Dec 5, 2011 by Rousas John Rushdoony
It has been so customary for men in Western civilization to think in recent centuries of natural law that it comes as a shock to some to hear doubts concerning it. But not every aspect of Western thought has always agreed that there is such a thing as natural law, nor have other cultures assented to it either. Thus a Chinese poet in the fifth century A.D. (Pao Chao, The Ruined City, 414-466) surveyed the past and present with a melancholy regret at the perversity of nature and history, concluding,
The greatest displeasure of the largest number Is the law of nature.
Oriental philosophy has on the whole been skeptical and pessimistic about both nature and the supernatural. Its perspective has been one of either a basic agnosticism or atheism, and it has usually believed that nothingness is the ultimate truth about all things.
By contrast, originating in ancient Greek thought, Western thinkers have often believed in natural law. They have insisted that there is a higher law in nature as against the positive law of the state. In the late medieval period, especially from the Renaissance on, natural law philosophy came to dominate Western thinking until recently.
All this sounds academic and rather remote, but it is urgently relevant to our present problems. We cannot understand what has happened to our courts, especially the Supreme Court, without a knowledge of this problem, nor can we understand anything about our modern world situation without a grasp of it.
The problem in part is this. The advocates of natural law say that there is a higher law in nature which man’s enlightened reason can discover. This higher law, which is inherent in nature (that is, it is in and of nature) is the true law by which men and nations must be governed.
Against this belief, two groups of thinkers are arrayed. First, there are the relativists, positivists, pragmatists, Marxists, existentialists, and others who deny natural law. For most of these thinkers, the only real law is positive law, the law of the state. There is no higher law or higher justice to pass judgment over man and the state. The only truth in being is human truth as it appears in history in the form of the state. As a result, men, instead of gearing their hopes to some non-existent higher law, must gear their hopes to reality, and this means civil government, the state as man’s hope.
Some years ago, this opinion, legal positivism, began to take over the United States Supreme Court. As we shall see, there were good grounds for this change. Central to this change in the court was Oliver Wendell Holmes, Jr., chief justice of the court and one of the most influential thinkers in its history. Everything that has since happened to the court is simply a product, a logical working-out, of Holmes’s legal revolution.
Before criticizing Holmes, it is important to note that Holmes was very extensively on solid ground in criticizing natural law. The doctrine, he held, was simply legal nonsense, if not tyranny. Various rationalistic thinkers, governed by their concepts of logic, concluded that nature had inherent within it certain laws which were higher laws over man and the state. But the rationalism of these men varied, and as a result, their natural laws varied. Chinese, Hindu, Moslem, and Western legal thinkers and philosophers were by no means agreed as to what constitutes natural law. Those who held to natural law were, moreover, not agreed amongst themselves; their concepts of natural law varied in terms of their backgrounds, beliefs, and general cultural experience. Thus, experience, not a higher law or logic, was basic to law. As Holmes said, at the beginning of his study, The Common Law (1881), “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do with the syllogism in determining the rules by which men should be governed … The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.” Holmes’s statement is a very fair one: law has embodied experience, belief, and prejudice, and natural law is a law which is as variable as the persons expounding it. The question, of course, still remains as to whether a higher law lies in back of that experience. For Holmes, however, the rationalism of the natural law philosophers is a poorer guide than the experience of the people as embodied in the state. Holmes had no illusions about either, but he did prefer the broader basis of the experience of the people as embodied in the state.
More can be added in defense of Holmes’s position. Darwinism dealt natural law a body blow. If evolution be true, then nature, instead of representing a perfect and final law order, is instead simply a blind, lawless force working its way upward and establishing its own rules, if they can be called that, by blind, unconscious experience. An intelligent experience, and an intelligent reflected experience, is known only by man. This intelligent reflected experience man uses to formulate law.
Law is therefore positive law, not a higher law. It is the experience of society embodied as the law of the state. It is therefore a changing, developing experience and law. Instead of being bound by a higher law or a past constitution, it must reflect present experience and reality. A constitution reflects dead experience, whereas man’s present life is governed by living experience. The courts therefore must reflect the growing experiences of society intelligently and conscientiously, in order to ascertain the direction and form of these experiences.
Without agreeing with this position, it must be noted that there is much in its favor. If evolution be true, natural law is hopelessly dead, and legal positivism is a necessary conclusion for any modern thinker. The natural law thinkers begin on an Aristotelian or Enlightenment basis. They do not face realistically the implications of a post-Darwinian world. As a result, the courts, in choosing between these two positions, have simply kept up with the times. Intellectually, the Supreme Court justices have been especially alert to the philosophical currents of our day, and they have reflected with consistency what most people believe without consistency.
However, we stated that these legal positivists were one of two groups lined up against the old natural law concepts. The second group represents supernaturalism, Christian orthodoxy. According to these thinkers, whose presuppositions are governed by the Bible, laws govern nature, but these laws which govern nature are not therefore laws of nature but laws over nature. In other words, nature has no power, mind, consciousness, or will in and of itself. Nature is simply a collective noun, a name for the sum total of this universe. It is a collective noun, a name for the sum total of this universe. It is absurd to personify nature and to ascribe to it a law or purpose.
But this is not all. For the Christian thinker, nature cannot be normative, that is, it cannot be a standard. We cannot say, as moral anarchists do say, that a thing is good because it is natural, that is, because it occurs in nature. All kinds of things occur in nature—crimes, murders, thefts, perversions, and all manner of evils. According to Lenny Bruce, “Truth is ‘what Law is.’” In other words, every kind of criminal activity is equally the truth with all things else, because it occurs in nature. The lie is that which tries to impose a standard of right and wrong in and over nature. There is for anarchism a total moral equality between all acts.
For the Christian, however, nature is not the standard, because the world of nature is a fallen world, a world in rebellion against God and infected by sin and death. For a standard, we must look beyond nature to God.
Now God has established various law spheres over nature, laws governing physical reality, laws governing society, morality, religion, the church, and all things else. In every area of our lives, we are governed by laws; whether we eat or sleep, work, worship, or play, we move in law spheres. Our eating obeys laws of nutrition and digestion; our sleep is governed by physiological laws; our every activity involves one law sphere after another. These law spheres are a part of God’s creation; nature did not evolve them; they appeared together with nature when God created all things.
Our present legal crisis has its roots in Darwinism’s demolition of natural law. The legal positivists believe that it is impossible to go back to the old eighteenth century belief in Nature as a kind of substitute for God, a Nature with hard and fast laws of its own making. Both reason and experience lead modern thinkers to agree substantially with the present Supreme Court. Law is the developing, intelligent, and reflected experience of the people of the state as expressed through the court.
But this makes the judges of the court into new gods of being—Plato’s philosopher-kings who are the totalitarian rulers over mankind. Clearly, this is our present direction. The democratic consensus is best known, we are told, by the experts, who can best tell us what we should favor and believe. In short, when we deny God as our God, then we make men gods over us. The answer to natural law and to legal positivism is revelation. “Except the LORD build the house, they labour in vain that build it” (Ps. 127:1).