On the Meaning of Natural Law
Edward J. Dodson
[The following is an exchange of views between Milton
Rothman and Edward J. Dodson that appeared in the Philadelphia weekly
newspaper, The Welcomat, in October and November, 1991. Mr.
Rothman's commentary appeared on 23 October, 1991. Mr. Rothman was
described by the editor as a retired physics professor living in
In recent weeks we have been regaled
by newspaper essays concerning the philosophy of "natural law."
This flurry of deep thinking atoms from the fact that Judge Clarence
Thomas has made use of the natural law concept frequently in the past
and has been desperately trying to distance himself from it since. The
reason he'd like to avoid mentioning his fondness for natural law is
that, as serious legal philosophy, if s on the level of the discussion
that might be encountered in your local bar after the third drink.
Now, I don't claim to be a professional philosopher or lawyer. But I
do know something about the rules of logic and the methods of clear
thinking. I also know that in the sciences, a theory that allows you
to prove anything you want cannot be taken seriously. A scientific
theory only allows you to talk about things that exist in nature, and
I should think that in law the same logic would apply. Yet "natural
law" theory is mainly used to "prove" whatever it is
you want to prove. It has been used by pro-slavery forces to prove
that slavery is natural and by anti-slavery groups, that it is
unnatural The very concept of natural law seems to mean anything you
want it to mean. In some interpretations, it means a higher law handed
down from above by divine fiat. In other interpretations that attempt
to avoid theology, natural law means laws derived from the rules of "human
nature." The latter definition assumes that we know what human
nature is. For example, we observe that most people are attracted to
members of the opposite sex; we then conclude that human nature is
heterosexual; ergo, homosexuality is - according to this kind of logic
- a violation of natural law.
Another example: If most people feel impulses of modesty and don't
walk around sans clothing, then the wearing of clothing is
human nature. This logic means that nudists and natives of the Amazon
valley are violating natural law. However, a linguistic contradiction
raises its head when we realize that nudity is spoken of as a state of
nature- au naturel. Perhaps its clothing that breaks the
Logic of this type pays no attention to a century of learning in
psychology and genetics. When you see how standards of modesty vary
from one culture to another, it's clear that modesty is nothing more
than a set of habits learned by the child from the surrounding
Just now we're starting to discover that homosexuality has, to some
degree, a genetic basis. It's clear that multiple causes (both genetic
and cultural) play a role in determining sexual preferences. In some
cultures (for example, ancient Greece), both nudity and homosexuality
have been considered normal.
In the case of abortion, the "natural law" agenda is clear.
The basic premise of the anti-abortion philosophy is that life is
sacred and that a two-celled embryo is a human being. Therefore, the
embryo is as valuable as the mother's life. Use of the term "sacred''
makes it clear that this natural law is presumed handed down from a
divine source. Calling it "natural law" is an attempt to
hide the hidden agenda of religion.
Laws of nature do exist, but they must in no way be confused with the
legal fiction of "natural law." Laws of nature are the rules
by which matter and energy operate: the law of gravitation, Newton's
laws of motion, the laws of quantum mechanics, and so on. These laws
are our own interpretation of whatever it is that nature does. The
purpose of science is to clarify the nature of these laws and to use
them for our benefit.
There's a very important difference between the workings of the
physical laws of nature, the legal laws of man and the natural law of
the theologians. The laws of nature enable us to decide between
actions that ore possible and actions that are impossible. If a
proposed action is allowed by the laws of nature, then it is bound to
happen whenever the proper chain of events is set in place. For
example, if you want to jump off a roof, this is something you are
allowed to do. And you will fall to the ground if you make the jump.
You might not like the consequences, but that's beside the point.
Suppose, on the other hand, that you insist on trying to float off
the roof, maintaining your height above ground by a mystical process
of levitation. This isn't allowed by the laws of nature, and if you
try to do it you'll most assuredly fall to the ground just as hard as
if you had intentionally jumped. Any event that is forbidden by
the laws of nature simply does not happen.
Defying either man-made laws or the "natural laws," on the
other hand, yields different consequences. Both the Ten Commandments
and the laws of the U.S, tell you not to kill anybody. This advice
tells you what you shouldn't do, but it doesn't prevent you from doing
it The man-made and "natural laws" simply say that if you do
this forbidden thing and get caught, then you'll be punished (maybe).
This is quite different from disobeying a law of nature. There,
you're simply unable to do that which is forbidden.
The concept of "natural law" is thus based on an
individual's idea of what is "human nature," or it's based
on a person's notion of what is permitted by higher forces. But ideas
of "human nature" are much too vague and variable to serve
as the basis for a legal system. And ideas of laws handed down from a
higher power have two strikes against them right away:
First, they require a belief that somebody owns a direct
line to God so that he knows what this natural law is. Usually that
somebody is the person proposing or judging the law, so he can prove
anything he wants to.
Second, the notion of a law based on the rule of God violates the
separation of church and state codified in the First Amendment of
the Constitution, so the entire notion of natural law is
unconstitutional from the beginning. (Polygamy is forbidden by some
religions but encouraged by others; thus using natural law to rule
polygamy illegal is tantamount to establishing a religion.)
