WHICH CAME FIRST

LAW OR THE STATE?:NATURAL LAW AND THE RULE OF LAW (Joseph F.  Johnston, Jr., April 26, 2003, The Philadelphia Society National Meeting)

When America's founders adopted the Declaration of Independence in 1776, they based their action on certain "self-evident" truths, specifically, that men are endowed by God with inalienable rights, including the right to life, liberty and the pursuit of happiness, and that governments are instituted to secure these rights.  From the very outset of the nation, therefore, its independence was based upon the tradition of natural law, which holds that there are objective rights of liberty and property, and that these rights in turn rest upon a higher moral law.  The natural law is in sharp contrast to the opposing theory of legal positivism, which asserts that law is merely the will of the sovereign.  In the real world of today, the will of the sovereign means the power of the state.  The difference between these views of law is critical: if there is no "higher law," then there is no conceptual basis for arguing that any human law is unjust.

We live in an age in which the public is understandably captivated by the achievements of science and technology.  Sometimes this attachment to science becomes excessive and results in attempts to apply scientific method to subjects that cannot be quantified or tested by the methods of experimental science.  One of these subjects is the law.  Ever since the late nineteenth century, a series of doctrines has appeared purporting to reduce law to an empirical or experimental discipline using, to the maximum extent possible, the methodology of science.  These efforts have proceeded under a number of labels, including legal positivism, sociological jurisprudence, legal realism and, more recently, "law and economics."  All of these variations are "positivist" in the sense that they tend to separate law from its moral sources.

In this cultural climate, natural law appears to many lawyers to be a throwback, an obsolete category that ought to be discarded altogether.  If confronted with the term "natural law," a practicing lawyer today is likely to say that there is no such thing, or that it is a religious notion that has no place in legal analysis.  On the other hand, if you mention "the rule of law," he will probably indicate that he knows what this refers to, that it is a good thing and that we ought to preserve it.  And yet many if not all of the basic principles that we usually include under the rubric "rule of law" can be derived directly or indirectly from natural law sources.  Today, unfortunately, the connection between natural law and the rule of law, which formerly was so close as to amount to virtual identity, is largely neglected by the law schools and the legal profession.

This is a great shame, because the defense of the rule of law becomes much more difficult when it is unhinged from its intellectual, historical and moral roots.  As Professor Ellis Sandoz has argued in a recent paper, under the rule of law "there is an appeal to a higher standard of law and justice than the merely mortal or, at the least, than the enacted law of merely contemporary rulers."

In the end this is very nearly all that the argument between conservatives on the one side and libertarians, the Left, atheists, etc. on the other comes down to: do our rights and responsibilities precede or are they created by the state? The Founders explicitly stated the former, which is what conservatism assumes, but this depends on a belief in God who sets absolutes that govern our behavior. Deny those absolutes, deny God, and you are left with only the State, are in fact a statist. Posted by Orrin Judd at June 30, 2003 7:50 PM