Sandoz – American Religion And Higher Law: Higher Than What?
Ellis Sandoz
Eric Voegelin Institute, Louisiana State University
AMERICAN RELIGION AND HIGHER LAW:
HIGHER THAN WHAT?
Philadelphia, Pennsylvania, April 26, 1997
- Extent of subject matter. The most familiar account of America’s debt to something called
higher law is the little book by Edward S. Corwin which carries the term in its title. The
most familiar reference to higher law is the Declaration of Independence’s appeal to "the
laws of nature and Nature’s God." Natural, divine, and eternal law are understood to be
"higher law." If we still inquire "higher than what?"–the answer will be higher than merely
human, or man-made, positive law such as that enacted by Congress, Parliament, or other
legislative bodies. On the borderline as clearly man made will be the Constitution of the
United States whose Art. VI proclaims it (and the Laws made in pursuance thereof and all
Treaties made under the authority of the United States) to be the "Supreme law of the land"
and, thus, itself intended to be higher law. Lastly, it has been observed that "the average
American believes strongly that there is such a thing as Natural Law and that he has natural
rights" (Origins of Natural Law, ed. R. N. Wilkin et al. [1954], vi)–a sociological fact of
importance in a country whose laws and governments supposedly rest on the principle of
consent.- Illustrations of the sentiment of transcendence. The attitude that invokes higher
law is notoriously religious and philosophical in our secular age. For most of the past
2,500 years "theories of natural law have dominated" Western jurisprudence as
fundamental to all law and societal order (Jurisprudence, ed. G. Christie and P.
Martin [St. Paul, 1995], 119). But today it is in almost total eclipse. Reigning supreme
is positivism as descended from Hobbes and the Austinian jurisprudence of utility and
power that dominates the thinking of lawyers and what courts do in the name of law
and constitutional interpretation. Ever since the early Supreme Court decision in
Calder v. Bull (1798), which generated a lively but inconclusive debate between
Justices Samuel Chase and James Iredell regarding the place of "fundamental
principles of government" and "natural justice" in constitutional litigation, camouflaged
vestiges of natural law jurisprudence have steadily remained in our law, although not
expressly so. It has been propounded under such rubrics as the several versions of
substantive due process and substantive equal protection, extra-constitutional rights to
privacy discovered as emanations of penumbras of explicit provisions, use of
reasonableness and fairness as a tests, and in other ways especially as devised during
the past half-century by an activist judiciary. All of this will have to be left to another
day.
- Illustrations of the sentiment of transcendence. The attitude that invokes higher
More to the present point is to notice that American independence from James Otis’ speech against
the Writs of Assistance in 1761 to the Declaration of Independence in 1776 and beyond was
argued largely on the basis of the old legal and constitutional traditions, as I shall briefly illustrate.
But it is the religious and philosophical aspects that are of the main focus of my remarks here as
being fundamental, in my view, to our understanding of both the Founding and perhaps of human
reality simply.
The sentiment of openness to transcendent reality central to our subject is commonplace. It is
movingly expressed, for example, in the third stanza of America–My Country ’tis of Thee" which
reads:
"Our fathers’ God , to thee,
Author of liberty,
To the we sing.
Long may our land be bright
With freedom’s holy light;
Protect us by thy might, Great God our King. "
The outlook is evident also in Thomas Jefferson’s motto, engraved on his seal, which reads:
"Resistance to Tyrants is Obedience to God." Divine and natural orders are, thus, understood
to shape the course of human affairs and communicate higher law dimensions of our national and
civilizational destiny . In other words, this tension toward the transcendent is taken to be
constitutive of the human condition as experienced. As illustrations suggest, the experience is
reflexively acknowledged on all hands in ordinary discourse. Thus, the Virginia Statute for Religious
Freedom—whose adoption was engineered by James Madison and that Thomas Jefferson claimed
in his epitaph as one of the three signal achievements of his lifetime–opens with the words:
"Almighty God hath created the mind free." The attitude is reflected by the prior of the Trappist
monastery, Dom Christian de Cherge, who before being slaughtered by Algerian Islamic terrorists
last year, movingly wrote of this anticipated end in a poem that evoked "the true strand of the
Gospel learnt at my mother’s knee, my very first Church"–where most of us first learn of higher
things. We remember also the cry of Shakespeare’s King Henry V (Act. IV, Sc. viii), after the
astonishing victory at Agincourt with hardly an English casualty:
"O God, thy arm was here ;
And not to us, but to thy arm alone,
Ascribe we all!
