probably goes back as far as man.  In writings, however, we can see it referred to at least as early as Plato, and we also see it at work amongst the Romans.  It's famously associated with St. Thomas Aquinas, but contrary to what some sneering commenters, who hold a "progressive" authoritarian concept of the law, it vastly predates him as a concept.

There are entire treatises on Natural Law, and this isn't intended to be one, but the basic concept is simple enough. We observe, by merely existing, that there is a nature and that nature has a natural order.  That natural order is the Natural Law.  Things sometimes within that order depart from it, but those exceptions, unless widespread enough to constitute part of nature themselves, do not redefine it. Indeed, as this is a legal concept, we accept that there things which are disordered as they depart from the Natural Law.

This applies to the affairs of man in the context of observed behavior.  All men, in all societies, everywhere, have a concept that unrestricted homicide is wrong.  They also all have the concept that homicide in defense of themselves or their family (tribe) is not.  All have a concept of property ownership, and that taking a person's property is generally wrong, but all also have a concept that certain property belongs to nobody, or rather everybody.  All societies have a concept of a male/female union that's inviolate under normal circumstances, and which trespassing upon can result in severe consequences. 

This isn't all, by any means, but it provides a common assortment. Whether a person is a cafe crawler in France, or a jungle dweller in the Philippines, this basic set of laws is recognized.  Where not written into the law, it's strongly written into social custom to the point of being the law.  Indeed, from time to time here I've mentioned "the old law", which is an aspect of this.

The origin of the Natural Law, in modern times, has been what has upset social liberals and caused the Natural Law to be forgotten.  In Thomistic Theology, or theology in general, the Natural Law is divine in origin and inscribed on the hearts of every human being.  The signors of the Declaration of Independence, and the drafters of the Constitution, understood it in that context, although loosely as they were not all of the same religion, and living during the Enlightenment, as they did, some were not Christians at all. Starting with Karl Marx and Frederic Engels, social liberals have been at war with that concept and have, indeed, sanctioned huge departures from the Natural Law.  But that's confusing the thesis.  Philosophers who predated St. Thomas, and indeed who predated Christ, wrote on the Natural Law, and indeed there really isn't any ancient philosophy anywhere that didn't recognize it.  A principal difference, in fact, of European philosophy and Oriental philosophy is that Europeans held that the Natural Law could be observed, and hence discerned, while Orientals held that the Natural Law could be observed, and need not be further discerned.

Natural Law was universally understood to exist and form a citable form of law by the early philosophers, and perhaps more importantly for our discussion here, the Courts and lawyers of the United States early in its history.  Frequent citation to the Natural Law can be found in the briefs submitted for argument in front of the United States Supreme Court in the 19th Century and there was no real effort to describe what it was, as it was widely understood to both exist and have a common meaning.

Citations to natural law at that point in time cited three types as clearly existing, only one of which tends to be still cited by the Court now, that being physical laws (as in water flows down hill).  The Courts, outside of physical laws, spoke frequently of "the natural law of nations" and "natural law", with the latter being what we are speaking about here, and the former of which was a common law of nations which also included natural law elements.

Interestingly the Court felt just the opposite of today's court.  It not only recognized Natural Law, but it also recognized that a nation's law could violate Natural Law, and where the United State's laws violated Natural Law, no matter how repugnant the violation, the Court had no choice but to uphold the written law of the United States.  For example, in a case called The Antelope, which involved a slave ship of that name, the Court held:
The question, whether the slave trade is prohibited by the law of nations has been seriously propounded, and both the affirmative and negative of the proposition have been maintained with equal earnestness. 
That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labour, is generally admitted; and that no other person can rightfully deprive him of those fruits, and appropriate them against his will, seems to be the necessary result of this admission. But from the earliest times war has existed, and war confers rights in which all have acquiesced. Among the most enlightened nations of antiquity, one of these was, that the victor might enslave the vanquished. This, which was the usage of all, could not be pronounced repugnant to the law of nations, which is certainly to be tried by the test of neral usage. That which has received the assent of all, must be the law of all. 
Slavery, then, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent, cannot be pronounced unlawful. 
Throughout Christendom, this harsh rule has been exploded, and war is no longer considered as giving a right to enslave captives. But this triumph of humanity has not been universal. The parties to the modern law of nations do not propagate their principles by force; and Africa has not yet adopted them. Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves. Can those who have themselves renounced this law, be permitted to participate in its effects by purchasing the beings who are its victims? 
Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution, in those principles of action which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself as a part, and to whose law the appeal is made.
The Antelope, 23 U.S. 66 (1825), John Marshall, holding, amongst other things, that slavery was contrary to the natural law, but not the statutory law of the United States.  

