Law & Liberty (The case for Natural Law)

by Daryl Dominic Tan



As both a student of law and an adherent of Libertarianism, one of the questions I’m frequently posed with is “As a Libertarian, why do you study law if you do not believe in it?” This represents a very impoverished understanding of both Libertarianism and Law. Libertarians are conventionally categorized into two camps, the Minarchists - who believe that there are some legitimate functions of government, albeit as limited and minimal as possible (an example of a Minarchist would be F.A. Hayek),and the Anarcho-Capitalists - who believe that any form of government whatsoever will inevitably lead to bigger government and as such, governmental institutions and functions should be privately provided. While I sympathize and agree most of the time with many Anarcho-Capitalist thinkers such as Hans-Hermann Hoppe and Murray Rothbard, I often find myself gravitating towards the Minarchist camp, so to immediately assume that all libertarians oppose any form of government whatsoever is a false notion.

Secondly, many people view laws as existing solely for the purposes of being repressive and restrictive. Legal philosopher, John Austin, for one, believed that laws are analogous to commands. Austin viewed laws as coercive, and that people simply obey laws out of fear. While this is partially true, it is not entirely so. What Austin’s account fails to address is that not all laws force people to do certain things. As Denise Meyerson wrote in ‘Understanding Jurisprudence’, “There are laws which empower us to make a will, or to enter into a contract or marriage. And there are laws which confer power on courts to hear certain matters and on legislatures to make laws. Failure to observe the relevant requirements laid down by these laws leads to legal invalidity, not a threatened harm”. [1]

While there are indeed laws that restrain certain actions of the ordinary citizen, there are also laws that exist to restrain the government from doing certain things. The effect of these laws is to prevent the government from growing too large. These are known as Constitutional laws and are as significant as any other laws as they form the basis for the legitimacy of all government actions. A prime example of law that restricts the government - or rather, the executive branch of the government - from doing as it pleases, is the Constitution of the United States of America. The Constitution dictates what a government can and cannot do, though we know for a fact that today, the United States government pays no attention to the Constitution whatsoever. For example, the United States government blatantly violates the Fourth Amendment – the part of the Bill of Rights which prohibits unreasonable searches, seizures, and recognizes Americans' natural right of privacy, by illegally wiretapping and conducting surveillance on its own citizens without due process and warrants, all under the pretext of upholding national security.[2]

The U.S. government has also violated the First Amendment of the Constitution by allowing one of its laws passed – The Patient Protection and Affordable Care Act, otherwise known as ObamaCare – to impede the free exercise of religion, in the form of Notre Dame University, a recognized Roman Catholic university being forced to accept a mandate that religious employers must offer contraception as part of their health care coverage, in clear violation of Catholic principles that are supposed to be protected under the First Amendment clause.[3]

Other forms of unconstitutional acts range from the more severe drone strikes that kill innocents in Pakistan, the extrajudicial killing of Anwar Al-Awlaki and his 16 year old son Abdulrahman Al-Awlaki,[4] to violating due process rights enshrined in the Fifth Amendment clause. The list goes on and on, and till today, no one has been held accountable for these constitutional violations. Despite this, many still view the Constitution as a legitimate source for fighting for the principles of Liberty. It is no doubt that if the Founders of the United States were alive today – they would be unabashed stalwart proponents of Libertarianism – itself an evolutionary form of Classical Liberalism – the philosophy that the Founders subscribed to in the 18th Century.

The problem we face here is that if a written Constitution or a written law is the only legitimate source for fighting for liberty, that a law itself then is only valid if it’s written by men - what happens then to other nations that have no such Constitutions protecting natural rights? Is it then hopeless to fight for natural rights and liberty in such countries since these principles are not enshrined or codified in any form of document whatsoever? If one believes this is so, then he or she subscribes to a school of thought in legal philosophy known as Legal Positivism – the philosophy that laws need not comport with morality to be considered valid, in other words - “laws that are purely “posited” by human beings and governments and are not constrained by principles such as human rights, fairness and justice”[5]. Such a view has caused some of the worst atrocities known to mankind to occur LEGALLY in our lifetime, for example, the laws of Nazi Germany that persecuted the Jews, Gypsies, Gays, and whoever else the Nazi Party thought were inferior to the Aryan stock.

