Natural Law “Philosophy of the Founding Fathers” (2)

22 Friday Apr 2022

Posted by memoirandremains in natural law

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Blackstone, natural law, Pursuit of Happiness, The Natural Philosophy of the Founding Fathers

Still from “Philosophy of Founding Fathers” Proceedings of the Natural Law Institute, vol. 1, 1949 The previous post may be found here.

The concept of Natural Law being instilled by the Creator is found both in Coke and Blackstone. In his comment on “Calvin’s Case”, Coke writes, in part, “God and nature is one to all and therefore the law of God and the nature is one to all…. This law of nature which indeed is the eternal law of the creator, infused into the heart of the creature at the time of his creation, was two thousand years before any laws written and before any judicial or manicipal laws.” (8)

From Blackstone, “Consequently, since man depends absolutely upon his maker for everything, it is necessary that he should in all points conform to his maker’s will. This will of his maker is called the law of nature.” (10)

As an interjection, the logic of this argument is something I have seen made by those who would deny any personal creator. For those who contend for general limitations on human depravation of our fellows, there is the Darwinian argument that such is good for all of us: we as a species need such limitations to survive. The fact we think in this way is a product of our evolution. Likewise, those who argue for what Albert Mohler calls “erotic liberty”, indeed to the point of disregarding the reality of one’s own body, the argument is we are without any creator beyond our own imagination. And thus the absence of any conscious maker makes us our own maker.

It is curious that the argument for what is permissible and what should restrained often have this same structure of argument. (I am not saying every argument has this structure, just that this structure appears in situations where the “maker” is purposefully denied.)

To return to Blackstone:

In consequence of which mutual connection of justice and human felicity (God) has not perplexed the law of nature with a multitude of abstract rules and precepts … but has graciously reduced the rule of obedience to this one paternal precept that man shall pursue his own true and substantial happiness. this is the foundation of what we call ethics or natural law: for the several articles into which it is branched in our systems amount to no more than demonstrating that this or that action tends to man’s happiness and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man’s real happiness and therefore that the law of nature forbids it. (11)

Again, we can see how the structure of this natural law argument is routinely used as the basis of making arguments which would be unthinkable by Blackstone. For example, the arguments in favor “erotic liberty” such as “love is love” are in effect arguments from “happiness” (love being a means for happiness).

Since the purpose of the law is to protect this happiness, and since the happiness is something which can only be experienced by a subjective person gives rise to the need to protect the freedom of the individual (Blackstone again):

The absolute rights of man considered as a free agent endowed with discernment to know good from evil and with power of choosing those measure which appear to him to be most desirable, are usually summed up in the general explanation and denominated the nature liberties of mankind. This natural liberty consists properly in a power of acting as one thinks fit without any restraint or control unless by the law of nature, being a right inherent in us by birth and one of the gifts of God to man at his creation when he endowed him with the faculty of free will. (12-13)

Natural Law, “Human Nature” (1)

15 Friday Apr 2022

Posted by memoirandremains in natural law

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Human Nature, Metaphysics, natural law, Natural Law Institute, The Natural Philosophy of the Founding Fathers

I happen to have copies of the Natural Law Institute’s proceedings held at the University of Notre Dame. There are five volumes covering the years 1947-1951. This series will be unsystematic notes and quotations from the published proceedings.

From “The Natural Philosophy of the Founding Fathers”

The Constitutional structure of US law provides a remarkable power to the individual which stands in direct opposition to democratic, majority rule. This essay begins with the lawsuit of five brothers who successfully obtain a decision overturning the “National Industrial Recovery Act”, a fundamental restructuring of the economy. This is remarkable in legal regimes. This decision is an example of

The practical importance of natural law to the citizen of the United States. Nowhere else in the world of 1935 could individual citizens of any states challenge and set aside an official act of their Government on the theory that such act violated the citizens’ reserved personal rights. (4-5)

It seems that the difficulty of this unique aspect of American law is a live-issue at present. Freedom of speech sets the individual against the majority; with the majority (or at least the most politically demanding minority) acting to limit the speech of others. The question, “How can these few others challenge the right of the majority to do as it pleases?” is a common political argument.

The right of the individual to limit the power of the majority exists within our constitutional system. The question thus raised, how can such anti-majoritarian right be justified:

If our system of constitutional limitations is an end in itself, it is defensible only as a tradition and the sands of purely traditional values are rapidly running out today. On the contrary, if the letter of these limitations is merely insulation from a well defined concept of man’s inherent and imperishable nature, then a knowledge and evaluation of this concept is and must be required of every American judge and all American lawyers whose terrible and continuing responsibility it is to uphold and defend our presently besieged system of American Law. (6)

Before I consider this essay further, some questions come to mind: The majoritarian argument (at least for a distinct advocacy group) is making an argument which is based upon a very different metaphysics of “human nature” than is used in this quotation.

As a preliminary thought, I think an argument can be made that those who oppose the concept of an “inherent and imperishable nature” are still arguing metaphysics and also a kind of natural law. Arguments which are based in “sexual liberty” or “choice” or “fairness” or “love” are making natural law arguments based upon a distinct metaphysics and moral theory. They are certainly not bare positive law arguments (although they may later be defended upon positive law grounds).