Stop using natural law wrongly!

my Trade Tripper column in the 19-20 February 2016 issue of BusinessWorld:

(This article was co-written with Atty. Cristina Montes, LLM Navarre, a specialist on globalization and constitutional issues, and cofounder of the Philippine Principles Institute)

That the Philippine legal system is substantially founded on natural law -- an objective standard of right and wrong based on a correct understanding of human nature and discoverable by reason, transcending positive laws and to which the latter must conform -- should be uncontroversial. Many important events in world history, such as the movements against slavery and racial segregation in the United States and the prosecution of war criminals at Nuremberg, depended on it.

In fact, the seeming local unfamiliarity with natural law is ironic considering our strong affinity to the Bill of Rights. These rights (e.g., to life, liberty, and property, etc.) exist independent of the Constitution precisely because such are considered inalienable and inherent (“natural”) to man.

One can clearly discern natural law clearly in our history, with figures such as Jose Rizal and Apolinario Mabini intellectually relying on the same: the former recommending natural law be taught to “form and educate young men of good family”; the latter believing that determining good and evil is done through one’s conscience and man’s ability to reason.

However, since natural law theory is given a superficial treatment in law schools -- if ever it is taught at all -- many lawyers either reject the natural law theory on mistaken beliefs about it, or apply it erroneously.

For example, many criticize natural law theory on the belief that it is a theological or philosophical notion that has (or should not have) any bearing at all on society, or that it is a Catholic notion that has no place in a pluralistic society.

The first position is absurd as it assumes that laws do not have any philosophical foundation whatsoever. And contradictory as well because to posit that laws have no philosophical foundations is itself a philosophical foundation.

As for the second position, while it is true that the influence of the Enlightenment and the Judeo-Christian philosophy in our Constitution is undeniable, it’s wrong to assume that only Catholics are capable of arriving at a notion of a universal human nature or immutable human rights.

The Judeo-Christian philosophical structure is heavily reliant on reason (rather than mere Scriptural or “revealed truths”) and such reason itself is available to all regardless of one’s faith.

There is also the diversity of natural law thinkers throughout history, including pre-Christian Greeks and Romans like Sophocles, Aristotle, and Cicero; some Islamic scholars like the Mutazilites; and Protestants like Hugo Grotius, among many others.

Another criticism of natural law theory is that it breeds instability by encouraging judges to resort to extra-legal criteria in deciding cases.

Unfortunately, this criticism is not totally unfounded as the notion of natural law has been abused by those citing it as an excuse to deviate from the law or even the Constitution to suit a particular agenda.

One example would be those who espouse the “living Constitution” theory, or the notion that the Constitution is fluid and can be given any interpretation -- no matter how obviously strained -- in order to accommodate any government action that clashes with the literal meaning of the Constitution.

Another example would be those who advocate deviating from the literal text of the law out of pity for a class deemed to be deserving of pity -- such as foundlings with presidential ambitions.

These abuses of natural law arise not from the notion of natural law, correctly understood, but from misunderstandings of what natural law is.

Such misunderstandings forget that while natural law transcends positive law, it is also objective. It is based on universal human nature, not on the whims of whoever is in power. They also mistakenly assume that the essence of natural law is in being opposed to positive law.

It is true that natural law is usually invoked in opposition to positive law where the positive law that applies to a given situation is unclear, or where a strict application of the positive law will yield an absurd or patently unjust result that will defeat the purpose behind the legal provision in question.

But in general, natural law theory itself demands obedience to legitimate human authority as a necessary element of the common good. Natural law also grants authorities the flexibility to enact measures that, though not essential to achieving human flourishing, are necessary to pursue inherent human goods. An example of such would be traffic rules.

Disseminating more information about natural law theory is an immediate solution to such misunderstandings. But truer remedies lie deeper.

We must rid ourselves of preconceived liberal prejudices and instead assign value and reward efforts to learning correctly about human nature, of truth, and objective moral standards. Otherwise, laws -- and the words that make up those laws -- will not mean anything.

