Fr. Charles Irvin, Diocese of Lansing at 402-A E. Madison Street, DeWitt, MI 48820 US - On Natural Law - Part II

"So Pilate went back into the Praetorium and called Jesus to him and asked him, `Are you the king of the Jews?' Jesus replied, `Do you ask this of your own accord, or have others said it to you about me?' Pilate answered, `Am I a Jew?' It is your own people and the chief priests who have handed you over to me: what have you done?' Jesus replied, `Mine is not a kingdom of this world; if my kingdom were of this world, my men would have fought to prevent my being surrendered to the Jews. As it is, my kingdom does not belong here." Pilate said, `So, then you are a king?' Jesus answered, `It is you who say that I am a king. I was born for this, I came into the world for this, to bear witness to the truth; and all who are on the side of truth listen to my voice.' `Truth?' said Pilate. `What is truth?'"
(John 18:33-39)

Jesus standing before Pilate is accused of the most serious crime in the Roman Empire, namely that of challenging the authority of the emperor. "Are you a king?" Pilate asks incredulously. It's humiliating and embarrassing to have this Galilean rabbi without portfolio, this poor and insignificant itinerant rabbi named Jesus (from Nazareth of all places!), actually challenging the divine Roman Emperor!! It's downright subversive... un-Roman... degrading.

In our own American Declaration of Independence we, too, threw off a king; we threw King George and his tea bags into Boston's harbour. And in doing so, we drew our warrant from God, saying: "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 French Revolution, which followed upon ours by just a few short years, threw off any and every external restraint upon Frenchmen, proclaiming that human choice and human choice alone determines reality." Cogito, ergo sum" is after all a French philosophy that appeals to no God to warrant human existence.

And as for Truth? Well, Truth is what free Frenchmen, as autonomous and free individuals, say it is. The Jacobins proclaimed human reason to be free of all transcendent measures, values and goals.... free of Church and free of God.

Modern Americans have unwittingly (and some, I fear, wittingly) junked the American Revolution and opted for the French one. Religion? Purely and solely a private matter; it's a matter of individual opinion or feeling. There are no absolutes, no divine imperatives... and there are no Transcendents. What is legal and lawful is what 51% of Americans have determined to be legal (and therefore moral). Religion is purely a private matter, an individual opinion, a warm, fuzzy feeling for insecure people who need it. The only infallibility is found in Gallup polls.

Napoleon followed the Jacobins, the first of the Modern Totalitarians. The Emperor Napoleon was the first to declare that the bodies of French men and boys belonged to the State and her Army; he was the first do decree universal conscription, the draft as we call it, claiming ownership of their bodies for the armies of France. Natural Law? God's law? Nuisances!

From thence it was only a short philosophical step to Marx, Engels and Lenin. And along with them came National Socialism, Hitler and his Nazis. All were the descendants of France's Revolution, not ours. Ours looked to God for its warrant. France's Revolution rejected God and appealed only to Man's will for its warrant.

Freedom of Choice is our idol, our king and emperor. The Attitude Engineers of our day say: "We belong to no one; we have no king." Truth? Truth is what we say it is. Forget all of this nonsense about "inalienable rights", endowments by a Creator, and all manner of God-talk when it comes to the public forum. Private freedom of choice is our god. All of those who deny that are un- American, divisive, and subvert our American Way.

Christ still stands before Pilate. And the ancient issue in question remains: Are we free because we are free to do as we wish, or are we free because a Creator has endowed us with an inalienable right to choose that which is good? And what is the Good? Just what is Truth?

JURISPRUDENCE

"Jurisprudence is the knowledge of the human and the divine. It is the science of knowing right and wrong."

Noble sentiments, indeed. But they would be sandblasted away if today's American law school professors had an effective vote to do so. Few self-respecting professors of law would today teach the idea that law has anything to do with the knowledge of the divine. And as for what is morally right or wrong? No place for such private opinions and matters of personal faith in today's courtrooms!.

What irony it is that these distinguished gentlemen teach in land grant colleges and universities, institutions of higher learning endowed free of charge with the lands upon which to erect their schools. And the instrument of endowment? The Northwest Ordinance, which reads in part:

"Religion, morality and knowledge being necessary for the good government and happiness of mankind, schools and the means of education shall forever be encouraged."

