1. Resolved, that there are certain essential Rights of the British Constitution of government which are founded in the Law of God and Nature, and are common Rights of Mankind.
2. Resolved, that the inhabitants of this Province are unalienably entitled to those essential rights in common with all men: and that no law of society can, consistent with the law of God and nature, divest them of those rights.7
Ever heard of John Locke? He was a philosopher who deserves much of the credit for getting so many Americans to understand these ideas. Indeed, many of the Founding Fathers—especially Jefferson—were strongly influenced by Locke’s writings. Nearly a century before the American Revolution, Locke published his Second Treatise on Government, a book in which he explained what natural law is. Let’s consider one of his arguments a step at a time:
To properly understand political power and trace its origins, we must consider the state that all people are in naturally. That is a state of perfect freedom of acting and disposing of their own possessions and persons as they think fit within the bounds of the law of nature.8
Locke is asking us to imagine a situation in which you and I might interact with one another in an environment where there is no government, just like the island example we discussed earlier. This is our “natural state” of “perfect freedom” because there are no artificial (man-made) restraints on our actions. Instead, we are only bound by laws that are natural—the literal opposite of artificial. Locke continues:
People in this state do not have to ask permission to act or depend on the will of others to arrange matters on their behalf. The natural state is also one of equality in which all power and jurisdiction is reciprocal and no one has more than another.9
This idea surely sounds intoxicating. No permission needed for anything? Finally, freedom! But focus on what Locke is saying in the second half of that statement. Our freedom—our “natural state”—is equal to that of others. We don’t have the power to control others, just as others don’t have any power to control us. There are no kings or presidents in nature. Power is also reciprocal, Locke says, meaning that if you punch somebody, they’re justified in punching you back. If you steal from a neighbor, they’re justified in using the same power against you.
This concept of equality was important to Locke, just as it later was to the American rebels. Recall that Jefferson’s first self-evident truth—the one he listed at the top because it was so important—was that “all men are created equal.” Given its importance, Locke explained it a little more:
It is evident that all human beings—as creatures belonging to the same species and rank and born indiscriminately with all the same natural advantages and faculties—are equal amongst themselves.10
So in a state of nature, we’re all equal; gravity, of course, applies to everybody. The laws that govern our interactions with one another must, therefore, be consistent, without exception. We all, for example, have the right to life. So one way to figure out if a law is natural is whether it applies to everybody equally. Welfare programs that force some people to pay for things to benefit other people don’t qualify, nor does a wartime draft that makes only men of a certain age fight in the military. But a law against murder does qualify—it applies to every single person. Murder is wrong, whether or not a government says so.
Even though Locke explained natural law in a compelling way that influenced America’s founders, he didn’t pioneer the idea. Various philosophers had been discussing these things for centuries—guys like Hugo Grotius of Holland (1583-1645), Thomas Hobbes of England (1588-1679), Francisco Suárez of Spain (1548-1617), and especially Thomas Aquinas of Italy (1225-1274). The concept goes back as far as Cicero (106-43 BC) and Aristotle (384-322 BC). Generally, these people—and many others—taught that certain universal, moral laws exist that are observable in nature, just like gravity.
Hobbes described natural law as “a precept, or general rule, found out by reason.”11 Grotius wrote that it “proceeds from the essential traits implanted in man.”12 Cicero discussed natural, or “true” law in detail:
True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions…
It is a sin to try to alter this law, nor is it allowable to repeal any part of it, and it is impossible to abolish entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times…13
Locke’s more detailed explanation merely summarized what philosophers had long been observing: man-made law is subject to a higher law. It’s no surprise, then, that the framers of the U.S. Constitution used the same format in what’s called the Supremacy Clause, which says that the Constitution overrides any state law that conflicts with it. For example, the Constitution says that states must have a republican form of government. If a bunch of communists hatched a coordinated campaign to move to New Jersey, gain the majority of elected positions in the state legislature, and then vote to govern New Jersey under a Communist dictatorship, would that be valid? Not according to the Constitution. It, as the higher law, would override this communist plot; the attempted takeover would be unconstitutional, and thus illegal.
Natural law works similarly. Because it is the higher law—it came first, before any government’s laws did—anything contrary to it is invalid and void. If Congress passed a law outlawing gravity, it would be of no effect. And if a legislature passed a law saying murder was okay, that would also be invalid; murder is always wrong, even if somebody casts a vote to legalize it. As the famous English judge William Blackstone once wrote, “No human laws are of any validity, if contrary to [natural law]; and such of them as are valid, derive all their authority… from this original.”14 Man-made laws have to be in harmony with natural law to be valid.
