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It Is Dangerous to Be Right When the Government Is Wrong by Andrew P. Napolitano Recently by Andrew P. Napolitano: The Myth of American Freedom
Introduction to It Is Dangerous to Be Right When the Government Is Wrong The Case for Personal Freedom, © 2011 by Andrew P. Napolitano, Published by Thomas Nelson Where Do Our Rights Come From? After a trip to the American Midwest in 1959, Nikita Khrushchev, then the ruler of the Soviet Union, became convinced that corn could solve many of the USSR’s economic woes. Russia had long struggled with miserably inadequate food supplies, the result of years of inept Communist agricultural policies. Having witnessed the wild success of corn production in America, Khrushchev reasoned that the grain could be equally successful in Russia, and thus support increased meat and dairy production necessary to feed the population. He therefore commanded that vast swaths of land, including the frigid tundra of Siberia, be converted to corn crops. As it turned out, corn was entirely unsuitable to the Russian climate, and the plan was a complete disaster. The reason, of course, that the policy failed was Khrushchev’s ignorance of the immutable fact – the self-evident truth – that corn can only be grown under certain conditions, and Russia’s climate did not provide them. The cost of this misjudgment was wasted resources and prolonged hunger. It is obvious that politicians must enact laws which are in accord with such "truths." If they do not, then the inevitable consequence is human suffering. There are some things which humans and their constructed governments simply cannot change; that is to say, those things transcend our human capacities and cannot be the object of our will. Individuals and governments are thus always secondary and subject to these truths. What are these truths, but "natural laws"? What other laws are there, with which human commands must accord? As we shall see, there are natural rights every human possesses by virtue of being human which protect our essential "yearnings" from government interference. And as we shall also see, manmade laws are only valid to the extent that they comport with and are subject to these natural rights. This is all known as the Natural Law. This scheme is in contrast to the legal philosophy of Positivism, which says that laws need not pass any kind of moral muster to be considered valid. In other words, laws are purely "posited" by human beings, and governments are not constrained by principles such as human rights, fairness, and justice when making those laws. Not only is this philosophy that "law is whatever the government says it is" untrue, but it has facilitated mankind’s biggest catastrophes and legitimized the most malevolent regimes in human history. Why were Hitler and his policies "evil"? After all, they were enacted by a popularly elected government that followed its own procedures to acquire power and enact lawful laws. Positivists have no answer to this question, because they cannot tell us why killing millions of innocent civilians is wrong: For Positivists, the Final Solution was just as valid as a law prohibiting jaywalking. Thus, under the Positivist scheme, our rights to life, liberty, and the pursuit of happiness are only as safe as our government would care to have them.
Why do we even care whether a law must comport with the Natural Law to be considered valid? After all, if the consequence of not obeying a law is imprisonment, then we will obey that law regardless of whether it is valid or not. The answer is because, like Khrushchev’s corn plan, every time the government’s commands flout the Natural Law, evil occurs, and we lose sight of the dream which our Founders enshrined for us in the Declaration of Independence and the Constitution. We must hold the government accountable for its violations of our natural rights if we are ever to have liberty. As Jefferson once said, "Eternal vigilance is the price of liberty." And as St. Augustine said and St. Thomas Aquinas taught, "An unjust law is no law at all." This Congress Hereby Declares Gravity to Be Illegal: It Is Too Much of a Downer Before we can discuss what precisely the Natural Law encompasses, we must examine its basis in the Eternal Law. The Eternal Law can essentially be thought of as those laws which govern the functioning of the universe, such as the laws of physics, anatomy, chemistry, mathematics, and biology. These laws are imprinted into the very order and nature of things. As an example, molecules of water can only ever be comprised of two hydrogen atoms and one oxygen atom. Change that composition, and you no longer have water. Moreover, the laws of chemistry also dictate that when water is cooled to below thirty-two degrees Fahrenheit, its molecular structure shifts, and it turns into ice. Whether one thinks of these laws as scientific rules, or the product of the divine and infallible will of God, it cannot change the following: These "truths" are immutable, and the universe is and always will be subject to them. Furthermore, these rules are self-evident, which is to say that although we may attempt to understand their workings, their truthfulness requires no explanation