Our tranquil blog has been roiled recently by heated discussion of the law, and something called natural law or common law in particular. I'd like to explore why this should be such a contentious topic. What is common law anyway?
It is [t]he system of laws originated and developed in England and based on court decisions, on the doctrines implicit in those decisions, and on customs and usages rather than on codified written laws.
Also, [a] system of law that is derived from judges' decisions (which arise from the judicial branch of government), rather than statutes or constitutions (which are derived from the legislative branch of government).
Common law is based on the organic growth of law over the centuries in England.. It was not created by a legislative body. In fact, in large part, it precedes the existence of legislative bodies, especially the modern ones based on the notion of “one man, one vote”.
Common law assumes that law is properly the provenance of lawyers and judges, and that changes to the common law by legislative bodies are suspect or illegitimate. This is in contrast to statute law, or positive law, which holds that the law is that which is written down in the statute books or constitutions. In many cases the statutes in question were based on the common law. However, the bodies which entered it into the statute books were, for the most part, legislative bodies.
In the natural law or common law tradition, there is a presumption that judges and courts play a significant role in the development of new law, evolving it over time to meet new needs.
This presumption is at odds with the implicit assumptions underlying most democracies, and can be seen in the contradictory ideas expressed in the preamble to the Declaration of Independence.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The part about all men being “endowed by their Creator with certain unalienable Rights” is clearly an expression of natural or common law. However, the statements that governments derive their just powers from the consent of the governed, and that “the People” have the right to institute new government as necessary in order to establish a state which “ to them shall seem most likely to effect their Safety and Happiness” are a nod to democratic sentiment, and leave open the question of what is to be done if the wishes of “the People” and “the governed” come into conflict with common law.
This tension, between the undemocratic and anti-democratic aspects of common law/natural law, and the presumption that the American government, including its judicial arm, will be “of the people, by the people, and for the people”, is unresolved to this day, and plays out in the confused arguments over the proper role of judges in general and the Supreme Court in particular.
Here is a practical illustration of the question. While discussing the idea of natural rights with natural law proponents, I will ask them if there exists a natural law right to bear arms. They reply in the affirmative. So, if the state passes a law restricting the right to bear arms, it should be struck down? Again, the answer is yes. What about the hypothetical situation where a large majority pf the American people passes a Constitutional Amendment banning all private ownership of weapons? At this point responses get varied, but many answer that the Courts should strike down such an amendment, on the grounds that it violates the “natural law”, even if it is perfectly in accord with the constitution. Others reply that the court should not strike down such a law, but that the action is still morally wrong. From a purist natural law perspective, the constitution is not the source of law, and should be altered, by court ruling if necessary, so as to bring it into closer compliance with “True Law”.
At its base, the concept of natural law assumes that there exists some body of principles which stand outside of the wishes of any people, and even of most people for most of the time. The foundation of this law is located in either tradition, (it’s the law because it has always been that way) or in “sacred texts”, meaning partly the Bible and Torah but including the large and ever growing body of works of social and philosophical theory. In either case, the striking thing about it is that it is undemocratic, even antidemocratic, in nature, as the proper study and understanding of the historical record is presumed to be beyond the ability of most people.
According to natural law theory of law, there is no clean division between the notion of law and the notion of morality. Though there are different versions of natural law theory, all subscribe to the thesis that there are at least some laws that depend for their "authority" not on some pre-existing human convention, but on the logical relationship in which they stand to moral standards.
To state the matter in starker terms, natural law theory assumes that only a small class of people can have knowledge of “The Good”. The similarities of this to the teachings of the medieval church are striking, but not wholly surprising, as Church thinkers from the time of Aquinas were the most energetic proponents of the idea of natural law.
Natural law thinking historically has been a “conservative” force, as the practitioners of law have tended to be drawn from the conservative part of society. In addition, it depends on the ideas of tradition and precedent, and also presumes the existence of some transcendent "Law" which the judge strives to approximate ever more closely.
There is nothing inherent in the idea of natural law itself which drives it to any particular outcome. As the “elites” from which the ruling classes are drawn have become alienated and disaffected from their society and their fellow citizens, so the law has tended to drift in the directions which they wish. This leads to the rather odd result in some cases of people who detest tradition and the very concept of "moral law" embracing a legal approach based on both of these things.
Natural lends itself fairly easily to being used to attain any ends which judges wish, because it assumes that common law “unwritten law” takes precedence over written law. And also because it allows judges a large degree of discretion in what texts they wish to use to inform their understanding of the law. Justices Kennedy and Ginsburg both consider laws from foreign countries to be suitable material to inform their decision making on the US Supreme Court, for example.
In a great many cases over the past fifty years, the courts in America have relied on common law, in the guise of "substantive due process", to overturn statute laws passed by the elected legislatures (e.g Griswald), as well as laws made directly by the citizens by means of ballot inititaves (e.g Romer).
The Supreme Court has yet to strike down a constitutional amendment as being in violation of natural law, or to announce that the allocation of U.S. senators by state is a violation of the principles of equity and fairness, but the ideas have been broached. Not too very long ago the notion that the courts might discover a natural law right to "gay marriage" would have seemed absurd. Now it seems more likely than not.
The attraction of the idea of common law to many is precisely it's anti-democratic nature. It is felt that this may serve as a valuable guard against the "tyranny of the majority". And clearly, it is an approach which is very appealing to judges. It would seem to me that, regardless of whether or not the curent reading of common law is to your satisfaction or not, the realization that it may well change into something different within your lifetime should be grounds for concern. A court with the power to make society as you may wish it also has the power to remake it into something you would find abhorrent.
I find that most discussion about the law, rights, the Ninth Amdenment, privacy, and a host of other issues gets hung up on misunderstanding of the above points. You have two sides arguing from completely different premises, often without being aware of it.