Lex Natura

by Fr. Charles E. Irvin, M.B.A., M.Div. J.D.

"So Pilate went back into the Praetorium and called Jesus to him and asked him, 'Are you the king of the Jews?' Jesus replied, 'Do you ask this of your own accord, or have others said it to you about me?' Pilate answered, 'Am I a Jew?' It is your own people and the chief priests who have handed you over to me: what have you done?' Jesus replied, 'Mine is not a kingdom of this world; if my kingdom were of this world, my men would have fought to prevent my being surrendered to the Jews. As it is, my kingdom does not belong here." Pilate said, 'So, then you are a king?' Jesus answered, 'It is you who say that I am a king. I was born for this, I came into the world for this, to bear witness to the truth; and all who are on the side of truth listen to my voice.' 'Truth?' said Pilate. 'What is truth?'" (John 18:33-39)

Jesus standing before Pilate is accused of the most serious crime in the Roman Empire, namely that of challenging the authority of the emperor. "Are you a king?" Pilate asks incredulously. It's humiliating and embarrassing to have this Galilean rabbi without portfolio, this poor and insignificant itinerant rabbi named Jesus (from Nazareth of all places!), actually challenging the divine Roman Emperor!! It's downright subversive... un-Roman... degrading.

In our own American Declaration of Independence we, too, threw off a king; we threw King George and his tea bags into Boston's harbour. And in doing so, we drew our warrant from God, saying: "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."

The French Revolution, which followed upon ours by just a few short years, threw off any and every external restraint upon Frenchmen, proclaiming that human choice and human choice alone determines reality." Cogito, ergo sum" is after all a French philosophy that appeals to no God to warrant human existence.

And as for Truth? Well, Truth is what free Frenchmen, as autonomous and free individuals, say it is. The Jacobins proclaimed human reason to be free of all transcendent measures, values and goals.... free of Church and free of God.

Modern Americans have unwittingly (and some, I fear, wittingly) junked the American Revolution and opted for the French one. Religion? Purely and solely a private matter; it's a matter of individual opinion or feeling. There are no absolutes, no divine imperatives... and there are no Transcendents. What is legal and lawful is what 51% of Americans have determined to be legal (and therefore moral). Religion is purely a private matter, an individual opinion, a warm, fuzzy feeling for insecure people who need it. The only infallibility is found in Gallup polls.

Napoleon followed the Jacobins, the first of the Modern Totalitarians. The Emperor Napoleon was the first to declare that the bodies of French men and boys belonged to the State and her Army; he was the first do decree universal conscription, the draft as we call it, claiming ownership of their bodies for the armies of France. Natural Law? God's law? Nuisances!

From thence it was only a short philosophical step to Marx, Engels and Lenin. And along with them came National Socialism, Hitler and his Nazis. All were the descendants of France's Revolution, not ours. Ours looked to God for its warrant. France's Revolution rejected God and appealed only to Man's will for its warrant.

Freedom of Choice is our idol, our king and emperor. The Attitude Engineers of our day say: "We belong to no one; we have no king." Truth? Truth is what we say it is. Forget all of this nonsense about "inalienable rights", endowments by a Creator, and all manner of God-talk when it comes to the public forum. Private freedom of choice is our god. All of those who deny that are un- American, divisive, and subvert our American Way.

Christ still stands before Pilate. And the ancient issue in question remains: Are we free because we are free to do as we wish, or are we free because a Creator has endowed us with an inalienable right to choose that which is good? And what is the Good? Just what is Truth?

JURISPRUDENCE

The courthouse in Ft. Wayne, Indiana has the following quote inscribed on its facade:

"Jurisprudence is the knowledge of the human and the divine. It is the science of knowing right and wrong."

Noble sentiments, indeed. But they would be sandblasted away if today's American law school professors had an effective vote to do so. Few self-respecting professors of law would today teach the idea that law has anything to do with the knowledge of the divine. And as for what is morally right or wrong? No place for such private opinions and matters of personal faith in today's courtrooms!.

What irony it is that these distinguished gentlemen teach in land grant colleges and universities, institutions of higher learning endowed free of charge with the lands upon which to erect their schools. And the instrument of endowment? The Northwest Ordinance, which reads in part:

"Religion, morality and knowledge being necessary for the good government and happiness of mankind, schools and the means of education shall forever be encouraged."

Religion? Morality? Taught in a tax dollar supported university law schools? Their faculties would, without hesitation, remind us that there's a wall of separation between Church and State, and no State school can teach religion or morality, only pure, objective, scientific knowledge, free from such subjectivities such as religion or morality, free from such transcendents as Justice and Equity.

Professor Karl Llewellyn, a giant among legal educators, welcomed his Freshmen University of Chicago students with the following:

"The hardest job of the first year is to lop off your common sense, to knock your ethics into temporary anesthesia. Your view of social policy, your sense of justice — to knock these out of you along with woozy things, along with ideas all fuzzed along the edges. You are to acquire ability to think precisely, to analyze coldly.... to see, and see only, and manipulate, the machinery of the law. It is not easy thus to turn human beings into lawyers.... None the less, it is an almost impossible process to achieve the technique without sacrificing some humanity first."

Said another, Hans Kelsen:

"...the concept of law has no moral connotations whatsoever."

