Seeking Justice: The natural law.
The law, then, is solely the organization of individual rights that existed before law. Law is justice. — Frédéric Bastiat
The human condition is difficult enough without the yoke of government’s tyranny, and man’s aspirations too lofty to be hindered by unjust laws of his own making.
If we take even a cursory look at the day behind or the one before us, it becomes evident that in most of our actions, we have a permanent companion: the State. Today, all human action, from how we work and establish our commercial relationships to how we move, eat and interact in society, is being minutely interfered with and dictated by the state through its monopoly on the force of law. This has been a constant tendency for the better part of the last 200 years.
The essential and sufficient role of a just law is to facilitate the protection of life, liberty, and property. These fundamental rights are not the invention of governments or legislative assemblies. They predate tribes, kingdoms, empires, democracies, or republics; in short, any historical intentions humans may have had to regulate their communities and nations. Laws devised by humans can only recognize the preexistence of these rights and their moral ascendance. The claim that man has any role in the conception of these rights is not only a blatant falsehood but also the seed of the destruction of any society.
Sadly, this seed, sown by the figures of the Enlightenment and their followers, has spread to the hearts and souls of individuals and communities. Thus, fear and envy became cardinal virtues, and the notions of rights and law have been distorted to reflect this change in morals. Through excessive centralization and institutional consolidation, politicians created an environment hostile to fundamental rights in which man is being degraded in the name of the law. Those who declared themselves representatives of the people understood that they could use the law to pursue their interests, thus perverting the law’s essential function. In their hands, the law has been altered and transformed from a preventative instrument, which imposes nothing more than the obligation to do no harm, to an imperative used to dictate and control all aspects of our lives.
Under the pretense of the “public good,” governments tread systematically on our individualities and inalienable rights through ever-increasing taxes, arbitrary fines, sanctions, and restrictions.
Today, the dismal state of the proper rule of law is evident in the repeated abuses committed by governments worldwide in the name of public health during the COVID-19 pandemic. These last two years, politicians and their subordinates defied any moral and constitutional considerations by attacking and curbing all our fundamental rights. Governments of supposedly liberal-democratic states made it a virtue to violate our most intimate rights and treat us with brutality and utter contempt. This is a global phenomenon, which makes the matter even more grave.
Contemporary politicians have perverted human law, radically changing its scope. Once a mechanism meant to protect our rights, the law has become a vicious tool of plunder and oppression. Thus, legislators ceased to be the instrument of the law and became its manipulators establishing as FRÉDÉRIC BASTIAT very keenly observed, a new artificial order in which they and the rest of us are two different species: one meant to rule and the other to obey.
Politicians claim a position of superiority over the rest of mankind, lording over us like hereditary absolutists under the pretext of democratic legitimacy. These new unanointed kings even have courtiers who would do anything to enter their graces. Scientists who depend on grants, journalists addicted to fame, teachers, bureaucrats, or individuals who cannot survive anywhere else but in a despot’s shadow.
As tyranny in various forms becomes a global norm again, we must rekindle the immemorial conversation about the law and the limits we must impose on those seeking to wield it in our name. Fortunately, the conversation has already started among people alarmed by government overreach. If until recently, discussions on the matter of law were rare and far between, we can now overhear them in any pub and café. This is a sign that people are not just talking about abstract issues for intellectual delight but about real, immediate, and burning problems.
In order to have a structured and beneficial discussion, we must ask ourselves: what do we mean by rights, liberties, equality, and the rule of law? While I don’t claim to provide an exhaustive exploration of this subject, I intend to give some answers to these multiple questions as I understand them now, after years of seeing them in the corner of my eye but never clearly enough. To this end, I will endeavor to show that:
1. The words “rule of law” should be understood as the primacy of natural law, itself inseparable from human nature, over any laws written by men.
2. In the absence of natural law, equality is impossible.
3. Laws, regulations, ordinances, decrees, acts, treaties, etc., that work against natural law lack moral imperative.
4. Any member of any of the three branches of government who ignores or defies the rule of law is unfit to rule in any capacity. Consequently, people have no moral obligation to acknowledge them or their acts.
Fortunately for me and my readers, I won’t undertake this task alone, but in the select company and with the support of two great thinkers who exposed and analyzed these issues way better and before me: Saint Thomas Aquinas and Claude-Frédéric Bastiat.