or proof. When humans study science, they are essentially trying to recognize and explain those rules to which we are subject, and thus be able to predict the future outcome of an interaction between two or more "things." The field of medicine, for example, tries to understand how a bacterial infection will respond to a particular antibiotic. If we do so, then we can know when and under what circumstances a particular antibody should be prescribed to restore the body to its normal, healthy state. We are therefore operating within the Eternal Law; and as any scientist will tell you, scientific rules don’t change. Only man-made theories for what those rules are and how they operate may change. However, without an explanation or understanding, those rules remain just as "true": Penicillin will combat certain infections, and gravity will always pull things toward the center of the earth, regardless of whether or not we understand how. In other words, explanation and human understanding cannot make those truths more "true": They rely on nothing human for their existence. If they did, then they would change along with all of the vagaries in taste and flaws in reasoning of the human mind. Thus, these laws transcend the temporal human mind and all of its imperfections. Although this may seem abstract now, it will make more sense when we explore other kinds of laws which do require an explanation for their truth, and a basis for their existence. Consider what would happen if, based upon legislative findings that gravity was causing too many injuries to falling senior citizens, Congress declared that henceforth all things shall fall at a slower speed. Clearly, this would not change the way that matter interacts with gravity, and thus the manner in which the universe functions. Rather, it would just distort other (man-made) calculations of the force of gravity: Although gravitational force would no doubt be calculated at lower numbers due to Congress’s laws, falling would hurt just as much. Consequently, we would sadly have just as many injured senior citizens as we did before, but we would have the illusion that Congress was doing something positive to protect seniors.
It would be equally ridiculous if Congress tried to declare that 2 + 2 = 22, or by printing money, there was more "value" in an economy with which to purchase goods and services. As St. Thomas More’s character states in Robert Bolt’s play A Man for All Seasons, "Some men think the Earth is round, others think it flat; . . . . But if it is flat, will the King’s command make it round? And if it is round, will the King’s command flatten it? No." Clearly, the Eternal Law is an absolute limit on the will and power of the government. Thus, it is another self-evident truth that humans can never alter, and are always trumped by, the eternal and natural laws, or if you prefer, God’s laws and nature’s laws, or as Jefferson said, "The Laws of Nature and of Nature’s God." The Yearnings of Mankind St. Thomas Aquinas stated that the Natural Law was the role in which human beings play in the Eternal Law. The primary distinction between human beings and other objects of the Eternal Law is that we are in possession of reason and free will. As stated above, human beings are able to recognize self-evident truths about the world in which we live through observation and the application of reason to those observations. Thus if we go to bed at night and the ground is dry, and we observe the next morning that the dirt has turned into mud, we are able to reason that it rained during the night. Moreover, we exercise reason and free will in order to realize all of our fundamental human yearnings, such as life, liberty, and the pursuit of happiness. This inclination to reach a proper end (our yearnings) through the application of reason is the Natural Law; it is our human nature. Although this may all sound abstract, we experience this process on a daily basis: Since we have a human yearning to provide for ourselves and our loved ones, we have learned through the exercise of reason that we can best accomplish that "proper end" by going to work nearly every day. Thus, it is a fundamental human inclination to exert energy to meet one’s natural needs. If we don’t, we die. This, of course, begs the question of what are those "proper ends" that God has dictated we as humans naturally strive for, or – for our secular readers – what nature has dictated that we instinctually strive for. Indeed, it is the perceived subjectivity of the answer to that question which has made Natural Law an unappealing philosophy to many. As was mentioned above, one of the traditional answers was "all of those things which we yearn for." To begin with, all living things strive for self-preservation. Thus, it is a natural inclination to consume food and water, and to defend oneself from attacks. However, as humans possess certain traits which are peculiar to themselves, there are additional "ends" which we do not share with other animals. For example, it is a natural yearning to love, to acquire knowledge, and to express oneself creatively. Those yearnings, however, do not lend themselves to being "listed." In fact, to do so is to tread into dangerous territory because if we