Natural Law, Positive Law, and Disobedience

Posted: Dec 22, 2014 1:18 PM

In the wake of the Eric Garner case, some libertarians have urged us to revisit the topic of natural law, a “higher” moral law that supplies an objective standard of justice for “positive law,” the law(s) posited (or made) by human beings.

Garner, it’s been argued, had a “natural right” to dispose of his property (his loose cigarettes) as long as he observed the “axiom” of “non-aggression,” the principle forbidding people from violating the rights of others. Since, allegedly, Garner “aggressed” against nobody, he was guilty of no wrong doing.

Some thoughts:

(1) As far as the lifespan of natural law theory goes, it has only been recently that natural law has been identified with a doctrine of “natural rights.” That’s correct: Though belief in natural law extends back millennia to antiquity, it wasn’t until about 600 years or so ago, during the late medieval era, that the idiom of “natural rights” sprang up on the scene. Prior to this, natural law theorists from the Greeks and Romans to Jews, Christians, and Muslims (and beyond) viewed natural law as prescribing duties, not rights.

The Catholic ethicist Alasdair MacIntyre informs us that prior to this juncture, there had been “no expression in any ancient or medieval language correctly translated by our expression ‘a right’ [.]” The notion of “a right,” he continues, “lacks any means of expression in Hebrew, Greek, Latin or Arabic,” whether “classical or medieval,” prior to the fifteenth century. Nor is there any word or phrase for “a right” to be found in Old English. And it wasn’t until the late 19thcentury that Japanese had an equivalent of it.

If there really is such a thing as natural (or “human”) rights, no one prior to the fifteenth century knew about them.

Nor could they have known about them: rights-claims are always only meaningful within the context of a system of culturally-specific institutions. As MacIntyre notes, in the absence of such institutions, “the making of a claim to a right would be like presenting a check for payment in a social order that lacked the institution of money.”

The 19th century Oxford philosopher, T.H. Green, makes a similar point when he writes that without “that complex of institutions” that we call “society,” “I literally should not have a life to call my own [.]” Green’s point is that “it is only as members of a society…recognizing common interests and objects” that we become “moralized.”

The “patron saint” of conservatism, Edmund Burke, hammered home this thesis when combating the French revolutionaries and their cries of “the Rights of Man.” Burke knew full well that it is “the civil social man, and no other”—i.e. flesh and blood, socially embodied beings, not a bunch of abstract, pre-political rights-bearers descending from some mythical “state of nature”—that is the subject matter of law and politics. “Men cannot enjoy the rights of an uncivil and of a civil state together,” he declared.

Since “civil society” is “the offspring of convention, that convention must be its law.” What this means is that every “sort of legislative, judicial, or executor power” are the “creatures” of convention. No social institution “can have” any “being in any other state of things,” Burke says. It’s not possible, he maintains, for “any man [to] claim, under the conventions of civil society, rights which do not so much as suppose its existence” and which may even be “absolutely repugnant to it [.]”

(2) The problem with the “axiom” of “non-aggression”—what is otherwise known as the “No Harm” principle—is that it is not an axiom at all. An axiom is a self-evident proposition. That I’m awake and that Earth is more than five minutes old are all self-evident propositions. But the proposition that the only time that anyone—including government—is justified in using force is when it is necessary to resist force initiated by an aggressor against the person and/or property of another is anything but self-evident.

And because of this, it is can’t be the starting point of an argument; it needs an argument.

The great utilitarian philosopher, John S. Mill, enunciated the non-aggression or No Harm principle when he remarked that “the sole end for which mankind are warranted individually or collectively in interfering with the liberty of action of any of their number is self-protection [.]” He is adamant that “the only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others.”

However, the 19th century conservative theorist James Fitzjames Stephen noted that this principle, if true, would discredit every religious and moral tradition that has ever existed. “Now, in the innumerable majority of cases,” Stephen remarks, “disapprobation, or the moral sanction, has nothing whatever to do with self-protection.”

In fact, even John Locke—no slight figure in libertarian thought—held that force can and should be applied to individuals even when they are not directly harming anyone. Roman Catholics and atheists are two notable examples of groups that he exempts from measures designed to foster “toleration.”

(3) Even if we assume that the libertarian argument above vis-à-vis the Garner case works, it most certainly does not follow that Garner wasn’t in the wrong. Outside of the French radicals of the 18th century, the overwhelming majority of natural law thinkers, including natural rights theorists, have recognized a moral duty—a duty rooted in the natural law—to obey the positive law—even when the latter is unjust.

When a law is intolerably unjust, there is a moral duty—a duty rooted in the natural law—to disobey it. But even here, the disobedience must be civil, i.e. it mustn’t involve “any degree of public mischief or private injury,” as William Blackstone put it.” This means the disobedient must be willing to submit to penalties.

St. Paul wrote that since “there is no authority except from God, and those authorities that exist have been instituted by God,” “whoever resists authority resists what God has appointed [.]”

Thomas Aquinas, a “rock star” of the medieval era and among the greatest of Western philosophers generally, said that an unjust law “is not a law, absolutely speaking, but rather a perversion of law”(italics added) [.] However, a perversion of law, even when it emanates from a tyrant, still contains “something in the nature of a law,” for “it is an ordinance made by a superior to his subjects, and aims at being obeyed by them [.]”

An unjust law “has the nature, not of law, but of violence,” but it nevertheless “retains some appearance of law” in “being framed by one who is in power [.]” Thus, even an unjust law “is derived from the eternal law; for all power is from the Lord God” (italics added) [.]

To be clear, natural lawyers have always insisted that there are unjust laws that demand disobedience. But there are two things to bear in mind here:

First, the law in question, like a law requiring murder, must be wildly offensive to conscience.

Second, the disobedience should be open and conducted in a manner that is consistent with respect for law as a whole (unless, of course, the whole system is corrupt, in which case revolution may be the only option). This way, the disobedience distinguishes the disobedient from cowardly criminals while drawing the public to the injustice of the specific law.

The early Christian martyrs, Ghandi, Martin Luther King, Jr. and the “civil rights” activists of the 50’s and 60’s are among the scores of believers in natural law from throughout history who civilly disobeyed unjust laws.

Eric Garner is not to be included in their number—or even mentioned in the same breath.