Natural Law and Jurisprudence
NATURAL LAW AND JURISPRUDENCE
The philosophy of the natural law is predicated upon the existence of an objective moral order, within the scope of human intelligence and the capacity of human virtue, upon which the peace and happiness of personal, national, and international life depend, and to which all human beings, civil societies, and voting majorities are bound in conscience to conform.
According to this philosophy human beings are endowed by their Creator with certain natural rights and obligations to enable them to attain in human dignity their divine destiny. These natural rights and obligations are inalienable precisely because they are God-given. They are antecedent, both in logic and in nature, to the formation of civil societies and the casting of ballots. They are not granted by the beneficence of the state, democratic or otherwise; consequently the tyranny of the state, democratic or otherwise, cannot destroy them. In fact it is the moral responsibility of the state, through the instrumentality of its civil law, to acknowledge their existence and protect their exercise, to foster and facilitate their enjoyment by the wise and scientific implementation of the natural law with a practical and consonant code of civil rights and obligations.
Search for Objectivity. The construction and maintenance of a corpus juris adequately implementing the natural law is a monumental and perpetual task demanding the constant devotion, the clearest intelligence, and the most mature scholarship of the legal profession. For the fundamental principles of the natural law, universal and immutable as the human nature from which they derive, require rational application to the constantly changing political, social, economic, and technological conditions of dynamic civil society.
The application of the natural law postulates change since the circumstances of human existence necessarily change. It is inconsistent with unquestioning complacency in the status quo. It demands a reasoned acceptance of the good and a rejection of the bad, in all that is new, and advocates a critical search for the better. It postulates constant scrutiny of the data of history, sociology, politics, economics, psychology, biology, medicine, and other pertinent human knowledge. It insists that effort toward improvement of the corpus juris be made in the light of the origin, dignity, and destiny of man and in the knowledge of the origin, nature, and purpose of the state.
The relationship between natural law and civil law or, as it is popularly denominated, between morals and law, is the prime problem of jurisprudence. It is a particularly difficult and delicate problem in a society such as the pluralistic American society in which large groups of citizens sincerely differ, theologically and philosophically, about the morality of many activities and institutions and about the proper public policy of the state concerning them.
Americans were once divided upon the moral and legal issues of human slavery. They were later divided upon the moral and legal issues of racial discrimination. They have been divided over the moral and legal issues concerning capital and labor, compulsory military service and thermonuclear weapons, loyalty oaths and flag salutes, prize fighting and gambling, Bible reading and prayers in public schools, the equal treatment of children in private schools, the use of alcoholic beverages, the control of obscenity, and many other moral-legal questions.
Despite their shared reverence for the sanctity of human life, for the sacredness of marriage, for the holiness of the marriage act, for the dignity of children, the fact is that Americans have been divided over civil laws and public policy respecting marriage and divorce, monogamy and polygamy, adultery and fornication, prostitution and homosexuality, artificial contraception and insemination, abortion and sterilization, the adoption of children, suicide and euthanasia, capital punishment, and even the questions of blood transfusions or medical aid to sick or dying children.
Possibly some of the differences will never be solved to the satisfaction of all, but will be determined from time to time merely by majority vote. Nevertheless the peace and good order of a pluralistic society demand that it sincerely strive to resolve its differences, as best it can, with civil dialogue and mutual respect, on sound moral and legal principles.
Law and Morality. Americans desire a civil society and a legal system founded upon valid principles of morality. The philosophy of the Declaration of Independence epitomizes and expresses this desire. It appeals in express terms to God, the Creator, the Supreme Judge of the World, and expressly commits the young American nation to His divine providence, basing its claim to freedom upon inalienable rights bestowed by God.
Morality Influencing Law. The moral law comes from God. The civil order depends upon the moral order. The good society cannot be based upon police power alone. For it is morality that imposes the obligation in conscience to obey civil law. Without such obedience the enforcement of civil law, the administration of justice, and the preservation of liberty would be impossible. It is a fact of human experience that the majority of people, in the majority of their actions, habitually obey the law of the land, not out of fear of police sanctions, but because they recognize that they are morally bound to do so. The moral obligation to obey civil law is the foundation of a decent and free society.
