The first order of law is Natural Law based on universal principles which agree with the nature and state of people without which the peace and happiness of society can never be preserved. Knowledge of natural laws may be attained merely by reason and from facts that agree with human nature. Natural Law exists regardless of whether it is enacted as statutory law.
Natural Law:
Two of the most basic tenets of Natural Law are:
Source: http://www.itnj.org/knowledge-base/resources/itnj-peoples-law-library/natural-law-2/
The Golden Rule compels us to intervene when basic human rights violations take place. Natural Law provides people with the right to sanctuary, the right to contract voluntarily provided that we are trustworthy, and the right to obtain all knowledge necessary to inaugurate a truly viable future, amongst other rights.
These rights are to be enjoyed by all men and women, and have never been – nor will ever be – the monopolized “property” of any group that isolates itself from the whole.
Natural Law as a restraint against tyranny – Judge Andrew P. Napolitano
Natural Law as a restraint against tyranny – Judge Andrew P. Napolitano
William Barbe, Sott.net, Sat, 22 Nov 2014 20:25 UTC Judge Andrew P. Napolitano, once a Fox News TV show host – and now an outspoken critic of the US government – delivered a short, intriguing, and, I believe, important speech at the Mises Institute in Costa Mesa, California, on November 8th, 2014.
He began by talking about the origins of Natural Laws, beginning with this quote from Sir Thomas More’s treason case under Henry VIII:
More was appealing to the jury of the Laws of Nature that restrain even the government.
This was the classic Natural Law argument.
More was not the originator of this argument; that was Saint Thomas Aquinas nearly 800 years ago.
The English liberal philosopher John Locke picked up on this, as did Thomas Jefferson when he wrote the Declaration of Independence, and James Madison when he was a Scrivener for the US Constitution.
Thomas Jefferson’s version of More’s phrase – “We are endowed by our creator with certain inalienable rights and among these are life, liberty, and the pursuit of happiness” – articulates the view that our rights come from our humanity. Napolitano asks:
What are these rights that come from humanity? And how can the government trample them? The concept of Natural Rights articulated by Aquinas is that there are areas of human behavior for which we do not need a government permission slip in order to make free choices.
Things like freedom to develop your own personality, to think as you wish, to say what you think, the right to worship or not to worship, to assemble in groups or to refuse to assemble, to petition the government for redress of your differences, and the right to defend yourself against tyrants. These are the quintessential ‘American rights’.
The right to be left alone, for example, codified in the Fourth Amendment today is called the ‘right to privacy’.
Privacy – Everyone has the right to privacy, which includes the right not to have
Napolitano answers with the theory that we have surrendered some of our rights to the government so that the government will protect the rights that we have not surrendered. The idea is that the government derives its power from the consent of the governed. He argues that no one is alive today that consented when the Constitution was enacted, therefore it is a fiction.
The fiction is that we consented to surrender our rights where in reality our rights have been stolen from us through the use of force. He goes on to explain the theory that what was surrendered to the government was limited to 16 discrete, unique, separately stated and articulated powers in the Constitution.
The 9th Amendment says that just because we’ve listed a bunch of rights in the first 8, there are many others and it would be impossible to list them all. Then the 10th Amendment explains that just because we’ve given some power to the Federal Government – we the states – that doesn’t mean we’ve given them all power.
That is the concept of limited government.
The government must stop when it wants to touch our Natural Rights. An example Napolitano gives is the fingers on his hand: “They belong to me. They cannot be taken away by majority vote or by legislation or by the commander of the Executive. They can only be taken away if I give them up myself.
Such is the case if you rob a bank: you violate the Natural Rights of the depositors. You can then be prosecuted and have your freedom of movement taken away because you surrendered your Natural Rights by robbing a bank. So you can voluntarily surrender your own Natural Rights but you can’t surrender somebody else’s Natural Rights because they are owned by the individual. Not collectively, not by groups nor government, but by individuals.
That was the theory of the Declaration of Independence, the Constitution and the founding generation of the United States of America.Regrettably it is no longer the theory today. Napolitano goes on to state that today the government, to which none of us has consented, claims it has the authority by majority vote to assault those liberties that are a part of our humanity.
He argues that our Natural Rights are ours and not the government’s to be taken away. The Constitution was written to prevent the government from doing that except by due process. Due process means if I rob a bank and they want to take away my freedom, they have to give me a jury trial and the full panoply of protections that come with it. Natural Rights can be summarized in four words: the presumption of liberty.
This means we are self-directed. We make our own choices. It is not our obligation to prove we are unworthy of incarceration. It is the government’s profound, unique obligation to prove that we are worthy of incarceration and it must do so before a jury of our peers. Napolitano agrees that it is an imperfect system but that is the best system that we can come up with.
The presumption of liberty, Napolitano explains, is that the rights we did not surrender to the government are retained for ourselves. They cannot be taken away by popular vote or a majority in the legislature or a command by a governor or a president.
