"ANNIE" LEVIN & NATURAL LAW

Last week, I heard Foamer Levin state that "conservative principles are everlasting" and they are based on "natural law." I don't have a transcript so I can't get into a detailed analysis of what he meant but I think he means that conservative principles, whatever they are, derive from God, specifically the Christian God.

I recalled looking into natural law in the past and I remember reading somewhere that Clarence Thomas is the most powerful believer in natural law, so it's a small step to conclude that natural law is yet another bit of wingnuttery. A small step, but a mistaken one. What the wingnuts mean by natural law is only one facet of the concept, which goes back to Aristotle:

"Aristotle (384–322 BC) held that what was “just by nature” was not always the same as what was “just by law,” that there was a natural justice valid everywhere with the same force and “not existing by people's thinking this or that,” and that appeal could be made to it from positive law."¹

Here, "positive law" means what people and societies actually practiced. The rise of Christianity led to a slightly different conception of natural law and the first hint we have is from St. Paul²:

Romans 2:
14 (Indeed, when Gentiles, who do not have the law, do by nature things required by the law, they are a law for themselves, even though they do not have the law, 15 since they show that the requirements of the law are written on their hearts, their consciences also bearing witness, and their thoughts now accusing, now even defending them.)

The step taken here moves natural law into theology and away from Aristotle's roughly biological notion. This would be developed further by St. Augustine and, most notably, St. Thomas Aquinas:

"The fundamental thesis affirmed here by Aquinas is that the natural law is a participation in the eternal law (ST IaIIae 91, 2). The eternal law, for Aquinas, is that rational plan by which all creation is ordered (ST IaIIae 91, 1); the natural law is the way that the human being “participates” in the eternal law (ST IaIIae 91, 2). While nonrational beings have a share in the eternal law only by being determined by it -- their action nonfreely results from their determinate natures, natures whose existence results from God's will in accordance with God's eternal plan -- rational beings like us are able to grasp our share in the eternal law and freely act on it (ST IaIIae 91, 2). It is this feature of the natural law that justifies, on Aquinas's view, our calling the natural law ‘law.’ For law, as Aquinas defines it (ST IaIIae 90, 4), is a rule of action put into place by one who has care of the community; and as God has care of the entire universe, God's choosing to bring into existence beings who can act freely and in accordance with principles of reason is enough to justify our thinking of those principles of reason as law."

Returning to Justice Thomas, we have a Claremont wingnut writing that

"Thomas is one of the few jurists today, conservative or otherwise, who understand and defend the principle that our rights come not from government but from a "Creator" and "the laws of nature and of nature's God," as our Declaration of Independence says, and that the purpose and power of government should therefore be limited to protecting our natural, God-given rights."

Another wingnut at the Ashbrook Center³ writes of Thomas:

"He represents a vital but almost forgotten branch of original intent jurisprudence -- the "natural law" approach. ... In his view, "the ’original intention’ of the Constitution" is to fulfill "the ideals of the Declaration of Independence." ...According to the Declaration, America’s basic moral and political principles are found in "the laws of Nature and of Nature’s God."

So, Thomas is a hero to the wingnuts because, like Scalia, he supports the view that our laws derive from the Christian God. We also know that the religious right is a key part of the GOP base, so when wingnuts talk about natural law, they are ingratiating themselves with the fundies.

Liberals and others can provide analyses of natural law that do not rely upon a "sky god," and this modern flavor of natural law comes to us from The Enlightenment:

In an epoch-making appeal, Hugo Grotius (1583–1645) claimed that nations were subject to natural law. Whereas his fellow Calvinist Johannes Althusius (1557–1638) had proceeded from theological doctrines of predestination to elaborate his theory of a universally binding law, Grotius insisted on the validity of the natural law “even if we were to suppose…that God does not exist or is not concerned with human affairs.” A few years later Thomas Hobbes (1588–1679), starting from the assumption of a savage “state of nature” in which each man was at war with every other—rather than from the “state of innocence” in which man had lived in the biblical Garden of Eden—defined the right of nature (jus naturale) to be “the liberty each man hath to use his own power for the preservation of his own nature, that is to say, of life,” and a law of nature (lex naturalis) as “a precept of general rule found out by reason, by which a man is forbidden to do that which is destructive of his life.” He then enumerated the elementary rules on which peace and society could be established. Thus, Grotius and Hobbes stand together at the head of that “school of natural law” that, in accordance with the tendencies of the Enlightenment, tried to construct a whole edifice of law by rational deduction from a hypothetical “state of nature” and a “social contract” of consent between rulers and subjects. John Locke (1632–1704) departed from Hobbesian pessimism to the extent of describing the state of nature as a state of society, with free and equal men already observing the natural law. In France Charles-Louis de Secondat Montesquieu (1689–1755) argued that natural laws were presocial and superior to those of religion and the state, and Jean-Jacques Rousseau (1712–78) postulated a savage who was virtuous in isolation and actuated by two principles “prior to reason”: self-preservation and compassion (innate repugnance to the sufferings of others).⁴

¹ natural law. (2007). In Encyclopædia Britannica. Retrieved March 4, 2007, from Encyclopædia Britannica Online: http://search.eb.com/eb/article-9055045

² St. Paul referenced in the preceding Britannica article
³ Ashbrook is a wingnut hive I hadn't come across before. In case there is some doubt that it is a hive, here's a snippet from the bio of one of its authors: "She interned this summer for the Heritage Foundation in Washington, D.C."

⁴ natural law. op. cit.