Civil law, accordingly, must respect the natural law. Man-made law cannot validly command the violation of any God-given obligation, nor can it validly prohibit the exercise of any God-given right. Law must be just. An unjust law cannot, of itself, bind the human conscience. An unjust law is, in reality, no law at all, but merely an act of governmental violence and a species of immoral force. At various times and places men have been forced to submit to immoral laws. For almost 100 years in America the abomination of human slavery was enforced by law. An immoral law contradicts conscience. Conscience and the natural law repudiate immoral civil laws.
This is not to say that each individual is sufficient unto himself to determine arbitrarily which laws he will obey and which he will disregard. In cases of genuine doubt, it is reasonable to presume that civil laws, enacted under the safeguards of constitutional processes, are consonant with the natural law. Nevertheless, a palpably immoral law cannot bind the human conscience. There is a moral right to disregard it. There may be a moral obligation to resist it to the death. In the face of a clear and irreconcilable conflict between the natural and the civil law, between morals and law, we must obey God rather than man.
The great body of American law is based upon the natural law. The incorporation of sound moral principles has been the most conspicuous factor in the development and refinement of American common and constitutional law. A simple example is seen in the fundamental axiom of criminal law: that, except for reasonable minor exceptions, the overt act does not make a criminal unless his mental state is criminal—actus non facit reum nisi mens sit rea —which was a principle of moral theology long before its adoption by criminal law. Similarly, with understandable exceptions, the moral principle of personal responsibility, based upon the premise of freedom of the will, constitutes the foundation and determines the super-structure of all of American criminal and civil law. The legality of American free society is essentially predicated upon morality.
The refining influence of morals upon American law is evident in the development of equity; in the evolution of the law of contracts and torts; in the explication of the law of theft, from larceny through embezzlement to false pretenses; in the law of sales, from the crude caveat emptor to decent dealing; in the law of agency, from mere authority to fiduciary obligations; in the law of property, from raw power to social duties; in the law of industrial relations, from laissez-faire rugged individualism to fraternal responsibilities; in American constitutional law, from allowance of human slavery to the statutes initiating freedom and equality; in the law of equal protection, from maintenance of racial segregation to the legislation upholding human dignity; in the law of procedural and substantive due process; and so with many other principles and precepts of American common and constitutional law.
Law Encouraging Morality. But the moral order depends upon the legal order also. Civil laws are necessary for the recognition and the implementation of morals in organized society. Without the support and the sanction of civil law, many moral obligations could not be fulfilled, and many moral rights could not be protected against the encroachments of the unscrupulous and the machinations of the malicious. The law and the police power of the state are necessary to protect the vast majority of the people in their fixed intention and obligation to observe the precepts of the moral order.
Furthermore, the law must do more than protect those obvious moral rights and obligations upon which all men easily agree. It must do more than enforce the immediately evident principles of the natural law about which there is a general consensus. The law has an educative as well as a coercive function. The law cannot escape the perplexing task of advancing from the immediately evident and universally conceded principles of morality to the derivative principles that depend upon mediate and empirical evidence. Law is a practical and progressive science. It must specify and apply particular principles of morality by enacting specific and particular rules and standards that do not bask in the sunlight of universal agreement. The law is frequently relegated to the dimmer light of argument and controversy; sometimes, unfortunately, to the semidarkness of strident partisanship and bitter emotionalism. In light or in darkness, the law must relentlessly express, as best it can, the public morality and the common good of society. Moral sensitivity must characterize public opinion, objectivity must prevail in the legislative process, and scholarly wisdom in the judicial process.
Public Morality. Fundamental to the concept and purpose of civil law is the fact that legality and morality, while interrelated and interdependent, are not identical. Their respective fields overlap, but they are not coextensive. Many crimes are sins, and many sins are crimes, but crime and sin are not the same thing. Certain crimes, such as the so-called public-welfare offenses that are penalized as overt acts regardless of the mental state, can be committed without sin; certain sins, such as simple lying or solitary masturbation, can be committed without crime. But lying that involves fraud or libel or masturbation that involves public indecency are both sins and crimes. They are sins because they are immoral. They are crimes because they offend that aspect of the common good of civil society that is properly called public morality. It is not the purpose or function of civil law to prohibit or penalize an immoral act simply because it is immoral. The end or purpose of civil law is the public or common good of civil society. In the field of morals, therefore, the scope of civil law is not the area of purely private morality, but of public morality.