Why do these distinguished gentlemen of the Law say as they do? Well, because "legal realism" and "legal positivism" have shoved away the more ancient conceptions of Jurisprudence. The prevailing legal philosophy of today tells us that law is simply a series of stated principles that describe procedure, technique, and controlling rules determined by the dicta of judges. What magistrates do is, today, the law itself. Law is merely a matter of the State's force and coercion controlling the clash between the self-interests of its citizens and their factions.

You see, we've become a society of factions, as any legislator will tell you. Self-aggrandizement couched as self- enhancement and self-motivation, has become the operative principle in our society. Getting government off our backs (i.e. getting external restraints off our backs), means that any concerns for "the common good", or any concerns for what the Founders of our nation referred to as "civic virtue", any concerns about "morality" or transcendent Justice, are to be expunged from the souls and minds of our citizens and their counsellors and advocates. Law is nothing more these days than the ameliorating and channeling of the projections of power between individuals and interest groups, be they public or private.

Wrote Oliver Wendell Holmes, Jr. in letter to one of his friends:

"I have said to my brethren [on the Supreme Court] many times that I hate justice, which means that I know if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms."

How often, I wonder, are his words quoted in that courthouse in Ft. Wayne, Indiana that has such noble thoughts chiseled on its facade?

And lest we be too smug, hasn't our own Catholic Church become divided into factions, each attempting to project their own power, their own purities of doctrine, on all others? We mirror too much, I fear, the society in which we attempt to live as Catholics.

CLARENCE THOMAS BEFORE THE COURT

During his nomination hearings before the U.S. Senate the editors of the Detroit Free Press chose to characterize Judge Clarence Thomas' mental processes as "weak-minded" because his jurisprudence is built upon Natural Law principles. The Free Press did not bother to tell us precisely why it is "weak-minded" to rely on Natural Law theories. They simply gave us the following politically correct reasoning: "Natural Law theorists lack strength of mind, Judge Clarence Thomas is a Natural Law theorist, therefore Judge Clarence Thomas lacks strength of mind." One wonders whether or not it's worth the price of a subscription to their "news" paper?

There is a rather profound fabric of thought to which the print media has paid scarce attention. It finds expression in one of the foundational principles of the Natural Law:

"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."

Our Declaration of Independence, appealing as it does to God for the foundation of our rights, concludes (much to the utter chagrin of modern day secularists) with the sentence: "And, for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor." One can easily imagine that many of today's journalists feel such sentiments to be in violation of the wall of separation between church and state.

There are two related questions to which we must pay some attention. The first is: Do we hold these declared truths because they are true, or are these truths true because we hold them? Does the American Consensus, as our commonly held agreement, constitute the truth, or does the truth command our American Agreement which is the consensus which we hold?

And the second related question: Whence comes the warrant to compel through constitutional enforcement, through legal enactments and in public policy, that which is right and that which is wrong? Why are we allowed to oblige these principles in our public acta?

Everything that we might henceforth discuss here about Natural Law depends upon our agreement to something that is self- evident. It cannot be "proved" anymore than you can place someone at the face of a glacier and then require him or her to "prove" that the glacier exists. It is simply there, prima facie. To deny it's existence or to claim that its existence cannot be proven is to end all rational discussion.

I take it as a given that the raising of experience to a Transcendental and the transformation of facts into a principle is the work of ratiocination. It is not simply an inquiry into certain facts, nor is it simply the act of reflection on experience. It is an act of reasoned human judgment, an exercise in moral affirmation of the truth of something in the order of being and its rightness in the order of moral activity. The English Common Law system, from which ours has descended, is nothing if it is not this. It is the progeny of Natural Law, its natural mother, modern day opinion columnists to the contrary notwithstanding.

Being possessed of a rational soul is the distinguishing feature of a living human being, separating us from the animal order below homo sapiens, and impelling us to act according to reason, that is to say, to act reasonably and responsibly in relation to the nature of things. In the days when universities were allowed to have Schools of Theology in dialogue with the others Schools within the embrace of Alma Mater such acts were called virtue. Moreover they were likewise powers (cf. "virtus").

Natural Law jurisprudence stands on a three legged stool; knock one leg away and the whole system falls. But with the legs underneath it is an extremely stable and strong system indeed. The legs? 1) Homo sapiens is intelligent, 2) reality is intelligible, and 3) reality once known imposes on the human will the obligation that it be obeyed in its demands for action or abstention from action. That is to say, if you know you have a kerosene lamp in your tent out in the woods and you attempt to burn gasoline in it you're violating the nature of your equipment as well as the fuel and you're asking for trouble. Acting unreasonably and irresponsibly brings with it human suffering and loss. Such acts we know to be immoral.

THE BARBARIANS HAVE INVADED

The modern barbarian is likely to appear more like a Phil Donahue than a Conan. His mission is to spread doubt and confusion, to undermine rational standards of judgment. He reduces all spiritual and moral issues to tests of popular opinion, studio audience reactions, analysis of language, and ultimately to individualistic and subjective "feelings". He is busily about the task of constructing a philosophy to end all philosophies; what is non-normative is suggested to be the norm, what is abnormal is presented as normal.