And who casts these votes, anyway? We sometimes call them “lawmakers,” which is an absurd title. It reminds me of so-called “rainmakers”—people who believe that their ceremonial rituals can cause rain to fall. These people don’t make rain. Similarly, politicians don’t make law. At best, they can merely articulate a natural law more precisely to apply it to our modern lives, applying existing law to the age in which we live.
For example, natural law states that you cannot steal from another person; this is an observably harmful action against an innocent individual. So a politician could propose a law based on this natural law, which lists specific types of theft and punishments for each. Employees should not embezzle money from their employers; children should not steal from a store; hackers should not leak private information belonging to another person. These would be valid laws, as they are tied to a natural law. Even then, the politician is not so much a “lawmaker” as he is a “law explainer.”
Lysander Spooner, a nineteenth-century political philosopher, emphasized this point further, noting that a politician’s departure from natural law leads to a situation in which their mandates lose authority and, therefore, do not deserve our allegiance:
Lawmakers, as they call themselves, can add nothing to [the supreme law], nor take anything from it. Therefore all their laws, as they call them—that is, all the laws of their own making—have no color of authority or obligation. It is a falsehood to call them laws; for there is nothing in them that either creates men’s duties or rights, or enlightens them as to their duties or rights. There is consequently nothing binding or obligatory about them. And nobody is bound to take the least notice of them, unless it be to trample them under foot, as usurpations.15
Here we’re beginning to see an argument to justify breaking a law if it violates natural law; we’ll dig into this deeper in the next chapter. For now, let’s summarize th
is section. Natural law deals with observable principles found in nature that come before, and thus supersede, the government. To qualify, a law must apply equally to every person—just like gravity. And natural laws don’t change over time; it’s always wrong, for example, to steal something from another person. Finally, a government’s mandate can only be legitimate if it’s based upon a natural law. If a mandate conflicts with natural law, then it’s invalid.
Now that we’ve established what a natural law looks like, we have to explain its opposite—the arbitrary type that isn’t observable, pre-existing, or equally binding. Sadly, as you’ll soon realize, this describes a large portion of the laws that governments enforce today.
POSITIVE LAW
“Humans evolved from primordial chemicals reacting to energy.”
Perhaps you consider this a controversial claim, and you might reject its truthfulness. But many people believe this reflects reality, including teachers who stand in front of students all over the world teaching it as a legitimate and likely theory. Some believe so strongly in this theory of evolution that they claim it is fact. These people are actually assuming that it is fact, even though they are basing their views on theories derived from an incomplete fossil record rather than absolute knowledge. What they are doing is “positing” an argument, as in “I posit that humans evolved from primordial soup.”
The term posit is derived from the Latin positus, as is the related word positive. We sometimes use this word to convey affirmation or approval, as in “Think positive thoughts!” In other cases, the word is used as an assumption, as in “I’m positive I’ve heard that song before.” When describing the opposite of natural law, we use the term positive law in the context of “assumption.” Just like claiming the theory of evolution is fact, positive law is also a dogmatic decree—a collection of mandates where “lawmakers” assume that their theories and ideas are factual and real. Noah Webster’s 1828 dictionary makes this clear—one of the several definitions he offered of the term positive is “settled by arbitrary appointment; opposed to natural.”16
We used the example of gravity to explain how natural law is observable, pre-existing, and equally binding upon everybody. Positive law is the opposite of each of these criterion. If you and some friends create a new card game and establish some rules to govern how participants must play, your neighbor can’t comprehend the rules merely by observing the cards. The rules were made after the game was created, not before. And those rules are only binding on those who play—a woman living in Singapore, for example, is obviously not bound by what’s happening in the game.
Since we’re talking about government—an organization of people in a certain geographic area—a better example would be of you and some friends forming an exclusive club. Your new organization would likely have rules to admit new members and expel members for violating your code of conduct. Like the card game, these club rules would not be observable by outsiders—you’d have to explain them to those who want to join. Your club’s rules don’t pre-date the club itself. And if one of your club’s rules is that everybody should wear striped clothing on Saturdays, you can’t compel your non-member siblings and friends to dress accordingly.
These may be silly examples, but they help illustrate the arbitrariness of positive (arbitrary) law—a set of rules that, by default, oppose natural law. You’ll recall that natural law is tied to natural rights—for example, the right to life, liberty, and the pursuit of happiness. Positive law, on the other hand, involves the creation of “rights” that wouldn’t exist without the government granting them to you. The Declaration of Independence recognizes the natural rights of life and liberty, whereas the 1936 Constitution of the Union of Soviet Socialist Republics (USSR) establishes various positive rights that did not exist until the government created (and enforced) them. Under a list in section 10, titled “Fundamental Rights and Duties of Citizens,” we find the following:
The right to employment
The right to rest and leisure
The right to maintenance (being taken care of) in old age and also in case of sickness or loss of capacity to work
The right to education
These are all important things, of course—but as positive rights they become problematic. To understand why, we first have to understand the relationship between rights and duties. In natural law, your only duty is to not do things to others that violate their rights. For this reason, natural rights are sometimes referred to as “negative rights,” because the action required of other people is negative, or not doing something. Your right to life carries a negative duty on others to not kill you. Your right to liberty means that other people can’t lock you up in their basement. Negative rights carry negative duties—basically, don’t do bad things to other people.