It is not easy to delineate with precision the specific fields of public and private morality. It is difficult to draw a sharp line that will clearly and satisfactorily distinguish those moral actions that properly fall within the legislative competence of the state and those that are properly beyond it. In such a task reasonable men may differ, and their opinions may vary from time to time and from culture to culture. The distinction is certainly not the difference between publicity and secrecy. The publicized lie is not a crime. The secret murder is. The distinction is between those actions that primarily concern the actor as an individual, and those actions that concern the neighbor or the community in such a way as to affect substantially the common good of civil society.
The field of public morality is by no means confined to criminal law; it embraces also the areas of civil law, such as contracts, torts, property, equity, commercial and industrial rights, and especially constitutional law. It is helpful for understanding of public morality to consider a number of obviously immoral actions punished as crimes by mature and civilized states.
Murder, manslaughter, rape, mayhem, assault and battery violate the personal rights of others to life and bodily integrity; kidnapping and false imprisonment violate the personal rights of others to liberty and locomotion; robbery, larceny, embezzlement, and false pretenses violate the personal rights of others to property; arson and burglary violate the personal rights of others to habitation and enclosure; libel violates the personal rights of others to reputation; bribery and perjury pervert the administration of justice and obstruct the preservation of liberty; commercialized vice corrupts the citizenry and offends the public decency; riots disrupt the public peace and order; treason invades the security of law itself. All the above rights and values are essential to a just and ordered liberty, that is, to the common good of organized civil society. All immoral actions, therefore, that militate against such rights and values are in the field of public morality and properly subject to state legislative power.
Private Morality. It is a misleading half-truth to say that the state cannot legislate morality. Every state can, should, and does in fact legislate in the field of public morality. Society could not exist without such legislation. The whole of American law is witness to the fact. But the state should not, and usually cannot, legislate in the field of purely private morality.
Purely internal acts of virtue and of vice constitute a large part of the field of morality, of the good or evil human life, but the state is utterly incompetent to legislate concerning purely internal acts of virtue or of vice and seldom attempts it. Moreover, apart from purely internal acts, the state should not attempt to legislate concerning those overt acts that are in the field of purely private morality. The nature of the state indicates that its legislative competence extends only to that part of morality that affects the common good of civil society and that is properly called public morality. In view of this limitation, and in this sense only, it may be said that it is not the state's business to legislate morality.
The stability of the marriage bond, many rights and obligations of the married, the care of legitimate and illegitimate children, the rights of the unborn, the protection of youth from corruption, the prevention of sexual promiscuity and venereal disease, the curtailing of alcoholism and drug addiction, the safeguarding of the poor from fleecing by gambling syndicates, and the general condition of fundamental socio-moral standards are matters that clearly affect the public or common good of society. For that reason they are properly within the scope of civil law and public policy.
Nevertheless the American states differ substantially in their laws and public policies concerning marriage, divorce, separation, abortion, adoption, adultery, fornication, prostitution, homosexuality, contraception, gambling, alcohol, narcotics, capital punishment, etc. It is submitted that these differences reflect disagreement on one or more of the following three questions: whether the given activity is immoral; if immoral, whether it is in the field of private or public morality; if in the field of public morality, whether this or that public policy is the proper or prudential way to handle the immoral activity.
Inalienable Human Rights. The philosophy of the natural law postulates a number of fundamental human rights and obligations that are absolute and inalienable and that must be protected by civil law. Among such rights are those to life, worship, marriage, property, labor, speech, locomotion, assembly, and reputation. The "absolute" character of such rights creates a difficulty for those who do not understand natural-law philosophy.
