{"id":1199,"date":"2014-12-22T11:07:58","date_gmt":"2014-12-22T16:07:58","guid":{"rendered":"http:\/\/www.beliefnet.com\/columnists\/attheintersectionoffaithandculture\/?p=1199"},"modified":"2014-12-22T11:07:58","modified_gmt":"2014-12-22T16:07:58","slug":"natural-law-positive-law-rights-and-duties","status":"publish","type":"post","link":"https:\/\/www.beliefnet.com\/columnists\/attheintersectionoffaithandculture\/2014\/12\/natural-law-positive-law-rights-and-duties.html","title":{"rendered":"Natural Law, Positive Law, Rights and Duties"},"content":{"rendered":"

In the wake of the Eric Garner case, some libertarians have urged us to revisit the topic of natural law, <\/em>a \u201chigher\u201d moral law that supplies an objective standard of justice for \u201cpositive law,\u201d the law(s) posited <\/em>(or made) by human beings.<\/p>\n

Garner, it\u2019s been argued, had a \u201cnatural right\u201d to dispose of his property (his loose cigarettes) as long as he observed the \u201caxiom\u201d of \u201cnon-aggression,\u201d the principle forbidding people from violating the rights of others.\u00a0 Since, allegedly, Garner \u201caggressed\u201d against nobody, he was guilty of no wrong doing.<\/p>\n

Some thoughts:<\/p>\n

(1)As far as the lifespan of natural law theory goes, it has only been recently<\/em> that natural law <\/em>has been identified with a doctrine of \u201cnatural rights.<\/em>\u201d That\u2019s correct: Though belief in natural law extends back millennia to antiquity, it wasn\u2019t until about 600 years or so ago, during the late medieval era, that the idiom of \u201cnatural rights\u201d sprang up on the scene.\u00a0 Prior to this, natural law theorists from the Greeks and Romans to Jews, Christians, and Muslims (and beyond) viewed natural law as prescribing duties, <\/em>not rights.<\/p>\n

The Catholic ethicist Alasdair MacIntyre informs us that prior to this juncture, there had been \u201cno expression in any ancient or medieval language correctly translated by our expression \u2018a right\u2019 [.]\u201d\u00a0 The notion of \u201ca right,\u201d he continues, \u201clacks any means of expression in Hebrew, Greek, Latin or Arabic,\u201d whether \u201cclassical or medieval,\u201d prior to the fifteenth century.\u00a0 Nor is there any word or phrase for \u201ca right\u201d to be found in Old English.\u00a0 And it wasn\u2019t until the late 19th<\/sup>century<\/em> that Japanese had an equivalent of it.<\/p>\n

If there really is such a thing as natural (or \u201chuman\u201d) rights, no one <\/em>prior to the fifteenth century knew about them.<\/p>\n

Nor could <\/em>they have known about them: rights-claims are always only meaningful within the context of a system of culturally-specific institutions.\u00a0 As MacIntyre notes, in the absence of such institutions, \u201cthe making of a claim to a right would be like presenting a check for payment in a social order that lacked the institution of money.\u201d<\/p>\n

The 19th<\/sup> century Oxford philosopher, T.H. Green, makes a similar point when he writes that without \u201cthat complex of institutions\u201d that we call \u201csociety,\u201d \u00a0\u201cI literally should not have a life to call my own [.]\u201d\u00a0 Green\u2019s point is that \u201cit is only as members of a society\u2026recognizing common interests and objects\u201d that we become \u201cmoralized.\u201d<\/p>\n

The \u201cpatron saint\u201d of conservatism, Edmund Burke, hammered home this thesis when combating the French revolutionaries and their cries of \u201cthe Rights of Man.\u201d\u00a0 Burke knew full well that it is \u201cthe civil social man, and no other\u201d\u2014i.e. flesh and blood, socially embodied beings, not<\/em> a bunch of abstract, pre-political rights-bearers descending from some mythical \u201cstate of nature\u201d\u2014that is the subject matter of law and politics.\u00a0 \u201cMen cannot enjoy the rights of an uncivil and of a civil state together,\u201d he declared.<\/p>\n

Since \u201ccivil society\u201d is \u201cthe offspring of convention, that convention must be its law.\u201d\u00a0 What this means is that every \u201csort of legislative, judicial, or executor power\u201d are the \u201ccreatures\u201d of convention. \u00a0No social institution \u201ccan have\u201d any \u201cbeing in any other state of things,\u201d Burke says.\u00a0 It\u2019s not possible, he maintains, for \u201cany man [to] claim, under the conventions of civil society, rights which do not so much as suppose its existence\u201d and which may even be \u201cabsolutely repugnant to it [.]\u201d<\/p>\n

(2)The problem with the \u201caxiom\u201d of \u201cnon-aggression\u201d\u2014what is otherwise known as the \u201cNo Harm\u201d principle\u2014is that it is not an axiom at all<\/em>.\u00a0 An axiom is a self-evident proposition. That I\u2019m awake and that Earth is more than five minutes old are all self-evident propositions.\u00a0 But the proposition that the only time that anyone\u2014including government\u2014is justified in using force is when it is necessary to resist <\/em>force initiated by an aggressor against the person and\/or property of another is anything but self-evident.<\/p>\n

