A typical federal courtroom scene has the trappings of ages gone by. The judge wears a black robe, everyone stands when he enters, the bailiff utters the “Oyez” sayings, and much of the language is the same as what might have been said two centuries ago in an American or English courtroom.
For all of the traditions that lie on the surface, however, what happens in a federal courtroom is so far removed from the legal traditions upon which the U.S. Constitution was based that it might as well be taking place in another country — or even another planet. The philosophical and intellectual bases of what supposedly is the “law of the land” have changed greatly in the last century, and we have become poorer for it.
Modern U.S. law, and especially federal criminal law, is more reflective of the legal structure of the USSR than the country that was founded after the American Revolution. As will be demonstrated later, this is not a silly or over-the-top claim; indeed, the similarities are so striking that one might wonder whether a boatload of Soviet prosecutors came to the United States to advise their American counterparts.
This is not something discussed in the courts or even the law schools. One does not read about the destruction of the law in the editorial pages of leading newspapers, nor do political candidates discuss it. This year in decision after decision, the federal courts at all levels will sign off on things that are so inimical to the legal inheritance originally received from Great Britain that it is not an exaggeration to say that the federal legal system now resembles something close to an ancient despotism or a star chamber rather than what its adherents claim it to be.
I easily could fill these pages with case after case in which people in federal court were convicted unjustly of things that historically never would have been regarded as crimes. I easily could fill these pages with example after example of prosecutorial abuse, of lies told at the highest levels, and of how those charged with enforcing the laws are more likely to abuse them than are the people being accused.
While those examples cry out for exposure, what makes them possible is the change in the philosophy of law, a change that had its birth in the writings of Jeremy Bentham and exploded in full force in the Progressive Movement in the United States at the turn of the 20th century. It was not just a change in what legislatures create and then send to the executive branch for signature and enforcement, although the change in philosophy also has changed what legislatures create.
No, the change is much deeper than just what laws declare on the surface. It is a change in what people in power regard as law itself, and what should undergird the law. Nor am I bringing up esoteric arguments. The testament to the destruction of law can be seen in the graves of millions of people in Asia and Europe (including the mass graves) whose lives were ended because those in power had nothing to stop them — not even intellectual arguments — and in the more than two million people who populate U.S. state and federal prisons today. In other words, I am writing about matters of life and death; I am not just composing a set of arguments that are the topic of conversation in an obscure salon.
Furthermore, the very economic meltdown that threatens to become a long worldwide depression has its roots in the loss of the law; and to make matters worse, those in power seem to hold to the fanatical and false belief that they can legislate prosperity, as though one can create a prosperous economy through coercion. There are real consequences to the legal revolution we have experienced, and if unchecked, they can throw us back into a state of pharaonic tyranny.
At the heart of the matter, we are looking at a question that seems simple on the surface: Should we be governed by natural law, or is law whatever those in power say it is? The United States and its Constitution were based on the former; today, we are governed by the latter, and that has made all the difference.
In this article, I first will explain natural law, its role in the founding of this country, and why it is important to our very survival as free people. I then will explain the nature of the onslaught against natural law and why the “law” as we see it today not only is a perversion of the very meaning of law, but also why it is resulting in the destruction of society.
I am not naive. Most people have no inkling of what we mean by natural law or why it is important to keeping our liberties. Most people are hostile to any attempt to point out why the present legal system is a sham and why we must turn back to the law of our forefathers.
Yet it is imperative that we keep alive not only our demands for our rights, but also the very concept of law that undergirds those rights. It truly is a matter of life and death.
The meaning of natural law
During the September 1991 confirmation hearings for Justice Clarence Thomas, Senate Judiciary Committee Chairman Joe Biden angrily denounced the very idea of “natural law,” and complained that some adherents to the concept wanted to do away with laws that Biden liked. As he went on, it became apparent that Thomas Jefferson as well as most of the people who sat on the nation’s original Supreme Court would not have been able to pass muster with the Senate Judiciary Committee under Biden’s direction.
Indeed, in his blustering statements against natural law, Biden proceeded to put forth the proverbial “straw man.” According to Kenneth Woodward of Newsweek,
For a time, the hearing on Clarence Thomas last week promised to provide a mini-course on the elusive concept of “natural law.” But it never happened. In his opening statement, Sen. Joseph Biden offered three interpretations of natural-law doctrine, none of which was accurate, and demanded to know which version Thomas subscribed to….
