Natural law works as a homeostatic power system. This topic explores the theory behind this amazing engine of power, which has driven the United States to extraordinary political success for several centuries.
When the government passes legislation that unbalances the social contract, the nation disempowers the government via rising dissent. Rousseau's 'General Will' increases the Lockean 'State of War,' causing corresponding conflicts in society. That promulgates as democratic adjustments in representation and legislation, or in extreme cases, constitutional amendments. When lawmakers adjust rights and constrictions on the public correctly, dissent decreases. The social contract is rebalanced, authority is restored to the government, and the nation is empowered again.
1. Historical Background
There are currently six articles in his series with a total of about 60,000 words, 150 references, and 40 illustrations.
1.1. Origins of Divine and Natural Law
The first topic, "The Origins of Natural Law," tracednatural law back toHesiod in the 8th Century BCE(links in this paragraph open that article). Hesiod'sLegend of the Golden Age recorded how people sought justice and humility, in order to return to an original state of purity. Hesiod's legend even reached theHuang'Lao in China. In the 4th Century BCE,Socrates conceived anIdeal Social Contract as a way for rational beings to establish harmonious existence. Shortly thereafter,Aristotle recognized that corruption of ideals is inevitable, concluding that democracy is the least-worse of evils.
1.2. Early Divergence in Divine and Natural Law
The second topic, "Early Divergence in Divine and Natural Law," starts in the 1st century BCE, whenCicero definedLex Gentium. In his new tradition ofStoicism, Cicero derived natural law from the necessary conditions of existence in order, to restore the peaceful nobility of the Golden Age. In the 6th century,Justinian incorporated Cicero's ideas into the first attempt atLegal Codification. However, a movement back toreligious instead of secular authority had already started. In the 4th Century,Augustine had declared natural law was in defiance of the Laws of God. In the ensuing Dark Ages, Justinian's law was destroyed, and only discovered again 1,900 years later. For about 900 years, philosophy was replaced by a widespreadTheocracy. During this time, the Far East consolidated ideas of Taoism and Confucianism intoNeoconfucianism. But in the Middle East, Western ideas of theocracy even spread into the Arab tribal culturea via the new religion of Islam, started byMuhammed in the 7th century. In the 12th century, the Islamic MoorAverroes identified inconsistencies in theological doctrines which made it difficult to define how legal cases could be resolved. In the a massive treatise responding to this and thousands of other theological objections,Thomas Aquinas in the 13th century conflated Hesiod's idea of a Golden Age with Eden, suggesting that divine law could promulgate from divine purity, via natural science, into common law; but due to human misunderstanding, common law is prone to unintentional error, therefore differing from our intuitive sense of right and wrong.
1.3. The American Social Contract
The third topic, "The American Social Contract," started with howGutenberg changed civilization by making the first printed bible in 1456 (links in this paragraph open that article). With the rapid spread of printed books in the 1500s, the church no longer could maintainauthority by awe. After Martin Luther published his 95 theses as a reaction against abuses in the sale of indulgences, Protestant ideas emphasizing personal salvation from God the Son overturned the paternal Catholic church, and new ideas on secular authority again started to emerge in the 17th century.Hugo Grotius published "On the Law of War and Peace in 1625, advocating that nations could coexist by mutual agreement to enforce law. Building on Cicero'slex gentium, Grotius created the idea ofPositive Law, now known asNatural Rights.Thomas Hobbes published "Leviathan" in 1651, inventing a new imaginaryState of Nature, wherein we conceive of society without any authority. Hobbes believed human nature to be essentially evil, and therefore, in order to prevent savage violence, we need aSocratic Social Contract with authority to enable civilized peace. To both Grotius and Hobbes, authority remained imperialistic.John Locke then combined the ideas of Grotius and Hobbes in a combined work of several hundred thousand words, published c.1691:
This topic considers the other main components in America's natural law as conceived by the founders. Future topics, "Marx and Denial of Property as a Right," andNew Ideas in Natural Law, consider evolution since then.
2. Promulgating Inalienable yet Mutable Law
In 1776,Thomas Jefferson favored the thought ofCicero on natural law (see also, Stein, 2011) and, in particular above all others, John Locke (see "America's Dual System" inLimits of Self-Evident Truth). From Cicero, he chose the idea ofLaws of God and Nature beingInalienable(applying to all people in a way that cannot be repealed or restrained by common law). From Locke, He chose a combination of ideas from Locke'sTreatises andEssay as the basis for the natural rights in the Declaration of Independence, first stating that the British had violated these natural rights by not assuring them to all people under British rule in American.
In Jefferson's view, natural rights in the United States included property, education, recreation, and travel. So he chose 'pursuit of appiness,' rather than the right to property alone, as originally specfied in Locke'sTreatises. But the changes to Locke's original ideas do not stop there. By this time, four newer philosophers had already advanced ideas influencing America's formation which were merged with Cicero's and Locke's ideas:Reid,Hume,Rousseau, andMontesquieu.