…. Take it, God,
For it is none but thine!…
Let there be sung ‘Non nobis’ and ‘Te Deum’…."
3. Liberty and Historical and Natural Jurisprudence.. To attend briefly to the jurisprudential
dimensions within our period of concern, it should be said that the Bill of Rights to the Constitution
as conceived and adopted illustrates some higher law perspectives. It is substantively part and
parcel of a tradition of common law liberty and natural law productive of what we refer to as
constitutionalism or rule of law. Liberty and rule of law developed in medieval England from King
Edward the Confessor (d. 1066) to Sir John Fortescue (Lord Chief Justice and Lord Chancellor
under Henry VI, d. 1479-?) and was recovered, vivified, and perfected in seventeenth-century
England during the lengthy contest between parliament and the Stuart kings memorialized by revival
of Magna Carta and culminating in the Glorious Revolution of 1688 and Settlement of 1689.
Anything dated before the coronation of Richard I in 1189 and in continual usage since that time
was regarded as prescriptive custom as being before memory, in Littleton’s phrase: "where a
custom, or usage, or other thing, hath been used for time whereof the mind of man runneth not to
the contrary" such rights and liberties were allowed by the common law. Such remote antiquity
took on the aura accorded the law of nature as resting on continual and universal assent. (Quoted
from Corinne Weston in Roots of Liberty, ed. E. Sandoz [1993], 234-35.)
This tradition as it survived into the period of the Founding is especially the work of Sir Edward
Coke, John Selden, and their associates in the House of Commons, as fashioned in the struggle
over extension of royal prerogative and the attendant parliamentary resistance leading up to
adoption of the Petition of Right (1628). The fixing of this vision came through debate surrounding
political events from the English Civil War to the American Revolution and education of generations
of lawyers by Coke’s Institutes for the next 150 to 200 years–down to the late 1760s when
Blackstone’s Commentaries began to supplant them as the law student’s principal textbook. These
included Sir Matthew Hale LCJ, Lord Camden (formerly Pratt, LCJ), Chatham, and Burke, as
well as such American luminaries as James Otis, George Mason, John Adams, John Jay, Alexander
Hamilton, and Thomas Jefferson (who were lawyers), and James Madison and George Washington
(who were not.)
Thus, "rule of law" or constitutionalism and "liberty" were complementary if not identical terms.
Coke defines libertates in Magna Carta as meaning, in the first instance, "the Laws of England" or
"the Laws of the Realme, in which respect this Charter is called Charta libertatum." And John
Phillip Reid recently has insisted upon the point as valid for the generation of the American
founding:
Liberty in the age of the American Revolution was not the sum of enumerated rights, the rights to
speech, press, security, property or isonomy. It was rather government by the rule of law,
government by the customary British constitution. If put in terms of freedom, liberty would…be
defined…as freedom from arbitrary power, from government by will and pleasure, from government
by a sovereign, unchecked monarch or from government by a sovereign, unchecked Parliament.
It is on some such understanding as this that Publius in Federalist No. 38 rhetorically asks, "Is a
Bill of Rights essential to liberty?" Relying upon a theory of human nature as old as Plato and
Aristotle to undergird the institutional separation and division of powers, and of checks and
balances among coordinate branches of government, Publius discloses the "auxiliary precautions" a
generally virtuous people can take to avoid arbitrary government in the form most likely in
republics–tyrannical majorities led by demagogues–so as to foster justice and liberty in such a
compound mixed republic of great extent as the United States. Publius cites Montesquieu and
quotes the exemplary Massachusetts Constitution of 1780 as "expressing this fundamental article of
liberty. It declares ‘that the legislative department shall never exercise the executive and judicial
powers, or either of them: The executive shall never exercise the legislative and judicial powers, or
either of them: The judicial shall never exercise the legislative and executive powers, or either of
them.’ This declaration corresponds precisely with the doctrine of Montesquieu…."