What is the “rule of law”?
The rule of law is often mentioned as something to be desired and attained and, in countries formerly part of the Communist block, a motive for protests and political slogans. But we rarely take the time to examine this question and its implications. By and large, people believe that the rule of law means that bad people should be appropriately prosecuted and sent to jail and that whatever parliaments enact is to be obeyed, not debated. As with most issues, the answer is more complex and requires a considerable degree of mental and spiritual curiosity and flexibility.
The notion of “the rule of law” and how it differs from the “rule by law” is somewhat easier to grasp and accept if approached from a Christian perspective. Still, the basic explanation should be logically acceptable to people of other religions, atheists, or agnostics.
If we look at the two expressions, we find a crucial distinction resulting from the use of the two prepositions, “of”, and “by.” According to the ”Merriam-Webster Dictionary, the former is “a function word to indicate origin or derivation,” while the latter denotes that something is done “through the agency” of someone or something.
So the “rule of law” means that the law itself is ruling, not that people use the law to rule as they please. The origin of the ruling law must therefore be exterior to man’s will and reason. In other words, we are not the authors of the law. We are however capable of understanding and applying its exigencies to some extent.
On the contrary, if a law originates from man’s will and reason, it means that it has been written by a human, which makes it “rule by law”, more to the point, the rule of the law’s author written in accordance with their values and scopes.
In conclusion, when we say “the rule of law,” we mean a universal law, not originated by humans, to which we are all equal subjects. This is the natural law that, whether we accept it or not, rules supreme over any human law.
Suppose we have among us some skeptics who will not accept or deem possible the existence of a law exterior and superior to the human mind and believe that the entire legislative process is, without a doubt, of human origin. If more proof is needed to demonstrate the difference of origin and moral primacy of natural law, we should stop and examine the concept of equality.
Equality is, just like the rule of law, a concept we often discuss and disagree about. Millions of people have been killed by communist regimes in the name of equality, and still, people are not more equal today than they were a hundred years ago, maybe even less so. Since I wish to keep this article to a reasonable length, I shall limit myself to discussing what I believe to be the only proper form of equality possible within human communities: equality before the law. This very expression contains the key to our problem. Logically, we, the entirety of humanity, could only be equal in relation to a power superior to all of us, regardless of what that power may be, or how we may choose to define it. If we affirm that all law is of human origin, we run the risk of the authors of the law assuming a false position of superiority over the rest of the population. This way, by writing the rules of the game, legislators become de facto and de jure the superiors of their peers. History is rife with examples of twisted, abusive, and discretionary laws. One hundred seventy years ago, Bastiat observed the issue of inequality between the governing and the governed:
The modern politicians, particularly those of the Socialist school, found their different theories upon one common hypothesis, and surely a stranger, a more presumptuous notion, could never have entered a human brain. They divide mankind into two parts. Men in general, except one, form the first; the politician himself forms the second, which is by far the most important. — Frédéric Bastiat
In conclusion, should we all agree that equality is possible and desirable, we should also agree that its source must reside outside human thoughts, intentions, and actions and that none of us may try to substitute himself for that source in order to oppress his peers.
What is the “natural law”?
Schools taught us from a young age that strict physical laws impose limits on inanimate objects, animals, and humans. What schools, especially of the public variety, rarely or never told us is that there is another kind of law, the natural law which governs human morality and defines universal values.
Education policies in schools and universities have systematically purged curricula of thousands of years of hard-won human experience. This experience, or, in other words, tradition, enabled us to understand the concept of natural law and craft the legal system which forms the base of any freedom-loving society. Therefore this “omission” of the public education system is not accidental. The state needs people that have a basic education, can work, and pay taxes. What the state doesn’t need is people possessing free will and moral clarity who may question its authority and ask themselves what they are actually paying taxes for.
The natural law dates from the creation of the rational creature. It does not vary according to time, but remains unchangeable. — Thomas Aquinas
God has implanted in mankind also all that is necessary to enable it to accomplish its destinies. There is a providential social physiology, as well as a providential human physiology. The social organs are constituted so as to enable them to develop harmoniously in the grand air of liberty.” — Frédéric Bastiat
Politicians neither form nor maintain the moral fiber of society. On the contrary, historical evidence shows us that, in general, wherever politicians congregate, corruption soon follows. We all know that killing, enslaving, and stealing are inherently evil; we need no parliament to teach us that. The notions of good and evil, the values, rights, and obligations, are pre-programmed in our being by the natural law. Natural law is the immutable law of human morality. Just like the laws of physics, natural law, with all the values that it defines and precepts it imposes, predates human will and reason. Just as states have a supreme law in their constitutions, the human conscience is guided by the Providential Constitution.
