Editor’s note: The following column is adapted from Father Patrick Traver’s recent presentation for the St. Thomas More Society in Anchorage.
By Fr. PATRICK TRAVERS
As a practitioner both of American secular law and the canon law of the Catholic Church I observe differences and similarities between these two legal systems. One sharp difference is the clear acceptance by canon law of the natural law as a source of foundational legal principles, contrasted with the almost total silence and even hostility toward natural law in the modern American legal system. There is no good reason for this radical difference and that the rejection of natural law as a direct source of legal norms has detached American law from its foundational roots in natural justice.
Natural law is those principles of law inherent in the nature of the world and particularly in human beings that can be discovered through human reason. Natural law is based on the facts of human nature giving rise to norms of human behavior — that the “is” of human life creates a basis of the “ought” of human conduct and relationships. The natural law consists of foundational norms by which individuals and the larger human society are helped to fulfill the potential of human nature, leading to true happiness.
Because of differences among people and their circumstances, not all will perceive the content of natural law principles exactly the same way — the foundational principles themselves are very broad. Among them is the very basic principle that good should be done and its opposite, evil, avoided — good being identified as that which is most conducive to fulfilling human nature. Another is the principle of non-contradiction — that something cannot both be and not be at the same time. Still another principal is that of justice: that each person must be accorded what rightfully belongs to him or her. The general content of the “Second Tablet” of the Ten Commandments governing human relations also is widely accepted by natural law theorists regardless of religious background.
It is in moving beyond these general formulations and applying them specifically to a wide variety of circumstances that different approaches to the content of natural law arise. The most highly developed and, at certain times, most widely accepted approach to natural law has been that of the Catholic scholastic tradition, especially that of the great 13th century philosopher and theologian, Saint Thomas Aquinas. It would be a mistake, however, to regard this as the only natural law approach available to modern American jurists. A variety of natural law traditions offer possibilities for further development. Some of them have provided the soil in which the American legal system has taken root. This should be of special professional interest to American lawyers. That this has not, by and large, been the case for about a 150 years is quite surprising, and the main concern I address here.
The founders of the American governmental and legal system were convinced that all they accomplished was based on, and had to be consistent with, the natural law. This is illustrated in the invocation by the Declaration of Independence of “the Law of Nature and of Nature’s God” and the “self-evident” truths “that all men are created equal, that they are endowed by their Creator with certain unalienable rights, [and] that among these are Life, Liberty and the pursuit of Happiness.” The founders considered natural law to be the juridical bedrock of all that they accomplished in establishing the new Republic. Indeed, it is clear from discussions and debates that accompanied the ratification of the original Constitution and the Bill of Rights that even this new “supreme Law of the Land” could not displace the foundational natural law, which continued to govern a wide array of matters; and that the new constitutional provisions must always be interpreted in a manner consistent with natural law.
For most of the founders, formed and steeped in the natural law tradition, any claim that their handiwork could contradict the law of nature would have been sacrilegious if not wholly unthinkable.
Throughout the early years of the United States this acceptance of natural law as a source of legal norms — to be considered together with constitutional and statutory provisions and judicial precedents — prevailed in American courts and other branches of government. By the late 19th century, however, such direct reliance on natural law had become quite rare, a situation that has continued to the present day.
A number of currents developed in American legal thought and practice that directly questioned the existence of natural law or any other source of objective standards of legal reasoning and judgment. These movements sought the sources of law in the social and economic influences that affect the behavior of judges and political decision makers. They were closely related to the ancient rival of natural law theory known as legal positivism. The positivist approach denies the discoverability of objective legal principles and norms by human reason, and instead regards all legal norms as subject to the will and power of the lawmakers. Positivism views all law as a human artifact, fundamentally the product of the political, economic, social and cultural system to which the lawmaker belongs. The underlying principles of positivism are totally contrary to the vision of the founders of our nation.
For about a 150 years now the American legal system has been detached from its natural law roots as positivist approaches have prevailed. Natural law is rarely acknowledged in modern legal decision making by the courts and political branches of government. Indeed, certain American legal and political circles are hostile to any acknowledgment of natural law. And yet, while it has in recent times been ignored, doubted and even vilified, natural law continues to play a central, if mostly unrecognized, role in American law.
Consider, for instance, the continuing development of common law through judicial precedent. From the earliest centuries of the English legal system and throughout the early history of the United States, this was regarded as an enterprise of gradual discovery by judges of the principles of the natural law and their application to the specific circumstances of the case at hand. The idea of the common law as “judge-made law” came only later.
The standard of the “reasonable person” that forms the basis for many areas of American law is another instance of the continuing pervasive influence of the natural law in our legal system. This fundamental legal principle is one that is “self-evident” — it is ultimately rooted in an innate sense of human justice illuminated by reason, rather than a previous calculation of costs and benefits or other assessment of material utility. It shapes the legal standards that apply to practically every kind of human activity, guiding our behavior whether we are aware of its influence or not.
One of the most important transitions in American life at all levels was occasioned by the civil rights movement beginning in the mid-20th century under the leadership of such towering figures as Dr. Martin Luther King, Jr. Dr. King insisted that the inspiration for that movement lay in the natural law tradition as exemplified by Christian thinkers. He states, in his “Letter from Birmingham Jail”:
“To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality.”
Dr. King did not see the ultimate foundation of the movement for which so many sacrificed, and for which he gave his life, in the provisions of the U.S. Constitution, as important as these are. He knew that its roots were in a law that transcends times, places, nations, cultures and constitutions: the law that is based on the fulfillment of human nature and the true happiness of human beings — the natural law.
In the absence of judicial methods that would permit them simply to acknowledge natural law as a direct source for their decisions, courts since the 1960s have construed constitutional provisions and statutes, often in remarkably unpredictable ways, to implement that vision as they perceive it. This happened most notably in Roe v. Wade, the 1973 Supreme Court decision that invalidated most governmental prohibitions and restrictions on the abortion of pregnancies. Here, a right having no specific mention in the Constitution and not fully developed in natural law was held to override the right to life guaranteed by both. Even supporters of the outcome in Roe v. Wade have questioned the reasoning by which it was reached, which in substance is based on the majority’s vision of natural law without daring to speak its name.
A problem with such cases is that the constraints imposed on their argument and decision by the constitutional and statutory categories into which they are forced prevents the court from a full evaluation of all aspects of human nature, fulfillment and the happiness of people likely to be affected by its decision. This has resulted in the disregard of natural rights that cannot be readily accommodated by those predetermined constitutional and statutory categories.
The natural law is a reality that can be recognized and applied by the American legal system. To a great extent, it already does this, although in ways that are not fully recognized and effective. Let us pray that our political and judicial leaders will hasten the day when natural law is restored to its rightful place in government.
The writer is a graduate of Harvard University Law School and practiced law for 11 years before entering seminary where he received degrees in theology and canon law from the Pontifical Gregorian University in Rome. He currently serves as vicar general for the Anchorage Archdiocese and Diocese of Juneau.