In all the recent discussion of "natural rights," hardly
anybody mentions what historically has been the truth. Human rights
are ideas that people invent to obtain certain things that they
consider necessary - things like freedom of speech, the abolition of
slavery and the right to privacy. Over the course of many years, they
struggle and fight to guarantee these rights. The fight is always
against people who think it's their privilege to tell other people
what their rights are. After years (sometimes centuries) of bloodshed,
these rights are won. Documents such as the Magna Carta and the Bill
of Rights institutionalize these rights (particularly the Ninth
Amendment). Then, after we use them for a while and take them for
granted, we come to think of these rights as "self-evident"
But never take them too much for granted. Because there is always
somebody waiting to take them away - most often in the name of "the
Edward J. Dodson:
Armed with good intensions, Milton Rothman failed to add anything of
real value to what is a subject treated by almost everyone with
contradiction and confusion. To be sure, everything and every living
creative is subject to the physical laws that govern the universe. Our
knowledge of physical law is neither absolute nor perfect; however, by
experimentation and observation (as well as by application of our
powers of intuition and reasoning) we refine or discard the laws by
which we explain the what is of our physical world.
When we shift our attention from the physical world in general to
human behavior in particular, we are also faced with the reality of
what is; and, in both realms, once we have an understanding of
the laws governing behavior, our reasoning directs us to act in ways
we believe (wisely or not) will increase our opportunity for survival.
There is a difference, however; the laws associated with human
behavior are laws of tendency, are less predictable at the level of
the individual and are influenced over time by genetics, our specific
physical and societal environments and by nurturing.
The fundamental question for us, as members of the same species, is
whether we possess the same human rights in our dealings with one
another. Locke initiated the debate when he stated that we are truly
free only in the original state of nature (i.e., before the
development of society and the state). Natural law, then, described
how things operated and how individuals behaved - first, in a state of
nature, but also as societies degenerated with time under hierarchical
leadership structures. History and our own contemporary experience,
reveal a tendency of societies to drift from almost wholly cooperative
arrangements within the small tribal societies to conflict-based
behavior in larger and less homogeneous groups. Our moral sense of
justice, our value system, directs us to accept or reject this outcome
as desirable. Our commitment to principle or vested interest direct us
to attack or defend (often violently) the status quo.
I am one who, on principle, opposes the status quo. Even a cursory
view of civilization and history reveals the extent to which those who
have acquired privilege (which Locke termed license) have
constructed elaborate systems of positive law - supported and
sanctioned by tradition and ceremony - that violate the natural rights
of countless millions.
Our liberties, reasoned Locke, are centered in our natural right to
our person and the fruits of our labor. Any action on our part that
harmed another's person or property was an act not of liberty but of
license. And, as the state's primary responsibility was to protect
liberty, licenses of a criminal nature had to be prevented and those
of an economic nature regulated. One of the most fundamental reasons
for the problems we continue to face in our society is that the
Founding Fathers set principle aside in order to forge a sovereign
nation out of the several states. The philosophical debate is one that
must be directed toward a reconciliation of manmade law with moral
law; and, the most fundamental moral law that continues to be violated
under manmade law is that the earth is the birthright of all
mankind, equally. As such, the very existence of private
titleholdings in the earth or national boundaries are at best
administrative conveniences and most often contrivances designed to
sanction and concentrate privilege (power and wealth) in the hands of
The twentieth century has been characterized in the United States by
the incremental expansion of the welfare state, a collection of
programs ostensibly designed to mitigate the worst effects of the
structural problems incorporated in our positive law. To effectively
excercise our responsibilities as citizens, we all need to learn how
natural law governs human behavior; for, only by understanding human
nature do we gain insight into what form positive law must take in
order to secure and protect individual liberty from the encroachments
of criminal and economic licenses.
Edward J. Dodson:
In (what I take to be) partial response to my letter, Milton Rothman
expresses the widely-held view that common principles of justice
cannot be applied to diverse societies (Letters, Nov. 6). I would
argue, on the other hand, that acceptance of his view (i.e., the
conventional wisdom) is an important reason why people suffer
under man-made laws implemented by the powerful to institutionalize
privilege and license at the expense of equality of opportunity and
While standards of morality do change over time and from
place to place, all this tells us is that the social mores and laws
operating within given societies protect or thwart fundamental human
rights. Only the degree of suffering is at issue around the globe.
My question for Milton Rothman, then, is whether he is willing to
carry his logic forward to a conclusion that even though we are all
members of the same species we do not share the same human rights?
I wholly concur that government should not try to legislate morality,
if by morality one means decisions of conscience that do not infringe
on the rights of others to exercise their liberty. To protect us from
the encroachments of one another, our man-made law must be made
consistent with this principle attached to moral law.
I, for one, also recognize in myself the possession of a moral sense
of what is right and wrong. To what extent this is the result of
nurturing - as opposed to an inherited quality of humanness - I am
uncertain. What the history of philosophical thought tells us,
however, is that within the transnational community a shared
acceptance of common values gradually evolved out of reasoned debate.
Unfortunately, reason has not filtered through to the masses, nor to
those who have gained and held power in societies. As a consequence,
we have ended up with societal structures that sanction gross
inequities and injustices.
Getting beyond the confusion admitted to by Milton Rothman is, I
submit, not that difficult. One part of the solution is to be more
specific in the use of terms. References to natural law should
be made acknowledging an absence of relation to morality. The
operations of the material universe identified by physics, chemistry
and astronomy as natural laws, are - as far as we now know - absolute
across time and space. In question is whether this can be said with
regard to human behavior.
The philosopher Mortimer Adler once wrote that the 20th Century would
be evaluated by the progress made toward just socio-political systems.
For nearly all of recorded history, he wrote, the great mass of
people were oppressed by small minorities. In the 20th Century, for
the first time, there were societies where privileged majorities
In our own time, in our own society, the size of the minority being
left behind is expanding. The operation of natural law is at work, but
I submit to Milton Rothman that our failure to purge our written laws
and institutions of privilege will continue to prevent a large segment
of our population from enjoying the basic necessities of a decent