On Natural Law, an Exchange of Views
Edward J. Dodson
[My response to an essay by Milton Rothman, printed in the
Philadelphia weekly newspaper, the
Welcomat, in October 1991. Milton Rothman described himself as
a retired physics professor.]
MILTON ROTHMAN:
In recent weeks we have been regaled by newspaper essays concerning
the philosophy of "natural law." This flurry of deep
thinking stems 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, it'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 Amizon valley are
violating natural law. However, a linquistic contradiction raises its
head when we realize that nudity is spoken of as a state of nature --
au naturel. Perhaps it's clothing that breaks the natural law.
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
culture.
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 b econfused
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 are 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 un- able 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 its 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 awhile and take them for
granted, we come to think of these rights as "self-evident"
and "natural."
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
natural law."
ED 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 few.
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
exercise 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.
MILTON ROTHMAN:
All my friends thought that my article on Natural law (Oct.23) was
very logical. Yet three members of the letter- writing public accuse
me of poor logic (Letters, Oct.30).
From whence does this discrepancy arise? To locate the source of the
disagreement, I made a data search in the City Institute Library, that
jewel of Rittenhouse Square. My answer was found in
The International Encyclopedia of the Social Sciences
(MacMillan, 1968), in an article on "Natural Law."
The first sentence of this article says: "Natural law, which was
for many centuries the basis of the predominant Western political
thought, is rejected in our time by almost all students of society who
are not Roman Catholic." This line might not appear in a
contemporary encyclopedia, since its frankness does not meet the
requirements of political correctness. But it verifies the suspicions
I had harbored.
I do have one friend who asked me with some skepticism how I knew
that the ancient Greeks thought homosexuality was normal behavior. I
could not remember for the moment how that bit of knowledge had
entered my head, so I checked out the Encyclopedia Britannica
while I was in the library and found an article on "Homosexuality"
containing the following line: "The ancient Greeks accepted
homosexuality and in some respects considered it a higher form of love
than heterosexuality."
My question then remains: How do you derive a moral law form nature
when standards of morality change from place to place and from time to
time? I prefer being honest and recognizing that moral laws arise form
custom and habit. Government should not try to legislate morality
except when it is necessary to protect society against murder, torture
and financial chicanery. If nature was really opposed to murder, we
wouldn't have to pass laws against it.
ED DODSON:
In (what I take to he) 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
liberty.
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. One 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 oppressed
minorities.
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
human life.
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