Returning to natural law

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

Most of our legal understanding arises from the perspective of the positivist theory of law, which problematically compels one to essentially take the view that a law should still be followed even if such is unjust or immoral. This is perhaps understandable when one considers that a substantial number of our law professors were brought up appreciating the contributions of Oliver Wendell Holmes in legal thinking, particularly his quite popular essay "The Path of the Law."

But there’s another school of legal thinking, one based on natural law. However, the difficulty of the latter has been illustrated by Murray Rothbard as follows: "In the controversy over man’s nature, and over the broader and more controversial concept of ‘natural law,’ both sides have repeatedly proclaimed that natural law and theology are inextricably intertwined. As a result, many champions of natural law, in scientific or philosophic circles, have gravely weakened their case by implying that rational, philosophical methods alone cannot establish such law: that theological faith is necessary to maintain the concept. On the other hand, the opponents of natural law have gleefully agreed; since faith in the supernatural is deemed necessary to belief in natural law, the latter concept must be tossed out of scientific, secular discourse, and be consigned to the arcane sphere of the divine studies. In consequence, the idea of a natural law founded on reason and rational inquiry has been virtually lost. The believer in a rationally established natural law must, then, face the hostility of both camps: the one group sensing in this position an antagonism toward religion; and the other group suspecting that God and mysticism are being slipped in by the back door."

Nevertheless, the prevailing rejection by most local lawyers of natural law is somewhat ironic when one considers the heavy reliance that our legal tradition has on the same. Most recent significant example of which is the Supreme Court’s ruling in Estrada vs. Escritor, which tolerated non-application of the law on the basis of "sincere religious belief." The ruling recognizes the "religious nature of Filipinos" and the "elevating influence of religion in society." As the Supreme Court declared: "man stands accountable to an authority higher than the State."

Indeed, the foregoing ruling should be no surprise to Filipino lawyers considering that natural law strongly runs through the vein of the Constitution. While focus is on Articles II and III of the Constitution (i.e., the non-impairment clause, taken wrongly as separation of Church and State, for which more accurately non-discrimination against any religion was intended), it must also be remembered that the very first sentence of our Constitution actually contains a fervent appeal to our Creator: "We, the sovereign Filipino people, imploring the aid of Almighty God ..." The Constitution goes on to enumerate instances of adherence to natural law: from "truth," the proscription against aggressive war, the preservation of the family, to taking care of the environment.

The Constitution’s reliance on natural law is most strongly seen in the Bill of Rights. Contrary to popular belief, the rights contained therein are not given by the Constitution. Those rights (e.g., to life, liberty, and property, etc.) exist independent of the Constitution because such are considered inalienable and inherent ("natural") to man. There are instances perhaps when State interests may require the temporary modification or suspension of such rights. The Bill of Rights merely serves as a limitation or framework within which that modification or suspension could be made. Now one of those rights considered inalienable and inherent (including those enumerated above) is the freedom to exercise one’s religion.

The beauty of natural law lies in the fact that it proceeds from "right reason," that is, regardless of one’s religious affiliations. Even before St. Aquinas discussed the subject, Aristotle and Cicero had thought about it, then Hobbes and Kant and such other philosophers. The Maturidi, a school of Sunni theology, declares that "the human mind could know of the existence of God and the major forms of ‘good’ and ‘evil’ without the help of revelation." This is illustrated by its proscription on stealing, murder, and adultery.

The problem with the positivist legal theory (which necessarily would be advocated from a purely secular orientation) is that unanchored as it is on any fixed moral principle, even an act such as a law calling for genocide could be legal and should be complied with for the simple reason that it is the law. It is perhaps because of the huge advances in technology and globalization that natural law is attaining a form of resurgence, with legal theorists John Finnis, Germain Grisez, Joseph Boyle, and (my master on the subject, his In Defense of Natural Law should be required reading for law students, lawyers, and policy makers) Robert P. George leading the way.

That’s it for now on the subject but I shall definitely be discussing more about natural law in future articles for this column.