only recognize those listed yearnings, then we are in danger of disparaging others that we leave out. As we shall discuss below, the Founders recognized this problem and provided a solution to it with the Ninth and Fourteenth Amendments. Since I first read the Declaration of Independence as a high school student, I have been fascinated with the concept of self-evident truths. If we agree with the generally accepted definition of self-evident truths – those which do not require hard evidence in order to evince acceptance – we run into two problems. The first is that at some time there surely must have been some evidence that caused universal acceptance of these truths; as in, it is self-evident that the Sun rises in the east every morning because the ancients and we have seen it there; as in, every human being has material needs to stay alive because the ancients and we have gotten hungry and cold and awkward at nakedness; as in, all things are subject to the laws of cause and effect, except for the uncaused cause, whom believers call God and our secular colleagues call Nature. These observations of the Sun and realizations of our own self-needs are, in fact, evidence for their universal acceptance. But the universality of these "truisms" (another way of saying self-evident truths) allows us to dispense with the need to provide scientific evidence in support of them whenever we articulate them. Stated differently, no rational person can seriously challenge truisms when we use them as building blocks for our arguments. The second problem we need to confront when commencing an argument with truisms is the realization that many people are willfully blind even to the obvious. Thus, while the truism that "all Men are created equal" may have been self-evident to the Founders, it surely was not self-evident to King George III or to the millions on the planet then and now to whom the divine right of kings provided and still provides a moral basis for tyranny. Moreover, it was not selfevident to the Founders themselves that "all Men are created equal" applied to all human beings, not solely to property-owning adult white males. From the above we can conclude that not every person in every age is sufficiently exposed to the truth so as to recognize it. Because we are all fallen – that is, our human nature has inherited the imperfections of original sin – we do not always recognize a truism. This is so because the truth is often inconvenient, painful, and upsetting; and it requires rational thought, acceptance of revelation, and personal courage to pursue.
Jefferson’s remarkable, radical insistence that "all Men are created equal" and are "endowed by their Creator" with certain "unalienable Rights" and that among those rights are "Life, Liberty, and the Pursuit of Happiness," and all these principles are "self-evident . . . Truths," was surely inconvenient, painful, and upsetting to many and hardly self-evident to the elites of his time. What about women, what about people of color, what about children, what about those without property: Why wasn’t the self-evident truth of their equality and their natural rights recognized? And if the king didn’t morally have all the power he claimed to have, how did the colonists come to occupy the land that he gave them via their predecessors? Even the most enlightened of men were blind to some truisms. What does it take to peel away errors of willful blindness? It takes intellect and free will. That we all possess the free will to pursue the truth, the intellect to recognize and accept it, and that its pursuit is the ultimate goal of human activity, is the ultimate truism. There are many self-evident truths that all rational persons recognize. Some come from human reason (the Sun rising, our needs for food, shelter, and clothing, as examples), and some come from revelation (we have the rights to life, liberty, property, and happiness; it is wrong to lie, cheat, steal, and murder, as examples). Some come from reason and revelation (government is essentially the negation of liberty; humans have free immortal souls while governments are finite and based on coercion and force). But the concept of self-evident truths – or truisms – is absolutely essential to freedom. Truisms reject moral relativism, and American exceptionalism. They compel an understanding of the laws of nature that animate and regulate all human beings at all times, in all places, and under all circumstances. And truisms equal freedom. Once we recognize those human yearnings, we can begin to understand the evil of government commands which infringe upon those yearnings. The Third Reich provides a case study in how governments devise policies and institutions which trespass on just about every human yearning there is, and the human suffering which inevitably follows from those trespasses. It is wrong to detain, torture, and murder humans because they possess an inherent inclination to roam the world freely, to avoid pain, and to preserve their lives. Compulsory sterilization is wrong because humans possess a yearning to reproduce. Proscription of free speech is wrong because it violates the natural human urge to express oneself and communicate ideas to others. Confiscation of property is wrong