Religion? Morality? Taught in a tax dollar supported university law schools? Their faculties would, without hesitation, remind us that there's a wall of separation between Church and State, and no State school can teach religion or morality, only pure, objective, scientific knowledge, free from such subjectivities such as religion or morality, free from such transcendents as Justice and Equity.

Professor Karl Llewellyn, a giant among legal educators, welcomed his Freshmen University of Chicago students with the following:

"The hardest job of the first year is to lop off your common sense, to knock your ethics into temporary anesthesia. Your view of social policy, your sense of justice - to knock these out of you along with woozy things, along with ideas all fuzzed along the edges. You are to acquire ability to think precisely, to analyze coldly.... to see, and see only, and manipulate, the machinery of the law. It is not easy thus to turn human beings into lawyers.... None the less, it is an almost impossible process to achieve the technique without sacrificing some humanity first."

Said another, Hans Kelsen:

"...the concept of law has no moral connotations whatsoever."

Why do these distinguished gentlemen of the Law say as they do? Well, because "legal realism" and "legal positivism" have shoved away the more ancient conceptions of Jurisprudence. The prevailing legal philosophy of today tells us that law is simply a series of stated principles that describe procedure, technique, and controlling rules determined by the dicta of judges. What magistrates do is, today, the law itself. Law is merely a matter of the State's force and coercion controlling the clash between the self-interests of its citizens and their factions.

You see, we've become a society of factions, as any legislator will tell you. Self-aggrandizement couched as self- enhancement and self-motivation, has become the operative principle in our society. Getting government off our backs (i.e. getting external restraints off our backs), means that any concerns for "the common good", or any concerns for what the Founders of our nation referred to as "civic virtue", any concerns about "morality" or transcendent Justice, are to be expunged from the souls and minds of our citizens and their counsellors and advocates. Law is nothing more these days than the ameliorating and channeling of the projections of power between individuals and interest groups, be they public or private.

Wrote Oliver Wendell Holmes, Jr. in letter to one of his friends:

"I have said to my brethren [on the Supreme Court] many times that I hate justice, which means that I know if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms."

How often, I wonder, are his words quoted in that courthouse in Ft. Wayne, Indiana that has such noble thoughts chiseled on its facade?

And lest we be too smug, hasn't our own Catholic Church become divided into factions, each attempting to project their own power, their own purities of doctrine, on all others? We mirror too much, I fear, the society in which we attempt to live as Catholics.

CLARENCE THOMAS BEFORE THE COURT

There is a rather profound fabric of thought to which the print media has paid scarce attention. It finds expression in one of the foundational principles of the Natural Law:

"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."

Our Declaration of Independence, appealing as it does to God for the foundation of our rights, concludes (much to the utter chagrin of modern day secularists) with the sentence: "And, for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor." One can easily imagine that many of today's journalists feel such sentiments to be in violation of the wall of separation between church and state.

There are two related questions to which we must pay some attention. The first is: Do we hold these declared truths because they are true, or are these truths true because we hold them? Does the American Consensus, as our commonly held agreement, constitute the truth, or does the truth command our American Agreement which is the consensus which we hold?

And the second related question: Whence comes the warrant to compel through constitutional enforcement, through legal enactments and in public policy, that which is right and that which is wrong? Why are we allowed to oblige these principles in our public acta?

Everything that we might henceforth discuss here about Natural Law depends upon our agreement to something that is self- evident. It cannot be "proved" anymore than you can place someone at the face of a glacier and then require him or her to "prove" that the glacier exists. It is simply there, prima facie. To deny it's existence or to claim that its existence cannot be proven is to end all rational discussion.

I take it as a given that the raising of experience to a Transcendental and the transformation of facts into a principle is the work of ratiocination. It is not simply an inquiry into certain facts, nor is it simply the act of reflection on experience. It is an act of reasoned human judgment, an exercise in moral affirmation of the truth of something in the order of being and its rightness in the order of moral activity. The English Common Law system, from which ours has descended, is nothing if it is not this. It is the progeny of Natural Law, its natural mother, modern day opinion columnists to the contrary notwithstanding.