There is, for him, no eternal order, no transcendent Truth or transcendental Justice. Transcendentalism is anathema. There is nothing higher than human choice unaided and unfettered by such things as "higher principles". There are no universals, no absolutes, no laws higher than those which are determined solely by majority vote or opinion. He is horrified by talk of Natural Law. Anything that requires man's assent or calls for his obedience is to be destroyed, obliterated, or laughed out of the court of human reason. The only thing to which man must submit is that which has 51% of the vote in the market place. The only morality is that which is legal. The modern barbarian sits in the editorial offices of today's newspapers and fills your mind with his non-philosophy and tells you that those who think otherwise are "weak minded".

It remains, nevertheless, self-evident that what is true cannot at the same time and under the same respect be false, and that what is good attracts the human will and presents its own warrant to be done, and that what is evil is to be avoided. To act against reason is, therefore, to sin. And so to act is to deny one's very own nature as well as that greater human Nature of which we are all a part, all of it coming as it does from the Creator who has endowed it with those rights which inhere in it and which are evident to the human mind.

President George Bush's nomination of Judge Clarence Thomas to the U. S. Supreme Court led to the happy result of bringing back to public debate the question of Natural Law. What is it? Who recognizes natural rights in human beings and who enforces their protection? These are critical questions with respect to the abortion issue, assisted suicide, affirmative action, sex discrimination, racial quota questions, and in all other cases wherein something is claimed to constitutionally inhere in any human being. Indeed, the question of whether or not a fetus is a human being is likewise a Natural Law issue. What is the nature of a fetus? What legal rights does a fetus enjoy? What constitutional rights? And to what degree are they enforceable?

The realm of Natural Law is familiar to the Catholic. He or she moves into the complexities of the arguments comfortably, at ease with notions that are admixtures of theological, metaphysical, juridical and political principles. Protestants, on the other hand, find Natural Law considerations to be challenging, even offensive. Luther, Calvin and others built their theological systems on notions that deeply distrust human nature. If human nature has been totally corrupted by sin then salvation can be mediated only through extra-human means. Grace mediated through human nature? No! Consequently, a jurisprudence based on notions of Law and Truth inhering in human nature are repugnant. The Protestant theological mind is greatly discomfited by notions of the Natural Law.

For similar reasons the Jewish mind is likewise discomfited. The Jew does not share the Christian idea of history, even though the Christian idea of history builds upon the Jewish experience of God in human history. The idea of the Divine becoming human raises excited theological debates, particularly among Jews themselves, over the nature of the Messiah. Furthermore, for the Jew the Law came down from Mt. Sinai, it did not emerge from within the nature of things. Natural Law would be a major problematic to Jews. They experienced Law coming down from God to Mt. Sinai, and from thence to us. The Law came from the hands of God, infinitely distant from human nature, even though traces of the Creator might be found in His creatures.

Historically the first enemy of the secularist is the Catholic Church. And that historical enmity is borne out in today's debates over abortion, the nomination of Clarence Thomas, and the role (if any) of Natural Law in our society. The secularist abhors notions of Natural Law just as much as he or she abhors the Catholic Church. Why? Because both admit of an authority superior to human reason alone. Natural Law asserts that there is a higher law than the laws produced by Positivism. Natural Law posits the proposition that the temporal order is subordinate to the spiritual, a notion that the secular mind hates. Equally abhorrent is the fact that the Church is a visible, organic community, a community of thought and judgment that dares to sit in judgment both on the community of democratic thought as well as the choices of humans freely made.

Yet our patrimony of political thought as expressed in our nation's Declaration of Independence and Constitution comes down to us from classical sources and the Christian contributions built upon them. The Magna Charta, English Constitutional Law, European Jurisprudence, the Justinian Code, and countless other springs have all produced a confluence of public discourse and argument that has given us Western constitutionalism, happily expressed in our American Experiment. The arrogance, power, and abuses of kings and monarchs was somewhat held in check by the Church and her patrimony of Natural Law concepts and principles. Our American Constitution and our Declaration of Independence were not conceived in, nor did they spring full blown from the minds of those who wrote them on this side of the Atlantic, or of the Enlightenment, or of the Reformation. The American Experiment has more ancient progenitors held in honor and esteem by the Roman Catholic Church.

Civil society is a need and a right found in human nature. Those rights are not simply granted us by a legislator, even though the positivist and secularist mind declares that to be so. The human mind alone did not graciously discover and grant them to us. There is a patrimonium generis humani of essential truth, a bequest of rational belief that builds, protects and sustains the City of Man in that it relies on Natural Law principles. Those principles provide us with truths that come to us not from the statues of a legislature, the acts of a Constitutional Congress, or the decisions of a Supreme Court, but rather from the Creator who has endowed us with those rights that reasonable and rational men and women, locked and held together in public discourse, find to be self-evident. These rights are discovered not in the Constitution but in that reality upon which the Constitution is built, human nature made by God in His image and likeness.

Fr. John Courtney Murray, S.J., in his book We Hold These Truths, wrote: "The question is sometimes raised, whether Catholicism is compatible with American democracy. The question is invalid as well as impertinent; for the manner of its position inverts the order of values. It must, of course, be turned round to read, whether American democracy is compatible with Catholicism."

