- The constrictive doctrine of natural law functions as a negative pressure on our freedom. This pressure arises from ‘forces of nature’ which persist beyond all attempts of humanity to control them. We attempt to moderate their effects, building farms to procure food and reservoirs to procure water, but ultimately the amount we can effectively limit the constraints of natural forces are limited. The constrictive doctrine is the ‘de facto’ position in the West, and has been the Taoist position in the East for much the same period, about two and half thousand years.
The absolute doctrine of natural law extends abstractions describing the human condition to describe not only our material needs, but the entire conception of society itself, independent of the existence of any divine force. The power of this doctrine is vastly underrated in most historical accounts, which ignore for example how Aristotle used it to define democracy as we still know it. Other notable Western figures in the absolute doctrine include Plato, Cicero, Justinian, Henry VIII, Hobbes, Bentham, Austin, Mill, Rousseau, Marx, and Hart. In the East, the absolute doctrine has evolved from early Confucianism to current-day neoConfucianism. More recently scientists such as Dawkins have extended concepts of evolution to include ‘social evolution,’ making the absolute doctrine of natural law part of science also.
The divine doctrine of natural law has extended absolute doctrines to include supernatural purpose and authority. Purely secular versions of law often run into trouble defining a source of authority or a justification for their own existence. Divine law emerged originally as a replacement for secular legal concepts, but over time has merged. Most significantly in the USA is the bivalent figure of Locke, whose secular concepts of natural law are the fundament of Constitutional Law. Simultaneously, the USA’s authority to rule and purpose of existence, to protect natural rights, fall under Locke’s concept of divine natural law. Other notable Western figures in the divine doctrine are Augustine and Aquinas. In the East, Buddhism attributes divine authority to its leaders, but its purpose is defined by a more rational metaphysics.
Hesiod’s “Works and Days,’ from 700BC is our earliest written record of the first doctrine, which I call the ‘basic’ or ‘constrictive’ doctrine. In this doctrine laws are a simple product of the necessities of our biology, requiring the procurement of food, water, shelter, and protection of our older kin and children. Over time, the ‘basic necessities’ of our existence have expanded, now including sanitation, education, and even clean air. The constrictive doctrine supplies these basic needs by limiting access and control of the fundamental requirements of the human condition.
Law was not always necessary to the human condition. Almost three millennia ago, Hesiod described a ‘Golden Age’ at the dawn of civilization, with simple yet plentiful resources known by primarily nomadic cultures that existed in peace and harmony with nature. We thought little of our needs being in conflict with each other until some tribal leaders asserted control of more than their local community. During the following ‘Silver Age,’ villages evolved into towns and cities. The quality of life available to some increased, but for most, freedom declined overall. Then during the ‘Bronze Age,’ population increases exacerbated conflicts into war, initially inspired by ideals rather than material needs. During the last era, the ‘iron age,’ the ideals were discarded and cynicism took over. Hesiod concludes this remarkable account of earliest social history with an appeal that we restore earlier noble ideals in order to end material conflict and recreate the harmony and peace with nature known in the Golden Age, thus defining the goal of all law since.
This doctrine is so fundamental to our current-day thought that we are hardly aware it even exists, taking it entirely for granted, as if law has always existed in the same way. But it evolved from an era prior to the need to conceptualize abstract rules. In the earliest tribal phases of civilization, tribal leaders controlled communities ‘ad hoc’ with more or less success, passing authority on to their children. With written records of historical events, abuse of authority by prior generations could not so easily be ignored, and communities rebelled against bloodline inheritance. Leaders therefore sought more sophisticated collections of abstract rules to justify their impositions on their subjects as equal and fair to all. It took 1300 years from Hesiod’s Works and Days to formulate the a complete and integrated legal code, under Emperior Justinian in 600 AD.
The Evolution of Natural Law in the West
Plato (400~347 BC) and Aristotle (330BC) took different tacts during a relatively brief upswing in enlightenment some three centuries later, in consort advocating the first Western ‘systems’ of justice. Plato advocated a more ephemeral ‘social contract,’ upon which Aristotle defined practical necessities in law due to humanity’s predictable corruption.
Cicero rather heroically advanced the concept of natural law in De Legibus and De Civilis (52 BC) to include not only our human condition in the material world, but a definition of virtue as an integral part of the human condition. To typical 21st century thinking, Cicero’s idealism of ‘natural virtue’ as part of our intrinsic existence seems like complete fantasy. But it made sense to the Romans, who had lived by concepts of civil virtue for six centuries already.
