If my memory is correct, I read somewhere that on closing Auschwitz, a sign placed at the entrance said, “Never Again”.
Since the end of WWII, stories of the Shoah and Europe’s rabid anti-Semitism during the 20th century reach us in books, lectures, movies, television documentaries, and Holocaust museums. Retelling of the Shoah is common enough to ensure that tragic event will not go the way of the memory hole. Nevertheless, are we justified in assuming an atrocity like this will never happen again? I do not think so. That is, we have not yet learned the right lessons from the Shoah.
Nothing in history is inevitable, but history does have a way of repeating itself, though never in the same way. In America, we have unspeakable crimes committed daily against a selected class of individuals, prenatal children. So far, the number of prenatal children legally executed in America, at least 27 million, has dwarfed the number of people killed by the Third Reich.
German government legally exterminated the disabled, Jews, Christians, and others. Yet, there was no legal basis for anyone to challenge the unjust laws of the Third Reich. Germany's govenrment did not recognize natural law jurisprudence, which could have provided the legal grounds for challenging corrupt laws. Instead, Germany’s legal system went the way of legal positivism. This brings me to my next point about history repeating itself. America has also gone the way of legal positivism, and now views natural law jurisprudence as subversive.
I will next briefly explain the concepts of legal positivism and natural law, which should make it clear why we should return to natural law jurisprudence.
One of the negative outcomes of the Enlightenment period was a secular utilitarian philosophy of law called ‘legal positivism’. There are variant theories of legal positivism, but all positivists agree that even if a human or positive law is unjust it does not entail the law is invalid or not a law. Positivists define law without reference to justice or morals. Positivists do not recognize any law higher than positive law, such as would provide an objective standard for deciding the justness of human law.
According to legal positivism, a law is valid solely because it is enforced, and any judge remains unconditionally bound by legislative acts, even if they are unjust. John Austin and Hans Kelsen are notable modern exponents of legal positivism.
In contrast to legal positivism, many ancient Greek and Roman writers such as Aristotle, Sophocles, the Stoic philosophers, Cicero, and so on, recognized the existence of a law superior to human law. It is a universal law, which is the same everywhere, and binds all men in conscience. We call this law the ‘natural law’, or ‘natural moral law’. Natural law provides the basis for positive or human law. To the degree that any positive law contradicts the natural law, it is not law. It is, rather, a corruption of law, and more akin to force than law.
Gratian (12th cent.) explains the superiority of natural law: “Natural law is superior in dignity to customs and enactments. For whatever has been either received through usage or written down that is contrary to natural law, is to be considered void and invalid. “ (Decretum, D. 8, Pt. 2.)
The pre-Socratic philosopher, Heraclitus of Ephesus (536-470 B.C), says the divine law is the source for human laws: “Wisdom is the foremost virtue, and wisdom consists in speaking the truth, and in lending an ear to nature and acting according to her. Wisdom is common to all...They who would speak with intelligence must hold fast to the —wisdom that is common to all, as the city holds fast to its law, and even more strongly. For all human laws are fed by one divine law.”
The Greek dramatist, Sophocles in 441 B.C. refers to the natural law as the “unchangeable unwritten code of Heaven”:
“Nor do I deemYour ordinance of so much binding force,
As that a mortal man could overbear
The unchangeable unwritten code of Heaven;
This is not of today or of yesterday,
But lives forever, having origin
Whence no man knows: whose sanctions I were loath
In Heaven's sight to provoke,
fearing the will of any man.”
The Apostle Paul spoke of the natural law as engraved on the heart of man; “For instance, pagans who never heard of the Law but are led by reason to do what the Law commands, may not actually ‘possess’ the Law, but they can said to ‘be’ the Law. They can point to the substance of the Law engraved on their hearts—they can call a witness, that is their own conscience—they have accusation and defence, that is their own inner mental dialogue. …on the day when, according to the Good News I preach, God, through Jesus Christ, judges the secrets of mankind (Rm 2:13-16).”
About natural law, St. Thomas Aquinas says, “The natural law dates from the creation of the rational creature. It does not vary according to time, but remains unchangeable (ST I-II, 94, 5).” St. Augustine remarks, “In temporal law there is nothing just and lawful, but what man has drawn from the eternal law (De libero arbitrio, I, 6).”
Revelation and natural law are complementary; they are two ways for man to know what is objectively right for his nature as a rational animal. Positive law has its source the natural law. Positive law is just only to the degree that it reflects natural law. Natural law jurisprudence recognizes this objective standard of right and wrong, and provides legal grounds for challenging unjust laws.
The Nazi regime passed laws that reflected their pseudo-values and counter-valences. Contrary to what legal positivism asserts, every law reflects a system of values, whether it is that of divine law, atheistic socialism, or some other set of values.
After the war, the Nuremberg trials highlighted Germany’s need for natural law jurisprudence. This is a lesson we have yet to learn from the Shoah. In America, our lawyers, lawmakers, and judges acquiesce to or actively support legal positivism.
The Laws of Nature and of Nature’s God
America’s Founders believed in a natural law philosophy of government. We see a reference to this philosophy in the Declaration of Independence where it speaks of the “Laws of Nature and of Nature’s God”. The Laws of Nature and of Nature’s God provided the Founders with the legal basis for succeeding from Great Britain. Sir William Blackstone (1723-1780) the famous judge and law professor, and author of the four-volume Commentaries on the Laws of England, spoke of “the Laws of Nature”, and the laws “of Nature’s God.”
Blackstone stated, “Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being…And consequently, as man depends absolutely upon his Maker for every thing, it is necessary that he should in all points conform to his Maker’s will. This will of his Maker is called the law of nature…This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original…The doctrines thus delivered we call the revealed or divine law and they are to be found only in the holy Scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature….Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.”
Natural law jurisprudence can restore sanity to our legal system; provide an objective standard for challenging unjust laws, and facilitate an end to abortion. Because our culture is secularized, many people view the idea of returning to natural law as subversive and counter-cultural, which is exactly why we need natural law jurisprudence. Perhaps it is not too late to learn the right lessons from the Shoah.