Quite so, for the Catholic must deal with his membership in a Community that is wider and deeper than that which is merely American. The Catholic is a member of a Community whose history is ten times longer than the few brief years in which the American Experiment has existed. His religious faith and his patriotic beliefs cannot be simply merged, as others may perhaps merge them, selling out both for the sake of a hollow secular religion in which human nature is bought and sold as mere pottage, where financial values supersede human values, materialism crushes quality and excellence, egalitarianism dilutes everyone to the lowest common denominator, and small- minded human willfulness replaces the mind of God.

For, you see, the Barbarians have invaded. The decline and fall of the American Experiment is at hand. The Vandals of our day are the secular humanists who are constructing a philosophy to end all philosophies and a legal system to end the Rule of Reason and the Rule of Law. You will find them busily on the attack in the debate over Natural Law raised by Judge Clarence Thomas, a judge who stands at a more ancient bar looking at the scales of Justice held in the hand of a Mother who is the progenitor of us all.

PRINCIPII PRIMII

"In disquisitions of every kind there are certain primary truths or first principles upon which all subsequent reasonings must depend. These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind.... Of this nature are the maxims in geometry, that 'the whole is greater than its parts; things equal to the same are equal to one another; two straight lines cannot enclose a space; and that all right angles are equal to each other.' Of the same nature are these other maxims in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object..."
Alexander Hamilton, Federalist No. 31

Abraham Lincoln once declared: "The doctrine of self- government [i.e., that human beings have a natural right to be governed only with their own consent] is right — absolutely and eternally right."

Our Declaration of Independence rests our Revolutionary claim upon the proposition: "We hold these truths to be self- evident, that all men are endowed by their Creator with certain inalienable rights, among them being..."

Today, in the Halls of Academe as well as in the Halls of Justice there is a certain discomfort with such "absolutist" thinking. Which allows us to observe, along with St. Thomas Aquinas, that self-evident truths are not necessarily self- evident to every self that's walking about out there in our society. These truths are the same for all, but they may not be observed by all, either indeliberately or (as in our day) deliberately. They ought to be deliberately observed. The sad truth is that they are thoroughly rejected by those who are busily about the effort to build a value-free culture in which nothing exists but a No Fault Morality, in which likewise nothing is absolute, everything is relative. In our day, the prevailing philosophy is that Truth and Morality are to be given "existence" only by the sovereign will of each and every self-justifying individual. Which, of course, is a philosophy to end all philosophies — a philosophy otherwise known as Nihilism.

Roe v. Wade brought us a number of things, among which is the seemingly infallible popular dictum that the "right to privacy is absolute" with an "absoluteness" that is superior to anything else claiming to be absolute, even truths which hitherto have been held to be self-evident. It seems to matter not in our newspapers and popular journals that the Court specifically declared that the right to privacy is NOT absolute.

In the contentious confirmation hearings that swirled around the nomination of Supreme Court Justice Clarence Thomas, Catholic-educated Senator Joseph Biden snootily dismissed the notion that any United States Supreme Court Justice should rely on Natural Law as ground upon which to build judicial reasoning. Oddly enough, the very same Senator Joseph Biden had, only four years previously, opposed the nomination of Judge Robert Bork to the Supreme Court because of Natural Law reasons! Judge Bork (curiously) rejects Natural Law theories. Catholic educated Senator Biden worried during Bork's confirmation hearings that a Supreme Court Justice would reject Natural Law grounding. "As a child of God, declared Senator Biden, "I believe my rights are not derived from the Constitution. My rights are not derived from any government. My rights are not derived from any majority. My rights are because I exist. They were given to me and each of my fellow citizens by our Creator and they represent the essence of human dignity."

Marvelous stuff. Too bad that political opportunism prevailed in Senator Biden's mind. Would that the good Senator had remained steadfast and built his jurisprudential house on that rock. Instead, because it was politically incorrect to support the nomination of Judge Clarence Thomas to the Supreme Court, Senator Biden waffled. And (obviously!) so have many others along with him.

Thus the claim of Abraham Lincoln, along with the claim posited in our Declaration of Independence that "all men are created equal", is a claim that today is not supported as being any longer self-evident. It is not supported these days as "self- evident" in majority opinion polls and majority decisions emanating from our Supreme Court. The Constitution, as well as the Truth, is what a majority of the Court's Justices decide it to be.

In another arena, our nation's schools are telling our children that truth, morality, and transcendents are what each one of us as self-contained and autocephalous monads declare it to be for ourselves, as it suits our own self-interest. First Principles? Hooey. They are "values" a medieval church seeks to impose upon a free people in order to dominate and control them. There are no Absolutes.

One cannot talk about Natural Law unless one finds rationality in the universe. Which is the problem with Natural Law these days. In a world gone mad, sanity appears as insanity. In a world that denies Truth, rationality will be crucified; truth then becomes what each self-contained individual declares it to be.

At this juncture, we need first to assent to the proposition that Transcendentals do, in fact, exist; further discussion then becomes possible. Assuming therefore, that you agree that there are such things as Truth, Justice, Goodness, Right, Beauty, and Love, we can now enter the mind of Cicero, Sophocles, Plato, Aristotle and St. Thomas Aquinas. Disquisitions between them and us (as well as between ourselves) are now possible.