Such rights are absolute in the sense that they derive from human nature. They are not mere gifts from the state. The state is bound to protect them and cannot destroy them even though, at times, states have physically prevented their exercise. Legalized human slavery prevented the exercise of these fundamental human rights, but it did not destroy the rights themselves.
Limited. Fundamental human rights are not absolute in the sense that they are unlimited in scope. It is commonplace in the philosophy of natural law that human rights, even the most fundamental, are limited. They are limited in the sense that they are subject to specification, qualification, expansion and contraction, and even forfeiture of exercise, as the equal rights of others and the requirements of the common good reasonably indicate.
Some typical limitations upon the scope of the fundamental human rights enumerated above are as follows. Life may be forfeited upon just conviction of a capital crime (see capital punishment). The right to it is qualified by the right of others to legitimate self-defense, is subject to the right of the state to reasonable prevention of crime, and may be endangered in the waging of a just war. The right to worship may be qualified by reasonable restrictions as to time, place, and circumstance; and hence, e.g., prayer meetings may be prohibited at high noon in the middle of Times Square. That to marriage may be specified and qualified by reasonable restrictions as to age and consanguinity—but not by so-called miscegenation statutes that conflict with the essential right. The right to property may be qualified, contracted, or expanded, by reasonable zoning laws, antitrust legislation, wage and hour and safety regulations. The right to labor may be specified and qualified by reasonable licensing requirements, sanitary regulations, wage and hour and safety regulations. Speech may be restricted by reasonable laws concerning incitement to crime, libel and slander, obscenity, and the divulgence of information to the enemy in time of war. Locomotion may be qualified by reasonable passport rules and immigration laws. The right of assembly may be qualified by reasonable requirements in the interest of public health, safety, and order. The right to reputation may be qualified by reasonable laws requiring testimony in public trials, allowing fair comment on public affairs and officials, requiring the disclosure or reporting of embarrassing contagious diseases. These are simply random examples of typical limitations upon the scope of a few obvious, natural and inalienable rights. All such rights are subject to similar limitations.
If the scope of natural rights were subject to unreasonable or arbitrary limitation, either by the fiat of a dictator or a democratic majority vote, then they would be subject to simple extinction and could not be said to be absolute. If, however, the scope of natural rights is subject only to reasonable limitation for the sake of the common good, then indeed they are not subject to simple extinction and can properly be said to be absolute. Reasonable limitation of scope is a proper condition of natural and inalienable rights.
The human person, in his essential nature, is not merely an individual being. He is also a social being living with his fellows in an organized society that is subject to political, economic, technological, and social change. His natural rights—and corresponding obligations to respect the natural rights of others—are both individual and social. To consider him solely as an individual would lead to anarchy. To consider him solely as a social unit would lead to totalitarianism. But his individual-social nature, adequately considered, leads inevitably to the conclusion that his natural rights are absolute, in the sense explained, because he is an individual for whose rights good governments are instituted. Reasonable reflection leads also to the compatible conclusion that his natural rights are limited in scope, in the sense explained, because he is also a social person obliged by nature to contribute to the common good of human society.
Immutable. Confusion is created also by the universal and immutable character of fundamental principles of natural law. Such principles are as universal and immutable as the human nature from which they are derived. When properly understood, they suffer no exceptions.
The four monosyllables, "Thou shalt not kill," are sometimes used to express a fundamental secondary principle of the natural law. If these four words were to be taken in simplistic literalness, they would not indicate a universal and immutable principle, because there are circumstances in which killing is obviously permissible.
The quoted words merely indicate the natural law principle that is adequately expressed as, "Thou shalt not kill or inflict bodily harm upon any human being unjustly. " This principle is universal and immutable. In its negative aspect, it prohibits the immoral killing or inflicting of bodily harm upon self or other human beings. In its positive aspect, it commands a reasonable preservation of life and bodily integrity. Therefore, acts of legitimate self-defense, defense of others, warfare, executions for crime, corporal punishment, surgery, vaccination, anesthesia, and strenuous sports are relevant to the principle if they are justifiable.
The justification of such acts will depend upon the norm of morality, i.e., conformity with or difformity from human nature individually and socially considered, upon the nature of the act, the circumstances of the action, and the motives of the actor. But the principle "Thou shalt not kill or inflict bodily harm upon any human being unjustly" remains universal and immutable.