because humans endeavor to produce things which enrich their lives or can be traded for other things which do so. Requiring accountability or imposing surveillance is wrong because humans desire privacy; i.e., to be left alone. When government interferes with the natural order of things, whether as innocently as planting corn in Siberia, or as atrociously as exterminating persons, there are always disastrous consequences. And even if flouting the natural law benefits a majority (as is typically the claim), there will always be someone who pays the price of having his human nature transgressed upon. Proponents of Positivism and the welfare state have not been able to demonstrate even one credible example to the contrary. Natural Rights Natural Rights is a related but separate concept to the Natural Law. If each of us lived on an island by ourselves, we could live without fear of the Natural Law being transgressed. However, almost all of us live in complex societies where social interaction is the norm. The problem is that humans have a frightening tendency to impede the natural inclinations of other human beings, presenting a dilemma: Although humans must be able to mesh with one another, they need to do so in a manner which preserves the Natural Law. Therefore, there is a need for rights which establish rules respecting those interactions so as to reinforce the pursuit of our yearnings implicit in nature. Professor Randy Barnett defines them in the following manner:
In other words, our natural rights protect our ability to pursue our natural inclinations free from government interference: To live, to love, to acquire property, to be productive, to be left alone. If a human or if a government transgresses those rights, then it is violating those rules of social interaction, and hence the Natural Law.
Stated simply, because natural rights protect our human nature and are based on the eternal law, they are described as self-evident and inalienable. By self-evident, it is meant that these rights do not require some scientific proof in order to explain their existence. Humans have a natural inclination to preserve their own lives: Although we can certainly try to understand precisely why it is that humans try to preserve their lives, it can stand by itself and needs no further explanation or rationalization. Although a legislature may order that the right to life will be disregarded, it can never take that right away or alter the fundamental human yearning to live, just as Khrushchev could never change the fact that corn cannot grow in Siberia. Natural rights are in contrast to political rights, which we do in fact acquire by virtue of the government. Thus, in addition to natural rights, we can possess whichever political rights the government guarantees. For example, most of the rights recognized in the Constitution are Natural Rights. However, some, such as the right to be indicted by a grand jury before prosecution, depend upon the Constitution, and not the Natural Law, for their existence. Is there a fundamental human yearning to compel government prosecutors to present a case to a grand jury, at which no judge or defense counsel is present, and the make-up of which is usually timid souls eager to please the prosecutors? Certainly not. Although it may sometimes work as a matter of policy as a check on the government, it has nothing to do with human inclinations and the Natural Law. Nonetheless, it is an additional right which we enjoy by virtue of being under the jurisdiction of the federal government (as opposed to simply being human). Therefore, unlike Natural Rights which can be called pre-political, there are indeed political rights which rely upon government for their existence, and cannot be considered self-evident. By inalienable it is meant that these rights cannot be taken away from us under any circumstances, although we can give them up. Thus, even if we desired to do so, we could never sell ourselves into slavery and relinquish all claims on liberty. Such a transaction would be void as contrary to the Natural Law. But one may argue, can’t we sell our property, thus making it alienable? Although we can alienate our property, we can never alienate our right to acquire, possess, alter, and trade property. Thus when we exchange one good for another, we are merely converting the subject of that right into something else; we are not adversely affecting the right itself. If we grew corn and donated it to a local charity, the fact of that donation does not change that we always have a right to claim future corn production for ourselves. The cornerstone of a libertarian understanding of Natural Rights, and how social interactions should be structured so as to maximize the pursuit of our fundamental human yearnings, is the nonaggression principle. This states that we are free to do as we choose, but only to the extent that our actions do not infringe upon the freedoms of others. Thus, my freedom to swing my arms ends a few inches in front of your nose. In addition to individuals, governments must also obey the nonaggression principle, as governments are merely the constructs of individuals, deriving their just powers from what the governed have consensually given them, and