Indeed, Woodward’s article demonstrated an understanding of natural law that escapes most journalists and certainly escaped writers at the New York Times, which mangled the concept in both its news and editorial pages. That is hardly surprising, since most contemporary journalists and “scholaris” view law as a system of rules that governing elites should impose upon others. In fact, in his article, Woodward wrote a cogent explanation of what natural law means in the historical perspective:
In essence, natural law is a broad philosophical tradition which holds that there are certain principles of right and wrong which human beings, through the diligent use of reason, can discover and apply in the creation of a just society. Some natural-law exponents are religious thinkers who ground their philosophy in a divine creator; others are secular philosophers who regard certain moral principles and rights as beyond doubt or compromise. Applied to jurisprudence, natural-law precepts have acted as a check on those in power — medieval popes no less than democratic majorities. Historically, campaigns of civil disobedience against unjust but validly enacted laws have been mounted on the supposition that universal moral principles do exist.
The tradition of natural law, seen from this viewpoint, is quite different from what passes for law today, and we are losing that tradition to our own peril. At the most basic level, adherents to natural-law philosophy believe in an ordered universe and immutable laws of human action. Those who understand those concepts also understand that law is not to be an arbitrary set of rules designed to coerce people into engaging in conduct approved by the authorities. Instead, one assumes that logic exists according to the standards of an ordered universe, and that natural law falls into the category of what is logical, given the state of the world.
People certainly believe in the law of gravity, and anyone who wishes to disagree is free to leap from the Golden Gate Bridge without a parachute, but everyone knows what the results will be. If one is a scientist, one believes in the first and second laws of thermodynamics, just as a statistician believes in the laws of probability.
Likewise, I do not know any economists who declare that the law of demand, the law of supply, and the law of diminishing marginal returns are figments of the imagination. As people with some learning, we understand that these laws exist, and they are part of nature and part of humanity.
For example, if Congress were to pass a law declaring the repeal of the law of gravity, people would respond predictably. Those who voted for that law would be laughed out of office (at least I think that is what would happen) and the Congress would be a bigger laughingstock than it already has become.
Mises and natural law
Ludwig von Mises, writing on the laws of economics, approached the discipline from a view that there were immutable laws of human action, and that they were constant across time. Unlike those in the various Historical schools (such as Marxists and Institutionalists) who have held that economic “laws” change with different periods of time, Mises held that those laws were unchangeable. He was not a natural-law theorist, and did not believe that economic laws necessarily equated to natural law. Instead, he believed that economics was a “value-free” science, and it could be value-free only because economic behavior could be explained by consistent theories based on the laws of human action. Nonetheless, he was sympathetic to the views that natural law implied that individuals possessed certain rights. He wrote in his book Human Action,
[The] liberal and democratic movement of the eighteenth and nineteenth centuries drew a great part of its strength from the doctrine of natural law and the innate imprescriptible rights of the individual. These ideas, first developed by ancient philosophy and Jewish theology, permeated Christian thinking. Some anti-Catholic sects made them the focal point of their political programs. A long line of eminent philosophers substantiated them. They became popular and were the most powerful moving force in the prodemo-cratic evolution….
According to Mises, one did not have to believe in a divine being to believe in natural law. What was needed, instead, was simply an understanding that the universe operated in an orderly fashion, and that one could explain human behavior through time-honored theories and postulates. One did not need to know why it was such, just that it was.
The concept of rights that emanated from natural law was derived in the same fashion, and one of Mises’s students, Murray N. Rothbard, developed much of his own libertarian thinking from the natural-rights perspective. After observing that men act in a purposeful way, Rothbard took the understanding of praxeology, or the study of human action, and developed his economic theories from that simple and nontrivial point: human beings act, and they act in a purposeful manner.
The jump from the observation of an ordered universe and purposeful human action to one of natural rights is important to understand, as Rothbard believed that one could not engage in a serious discussion of economics without understanding natural law and natural rights. Moreover, it is important to remember that he and others who have championed natural rights have held that rights exist; they are not granted by governments.
That belief certainly was the mainstay of the beliefs that undergirded the Declaration of Independence; as Thomas Jefferson wrote,
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 more common triad at the time was “Life, Liberty, and Property”] — That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it….
It is important to note that not all natural-law adherents also connected the dots and subscribed to a theory of natural rights. As Rothbard points out,
[The] great failing of natural-law theory — from Plato and Aristotle to the Thomists and down to Leo Strauss and his followers in the present day — is to have been profoundly statist rather than individualist. This “classical” natural-law theory placed the locus of the good and of virtuous action in the State, with individuals strictly subordinated to State action. Thus, from Aristotle’s correct dictum that man is a “social animal,” that his nature is best fitted for social cooperation, the classicists leaped illegitimately to a virtual identification of “society” and “the State,” and thence to the State as the major locus of virtuous action.
Nonetheless, natural-law theorists commonly hold that men are both purposeful and capable of engaging in reasoned behavior, which makes them stand out in the animal kingdom. Furthermore, the actions of men must be in accordance with the larger laws of nature, and while human ingenuity can be a wonder to behold (as well as something quite terrible), nonetheless men cannot violate natural laws in carrying out their activities. In other words, men are bound like all other creatures by natural law.