This is not to say that the determination of such moral and legal justification is automatic or without difficulty. A particular question of the justifiability of self-defense may be extremely difficult in regard to both morals and law, without the slightest doubt being cast upon the universality or immutability of the principle. The solution of such problems gives rise to the sciences of morality and lawmaking.
A principle of morality or of law is not without value because its application to particular cases is difficult. The American constitutional phrase "due process of law" indicates a legal principle (declaring and enforcing a principle of natural law) that has taxed the judicial mind for centuries. And the development of the legal concept of due process of law has occasioned influences of natural law on jurisprudence. The natural law, which says that a human being may not be deprived of his life unjustly, is recognized and enforced by the civil law, which says that a human being may not be deprived of his life without due process of law. In close cases, moralists and legalists of reasonable but finite mentalities may differ about the application of justice and due process. General principles alone do not decide particular cases; but particular cases cannot be decided without them.
Conclusion. Difficulty is sometimes engendered by a failure to distinguish between a principle of the natural law and a rule of the civil law. The former is universal and immutable, the latter is not. A principle of natural law can be known by man, because he can know his nature and essential relationships; but a principle of the natural law cannot be made, changed, or destroyed by man because he cannot make, change, or destroy his essential nature. Conversely a rule of the civil law must be made and may be amended or repealed by man's legislative or judicial process. Thus a rule of the civil law lacks the universality and immutability of a principle of the natural law. This is the precise reason why rules of civil law, as they are enacted, amended, and formulated from time to time and from circumstance to circumstance, should always be consonant with the principles of natural law. It is why the natural law constitutes the general norm to measure the justice or injustice of civil law.
Among the changeable and changing rules of civil law are: the rule of consideration in contracts, the rule of hearsay in evidence, the rule of recording in property, the rule of witnesses in wills, the rule of strict liability in torts, the rule of "retreating to the wall" in crimes, and hundreds of others, from the rules governing statutes of limitations to traffic rules and minor procedural regulations. As rules, they have a certain generality, but they are subject to exceptions, and they require change, gradual or drastic, as time, circumstance, and wisdom demand. They are practical and subsidiary means whereby the civil law, more or less efficiently, applies the principles of the natural law to human beings living in the constantly changing political, economic, technological, and social conditions of civil society.
Three factors have contributed to the confusion and misunderstanding concerning the impact of natural law upon civil law. First, the misuse of natural law terminology, in the 19th and early 20th centuries, in support of laissez-faire rugged individualism—seen in many old Supreme Court decisions that piously exalted property and contractual rights to the detriment of other basic human rights and the genuine needs of the common good. Second, the lack of familiarity of members of the legal profession with the writings of the natural law philosophers and reliance upon secondary, unscholarly sources of information. Third, an unfortunate propensity, on the part of enthusiasts of natural law, to claim too much for their philosophy. The naive proposition "All we have to do to solve our practical problems is to apply natural law" is similar to the false panacea "All we have to do is to apply the Constitution."
The natural law itself is inadequate to solve the complex problems of a dynamic human society. It requires implementation by civil law; and such implementation involves not merely argumentation and research, but validation even by trial and error. The search is for the best civil laws to act for the personal and the common good.
See Also: law, philosophy of.
Bibliography: r. f. bÉgin, Natural Law and Positive Law (Catholic University of America Canon Law Studies 393; Washington 1959). j. ellul, The Theological Foundation of Law, tr. m. wieser (Garden City, NY 1960). Center for the Study of Democratic Institutions, Natural Law and Modern Society (Cleveland 1963). a. l. harding, ed., Natural Law and Natural Rights (Dallas 1955). f. s. c. northrop, "Philosophical Issues in Contemporary Law," Natural Law Forum 2 (1957) 41–63. m. t. rooney, Lawlessness, Law, and Sanction (Washington 1937). l. strauss, Natural Right and History (Chicago 1953). j. c. h. wu, Fountain of Justice (New York 1955).
[w. j. kenealy]