Being possessed of a rational soul is the distinguishing feature of a living human being, separating us from the animal order below homo sapiens, and impelling us to act according to reason, that is to say, to act reasonably and responsibly in relation to the nature of things. In the days when universities were allowed to have Schools of Theology in dialogue with the others Schools within the embrace of Alma Mater such acts were called virtue. Moreover they were likewise powers (cf. "virtus").

Natural Law jurisprudence stands on a three legged stool; knock one leg away and the whole system falls. But with the legs underneath it is an extremely stable and strong system indeed. The legs? 1) Homo sapiens is intelligent, 2) reality is intelligible, and 3) reality once known imposes on the human will the obligation that it be obeyed in its demands for action or abstention from action. That is to say, if you know you have a kerosene lamp in your tent out in the woods and you attempt to burn gasoline in it you're violating the nature of your equipment as well as the fuel and you're asking for trouble. Acting unreasonably and irresponsibly brings with it human suffering and loss. Such acts we know to be immoral.

THE BARBARIANS HAVE INVADED

There is, for him, no eternal order, no transcendent Truth or transcendental Justice. Transcendentalism is anathema. There is nothing higher than human choice unaided and unfettered by such things as "higher principles". There are no universals, no absolutes, no laws higher than those which are determined solely by majority vote or opinion. He is horrified by talk of Natural Law. Anything that requires man's assent or calls for his obedience is to be destroyed, obliterated, or laughed out of the court of human reason. The only thing to which man must submit is that which has 51% of the vote in the market place. The only morality is that which is legal. The modern barbarian sits in the editorial offices of today's newspapers and fills your mind with his non-philosophy and tells you that those who think otherwise are "weak minded".

It remains, nevertheless, self-evident that what is true cannot at the same time and under the same respect be false, and that what is good attracts the human will and presents its own warrant to be done, and that what is evil is to be avoided. To act against reason is, therefore, to sin. And so to act is to deny one's very own nature as well as that greater human Nature of which we are all a part, all of it coming as it does from the Creator who has endowed it with those rights which inhere in it and which are evident to the human mind.

President George Bush's nomination of Judge Clarence Thomas to the U. S. Supreme Court led to the happy result of bringing back to public debate the question of Natural Law. What is it? Who recognizes natural rights in human beings and who enforces their protection? These are critical questions with respect to the abortion issue, assisted suicide, affirmative action, sex discrimination, racial quota questions, and in all other cases wherein something is claimed to constitutionally inhere in any human being. Indeed, the question of whether or not a fetus is a human being is likewise a Natural Law issue. What is the nature of a fetus? What legal rights does a fetus enjoy? What constitutional rights? And to what degree are they enforceable?

The realm of Natural Law is familiar to the Catholic. He or she moves into the complexities of the arguments comfortably, at ease with notions that are admixtures of theological, metaphysical, juridical and political principles. Protestants, on the other hand, find Natural Law considerations to be challenging, even offensive. Luther, Calvin and others built their theological systems on notions that deeply distrust human nature. If human nature has been totally corrupted by sin then salvation can be mediated only through extra-human means. Grace mediated through human nature? No! Consequently, a jurisprudence based on notions of Law and Truth inhering in human nature are repugnant. The Protestant theological mind is greatly discomfited by notions of the Natural Law.

For similar reasons the Jewish mind is likewise discomfited. The Jew does not share the Christian idea of history, even though the Christian idea of history builds upon the Jewish experience of God in human history. The idea of the Divine becoming human raises excited theological debates, particularly among Jews themselves, over the nature of the Messiah. Furthermore, for the Jew the Law came down from Mt. Sinai, it did not emerge from within the nature of things. Natural Law would be a major problematic to Jews. They experienced Law coming down from God to Mt. Sinai, and from thence to us. The Law came from the hands of God, infinitely distant from human nature, even though traces of the Creator might be found in His creatures.