are thus temporal "things" secondary to the Natural Law. In modern society, where the natural law has been perverted, we have permitted the government to monopolize violence and coercion. This has resulted in our sheep-like acceptance of theft of property, liberty, and dignity by the government. We have also permitted the perversion of the principle of subsidiarity. Subsidiarity encompasses von Mises’ assertion that government is the negation of liberty, Aquinas’s view that the government’s use of force should be as little as possible, and Jefferson’s mantra that that government is best which governs least. To comply with the doctrine of subsidiarity, governmental tasks should be performed by the lowest level of government possible, so as to disturb the least individual freedom, absorb the fewest public resources, and endure for the briefest time period. I know what you are probably thinking. . . . This doesn’t sound like anything in American government today. You’re right. Elsewhere in this book, we explore a number of different natural rights which embody the nonaggression principle, such as the right to free speech and the right to property. However, whenever we attempt to discuss Natural Rights, the same "problem" that we encountered with the Natural Law arises: What exactly are those rights? As noted above, those who criticize the philosophy of Natural Rights typically do so because they are frustrated by what they perceive to be an inherent subjectivity in the method of identifying those rights. After all, the law prides itself on being objective and determinable. And sadly, the ambiguity of the Natural Law has been abused from time to time so as to disparage our natural rights.
Such was the case in Justice Joseph P. Bradley’s concurrence in Bradwell v. Illinois, an 1873 Supreme Court case that upheld Illinois’ refusal to license a woman as a lawyer. He famously stated that "the constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood." Just as geography was once plagued by the belief that the world is flat, so, too, has the practice of discerning the Natural Law fallen victim to ignorance, stereotyping, and invidious discrimination by the government. The problem with this criticism is that it entirely misconceives the character of natural rights. Rather than be turned off by any sort of perceived subjectivity of determining our "proper ends," we should be instilled with a sense of deep respect for and complete deference to those immutable yearnings implicit in the order of things. It is no more sensible to reject the natural law for its lack of objectivity than to disparage the field of physics for the cryptic behavior of subatomic particles, and thus revert to the belief that all things are made up of earth, wind, water, and fire because it is easier to understand. Subjectivity has absolutely nothing to do with truth, merely the ease and certainty of determining what those truths are. Our politicians should be terrified at the prospect of encroaching upon our natural rights, and thus interfering with the natural order of things, especially because of their subjectivity, just as we would be terrified to take some experimental medicine about which nothing was known. And as we shall see, even someone who does not believe in the philosophy of the natural law must accept that, if properly followed, it avoids all of the crimes against humanity which we have seen government commit throughout human history. I speak not just of the truth of Natural Rights, but their capacity to foil tyranny. However, the concept of rights does not in reality have to be complicated at all. Rather, all rights, and indeed all tenets of libertarian philosophy, can be traced back to one single right: The right to own property. Although we traditionally think of this as the right to control tangible, external things (and that is the understanding adopted by the chapter in this book on property rights), it really begins earlier, with a property right to one’s own body. If we acknowledge this application of the right in conjunction with the nonaggression principle, then we also recognize free speech, freedom of association, freedom of travel, and a right to privacy. As Murray Rothbard explains in his book The Ethics of Liberty,
If we, however, extend this property right beyond the body and acknowledge that humans must retain control over tangible things external to them, then we also recognize the ability of one to do business and freely contract with others. Moreover, it declares government initiatives such as taxation and the Federal Reserve’s inflationary policies as illegitimate and in contravention of the Natural Law. And, as we shall see, some government initiatives, such as war, violate this property right in nearly every single form it can take. Thus, although one may fairly say that libertarians share general principles such as nonaggression and "free markets," among others, the common denominator within this philosophical movement is simply that there are certain spheres of this world which belong exclusively to the individual. We have dominion over these spheres by virtue of being human, and for that reason, they are natural rights which do not rest on any government for their existence.
