Natural Law does not require any equivalence to civil law or State authority. Indeed, the whole point of a belief in Natural Law is to rely on parameters that the State may not exceed: in fact, to curtail the arrogance and the self interest of the State (or any other body attempting to exercise authority over citizens).
We do not rely on the State for the legitimacy of laws. A rightful law is more than mere force (a decision of the State); rather, actions have an inherency which is independent of the State. When we critique the State and evaluate the Laws of the State—we do so through the correspondence with Natural Law as determined by our Nature.
Socrates showed that some laws are clearly unlawful. Cicero stated that "There is in fact a true law - namely, right reason - which is in accordance with nature, applies to all men, and is unchangeable and eternal."
When the law of the people or of the ruling Body or of the King or Priest contradicts (in whole or in part) this Natural Law, then it may be considered arbitrary relative to this objective or axiomatic standard.
James Donald elaborates on this:
”In the middle ages the Medieval scholars defined natural law in a deliberately circular fashion. There was "Ius Divinum", "Ius Commune", and "Ius Naturale". "Ius Divinum" means, more or less, the divinely revealed will of God. "Ius Commune" means, more or less, the long established customary law of nations, peoples, and states that are generally regarded as reasonably civilized.
Note that "Ius Naturale" does not derive from the customs of civilized peoples. Instead it provides with a ground on which to judge which peoples are civilized. It does not derive from the divinely revealed will of God. It provides us with a ground to judge the plausibility of claims of divine revelation concerning the will of God.
"Ius Naturale" is the law applicable to men in a state of nature. It precedes religions and kings both in time and in authority. "Ius Naturale" does not derive directly from the will of God. As Hugo Grotius pointed out in the early seventeenth century, even if there was no God, or if God was unreasonable or evil, natural law would still have moral force, and men would still spontaneously back it with physical force. God could not create men as they are, and at the same time make natural law other than what it is. A God that claimed to do that would be a mere tyrant, unworthy of worship.
Natural law derives from the method and approach then called natural philosophy. For thousands of years advocates of natural law would start with what is now the standard rationale for sociobiology, by pointing out how the wolf and the deer each have natures and inclinations appropriate for the kind of life they needed to live and to take proper care of their offspring. Today, in the language used by modern sociobiologists natural law is the ESS (Evolutionary Stable Strategy) for the use of force, employed by our species and by like species, applied by us by means of reason to problems and circumstances that confront us today. In older language, it comes from the tree of knowledge, which made us as gods.
Although natural law is an integral part of Christianity, at least of the Christianity of Aquinas and Locke, Christianity is not an integral part of natural law. If you went through Locke's second treatise of Civil Government and substituted the phrase "chance and necessity" for the phrases "divine providence" and "judgment of heaven", there would not be any great change in the meaning or force of his argument.”
Locke and others believed that Nature and the Nature of Men reflected the Will of God. Others (such as the stoics) believed that it was chance and necessity. Evolutionists believe it is the intrinsic nature of a species in preserving itself. But in all cases it relies on the Nature of man—NOT on the SOURCE of his nature. Natural Law neither advances nor suffers from the perceived source. It derives from the Nature of man in unorganized and unstructured society.
I like this definition:
”An act is a violation of natural law if, were a man to commit such an act in a state of nature, (that is to say, in the absence of an orderly and widely accepted method of resolving disputes), a second man, knowing the facts and being a reasonable man, would reasonably conclude that the first man constituted a threat or danger to the second man, his family, or his property, AND if a third man, knowing the facts and being a reasonable man, were to observe the second man getting rid of the first man, the third man would not reasonably conclude that the second man constituted a threat or danger to third man, his family, or his property."
Violations of Natural Law are actions that may rightly be opposed by force. Generally speaking, they are initiated acts of force against property (person).
Can we pursue happiness collectively without conflict or proscription? Of course not. Separate egos have separate desires. Sometimes objectives are compatible and oftentimes they are not. Can we realize Absolute freedom collectively without limitation? Of course not. In order to embrace the concept of freedom, ALL individuals must submit to a natural limitation on their freedom (you are not free to take my property from me). There are natural limitations on the pursuit of happiness, the use of property, and the exercise of freedom. This DOES NOT argue for a conflict or clash of “rights”. It simply recognizes that any right belonging to more than one is NECESSARILY a limited right. It is folded within the concept of Natural Law. The right to pursue happiness for instance IS a priori a limited right: You may not lawfully pursue it on my property, with my wife, through the agency of rape--or via any other other force.
Let us look at an example to prove the definition: WE are in a “State of Nature”—no law and no Government. You steal an apple from my cabin. I would reasonably conclude that you represented a “threat or danger” to me or my family. Now if I remove you and retrieve my apple with sufficient force--and if an outside party (a third party possessed of reason) concludes that I do not represent a threat to him or HIS property—then I am not violating Natural Law.
Just as one is not free to leap over the moon (thus escaping the "PHYSICAL Law" of gravity)--so is one not free to pursue life, liberty, or happiness without limitation. The limitation exists within the law or reality. The limitation is not created--it is recognized.
Certainly, it is possible to dispute the detailed premises of Natural Law. But it seems fairly rational to suppose that there IS an objective basis to the species homo sapiens and what is in the survival interest of said species. It is important to acknowledge this even if one dances on the details. If we do not acknowledge fundamental laws of ethical interaction belonging to ALL—then we must acknowledge that the laws of Priest, King, or Government are both arbitrary AND justified by fiat.
In order that neither Napoleon, Hitler, Greg or e, or Silent Sam abrogate to themselves the values desired by their narrow self interest…it is necessary that we recognize that Nature allows an objective standard—even as we admit that the source of objective reality is both unknown and beside the point.
"In modern times, we have discovered, for example, that use of one's property or exercise of one's liberty can have external effects such as air, water or noise pollution. These things didn't much matter earlier in mankind's history in part because many of the things that generate these externalities simply didn't exist or..."
But other restrictions on liberty DID exist. The details are in the realm of civil and criminal law. Natural Law is NOT about ALL laws. Natural Law is dependent on human nature and the concept of a reasoning animal. It is an ethical net to protect against the arbitrary nature of all other laws which are otherwise merely capricious.
To sum up: Natural Law is basically a claim by people (who also claim rationality) that the Nature of people entails certain ethical assumptions. This claim allows for a defense against King, Priest, Senator, and Vagabond. The fundamental premise from which all Natural Law theory flows (unlike bees and ants) is that the individual is primary. If the individual is to be considered the unit of society then the furtherance of the individual must be the focus of ethics--i.e. rules, regulations, and laws.
As to the nature of these rights--they are dependent on circumstance and fact. Thus, they are codified only in the general sense. In reality they are limited, and these limitations are assessed by reason..
Back to abortion issues: I have a right to property by Natural Law (who would want to live without this axiomatic agreement?). My most essential property is my physical body--wherein my life resides. To agree that you may not violate my body when I am not pregnant, but that you MAY violate it when I am...THAT would be rather absurd. An individual is an individual. He/she cannot (rightfully) be carved up into 2 or 3 or 4?
I can no more support the right of society to control the body of a women than I can countenance the right of society to slit my throat. And I support the same protection for you... |