Six centuries later, the emperor Justinian used Cicero’s conceptualization of natural law as the foundation of the first unified legal code (ca. 600 AD). With detailed with amazing resolution, the codices consider the operation of natural forces as the primary, independently operating foundation, upon which human law merely defines how people should interact and how ‘natural things’ become property. For example, the oceans belong to no person or nation, but wild things in it such as fish may be caught and become property through an ‘act of possession.’ Justinian makes a truly valiant attempt to define rules in abstract for such problems as migratory animals. Bee stings became a particular problem. It was argued in a now lost case that bees may choose to return to a hive, but only the hive belongs to a beekeeper. Bees fly where they will to gather honey and pollinate, by their own law of nature, independent of human law. Hence if bees sting someone, no beekeeper can be held responsible. Amazingly this 1,500-year-old law has remained exactly the same to this day, despite numerous attempts to frame beekeepers for ‘negligent hive placement,’ etc. However other aspects of the natural order in legal doctrine have not fared so well, as the original idealism in secular law has by stages been eroded over the last two millennia.
The erosion of secular idealism was led by an all-out assault on Cicero in St. Augustine in ‘City of God’ (426 AD). Augustine argued that the need for personal salvation completely dwarfed any secular law, in particular targeting Cicero’s concept of natural law. The Holy Roman Empire used Augustine’s arguments as the central method to eradicate the secular empire. The preeminence of the needs of salvation over human law and the advancement of scientific knowledge persisted for 900 years. However, ironically, Cicero’s own texts were preserved because they were necessary to understand the subject of Augustine’s highly targeted attacks. And so it happened a beautifully illustrated copy of Cicero’s ‘De Civilis’ was given to Henry VIII as a child, which we know because he wrote on its cover ‘this boke is myne,’ signing and dating it. It was a huge influence on the King, and Henry VIII started ‘the reformation,’ marking the beginning of church/state separation in the medieval world. Cicero’s thoughts on natural law thus not only caused the Dark Ages, but also ended them.
The enlightenment built on Cicero’s concept of human order being subservient to natural order as the rational basis for law, combining both new theistic and ancient atheistic ideas in various blends. In the USA, Jefferson drew on Locke's definition of natural rights, derived from a Hesodian 'state of nature,' to justify rebellion against British rule. Hence, one would logically think environmental justice has been an intrinsic part of US Law since the formulation of this nation. But that’s not what happened, for reasons nothing to do with logic.
Environmental justice is a recent annex, rather than central to US civil law, because the derivation of Jeffersonian natural rights of 'life,' 'liberty,' and 'the pursuit of happiness' were theistic, and has therefore been eradicated from being taught in US public schools. After the horrifying consequences of Augustinian doctrine, any theistic thought in the realm of law is now scorned as an obvious ‘desecration’ of the division between church and state, no matter the facts and regardless of any actual benefits theism can offer.
Now, US citizens are taught rights are merely 'self evident,' as per the modification by John Adams to Jefferson's original justification, due to atheistic objections. Yet it should be obvious that other countries have different natural rights, so they are not self evident. For example, in France the natural rights are 'liberty, equality, and fraternity.' It should thus be self evident that natural rights are not self evident, at least to any rational person. But in the USA, frankly, life has not been driven by any real respect for enlightened reason for quite some time.
As I learned much later during a dialog with President Obama, even US Law Schools have replaced Locke’s theistic reasoning for the natural rights in ‘Essay on Human Understanding’ (1692) with derivative thought on rights to life, liberty, and property, from Locke’s Treatises on government (1693). Fortunately, the rational basis for US law is taught in Oxford, even if not in law school in the USA. Our dialog has already had deep significance to the Supreme Court as the rational foundation for its reversal of Roe vs. Wade. That rather unfortunate yet appropriate consequence will also apply to environmental justice. But first, as so few know the real justification for the USA to rule itself, and its application to our own right to life, or life to choice, I am obliged to summarize it here.
The Foundation of Natural Law in the USA
The importance of the Declaration of Independence to US law is ultimate and paramount. All the founding fathers signed it, and it is the basis of the USA government's authority to rule. Originally Jefferson was going to base the authority of our independence from the British on Locke's treatises on government, which would have made life, liberty, and property natural rights, as empirical deductions from a more Platonic 'State of Nature.' However, the Bostonians had clearly violated rights of property by dumping the ship's tea overboard. So Jefferson had to procure another reason to justify the revolution under the principles of enlightened thought that are meant to govern our society. Jefferson therefore based natural rights on Locke's Essay on Human Understanding, which derives his choice of natural rights via empirical reason as follows.