Human Law The key difference between the Eternal Law, the Natural Law, Natural Rights, and Human Law, is that the last of these is not implicit in the order of things, but is actually promulgated by humans. Nonetheless, if lawmakers are to create the best society, they must be informed by human nature. Professor Barnett notes the role that man-made law plays in the scheme of Natural Law:
The proper role, then, for human law is to extend those natural rights into workable legal standards. After all, we live in an extraordinarily complex world, and it is not always obvious how natural rights, such as the right to order one’s personal life, apply to new and controversial questions, such as euthanasia or net neutrality. Moreover, although there may be a natural right to enter into contracts on one’s own terms, there is an important role for laws which require that contracts take a certain form before they can be enforced (so as to minimize the possibility of fraud). Although one may intuit that the right to enter into contracts protects the ability of parties to enter into contracts without their signatures, legislatures are well justified in promulgating a law that such agreements will not be enforced. Thus, we can see that man-made law must not only respect, but preserve, protect, defend, and actually serve our Natural Rights. Because human suffering results when man-made laws conflict with the Natural Law, and the very purpose of man-made law is to enforce Natural Rights, human laws are only valid to the extent that they uphold the Natural Law. Aquinas noted that "every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law." As we shall discuss below, one Supreme Court justice even saw fit to distinguish between acts and laws: Acts are commands which come from our politicians, and cannot be considered laws unless they comport with the Natural Law. One might well question what is meant by valid. After all, we will most likely obey a law regardless of whether it comports with the natural law, so long as the consequence of disobeying that law is punishment. By imposing a requirement of validity, we ensure that our government is constrained by the Natural Law. Could our politicians, practically speaking, pass laws which violate the Constitution? Of course, as is frequently the case. But central to the Natural Law and to the Constitution itself is the belief, held by the people and our judges, that such laws are not valid and should be struck down. So, too, the Natural Law, like the Constitution, will only constrain our government if there are those among us who hold it accountable to the Natural Law. If there is any message that I hope to communicate in this book, it is that all of us should be constantly questioning the validity of our officials’ commands. If they violate the Natural Law, then we must do everything in our power to right their wrongs and restore our freedom; at the simplest, it will entail voting them out of office; at the most extreme, it will mean abolishing that government altogether. The importance of questioning the validity of Human Law can be seen in the American civil rights movement. Racially discriminatory laws were, of course, often obeyed, because the consequences of not doing so was imprisonment and police brutality. However, civil rights activists, including the Reverend Dr. Martin Luther King Jr., knew that those laws did not comport with the Natural Law, and thus if African Americans were ever truly to be free, they must do everything in their power to have those laws repealed:
Dr. King recognized that those laws were not just bad or unwise, but illegitimate because they violated the fundamental truths of the Natural Law. Civil rights were not mere political rights which could be granted or taken away as government saw fit; rather, since they come from our humanity, they relied upon nothing from the government for their existence. As we shall now explore, and as noted by Dr. King, this scheme of Natural Law was adopted by our Founders and enshrined in the Declaration of Independence and the Constitution. The Promise of Freedom
Although our rights would exist even if they were not recognized by the Constitution, a scheme of Natural Rights nonetheless is enshrined in the Declaration of Independence and Constitution, and forms the basis for our entire legal system (or what our Founders intended to be our legal system). As previously noted, Jefferson specifically characterized our rights to life, liberty, and the pursuit of happiness as inalienable and self-evident. Moreover, he justified the entire American Revolutionary War as an effort to restore the protection of our Natural Rights:
Thus, the entire basis for our independence as a nation is the recognition and protection of our Natural Rights. The Founders did not believe that the tyranny of King George III was merely imprudent or unwise but, like Dr. King, found it to be illegitimate. In 1798, Justice Samuel Chase acknowledged the idea that government behaviors contrary to the Natural Law are invalid when he proclaimed in the famous Supreme Court case of Calder v. Bull, which addressed the applicability to state legislatures of the Constitution’s prohibition of ex post facto laws, that