Esoteric as these issues may seem, how we respond to them will profoundly impact our society

When law schools go left

my Trade Tripper column in the 12-13 February 2016 issue of BusinessWorld:

In the US, indubitably true. There, it is quite a given that whether the school be Yale or Harvard or Georgetown the chances that the faculty (and its students) will tilt to the left of the ideological spectrum is stratospheric. A well-known 2005 study by John O. McGinnis, Matthew Schwartz, and Benjamin Tisdell found that 94% of Stanford Law’s faculty contributed to Democratic candidates. This one-sidedness is hugely disconcerting.

At the “elite” level, the same could probably (arguably) be said of Philippine law schools. At least undeniable is that the portion of the Philippine legal community deeming themselves as secular “progressives” or “radical” activists is unabashedly noisier.

The problem with the unchecked dominance of leftist or progressive law schools (or even simply law faculties overrun by progressives) is profoundly significant:

“The best way to get to truth is through the clash of zealous advocates on both sides. All of these law professors have, in theory, dedicated their lives to the study of this axiomatically adversarial system. And yet, at most of these schools, on most of the important issues of the day, one side of the debate is dramatically underrepresented, or not represented at all. One result, unfortunately, is a certain lack of rigor. To be blunt, a kind of intellectual laziness can set in when everyone agrees.” (Nicholas Quinn Rosenkranz, “Intellectual Diversity In The Legal Academy,” 2013).

This similarity of thought, the bland uniformity, veering towards the secular progressive mind-set does not bode well for the Philippine legal profession: an expression of a contrary opinion (like supporting traditional families, that gender differences are not social constructs, or that citizenship matters) would be met by apoplectic reactions resembling epileptic seizures. This is not legal education. It’s leftist indoctrination.

And this “indoctrination” permeates throughout society: to the clients advised, the politicians elected, judges deciding between parties, to the media that interview or seeks lawyer’s opinions on matters of national importance, and the people who listen or read them.

Unfortunately, as Rosenkranz (a Georgetown law professor, cheerfully identifying himself as only 1 out of 3 conservatives in a faculty of 120) observes: “this intellectual homogeneity impairs analysis of law in progress -- law as it unfolds out in the world.”

Or stated another way, as a Washington Times report (“The academy’s war on free thinking”; 2013) puts it “Unfortunately, a foundational tenet of legal education [understanding competing arguments and concepts] is not realized in the nation’s leading law schools, including Harvard, where students learn a narrowly progressive view of the law from a predominantly leftist faculty.”

One significant aspect of what is essentially “groupthink” among law faculties is that it encourages disrespect for the rule of law just to achieve a policy or ideological objective (oftentimes disguised under the “narrative” of “social justice”).

This unfortunately leads a society to chaos: an Executive branch that thinks nothing except to persecute its enemies, a Legislative branch that cowardly bows before the presidency, a Judicial branch that believes itself wiser than the other two branches (including the people themselves) and thinking itself entitled to legislate for everyone.

A bright spot: UA&P’s School of Law and Governance’s attempt to fuse liberal education with law, offering competing thoughts for the students to work out on their own: between positivism and natural law, the “originalist” thinking and the “living constitution” theory (which really needs further scrutiny), and so on.

But more needs to be done.

No law student anywhere should be marginalized for thinking differently. Or taught to resort to ad hominem arguments in discussions pertaining to law and morality, pluralism and religious rights. The important thing is that the students think rigorously and think on their own.

Finally, there is this: I participated last year in another university’s student job fair. Invited, aside from myself, were lawyers from various other law schools, there to discuss the merits of their own institutions.

The representative from a top (some would say the best) law school was a young, confident, well-dressed, female lawyer who talked in grim terms how difficultly Darwinian law school is. Classmates intensely competing against each other. Their teachers constantly (if contradictorily) telling them to have compassion for the weak but demanding they leave law school if they themselves are “weak.” All this told with F-bombs in every sentence. Perhaps to appear edgy. Also because, so she says, that’s how it was in her profanity-laden classes. I felt sad for her.

And I guess this is where the problem ultimately lies.

Law is about relationships: between individuals and between individuals and the State. Ultimately, law is about people.

If our law classrooms do not respect human dignity, from the womb and until death (or even beyond), in fact teaching there is no such thing as truth and that everything is relative, instructing students to label ideas they disagree with as medieval, then what kind of lawyers are we unleashing on society?

We all deserve better than that.