Natural Law as a basis for polity

By Dr. Jeff Mirus ( bio - articles - email ) | Jul 16, 2021

It seems I have begun to write again on the natural law, which I mentioned last week in my argument about why America’s “Founding Fathers” were generally more reliable guides to politics and government than their contemporary equivalents, the cultural elites of our own day (see American sources of truth?). I had already written something on this topic ten years ago in a multi-part analysis of the problematic concept of human dignity (the eight-part series begins here: Human dignity?).

But this subject arises again with a vengeance whenever we consider politics in a secular world, because governments (and peoples on the whole) which have abandoned Christianity need to rely for moral judgment on standards that are less clear, but no less authoritative, than Divine Revelation. These standards cannot come from the positive law, which simply reflects the human arrangements, arising from the relative intelligence and imperfect will, of human agents like you and me. They have a merely human authority, and they can be exceedingly evil arrangements. But the natural law, communicated to us through the things God has made, has a Divine authority, which explains the legal axiom of more enlightened ages that any positive law which contradicts the natural law is null and void.*

This used to be a standard of jurisprudence throughout the West, though obviously imperfectly observed. It was not thoroughly abandoned until the twentieth-century, in favor of what we now call “legal positivism”, or the idea that law possesses its authority solely from the will of the lawmakers. That, of course, is a recipe for disaster, including the disasters of both ever-shifting human ideologies and totalitarianisms. Fortunately, all of mankind has access to the natural law simply by accepting the fundamental “givenness” of nature itself. That is why all are required to obey the natural law, and why it is a legitimate (if imperfectly perceived) basis for law in all human communities.

As I mentioned previously, the morality taught by the Catholic Church, beginning with the Ten Commandments revealed directly by God, is the morality of the natural law made explicit magisterially. Not all encounter Divine Revelation or have any chance to understand it. But each and every person encounters the natural law in the things God has made. And so the natural law is what we might call the missing link between Christians and those who have drifted away from Christianity, and it enables the legitimate political pursuit of right order and justice in all societies, regardless of the religious beliefs of the citizens.

What things are for

Our grasp of the natural law faces severe obstacles, however, whenever we pretend that the obvious ordered nature of the universe does not exist because it is the product of random material chance, and has no intelligent source. The cultural hegemony of this sort of materialism in our own time makes things difficult, but it does not change the reality that it is just to establish governmental goals, laws and punishments based on the natural law (or the nature of things), whereas it is the essence of injustice to establish governmental goals, laws and punishments based on mere human whim. The fact that we have a great deal of repair work to do in brining our fellow citizens to the point where they can actually be governed intelligibly is no excuse for failing to insist that government act in accordance with reality as we all can know it through nature.

Catholic social teaching too is rooted in the natural law, which is why it can have a broad appeal to many different cultures and peoples (assuming Catholic leaders do not continue to elevate the prudential over the absolute, as they so often do when Faith is weak and worldly influences are strong). What is important to realize is that a fundamental understanding of the natural law is rooted in our legitimate human perceptions of what things are for. We humans figure this out all the time. We look at something, we consider how it is designed, and simply from being human we recognize how purposes derive from the nature of the things that we are attempting to understand. Then we seek to use things in accordance with “what they are for”, and try to avoid letting any selfish passions divert us into using them to satisfy any inordinate desires which may arise. All of us also have a built-in awareness that our passions do, in fact, disturb our judgment. This is another thing everybody knows: That their own passions are disordered, and must be restrained within a more objective understanding of “what things are for.”

To strike at the heart of one of the characteristic denials of the modern world, let us take a telling example. Every unimpaired human person is aware of sexual differences between male and female, and everyone knows what those differences are for. Everyone understands that the distinctive biological design of the female is ordered toward conceiving, bearing and nurturing children; and that the distinctive biological design of the male is ordered toward mating with a woman, impregnating her, and protecting and providing for her and the family they will have together. I say again: Everybody knows this, through an almost instinctive reflection on design elements which communicate to us “what things are for.” Things can be harder or easier to figure out, and more or less instinctive depending on what these things are and how we experience them. But in this, we are touching on what are clearly the most deliberate and perverted refusals to grasp reality in our times.

In denial

In government as in all of life, we also know that the principles by which we operate are to be in accordance with the good, and ordinarily we both understand and act as if the goods we identify are both obvious and compelling for all. All we need to do to realize this is to consider how quickly each fashionable new idea in the current “cancel culture” becomes the basis for rules of behavior which are to be imposed on absolutely everyone. This too is a basic human instinct, and a powerful argument for an ordered universe—an argument bizarrely out of place among “materialists”. Not even our most cherished “causes of the moment” make sense to any of us outside this quintessentially human moral context.

The problem arises when what we are identifying as good is not in fact based on an understanding of the nature of things but on particular wayward desires which, to satisfy ourselves, we are now attempting to make normative. As a closing illustration, I will mention the universal sense of fairness which develops extremely rapidly even in the youngest children. Here is something we know instinctively, but we can also reason to fairness by considering what the “things of this world” are for—and what they are obviously not for is the monopolization of just a few. This fundamental apprehension is the basis for the doctrine of Catholic social teaching called “the universal destination of goods.”

But our very sense of “fairness” indicates that our grasp of reality arises partly from our own given nature as human persons, which is also why it is so easily perverted by emotion and passion. We humans (as all of us really do know) must constantly guard against confusing temptations with a legitimate human perception of “what things are for”. The natural law can be a common denominator for those of different religions, and even for those of no religion, simply because it is revealed to us through creation (reality) itself. Thus my legal or political point here is relatively modest: It is always right and just (if not always prudent) for government to carry out its own pursuit of the common good in accordance with the natural law, and it is always wrong and unjust to do the opposite.

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* In connection with this commentary, see also my review of natural law theorist J. Budziszewski’s 2011 book What We Can’t Not Know: The Natural Law, which is part of the 2011 series mentioned in the opening paragraph.