Kerry Lee raises a good question. What if Hobby Lobby, which is being forced to supply contraceptives by Obamacare, were not a corporation but a proprietorship where there is no corporate veil? Which factor determines the outcome, the First Amendment religious freedom (within natural law) or the statutory law called Obamacare (within positive law)? What law theory will the Supreme Court invoke, or how will it attempt to use fuzzy language to decide the case while leaving its logic and theory ambiguous? I do not know.
Frank van Dun’s work The Logic of Law is my reference to understanding natural law vs. positive law. The latter is the state’s statutory law. There are also several natural law theories such as those of Hobbes and Rousseau that make the state’s law supreme, supposedly at the will of the citizens.
Basically, the statutory law doesn’t treat a natural person as a person or human being. It ignores natural justice. It treats a person as a member of a collective (a “number” not a “man”). The being has no rights except those conferred by the state’s assignments to various aspects or categories, such as citizen, employer, female, worker, corporation, child, veteran, pensioner, obese person, and so on. The natural person disappears under these constructions of law. This denies that a natural person is indivisibly a person or an individual. The statutory law fractionates the person.
The Bill of Rights is the best part of the Constitution because it’s not setting up a government with powers but listing a few critically important rights of those who are supposed to be sovereign, the people, plus it refers to the reserved powers of the states, that also stand in certain relations with the people. The Bill of Rights stands for the natural person.
The interpretations of the Supreme Court of statutory law that interpret the Bill of Rights are the ones that can infringe and have infringed on the natural person and the natural law theory that van Dun explicates. That theory makes such statements as the following. Every means of action (property and persons) belongs to at least one natural person. Only natural persons are free and sovereign. What belongs naturally to a person belongs lawfully to him. Only real persons are natural persons. Innocent natural persons are free. A natural person is free if and only if he is innocent. A person belongs to himself by nature. No person belongs naturally to any other person.
The above gives some idea of what’s actually involved in the relations of the person to the state and its laws. I’ll quote van Dun.
“Natural law theorists focus on natural persons (in an ordinary sense of the word ‘natural’) as the persons whose existence is necessary to make sense of law as an order of persons. From their point of view, all other orders of persons—orders of artificial persons such as corporations or states—are ‘law’ only by analogy to the natural order of human persons.
“In contrast with the natural law theorists, positivists deal primarily with what they call ‘legal persons’. Some of those persons, for example states (or in more abstract language, legal systems), they treat as theoretical representations of pre-existing data from which any legal analysis must start. These systems are the ‘legally necessary persons’ that serve to anchor the positivists’ theoretical constructions in some reality that is not itself one of those constructions. The existence of those particular legal persons is a necessary supposition of any (positivistic) theory of law. Other legal persons have no axiomatic or ‘legally necessary’ existence. Hence, there is nothing that belongs to them as a matter of legal necessity and nothing to which they belong as a matter of legal necessity. They are legal persons only if and because they stand in some legally relevant relation to one of the axiomatically acknowledged legally necessary anchorpersons.”
If Hobby Lobby were a proprietorship, then the Court would face a much clearer conflict between the man behind the business, the man with religious freedom, and the man as legal category of employer.
In allowing anti-discrimination laws that make an employer serve anyone or make a landlord rent to anyone, the Court has already shown that it sacrifices natural freedom to statutory law, i.e., the Court places its seal of approval not on natural justice but on a system of positive law. That’s the state’s system. Would it do the same to religious freedom?
Well, we already have basic conflicts in place there too. I quote a news article:
“Kathleen Sebelius, the secretary of the Department of Health and Human Services, confirmed today that church-affiliated hospitals, agencies and universities will be required [under Obamacare] to provide contraception and sterilization in the health insurance they provide employees.”
The administration exempted churches themselves, the organizations, but not church-affiliated organizations like hospitals. This kind of hair-splitting is actually person-splitting, for which there is no natural basis in justice as explained above. This is simply the raw force of law. This has been and continues to be the direction of the American state’s impositions on persons, groups of persons, societies, associations, companies, and so on. This is how freedom is extinguished, not by one clean rifle shot to the head, but by a slow administration of poison to the body.6:11 am on February 10, 2014 Email Michael S. Rozeff