Legitimate and illegitimate government.
A s with any constitution, natural law doesn’t regulate every minutia of our lives but creates a space governed by a few fundamental elements from which all the details necessary for a healthy society can be derived and implemented.
This doesn’t mean that humans don’t have the right to create and execute laws, but that the legitimacy of legislative, executive, and judicial acts is contingent on their total subordination to the natural law. In the absence of natural law, we would lack any objective standards to help guide the legislative process and, therefore, be at the mercy of any individual or group of individuals that may happen to be in power at any given moment.
Just as anyone in possession of their mental faculties understands that the laws of physics are discovered and not invented, any good faith legislator understands that he’s not called upon to modify the natural law with novel rights and obligations but to prudently legislate in its name for the protection of our fundamental rights.
To give an example related to a recent EU regulation that imposes strict rules on slaughtering animals for consumption, it is legitimate to forbid someone to steal a pig and punish them if they do so, but it’s utterly immoral to tell them how many pigs they’re allowed to have, to whom to sell them and under what conditions.
Generally speaking, whenever we hear of someone breaking the law, we automatically believe that that individual was in error or is indeed a bad person. But more often than not, people don’t attack fundamental rights. Whether by will or necessity, knowingly or out of ignorance, they fail to obey unjust, invasive laws and regulations regarding issues that should be outside the purview of the legislative or executive powers. In other words, often, it’s not that the person is bad but that the law is unjust. Since natural law is pre-programmed in our being, we can recognize an unjust law, consciously or instinctively. And if authorities mistreat or ignore us in the name of their own laws, we will seek justice one way or the other and be morally justified in doing so.
Consequently, 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. — Thomas Aquinas
Legislative excess is an old shortcoming of human governance, but the last two hundred years have seen a disturbing increase in the frequency and intensity of the abuse of power. As they always did, claiming to work for “the common good,” politicians, almost without exception, assumed virtually unlimited power to regulate our lives. This is more than evident in countries like Canada, Austria, and Australia, where, under the rule of the absurd, the rights of man are trampled on in the name of human rights.
The events of the last two years are just the tip of the abuse of power iceberg that finally penetrated above the line most people deemed acceptable. This is the result of a century-long process by which politicians, and those feeding on the scraps falling off their tables, have been pushing for centuries the limits of what we deemed acceptable, gaining an ungodly amount of power over all of us. Issues like excessive taxation, which any citizen would have considered tyrannical two hundred years ago, are accepted today as the benign norm.
We can’t allow ourselves to further tolerate the politicians’ abuses on one hand and our apathy in the face of these abuses on the other. We can’t look with indifference at our pockets being emptied and our fundamental rights being taken away. During these last two to three centuries, the discussion focused all too often on what we owe the state and rarely on what the state owes us, namely, liberty.
Today, probably more so than in our entire history, we must remember and understand that we are primarily guided by the natural law to which the laws of our peers always come second.
Should we wish to preserve our spiritual and moral integrity, our liberty, and prosperity we should endeavor to have a continuous conversation about our rights and the limits which must be imposed on politicians.
…Further, human laws often bring loss of character and injury on man, according to Isa. 10:1 et seqq.: “Woe to them that make wicked laws, and when they write, write injustice; to oppress the poor in judgment, and do violence to the cause of the humble of My people.” But it is lawful for anyone to avoid oppression and violence. Therefore human laws do not bind man in conscience.
…The tranquility of the state is not an end in and of itself but a means to allow people the freedom and peace of mind necessary to their salvation. Every one man is or should be concerned with dedicating his or her life to God and salvation through hard work, fighting inner unhealthy desire and sin. In this they should not be hindered but helped by human law. Therefore human law is only good insofar as it creates an environment favorable for people trying to work towards their salvation. Thus excessive legislation or otherwise intervention into the lives of persons is bad. — Thomas Aquinas