First, humans should not end human life so that God can judge each human in the afterlife by what he does of his own free will, uninterrupted by the free will of others. We therefore have the right to life--and the right to liberty, not only to choose that which brings us pleasure, but also, in order that we may choose between good and evil. The third right, to pursue happiness, was Locke's unique achievement as a philosopher. He stated that if we are free to pursue happiness, given suitable education etc, then some would choose to act of the greater good, which would result in a proactive and progressive society. Locke also observed that acting for the greater good is rarely rewarded in this world, and thus felt forced to admit to their being a benevolent divinity in the afterlife to reward those so deserving, otherwise, the natural rights could not be claimed to be just.
Locke stated it was with regret he had to require a benevolent deity for the pursuit of happiness to work as a natural right. So Jefferson was originally not going to choose it, but as the aggressions of the locals progressed in the USA, he was rather forced into making the justification for the USA to rule itself based on a theistic basis, such that the Boston Tea Party could be justified as acting for the greater good.
To compensate for that, there was a division between natural rights and ‘legal rights’, or ‘constitutional’ rights. Constitutional rights obtain authority from natural rights, which themselves obtain authority from God, by a process called 'promulgation' divined by Aquinas in Principia Theologica.
However this is not taught in US schools. In the last century, there has been a concerted attempt to edit out theistic concepts from the history of US law, initially justified by rules to prevent religious bias in schools. There were also attempts to remove any mention of God at all in all of USA’s government, including from the President’s oath of office and the people’s oath of allegiance. The effort to remove theistic authority from US history was almost totally successful in all its goals, and the original concept of Jeffersonian natural rights based on Locke’s theistic concepts is no longer taught in the USA.
Instead, a new doctrine has emerged called ‘legal positivism’ which essentially says, in basic terms, constitutional law is right because it says so, in much the same way as some claim the bible is true because it says so. Hence, even constitutional attorneys don’t have much reason to know more about the promulgation of authority defined in the creation of our nation in virtually all cases.
However, at the supreme court level, legal positivism is not an adequate solution by itself, because it provides no resolution for the entirely new issues brought about by social and technological development. Whereas the supreme court judges themselves ARE on the whole aware of this Orwellian development in social attitudes, the extent of alienation between the church and state in public discourse means they don’t talk about it in public, for reasons defined by Rousseau (as a ‘noble savage,’ humankind is unable to overcome its prejudices that are so deep in some cases that legislation on them leads to revolution). On issues mostly outside direct influence on common life, the supreme court has maintained its opinion that the authority of God should not be eliminated from any mention, so for example it still exists in the Presidential oath of office and the oath of allegiance.
With regards to abortion, a similar difference occurs from typical misconceptions of US law. Under the principles of 'Natural Law' upon which Locke based his thought, human beings normally proceed naturally to birth after conception, as part of the normal functioning of nature. In cases where conception and birth are not part of the normal functioning of nature, then abortion CAN certainly be justified. But in other situations, where there is not an untoward or forced pregnancy, the free will of human beings should NOT interrupt the normal course of life, according to the first Jeffersonian natural right. If the people overall disagree, then the correct path for legal change at the federal level is a Constitutional Amendment. The US Supreme Court would support such a change appropriately, but until then, its role in defining law is clearly and totally defined in the US Constitution as interpreting the Founding Father's intent. That said, I personally feel that a democracy overextends its authority to legislate on what is properly called a moral issue in the 21st century, but that is nothing that the Supreme Court, within the limits of the authority granted it, can currently change.
Further, capital punishment is clearly a violation of natural rights. This places the rational basis of Jeffersonian natural rights in a political void. Republicans want capital punishment, and Democrats want Right to Choice. Thus, neither party will support teaching of Jeffersonian natural rights. Moreover, the so-called ‘religious right’ hates Jefferson because he was a democrat, and the so-called ‘religious left’ hates Jefferson because he was a slave owner.
Thus the political system is in complete denial of historical fact. Nonetheless, the Jeffersonian natural rights described above are not merely extinct artifacts of history, that change as people’s beliefs change, but rather, the product of a rational, systematic framework of reasoning to resolve disputes on current issues, even if they are far beyond those that the Founding Fathers could themselves originally imagine. For this reason, one certainly cannot expect any better rational thought in the USA on environmental justice either.
