When government enacts legislation that undermines even our most elementary rights, one might be inclined to inquiry whether, in order to be valid, positive laws may have to conform to certain objective standards of justice and morality.
Some lawyers have traditionally answered this in the affirmative, arguing for objective standards which are accessible to everyone by virtue of our rational capacities. Others have gone even further by attributing the authorship of these higher standards directly to God—in particular, a Christian incarnation of God.
Whatever one makes of these arguments, the belief in the existence of higher laws can be traced to the ancient Greeks, through Christian medieval writers, and down to modern times.
Principles of the “natural law” are enshrined in all the most important documents in Western legal history, including the Magna Carta of 1215, the English Bill of Rights of 1689, the American Declaration of Independence of 1776.
Of course, the understanding of higher laws is not limited to Western societies. The Chinese have their own tradition of natural law that can be traced as far back as the 12th century BC.
In “Analects,” an ancient book collecting the sayings and ideas of the Chinese philosopher Confucius, one finds statements such as this: “He who does not understand the Mandate of Heaven cannot be a ruler.”
Credited to the Zhou Dynasty (1121–249 BC), the “Mandate of Heaven” asserts that legitimacy ultimately comes from Heaven, which can withdraw its mandate and transfer the right to govern on a more virtuous political ruler.
An Unchanging True Law
In Western societies, the idea that law ought to conform to objective standards was articulated by the Greeks.The famous philosopher Aristotle (384–322 BC) was especially interested in the use of law as a mechanism to achieve limited government. In his work, “Politics,” the Rule of Law is regarded as being always preferable to the “rule of men,” because, as Aristotle explained:
“To invest the law then with authority is, it seems, to invest God and reason only; to invest a man with authority is to introduce a beast, as desire is something bestial, and even the best of men in authority are liable to be corrupted by passion. We may conclude then that the law is reason without passion, and it is therefore preferable to any individual.”
The Roman philosopher and statesman Marcus Tullius Cicero (106–143 BC), believed that “we are born for justice, and right is not the mere arbitrary construction of opinion.”
In his view, “not all things are necessarily just which are established by the civil laws and institutions of nations; nor is justice identical with obedience to the written laws.”
Of course, Cicero was entirely aware that “many pernicious and harmful measures are constantly enacted among peoples which do not deserve the name law.”
However, he did not regard such measures as laws properly so called because, according to him:
“True law is right reason in agreement with nature, diffused among all men; constant and unchanging ... To curtail this law is unholy, to amend it illicit, to repeal it impossible; nor can we be dispensed from it by the order either of senate or of popular assembly; nor need we look for anyone to clarify or interpret it; nor will it be one law at Rome and a different one at Athens, nor otherwise tomorrow than it is today; but one and the same Law, eternal and unchangeable, will bind all peoples and all ages.”
Saint Thomas believed that once a government is constituted, such a government “must be so arranged that opportunity to tyrannize be removed.”
For him, we are bound to obey the law “in so far as this is required by the order of justice. Wherefore if the authority … commands what is unjust, his subjects are not bound to obey him, except perhaps accidentally in order to avoid scandal or danger.”
Legal Traditions Eroded
In the 19th century, however, the idea of natural law was undermined by the “scientific spirit of the age.” As a consequence, laws were no longer assumed to contain objective standards of justice but were said to be “subject to historical change.”Following the defeat of Nazi Germany in World War II, the horrible crimes committed by Nazi officers resulted in their trial by a special court held in Nuremberg from November 1945 to October 1946. At these trials, those officers argued that their actions were justified by the law of the State.
In answer to such an argument, the prosecution directly appealed to principles of the natural law. The chief prosecutor, Robert H Jackson, then a U.S. Supreme Court Justice, relied on these principles of the natural law to press for condemnation.
Although natural law theory now remains almost exclusively in the realm of legal academia rather than the courts and parliament, a few more enlightened judges, such as Clarence Thomas of the U.S. Supreme Court, have based their entire jurisprudential approach on what Justice Thomas properly describes as “the higher law philosophy of the Founding Fathers.”
The principles contained in this higher law jurisprudence, writes Justice Thomas, “are the best defense of liberty and of limited government. Moreover, without recourse to higher law, we abandon our best defense of judicial review—a judiciary active in defending the Constitution but judicious in its restraint and moderation. Rather than being a justification of the worst type of judicial activism, higher law is the only alternative to the wilfulness of both run-amok majorities and run-amok judges.”
It is difficult to overestimate the extent to which our legal systems have been developed as a result of concepts such as “natural law,” “natural right,” and “natural justice.”
Indeed, our legal traditions are intrinsically associated with this particular way of thinking about law. Under this tradition, one might have not just a right but a lawful duty to disobey unjust laws.
Ignore this important perspective results in a diminished understanding of the rule of law and the basic principles that underpin our legal systems.