Thus, government is always constrained in principle by the Natural Law – which Justice Chase called "the great first principles of the social compact." Natural rights are also referenced in and protected by the Constitution. The Ninth Amendment states that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." What would constitute the "rights . . . retained by the people," if not Natural Rights? By proclaiming that those rights are retained, the text of the Constitution expressly rejects the philosophy of Positivism: Because those unenumerated rights remain with individual human beings, Congress and the president cannot take them away by enacting a law or issuing a command to that effect. Moreover, since the Bill of Rights constrains the federal government, the Fourteenth Amendment protects individuals from similar encroachments of our Natural Rights by the States: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." What would be the privileges or immunities of American citizens, if not our Natural Rights? After all, the amendment does not say, "The enumerated rights in the Bill of Rights shall apply to the States." Thus, states are constrained by more than just those rights expressly listed in the Constitution, but also by those natural rights which are not easily identified and listed. We explore a method for enforcing those rights elsewhere in the book in the chapter called "When the Devil Turns Round on You: The Right to Fairness from the Government." Why the Fourteenth Amendment refers to privileges and immunities instead of rights is an interesting story, but it is of no semantic significance. Dr. King, in his "I Have a Dream" speech, referred to the protection of Natural Rights as the promise made by our Founders to the American people. Proponents of Positivism must coherently argue why we should now uproot the entire basis for our independence and default on that promise. As we shall now see, they have not been able to make the argument coherently, but they have profoundly uprooted the basis of our independence with their material assaults on the Natural Law. Positivism Positivism teaches that law is whatever is affirmatively put forward by human lawmakers. To a Positivist, the law is whatever the lawgiver/lawmaker says it is. Consequentially, under Positivism all of our rights are granted to us by the government, and they can be taken away at the discretion of the government. The central feature of Positivism is that an act is considered a law simply if it was lawfully enacted and is enforceable. In other words, laws are those commands which people can be coerced into obeying. Thus, Positivists would contend that Hitler’s Final Solution, regardless of its morality, can be described as law. By contrast, Positivists expressly disclaim that there is any "higher law" with which human law must conform if it is to be truly considered a law. As discussed earlier, Positivism can be a very tempting legal philosophy, given that if government systematically disparages our rights, then as a practical matter it appears as if we do not in fact possess those rights. It is also tempting because, in a free society, whether a democracy or a republic, the majority in the government, the majority of those who write the law, have their way with no constraints. "The majority rules" is a popular, populist, and Positivistic taunt. It is also destructive of freedom. Why did Positivism develop as a legal philosophy? After all, legal philosophies typically arise in response to a particular situation, just as Natural Law developed during a period of Absolutism, when it was believed that kings were divine, and thus they and their commands were superior to their subjects; during such times of tyranny, the inherent truth of the Natural Law is at its most obvious. Professor Barnett notes that we can literally see the truth of the Natural Law by observing the direction in which refugees travel – toward freedom, and away from oppression. Positivism is said to accomplish two objectives; the first is that law is "written," and thus, persons do not have to worry about being surprised by unwritten legal obligations binding upon them. Positivists fear that judges who simply disagree with the collective judgment of the people may strike such laws down under the auspices of the Natural Law. If we are to err to any side, it should be the collective knowledge and experience of we the people, not judges. It is for this second reason, as we have seen, that Positivism is described as fundamentally majoritarian. Stated differently, no matter how ill-advised, unnatural, or immoral; how unlawful, unconstitutional, or hateful; how biased, self-serving, or fraudulent; under Positivism, the majority that lawfully controls the government lawfully gets its way. This is the second objective of Positivism.
