Debate Between Natural Law and Positive Law

For a full text of this excellent article by Professor Swartz of Colorado University, go to: http://bad.eserver.org/issues/2004/69/swartz.html

The judiciary in the USA faced a significant problem as they sought to justify the superiority of the white race in the late nineteenth century. That problem was the concept of natural law. Although the concept of natural law has ancient origins in Western culture, the modern expression of natural law became politically and culturally poignant as a result of the European Enlightenment. In practical terms, natural law was an important animating ideology for both the US and French revolutions. When the leaders of these revolutions grounded their agitation in the moral mantle of natural law, they energized an idea that has, in the words of Kathleen Jamieson, "haunted man since the inception of civilization." This point is particularly true in North America, where the ideology of the US revolution clashed fundamentally with the constitutionally codified practice of slavery.

As Jamieson notes in her essay "Natural Law as Warrant,"

The appeal of natural law is part of a human psychological need "to believe in a just and ordered universe."

As with religious appeals, people who suffer often respond to the experience of suffering or injustice by making an appeal to some idealistic force above the contingent world to mediate on their behalf. Such an appeal is an effort by humans to re-describe their powerlessness. Because human beings are at the mercy of the natural world, they have invented a God figure to make sense and remedy their pain and suffering. Against human jurisprudence, which has historically been corruptible and self-serving of elitism, the appeal to natural law petitions for relief in an "ever-just, unchangeable law above the law."

Since natural law is argued to be unchangeable, the person who evokes such law, according to Robert Frank, "appeals to self-evident principles that can be known by all humans." For instance, Thomas Jefferson justified breaking colonial ties to England in The Declaration of Independence by appealing to the "Laws of Nature" and to "Nature's God." These entities, argued Jefferson, "entitled" the colonies to independence. Such independence was further warranted because God granted people "unalienable Rights" to pursue life, liberty, and happiness. As Jefferson asserted, such propositions are "self-evident." The role of the state is to protect and to advance these rights.