A few weeks ago there was quite a bit of controversy created by certain legal minds regarding the Pope’s statement that jurists must do all that is possible to legally protect human life. There was much handwringing about whether the Pope was asking something radical and new of jurists, but there was very little offered in terms of practical steps we jurists could do to adopt this instruction. I humbly offer the following solution: Adopt the Natural Law!
Too many of our fellow soldiers in the culture wars have bought into the idea that adopting the natural law as an interpretive framework for our legal system would be hypocritical in light of our complaints of the so-called Living Constitution theory. Moreover, they fear that once the natural law is expressly adopted by jurists that it will merely become a tool of activism, to be manipulated by the vast number of secular liberals that graduate from our many venerable legal institutions.
To my fellow jurists who make these complaints I respond: The natural law is not our enemy. The natural law must not be feared. The natural law is the basis for our democratic institutions. The fundamental concepts of the natural law are that we are made in the image and likeness of God, that we have an obligation to pursue truth and that as a consequence of these two facts we owe certain obligations to ourselves and others which are understandable to our reason.
These points reflect the same legal principles cited in the Declaration of Independence that were used to justify our right to legal independence from Britain:
“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. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”
In other words, the Founders expressly stated that the legal and interpretative frame work that they instituted this government under was natural law and natural rights. To ignore this fact, is to ignore the very foundation of our country, God. Furthermore, it ignores history and our nation’s laws.
The natural law would not be a weapon of secular liberalism. Can any of my fellow jurists name one serious liberal legal scholar who utilizes the natural law to advance his ideology? Indeed, the recent case of Dr. Doug Kmiec highlights the fact that the adoption of natural law is mutually exclusive to the advancement of liberal ideology. As he has made his now infamous decline into a legal theory which has embraced the legal legitimacy of abortion and the elimination of legal marriage, based solely on a fictitious democratic pluralism, he has distanced himself completely from the natural law.
Can you please point me to a legal philosophy that has a more ancient, better analyzed, better tested history and a more universal origin than the natural law? I would say that the newfangled legal theory of positivism relied upon by many “conservative” jurists is far less tested and provides absolutely no protection against authoritarianism, either in the form of totalitarianism or imposed by the multitude under the form of a false democracy.
Can you show me a legal theory that has found greater favor with the Church and Her saints and scholars?
Can you show me a legal theory of interpretation other than the natural law that appears as a fundamental legal principle in any founding document of the United States?
Without reliance on the natural law as a fundamental principle of legal interpretation and governance, we are left with an unconvincing and hollow call to arms to our fellow Americans, lamely requesting such abstractions as "limited Government," etc. Without a clear moral basis and philosophy rooted in the natural law such statements are perceived to be more selfish and heartless in origin than the liberal desire to expand government to "help" our fellow man.
The left, without any moral authority, due to their self-expressed “above my pay-grade” relativism, uses the language of right and wrong. This language of morality is what the American electorate is hungry for. We will can gain no traction by discussing solely policy with them. We must also use the language of morality and we have the authority to use it because we do rely on the natural law and the belief that there is an objective moral order found in that natural law to which all men must adhere.
It is the adoption of the natural law then that will satisfy the desire of so many of our American jurists, to stay true to America’s laws, her people and her founding principles while at the same time God, His Church and the least of these, the unborn. If we, Catholic and American jurists, adopt the natural law, this will be our strength, that our motto will be that of our country’s, “In God We Trust.”