This is the second in a series of three essays.
The notion of laws and the rule of law are an attempt by humans to codify what each of us is born knowing to be true. Our behavior towards one another is governed by something called natural law. Natural law is a product of who we are as humans. It is our natural understanding of right and wrong that has evolved in us right alongside our aversion to falling from a great height and our ability to throw rocks accurately. Without these faculties we would not live as long as our brethren, dying because of our lack of hunting skills, or from falling off a cliff because we didn’t know enough to stay away from the edge, or simply because we misjudged our companions’ motives and succumbed to their evil schemes against us. Yes, judging the morality of the behavior of other humans is something we all innately have the ability to do.
Some doubt that this is true. But consider what it means if it is false. Our current justice system is predicated on the ability of twelve jurors to judge the morality of the actions of a defendant, to be presented with both the facts of a case and the attendant law, and to adjudicate. If humans are not capable of making those judgements, then justice can never be served under our current system. We would all be just as well off simply rolling dice or flipping a coin to determine the outcome of a trial.
Sometimes our laws are incongruent with natural law and we judge the laws themselves to be immoral — the Fugitive Slave Laws, for example. Other laws, however, simply reinforce our inherent understanding of natural law, and declare things like murder and rape to be immoral, for example. A third class of laws fit into neither of these categories and will be discussed in more detail as part of my third principle.
A common thread that runs throughout the behaviors defined as immoral by natural law is the initiation of force. Just about any crime you can name involves the initiation of force against someone. The important point here is that it is the *initiation* of force that is immoral, not merely the *use* of force — self-defense is therefore excluded as perfectly legitimate. But those that would initiate force against another by way of theft, fraud, or some other means, run afoul of natural law and would be judged accordingly by a jury of their peers.
George Washington said that “Government is not reason; it is not eloquence; it is force!” Indeed, at its most fundamental level, that is all government can claim to be. So it is interesting to note that when that force is used in response to someone’s unlawful behavior, we say that the government does good. But what about when government initiates force against one of its own citizens that has done nothing to deserve it? That action is also immoral, regardless of the fact that government was the actor. The only purpose of government is to protect the rights of the individual. Actions taken by government that violate these rights (including the enforcement of laws that violate these rights) are not legitimate.
So it would seem that for a law to be legitimate it must be congruent with natural law and not violate the rights of the individual. But what rights are we talking about? That brings us to my third principle.