—
MORALS,
POLITICS, ,-A^D
"NATURAL
LAW" —
When the late Chief Justice Vinson in deliv^ing an opinion of the United States Supreme
Court^said among other things, "that there are no absolutes, that a name, a phrase, a standard
has meaning only when associated with the considerations which gave birth to the nomenclature
. . . ."he was immediately subjected to a considerable amount of criticism.
Mr. Felix Morley
was only one of many who condemned this as a "pernicious doctrine", and writing in Barron's
Weekly Morly went on to say "If there are no absolutes, - —
then our Republic has only mater­
ial values to offer, and whether regimentation by Washington or by Moscow is preferable is,
in the last analysis, Hobson's choice.
But against (this implicit conclusion) the mind and
heart and soul of many Americans rebel?** There are certain absolute values, referred to as the
laws of nature and of nature's God'^^nd Time Magazine made comment that Vinson's doctrine
"stems straight from the late Oliver Wendell Holmes, philosophi(Rlfather of the present
Supreme Count".
Whether this is so or not, the late Justice Holmes, who at the time of his
death in 193$ was generally conceded to be one of the greatest American judges and one of the
most illustrious figures of our times, hajg. been subjected to similar criticism and unbelievable
verbal abuse during the past ten years.
Much of this has come from Catholic sources.
"Can
any legal system long servive" wrote the Rev. William J. Dohe^y in the the First Natural Law
Institute
Proceedings of 19if?; "when it is being ceaselessly and systematically assailed by
myriads of sophistries,erroneous juristic concepts. . . . by the naturalism of a Deway, the
sociological jurisprudence of a Pound , the scoffing skepticism of a Holmes. . .? Such bewildering Dkoptwo - - - most of them godless —
menace to our American law and legal thought".
of law and jurisprudence have become a definite
And Westbrook Pegler in his characteristic
manner has referred to Holmes as "a cynical brutalitarian" and a "brutal old fake".
"Holmes"
he wrote in his column of December 1$, 19$0 did become the idol of a godless cult and the task
of debunking him will be long and wearisome because . . . he is accepted as a magnificent
something by millions of dolts with dull eyes and loose wet lips who don't know what or why".
Why this violent attack upon Holmes and others of a like opinion?
The answer in large
manner is to be found in the fears and anxieties of our times which nourish a passion for
orthodoxy and renew the belief in metaphysics and theology as essential to law, morals and
politics.
In a time marked by political and economic uncertainties, by fundamental shifts in
social relations, and by actual or expected conflict between nations, there is a heightened
—
2—
pressure for conformity, and for the certainties associated with metaphysical absolutism.
As
Prof. Charles Frankel, writing two years ago, remarked "War may not be the health of the state:
but it is certainly just what the doctor ordered for metaphysics."
So for example the Natural
Law Institute was organized ^in 19^7 "to show from history that there has always been recognized
by man not only positive laws but a law written by Almighty God upon man's immortal soul which,
in fact, has proved the basis of all moral laws".
that the attack upon Holmes and others is made.
It is in support of this kind of contention
The attack is directed against them, not so
much as individuals, but as symbols of the temper and attitudes that are associated with the
liberal and non-authoritarian tradition.