Thomas Reid (1710–1796), a member of the Scottish school ofNaive Realism, suggested that everything could be understood by simple common sense, denying the existence of Platonic ideals. Of the founding fathers, Thomas Paine and John Adams had both studied naive realism and believed it true. Benjamin Franklin followed a different doctrine, callednaturalism, but Franklin was concerned that the natural rights recognize Paine and Adam's ideas too. This was because he knew most people could not be expected to understand all of Locke's reasoning. But in a Aristotelian democracy, people should have equal rights to vote, whether or not individuals understand the full significance of the thought behind natural rights. Franklin therefore changed Jefferson's draft from "We hold these TruthsSacred and Undeniable..." to "We hold these truths to beSelf Evident..."
David Hume (1711-1776), also from Scotland, was highly adversarial to Reid's naive realism. He instead pursued the same tradition as Locke, using empirical rationalism to deepen understanding. Hume's pertinent observation here is known asHume's Guillotine. This states that moral or ethical propositions (that whichought be done) cannot be derived from observations of nature (that whichis observed)without a necessary moral premise. Hence, in order to state thatLife, Liberty, and the Pursuit of Happiness are natural rights, Jefferson declared them underThe Laws of Nature and God, as Sacred and Undeniable, that we are created equal.
Jean-Jacques Rousseau (1712–1778), a french rhetorician defending the people in their need for freedom, was a strong advocate ofrevolution against imperial authority, advocating the need of democracy to prevent exploitation. In 1772, Rousseau published 'The Social Contract, or Principles of Political Right,' which mostly plagiarized Locke's ideas, but with three notable changes:
- Rousseau regarded theNoble Savage in the State of Nature as an ideal condition, again calling for a return to Hesiod's Golden Age as the optimal result of society. In a strange blend of Augustinian morals and atheism, he dismisses progress as inimicable to the well being of humanity, and seeks to limit rights and laws as much as possible. This was contrary to the view of America, which was already seeking to advance capitalism through technologies that permit division of labor (such as already existed for the primitive yet superior manufacture of muskets at that time). America also sought a benign Lockean government, instead of Rousseau's minimalist state.
- Rousseau was concerned that government in too large a nation would result in undue restrictions on liberty, in order to meet the needs of a majority. He therefore advocated a city-state model, similar to that ofAncient Greece. This was much approved by States wishing to join the union, leading to the establishment ofFederalism, where States basically have autonomous power, as long as it does not contravene federal authority.
- Rousseau replaced natural rights in the social contract with an establishment of law based ongeneral will. This idea was still new at the time, and has caused quite a bit of controversy, because its original statement was unclear. But in the desire to enable the people to change the law, Jefferson included the phrase"Governments are instituted among Men, deriving their just powers from the consent of the governed" after his statement of natural rights.
Baron Charles-Louis Montesquieu (1689-1755) had collated many ideas forSeparation of Powers, published in 1748 anonymously under the titleSpirit of Law. Since the time ofThomas Aquinas, it had been accepted how human law is inherently flawed, and many mechanisms had been proposed and tested for preventing corruption when promulgating rules from divine law to common law. Following Montesquieu, the USA chose a tripartite division for its government. While this was specified in detail in the constitution, the Declaration of Independencealso reflects an important aspect of this division: a mechanism to permit permit changes to federal law in accordance with general will. The division was:
- A Presidency (with a term-appointedAdministration).
- Elected representatives (in theSenate andCongress).
- ASupreme Court (appointed by representatives, but with life-long tenure).
2.5. The Resulting Contract
In the resulting system,Natural Law first promulgates toConstitutional Law, a high-level set of specific rights and duties. Constitutional law controls and limits the powers ofCommon Law. Common law is a combination of legislative law and precedence set by lower courts. A simple majority ofCongress and Senate Representatives can pass legislation, and a large majority can amend Constitutional Law, over which thePresident has guidance and limited veto powers. In cases of dispute, the higherSupreme Court interprets the Constitutional Law, in accordance with the natural rights and duties as envisaged by the founding fathers. Overall, Jefferson's resulting text for theDeclaration of Independence was as follows.
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which theLaws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
- That to secure these rights,Governments are instituted among Men, deriving their just powers from the consent of the governed
- That whenever any Form of Government becomes destructive of these ends,it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
Prudence, indeed, will dictate thatGovernments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, andto provide new Guards for their future security
-Declaration of Independence, Final Draft (Philadelphia, 1776)
As a large majority of elected officials can change the Constitutional Law, Rousseau'sgeneral will can guide and alter thesocial contract. But changes occur with a slow, deliberate, and well-defined process, with the objective of minimizing disruption. Thus when theDeclaration of Independence statesit is the Right of the People to alter or to abolish the government, it applies not only to abolishing British rule, but also to altering or abolishing the constitution, which controls all American government.
The philosophical complexity is thatthere are two paths for changing the law. Either the people can elect officials who pass constitutional amendments, or the people can exert ethical pressure via the social contract of natural law. Many have tried arguing that natural law is not necessary, and have tried to conceive of government's power purely in terms of common law. But that breaks the homeostatic nature of the system. People's beliefs define the moral values that drive the general will, creating ethical pressure on the government for reform via natural law. The general will responds to imbalances in the social contract on each side of the rights/restrictions division:
- Too Many restrictions. When the government over-exercises its power and is too restrictive, the people are ethically entitled to rebel against government authority, resulting in violence and an increased State of War, and the natural law diminishes. With the loss of control, the government has to to restore natural rights or reduce the restrictions.
