Among our decaying institutions, law has now entered into a new phase that creates dilemmas for peaceful citizens. Conservatives have long revered the rule of law as a source of order. They have opposed the radical left that desires to overthrow this order, and therefore has no qualms about breaking the law to achieve its end.
Throughout our nation’s history, law has been anchored in reasonable and ancient foundations that date back centuries before our independence. This has provided the basis for debate and consensus needed for an ordered society.
However, issues like abortion, gun control and transgender rights have now broken these foundations and imposed new alien rules. Judicial activism has stretched the boundaries of this debate. Law has come to reflect those who interpret it. Decisions like Roe v. Wade have stained and disgraced the judiciary by taking away legal protection to the most vulnerable members of society—the unborn.
Law that seemed so stable has now descended into chaos.
A New Phase in Legal Decadence
The new phase in legal decadence is extending to more coercive measures that force people to do that which they cannot in conscience accept. The latest flashpoint is in Virginia, where liberal politicians made campaign promises to enact stricter gun control laws. Many Virginians feel threatened and are protesting.
A constitutional crisis over Second Amendment rights has ensued. Ninety-one of the Commonwealth’s 96 counties have declared themselves Sanctuary counties where local law enforcement declare that they will not enforce new laws they deem to be unjust and unconstitutional.
These Virginians are not alone. The Second Amendment Sanctuary movement appears to have strong support in 31 states. In parallel, anti-abortion Americans are building a “sanctuary cities for the unborn” movement. While in its turn, on the political left, the Illegal Immigration Sanctuary movement finds support in some 21 states.
In challenging unjust laws, many conservatives are unsure how to justify their positions in the face of a legal system they have always revered. They feel caught on the horns of a dilemma. Some are tempted by the slogan circulating among them that when laws seem unjust, it is time for a revolution. Addressing the dilemma is crucial for conservatives. The left, as is known, loses no sleep over anarchical overtones.
The Nullification Dilemma
The dilemma opens a Pandora’s box that does more than oppose bad laws. It throws all civil authority into question. Some local governments believe that they might “nullify” (declare void) the oppressive actions of higher governing bodies. Some take this one step further by anarchically declaring that individual citizens are entitled to nullify any laws they deem unjust.
Such reasoning turns law into mere opinion opening the way for all law to be undermined. Each person potentially becomes a separate law unto self. If all law is based on opinion, then no single person’s judgment is any more valid than another’s. Might easily becomes right in such a situation. This is anarchy.
Changing Law to Suit the Passions
For a long time, constitutional protections were strong enough to safeguard the rights of citizens—even those unborn. However, the progressive erosion of legal concepts has now led to laws that defy the norms of right reason, which law should reflect. Law now “evolves” to suit human passions, not reality. New “rights” are found in its dark penumbras and ambiguities. Morality is discarded in favor of liberating aberrations masquerading as freedoms.
Challenging such a distorted notion of law on its own terms is futile. We cannot expect to win using the same mechanisms as the opposition.
If legal relativism is accepted, there can be no certainties—including our own. When positive law alone rules, there are no guiding principles that can establish immutable safeguards that will uphold citizen rights. Our present state of legal confusion will only become worse since it will enshrine chaos, not justice, into our judicial system.
The only way out of our constitutional crisis is to return to the higher law tradition upon which our legal system is based. We can no longer live upon the remnants of this tradition that still manage to maintain some order in society. This higher law tradition is found in our Common Law that reaches back over 900 years. It is based on human nature and not the fickle will of individuals. Such law is not defined by might or partisan politics but immutable principles.
Appealing to a Higher Law
What made our law so binding and unchanging was the fact that a sacred trust bound it to a higher law. It was conceived in the conviction that the source of all law—in all its forms—was God and His eternal law.
That is not to say that law was part of religion or its practice. It merely affirms that God placed in everyone an objective moral compass called natural law that makes social order possible. Its principles are the same for all peoples, places and times, although its concrete expressions might vary. Social harmony is the result when people follow natural law. Under natural law, evils such as killing, lying and stealing are universally recognized as wrong because they are contrary to human nature.
Proof of the universal character of natural law can be found in Cicero’s expressions of “natural law, inborn or unwritten law.” Indeed, Saint Paul says everyone naturally knows this law since it is written upon our hearts (See Rom. 2:15). It can be perceived in society by unaided reason, although it is well summarized in the Ten Commandments.
American law’s attachment to a higher law dates back before independence, as can be seen in this 1765 reference from the renowned English jurist Sir William Blackstone: “This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.”
It is only this higher law tradition that can explain America’s past order and stability . . . a rebuke to its present descent into legal chaos.
Protection Against Injustice
Only when all were bound together in an objective legal order can there be ample protection against injustice. Indeed, unjust law can be denounced because there is a standard upon which law might be judged. By appealing to a higher law, anyone can claim the right of opposition to unjust laws or edicts. Moreover, both those who govern and are governed are equally subject to this higher order and can appeal to its precepts. Institutions like communities and churches likewise can also serve as voices of protest against government injustice.
Under natural law criteria, the maxim, “unjust law is not law” (lex injusta non est lex), can be determined. Natural law comes to be regarded as universally obligatory and binding in conscience. Natural law keeps law from becoming a matter of opinions, passions or might.
Indeed, the internal voice of natural law compels countless Americans to affirm that procured abortion is unjust and that abortion law is neither “settled” nor “law.” It violates the most elementary notion of natural law against the taking of innocent human life.
The Way Forward
In the present juncture, we should appeal to our strong higher law tradition that still is found embedded in so many documents and laws of our legal system. We should reject modern, sentimental or evolving notions of law that give us no means to resist bad law.
However, what makes this course difficult is that modern law has largely abandoned the natural law tradition in favor of positive law alternatives that accommodate the moral relativism of our days. Materialistic notions of society, for example, have reduced law to guidelines determined by the evolution of social forces. It deals with nothing metaphysical and excludes the idea of immortal souls.
Such modern notions of law are now collapsing, and there are no systems to replace them that correspond to our human nature. This collapse is what makes the reappearance of natural law theory so appealing to postmodern society. We need certainties, and the mark of natural law always returns to the heart and conscience of those who seek justice.
In the coming debates over the nation’s future, this return to natural law is the most secure way to fight against the legal chaos that has destroyed the rule of law. We must return to natural law to give our position force and impact. Thus, in the battle against unjust gun laws, or procured abortion, for example, it is not enough to present the issue as a matter of a personal choice that is being denied.
Instead, we must explore natural law notions of self-defense, private property or even national sovereignty. These crucial issues encompass the common good and make our case compelling and forceful. This law will direct us to God, who made both us and the natural law.
Returning to our natural law tradition is the way out of the chaos that threatens to engulf us.