There are, however, some problems with Positivism, several of which have already been discussed. First, Natural Law thinkers also recognize a need for written, man-made law which can provide guidance and a sense of certainty to the populace. They only pose the additional requirement that those written laws be grounded in the principles of the Natural Law. Second, Positivism’s emphasis on majoritarianism has proven itself to be a woefully inadequate substitute for a scheme of Natural Rights. Although the theory of Positivism allows for the promulgation of laws which favor the majority, it also facilitates the promulgation of laws which benefit a minority at the expense of the majority, as was the case for centuries with Feudalism. Thus, Positivism is contingent upon effectively functioning democratic processes; without them, Positivism collapses in on itself. Anyone discontented with lobbying practices in Washington can understand this flaw of Positivism. Why should the transgression of the natural rights of a minority be any less abject than doing so to a majority? After all, Jews were an ethnic minority in Germany; does that make the Holocaust any more tolerable? Because the Natural Law applies equally to individuals and minorities as well as majorities, any transgression of it is just as damaging to the immutable order of the universe. If we steal one hundred dollars instead of one million dollars, it is still theft, and a violation of another individual’s property rights. As human history teaches us, many of the most egregious human rights violations have come at the hands of majorities in so-called advanced societies. Was it not a majority of white Americans which for two hundred years institutionalized slavery, the ultimate violation of Natural Rights? Even Abraham Lincoln, the so-called Great Emancipator, was not an abolitionist out of principle, but rather out of temporary military necessity to cripple the southern economy and win the Civil War. Was it not democratically elected officials who detained (Asian) Japanese American citizens during World War II, but not (Caucasian) German American citizens? Perhaps the most extreme example of the tyranny of the majority is abortion: Unborn fetuses obviously cannot partake in the political process, and therefore are, for the purposes of this discussion, a minority which has been "outvoted." What could constitute more natural yearnings than to be born and to develop into a human being?! Nonetheless, abortion is a widely accepted practice even in those advanced societies with the greatest protections for fundamental rights. The requirement that law is whatever can be enforced is also imprudent, and simply untrue. In his speech to the people of London, the character V in V for Vendetta eloquently addressed the issues of truth and enforceability in the law:
V, like our Founders and Dr. Martin Luther King Jr., recognized that the truncheon was simply not an adequate substitute for the principles of "fairness, justice, and freedom"; the enforceability of unjust laws cannot change the truth that our Natural Rights are being transgressed. Conclusion Although we have explored at length how man-made law must be subject to the Natural Law, perhaps the best indication of the falsehood of Positivism is that, deep down, we know that the transgression of our natural rights is wrong. We do not simply disagree with it, but feel a sense of visceral outrage that one human would try to treat us as inferior and subject to his will; it is antithetical to our selfhood. Thus it is in our human nature not just to yearn for freedom, but to recognize when those yearnings are unnaturally restricted. Elsewhere, V referenced Thomas Jefferson when he stated that "people should not be afraid of their governments. Governments should be afraid of their people." It should be clear that Positivism’s scheme of law relies upon the people obeying laws because they are afraid of the government, not because those laws are in accord with the Natural Law, and therefore just. If we are to live forever in a legal system founded on Positivism, then we can only hope that we will have laws which, coincidentally, happen to be just. But there is another way, the way of the Natural Law: Rather than be content to follow the will of the truncheon, we can choose to listen to those words which enunciate truth, and our Founders’ promise that those truths will not be denied by government. This book is about the titanic battle between adherents of Positivism and believers in the Natural Law; stated differently, between Big Government and individuals. As we shall see, the danger that befalls individuals inevitably comes from the government. The government makes it dangerous for us to be right when it is wrong. October 7, 2011 Andrew P. Napolitano [send him mail], a former judge of the Superior Court of New Jersey, is the senior judicial analyst at the Fox News Channel, and the host of “FreedomWatch” on the Fox Business Network. His latest book is It is Dangerous to be Right When the Government is Wrong: The Case for Personal Freedom.Copyright © 2011 Andrew P. Napolitano, Published by Thomas Nelson
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