expressed
W^at more specifically is meant by "natural law" as it is Euggd in Roman Catho­
lic doctine and in non-Catholic convictioh as well?The word "law" itself has a
number of varied uses and meanings.Eugene Gerhart, a practicing attorney,
in a
recent volume devoted to this subject,mentions the use of the word"2aw" in the
sense of meaning
constitutional law,statute law, or positive law.This is consid­
ered to be man-made law wh ch can be altered or repealed.There is also the use of
the word "law" to mean scientific natural"law"or physical "law", such as the law
of gravity, w.m.ch cannot be repealed by nan.And again there is what is spoken of
as tne "law of God" or the "eternal law",which is likewise held to be beyond hu­
man repeal, i.yth res pe c t t o— the concept of "n-. tural law" there are likewise vari­
ous meanings that have been attached to it. It has been used to describe certain
instincts wnich have been considered natural to man.S^ Eouvier listed a.^ong natu­
ral laws such things as self-love,sex attraction,
ward their children,the religious sentiment,and
the tenderness of parents to­
the desire and need of sociabil­
ity.Natural law has also been used to describe "the Rule and Dictate of Rjight
Reason". By ana large this involved an avoidance of if not an aversion to metaphy-'
sical and theological speculation and
a reliance on publicly available evidence
based on the various sciences,shared experience,and such moral axioms as might be
considered more or less self-evident to any rati nal man."Ys'e hold thse truths to
be self-evident" is one of the striking phrases in the Declaration of I^dependenc
With the founding f a t h e r s of the eighteenth century, as with the ancient Greeks,
natural law was pretty much considered a matter of human reason alone.Ther^ is
3
another meaning however that has been given to natural law,and this meaning has
been prevalent in theological circles for a long time.This meaning is quite dif­
ferent from the connotations usually associated with the word "natural".With
greatedr accuracy it should be designated supernatural law,for "natural law" here
means "the eternal Law", or "the et rnal reason of God". As stated by Pope Leo tiU
Thirteenth the Catholic
version of the position,"Laws come before men live toget^
er in society,and have their origin in the Natural,and consequently in the Eterna^
Law."According to The Roman Catholic Church the natural law is a^oe the civil law^
it partakes of the eternal law of ^od;granted to the Church, and more specifically
.
to its sovereign pontiffs,
- t - " * * * * * ' - -<- :iH**a*i*
'
the popes,is the interpretation of this eternal law;
God himself through Chirst w. o is also God has granted to the Roman Pontiff immun­
ity f om error in matters of faith and morals; but since every ea&aaay husan action
has or may have
noral aspects,no human action can be withdrawn frof^the dictates
ofthe divine law,of which the Church is guardian,
interpreter and infallible mis­
tress"; and in case of conflict between natural law, as interpreted by the chruch
and any statute,court decision,
or system of law, the latter, if it does not con­
form to the chruch's view of the natural law, is inherently vitiated.
This briefly stated is the Roman Cathnlic position on natural law.And while nonCatholics of an orthodox persuasion may disagree with some aspects of the Cathloi
position, and disagre. very definitely with the claim by t^e Cathoic C u ch to
sole Etaim interpretation of the "eternal Law",still they generally agree that
beyond the realm of man-made law there is a realm of eternal law,that beyond the
immediate uncertainties are vast certainties,and that beyond the seeing relativi-
ties are abso—lutes to w ich man^must repajfg^ Otherwise he falls, as it is c&aimej
he has fallen ,into ethical nihilism,
in which he knows neither right from worng;
into KthiEEl moral relativism, which excuses anything in terms of environemnt and
time,and into what Pegler referring to Holmes called "cynical brutalitarianism".
Our onlysalvation,
it is held,
in terms of right morals,unity of outlook, mainten^
ance of democracy,and eventual victory in accordace with God's master plan,is
only by living according to the"eteranl law",tying ourselves to the divine abso­
lutes,an^ having faith in the vast,over-arching, supernatural purpose. Re need
an anchor of certainty in morals and
politics and law,and that anchor can only
4
be found in natural law which partiakes of eternal law,
which is thevery lav of
Gad himself.
All this is somewhat impressive in its sheer sweep,but examined a little more
closely tht^re are considerations and questions tht make it a good deal le:s than
convincing and acceptable. First of all, even granting for the sake of the argu­
ment, that there is an eternal law,
there is a considerable amount of disagree­
ment about how that law is to be known and to what extent it can be known. Some
of the neo-orthodox theologians ofjtoday are fr /do en.-ugh to say that God is so co^
pletely other that it is impossible for the finite mind of man to comprehend his
nature and will, surprisingly enough they then go on to write lengthy volumes des*
criiinm the nature and will of God. One can only conclu e that this repeals a
good deal more about man and human speculation than it does about God and his
eternal law. In Cathlic teaching,
there is a like admission that"human creatures
cannot know the eternal law in its totality because it is,in a sense,the full
mind of God. " This admitted limitation of human knowledge about eteranl law
certainly makes it a somewhat less that fully available source of certainty and
<9
should serve to remind us that eve.
those w ho speak with the gratest assurance
about eternal law are neither in full possession nor full knowledge of it. "We ca^
however says Catholic doctrine know part of the eternal law through reason and
another part through revelation."
