Natural Law in a Democratic Society

Wednesday, October 19, 2005
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.

17 comments:

flenser said...

Hmm. This was rather pushing the limits of length for a post. My apologies to Rick and vnjagvet for pushing their posts so far down the page.

terrye said...

flenser:

I just want to be left the hell alone.

That is all.

If I want to buy a freaking condom I don't want some nanny legislatures taking it upon themselves to interfere in my life.

Nor, do I think that the state of Conneticut had any business interfering in the lives of the married people of that state or arresting and convicting someone for {gasp} selling contraceptives.

The idea that in the year 2005 we are even discussing this is bizarre to me.

I don't give a damn if it is natural law or common law or legislative law or whatever.

The idea that a bunch of constipated protestants could get a state law on the books that limits my personal freedom just because they think they can get away with it does not make me feel better.

And if it takes the Supreme Court to give me back my liberty then that is fine with me.

Does that mean I think courts should legislate? No, but they do have a function and one of them is to make sure that the state does not overstep its bounds.

terrye said...

flenser:

I am sorry that sounded so snarky. It is obvious you put a great deal of time and thought into your post and I do not mean to be cavalier about it.

I think that our system is a combination of different types of laws and the whole purpose to the famous checks and balances is to try and make sure that none of the branches of the Republic can control the entire government.

There is almost always a recourse.

Seneca the Younger said...

Flenser, I'd like to see you exhibit an example of judicial reasoning that "natural law" overrules Constitutional law before we go very far with this. As I recall, the "gay marriage" arguments, for example, have depended upon, not natural law, but the Equal Protection clause.

flenser said...

terrye

"No, but they do have a function and one of them is to make sure that the state does not overstep its bounds."

The courts are the state.

terrye said...

flenser:

They are???

How about that. silly me.

I had gotten the impression from some people that they were evil usurpers of power who had no legitimate claim on authority.

flenser said...

Seneca

The Supreme Court has not ruled on gay marriage yet, so we cannot know for certain if it will make a right to gay marriage, and if so where it will locate such a right in the constitution.

The due process clause of the 14th Amdt, which is read as bringing common law rights to all, is where the courts finds many rights. If they ever do make gay marriage a right I'd expect to see the words "substantive due process" in there somewhere.

SDP is another way of saying common law or natural law.


terrye

"I don't give a damn if it is natural law or common law or legislative law or whatever."

I'm sure that you don't care. But somebody has to, because you cannot run a country of 300 million people where they all are yelling "I want what I want and I want it now!" without some system of rules.

But since you don't care, fine, just drop out of the debate.

terrye said...

flenser:

Fine I will. Golly I am glad you are here. I don't know how the other 299 million of us would muddle through.

BTW, when the southern states passed legislation making slavery legal..what kind of law was that?

And how is that law different from the law denying married people birth control?

I forgot. I don't belong here.

flenser said...

terrye

Hey, are you still here?

"BTW, when the southern states passed legislation making slavery legal..what kind of law was that?"

It was "all of the above", actually. Based on centuries of tradition, slavery was considered a part of common law. It was even upheld by the Supreme Court. And the Federal and state governments passed statute law.

But the real question is, how was it ended?

It turned out to be the mean old majority who ended slavery and changed the law in the most drastic way of all - at gunpoint. Hopefully we will not have to repeat that process too frequently.

Syl said...

It was an excellent article, flenser. Thanks for doing it.

But this:

"But somebody has to, because you cannot run a country of 300 million people where they all are yelling "I want what I want and I want it now!" without some system of rules."

True. Because all those yelling 'No, you can't have it!' can't just go ahead and get their way either.

Throughout our history the majority has been right and the majority has been wrong.

Seems we correct ourselves eventually. Our system is set up to take care of that. No matter that there's no hard rule about natural law vs legislative law written anywhere official.

And do you think these corrections might have something to do with the majority electing Presidents and Senates who, when they get the chance, change the makeup of the court?

Forget which 'side'. This is open to either judicial philosophy.

This back and forth, philosophy switching, process happens slowly.

Openings don't occur very often and maybe it's the luck of the draw on whose watch they happen. So let's throw in a little chaos theory as to makeup of the courts.

Switches in judicial philosophy and their affects on the SC and its rulings won't be as jarring since the switchover from one to another happens over a period of time.

And since the SC judges are appointed for life, the the court isn't constantly changing under our feet. (And is the main reason I oppose a term limit on them.)

I guess what I'm saying is the reason why I fully support conservative judges being appointed at this time is it's their turn. The Democrats have held electoral power for an extended period of time. Too long.

It has nothing, really, to do with my judicial philosophy. And I don't think it has to.

Make sense?

Even though I don't support conservatives on many of their 'core' issues.

truepeers said...

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.

-is it so straightforward? My understanding of English common law is that it has always been seen, in the ideal if not always reality, as the basis for the people's defense of their rights against the abuses of administrative, i.e. kingly, authority. It is because common law predates the emergence of democratic legislatures that the opposition you set up here between the undemocratic natural law and the democratic legislated law seems a bit forced, however these things play out in legal thought in the US at present, something on which I am not well informed.

