An Answer To Christopher Cook

The Inherency of Natural Law Is A Fallacy

Christopher Cook writes an interesting column called The Freedom Scale where, to avoid the terms right and left, he supports in a very intelligent manner, the rights of individuals.  But Mr. Cook fears those rights become eroded by communal redistribution of individual freedoms.  I find him interesting because he recognizes the erosion of freedom, but I find myself skeptical that individuals can obtain any freedom apart from the community.  So this letter is to reply to his thoughtful response to my own columns that he published on May 8 that can be found here: 

The Common Law Is Not a Tool for the Left to Subvert

There are essentially two questions that Mr. Cook brings up in his reply to my articles on Common Law Justice.  The first is whether precedent enables society to meet justice in the moment or whether it is locked into an ‘authority’ by constitutional rigidity. The answer to that of course is in our interpretation of constitutional “purpose” and of the goal in creating the constitution by its framers.  The first thing to decide is,  was there a united purpose that they all wanted to create a document that would accomplish any particular single goal?  The answer is no, and that has been the problem.  The delegates did have a need to have a national economy that would benefit all of the aligned states so they didn’t turn into the internecine fighting that was contemporaneously the status quo among the nation states on the European continent. But the states fiefdoms were unwilling to completely abandon their own powers to one federal government,  and so we had a constitution based on both trying to unify, basically 13 governments, into a common cause, and at the same time none of the states were willing to abandon their own governmental authority.  After a summer of thrashing debates, with Luther Martin almost declaring war on the other states, and two states withdrawing (Rhode Island never attended), the constitution was able to finally find consensus for the remaining ten states; most of the delegates agreed that they had a workable plan.  Alexander Hamilton had wandered back to the convention in the waning weeks, but no longer representing New York that had pulled out, so it is said that ten states and Alexander Hamilton signed the document. But it was worked out as a consensus of compromises and it was this process of consensus that brought about the document, not as a hallowed permanence but as a method for a forum for future consensus.  And it was as a blueprint for future consensus that it was eventually agreed to. and it was never expected to be more than a framework from which the burgeoning country could continue the convention debates, and since they had succeeded in coming to an agreement in the summer and into the fall of 1787, they hoped it would be a framework for future consensual debates on issues that arose that could continue to meet and govern by debating and keeping the nation as one nation.  Unfortunately part of that consensus was to maintain thirteen states and throughout the history of that one nation the debate has never ceased over the importance of the individual governments and whether there are fifty (now) co-equal governments that grant the one government a contractual agreement of the fifty states or whether the fifty states are sub-governments of the one government and as such, there is no contract and they are eternally a subsumed portion of the whole. And our justice system has been forced into balancing a tightrope between two competitive ideologies.

However, Mr. Cook’s second argument drifts off into a discussion of natural law.  Now at this point I am at a loss for comprehending what he means.  Does he mean the natural law as a theory of natural ethics, or natural political comprehension, or as a theory as a theory of civil jurisprudence (well probably not that since he says he believes the common law is superior to civil law and though they do sometimes become mixed, there is no theory of natural common law since common law is not a fixed determination and all proponents of natural law make an assumption of some superior human naturalness from a perspective of a fixed naturalness., or does Mr Cook mean a natural theological law?

From the theological perspective, the natural law is one of God-given moral imperatives.  The problem here is that from this perspective, then all theologians would need to necessarily agree on what those moral imperatives are.  In the first five centuries of the Christian church no agreement could be reached until the Roman branch assumed a civil authority which determined the natural theological law as the natural civil law, and both were determined by the church, and essentially by the autocratic king the church, called the pope.  At the height of their ten centuries of political dominance of the western world came Thomas Aquinas who laid it all out—natural law was the law of God as the church interpreted it to be. But this began to fall apart when the state kings became powerful enough to challenge the civil part of the Aquinian natural law and these despots decided they should determine their own civil interpretation of what the natural law is.  This eventually led to the protestant revolution and the individual kings determining what the religious law was, and subjecting it to the natural law rights of the rulers themselves.  The church lost all unity and there remains no two defining interpretations of any religious law as determinative by naturalness.  For instance does thou shalt not kill mean kill no one, turn the other cheek, martyr yourself rather than self-defend? Does it mean you can kill only when the state orders you to kill?  Does it mean you can kill the non-believer in your interpretation of whom you can kill?  Religious natural law is actually the law of religious tyranny and enslavement to a particular code of morality which can be debated amongst its adherence.  So there is no natural religious law except a sliding degree of interpretation of what obedience must be given to human interpreters of what the natural law is.

The proponents of all natural law believe there are certain sentiments that are binding by nature, because no being could share our human nature and not be bound by our common precepts.  And so the problem becomes if there are differences of interpretation of what those precepts are then can there be binding concepts of naturalness that all share? The more civil or legal or political perception of natural law is, that there are some things that are just universally accepted as good.  But since we don’t all agree on any universally accepted good, then of course the theory disproves itself.  Again we can go the concept of taking life–and whether one accepts the meaning on non-taking of human life to mean it is okay for the individual to defend himself, can the state take a life but the individual not, can the state order proper times to kill (policing or war) and improper times to kill?  Even can the state order one to not sacrifice oneself for another, or to take one’s own life.?

Finally  we come to what I fear may be Mr.Cook’s real meaning, a natural law of property rights.  While I tend to agree with Mr. Cook’s argument against redistribution of wealth, Mr Cook seems to believe that that is a form of tyranny.  But does not the argument for some inherent or natural right to property not itself a redistribution of wealth?  A redistribution of the concentration of controlling  the resources of both the resources of nature and human capital binds both nature and other humans, to those who control more of the resources thus results in slavery both over nature and over other humans, and that is the essential redistribution of the wealth by controlling the resources that disallows any equitable and natural distribution, and essentially results in wealth, in modern terms, to be an enslavement of people by those who control the resources and determine what share of those resources that others can have available.  The control of resources and the control of humans go hand and hand, they appear in human cultures at the same moment in historical time and they cannot be separated,and as such by controlling the resources they create an enslavement by the redistribution of resources that creates wealth very unnaturally.