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Not Everything that is Legal is Right

It has been said that the most dangerous crisis that can afflict humanity is the blurring of the line between good and evil, which makes it impossible to build up and to preserve the moral order of individuals and communities. Even a quick review of world history would highlight a lengthy list of events in which this line was blurred and the results were disastrous.  In modern history alone we might point to a broad range of discriminatory actions against various minorities, slavery, acts of war such as the Japanese invasion of Pearl Harbor and in return the U.S. bombings of Hiroshima and Nagasaki, human rights violations across the globe and the tyrannical imposition of the beliefs of the few upon the many at the risk of death for refusal to comply. 

What, if anything, brings clarity to this line between good and evil?  I would suggest to you the answer is “law”.  Law, however, is not a simple answer.  There are many types and levels of law.  We might start with common law.  You may have heard, for example, of “common law marriage” whereby a couple is considered married if they live together, have joined financial resources and are generally viewed as or believed to be spouses.  Common law is not universally accepted.  There are also human laws, which include written local, state, federal and international laws.  These might include most anything and everything from traffic laws to laws that protect life or even reputation.  These laws are enacted by a few to promote and protect the common good of the many.  The order of justice requires that those subject to these laws obey them.  If and when the laws are not obeyed, the stability of human affairs is at risk. 

There are however, significant shortcomings to human laws.  They are not uniform, nor do they provide universal protections.  For example, even within the U.S. not all places abide by Daylight Savings Time.  There are “dry counties” in which you cannot sell or purchase or deliver alcohol.  U.S. laws that provide protection against unreasonable search and seizure or that afford a person the right to a speedy trial or the assumption of innocence until guilt is proven do not apply in other places.  Human laws at different levels may conflict with each other, for instance, the federal and some state laws regarding the use of recreational marijuana.  Also, human law is incapable of covering the full spectrum of human behavior; there will always be situations and behaviors for which no law exists. 

Human law is framed "for the common good of all the citizens".  It operates through command, prohibition, permission and punishment.  Still, all of these laws subject us to the will of the lawmaker.  What if the lawmaker is corrupt?  Not everything that is legal is right!  Not all laws are just.  What happens when law conflicts with justice?  What happens when law conflicts with personal conscience? 

During the Nazi period in Germany, the laws of the Third Reich authorized, among other things, the killing of pris­oners in medical experiments by physicians whose Hippocratic oath would require them to do no harm.  After the war, when these same physicians were accused of war crimes against humanity, it was determined that the accused could not justify their conduct by appealing to an existing law if this law was itself lawless and offended against certain self-evident principles of the natural law.  The Federal Republic of Germany recognized the necessity of universal higher standards of objectively and relied on the natural law in punishing actions that were legal under the Nazi regime.  They determined that law loses all oblig­atory power if it violates the generally recognized principles of international law or the natural law. 

What is this natural law?  Natural law has been around a very long time.  Everything has a law built into its nature.  Water boils or freezes at specific temperatures.  Bubbles are spherical, not square.  By nature, lions hunt, squirrels gather nuts, fish swim and snakes slither.  Man, too, has a nature.  Thomas Aquinas defined the nature of man as follows: 1. To seek the good, including his highest good, which is eter­nal happiness with God. 2. To preserve himself in existence. 3. To preserve the species—that is, to unite sexually. 4. To live in community with other men. 5. To use his intellect and will—that is, to know the truth and to make his own decisions.

Sir Edward Coke, (born February 1, 1552, Mileham, Norfolk, England —died September 3, 1634, Stoke Poges, Buckinghamshire) was an English barrister, judge and, later, opposition politician, who is considered to be the greatest jurist of the Elizabethan and Jacobean eras.  He described the “law of nature” as that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction… By this law… were the people of God a long time governed before the law was written by Moses, who was the first reporter or writer of law in the world. 