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.

-I don't appreciate the distinction here: what is the difference between human convention and moral standards?

Perhaps my confusion reflects the fact that I would agree that there cannot always be a clear distinction (though one must sometimes be made) between law and morality, just as there cannot be a black and white contrast between law and the ethics of the day.

Where the distinction lies in my mind is between morality and ethics. Morality (e.g. proscription of murder) is something more or less universal, across time, while ethics are relative to time and place. There should be some distinction between law and morality and also some assimilation of the two, since the law must draw on both universal morality and shifting ethics.

I agree that the judges in our countries need to be reigned in somewhat. But isn't your argument at risk of throwing out the baby with the bathwater? Isn't one of the bases for the unparalleled democracy and freedoms of the anglophone world the existence of the common law? A society that does not know how to recognize a difference between universal morality, as expressed in convention or tradition or everyday anthropology, and the ethical ideas that are relative to specific periods and places (i.e. to the demands of the powerful), strikes me as a society not worth living in. When common law developed as a protection of convention against the whims of the ruling class, wasn't it a protection of morality against the ruling ethos of the day? And isn't law always going to be a negotiation between the two?

Seneca the Younger said...

Me: Flenser, I'd like to see you exhibit an example of judicial reasoning that "natural law" overrules Constitutional law before we go very far with this. As I recall, the "gay marriage" arguments, for example, have depended upon, not natural law, but the Equal Protection clause.

Flenser: The Supreme Court has not ruled on gay marriage yet, so we cannot know for certain if it will make a right to gay marriage, and if so where it will locate such a right in the constitution.

The due process clause of the 14th Amdt, which is read as bringing common law rights to all, is where the courts finds many rights. If they ever do make gay marriage a right I'd expect to see the words "substantive due process" in there somewhere.


Okay, so it should be easy then to exhibit an example. Notice I didn't say "Supreme Court", by the way, but "judicial reasoning".

Flenser: [Terrye:]"No, but they do have a function and one of them is to make sure that the state does not overstep its bounds."

The courts are the state.


Yes, the Courts are part of the State. As are the legislature and the Executive. The common law, to the extent that it is enforceable (and you seem to be sort of forgetting that the common law does not overrule legislation or the Constitution, but is applied when the guidance of the Constitution and legislation is unclear) is enforced by the state. Bounds on the Courts would be enforced by the State.

Short of the populace lynching judges who offend them, just what mechanism do you propose for limiting the power of the Courts?

David Thomson said...

“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.”

Amen. How we get from point A to point B is not minor. Our very liberty depends on the rule of law. Focussing exclusively on results can unwittingly open the door to tyranny down the road. In The Man for All Seasons, there is this wonderful scene:

“More     There is no law against that.

Roper    There is! God's law!

More     Then God can arrest him.

Roper    Sophistication upon sophistication.

More     No, sheer simplicity.  The law, Roper, the law.  I know what's legal not what's right.  And I'll stick to what's legal.

Roper    Then you set man's law above God's!

More     No, far below;  but let me draw your attention to a fact - I'm not God.  The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate.  I'm no
voyager.  But in the thickets of the law, oh, there I'm a forrester.  I doubt if there's a man
alive who could follow me there, thank God....

Alice     While you talk, he's gone!

More     And go he should, if he was the Devil himself, until he broke the law!

Roper    So now you'd give the Devil benefit of law!

More     Yes.  What would you do?  Cut a great road through the law to get after the Devil?

Roper    I'd cut down every law in England to do that!

More     Oh?  And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat?  This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - d'you really think you could stand upright in the winds that would blow then? Yes,  I'd give the Devil benefit of law, for my own safety's sake. “

http://www.publicdefender.com/FJCPDCthomasmoore.html

flenser said...

truepeers

Thanks for a thougful comment, as usual.

"I don't appreciate the distinction here: what is the difference between human convention and moral standards?"

The words you are questioning are not mine, but since I agree with them I'll respond, while suggesting that you follow the link to see what the original author has to say.

The key point of the quote is that natural law makes some claims to knowlege of what is "Good" or "Right". Within contempory Western culture, claiming to base ones decisions on ones superior knowlege of right and wrong is highly suspect. At least publically, judges and the courts make an effort to deny that their rulings are based on such knowledge.



"Isn't one of the bases for the unparalleled democracy and freedoms of the anglophone world the existence of the common law?"

I think so, yes.
The question which you should ask is if it was the process or the results of common law which led to these freedoms. As I detailed in the post, the doctrine of common law is a vehicle by which an elite can exercise control over a majority. That being the case, as the elites change, the results will change. They have changed, in fact, and as a result various new common law rights have been minted which overide older common law rights. If free speech is a good, does it become bad if the latest common law rulings say it is? It's important to be aware of how little respect current common law has for precedent.



"A society that does not know how to recognize a difference between universal morality, as expressed in convention or tradition or everyday anthropology, and the ethical ideas that are relative to specific periods and places (i.e. to the demands of the powerful), strikes me as a society not worth living in."

