Natural Law and “This Court’s Authority”

Talk about a teachable moment: I couldn’t believe it when I found a reference to “natural law” in a Washington Post article about Rowan County Clerk Kim Davis’ ill-fated conscientious objection to our new marriage regime. I couldn’t resist taking it to my students, all sophomores in a core class where we’re currently reading and discussing John Locke’s Second Treatise of Government

Here’s what Judge David Bunning, a conservative Catholic appointed to the bench by President George W. Bush, said: “The idea of natural law superseding this court’s authority would be a dangerous precedent indeed.”

I asked my students what they thought of this statement, and several of them called my attention to a passage in today’s assignment where Locke contends that when human beings enter civil society, they give up the freedom they have in accordance with natural law “to be regulated by laws made by society” (Section 129). Society’s law seems to trump—pardon the expression—natural law. To the degree that Judge Bunning’s authority derives from human-made law, he would seem to have gotten matters right.

But, according to Locke, that’s not the whole story. In a later passage, one my students will read (if they know what’s good for them), that “the law of nature stands as an eternal rule to all men, legislators as well as others” (Section 135).

Let me rephrase Locke’s argument in Judge Bunning’s somewhat infelicitous language.

For Locke—indeed for virtually anyone who takes natural law seriously—natural law always in a sense supersedes human law because it is the source of that law’s authority. Just government, the Declaration of Independence tells us, rests on the consent of the governed, and we the people, Locke tells us, cannot consent to anything we cannot ourselves do. As we are limited by the strictures of natural law, so is any government whose actions and laws we authorize. Again, borrowing some of Judge Bunning’s language, the court’s authority derives from our authority, which is confined by natural law.

Does this mean that each of us, interpreting natural law for himself or herself, is a law unto himself or herself? Are we courting anarchy, a return to the “state of nature,” when we talk about natural law? That’s what Judge Bunning, I’m sure, fears, and it’s a prospect that any of us who understand ourselves as bound by natural law would very likely (at least in all but the most extreme circumstances) reject. We should recognize that in order to live up to our obligations—to ourselves and to others—under natural law, we need to consent to a lawmaking authority that can clarify for us what natural law means in our circumstances and see to it that the obligations it prescribes are effectively articulated and enforced. So the two passages from Locke’s Second Treatise, quoted above, are perfectly consistent with one another.

Now this most emphatically doesn’t mean that once we’ve given our consent, we never have to think about natural law again. We do so whenever, for example, we consider whether a law is just or not. In that instance, if we’re not simply expressing an idiosyncratic preference, we’re holding law to a higher standard, a natural law standard, if you will. Applying this standard doesn’t mean that we regard ourselves as entitled simply to ignore a law that we believe is unjust. Rather, we might contemplate a variety of ways of changing that law—from petitioning the government for a redress of our grievances, to voting in a new slate of legislators, to engaging in civil disobedience, all the way to making a revolution.

I’m pretty sure that, to the extent that she has thought it through, Kim Davis is all about the first three alternatives and not at all about the last one.

But let me return to Judge Bunning for a moment. If he simply rejects natural law on behalf of “this court’s authority,” then he is ultimately and (I hope) unwittingly a proponent of legislative and judicial tyranny, of the willful and arbitrary rule of men (and women) who make and interpret laws without any regard at all to a higher standard of justice.

Say it ain’t so, Judge Bunning.

Reader Discussion

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on September 08, 2015 at 10:21:53 am

Professor Knippenberg has contributed to no-harm personal liberty and domestic goodwill (PL&DG)--done his job-- in noticing Judge Bunning's willfulness in the statement, “The idea of natural law superseding this court’s authority would be a dangerous precedent indeed.” Unfortunately his attitude emerges from Justice Kennedy's fetish as the lord of dignity. It's as though none of them learned from Dred Scott.

It is appropriate for students to breeze through Locke (d. 1704) for understanding. However, the language is obsolete. "Natural law" needs interpretation for 2015 PL&DG. Persons today have the benefits of Einstein (d. 1955), Matt Ridley (b. 1958) and so many more people who moved humankind into the era of physics-based ethics. But law in the USA is out on limbs that inhabitants may view as rotten--regardless of whether they benefit or suffer the law.

How does physics-based ethics work? Use Albert Einstein's essay found at www.samharris.org/blog/item/my-friend-einstein to introduce your students to physics-based ethics. Einstein's only example is lying: we don't lie to each other so that we can trust our statements. Einstein spoke to a special audience and was perhaps subtle or for other reasons vague. I've studied the speech since 2011 and write about it; please google Physics-based Ethics: Civic Examples.

Only yesterday (9/8) I modified Einstein's sentence to fit my view of his message: "It is the privilege of man’s moral genius . . . to advance ethical axioms which are so comprehensive and so well founded that men will accept them as grounded in the vast mass of their individual . . . experiences." It is well worth a law professor's time to ponder Einstein's view of law.

There is a modern trend toward evidence-based decision making. That's a step in the right direction. However, evidence can be manipulated to suit the user's purpose. For example, in building the public response to "We're in love and just want to be married," USA law systematically ignored the child's plea, "My genes represent my heritage and I do not want adult contracts to separate me from the couple that conceived me." The child's dignity was subjugated for "gay pride." Only arguments rooted in physics can help judges arrive at ethical opinion.