But one
ray a.k.if reason is trustworthy and
adequate in dea ing^some matters, why i& it not trustwort y and adequate in deal­
ing with all others? "Why must it sxy at any point be renounced or subordinated
to faith in a supernatural supplementation of human insight? And at what particular
point shall it be renounced or subordinated? History in la(?ge masure is the record
of vast areas once claimed for revelat on being
penetrated,analyzed
and compre­
hended by human reason,xxuRxtlKExaExXsxHtxtx T^e nature of disease,the naturaof man,
the nature of the unb/erse itself—
a-1 these and much more have been taken out
of the realm of theological de-scription and prescrit^ion arVd we have moved for­
ward injur under tending of them not by acdepting some final claimed revelation
about them byt by continual investigation and examination of them.T^ere is
of revelation
goed reason why we must ass-me that there is an area^today that is any more immunt
to rational analysis than any so called areas M
the pa^t.Moreover, whose revel— -
ation of the truth are we going to accept? 1^ goes without^§^ing^Bi?t^even the
voice og God,if it is to be understood, must speak injthe natural and mortal
languages of men. But what men? T^e Roman Catholic Church takes unto itself the
calim that it is the sole guardian and interpreter of revealed truth.In matters
of faith and morals, which can be made to cover every aspect of human experience^
its supreme pontiffs speak with infallibility
con^er'jn^he divine-natural law.
Protestants however are of quite a different opinion, ^t the heart of the B^ot(stant Reformation was the refusal to be^ie/e that to one church, and more
specifially to one man, the Pope, was given such power and such repealed truth.
Revelation had come through the prophets, through ^hrist,,and
it might even colt^
to living individuals themselves. This was a significant, although only a partia}
break ,with supernatural revelation .1^ introduced into the picture a critical
judgement not only of the Pope as a spokesman for the eternal Law but of others
as well.I^ no^risLd the c n v i c t i m tha^"one's own insights might be just as valid and traustworthy as those of anyone else. A^d it served to .ring so-called
divine revelation still further into the arena of public
whatever the claimed origin of the revlabion,
debate where itxx
its worth and vailidity had to be
meausred and weighed,irjthe only temrs in which it cou^d be measured andweighed,
namely in terns of human experei ce,
human knowl dge, an:, human needs.
Again it need only be briefly men t i o n e d
that with a^l the talk about the
eternal law being the protoptye of moral law, there has been a str^ing lack of
agreement as to what is demanded in morals by the eternal law. T^e ancient He­
brews, for example, who claimed a rather intimate acquaintance with Jehovah and
were not without numerous interpreter's of his will,saw nothing wrong in the
practice of polyga.iy.
was an accepted procedure, although few were able to
match -olomon who is
reputed to have had seven hundred wives. And the Ko rgp,
w^ich for some 200,000,000 Moslems embodies "God's true relig on", specifically
teaches that polygamy is "lawful". A^d the Mormons, who have always assumed that
that they ha-d a special revelalien f^&m God,practiced polygamy in Utah until
l8p6,and one isolated group even contineued the practice up until a few months
ago when it
as disbaneded by government force
.Yet with all this claimed divine
sanction of polyamy,there are vast numbers of people who do not believe in it,do
6
not practice it,at least openly, and do not preach it as part of G^d'g eternal
law.1]** has been absent among the Jews, even the most orthodox Jews, for a long
long time. As far as I know,no Pope,and certainly no recent Pope,has issued an
Encyclical in defense of polygamy and urg d the faithful along that path.And it
would come as something more than a minor surprise if the Federal Council of
Churches or the World Council of Churches were to defend polygamy as living in
accordance with God's willy,
or ggPing God's way. T^e differentj^of opinion and
shfits of opinion with regard to polygamy,as likewise with so many other moral
aspects of life, would seem to indicate that either the eternal law is not eter-"
nal and abosultue,but fluctuating and changing^ or that some people are obviously
- ...'