These learned gentlemen, having reflected on the workings of nature and the universe, came to posit the existence of absolute truths, natural laws, and first principles. As such they grounded all further journeys of the mind in that external arena known as Reality, a thing not of our own mental construction, a thing which exists independently of that human arrogance that gives it existence or non-existence only as it chooses. In this Reality, two apples plus two apples equal four apples, whether or not I grant them existence or grant that this fundamental mathematical equation is absolute, eternal, and exists outside of my own declarations of what is real or unreal. It is a natural law.

It is demonstrable, then, that absolutes do exist, in spite of the current dogmas of Academe or prevailing educational theories. Everything is NOT relative; there ARE absolutes, and their reality is available to any rational human mind, not just those who have subjected themselves to the Magisterium of the Church or the teachings of the pope.

Note that we are not talking here, as Senator Joseph Biden once declared, of the laws of nature, or the laws of animal behavior, or "what comes naturally". Those are cartoons of Natural Law. We're talking about something far more than those impertinencies of the good Senator.

Natural Law is found in human reason; human reason discovers Natural Law. Natural laws are those first principles, those self- evident principles, that require no proof; that demand the assent of the human mind, unless it wishes to risk insanity; they are not simply the utterances of popes or bishops or other divines. And no religious group can claim proprietary ownership over them.

They have, however, been the ground upon which an entire series of papal encyclicals have been built, beginning with Pope Leo XIII's Rerum Novarum, followed by Pius XI's Quadragesimo Anno, John XIII's Pacem in Terris, along with many of Pope John Paul II's encyclicals and other papal teachings. The right to private property, is a Natural Law right. And so are a just wage, the right of workers to organize, religious freedom, freedom of speech, and those truths which our Founding Fathers thought to be self-evident in their listing in our Declaration of Independence. Benjamin Franklin, Alexander Hamilton, James Madison and Thomas Jefferson grounded the foundation of these United States upon Natural Laws, those first principles which are so fundamental and so self-evident as to trivialize all attempts to "prove" them to be true.

As I have said, the Catholic Church has no proprietary ownership of Natural Law. The problem of our day, however, is that she is the only major world institution that continues to rely on it and build upon it her teachings about our human social contract, social morality, and the social order. Thus it is that, ours being a pluralistic society, many folks belonging to other pluralities mistakenly claim we're "imposing our values" upon them by referencing our thought upon Natural Law.

Yet nothing could be further from the truth. Natural Law is available to all, can be claimed by all, and is "owned" by all. It could, to my way of thinking, provide a common language, a jointly shared lexicon, a bridge, enabling all in our culture engage in civil discourse using denominationally neutral language, terms, and concepts.

Too bad that Natural Law is held in such disregard by so many. Too bad that its character was used with such disfigured distortions as political weapons when Messrs. Robert Bork and Clarence Thomas were nominated to our Supreme Court. And, sad to say, too bad it hasn't grounded the jurisprudential thinking of our Supreme Court Justices in the critical decisions they have been called upon to render in this latter half of our Twentieth Century.

Perhaps Natural Law will fare better in the next millennium, a time in which I hope we begin to restore order out of the "value free" cultural chaos in which we are presently watching our social order implode at the end of this millennium.

POSITIVISM vs. NATURALISM

When one journeys back to the foundational sources of Law one is immediately confronted with a "Y" in the path; one branch leads to naturalism, the other to positivism.

Naturalists affirm that there are rules of human conduct, laws if you will, which were not invented or created by the human mind but which exist in the nature of things, and which the human intellect uncovers, which it discovers through its rational powers. These precede the enactment and implementation of particular laws governing conduct in a particular society or culture.

The Positivists, on the other hand, affirm that all laws are the product of the sovereign legislator who "posits", or places them in being, by human will. The totality of their authority is based not upon reason, but upon the will of the law maker/giver. The laws of the Positivists are not rationalized, nor, in many instances, can they be rationalized. They are simply imposed by authoritarian or majoritarian law maker/givers.

The Positivist position is based upon power, the Naturalist upon authority. We need to bear in mind that Authority authorizes, a notion that implies limits. Authority acts within limits; it is accountable to something greater. Power, on the other hand, is limitless, arbitrary and imposed; it is subject to no greater Authority or Reason. The infamous authoritarian and totalitarian political/military regimes of this century, to wit: Naziism and Communism, are based upon Positivist jurisprudence. Law is that the Lawgiver says it is.

The Natural Law theorist recognizes rules of human conduct to be based on Reason; Natural Law norms are quintessentially rational principles of human behavior. Furthermore they are not arbitrary — they are immediately (no mediating agency is needed) evident to the human intellect when it is acting rationally. They therefore are not invented by the human mind or posited, or placed into being, by human will. They need no other authority than the simple recognition of their truth.

Our own 1776 American Revolution was wholly based on the Natural Law: "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..." We appealed to God in order to free ourselves from English tyranny. Thirteen years later the French Revolution appealed to Man freed from God for its justification. The result was the Jacobin and the guillotine, to be followed later by nihilistic existentialism and impotency.