Publius eventually quotes the Preamble to the Constitution, understood by his readers to be the
intended "supreme Law of the Land" (Article VI) and, so, fundamental law in the United States:
"’We the People of the United States, […] to secure the blessings of liberty to ourselves and our
posterity do ordain and establish this constitution for the United States of America.’" And he
roundly concludes with the claim that, "The truth is…that the constitution is itself in every rational
sense, and to every useful purpose, a Bill of Rights."
Too fine a point, however, need not be put on the dichotomy liberty singular and liberties plural. It
is indubitably right–and a recovery of a nearly forgotten signification–to stress liberty and just law
as coincident in eighteenth-century Anglo-American jurisprudence. This jurisprudential insight is a
theoretical insight shared with the religious or pneumatic understanding that "You shall know the
truth, and the truth shall make you free," as well with the (classical) philosophical or noetic
understanding that the true and free man and just society are the ones in which, respectively, reason
and law rule so as to govern the passions in individuals and in society as a whole. The opposite
conditions are equated with natural slavery in the individual, its liberty with vulgarian liberty
(license), and with tyranny through the rule of base passions in the society.
The particularities of liberty in the singular certainly include–and partly compose–the liberties
specified by constitutions and bills of rights. Indeed, for Coke himself the secondary and tertiary
meanings of Magna Carta’s libertates are "the Freedoms, that the Subjects of England have" and
"the franchises, and priviledges, which the Subject have of the gift of the King…. Generally all
monopolies are against this great Charter, because they are against the liberty and freedome of the
Subject, and against the Law of the Land."
Lastly, prescriptive customary law grounded in the immemorial usages of the ancient constitution
and natural law comprehending, implying and securing personal rights (as mentioned) combine to
form a matrix of fundamental higher law in Anglo-American jurisprudence, and the two strands can
hardly be disentangled from one another. To take a striking illustration from the Founding period: in
the parliamentary debate over the Declaratory Act (in 1766, after repeal of the Stamp Act) there
occurred the remarkable spectacle of Lord Camden, formerly Pratt, Lord Chief Justice of England,
powerfully arguing in the House of Lords very much as James Otis in Boston had done in opposing
the Writs of Assistance five years earlier. Camden said that–
"The sovereign authority, the omnipotence of the legislature, my lords, is a favourite doctrine, but
there are some things they cannot do. They cannot enact anything against the divine law, and may
forfeit their right. They cannot take away any man’s private property without making him
compensation. They have no right to condemn any man by bill of attainder without hearing. [The
Declaratory Bill is] illegal, absolutely illegal, contrary to the fundamental laws of nature, contrary to
the fundamental laws of this constitution [which is] a constitution grounded on the eternal and
immutable laws of nature; a constitution whose foundation and centre is liberty…. [T]axation and
representation are inseparably united: God hath united them [and] no British parliament can
separate them; to endeavour to do it is to stab our very vitals. [Their union is not only] founded on
the laws of nature; it is more, it is an eternal law of nature; for whatever is a man’s own is absolutely
his own; no man hath a right to take it from him without his consent, either expressed by himself or
[his] representative…."
The natural and divine law referenced by Lord Camden and elsewhere herein (as by Jefferson and
his associates in the Declaration of Independence) is that of Western civilization in its
Anglo-American articulation as formulated from Aristotle to Cicero to Aquinas to Fortescue to
Coke to Locke to Otis, Camden, Jefferson, and Madison (even to include the verbiage of
Blackstone in volume one of the Commentaries)–vital and venerable dimensions of our
constitutional and political theory. This is, thus, a tradition–in fact a variety of traditions which we
consider together– of generally ascertainable content and experiential specificity. It is not, we must
mention, some amorphous mass or blank to be filled with scribblings of equal theoretical cogency
or historical efficacy such as the coercive barbarous "natural" law of Nimrod in Genesis or of (say)
the Hitlers, Stalins, or Saddam Husseins of the modern world–as some commentators seem
prepared to assert.