That's a remarkable opinion.  Marshall clearly knew natural law, and without citing any religious text at all, he held that slavery was contrary to it.  He also didn't feel shy about noting the expansion of the phenomenon of the written law evolving to comport with the natural law, but he didn't feel the Court could take that into account.  Therefore, not only did Marshall recognize a natural law, but he also rejected the "evolution" of the law theory recently espoused by Justice Kennedy in the Obegefell decision.  The decision here was not unique in early US  Supreme Court opinions.
Thus, it may happen, that the occupant, who may have enriched himself to any amount, by the natural, as well as the industrial products of land, to which he had no legal title, (as by the sale of timber, coal, ore, or the like,) is accountable for no part of those profits but such as accrued after suit brought; and, on the other hand, may demand full remuneration for all the improvements made upon the land, although they were placed there by means of those very profits, in violation of that maxim of equity, and of natural law, nemo debet locupletari aliena jactura.
Green v. Biddle, 23 US 1 (1823).
The positive law of nations has ordained the rule; the natural law of nations has assigned the reasons on which it is founded; and Rutherforth, in his Institutes, explains those reasons, which arise from the amenability of governments to each other. A cruiser is amenable only to the government by whom he is commissioned; that government is amenable to the power whose subjects are injured by him; and after the ordinary prize judicature is exhausted, they are to apply to their own sovereign for redress. The principal object of that judicature is the examination into the conduct of the captors. The question of property is merely incidental
L'Invincible, 14 US 238 (1816).

After the turn of the Century, citations to Natural Law really start to drop off. I'm not sure of why, but two notable features of this era was the rise of efforts to regularize legal education, lead by the American Bar Association, and the onset of the Progressive Era.  The latter probably had more to do with it than the former.

Progressivism had its origins prior to the Civil War with the abolitionist movement, and perhaps ultimately ironically, it found much of its philosophic base in both Natural Law and religion.  After Emancipation the movement split, however, with the core of the group remaining focused on the plight of freed slaves, but with the more radical elements taking up other causes.  By the late 19th Century it was achieving results and it really came into full flower when Theodore Roosevelt became President.

In my mind, TR was a great President, but he's poorly understood in many ways and he never had a great respect for the law.  Indeed, when he was a law student, which he was only briefly, he was notorious for interrupting discussions on the law with inquiries about what should be regarded as justice.  TR skirted the Constitution in many instances and did not feel retrained or guilty in doing so.  Following him, the Supreme Court began to be more of an active institution itself, although it would take decades for that to really come fully into effect.  However, by mid 20th Century the Court was rejecting appeals to Natural Law and seemingly basing its decisions on other things, with that other thing being its concept of what the law ought to be.

Ironically, at the same time that the Natural Law has been retreating from the Court and forgotten by the law, it's been adopted to some degree by the population.  Citations to Natural Law in some quarters are common.  Aldo Leopold's The Land Ethic is a citation to Natural Law, in nature and human affairs.  Conservation organizations, like The Sierra Club, or The Theodore Roosevelt Conservation Initiative, or The Land Conservatory, are based on a concept of Natural Law.  Indeed, some radical ones, such as Greenpeace, are entirely based on that concept to a very radical degree, adopting the thesis that Natural Law trumps human law where the two do not agree.  Philosophers like Michael Pollin basically argue for a concept of the Natural Law.  Very loosely, some statutory law, like The Clean Water Act or The Endangered Species Act, exist with a concept of Natural Law in the background.  People who were debating same gender marriage, up until the Court attempted to end the debate, often argued based on concepts of the Natural Law.

The Court, however, oddly can't seem to find it.

Most recently, of course, we've seen this in Obegefell, which is pretty much based on theory that concepts of fairness and marriage have evolved, even if the electorate in a large number of states has expressly rejected that idea, and therefore the Court will force it.  The opinion comes very close to suggesting that the opinions of the right thinking people have evolved, and the Court therefore is going to do for the country what the country would do for itself, and would do soon anyway, if the country knew what was good for it.  In essence, the Court here acts in the role of Plato's ideal king against the rude mob, for the rude mob's benefit.  A pretty scary proposition.  In essence it adopts the thesis that there is no law, save the law the Court says exists. 

But how does that hold up under natural law?

Not well at all.

The ultimate problem with this is that our entire system of laws is based on a concept of Natural Law, and if we take that out, the law lacks a foundation.  At that point, attempts to substitute one such as the Court has done rely, at best, on a heavily weakened Social Contract theory of law.  While that theory is at least some sort of a theory, it's a weak one at best.  Social Contract advocates argue that the law is one vast contract between all of us human beings, or at least all of us human beings in the country, and the law ought to be determined from that.  The problem with that theory, besides that the Court doesn't begin to apply that evenly, is that the Court only uses "evolving concept" type logic when it wants to alter the state of the law from what a majority of people in some places want to do. It would actually make much more sense to argue Natural Law at that point, as Marshall did in The Antelope, but do what Marshall didn't do and over ride the statutory law, than it does to rely on some sort of social contract theory.  

Some may ask why any of this matters, of course.  But law is somewhat like currency.  It has to be based on something in order to be worth anything.  I know that this is a poor argument in terms of our current currency, which is based only on a promise that it's worth something, but it is nonetheless true.  Natural Law provides a basis for the law, and its something that almost everyone concedes existing at some level.  If it doesn't exist, all law is actually wholly meaningless, and based only on who can punish us and who cannot, which is the pure application of both the Economic Theory of Law and the Marxist Theory of Law.  Might makes right, in other words.  That's the antithesis of the American concept of law and stands squarely against what we think we stand for.  The Social Contract Theory of Law, while less vile, basically is an argument for Athenian democracy, which the Constitution actually was drafted in part to restrain.

All of this goes to argue that the current state of legal knowledge is a bit sad, and in need of reform if law is to be a "learned profession", rather than a mere economic based trade.

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