Natural laws are immediately known by all; they are known to be wrong not through divine revelation but through reason unaided by faith. That which all men and women know to be wrong are such things as slavery, apartheid, rape, sexual abuse, larceny, murder, arson, abortion, lying, cheating, stealing, fraud, burglary, robbery, child abuse, perjury and kidnapping, among other things.

Natural laws are normative in all societies and among all people, not merely to one people in any one given time or place. To be sure, exceptions may be found in a few cultures and in a few societies, but those exceptions serve only to highlight those natural laws that the human mind finds to be otherwise general and universal.

To get to the origins of Natural Law, one must journey back to ancient Greek philosophers. Their view of reality was built upon the notion that the universe is governed by a Rational Principle, a LOGOS. Furthermore, they recognized that every human being can participate in the LOGOS because all of us have a logos principle or power, namely reason, within us that enables us to know and conform ourselves to Reality, a reality which subsists in the LOGOS.

The reason why humans don't thusly conform themselves, and the reason why human beings act dysfunctionally, is because they have another concomitant power, the power of free choice. This enables them to act or not act in conformity with reason, to act "against nature", to violate the nature of things. Among our other powers we humans have to power to act irrationally.

Ever since the 17th Century, philosophers such as John Locke, Thomas Hobbs and Jeremy Bentham led us away from those classical groundings, thus paving the way for philosophies of Communism, Naziism and Individualism which have, in turn, brought us to the Nihilism of today.

There are strong reasons for a re-cognition, a rethinking of Natural Law in our day. We need its return in order to buttress up our collapsing social order. May that happy day dawn soon!

Natural Law admits of a God, who is (among other things) eternal Reason, who exists at the summit of the of the order of being, who is the Creator of all of nature, and who wills that the order of nature reach its fulfillment in achieving its purposes as these purposes inhere in the nature of things found in the order of being. Finally, it asserts that the order of being that confronts man's intellect is an order of "oughtness" for his will, for his choices and decisions.

Natural Law supposes a realist epistemology. What is real determines and gauges human knowledge. It is the measure of human knowledge. It calls to the human mind to reach out and grasp it. It presupposes a unitary and constant human nature that we share underneath all of our differences; it presupposes that human intelligence can reach out, grasp, and take unto itself external realities. And it supposes that human intelligence can achieve mutually shared understanding of what is real, what is truthful, and what is fair and just.

It is something that is rational, but not rationalist; it is the rule of reason as determined by reality, but not autonomous reason that determines for itself what reality "really is". It is the height of arrogance for the human mind to assert that it defines that which produced it, that the human mind decides for itself whether that which produced it exists or doesn't exist.

If our own history in recent decades tells us anything it tells us that there is an idea of Justice, that this idea is transcendent to the actually expressed will of the legislator, that is rooted in the nature of things, and that man can really know this ideal, this transcendent Justice. More importantly we have, during these past few decades, come to realize that Justice is not made by human judgment, that it measures all human judgments, or that it should if it doesn't, and that in our conscience we know that human law and action should conform to it because to violate it is an offense against human nature as well as against God who is in His essence Justice itself. In other words, what is just is not necessary legal and what is legal is not necessarily just, the sort of thinking that grounded the civil rights movement and the anti-war movement of the 60's and 70's.

Those who reason this way seek allies in their protests against human laws, policies and actions which inflict violence on both human nature and transcendent Justice. This is a metaphysical affirmation, an affirmation of the metaphysical, an activity based on a Natural Law conviction, whether or not done consciously, whether or not done anonymously. In other words, the protests of the 60's and 70's were themselves grounded on Natural Law principles, that is to say, affirmations that there is in truth a Natural Law that judges the actions of human governments, that judges the decisions of the human will, that judges the declarations of the human mind.

Reason does not create Natural Law, any more that man creates himself. Reason discovers it. Natural Law affirmations are man's participation in the rule of reason, the eternal law, the divine imperatives found within the nature of things as they exist in the purposed order of being. That is why human reason is god-like; that is one of the attributes of being made in the image and likeness of God.

Natural Law is not, as some would characterize it, a rationalistically deduced code of either immediately evident or logically derived rules that are imposed universally and inflexibly on every human situation. It is something that is constantly found in the realities of human experiences and the data of human experience that presents itself to the human mind for comprehension. As human experience adds more and more pieces to the jig-saw puzzle, and as the human mind places them in their proper inter-connectedness, the evolution of our consciousness brings changes in our human applications of that perennial Natural Law found within the inner reality of things as they make their claim for our assent to their integrity and truth.

While Natural Law tends to conserve, it also urges us to develop and progress toward those inner imperatives in both human nature and in the nature of things that struggle for expression and integration with the way that we treat them.

We are, you and I, attempting to relate more deeply with the things of the spirit, with the things of the mind and the heart, the intellect and the will. While all these ideas here presented to you may appear to be abstract and irrelevant to our daily decisions, actions, choices, perceptions, and duties, I submit to you, nevertheless, that they are not. As a matter of fact I would argue that they are of very practical value and effect; their neglect, I would say, has led our policy makers and judicial officers, and our social order with them, into a considerable quagmire. The route out depends, I think, upon the acquisition of vision, a realist vision, a return to the rule of reason, to the iustum naturale as distinguished from the iustum legale.