The confusion between natural law as reason and natural law as passionate indulgence is elucidated
by Thomas Aquinas’s discussion of the lex fomitas and may help to clarify the point. Apparent
failure to recognize the distinction vitiates any discussion and puts ostensible adversaries of legal
positivism inadvertently right back on a positivist footing, embracing law as merely power, will, or
command and "values" as anybody’s (supposedly equally untenable) subjective surmises–even
while disavowing positivism in the same breath. Some way out of this box must be found, and, in
fact, an ample pertinent literature exists. Saint Thomas Aquinas, in "Treatise on Law," Summa
theologiae I-II, Q. 91 A. 6, has this to say: The rule of passion and brutish inclination "in man…has
not the nature of law…rather is it a deviation from the law of reason….[Such so-called "natural" law
in man] "is called the ‘fomes’ in so far as it strays from the order of reason."
4. Religion and the principal terms of higher law. An attitude of openness towards divine
reality as higher and hence governing in human affairs was ubiquitous among Americans at the time
of the Founding , despite the inroads of secularism and the prominence of "Enlightened" statesmen
and intellectuals as leading members of that Enlightened generation. How may the specifics best be
appreciated?
The Americans of that era can best be understood as "Providential Christians," an attitude we
have seen reflected by Shakespeare’s Henry V and one powerfully affirmed by Benjamin Franklin
(himself a major figure of the American Enlightenment) in a speech made at a difficult moment in the
Federal Convention, in a building not four blocks from where we convene today. Too feeble to
read his message to the other delegates, Franklin wrote on that occasion that–
"In the beginning of the contest with G. Britain, when we were sensible of danger, we had daily
prayer in this room for the divine protection.–Our prayers, Sir, were heard, and they were
graciously answered,… To that kind providence we owe this happy opportunity of consulting in
peace on the means of establishing our future national felicity…. I have lived, Sir, a long time, and
the longer I live, the more convincing proofs I see of this truth–that GOD governs in the affairs
of men. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire
can rise without his aid? We have been assured, Sir, in the sacred writings, that ‘except the Lord
build the House they labor in vain that build it.’ I firmly believe this; and I also believe that without
his concurring aid we shall succeed in this political building no better than the Builders of Babel."
These were representative views at the time. As Perry Miller remarked decades ago, the American
Revolution was preached as a revival and had the astonishing result of succeeding. A new
generation of scholars is concluding that Miller was right. At the center of attitudes lay a kind of
consensual Christianity that unified all denominations. It joined with Whig political views to give a
resonant core of love of liberty and courageous resistance to tyranny and corruption to a great
moral and political cause as the heartbeat of the American community. Federalist No. 2 reflects
this, and it is wonderfully stated by John Adams in a letter to Jefferson late in life. Adams wrote to
his fellow "Argonaut" of the American founding in their declining years, and he asked–
"Who composed that Army of fine young fellows that was then before my eyes [during the
American Revolution]? There were among them, Roman Catholicks, English Episcopalians, Scotch
and American Presbyterians, Methodists, Moravians, Anabaptists, German Lutherans, German
Calvinists, Universalists, Arians, Priestleyans, Socinians, Independents, Congregationalists, Horse
Protestants, House Protestants, Deists and theists; and [Protestants who believe nothing]. Very few
however of several of these Species. Never the less all educated in the general Principles of
Christianity: and the general Principles of English and American Liberty.
