The Roman Lawyers Against the Washington Politicians
I’ve mentioned the concept of natural law many times previously; most notably: natural law as the basis of the civil rights movement led by the Rev. Dr. Martin Luther King, Jr.; Rand Paul’s apparent ignorance of natural law; and Joe Biden’s contempt for natural law regarding the threat it poses to Roe v. Wade.
America has gotten away from its natural law foundations, which had been the foundation of western civilization and jurisprudence for well over 2,000 years.
America’s natural law foundations are most evident in its Declaration of Independence:
“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.”
Legal theorists in America today reject natural law, as do the Washington politicians; preferring to assert the authority of positive law alone. But positive law, which is simply the legal decisions of a legislature or court, must, according to natural law theory, live up to natural law. Positive law cannot function properly in isolation from the context of natural law.
As Dr. King pointed out, many years ago, quoting St. Augustine: “an unjust law is no law at all.” In short, a positive law that violates the natural law and the moral laws of the universe is a “law” that is null and void. Positive law—the laws passed by legislatures and decided by court decisions—must uphold natural law in order to be valid.
America, especially Washington D. C., intentionally resembles—politically, governmentally, judicially, and even architecturally—the ancient Roman Empire, because Roman political theory, which was based upon natural law, was deemed the best political model upon which to base the young nation of the New World.
“[N]one of the [Roman] lawyers doubted that there is a higher law than the enactments of any particular state. Like Cicero, they conceived of the law as ultimately rational, universal, unchangeable, and divine, at least in respect to the main principles of right and justice. The Roman Law, like the English common law, was only in small part a product of legislation. Hence the presumption was never made that law expresses nothing but the will of a competent legislative body, which is an idea of quite recent origin. It was assumed that ‘nature’ sets certain norms which the positive law must live up to as best it can and that, as Cicero had believed, an ‘unlawful’ statute simply is not law. Throughout the whole of the Middle Ages and well down into modern times the existence and the validity of such a higher law were taken for granted.” (George H. Sabine: A History of Political Theory, pp. 169-170)
Law is not—or should not be–simply the bare expression of the will of any legislative or judicial body.
There are two—and only two—legal and philosophical theories available today: the will to power (positive law alone) and the universally accepted moral law (positive law that does its best to live up to the natural law).
As Dr. King said, “A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law.”
The Roman conception of natural law paralleled the rise of Christianity but it was not dependent upon it. And the American conception of natural law entails neither the acceptance nor the endorsement of Christianity.
“It should be noted that these [natural law-based] reforms in the Roman Law, though they were completed after the beginning of the Christian era, were not due to Christianity.” (ibid, p. 171)
In these postmodern times it might seem unfathomable, intellectually, to argue for America’s return to its natural law foundations. But the only alternative we have to natural law is, as I said above: the will to power. The will to power is America’s current legal and philosophical foundation, which is why America’s legal and political system is currently broken.
There’s an old and true saying: “If it ain’t broke, don’t fix it.” Likewise, it stands to reason that “If it is broke, then fix it.”
America is broken because it has abandoned its natural law foundation.
Dr. King’s civil rights movement would be rejected today on the grounds that he had no right to assert his personal belief in natural law as an eternal, inviolable, and transcendent standard to which all positive legislation must do its best to live up to and to which all Americans must be held. Dr. King would be accused of asserting his personal will and interpretation over against the wills and interpretation of other Americans who disagreed with him.
His movement, today, would degenerate into a battle of wills and a battle of powers.
But the will to power is a dead end street.
Although it’s often said that “we can’t turn back the clock” we can, if we’re trying to get somewhere—like toward a more just society—get America back on the right track if we’ve gotten ourselves on a wrong track.
The will to power is a wrong track for America to be on. And the will to power is nothing new either. It’s not some new, postmodern philosophical development; it’s simply the same old personal, Sophistic interpretation of justice that Socrates—and the Roman lawyers—rejected centuries ago.
Although the will to power might be a valid, even if wrong, philosophical position to take, it simply does not work in the day to day dealings of peoples who are living in a society that seeks to promote the common good of all. The will to power is, in fact, contrary to social harmony.
Is it any wonder then that America is adrift today? By casting off the legal anchor of natural law America has crashed upon the shoals of the will to power; and American is nigh unto being totally destroyed if we fail to return our great nation to the natural law foundation upon which it was built.