Senator Joseph Biden of Delaware, during the Senate Judiciary hearings pertaining to the nomination of Judge (now Justice) Clarence Thomas for a seat on the U.S. Supreme Court, presented a number of indictments against Natural Law, presenting it as something outlandish, outdated, and inappropriate as a mode of legal thinking upon which a Justice of our Supreme Court should ground his or her judicial opinions. Senator Biden made it his concern to bring in legal scholars to join him in building his Complainant's brief. The indictments fell into the following general categories:

• Abstractionism: Natural Law propositions are rabbits pulled out of a metaphysical magician's hat of abstract human "essences".
• Intuitionism: All Natural Law propositions are "self- evident", requiring no verification in the objective order.
• Legalism: Natural Law is merely a list of legal "do's" and don'ts" drawn up solely from deductive logic and universally normative in every human situation to be automatically applied uniformly and forever.
• Immobilism: Natural Law understanding of human nature is immutable in an unchanging structure of human ends outside of the historicity of human experience.
• Biologism: Natural Law is seen in the biological context of "the primordial", hence "natural". [This was the position of a Harvard Law School professor in a nationally televised interview in which he ridiculed Judge Clarence Thomas' reliance on Natural Law. The good professor painted Natural Law in this cartooned biologist caricature knowing all along that is precisely what Natural Law is not.
• Objectivist/Rationalist: Natural Law neglects the value of the human person in that it denies the inter-subjectivity of human experience.
• Un-Christian: It de-values Revelation in Scripture and does not require humble submission to the revealed will of God alone. ["Sola Fide" and "Sola Scriptura" were the battle cries of the Reformers who sought to do away with human agencies between the human soul and God].

For the Defense I would like to argue on the basis of what Natural Law IS, rather than what it is NOT. A good many of the indictments just mentioned above are based on a presumption that Natural Law fails to be objective, grounded in reality, and is irrational.

A closer examination of Natural Law reveals that it is based on an examination of the nature of things as they exist in reality. Natural Law propositions are thoroughly grounded in the objective order rather than being rationalistic abstractions far removed from the reality of human relationships.

Furthermore, nothing is clearer in Natural Law theory than its identification of the "natural" with the "rational". Natural Law is the expression of the "Rule of Reason". It's purpose is to incorporate our understanding of human nature and human relations into the order of reason, thus removing us from the primordial, the prison of the now, the tyranny of rationalism, fatalism, determinism, and the claims of either monarchy or democracy (or opinion polls) to ownership of human nature.

It insists that we are not atomistic and autonomous monads existing in the isolationism of our own willed determinations. We are by nature social beings existing in mutual interdependency and purposed by God toward a rational end, thus being by nature in God's image and likeness. It asserts that human nature has no separate existence apart from the human person, that each person is a unique and sacred expression of that God-like nature situated in interrelationships with other such beings, and participating individually in that one commonly held nature as a human community.

Natural Law is essential humanism. The secular humanist is its sworn enemy. Natural Law doesn't lead to sainthood, it leads only to manhood, prescribing the minimal order not for the City of God but simply for the City of Man. It is foundational for a society that is only civil, and pretends nothing ecclesial. The ideal of Natural Law is reasonable manhood, men and women who do their duty to God, to others and to themselves. It's goal is a tranquilitas ordinis built on a right understanding and employment of the nature of things, and understanding that is mutually shared and therefore not imposed either by majorities or minorities upon others.

Natural Law seeks to correct the grand illusion of our time, namely that we are to leave law behind us and enter the half- world of individual "freedom" (getting government and regulators off our backs), or a world of "freedom" that knows no other norm than sentimental love and subjectivist intentions that can be evaluated only in situationalist terms of particularized moral judgments made by monads in absolute freedom of choice.

Natural Law asserts that men and women are intelligent, that human nature is intelligible, that all of nature is intelligible, and that human reason uncovers that which is "out there" in order to assimilate it and thereby become part of reality, a reality not defined by human will and reason alone. It is, what jurists refer to, the Rule of Reason.

Which is to say that it is not Rationalistic, or a product of the Enlightenment. It's origins are more ancient and perennial. The Enlightenment insured the triumph of the idea that "law is will" over the more ancient idea that "law is reason", with the consequent unleashing of forms of totalitarianism that have savaged us over the period of the last two and a half centuries, Napoleon being the first bastard child of the parent notion that "law is will". Positivism is the Enlightenment's living rationalistic descendant in today's world. Man, with his reason and will, is God.

The gift we can offer in this Catholic Moment, is one that can save humanity from the ravages of Positivism's undermining of legal jurisprudence, namely it's dogma telling us that, "Law is simply the expression of the will of the legislature." Our gift to humanity is to point to the transcendent truth that we are all endowed by a nature that is not determined by man alone, that is not man-made, man-granted, or at man's disposal. Human rights are not granted by the U.S. Congress, our Constitution's Bill of Rights, the United Nations Charter, or any other human agency no matter how supreme or world-encompassing, even the Church itself. Nor can those rights be taken away by any of those institutions. Nor can we even of our own accord alienate them from our intrinsic human nature.