"The general Principles, on which the Fathers atchieved Independence, were the only Principles
in which that beautiful assembly of young gentlemen could unite…. And what were these general
Principles? I answer [John Adams wrote]– the general principles of Christianity, in which all
those sects were united: And the general Principles of English and American Liberty, in which all
those young men united, and which had united all parties in America, in majorities sufficient to
assert and maintain her Independence. Now I will avow, that I then believed, and now believe, that
those general Principles of Christianity, are as eternal and immutable, as the Existence and
Attributes of God; and those principles of Liberty, as unalterable as human nature and the
terrestrial, mundane system "(Letter of Adams to Jefferson, June 28, 1813).
5. Continuity with classical and medieval higher law. The terms of the higher law embraced by
most Americans at the time of the founding were profoundly embedded in the Biblical horizon just
intimated by John Adams, their most comprehensive and readily accepted frame of reference. John
Locke was read that way–as at bottom a Christian and Aristotelian- and the Declaration of
Independence also was understood in that way. As Perry Miller again observed, a cool rationalism
such as Jefferson’s might have declared the independence of such folk but could never have
persuaded them to fight for it! As previously noticed, higher law principles were part and parcel of
the tradition of English Liberty nurtured by common law Whig jurisprudence, political theory from
Sir Edward Coke onward, and by the pervasive dissident Protestant influence whose stress on
resistance to tyranny as religious duty and natural right animated the invocation of higher law by
preachers, citizenry, and statesmen alike. Nurturing the mind of the founders also were the Greek
and Latin classics, this being the "Golden Age of the Classics in America," as Meyer Reinhold and
others have demonstrated, and where especially Cicero’s writings were second-nature to all
educated Americans.
With these perspectives in mind, we may say that higher law is intelligible either from the top down
or bottom up, so to speak: i.e., as objective or subjective. From the top down or macro
perspective, there is the Biblical Creator and the natural creation with its creatures, nature thus
formed and penetrated by divine grace, we should notice. The abiding order of reality is viewed in
terms of an ordered cosmos whose being , constancy, and regularities are self-evident and extend
not only to materiality but to the moral and spiritual dimensions of experienced reality. Such a vision
is invoked in Genesis as well as in Cicero’s famous lines (when read against a Biblical background)
that–
"True law is right reason [vera lex recta ratio], harmonious with nature, diffused among all,
constant, eternal; a law which calls to duty by its commands and restrains from evil by its
prohibitions… It is a sacred obligation not to attempt to legislate in contradiction to this law….nor
does it require any but ourself to be its expositor or interpreter…[it is] one eternal and unchangeable
law binding all nations through all time…." (Quoted from Corwin, p. 10).
This is to equate law and reason as the essential nature of man and hegemonic element, both in
society and singly, as Plato and Aristotle taught, and as Cicero summarized for the benefit of
subsequent centuries. The "government of laws and not of men" that, in various phrasings, made its
way into Harrington’s Oceana (1656), the Massachusetts Constitution of 1780 and, finally,
Marbury v. Madison in 1803, began from an original statement by Aristotle in the Politics that the
rule of law is superior to that of any man. The "law" in question is preeminently customary or higher
law, equating with Reason, Justice and God. This standard lies behind Cicero’s and Augustine’s
maxim, "An unjust law is no law at all" and the ready agreement of the founders that "We must
obey God rather than men" (Acts 5:29). The American founding was not merely one event among
others but a moral cause rooted in the deepest springs of civilization and conscious of being so.
Considered from the bottom up, our micro- perspective is that of every individual human person in
relationship to God. A 16th century English jurist Christopher Saint Germain summarized the
participatory relationship as follows:
"The law of nature…is also called the law of reason [and] pertains only to creatures reasonable ,
that is [to] man wh[o] is created to the image of God…. And this is the law which among the
learned in English law is called the law of reason, which natural reason has established among all
men so that there is a natural instinct present in all men to observe it….[I]t is a sign, possessed
naturally, which is indicative of the right reason of God which wills that the human rational creature
shall be held or bound to do (or refrain from doing) something, in order to pursue its natural end,
which is human happiness [felicitas]–be it monastic, domestic or political…. Hence the law of
reason is nothing else than the participation or knowledge of eternal law in a rational creature,
revealed to him by the natural light of reason, whereby he has a natural inclination [naturalem
inclinationem] to act duly, and to a due end. Whence it is said in the Psalm: "The light of thy
countenance is signed upon us, O Lord" [4:6?]; that is to say, the light of truth; for the light of God’s
countenance is truth" Doctor and Student, pp. 13-15 [1523; Selden Society Ed.]