It is no surprise that the Nazi Party came into power legally and constitutionally - being democratically elected, and that the laws promulgated by Hitler’s regime were just as "legal". Does this then make a law valid? For we must ask - what is the purpose of law? If the purpose of law is to uphold justice, to protect rights, or to inculcate morality amongst its citizens, then Nazi Germany’s laws that were passed "legally", or as I'd rather term it - procedurally, are not legal in the sense that it failed to meet the criteria of being good law. This inconsistency thus invalidates the very premise of Positivism, itself a particularly popular school of thought among students of Jurisprudence today.

However, if we believe that these written laws are constrained by some form of higher power – we believe in what is known as the Natural Law. Adherents of Natural Law such as myself believe that what gives a law its validity is if it conforms with the universal principles of fairness, morality and justice. As two important proponents of the Natural Law philosophy, St. Augustine, and St. Thomas Aquinas surmised – “An unjust law is no law at all”.[6] In this sense, the laws of Nazi Germany are invalid they violated the basic precepts of justice and morality. An important component of Natural Law is the concept of rights – natural rights, rights that are inalienable and absolutely sacrosanct. These rights include the right to life, liberty and the pursuit of happiness. Whilst many philosophers believe these rights are god-given rights, it is undeniable that these rights can also appeal to the secular crowd. Religion aside, we are entitled to these rights by simple virtue of our humanity. It is a natural inclination for a human being to avoid pain, to be free and to choose to do whatever he wishes to do so long as he does not violate the same rights that belong to other individuals.[7] To believe otherwise is to go against the grain of our human nature. The philosophy of Natural Law is extremely important if we want to gain any traction towards liberty and is as legitimate as any other source of codified law if we make the effort to understand its very purpose. A written constitution may violate the natural law, man-made decrees may violate the natural law, but the fact remains that natural law is the highest of all form of laws, and as Judge Andrew P. Napolitano states, it also serves as a very powerful brake against the growing power of the State.

The problem with Natural Law is that it is commonly conflated with Divine Law,[8] and while it is related, the very word ‘Divine’ seems to conjure negative connotations of the metaphysical and theocracy, and is as such, smeared with religious dogmatic principles that many libertarians wish to avoid. For example, Sir William Blackstone, who subscribed to his own version of the “natural” law, believed that kings had a divine right to rule. This belongs in a different arena altogether and this misunderstanding, commonplace in many law schools, has led many people to think that Positivism, the antithesis of Natural Law, contains more logical propositions.

If the philosophy of Natural Law gains more popularity, more followers, and given the due credence that it deserves, tyrannical governments around the world will be shaken and unaccountable authority will be challenged. We have seen that even codified forms of law intended to protect liberty and basic rights have been flouted, such as the Constitution of the United States of America. Written constitutions intended to protect basic rights and liberties are not guaranteed as interpretation varies with different personalities with different ambitions. Despite this, I do not call for the abolition of existing laws that are passed by legislative bodies; that would be completely ludicrous. Natural Law itself should supplement and provide existing codified laws with the necessary virtues of justice and the missing pieces of what gives a law its moral validity - in a sense, a “dualism of laws”. Law is and should be intrinsically linked to morality, and as legal theorist, Stephan Kinsella brilliantly puts it; “Any system of law must be compatible with the rights that individual humans have”.[9]