The statesman as such need not be a believer; in our system of government the statesman ought not be the sort of believer who feels on a mission to convert all in the nation to the true faith. as he believes it to be. The statesman's decisions are the result of imperatives that are no higher than those of the people from whom he receives his warrant and office. At the same time we are a people under God who recognize the sovereignty of God over men and over nations. This is what make our Revolution radically superior to the French one.

The Jacobins proclaimed Man's reason to be free of all transcendent measures, values and goals and that this was the sole and first purpose of all political organization. Religion? "Well," moderns tell us, "that is purely and solely a private matter, opinion or feeling." Our nation's Founders, however, proclaimed their political organization's first principle to be under God's sovereign purposefulness. President John Adams early on acknowledged this by declaring that we derive our enjoyments as a society from Him who has endowed us with those capacities.

Later on President Lincoln would say:

"Whereas the Senate of the United States, devoutly recognizing the supreme authority and just government of Almighty God in all the affairs of men and nations, has by a resolution requested the President to designate and set apart a day for national prayer and humiliation; And whereas it is the duty of nations as well of men to own their dependence upon the overruling power of God, to confess their sins and trespasses in humble sorrow, yet with the assured hope that genuine repentance will lead to mercy and pardon....
[Proclamation of Lincoln, 30 May 1863]

This and many other public statements, including Supreme Court decisions, proclaim to all the world that the American Revolution, far from being merely a secularist rebellion against an ancient regime is planted in the ground of classical Western liberalism and humanism, something that is a part of the patrimony of Christianity.

The Magna Charta asserted quite plainly that the king was under God and therefore under the law, because he as sovereign is granted his office by the consent of a people who are God's people. All Western constitutionalism springs from this soil. The consent of the governed gives purpose along with imposing limits on the government. All powers not specifically vested in their government are reserved by Natural Law in the people who alone grant those powers to their governors and rulers.

Medieval jurisprudence, along with its philosophy of government, recognized that the king owes obligations to his people, among them being bound to seek their consent to his legislation. It was the parallel to the notion of consensus fidelium found within the polity of the Catholic Church. All of which is grounded in the very ancient notion of popular participation in the function of ruling. It was in that treasury that Lincoln found his phrase "government of the people, by the people and for the people". No Jacobin would have been able to even think that way. For within it is contained the Natural Law corollary that justice itself resides within the people who, in virtue of their nature as persons bound in community judge, direct and correct the processes of government and their governors themselves.

OUR VOCATION

We need to recover something that was peculiarly American that seems to have either been neglected or forgotten, namely the notion of vocation. As a nation under God we have a purpose, a mission, a destiny... and it comes from a loving Creator who has endowed us with those rights that enable us to achieve that purpose. We need to recover the truth that we not only can be but are a virtuous people, a people with an internal system of governance that directs us with a sense of "oughtness", and the power to do what is right.

Has, in our day, the notion of freedom been replaced by mere libertarianism? Have we supplanted the power and the freedom to do as we ought been replaced by the power and freedom to do as we like? Are we governed by urges and feelings, or are we governed by purpose and responses to that which life places in front of us? Are we free to do what is good, or are we free to do merely as we feel? And if the latter, is that really a good? One that serves the common good?

All powers not specifically delegated to our civil magistrates reside within us, within the nature of who we are as people endowed by our Creator. Perhaps it is true, after all, that democracy is not merely a political experiment but rather a spiritual enterprise. If so, then we have responsibilities and rights that pre-exist our Constitution and Bill of Rights. We have responsibilities and rights that no Congress or Legislature can grant us or take from us. And if that be true, then our Constitution and Bill of Rights are not products of the Enlightenment, they are descendants of our Christian patrimony.

Those that hate our Church ask whether or not Catholicism is compatible with American democracy. The real question, as Fr. John Courtney Murray put it, is the inverse: Is American democracy in its present state compatible with Catholicism? How comfortable can I be as a Catholic who finds himself living as an American? And if I am discomfited, what do I have to offer to America precisely because I am a Catholic? As a Catholic I have a tradition that is wider and deeper than the tradition I have as an American. My religious faith has claims on me that are far more profound than my patriotism. The richness of thought and the challenges to my intellect that come to me as a Catholic are more time-tested and more human in nature than those philosophies presently among us that have been reduced to the lowest common denominator by the pressing demands of a spurious understanding of pluralism now current. The humanity found in the two thousand years of Catholic Tradition has a depth and richness beyond that found in the two hundred years of Americanism.

Perhaps in the confluence of those time lines the Catholic Moment has, indeed, arrived... and you and I can offer pearls of great value as contributions to the American experience that others might come to likewise treasure. We have, I submit, a theology of politics that is of great value. We don't have a political theology, or a theology that is political. Ours is a vision that allows us to see human nature and the nature of things not as libertarians, or secular humanists, or as those who are, along with them, radically mistrustful of human nature and therefore seek to exert power over it in order to control it according to our terms. Ours is a philosophy and belief, and radically so, in human freedom, freedom based on Truth and not on fickle and traitorous human vote or opinion. Ours is the freedom to be and do what a Creator has endowed us to be and do in order to live in the glory hidden within us that waits to be revealed.

---

© Fr. Charles Irvin of St. Mary Catholic Church (Manchester, MI). For more articles see Fr. Charlie's Thoughts...

This item 3531 digitally provided courtesy of CatholicCulture.org