mistaken in their interpretation of it,but who are mistaken and w^o are correct
is not made clear,
or,as mos^of us would agree,^-belfeve, that instead of there
being an absolute eternal standard of marraige th^re have been varjous forms of
ma-raige in the long history of mankind arising out of different condi^ti^ns an.:
differet conventions,including religious convictins
and while monogamy has usu­
ally been the most prevalent form of marraige and is toda^the one form given
social sanction and le al support in most of the world,
that dagg^g^m&&t has
come about not by general agreement thht some eternal superatural law de-mends
monogomy tut because monogamy is all the marraige that most people can afford,
and because out of long experience we are rather gSREKxilyxsgxxgi firmly convinindividual
ced that there are richer values of firensdhip and love and of social stability
-? in monogamy than in polygamy.
'
j?
must
Not only may we question i&he pretensi ns that are made of knowing what the
W a b s o l u t e s of the eternal law are,but
we must also question the claim that only
^'in a d h e r e n c e to such absolutes is democracy grounded and is loyalty to democra­
cy made sure.
It is asserted for example that "Christianity alone made democra­
cy possible, as it ajone will make it workable". 1^ some more modest assertion
were made to the effect that ^ r ist i a n i t y had ma-e some contribution to democra­
tic ideology and had inspired some individualsto democratic practice,one could
give assent.
B t to say that C.ristianity alone made democracy possible is to
overlok thxx the numerous historical taproots of democratic theory,such as
Stoic philosophy and ^oman Law,which were much more :fruitful than Christina dog*-
ma in the contr\buttons made to democratic theory.A"d it ixxim avoid^iention
of the facL that Christianity never dcondemned slavery in principle,
that the
defenders of slavery drew most of their arguments from the Bible which was held
to be the aboslute word of God;that the Church was one of the mainstays of feddalism and for a long time furnished the chief theo etical justification of the
divine right of kings; that
almost every democratic advance,such as recognition
of the Rights of individual conscience,
toleation of religious minorities, f _ e e & ^
of scientific inquiry, abolition of child labor, birth control,
the use of an-
aesthe ics, secular e d u c ation and the separation of churhc and state, have had
many of them
to be won a n d . s t i _ l have to be maintianed o ^ r against thae. elements of Caristianity aod^certain Christian dogmas. And the attempted gro nding of democracy
in Christian theological andmetaphysical doctrine,avoids mention of the fact
that fascism arose in Italy where
Christian theological and metaphysical doc­
trine was relatively strong and long-established ,and not in England and America
which are said to be riddled with skepticism,and positivism, and secularism.A*d
no one is liekly to confuse the clerical fascism of Portugal and opain today wit^
democratic advance.
specific
^
ur consider another izistEg assertin,namely that "there is no basis for dem­
ocracy except in a dogma about the divine origin of man". Again the assertion
claim.-; far too much.F^r as P^of. Artnur Murphy nas remarked
good sense and good
"ihsxxx many men of
no more need a general proposition about the charismatic,
value of man as an amage of the Absolute on this planet to but tr ss their loy­
alty to democracy than the, need a general proposition about female virtue to
assure them that their wives and mothers are north loving." ^ O r s d A r
the men
some of
ho supported democracy at its birth in this country. T^ere was Claris
Carroll who was a Catholic, tut there was also re jamin Franklin who was no
Cath lie and a g o d deal less than an orthodox Protestant; and there was Jeffer­
son who xitxxxExxtERgxXEXxKf had scarcely any belief in Christian theology and
metaphysics; and there was Thomas Paine,who for all .. s skepticism about much
of Christian doctrine, was
still an ardent defender of"the rights of man." Or
itna through the names of some other men in history, Socrates,Voltaire,Bentham,
"Mil,Twain,.iliiam James,J hr Dev?ey ond
T, +T-'"
^
y,a,.a „e-s also Justice h lmes,and not one of
8
them is noted for orthodox religious conviction,tut everyone of them had some­
thing to day in defense of human degnity and human freedom. Compared with the
francos and Pegiers and many of the spokesmen for divine natural law, they had
much to say.A^d they ^ere willing to judge and value
people,not by their ori
gin whether divine or otherwise,but by their potentiatlities and fru.ts and
ache vements which is a sound democratic principle.In many instances it has been
those who have most energetically alleged the divine origin of man, who have
their ^ellow men '
treated
with the least amount of respect,who have even enslaved a,d exploi­
ted them,who have rationalized poliical and social inequalities in terms of
sought to
Jod's will and man's sin, and have exercized an authoritarian control over men's
As a contrasting example there was Justic
minds and many aspects of their lives. xx^xxExmENyxEihaxxiEXtgxssxxiixhxBxkEEKx
Holmes,called by Pegler " ahrutel old faker" and "the idol of a godless cult".