Behind Saint Germain stands Jean Gerson , and behind Gerson , William of Ockham and Thomas
Aquinas.
Now it will doubtless alarm a few of you that I think most of the talk about ancient and modern
natural law and natural right in our context is largely a red herring that puts us off the scent of truth
when it comes to understanding the mind of America’s founders. The founders, however
"enlightened" some of them were, to a man claimed to be Christians and none of them ever
admitted to being a Hobbesian. Even more importantly, there is no doubt but that the society of
which they were representative was pervasively religious and pervasively Christian–largely
dissenting Protestant Christian at that–and this determined the tenor of their higher law convictions.
This brings us back to the affinities of the natural law and natural rights thinking reflected in the
Declaration of Independence with the medieval Christian understanding of such matters, including
that of Thomas Aquinas the greatest philosopher of that era. To fend off an obvious objection, 18th
century Protestantism in America drew substantially on the patristic, and to some extent upon the
medieval scholastic teachings. Thus, Ralph Barton Perry long ago warned against the "fallacy of
difference" in his analysis of American Puritanism, to the end of denying that theologically it was an
innovating doctrine or radically different from previous Christian teaching: the similarities and
agreements were much more substantive than the dissimilarities and disagreements. Another helpful
clue is to remember Presbyterian John Witherspoon’s admiration of the "popish divines." Their
work was imbibed by young James Madison and seven other members of the Federal Convention
who had been his students and were graduates of the College of New Jersey (later Princeton,
where Witherspoon was president) as a standard part of their studies. But the substance of the
presentation of the key ontological, anthropological, and political issues–i.e., the overall
understanding of reality, human and divine– shows the equivalence in essential respects of the
understanding of human nature, natural law, and natural rights advanced in medieval philosophy
with that reflected in much of American thought and conviction during the founding.
The matter at this stage can be given a strong formulation: contrary to one vocal and influential
school of thought in our midst, "it is just not true that ‘the notion of subjective right is logically
incompatible with classical natural right’," nor that "’natural rights and traditional natural law
are…incompatible,’" as has been alleged. We follow in this judgment the distinguished medievalist,
Brian Tierney, who flatly rejects these views as "based on a mistaken idea that modern rights
theories are derived entirely from Hobbes and on simple ignorance of the history of the concept of
ius naturale before the seventeenth century." By contrast Tierney demonstrates that–
"the precepts and prohibitions of natural law [can] readily be seen as implying rights. To say that
‘Thou shalt not steal’ is a command of natural law is to imply that others have a right to acquire
property…. In fact one finds natural rights regarded as correlative with natural law at every stage in
the history of the doctrine–in the twelfth-century renaissance of law, in the eighteenth-century
Enlightenment, and still in twentieth-century discourse,"
as in Jacques Maritain and John Finnis (B. Tierney, The Idea of Natural Rights [1997],
35–contra and quoting Leo Strauss and Walter Berns.)
6. Aquinas, Algernon Sidney, and the Declaration of Independence. It is just this correlation
and reciprocal relationship between the requirements of natural law and implicit natural rights that
was decisively important to the founders. It is deserving of emphasis here as a means of reuniting
the vision that sustained the Revolution and made the Constitution possible in an America that was
not nearly so theoretically shattered and in secularized disarray as some suppose.
