Some Forgotten Founders of Natural Law Theories on Justice and Power
by Dr. Robert Dickson Crane
“Justice, sir, is the great interest of man on earth. It is the ligament which holds civilized beings and civilized nations together.”
Funeral Oration by Daniel Webster for U.S. Supreme Court Justice Joseph Story, September 12, 1845.
The freest government, if it could exist, would not be long acceptable, if the tendency of the laws were to create a rapid accumulation of property in a few hands, and to render the great mass of the population dependent and penniless. In such a case, the popular power must break in upon the rights of property, or else the influence of property must limit and control the exercise of popular power. ... It would seem, then, to be the part of political wisdom to found government on property; and to establish such distribution of property, by the laws which regulate its transmission and alienation, as to interest the great majority of society in the protection of the government. This is, I imagine, the true theory and the actual practice of our republican institutions.
Address to the Massachusetts Convention, 1820. Journal of Debates and Proceedings in the Convention of Delegates Chosen to Revise the Constitution of Massachusetts. Boston, 1853, pp. 304-317.
U.S. Supreme Court Justice Joseph Story was America’s greatest jurisprudential champion of natural law and the youngest ever member of the court. During his term in office from 1812 to 1835, he served as an ally of America’s greatest Chief Justice, John Marshal, who was a follower of Montesque and is credited with creating the judiciary as the third estate or branch of American government, following the legislative and executive branches, which were not emphasized in the founding documents. Story was nominated to the court by James Madison. Thomas Jefferson and Madison were the major formulators and founders of the natural law tradition in the modern world.
The entire history of Anglo-American civilization can be viewed most usefully through the lens of the conflict between the paradigm of immanence embodied in positivist law and the paradigm of transcendence embodied in the Abrahamic tradition of natural law. Positivist law is epitomized by John Austin, who died in 1859. The Austinian “command theory of law,” also known euphemistically as “analytical jurisprudence” to exclude any source of law other than the relativism of rational thought, replaced Story’s natural law theory after the American Civil War as the paradigm shaper of secular fundamentalism in American governance. For more than a century Harvard Law School was the positivists’ “fount of wisdom”, though during the last third of the 20th century the concept of “justice” was slowly revived there through an expanded understanding of natural law to include wisdom derived from divine revelation and from the coherent order of nature, as well as through rational analysis of the first two.
Legal positivism denies the very existence of justice, whereas natural law denies the authority of positivist law without justice as an informing framework. Respect for natural law can be viewed as the principal dynamic in the rise of civilizations, just as denial of natural law may be the primary cause of civilizational decline. From this perspective one might conclude that the American Revolution was unnecessary, because, without it, the Whig Party’s reliance on natural law, led by Edmund Burke as a student of the Scottish Enlightenment, might have become the majority party in Parliament and changed the course of world history. The aftereffect of the American Revolution was the abandonment of natural law in England and eventually its abandonment in America in favor of power as the ultimate aim of government, after which justice became an empty shell not worthy of further consideration. Future historians may conclude that this abandonment was what ultimately caused the collapse of modernism and of what is now known as Western Civilization, because, as Daniel Webster put it, justice “is the ligament which holds civilized beings and civilized nations together.”
All the world religions have a code of human rights based on natural law. The best articulated one as systems theory is the Islamic set of universal principles known as the maqasid al shari’ah, which was developed during the classical period from the 3rd through 6th Islamic centuries but has been largely abandoned for more than six hundred years. The major task of intellectuals in all the world religions is to restore natural law as the most reliable source of peace and prosperity through compassionate justice. In the Western world, the great mentors for this purpose include the the 20th century’s Mufti Ibn Ashur from Tunisia, Joseph Story from 19th century America, the Andalucian, Al Shatibi, from the 14th century, and before him Maimonides and Thomas Aquinas, as traditionalist fathers of natural law.