Well, Holmes was a skeptic,in the sense that he did not believe in Christian
law,
metaphysics and did not believe in abolutes fixed for all time,
morale
politics, ±^d yet he lived his/ong life
with a full appreciation and expression
of honesty and courage and mature personality. He believed that the joy and the
<a.
duty and the end of life ws to use ones powers, al:.
one's powers for the
develpment of seif and the improvement of the common lot. In his will,
this bru­
tal old faker bequeathed the residue of his property to the United states of
-America. H^ gave himself with disciplined devoti n to the cause of justice, in
its living dynamic context,an
with no claim of a ^ oltrte infallible certainty
on his part.As Juge Frank wrote of hi^"It would be grossly misusing his example
to accpt his judicial opin ons or views on any question of law as infallible.He
woe Id be the readist to urge a critical re onsideration of any doctrines he
announced.He attained an adult emotional status, a self-reliant,fearless appraoc(
to life,and he invites others to do likewise." Like Jefferson,Holmes was opposed
to every form of tyranny over the min^ of man.He believed in the full and unfett re
d exercis
of reason,and his criterion of truth was the continual
teaching from expereince, not fixed final authority.
Ig -is not surprising that
Catholic theologicans in particular, who are
encouraging the revival of a belief in natural law which is above civil law and
partakes of divine eternal law, are trying to annul the reputation of Holmes.F^r
Holmes is a symbol of the inquri ng mind which does not submit to imposed au­
thority and the claim of infallible knowledge, And for the same reason it is not
surpsing thaT others,of whom Pegler is only the crudest,wo.^ like to whittle
down the reputat on of Holmes as a symbol of American liberal and democratic
thought.
Inherent within Homan Cath:locism is an authoritarian structure and
outlook and behind the ambiguity of "natural law" it would extend its authorita­
rian control.KiixKxxMExiExnx^iRax A*'d prevalent today is a t ^ r ^ s u r e toward an
orthodoxy and conformity
I
social and political conviction.
is sometimes said that there is i^ men ent^women a definite "psychological
need
for an authority of some kind,
i-f'd it is true that authorities we must
have/ Believing wisely and behaving w e l T l ^ e not simple achievements and we are
always in need o f j m
word
increase of knowledge to s,plement oar own limitations.T^e
"authority'^ stems from a root which suggests "an increase". A^d the person
who is able to make an increase, and who seems thus to benefit us,ITI'person of
authority,
such as a scholar,
scientist,or anyone who car povide knowledge which
suggests a sound basis for belief and behavior, i/'t it samx is something else
again to say that we must have authorities of finality and
in law, politics,
infallibility
or religion. T ^ m a k e s for a kind of certinty,
someone elses
limited interpretation of certanty.but it also makes for authoritarian domin-..A k-yft
and control. Therefore we have to be on our guard against all infalible
authorities. 1^ religion, as elsewhere, authority in matters of belief and be­
havior has to arise from an increas
trial:
ofkn'wledge that is ever under teat and
Relgious faith has to be based upon faith in the method of inte^ig nee,
if we are not to sink into credulity and^not to be pushed into servility. Intelli"-'
-
-<*<M ft***"
gence,o- course,
is not i .fallible, but it is the best tool we have.The burden
of uncertainty is always upon us, in the sense tuat there is always more testing
and trying of knowedlge to be done.But at least we would walk erect with the
tried knwoledge andiinsights we possess and with our eyes open for increase,and
.