He raises the question:
Is there any legitimate activity government has in a free society?
The answer is:
Yes. To protect the Natural Rights of the people in that society.
Meaning, instead of assaulting my freedom, my life, my liberty, and my property, the government should be protecting it!
He concludes his speech with a dire message for young people:
“Some of you must be prepared to die in a government prison and some of you must be prepared to die in a government town square to the sound of government trumpets blaring. When the time comes, you will know what to do because freedom lies in everyone’s heart, but it must do more than just lie there.”
Recorded at the Mises Circle in Costa Mesa, California, 8 November 2014. This seminar examines the institutions of a stateless society and explore topics such as private defense, private police, privately produced money, the role of markets, and how stateless legal systems would work.
The Constitution represented a coup from the beginning, and it's a dead letter today. The Declaration of Independence, however, is a truly radical libertarian document still worthy of consideration. Judge Andrew Napolitiano, our Distinguished Scholar in Law and Jurisprudence, recently gave a rousing talk at Mises University on the Declaration's natural law tradition–and how federal courts relentlessly and successfully attacked the principles it represented. This is Judge Nap at his scorching best, and you won't want to miss his comments on Supreme Court nominee Brett Kavanaugh.
Sponsored by Klaas and Anastasia Talsma, this speech was presented at the Mises Institute's 35th Anniversary Celebration in New York City on October 6, 2017. Includes a Question and Answer Period with Tom Woods.
Recorded at the Mises Institute in Auburn, Alabama, on 13 July 2020.
Recorded at the Mises Institute Supporters Summit, The Gold Standard Revisited, 31 October 2008; Auburn, Alabama. Includes introductions by Mark Thornton and Lew Rockwell, and the presentation of the 2008 George F. Koether Free-Market Writing Award to Judge Andrew Napolitano.
The introduction of the work was written latter than the main text, and gave people the impression that the book was written in 1688 to justify the Glorious Revolution. We now know that the Two Treatises of Government were written during the Exclusion crisis and were probably intended to justify the general armed rising which the Country Party leaders were planning. It was a truly revolutionary work.
If we consider the state of nature before there was government, it is a state of political equality in which there is no natural superior or inferior. From this equality flows the obligation to mutual love and the duties that people owe one another, and the great maxims of justice and charity. Was there ever such a state? There has been considerable debate about this. Still, it is plain that both Hobbes and Locke would answer this question affirmatively.
Human Nature and God’s Purposes
If one takes survival as the end, then we may ask what are the means necessary to that end. On Locke’s account, these turn out to be life, liberty, health and property. Since the end is set by God, on Locke’s view we have a right to the means to that end. So we have rights to life, liberty, health and property. These are natural rights, that is they are rights that we have in a state of nature before the introduction of civil government, and all people have these rights equally.
If God’s purpose for me on earth is my survival and that of my species, and the means to that survival are my life, health, liberty and property — then clearly I don’t want anyone to violate my rights to these things. Equally, considering other people, who are my natural equals, I should conclude that I should not violate their rights to life, liberty, health and property. This is the law of nature. It is the Golden Rule, interpreted in terms of natural rights. Thus Locke writes:
“The state of nature has a law of nature to govern it, which obliges everyone: and reason which is that law, teaches all mankind who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions…” (II. 2. 6). Locke tells us that the law of nature is revealed by reason. Locke makes the point about the law that it commands what is best for us. If it did not, he says, the law would vanish for it would not be obeyed. It is in this sense, I think, that Locke means that reason reveals the law.
If you reflect on what is best for yourself and others, given the goal of survival and our natural equality, you will come to this conclusion. (See the section on the law of nature in the entry on Locke’s Political Philosophy.)Locke does not intend his account of the state of nature as a sort of utopia. Rather it serves as an analytical device that explains why it becomes necessary to introduce civil government and what the legitimate function of civil government is. Thus, as Locke conceives it, there are problems with life in the state of nature. The law of nature, like civil laws can be violated.
There are no police, prosecutors or judges in the state of nature as these are all representatives of a government with full political power. The victims, then, must enforce the law of nature in the state of nature. In addition to our other rights in the state of nature, we have the rights to enforce the law and to judge on our own behalf. We may, Locke tells us, help one another. We may intervene in cases where our own interests are not directly under threat to help enforce the law of nature. Still, the person who is most likely to enforce the law under these circumstances is the person who has been wronged.
The basic principle of justice is that the punishment should be proportionate to the crime. But when the victims are judging the seriousness of the crime, they are more likely to judge it of greater severity than might an impartial judge. As a result, there will be regular miscarriages of justice. This is perhaps the most important problem with the state of nature.
Just as natural rights and natural law theory had a florescence in the 17th and 18th century, so did the social contract theory.
