Tuesday, March 20, 2007

Laws of Nature Trump Natural Law

"Natural Law" is a hot topic of discussion in many contemporary circles. Political Science aficionados bandy the term around while arguing for a particular view of how the Constitution should be applied. Ethicists and philosophers debate how a natural law perspective can inform proper action. Postmodernists question whether natural law can even be discovered. Theologians address it in terms of the proper role of a state with respect to the church and vice versa. And normal people sometimes invoke the term to justify self-autonomy, or the "Pursuit of Happiness" as a normative rule.

Scholarly writers rarely mention the name of Blackstone, let alone his very interesting distinction between "The Laws of Nature" and "Natural Law." Even Christian writers, who ought to be interested, normally equate the two terms. (I alluded to this observation here.)

I just performed a computer search of law review publications, using the terms "law of nature" and "natural law" found in the same paragraph. The search yielded 746 citations. Of those, I reviewed about thirty. Every one used the terms interchangeably.

I added "Blackstone" to the search. That search yielded only five articles. Blackstone, apparently, is not a popular author among legal scholars. In those five articles, no distinction between the terms is found.

Blackstone clearly articulated the distinction and considered the two terms to be separate terms of art:

"Yet undoubtedly the revealed law is of infinitely more authenticity than that moral system, which is framed by ethical writers, and denominated the natural law. Because one is the law of nature, expressly declared so to be by God himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together."
Blackstone's Commentaries. Book I, Part I, Section 2 (emphasis added). (A decent version of the Commentaries can be found here.)

The point Blackstone made, which was rejected by the legal positivists of the late 19th and early 20th centuries, was that the express law of God, as revealed, is the primary authority. We may use our minds and reason to try to develop an understanding of law (this is "Natural Law", in other words, what our fallen minds attempt to deduce from Nature), but the clear teaching of God (the Law of Nature, the very decree that binds the universe and all of its creatures) must guide our reason.

One of the sad legacies of Christopher Columbus Langdell, dean of Harvard Law School in the late 19th century, is that now almost nobody reads Blackstone. Langdell adopted the case study approach of law. It was supposed to be a "scientific" approach, following inductive analysis of how courts decided cases instead of an abstract analysis based upon ancient principles. Legal thinkers initially opposed this idea, but it became the standard format for legal eductation in almost every law school in the country.

This approach was a conscious unmooring of jurisprudence from theology. Roscoe Pound, following Langdell, stated the following in his essay "Mechanical Jurisprudence":

"We have, then, the same task in jurisprudence that has been achieved in philosophy, in the natural sciences and in politics. We have to rid ourselves of this sort of legality and to attain a pragmatic, a sociological legal science.
. . .
Herein is the task of the sociological jurist. Professor Small defines the sociological movement as "a frank endeavor to secure for the human factor in experience the central place which belongs to it in our whole scheme of thought and action." The sociological movement in jurisprudence is a movement for pragmatism as a philosophy of law; for the adjustment of principles and doctrines to the human conditions they are to govern rather than to assumed first principles; for putting the human factor in the central place and relegating logic to its true position as an instrument."
8 Colum. L. Rev. 605, 609-10 (1908).

Blackstone, of course, interfered with this approach. He was ignored because he argued from first principles:

"Man, considered as a creature, must necessarily be subject to the laws of his creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct: not indeed in every particular, but in all those points wherein his dependence consists. This principle therefore has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his maker for every thing, it is necessary that he should in all points conform to his maker's will.

This will of his maker is called the law of nature."

Blackstone's Commentaries. Book I, Part I, Section 2

Blackstone expressly answered those who would place fallen human reason over the revealed law of God:

"To instance in the case of murder; this is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime. Those human laws that annex a punishment to it, do not at all increase its moral guilt, or super add any fresh obligation in foro conscientiae to abstain from its perpetration. Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine." (Bold emphasis added).

It is not surprising for modern commentators to disagree with Blackstone. What is surprising is that modern commentators completely miss the basic understanding of legal terms used by those debating how our government was to be formed. Blackstone was widely read and discussed in those days.

Our Declaration of Independence opens with these familiar and very deliberately chosen words:

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.
I am not asserting that the United States was organized as a Christian country. But I find it hard to believe that so many scholars can miss the point that this country was organized under a Christian view of law. The term of art "Laws of Nature" clearly meant laws conforming to the revealed will of God. In other words, the Bible was considered to be the source of our law.

I suppose it is not odd that such things can be swept under the rug. I only wish that Christian scholars, lawyers, and writers would not also man the brooms.

1 comment:

Lauren said...

It's no coincidence, of course, that the predominance of case law escorted postmodernism to the altar of Demos. A "case-by-case" perspective, stare decisis notwithstanding, says "situational ethics to be applied." Nobody's wrong if everybody's right (even Buffalo Springfield knew better). The revealed law of God clearly sets up mitigating circumstances: the Law of the Bible distinguished manslaughter from murder, and established cities of refuge for manslayers, &c. There were provisions for these things without carving out exceptions all the time and examining facts and outcomes on case-by-case bases. But all things now occur on a spectrum, and we have to be relative in order to serve justice. God's law wouldn't be fair.

Blackstone is very politically incorrect and probably some kind of inappropriate now. I doubt he would be very sympathetic to the invented rights people demand today. He'd never get elected to a judicial post, and certainly would not receive an appointment to the Supreme Court.

Most people don't want to understand what justice is because they don't want to accept that God is its source. No one is calling for justice; all they are calling for is access to justice. It's the latest buzz on the my-way highway.

But then, my law school classmates called me "Madam Black Letter." I actually said there should at least have been an inquest when Boo Radley killed Bob the child molester.