-
"Ot grovel in servility and credulity among the^infalliL
closed.
-ties with our eyes
„ ...
has been the dominant note in our national life.
Our common law^ilAten
added
^
to ssNsiBat increase ^nd perpetual improvement
w„+. ^
j
ement, but every attempt to impose ecole-
10
siastical authoritarianism
in the form of canon law on the stare and every at­
tempt to advance ecclesiastical jurisdiction ty means of the doctrine of natural
law, h a ^ b e e n staunchly resisted in this country as
in England since the
days^f K^ng Henry 11. In the matter of politics we hame not adhered to an atti­
tude of submissive obedience, be started out with a rejectioijof political author­
itarianism aixl we have held to the principle of popular political sovereignty
and we have cherished a sense of right and a sense of dec^Jcy ard fair play,and
ve are by no means yet convicned that imposed unity and conformity has alight to
ride rough shod over that kind of sense
. We still believe that the A^glo-Saxa^
sense of fair play =#^ an impotent tested value. A^d we would not hae governme!
—.. ...
of, by, and for the pe.ple twisted into something ^ i t e different by^demagoguges.
A*'d in religi-n likewise we ha^'e continued to resist the repeated attempt of
relgious bodies to exercize ^ privileged control over such areas of aur common
public life, as legislation, public shcool education,, medical care,publications,
and politics.
Moreover ve have had a long line of thinkers who have repudialed
;.he whole notion of infallibility in the affairs of relgi n.
clared that human experience is an endless unfolding,
Emerson who de­
that e/ach generation must
discover its own reliable approximations to ggodness and truth, without reference to finalities and infallibiltlies. The Bible of Humanity is^still an open
book, and new chapters are being written in terms of new experience. A ^ d ^ h i t m s n
continued in similar vei((; We consider titles and religions divine-I say they have all grown out of you, and may grow out of you still,
1^ is not they who give the life, it is you who give the life,
Leaves are not more shded from the trees ,or tre-es from the earth,
than
they are shed out of you." A^d likewsie smR with Barker and Adler and Dewey
and down into the religious humanism of today whould wou^d seek to be consistent
with
p olitical and scientific humanism and would give fu 1 play to the quest-
ing mind.^eligjous humanism is without infallible persons, infallible books,
infallible instituti ns.
good persons, great and
members would have profuond respect for great and
ood books, and great and good institutions, where-er
they are to be f-und. At the same time they would r^cog ise the auth rity of
these as being subject to the free and honest use of intelligence and to the
^
^
^
^
11
in the words of J.Hutton Eynd
enlightened and critical use of the moral sense. They are^willing to prove all
thinsS) and would hold fast that which is good. They are willing to hear the
burden of uncertinty, and yet to proceed u-pon the approximations of goodness and-*
truth already achieved by mankind, having faith in the human effort in spite of
the human record."
T^e ecclesiastical doctrine of natural law,being storongly advanced once
again today,has enough ambiguity to make it somewhat plausible. It grows on the
fears and uncertainties of our time, and it tempts with a seeming shelter of
certainty. B^t it leads tack into hhat other generations have nad to struggle
to overcome. 1^ leads away from added increas in both knwoledge and dem.cartic
orocedure.
1^ is better that we heed the warning and advice that was voiced
John Tyndall many years ago when he
viewed his world of change and
uncertainty and weighed the yearning for certainty and security: "It is perfect —
ly possible" he wrote"for you and me to purchase inttefctual peace at the price
of intellectual death. The world is not without refuge of this description.
The unstable and the weak have yielded, and the^j to whom repose is sweeter
than the truth. But I woul^ exhort you to refuse the offered shelter, and to
scorn the base repose; rather accept commotion befar^e stagnation, and the leap
o^the
torrent before the stillness of the swatpp."