You won't get an argument from me on that. I think you run off the rails when you seem to assume that "the powerful" are not the people on the courts and the people placing judges on the courts.

You and I agree that certain important moral precepts ought to be codified in the law. Actually, Seneca agrees with that proposition also. He just wants some slightly different precepts in there.

The key question in this entire discussion is, who decides? Who has knowledge? Is the knowledge of right and wrong, good and bad, resident in all people? If so, the law would be best if it reflects the views of most of the people.

Or is knowledge of good and bad, right and wrong, something which only a few can discern, after years of reflection and study? If this is the case, then we ought to try to find these wise men and appoint them to a type of ruling body. That brings up lots or related questions, such as how we distinguish these people from the mass, if we lack the ability to make good/bad determinations. Or are they self-selecting?



"When common law developed as a protection of convention against the whims of the ruling class, wasn't it a protection of morality against the ruling ethos of the day? "

Well, ones persons morality is another persons "ruling ethos", is it not? When the US Supreme Court passed Roe, was that protection of morality, or was it an expression of the ethos of the ruling class of the time and place? I'm inclined to say the latter, and I think most people would agree. So to repeat a point I have already made, I think you are making a false distinction between the "courts" and the "law" on one side, and the "powerful" on the other. More often than not, they are the same. The question should be, how do they use that power? Is it to preserve and improve the ideas which have advanced our culture in the past?

flenser said...

Seneca

"..you seem to be sort of forgetting that the common law does not overrule legislation or the Constitution, but is applied when the guidance of the Constitution and legislation is unclear"

Regrettably, that is not the case.

In Griswald, to use terrye's favorite example, the legislation was quite clear. It was overruled on common law grounds, or as a violation of "due process rights".

In legalspeak, "due process" does not mean what it does in normal english. It is another way of saying common law or natural law.

Some background on due process here.


"Short of the populace lynching judges who offend them, just what mechanism do you propose for limiting the power of the Courts?"

Without exerting myself in the slightest, I can think of several steps, short of lynching, which would have the stated effect. Banishment, imprisonment, and removal from office are three. I suppose a legal execution might be aother. My answers are not entirely serious, but then, neither was the question. I hope.

Knucklehead said...

Flenser,

I'm sure that you don't care. But somebody has to, because you cannot run a country of 300 million people where they all are yelling "I want what I want and I want it now!" without some system of rules.

Therein, IMHO, lies the key issue. Finding some way to continue to allow 300 million people to the "pursuit of happiness" requires some basis on which to make law.

Thanks for your extended effort to try to help parse out how we, as a society and nation, go about doing this.

This is an area I had fervently hoped YARGB/Flares would tackle as a topic of discussion and just when that happens I find myself unable to spend the time I'd like to spend participating in the discussion - ARGGGHHHH!

One idea that I'd like to expand on but don't have the time is what the effect is of "judicial activism".

Netted out I see "judicial activism" as "legislating from the bench". How this happens is that the judicial branch or, perhaps more accurately, individuals within the judicial branch, decide that some law does not fit their interpretation of the various state or federal constitutions.

That's fine, that is their job - or at least a portion thereof. The problem, and where "judicial activism" rears its ugly head is when these judges attempt to specify what the law "should look like" (and sometimes even passing down requirements for funding!).

The negative impact of this is that it stifles the "debate" that needs to happen among "the people" via our legislatures. By, in effect, telling legislatures what the law they are striking down should look like they are circumventing the legislative branches' duty to bring our laws into accordance with what we, the people, want them to be and preventing the public "debate" about what that is and why.

I personally think it is a crying shame that this entire "issue" only seems to get public attention with the rekindling of the Roe v. Wade catfight. This is a much broader and more important issue - it goes right to the heart of how we govern ourselves.

truepeers said...

Flenser,

I'm under no illusions that the powerful are/have a lot of influence over the courts. But the question remains whether or not it is better to have multiple centers of political/state power or whether to concentrate these more wholly in the more democratic legislatures. This question remains quite aside from what I think of judicial decisions lately.

As for one person's morality being another's ruling ethos. No, not quite. Anyone who works in an institution knows that the ruling ethos of the organization and one's personal sense of morality are bound to differ at points, and this is as true for those at the top as the bottom of the institutional hierarchy. This is the contrast of ethics and morality I was referring to above. Now, when a court has to pass judgment on the behaviour of an institution, it is useful, is it not, that the law/the courts have more to work with than a strictly codified ethic - the existing rules of organizational life? A sense of a morality that exists beyond the ethics of today's temporary power structures will serve justice, on the whole. Now, again, whether today's judges have the sense of universal morality (and its relevance to today's world) that we would like is another question altogether. And it is only because you don't think the judges have it right at present that you are quick to say one person's morality is another's ruling ethos. Actually, few individuals ever embody a ruling ethos. Even the powerful often grow weary of the game.

I'm sorry I haven't had time to think these questions through more seriously, but in future I hope.