- Too Few Restrictions. Lack of business regulation results in commerical corruption. Inadequate laws to limit individual abuses results in social decay. The government is required to protect the public by adding more restrictions.
- Too Many Rights. If individuals find themselves entitled to act in more ways than are conducive to social order, then those willing to exploit their entitlements act to the defecit of society. The government needs to limit rights.
- Too Few Rights. If the government does not protect natural rights, innocent people suffer from persecutions, and again the State of War increases. When the government acts to protect natural rights, the conflict decreases, the power of natural law increases, and the nation returns to peaceful prosperity. The government needs to increase rights, or increase restrictions.
Thus, when natural rights are abrogated, the social contract is broken, and the consequence is conflict to some extent. If the abrogation is great, the conflict leads to war. On this basis it is possible to make fairly well qualified predictions of the results of political actions. This I refer to as theLaw of Liberty. That is:
which violate the social contract
cause a corresponding degree
One famous noted case is the prohibition period. Believing it would increase happiness, the USA made alcohol constitutionally illegal. But the conflict over the loss in liberty was more severe than expected. When the prohibition was repealed, crime rate dropped dramatically, increasing again during the war on drugs.
The prohibition case is rare, because it was a situation where a prior restriction was revoked. When rebalancing the social contract, the natural tendency of those in power is to increase legislation, as it is simpler than modifying constitutional law. Over time, this results in increased increased codification, which makes the process of exercizing legal control increasingly complex (seeLegal positiivism).
With social-contract theory, the nature and extent of the conflict is predictable by the degree that a modification in rights or rules violates the social contract. That defines the liberty of government in its choices to change policy without incurring challenges to its own authority. If the violations are such that the entire social contract is invalidated, the result is war. Lesser violations cause dissent.
With reference to the USA, this is further complicated by the depth of the rational social contract behind its authority. The system of government is based on a very advanced set of natural laws, primarily derived from Locke; but Locke's ideas of governnment are, in turn, founded on Aristotle's idea of a democracy. The consequence is that abrogrations of Locke's social contract causes afallback ontoAristotleian fate.
The homeostasis is further complicated by additions to the equation over the last two centuries, which include utilitarianism and new legal theories, discussed in the next topic, "New Ideas in Natural Law: from Rousseau to Current Day."
This series,All People are Created Equal, contains two further topics:
- Hume, David.A Treatise of Human Nature, Volume 1 (London, 1739). Retrieved fromhttp://www.davidhume.org/texts/thn.html.
- Jefferson, Thomas. "Declaration of Independence," Original Drafts,The Papers of Thomas Jefferson, Volume 1: 1760-1776 (Princeton University Press, 1950). Retrieved fromhttps://jeffersonpapers.princeton.edu/selected-documents/jefferson%E2%80%99s-%E2%80%9Coriginal-rough-draught%E2%80%9D-declaration-independence-0.
- Locke, John.First Treatise of Government (London, 1690). Retrieved fromhttp://oll.libertyfund.org/titles/locke-the-two-treatises-of-civil-government-hollis-ed.
- Locke, John.Second Treatise of Government (London, 1690). Retrieved fromhttp://www.gutenberg.org/files/7370/7370-h/7370-h.htm.
- Locke, John.Essay on Human Understanding, Volume I, Books I and 2 (London, 1691). Retrieved fromhttp://www.gutenberg.org/files/10615/10615.txt.
- Meyer, Ernest.Origins of Natural Law (Yofiel, 2016).http://www.yofiel.com/social-contract/the-origins-of-natural-law.
- Meyer, Ernest.Early Divergence in Divine and Natural Law (Yofiel, 2016).http://www.yofiel.com/social-contract/divergence.
- Meyer, Ernest.The Social Contract in the United States (Yofiel, 2016).http://www.yofiel.com/social-contract/american-social-contract.
- Meyer, Ernest.New Ideas in Natural Law: Rousseau to Current Day (Yofiel, 2016).http://www.yofiel.com/social-contract/new.
- Montesquieu, Baron Charles de Secondat.Spirit of Law (1748 AD). Retrieved fromhttp://oll.libertyfund.org/titles/montesquieu-complete-works-vol-1-the-spirit-of-laws.
- Reid, Thomas.An Enquiry into the Human Mind on the Principles of Common Sense (London, 1764). Retrieved fromhttps://play.google.com/books/reader?id=e2QAAAAAMAAJ.
- Rousseau, Jean-Jacques.The Social Contract, or Principles of Political Right (Paris, 1762). Trans. G.D.H. Cole [Oxford, 1762] Retrieved fromhttp://www.constitution.org/jjr/socon.htm.
- Rousseau, Jean-Jacques.Declaration of the Rights of Man and the Citizen (Paris, 1789). Retrieved fromhttp://avalon.law.yale.edu/18th_century/rightsof.asp.