More on natural law

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

Natural law plays an incredibly significant part in our society. And history. Yet natural law is practically a forgotten part of our legal education. Most legal scholars here probably would rather have it conveniently ignored. Partly from a fondness for Oliver Wendell Holmes but more likely from the prevailing academic fashion of secularism, legal positivism, realism, or relativism, natural law has been pushed to the side. But to allow such would render baseless our quests for independence against foreigners, the civil disobedience movement during the Marcos years, and the subsequent People Power Revolutions. All that could only see justification through natural law.

Holmes was wrong about natural law and profoundly inaccurate when he asserted that “the life of the law has not been logic, it has been experience.” For experience is but a tool to uncover the principles that we seek. Holmes himself would be found inadvertently contradicting his famous dictum in his other writings. And John Austin’s definition of law, which most of us lawyers memorized by heart (“law is a rule of human conduct promulgated by competent authority ...”) is incomplete. Otherwise, everybody should have unquestionably obeyed the Marcos, Estrada, or Arroyo governments. Or even Hitler. And to the secular positivist or relativist charge that “nobody has the right to impose one’s morality on others,” the answer is simple -- every law imposes a morality. The only question is which one to impose. Any law that purports to be free of morals is still a law imposing its own kind of morals. Finally, to criticize natural law by saying that there are no absolutes is a self-defeating argument because to say there are no absolutes is itself relying on an absolutism.

There is nothing mysterious about natural law. It is, simply put, an objective standard of right and wrong that any human being can arrive at through the independent use of right reason. Murder, theft, adultery, for example, are all objectively wrong, for which no circumstance can make right (acts done in self-defense or cultures that accept polygamous marriages are to be differentiated from murder or adultery). Such acts will always be wrong regardless of whether you are Muslim, Christian, agnostic, or atheist. Or American, Arab, Polynesian, or Asian. The objective standard of natural law is distinct, however, from the so-called subjective culpability (which I’ll take up in another future article).

To take an illustration by Princeton’s Robert P. George (taken from his remarks before the American Political Science Association Convention) on the use of reason arriving at an objective norm of right and wrong: “A human being is conceived when a human sperm containing twenty-three chromosomes fuses with a human egg also containing twenty-three chromosomes (albeit of a different kind) producing a single-cell human zygote containing, in the normal case, forty-six chromosomes that are mixed differently from the forty-six chromosomes as found in the mother or father. Unlike the gametes (that is, the sperm and egg), the zygote is generically unique and distinct from its parents. Biologically, it is a separate organism.”

“Assuming that it is not conceived in vitro, the zygote is, of course, in a state of dependence on its mother. But independence should not be confused with distinctness. From the beginning, the newly conceived human being, not its mother, directs its integral organic functioning. It takes in nourishment and converts it to energy. Given an hospitable environment, it will, as Dianne Nutwell Irving says, ‘develop continuously without any biological interruptions, or gaps, throughout the embryonic, fetal, neo-natal, childhood, and adulthood stages -- until the death of the organism.’”

From the foregoing, anybody can now logically conclude, as George does, that: “The scientific evidence establishes the fact that each of us was, from conception, a human being. Science, not religion, vindicates this crucial premise of the pro-life claim. From it, there is no avoiding the conclusion that deliberate feticide is a form of homicide.”

There are numerous instances of human law (or positive law) being in conformity with natural law. One clear example is the Constitution’s Bill of Rights. Admittedly, there are instances when State interests may require the temporary modification or suspension of such rights. Nevertheless, those rights (e.g., to life, liberty and property, freedom of speech, etc.) actually exist independent of the Constitution because such are considered inalienable and inherent (“natural”) to man.

That is why we judge a law’s propriety first on the basis of its constitutionality. But what if an unjust law is ruled as within the bounds of a constitution (such as previous US racial segregation rules) or, worse, when a constitution itself contains unjust provisions (which is always possible, our previous martial law provisions come to mind)? Natural law could now be relied on to correct the situation. It is certainly the only logical basis for “civil disobedience” against a validly promulgated but unjust law. As our Supreme Court declared: “man stands accountable to an authority higher than the State.”