An example of Natural Law guiding Man-made law is the recent revision of Singapore’s drug laws by virtue of judicial discretion regarding Capital punishment. Singapore’s Misuse of Drug Act explicitly states that if a person is caught in possession of a certain amount of drugs, he or she will face the Capital punishment. This legislation is obviously utilitarian in purpose. That is - to say that the effect of the law must have an overall positive outcome as an end. The end in this case being that no drug trafficker would ever dare to smuggle drugs into Singapore knowing the consequences if he or she were to be caught. The means may be harsh, immoral or downright outrageous, but if achieving the end is a positive success, the means - however wrong they may be - will be justified according to the philosophy of Utilitarianism. We can see therefore that Utilitarianism and Positivism are closely related. However, such punishment is clearly disproportionate to the crime and to borrow a euphemism from Lord Ackner - "You cannot use a sledgehammer to crack open a nut". Public outcry and international outrage at the existence of such a draconian law – brought upon by our natural instincts as human beings, resulted in certain changes to the Misuse of Drugs Act.[10] The death sentence is now meted out at the discretion of the presiding Judge who will decide its suitability for the defendant. This slight revision allowed Yong Vui Kong to escape the gallows last year – a triumphant victory for pro-life celebrants.[11] Although many believe as I do that the changes are demonstrably weak and too slight to represent any sign of progress and that man-made law still triumphs here in the sense that a human being (the presiding judge) will decide the fate of an individual before him - the possibility that a life may be saved as opposed to mandatory merciless death as it was before is certainly a tiny step in the right direction.

A more significant example of Natural Law being more than an abstraction is the conspicuous influence that Natural Law has had over International Law, especially in relation to the rights of individuals. Commonly christened as the father of International Law,[12] Father Francisco de Vitoria espoused the doctrine that all men are free. This was with regards to a matter that concerned him greatly; Spanish imperial conquests in the New World. History tells us that the Spanish conquistadors treated the natives of the New World with aberrant hostility and contempt; primarily because many of the conquistadors viewed the native Indians as heathen savages incapable of reason and understanding. Father Vitoria, on the other hand, believed strongly that the Indians of the New World, by virtue of being men alone, were equal to the Spaniards in matters of natural rights. This view was also supported by famed Scholastic Father Domingo de Soto from the School of Salamanca who stated that “Those who are in the grace of God are not a whit better off than the sinner or the pagan in what concerns natural rights”.[13] This itself invalidates the notion that Natural Law can only appeal to the man who believes in the metaphysics.

Positivists commonly dismiss Natural Law as simply being too abstract, but as we have seen above; to reject the principles of Natural Law would be akin to rejecting every semblance of our humanity.





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[1] Denise Meyerson “Understanding Jurisprudence”, pg 12

[2] “Interview with Whistleblower Edward Snowden on Global Spying” Der Spiegel, July 8, 2013, http://www.spiegel.de/international/world/interview-with-whistleblower-edward-snowden-on-global-spying-a-910006.html

[3] “Notre Dame sues over Obamacare birth control again”, Washington Times, December 3 2013 http://www.washingtontimes.com/news/2013/dec/3/notre-dame-sues-over-obamacare-birth-control-again/

[4] “Fatal Strikes Hit Yemen as Violence Escalates”, The New York Times, October 15 2011 http://www.nytimes.com/2011/10/16/world/middleeast/yemeni-security-forces-fire-on-protesters-in-sana.html?_r=0

[5] Judge Andrew P. Napolitano “It is Dangerous to be Right when the Government is Wrong”, Introduction, pg.2

[6] “Lex iniusta non est lex”

[7] St. Thomas Aquinas “Summa Theologiae” I-II Q. 94, a. 2.

[8] “When Judges Believe in Natural Law”, The Atlantic, January 27, 2014, http://www.theatlantic.com/national/archive/2014/01/when-judges-believe-in-natural-law/283311/

[9] Stephan Kinsella in his Essay titled “Law, Legislation and the Discovery of Law in a Free society”

[10] “Drug Trafficker in S’pore becomes the first to escape the Death Penalty”, Yahoo News, April 11, 2013

[11] “Drug Mule Yong Vui Kong escapes Death”, The Independent, November 14, 2013, http://theindependent.sg/drug-mule-yong-vui-kong-escapes-death/

[12] Dr Thomas E. Woods “How the Catholic Church built Western Civilization”, pg 139

[13] Venancio D. Carro, “The Spanish Theological-Juridical Renaissance and the Ideology of Bartolome de Las Casas, pg 253