Historically the first enemy of the secularist is the Catholic Church. And that historical enmity is borne out in today's debates over abortion, the nomination of Clarence Thomas, and the role (if any) of Natural Law in our society. The secularist abhors notions of Natural Law just as much as he or she abhors the Catholic Church. Why? Because both admit of an authority superior to human reason alone. Natural Law asserts that there is a higher law than the laws produced by Positivism. Natural Law posits the proposition that the temporal order is subordinate to the spiritual, a notion that the secular mind hates. Equally abhorrent is the fact that the Church is a visible, organic community, a community of thought and judgment that dares to sit in judgment both on the community of democratic thought as well as the choices of humans freely made.

Yet our patrimony of political thought as expressed in our nation's Declaration of Independence and Constitution comes down to us from classical sources and the Christian contributions built upon them. The Magna Charta, English Constitutional Law, European Jurisprudence, the Justinian Code, and countless other springs have all produced a confluence of public discourse and argument that has given us Western constitutionalism, happily expressed in our American Experiment. The arrogance, power, and abuses of kings and monarchs was somewhat held in check by the Church and her patrimony of Natural Law concepts and principles. Our American Constitution and our Declaration of Independence were not conceived in, nor did they spring full blown from the minds of those who wrote them on this side of the Atlantic, or of the Enlightenment, or of the Reformation. The American Experiment has more ancient progenitors held in honor and esteem by the Roman Catholic Church.

Civil society is a need and a right found in human nature. Those rights are not simply granted us by a legislator, even though the positivist and secularist mind declares that to be so. The human mind alone did not graciously discover and grant them to us. There is a patrimonium generis humani of essential truth, a bequest of rational belief that builds, protects and sustains the City of Man in that it relies on Natural Law principles. Those principles provide us with truths that come to us not from the statues of a legislature, the acts of a Constitutional Congress, or the decisions of a Supreme Court, but rather from the Creator who has endowed us with those rights that reasonable and rational men and women, locked and held together in public discourse, find to be self-evident. These rights are discovered not in the Constitution but in that reality upon which the Constitution is built, human nature made by God in His image and likeness.

Fr. John Courtney Murray, S.J., in his book We Hold These Truths, wrote: "The question is sometimes raised, whether Catholicism is compatible with American democracy. The question is invalid as well as impertinent; for the manner of its position inverts the order of values. It must, of course, be turned round to read, whether American democracy is compatible with Catholicism."

Quite so, for the Catholic must deal with his membership in a Community that is wider and deeper than that which is merely American. The Catholic is a member of a Community whose history is ten times longer than the few brief years in which the American Experiment has existed. His religious faith and his patriotic beliefs cannot be simply merged, as others may perhaps merge them, selling out both for the sake of a hollow secular religion in which human nature is bought and sold as mere pottage, where financial values supersede human values, materialism crushes quality and excellence, egalitarianism dilutes everyone to the lowest common denominator, and small- minded human willfulness replaces the mind of God.

For, you see, the Barbarians have invaded. The decline and fall of the American Experiment is at hand. The Vandals of our day are the secular humanists who are constructing a philosophy to end all philosophies and a legal system to end the Rule of Reason and the Rule of Law. You will find them busily on the attack in the debate over Natural Law raised by Judge Clarence Thomas, a judge who stands at a more ancient bar looking at the scales of Justice held in the hand of a Mother who is the progenitor of us all.

PRINCIPII PRIMII

"In disquisitions of every kind there are certain primary truths or first principles upon which all subsequent reasonings must depend. These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind.... Of this nature are the maxims in geometry, that 'the whole is greater than its parts; things equal to the same are equal to one another; two straight lines cannot enclose a space; and that all right angles are equal to each other.' Of the same nature are these other maxims in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object..."
Alexander Hamilton, Federalist No. 31

Abraham Lincoln once declared: "The doctrine of self- government [i.e., that human beings have a natural right to be governed only with their own consent] is right - absolutely and eternally right."

Our Declaration of Independence rests our Revolutionary claim upon the proposition: "We hold these truths to be self- evident, that all men are endowed by their Creator with certain inalienable rights, among them being..."