Long before Coke, Marcus Tullius Cicero (106-43 BC) described "Law" as "the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite". He said, "Right is based, not upon men's opinions, but upon Na­ture."  He is also quoted as saying, “the most foolish notion of all is the belief that everything is just which is found in the customs or laws of nations.”  Even earlier than Cicero, Aristotle (384-322BC) observed that,  “one part of what is politically just is natural, and the other part legal.  What is natural has the same validity everywhere alike, independent of its seeming so or not. What is legal is what originally makes no difference [whether it is done] one way or another, but makes a difference whenever people have laid down the rule, e.g., . . . that a goat rather than two sheep should be sacrificed."  Aristotle believed that there is in nature a common principle of the just and unjust that all people in some way dis­cern, even if they have no association with each other.

A very early example of recourse to natural law that predates even Aristotle comes from Sophocles, an ancient Greek playwright of the 5th century BC.  In his play “Antigone”, the title character is on trial for having buried the body of her brother, this act being against the laws of her time.   When asked if she was aware of the proclamation prohibiting those acts, Antigone responds, “I was.”  Challenged by the statement, “You still dared break this law?” Antigone replies, “Yes, because I did not believe that Zeus was the one who had proclaimed it; neither did Jus­tice, or the gods of the dead whom Justice lives among. The laws they have made for men are well marked out. I didn't suppose your decree had strength enough, or you, who are human, to violate the lawful traditions the gods have not written merely, but made infallible. These laws are not for now or for yesterday, they are alive forever; and no one knows when they were shown to us first. I did not intend to pay, before the gods, for breaking these laws because of my fear of one man and his principles.” 

So you can see, that which is ingrained in our nature is a higher rule of law than those made by humans who may or may not have in mind the common good.  Natural law does not vary according to time, but remains unchangeable; it is part of our nature.  Human law, in its ideal form, is derived from the natural law.  The law of nature informs us what is right and what is wrong, what is to be rewarded and what is to be punished, but the human law decrees how that punishment should be meted out.  The “protective” function of natural law provides a shield against human laws that violate the natural law.  The ability, provided only by natural law, to challenge the very validity of an unjust law is an important safeguard against the enactment and enforcement of unjust laws.  Natural law is therefore, a prescription for limited government, providing a rational basis on which to affirm that there are limits to what the state can rightly do. 

Finally, let’s look at the gaps in human law as compared to natural law.  Aquinas notes that all acts of virtue are prescribed by the natural law.  But the human law cannot attempt to cover the entire field of virtue and vice.  Furthermore, Aquinas writes that human law does not lay upon the multitude of imperfect men the burdens of those who are already virtuous, viz., that they should abstain from all evil. Otherwise, these imperfect ones, being unable to bear such precepts, would break out into yet greater evils.  The human law therefore allows and leaves unpunished many things that are punished by divine law.  This raises the question of whether or not humans either can or should legislate morality. 

The truth is that all human law enforces a natural morality of some sort. For exam­ple, laws against murder are intended to protect our natural instinct to preserve ourselves in existence and a law punishing embezzlement addresses the immorality of stealing.  Nev­ertheless, according to Aquinas, the law should not prescribe every virtue or forbid every vice lest by its unenforceability the law be "despised" and "greater evils" result. On account of the limited reach of the human law with respect to virtue and vice, the natural or divine law is necessary "for the directing of human conduct”. 

Since we are all subject to both human and natural laws, what causes the blurring of the line between good and evil?  Natural law is universal.  What is true for one is true for all and throughout all time.  However, what is equally true for all is not necessarily equally known or accepted by all.  In a non-human example, it is a universal truth that the angles of a triangle always equal 180 degrees.  While that is always true, not everyone knows it.  In an example of a more human nature, the human laws of the United States provide certain rights to all humans, we just haven’t always recognized Native Americans, African-Americans, women or the unborn as fully human under those laws.  Over time, natural law overrides the weaknesses and failures of human law.  As it does so, the line between good and evil is made clearer and, as is our nature, humans seek the good.