To dig a bit deeper into the subject, it will be helpful to consider some of the points advanced by
the universally admired and widely read Whig martyr, Algernon Sidney (executed in 1683), whose
great classic of Liberty, entitled Discourses Concerning Government, is a major conduit linking
civilizational past and founding era. For Sidney, the complementarity of reason, experience, and
revelation (as disclosed in Scripture) in knowing the truth of things is a basic conviction, one shared
by the American founding generation. Sidney’s self-evident starting point in prudential and political
matters is that Good is that at which all things aim. In so holding he is reiterating Western
political philosophy, not only back to Aquinas and, but back to Aristotle and Plato as well. In
concise summary Sidney writes that —
"if governments arise from the consent of men, and are instituted by men according to their own
inclinations, they did therein seek their own good; for the will is ever drawn by some real good, or
the appearance of it. This is that which man seeks by all the regular or irregular motions of his mind.
Reason and passion, virtue and vice, do herein concur…. A people therefore that sets up
[government does it so]…that it may be well with themselves and their posterity" (Discourses, 49).
The chief good, therefore, of the social and political order is the safety and well-being of the people
and of every individual among them: salus populi suprema lex [esto] (Discourses, 357n, 432).
Perhaps following John Selden, then, the supreme well-being of the people is to foster God-given
Liberty that, along with Reason, is the specific essence of every human being, each considered to
be equal to one another by nature as bearing the mark of their Creator. This, in turn, requires that
Justice be the cardinal aim of political and legal administration. Sidney says of the basis or first
principle of free government that–"[I]f the safety of the people be the supreme law, and this safety
extend to, and consist in the preservation of their liberties, goods, lands and lives, that law must
necessarily be the root and beginning, as well as the end and limit of all magistratical power, and all
laws must be subservient and subordinate to it. The question will not then be what pleases the king,
but what is good for the people…what best secures the liberties he is bound to preserve" (ibid.,
403).
As to law, Sidney writes that "we are free-men governed by our own laws, and …no man has a
power over us, which is not given and regulated by them" (ibid., 416). The vital connection
between the law of nature and natural rights is simply reciprocal. Sidney states that —
"[I]f the safety [and well-being] of nations be the end for which governments are instituted, such as
take upon them[selves] to govern… are by the law of nature bound to procure it; and in order to
this, to preserve the lives, lands, liberties and goods of every one of their subjects [or citizens]…. If
all princes are obliged by the law of nature to preserve the lands, goods, lives and liberties of their
subjects, those subjects have by the law of nature a right to their liberties, lands, goods, &c. ,
and cannot depend upon the will of any man, for that dependence destroys liberty, &c." (ibid.,
405-406 emphasis added).
Since this reciprocal connection is seldom understood today, I emphasize the point: whatever is
required by the law of nature at the same time creates or legitimates a correlative subjective or
personal natural right, so that duty and right are mirror images. The law of self-preservation entails
the right of defense or the use of such other means as may be essential to preserve one’s being, for
instance. This correlative connectedness is identifiable in Western theory at least as early as the
12th century. It is set forth in John Locke, and it is a pivotal argument of the Declaration of
Independence.
Liberty itself–to continue with Sidney a little farther– is both an exemption from the dominion or
will of another as well as from domination by irrational and enslaving passions from within. It
"subsists as arising from the nature and being of a man" as God’s creature (ibid., 510). No man has
authority over another except by consent, nor can such authority be continued unless it serves the
common good and welfare of the people which is its raison d’être and ultimate justification (ibid.,
519). Any power that presumes to usurp or otherwise exercise domination is arbitrary or tyrannical
and ought to be resisted: "God helps those who help themselves," Sidney famously writes (ibid.,
210). And he does not fail raise the banner of "Christian valor" and to quote from the New
Testament, Acts 5:29: "It is better to obey God than man" (ibid., 359, 436). As for the celebrated
teaching of Romans 13 that the "powers that be are ordained of God," Sidney responds much as
did the American preachers of the Revolutionary period. "An unjust law is no law at all," Cicero,
Augustine, and Aquinas wrote, Sidney and Americans of the period believed–and still seem to
believe, if Martin Luther King’s 1963 Letter From Birmingham Jail and the "Civil Rights
Revolution" it justified be taken as evidence. On this view, only just government, established not for
their destruction, but for the well-being and preservation of the people, can claim legitimate
authority (ibid., 380, 355). "All princes therefore that have power are not to be esteemed equally
the ministers of God," Sidney states. He then continues-
"And tho I am unwilling to advance a proposition that may sound harshly to tender ears, I am
inclined to believe, that the same rule, which obliges us to yield obedience to the good magistrate
who is the minister of God, and assures us that in obeying him we obey God, does equally oblige us
not to obey those who make themselves the ministers of the Devil, lest in obeying them we obey the
Devil, whose works they do" (ibid., 372-73).
