Natural Law, the Answer to Legal Positivism

December 10, 2018
Source: Seminary Dillwyn

From November 15-17, the Seminary received two distinguished guest speakers, Judge Andrew Napolitano and Professor Brian McCall.  The purpose of their visit was to speak on the importance of the Natural Law in our modern era.

The Problem

Today, it is a common error to believe that the will of the majority of voters or representatives is the unique and absolute criterion of morality.  Whatever is legalized is morally good; and whatever is illegal is morally bad.  There is no appeal to a law other than the written law of the land.  Justice and injustice, right and wrong are the inventions and playthings of human legislators.  Their authority has its ultimate basis, not in God the creator of mankind, who gave man his social nature, but in some kind of social contract to which all citizens are presumed to give tacit consent.  Once this consent is given, it necessarily extends to whatsoever laws the governing body sees fit to enact, be they in accord or in conflict with the nature of man and his last end.  This is the tyranny of legal positivism.

Judge Napolitano opened his conference with a word of St. Thomas More, which the former Prime Chancellor of England had spoken when put on trial for high treason.  His crime consisted in refusing to subscribe to the Act of Supremacy, which proclaimed King Henry VIII the supreme head of the Church of England, entirely independent of Rome.  To St. Thomas More, this was an attempt to invert the essential order of things established by God.  He expressed the absurdity of this by an analogy: “If the earth is round, could the king’s command make it flat?  Or if it is flat, could an act of parliament make it round?”  The power of the human legislator is limited.  As soon as he tries to overstep the just limits of his power, he cannot expect to be obeyed.

The Answer

The antidote to this evil, as Dr. McCall explained, is knowledge of the Natural Law.  Natural law is to human legislation what the framework is to the house.  The role of positive law is merely to fill in the outline.  By the light of natural reason, man understands that he must do what is in accordance with his nature, and avoid what is evil or contrary to nature.   Just as a watch exists to tell time, and a saw exists to cut, so man exists for a definite purpose.  God, the author of human nature, has determined man’s last end and endowed him with the faculties that he needs to attain it.  Natural Law is the impression of the divine blue-print or master-plan in the mind of the creature.  But because man is free and moves himself freely toward his end, it is given to him to determine some of the details of this plan.  This is true of the individual: in addition to observing the precepts, he may freely choose which of the counsels he will observe: which devotions to say, which acts of mercy to perform, what state of life to embrace.  But it is also true of society.  What form of government will it adopt?  What currency will it accept?  Will travelers drive on the right or the left side of the road?

The scope of positive law, then, is to fill in what is left indeterminate in Natural Law. For instance, nature dictates that we drive safely in order not to endanger our lives and property; but the human legislator determines how this is to be done.  As long as positive law confines itself to restating what is already contained in Natural Law, or specifying its application, it is just and obliges in conscience.  But as soon as it strays outside of the framework and attempts to invert the natural order of things, the result is disastrous.


Support in our Founding Documents

Even our founding fathers had a notion of the Natural Law.  References to it can be found in the Declaration of Independence, the Constitution, and the Bill of Rights.  In spite of these good elements found in these documents, they fail to clearly grasp or elucidate the Natural Law. This failure has a twofold cause: The founding fathers leaned on the philosophy of the enlightenment rather than the perennial philosophy of St. Thomas Aquinas, and refused revelation.  In spite of all this, they can still be used in the battle against legal positivism, since they appeal to a Creator and an order which depends on Him.


The Need for Revelation

Unfortunately, as Professor McCall reminded us, due to the weakness of human reason, which is easily blinded by passion and prejudice, man can be ignorant of the application of the Natural Law.  The first principle of this Law, Do good and avoid evil, is like an inextinguishable light that cannot be put out, even in the damned (it is the source of their remorse of conscience).  Yet this principle is not immediately applicable to action.  To determine what is good and what is evil in the concrete problems of daily life, man makes use of a reasoning process that is complex and highly fallible.  The further that he removes himself from this first principle, deducing secondary principles and applying them to concrete situations, the more likely that he is to err.  Hence man needs to be taught directly by the Divine Wisdom, in order that “the ways of them that are upon earth may be corrected, and men may learn the things that please God; for by wisdom they were healed, whosoever have pleased thee, O Lord, from the beginning” (Wis. 9,18-19).  Let us give thanks that God has chosen to send us his Word incarnate in order to teach us his ways.