On the Meaning of Natural Law

Edward J. Dodson

[The following is an exchange of views between Milton Rothman and Edward J. Dodson that appeared in the Philadelphia weekly newspaper, The Welcomat, in October and November, 1991. Mr. Rothman's commentary appeared on 23 October, 1991. Mr. Rothman was described by the editor as a retired physics professor living in Philadelphia]

Milton Rothman:

In recent weeks we have been regaled by newspaper essays concerning the philosophy of "natural law." This flurry of deep thinking atoms 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, if 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 Amazon valley are violating natural law. However, a linguistic contradiction raises its head when we realize that nudity is spoken of as a state of nature- au naturel. Perhaps its 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 be confused 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 ore 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 unable 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 it's 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 a while 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."

Edward J. 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 excercise 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.

Edward J. Dodson:

In (what I take to be) 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. In 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.