The Case Against Natural Law as Just Law

Edward J. Dodson

[June 2009]

On a number of philosophical questions I find myself holding a minority opinion; sometimes I constitute a minority of one. This seems to be the case where the term natural law is used as an expression of just law, or moral law. Most who embrace this meaning of natural law look no deeper than their faith in the existence of a conscious creator. They say, if only we would live according to the creator's system of natural law, all would be well in the world.

To a degree, this belief was held by Henry George. In Progress and Poverty (p. 544) he writes:

[T]he evils arising from the unjust and unequal distribution of wealth ... are not imposed by natural laws; that they spring solely from social maladjustments which ignore natural laws, and that in removing their cause we shall be giving an enormous impetus to progress.

With all respect to Henry George, I believe we should treat natural law as descriptive, as distinct from moral law, which asks the ought questions, as prescriptive. In so doing, we would avoid the confusions inherited from past philosophical discourse. Some years ago, Mortimer Adler acknowledged the problem in an essay he titled "The Nature of Natural Law":

Most people are confused by the use of the term "natural law." They understand what the laws of nature are -- we learn these when we study the natural sciences. But some writers use the term 'natural law' in the singular as if it had something to do with matters of right and wrong, almost as if it were the voice of conscience. It is hard for most to understand how a natural law has anything to do with moral matters.

Let us first be clear that by "natural law" we mean principles of human conduct, not the laws of nature discovered by the physical sciences. Many thinkers who espouse natural law see it at work in both the human and nonhuman realms, but their main interest is in its special application to man. According to these thinkers, the natural law as applied to physical things or animals is inviolable; stars and atoms never disobey the laws of their nature. But man often violates the moral rules which constitute the law of his specifically human nature.

We are complex creatures, and our behavior is as often destructive and violent as it is cooperative and peaceful. As Locke would say, we act beyond the limits of true liberty when we exercise license. In other words, we knowingly behave in ways counter to how we ought to behave, if guided by our moral sense of right and wrong. There may be a few exceptions, but I feel quite comfortable making the generalization that our moral sense is imperfectly inherited, imperfectly nurtured and imperfectly applied in our decision-making and our behavior. Perhaps the problem could be lessened if our philosophers had reached consensus over a universally-accepted system of moral law. However, as Adler reminds us, even the ancients were limited in their thinking by an attachment to the doctrine or moral relativism:

Neither Aquinas nor Aristotle thinks that particular rules of laws should be the same in different times, places, and conditions.

This argument opened the door for a positivist theory of the state, as described by Adler, to mean: "No action is right or wrong unless a particular community, through its positive laws or customs, decrees that it is right or wrong. Then it is right or wrong in that particular place and time -- not universally."

Our modern world everyday challenges the idea that each group of people is sovereign and has the right to form the laws of its society independent of responsibilities as global citizens. This is both a practical observation and a moral assertion. That we each have an equal birthright to the earth and what nature provides is integral to the moral law, and for those who embrace justice as an objective, working toward this objective as a moral imperative ought to become a commitment of the deepest order.