So, while Locke might admit that some governments come about through force or violence, he would be destroying the most central and vital distinction, that between legitimate and illegitimate civil government, if he admitted that legitimate government can come about in this way. So, for Locke, legitimate government is instituted by the explicit consent of those governed. (See the section on consent, political obligation, and the ends of government in the entry on Locke’s political philosophy.) Those who make this agreement transfer to the government their right of executing the law of nature and judging their own case.
These are the powers which they give to the central government, and this is what makes the justice system of governments a legitimate function of such governments.
Ruth Grant has persuasively argued that the establishment of government is in effect a two step process. Universal consent is necessary to form a political community. Consent to join a community once given is binding and cannot be withdrawn.
This makes political communities stable. Grant writes: “Having established that the membership in a community entails the obligation to abide by the will of the community, the question remains: Who rules?” (Grant, 1987 p. 115). The answer to this question is determined by majority rule. The point is that universal consent is necessary to establish a political community, majority consent to answer the question who is to rule such a community. Universal consent and majority consent are thus different in kind, not just in degree.
Grant writes: Locke’s argument for the right of the majority is the theoretical ground for the distinction between duty to society and duty to government, the distinction that permits an argument for resistance without anarchy. When the designated government dissolves, men remain obligated to society acting through majority rule.
It is entirely possible for the majority to confer the rule of the community on a king and his heirs, or a group of oligarchs or on a democratic assembly. Thus, the social contract is not inextricably linked to democracy. Still, a government of any kind must perform the legitimate function of a civil government.
The Function Of Civil Government
Locke is now in a position to explain the function of a legitimate government and distinguish it from illegitimate government. The aim of such a legitimate government is to preserve, so far as possible, the rights to life, liberty, health and property of its citizens, and to prosecute and punish those of its citizens who violate the rights of others and to pursue the public good even where this may conflict with the rights of individuals. In doing this it provides something unavailable in the state of nature, an impartial judge to determine the severity of the crime, and to set a punishment proportionate to the crime.
This is one of the main reasons why civil society is an improvement on the state of nature. An illegitimate government will fail to protect the rights to life, liberty, health and property of its subjects, and in the worst cases, such an illegitimate government will claim to be able to violate the rights of its subjects, that is it will claim to have despotic power over its subjects.
At the end of the Second Treatise we learn about the nature of illegitimate civil governments and the conditions under which rebellion and regicide are legitimate and appropriate. As noted above, scholars now hold that the book was written during the Exclusion crisis, and may have been written to justify a general insurrection and the assassination of the king of England and his brother. The argument for legitimate revolution follows from making the distinction between legitimate and illegitimate civil government.
A legitimate civil government seeks to preserve the life, health, liberty and property of its subjects, insofar as this is compatible with the public good. Because it does this it deserves obedience. An illegitimate civil government seeks to systematically violate the natural rights of its subjects. It seeks to make them illegitimate slaves. Because an illegitimate civil government does this, it puts itself in a state of nature and a state of war with its subjects.
The magistrate or king of such a state violates the law of nature and so makes himself into a dangerous beast of prey who operates on the principle that might makes right, or that the strongest carries it. In such circumstances, rebellion is legitimate as is the killing of such a dangerous beast of prey. Thus Locke justifies rebellion and regicide (regarded by many during this period as the most heinous of crimes) under certain circumstances. Presumably this was the justification that was going to be offered for the killing of the King of England and his brother had the Rye House Plot succeeded.
Locke and Religious Toleration
Locke’s arguments for religious toleration connect nicely to his account of civil government. Locke defines life, liberty, health and property as our civil interests. These are the proper concern of a magistrate or civil government. The magistrate can use force and violence where this is necessary to preserve civil interests against attack. This is the central function of the state.
One’s religious concerns with salvation, however, are not within the domain of civil interests, and so lie outside of the legitimate concern of the magistrate or the civil government. In effect, Locke adds an additional right to the natural rights of life, liberty, health and property — the right of freedom to choose one’s own road to salvation. (See the section on Toleration in the entry on Locke’s Political Philosophy.)
Moral Law
All who are loyal to the laws that govern logic and right reason acknowledge that it is impossible for man to create a universal moral law. At the same time, those who are wise also recognize it is equally impossible to maintain a free and self-governing society without a universal moral law: a moral law that applies to everyone equally – especially those who lead and rule over society. But a universal law requires a Law Giver, and if logic dictates that it cannot be a man, then that leaves no choice but that there must be a Creator.
If there is not, then man would have to invent one, each by their own belief, unless society stays forever under the oppression of the law of the jungle: the law of ‘might-makes-right.’Fortunately, there have been people who have discovered that a Universal Law of Morality does exist and that the human heart is born with a natural ability to recognize it. Job did it, as well as Cicero and the Apostle Paul and Locke after him.
Jefferson even echoed that it is self-evident. Even as a child, we recognize when we have been wronged. It’s just that we lose this ability with time. As we grow more and more self-absorbed we lose touch with our conscience. But this does not mean that law ceases to exist: it does not. If it did; if there were no moral law; then the notion of any law would be an absurdity.
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