Government, Natural Law, and the Modern State

By Dr. Jeff Mirus ( bio - articles - email ) | Aug 08, 2011

The governmental horse still has life enough, I think, for one more beating. Several of our readers have commented on the importance of governmental adherence to a law higher than itself. One of the grave problems in America and many other modern states is that the reigning philosophies of jurisprudence are rooted in positivism, or the idea that right and wrong, particularly in the realm of law, are simply what we say they are. Thus human law does not appear to be accountable to anything beyond itself.

This is a grave error in theory, though it is rarely carried to its logical extreme in every area of life. The natural law is inescapable (we can’t not know it at least in its broad outlines), and so every effort to develop appropriate laws reflects to some degree the lawmaker’s grasp of the natural law, which conditions in at least some respects his own notions of right and wrong. Thus, for example, it would be a rare government which did not provide some protection against murder and theft, even if it did not implement a complete understanding of either.

This is so true that it is precisely the failure to observe what the community of citizens understands to be the broad outlines of the natural law that will invariably invalidate a government and, when an opportunity presents itself, cause it to be replaced. A government which fails to protect the lives and property of its citizens will never have a claim on their affections, and they will feel every right to replace it with one that does. They may not have the opportunity to replace it; or the situation may be such that no government can provide such protection at the moment; but the citizens will have no sense of allegiance to such a government—no sense that their government is legitimate.

The Pervasiveness of Natural Law

In reality, of course, it is the natural law that provides the legal framework within which all legitimate government must operate. The Divine Law as known precisely through Revelation strengthens and sharpens our appreciation of the Divine Law as known generally through nature, but it is the natural and not at all the supernatural portion of this law which governments must obey. To take but one example, even the best of Catholic rulers need not (and in fact must not) force his subjects to attend Mass, but he must do his best to force them to refrain from murder. Thus there used to be a traditional axiom in law, before the advent of positivism, to the effect that any civil or criminal law which is contrary to the law of God (as enshrined in nature) is by that very fact null and void.

I asserted above that every society still reflects this axiom in some ways, even where the theory of legal positivism reigns, because every legislator derives his notions of good and evil largely from the natural law, even when he or she is wrong about some aspects of the natural law. Every culture perceives large portions of the natural law correctly, but every culture also has its own particular blind spots and prejudices which make it difficult or impossible for those living in that culture to see certain aspects of the natural law correctly at all.

For example, in the modern West we tend to see very clearly that various forms of physical violence are contrary to the natural law, a problem which even the more Christian cultures of the Middle Ages did not always instinctively perceive. Similarly, as late as the early twentieth century, the largely Christian cultures of the West perceived almost spontaneously that contraception was unnatural, with many people feeling a genuine revulsion at the very thought of it (just as most people even now feel in thinking of homosexuality, though they may be carefully trained to conceal the fact). Yet our contemporaries now do not, and perhaps cannot, any longer feel any revulsion against contraception. In fact, our culture is almost incapable of figuring out what the natural law says about sex at all. We simply cannot see it.

Positivism and Cultural Death

The crutch of legal positivism comes into play most often when an incorrect perception of what is right or wrong clouds the judgment of a governor, and so he finds himself supporting a position which was formerly regarded as contrary to the Divine Law (either as known through nature or through religion). At this point positivist theory is introduced so that the lawgiver can enjoy a sort of exemption from being brought to judgment in the very making of the laws. Thus even a government with good intentions demands a free pass. Obvious tyrants do the same, but without any need for a theory.

This attitude is a sign of a very debased culture, a culture on the point of death. The attitude may be acquired honestly, for it is a natural conclusion for anyone who believes life is without meaning. In an existentialist system, with no meaning built into reality by a Creator, everything is whatever we want it to be. That’s not really true, of course, but that’s what it seems like to those for whom the world makes no sense. But even if the positivist attitude is a logical result of such immense confusion (and so perhaps free of personal guilt), it represents a bankrupt culture which, professing to know nothing of reality, cannot long survive.

My own experience teaches me that few people are totally bereft of meaning in their lives. Many simply want things to be a certain way because of their own passions, and so they adopt positivist theories of law and governance as one more way to escape the meaning of nature and the reality of God. But if this is frequently the case, whether conscious or unconscious, then we have a culture in open rebellion against reality itself. Such a culture, and any government which seeks to establish and preserve it, is likewise doomed. Here we have more than mistakes about the natural law, mistakes which every culture shares in one way or another. Here we have a deliberate refusal to accept the very existence of the natural law.

The Problem of the Modern State

As I’ve already indicated, this does not mean that our laws will not reflect natural law principles in many respects. It would be impossible to create a culture which did not reflect such principles to some significant degree. But it is possible for a government deliberately to foster a culture which denies the force of the natural law so that it can more easily justify its choices against it. I am quite sure that anyone reading these words has direct experience of that sort of culture, and that sort of government. It is the culture of the modern State.

This, of course, is immensely convenient to those who wish to reshape society in their own image. As with Humpty Dumpty’s use of words, the law “means just what I choose it to mean—neither more nor less,” and certainly not less. It is bad enough when human law fails to reflect the law of nature; but it is far worse—a fearsome thing indeed—when human law fails to reflect the law of nature deliberately. The modern State has gradually evolved into a direct opponent of the natural law, conceiving itself as an all-encompassing sovereign entity, its own ultimate justification for everything it does.

This problem is so endemic to the modern State that, were modern culture to be converted, I am convinced that something very different from the modern State would have to evolve in its place. That is why I see the financial troubles of modern states as opportunities; that’s the idea with which I began a week ago. The State now tends to represent modern opposition to reality, with huge resources to expend on both indoctrination and direct social engineering. Thus, the weakening of the hold of the modern State, for any reason, would make it significantly easier to recover meaning in the post-modern world.

And guess what? Before you ask what your bishops have often rightly told you to ask, consider this: Even the poorest of the poor, so often used as an excuse for Statism in our time, cannot be helped significantly until we recover the real meaning of life. It is a complex issue, but the modern State now stands almost uniformly as a major obstacle to this critical task.

---

 

[Note: In addition to flowing out of the several recent articles on government to which this essay is linked below, it is a logical extension of my eight-part series on human dignity, beginning with: Human Dignity?]

 

Previous in series: What Is the Purpose of Government?