You can see where this is going, right? Just as negative rights lead to negative duties, positive rights create positive duties. And rather than not doing something to others, positive duties mean that you must do certain things for other people. A positive right to “employment,” as was the case in the USSR, means that business owners had to provide jobs to certain people, even if it was against their wishes. A positive right of old people to be cared for means that younger people must be forced to pay for that maintenance. Saying people have the right to education means that everybody has to pay money to hire teachers to make it happen. Positive rights create obligations on people to do certain things—things they wouldn’t have to do under natural law or in the absence of a government making up those laws.
Jack Phillips is the owner of Masterpiece Cakeshop in Lakewood, Colorado. He’s a Christian that strives to live his faith both personally and professionally. For example, he has refused to create cakes that celebrate Halloween or carry profane or anti-family messages. His decision to operate his own business consistent with his religious beliefs became the subject of national controversy when Charles Craig and David Mullins walked into his shop one day in 2012, requesting a cake be made for their wedding reception.
Jack politely declined. “Sorry guys, I don’t make cakes for same-sex weddings,” he told the couple.17 Denied their cake, David and Charles filed a complaint with the state civil rights commission; Colorado law prohibits business owners from denying service to customers based on their sexual orientation. The commission unsurprisingly ruled against the cake maker, and their decision was upheld in court. “As a creative professional and a businessman,” Jack said, “I shouldn’t have to give up my freedom—my religion—when I open a bakery.”18 But the law had created a positive right—for homosexual individuals to receive service from all businesses—and therefore had to impose a duty upon all business owners.
Positive law has been around as long as governments have; no known government has confined itself entirely to natural law. As long as governments have been bossing people around, those in power have been coming up with arguments to try to justify their mandates as legitimate and deserving of our obedience. In modern times, one of positive law’s biggest cheerleaders was John Austin, a British legal theorist whose writings strongly impacted the English government in the nineteenth century. Austin argued that laws are not merely governing principles related to natural rights, but “imperium oriented” dictates from authorized sources. (Imperium should conjure up images of the empire in Star Wars, as that’s what the word means—a government with absolute power.) In other words, whatever those in authority wanted to make happen was suddenly as valid a law as any natural law.
“The existence of law is one thing,” Austin wrote. “Its merit or demerit is another.”19 He tried to argue, basically, that we could disagree with a ruler’s command all we wanted, but since the ruler had issued the command, it becomes automatically authoritative by virtue of the power used to create it. Where natural law requires the chaining of any “lawmaking” to an underlying, pre-existing law that applies to everybody, Austin and those who agree with him believe that th
ere shouldn’t be any chains. Whatever the government says, goes. The people in charge are all the authority that’s needed.
In contrast, natural law’s authority is either God, for those who are religious, or the sovereignty of the individual who possesses natural rights. Positive law’s only claim to authority is the ability to impose that authority by force. Imagine a gangster ordering people around in a neighborhood he “controls.” What does the gangster do to ensure compliance? He doesn’t point to a signed contract. He doesn’t ask nicely. He doesn’t negotiate. No, the gangster would tap his gun and point it at the defiant person as a way to coerce compliance. This is the “authority” of positive law—the authority’s willingness to hurt those who fail to obey their arbitrary commands. Sadly, the gang analogy is not an unfounded one when it comes to today’s governments. It’s no wonder philosopher and author Ayn Rand referred to a government based on positive law as “a mob held together by institutionalized gang-rule.”20
Think for a moment what a government might look like that confined itself to only enforcing natural laws. It would probably be pretty small, right? You’d basically just need a police force to help defend people from bad guys. But positive law leads to governments that legislate on all sorts of things: how long one must attend school to cut another person’s hair, what people are allowed to put in their bodies, who can open a business, what people can do with their property, and on and on. The government would have to be large, not just to debate the many complexities of these “laws”—how and when they apply, and to whom—but also to enforce them.
Most people are unaware of just how big governments grow in a positive law system. You likely know about federal, state, county, and city governments—each of which pass a voluminous number of laws—but there are more. Depending on where you live, you might also be governed by a water conservancy district, mosquito abatement district, recreation authority, cemetery district, or a drainage district. The growth of government is a symptom of positive law, and demonstrates the wisdom of Thomas Jefferson’s observation: “The natural progress of things is for liberty to yield, and government to gain ground.”21
Lessons from a Lemonade Stand Page 2