Today, in the Halls of Academe as well as in the Halls of Justice there is a certain discomfort with such "absolutist" thinking. Which allows us to observe, along with St. Thomas Aquinas, that self-evident truths are not necessarily self- evident to every self that's walking about out there in our society. These truths are the same for all, but they may not be observed by all, either indeliberately or (as in our day) deliberately. They ought to be deliberately observed. The sad truth is that they are thoroughly rejected by those who are busily about the effort to build a value-free culture in which nothing exists but a No Fault Morality, in which likewise nothing is absolute, everything is relative. In our day, the prevailing philosophy is that Truth and Morality are to be given "existence" only by the sovereign will of each and every self-justifying individual. Which, of course, is a philosophy to end all philosophies - a philosophy otherwise known as Nihilism.

Roe v. Wade brought us a number of things, among which is the seemingly infallible popular dictum that the "right to privacy is absolute" with an "absoluteness" that is superior to anything else claiming to be absolute, even truths which hitherto have been held to be self-evident. It seems to matter not in our newspapers and popular journals that the Court specifically declared that the right to privacy is NOT absolute.

In the contentious confirmation hearings that swirled around the nomination of Supreme Court Justice Clarence Thomas, Catholic-educated Senator Joseph Biden snootily dismissed the notion that any United States Supreme Court Justice should rely on Natural Law as ground upon which to build judicial reasoning. Oddly enough, the very same Senator Joseph Biden had, only four years previously, opposed the nomination of Judge Robert Bork to the Supreme Court because of Natural Law reasons! Judge Bork (curiously) rejects Natural Law theories. Catholic educated Senator Biden worried during Bork's confirmation hearings that a Supreme Court Justice would reject Natural Law grounding. "As a child of God, declared Senator Biden, "I believe my rights are not derived from the Constitution. My rights are not derived from any government. My rights are not derived from any majority. My rights are because I exist. They were given to me and each of my fellow citizens by our Creator and they represent the essence of human dignity."

Marvelous stuff. Too bad that political opportunism prevailed in Senator Biden's mind. Would that the good Senator had remained steadfast and built his jurisprudential house on that rock. Instead, because it was politically incorrect to support the nomination of Judge Clarence Thomas to the Supreme Court, Senator Biden waffled. And (obviously!) so have many others along with him.

Thus the claim of Abraham Lincoln, along with the claim posited in our Declaration of Independence that "all men are created equal", is a claim that today is not supported as being any longer self-evident. It is not supported these days as "self- evident" in majority opinion polls and majority decisions emanating from our Supreme Court. The Constitution, as well as the Truth, is what a majority of the Court's Justices decide it to be.

In another arena, our nation's schools are telling our children that truth, morality, and transcendents are what each one of us as self-contained and autocephalous monads declare it to be for ourselves, as it suits our own self-interest. First Principles? Hooey. They are "values" a medieval church seeks to impose upon a free people in order to dominate and control them. There are no Absolutes.

One cannot talk about Natural Law unless one finds rational- ity in the universe. Which is the problem with Natural Law these days. In a world gone mad, sanity appears as insanity. In a world that denies Truth, rationality will be crucified; truth then becomes what each self-contained individual declares it to be.

At this juncture, we need first to assent to the proposition that Transcendentals do, in fact, exist; further discussion then becomes possible. Assuming therefore, that you agree that there are such things as Truth, Justice, Goodness, Right, Beauty, and Love, we can now enter the mind of Cicero, Sophocles, Plato, Aristotle and St. Thomas Aquinas. Disquisitions between them and us (as well as between ourselves) are now possible.

These learned gentlemen, having reflected on the workings of nature and the universe, came to posit the existence of absolute truths, natural laws, and first principles. As such they grounded all further journeys of the mind in that external arena known as Reality, a thing not of our own mental construction, a thing which exists independently of that human arrogance that gives it existence or non-existence only as it chooses. In this Reality, two apples plus two apples equal four apples, whether or not I grant them existence or grant that this fundamental mathematical equation is absolute, eternal, and exists outside of my own declarations of what is real or unreal. It is a natural law.

It is demonstrable, then, that absolutes do exist, in spite of the current dogmas of Academe or prevailing educational theories. Everything is NOT relative; there ARE absolutes, and their reality is available to any rational human mind, not just those who have subjected themselves to the Magisterium of the Church or the teachings of the pope.