The Dangers in Natural Law

by    John W. Whitehead                                                                                                                               Vol. VI, No. 6, August 1993

[John W. Whitehead is president of the Rutherford Institute, a nonprofit legal and educational organization specializing in the defense of religious freedom, the sanctity of human life, and family autonomy. This article is from Rutherford's newsletter, ACTION, November 1991.]

Supreme Court justice Hugo Black in a 1970 case referred to the "natural law due process notion by which this Court frees itself from the limits of a written constitution." This concept of natural law, as used by the Supreme court, would play a major role three years later in the Court's decision in Roe v. Wade that unborn children do not have a right to live.

This is not at all the concept of natural law that Thomas Jefferson was espousing when he wrote in the Declaration of Independence: "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 concept of natural law is one of the most confused ideas in the history of Western thought. It has played a prominent role in the formation of both law and governments, including that of the United States. Because of their belief in Judeo-Christian concepts, many have assumed that natural law means that, because God created the world, God's laws are basic to the constitution of all created beings. Indeed, this is one aspect of the natural law tradition.

The concept of natural law should tell us such things as the sanctity of human life, but because it is subject to fallible human reason, it frequently does not do so effectively.

Moreover, there are problems with the theory of natural law. To begin with, nature is posed as being normative. The difficulty lies in the fact that, from a Judeo-Christian perspective nature is fallen (and often unpredictable), just as are human beings.

Nature alone cannot be normative. It is simply not correct to say, as the moral anarchist says, that a thing is good because it is "natural"; that is, because it occurs in nature. Murder, theft, perversions and many other events occur in nature that are "evil" from a human perspective. Such crimes are "against nature," some may say, even thought they occur in nature.

However, it is nearly impossible to draw the line between what is natural and what is not natural. According to Lenny Bruce, "Truth is 'what is."' In other words, every kind of activity – criminal or not – is equally true. The lie then becomes that which tries to impose a standard of right and wrong over nature, thus "contradicting" what is.

Second, the natural law theory posits that people can discern natural law through reason alone. According to this notion, people can, without reference to anything, comprehend the principles of natural law. However, human intellect is flawed. Thus, people do not have the capacity for such discernment and will, therefore, misunderstand, distort, and misapply the principles of natural law.

Where so-called natural laws are viewed as absolutes for society and government, the consequence is most often cruelty to people. Without the reference point in the Judeo-Christian ethic that posits the great worth and dignity of the individual (along with absolute rights), there is no basis to judge which particular laws of nature are applicable to government and its human citizens. Depending upon the structure of power, many different things can be perpetuated and justified on the basis of natural law.

Darwinism, of course, undermined the traditional concept of natural law. If the theory of evolution is true, then nature – instead of representing a perfect, stable, and absolute order – is a blind, lawless force working its way upward and establishing its own rules by blind unconscious experience.

In this respect, Supreme court Justice Oliver Wendell Holmes once noted: "The life of the law has not been logic: it has been experience." Holmes quickly recognized that the acceptance of Darwinism inevitably undermined the concept of natural law. Law must be an intelligent reflected experience, and an intelligent reflected experience is known only to human beings, not to forces of nature. Experience is used by people to formulate law. In contemporary society, therefore, law is positive law (that is, human-made law), not a transcendent or higher law. Law is the experience of society as formalized by the state.

Law based upon experience and based upon the framework of evolution becomes a changing, developing process. Instead of being bound by a higher law or past constitution, this view is that law reflects the constant flow of experience and changing reality. A constitution is fixed ; it reflects the past or dead experience, whereas humanity's present life is governed by present experience. Even legislative enactments may be too inflexible under this view of the law.

Under this view, it is up to the courts, therefore, to reflect the growing experience of society intelligently and conscientiously. Only the courts could ascertain the direction and form of these experiences. There would be no absolute law for a reference point. Law would be what the courts say it is.

Darwinism shattered the confidence of many in orderly forms, including the concept of Judeo-Christian absolutes. Random chance becomes the lord of the universe. As a result, humanity has been placed in a desperate situation: failure to compete successfully means literal extinction – the survival of the fittest.

Thus, any system of law or government that is not based on the simple but true maxims of Judeo-Christian theism will most likely give us "disposable humanity" – people as junk, throwaways. Indeed, Hitler implemented his theory of natural law as filtered through the screen of Darwinism. Thus, in viewing an entire race of people as "naturally" inferior, he lit the furnaces.

Aleksander Solzhenitsyn has said, with much insight, that if people forsake the absolutes of right and wrong as found in Judeo-Christian theism, there is nothing left but to manipulate one another. It was, therefore, logical for Joseph Stalin to say that in order to create his omelet he would have to break some eggs. As a consequence, millions died in Soviet concentration camps. This was natural justice to Stalin.