Application of Natural Law to Evironmental Justice
Similar arguments on environmental justice apply as for the above worked examples on abortion and capital punishment. I feel the conclusions are so obvious, I should not even need to write them, So instead of drawing the conclusions here, which you can draw for yourself, I briefly allude to that which is considered illegal ‘radical environmentalism’
Clearly, environmental activists believe they are acting for the greater good, and are not rewarded in this life for nobly intended actions. The conflicts in opinion arise due to differing opinions on rights to property. I have before raised concern that civil disobedience now rarely has any permanent affect on law, in a highly polarized two-party culture that simply reverses its policy every four to eight years or so. Civil disobedience does raise public awareness through dramatic events. But the question remains for us all is how much difference that makes to our perception of our own liberty? According to Jeffersonian rights, certainly we are all unique, and therefore entitled to choose our own pleasures when they do not hurt others, as Locke expounds with all the beauty of the enlightened language we have come to think of as our nation’s own, in Essay on Human Understanding, Chapter 21. But according to Locke, and therefore according to natural rights, and therefore, according to all constitutional rights, the purpose of our liberty is to enable us to choose between good and evil, that we may properly be judged by a benevolent Creator. If people are genuinely acting to protect God’s Creation, there can’t be much question that we should feel they deserve benevolence from us, but if they are hurting other people, they can’t be held unaccountable for that either. There is a fineness of distinction in that to which China’s neo-Confucianism can far better respond than the comparatively primitive, naïve, and lackluster thought now predominant in the USA.
Perhaps we should look to ancient Rome, yet again, for resolution of such ambivalence, If Cicero were confronted with this question, he would probably point to the Imperator Sulla granting a slave freedom for informing on his outlawed master….But then, because the slave had betraying his former owner, Sulla ordered that the newly free man should immediately be thrown off the Tarpeian rock to his death. The former slave had little time to enjoy his newly granted liberty. The Tarpeian rock is 82 feet high, which is more than enough to kill on impact. If the former slave had spread-eagled to slow his fall, he would have had ~4.2 seconds to contemplate his freedom. Yet even so, as Plutarch remarked, he did die a free man. I’ve told this story many times since I returned to the USA, and every single time, I’ve heard an outcry of enraged protest at how Sulla was a ridiculous savage. I’ve tried pointing out, after Sulla cleaned up the deep corruption that had befallen the Republic by executing thousands of people, Sulla retired to modest country villa and asked nothing further for himself. That has only served to reinforce disgust for what Americans typically call a ‘barbaric’ culture. But there is a bifurcation of concurrent ethical mores in ancient times which has become beyond comprehension in our supposedly advanced modernism. So I have to take another step back and ask for a little further thought about that slave’s fall from the Tarpeian rock, and why it almost certainly would be Cicero’s instinctive response to the moral and legal paradox of civil disobedience in our current era. .
What thoughts and feelings might have gone through the slave's mind during his brief status as a free man? Would he have been proud of the red manumission cap, nobly put on his head before his fall, to signify his reward for upholding the Roman virtues of honor and loyalty to the state? Or would he have thought what a profound change this would mean in Rome's future? Previously, only owners decided what happened to slaves, because they were regarded purely as 'things,' like kitchen utensils. In prior Roman law, the new owner of the slave’s household would have been responsible for the slave’s action, and his punishment. But with Sulla's punishment of this slave for betraying his master after he had been set free, people had become directly accountable for all their own actions, independent of their masters.
I thought about that quite a bit in my life, and all I can now is repeat what I observed earlier. To the currently popular conventions of thought in the USA, a person like Cicero could not even exist. Here is an example from Cicero’s own life, specifically in fact, Cicero’s own death. When the future emperor Augustus’ soldiers had fought their way through Cicero’s much smaller army to Cicero’s tent, Cicero did not run away. He bowed to them. He bowed to them. Then he bared his neck so his executioner could decapitate him with the least possible effort. And that was not an unpremeditated surrender. Cicero knew he couldn’t beat Emperor Augustus, known as Octavius at the time, from the very beginning. Cicero did not lead an army against Octavius because he was going to win. Cicero had a much smaller army, no prior military experience at all, and was already very old. Cicero knew he was going to lose. That’s not why Cicero fought, and if there is anyone who could understand that, it should be environmental activists, although unfortunately, too few do. So saying, I had to reach the conclusion, yes, the freed slave who Sulla also condemned to death greatly enjoyed his last moments as a free man. He enjoyed those moments far more than most of us alive now could now possibly imagine, and arguably more than anyone alive now has ever enjoyed themselves. After all, outside the victory march, there was no greater honor in Rome than manumission. We don’t have anything in the world to compare to that concept of honor anymore. Roman virtues and their experience simply no longer exist.
The one common factor in all forms of current civil disobedience is an absence of celebrating nobility in capitulation. Instead, the antagonism merely continues. On both sides. And that does not result in much of the proactive advancement of culture that Jefferson desired in naming pursuit of happiness a natural right. Its purpose was to enable people to act for the greater good. But there is no mechanism in our system of law to reward it. If society were to consider acting for the greater good as something for justice to reward, AS WELL AS demanding justice be a means of legitimizing vengeance, then environmental justice could do far, far more. But we are stuck with a purely punitive system, and too few are capable of thinking any better.