Law professors exist to serve PL&DG, and if they are not doing so, they need to consider reform. The Supreme Court of the USA sorely needs reform. And they do not need to go back to before: they need to comport to physics-based ethics now and in the future.

Repeating myself, Professor Knippenberg seems open-minded to the switch from "natural law" to "physics-based ethics." If his students consider the arguments and reject them, that's OK (but I'd like to know the arguments; the only reason I post is to learn from the responses).

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Phil Beaver
on September 08, 2015 at 11:06:57 am

“The idea of natural law superseding this court’s authority would be a dangerous precedent indeed.”

Applying this [natural law] standard doesn’t mean that we regard ourselves as entitled simply to ignore a law that we believe is unjust. Rather, we might contemplate a variety of ways of changing that law, from petitioning the government for a redress of our grievances, voting in a new slate of legislators, and engaging in civil disobedience all the way to making a revolution.

1. Does Knippenberg argue that people who petition the government for a redress of our grievances, vote in a new slate of legislators, and engage in civil disobedience supersede the court’s authority? Or that courts cannot take cognizance of these acts? For that matter, are courts somehow precluded from taking cognizance of revolutions, or exercising jurisdiction over revolutionaries that fall into the state’s custody?

If not, then I don’t see the conflict between the judge’s remarks and Knippenberg’s claims for natural law. Boiled down, Knippenberg argues that natural law provides a basis upon which people may (and, in Kippenberg’s view, should) take political action. Cool – but that doesn’t amount to an argument for superseding court authority.

2. Whatever the merits of Knippenberg’s arguments for natural law in general, it seems ludicrously attenuated as applied to the current circumstances. Members of the public are asking a government official to perform a ministerial task. Neither the law nor any of these people asking to have this task performed have asked for this official’s opinion. But she has decided to exercise her raw power to deprive people of a service to which they are legally entitled. This is no different than if she exercised her power to deprive blacks, Jews, and Catholics of marriage licenses. I don’t see how natural law, even if it supports her opinion, justifies her abuse of power. The power she lawfully has is to resign. She has instead chosen to exercise power not lawfully delegated to her. And natural law supports government officials abusing their discretion – how?

Want to characterize her behavior as an act of civil disobedience? Great. But you don’t need to appeal to natural law to engage in civil disobedience. Moreover, people who engage in civil disobedience fully expect to bear the legally-prescribed penalty for their actions. To argue that natural law should relieve her of the duty to bear this penalty would argue that she’s not really engaged in civil disobedience.

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on September 08, 2015 at 11:59:06 am


Gee, are you reading a tad bit too much into the essayists words here? I, for one, did not get the sense that the author was asserting that natural law relieves the clerk from the obligation to perform her duty. Rather, natural law may (ought to?) inform her actions; the author also does make mention of the legitimacy of positive law / civil law, does he not?

I think also that the author was simply taking the good judge to task for comments that could rather easily be viewed as denying any legitimacy to "natural law" and instead placing positive law as the be-all and end-all of civic behavior.
As in all things one must find and strike a balance. Perhaps Knippenberg is simply trying to illustrate this.

I do agree with you regarding her *obligation* to resign. Civil disobedience is one thing - practice it as a citizen NOT as a government agent. To do so would surely result in untold mischief.

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on September 08, 2015 at 14:10:07 pm

Perhaps there is something afar from this case of the performance of elected public office.

What, if anything, does supersede "the authority of this Court?"

If nothing, then the Court is Sovereign.

"Well, there is appeal."

But then, is any Court Sovereign?

Strangely, in the case of Rules of Policy (legislation, regulation -
man-made "law") the Courts are deemed Sovereign by need for finalities.

In other matters, where the **LAW**, formed in human understandings and senses by the same circumstances (factors) of human relationships that formed the social order (in whatever form it is found), may be taken as "Natural Law" (in deference to its origins), Judges and the procedures of courts are not Sovereign.

What "authority" we have, individually or as groups, over the determinations of "ought" is not valid beyond LAW. We may purport to delegate that authority (which, in the end is no more than our force), but what we delegate is never more than what we had.

So, the response to the judicial concern is; sometimes NO; sometimes YES.

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R Richard Schweitzer
on September 08, 2015 at 15:31:59 pm

In his 1941 speech about laws, Albert Einstein's only example was that we don't lie to each other so that we can trust our statements. One lies when he/she cites an authority they actually do not know.

President George Bush told Bob Woodward that his higher father influenced him to invade Iraq. The world is paying the price.That's the way physics works.

All this legal sophistry is out on the limb of rebuking physics: energy, mass, and space-time, from which everything emerges. "Everything" includes imagination, discovery, understanding, perception of benefits of understanding, speculation as to what could be, beliefs, religions, fiction, lies, ethics, and commitments--men's responses to physics. Laws come from ethics and the quicker judicial systems conform to physics the faster people enjoy no-harm personal liberty and domestic goodwill (PL&DG).

I hope someday soon lawyers and law professors will add to "Catch 22" statements like, "Be certain you're focused on PL&DG."

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Phil Beaver

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