And because of this, it is can\u2019t be the starting point of an argument; it needs <\/em>an argument.<\/p>\n

The great utilitarian philosopher, John S. Mill, enunciated the non-aggression or No Harm principle when he remarked that \u201cthe sole end for which mankind are warranted individually or collectively in interfering with the liberty of action of any of their number is self-protection [.]\u201d\u00a0 He is adamant that \u201cthe only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others.\u201d<\/p>\n

However, the 19th<\/sup> century conservative theorist James Fitzjames Stephen noted that this principle, if true, would discredit every religious and moral tradition that has ever existed.\u00a0 <\/em>\u201cNow, in the innumerable majority of cases,\u201d Stephen remarks, \u201cdisapprobation, or the moral sanction, has nothing whatever to do with self-protection.\u201d<\/p>\n

In fact, even John Locke\u2014<\/em>no slight figure in libertarian thought\u2014held that force can<\/em> and should<\/em> be applied to individuals even when they are not directly harming<\/em> anyone. \u00a0<\/em>Roman Catholics and atheists are two notable examples of groups that he exempts<\/em> from measures designed to foster \u201ctoleration.\u201d<\/p>\n

(3)Even if we assume that the libertarian argument above vis-\u00e0-vis the Garner case works, it most certainly does not <\/em>follow that Garner wasn\u2019t in the wrong.\u00a0 Outside of the French radicals of the 18th<\/sup> century, the overwhelming majority of natural law thinkers, including natural rights <\/em>theorists, have recognized a moral duty<\/em>\u2014a duty rooted in the natural law<\/em>\u2014to obey the positive law\u2014even when the latter is unjust<\/em>.<\/p>\n

When a law is intolerably unjust, there is a moral duty\u2014a duty rooted in the natural law\u2014to disobey it.\u00a0 But even here, the disobedience must be civil, <\/em>i.e. it mustn\u2019t involve \u201cany degree of public mischief or private injury,\u201d as William Blackstone put it.\u201d\u00a0 This means the disobedient must be willing to submit to penalties.<\/p>\n

St. Paul wrote that since \u201cthere is no authority except from God, and those authorities that exist have been instituted by God,\u201d \u201cwhoever resists authority resists what God has appointed [.]\u201d<\/p>\n

Thomas Aquinas, a \u201crock star\u201d of the medieval era and among the greatest of Western philosophers generally, said that an unjust law \u201cis not a law, absolutely speaking, but rather a perversion of law<\/em>\u201d(italics added) [.]\u00a0 However, a perversion of law,\u00a0 even when it emanates from a tyrant<\/em>, still contains \u201csomething in the nature of a law,\u201d for \u201cit is an ordinance made by a superior to his subjects, and aims at being obeyed by them [.]\u201d<\/p>\n

An unjust law \u201chas the nature, not of law, but of violence,\u201d but it nevertheless \u201cretains some appearance of law<\/em>\u201d in \u201cbeing framed by one who is in power [.]\u201d\u00a0 Thus, even an unjust law \u201cis derived from the eternal law<\/em>; for all power is from the Lord God\u201d (italics added) [.]<\/p>\n

To be clear, natural lawyers have always insisted that there are <\/em>unjust laws that demand <\/em>disobedience.\u00a0 But there are two things to bear in mind here:<\/p>\n

First, the law in question, like a law requiring murder, must be wildly offensive to conscience.<\/p>\n

Second, the disobedience should be open and conducted in a manner that is consistent with respect for law as a whole (unless, of course, the whole system is corrupt, in which case revolution <\/em>may be the only option).\u00a0 This way, the disobedience distinguishes the disobedient from cowardly criminals while drawing the public to the injustice of the specific law.<\/p>\n

The early Christian martyrs, Ghandi, Martin Luther King, Jr. and the \u201ccivil rights\u201d activists of the 50\u2019s and 60\u2019s are among the scores of believers in natural law from throughout history who civilly <\/em>disobeyed unjust laws.<\/p>\n

Eric Garner is not to be included in their number\u2014or even mentioned in the same breath.<\/p>\n

 <\/p>\n

 <\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

In the wake of the Eric Garner case, some libertarians have urged us to revisit the topic of natural law, a \u201chigher\u201d moral law that supplies an objective standard of justice for \u201cpositive law,\u201d the law(s) posited (or made) by human beings. Garner, it\u2019s been argued, had a \u201cnatural right\u201d to dispose of his property…<\/p>\n","protected":false},"author":399,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1199","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"yoast_head":"\nNatural Law, Positive Law, Rights and Duties<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.beliefnet.com\/columnists\/attheintersectionoffaithandculture\/2014\/12\/natural-law-positive-law-rights-and-duties.html\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Natural Law, Positive Law, Rights and Duties\" \/>\n<meta property=\"og:description\" content=\"In the wake of the Eric Garner case, some libertarians have urged us to revisit the topic of natural law, a \u201chigher\u201d moral law that supplies an objective standard of justice for \u201cpositive law,\u201d the law(s) posited (or made) by human beings. 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