These are views completely consonant with the American argument against the ministry and George
III whose policies are condemned in the Declaration as perverting monarchy into tyranny and
thereby rupturing the obligations of allegiance on the part of the colonies. It coincides, also, with the
rejection of passive obedience to the powers that be, since American preachers widely agreed that
God never intended obedience to tyrants but demanded resistance to evil.
The "fit" of the implicit and explicit American theories with those of Thomas Aquinas’ philosophy of
human affairs is striking as demonstrating a continuity of civilization and thought, at least in basic
principles, over a period of half-a-millennium and across the vicissitudes of the Protestant
Reformation. I can mention here only bare-bones essentials. You will remember that the
Declaration asserts the primacy of the laws of nature and of nature’s God, seals its claims by
invoking "a firm reliance on the protection of Divine Providence" and by pledging the signatories’
lives, fortunes, and sacred honor. The Declaration proclaims it to be self-evident truth that all men
are created equal and endowed by their Creator with certain indelibly defining characteristics called
inalienable rights, included among which are rights to life, liberty and the pursuit of a happiness;
governments exist primarily so as to secure these rights to the people individually and collectively,
and draw all of their just authority from the consent of the free men or people who compose the
political community governed.
What about Aquinas, who admittedly developed no natural rights doctrine himself? Thomas begins
from self-evident truth in setting forth the terms of natural law which is, in fact, a summary of
political no less than legal philosophy. The basic truth that is the self-evident foundation or first
principle of all prudential or practical reason, and governs all action, is that all things seek Good.
This is interpreted as empirically vindicating the Golden Rule as the foundation of all law: the first
precept of law is that "good is to be done and ensued, and evil is to be avoided." Thus,
"whatever the practical reason naturally apprehends (naturaliter apprehendit) as man’s good (or
evil) belongs to the precepts of the natural law as something to be done or avoided." We should
mention that true Good (bonum verum) for Thomas is finally validated by cognition, not by desire.
Everything else follows from this basic principle, in an account indebted to Aristotle’s
Nicomachean Ethics (I.i. 1094a3). Seeking the good is natural to all things. When considered in
specifically or properly human terms (as we also saw in Christopher Saint Germain), it is the law of
our nature manifested in terms of appetite, tendency or inclination (inclinationem). These are
manifest in three related precepts of natural law as goods to which we are drawn or naturally
attracted. As such, in Thomas’s terse text, these are ends or objects of pursuit in all human action.
First is the inclination to preserve one’s being itself or life, so that whatever tends to the
preservation of life or existence and warding off its obstacles belongs to natural law. The second is
the inclination shared with other animals to reproduce, care for and protect one’s family, educate
progeny and otherwise foster their well-being. The third is the inclination to good according to
man’s highest faculty of reason which is proper to him as being intelligent, his specific essence: "thus
man has a natural inclination to know the truth about God and to live in society; and in this respect,
whatever pertains to this inclination belongs to natural law." Thomas later on cites Gratian (fl. ca.
1140, Decretum I.i): "’the natural law is what is contained in the Law [Torah] and Gospel,… by
which everyone is commanded to do to others what he would have done to himself [Matt. 7:12],
and forbidden to do to others what he would not have done to himself’" ( quotations from Summa
theologiae I-II, Q. 94, A. 2 & A.4.)
Our suggestion is merely that the Thomasic account as natural law generally accords with the
Declaration’s account as natural rights. If we can put labels aside, perhaps we can agree. In any
event, we are attempting to explore a fabric of thought shared in substantial degree by a civilization,
and it is recognizable in different rhetorical modes in time and place as patently analogous or
equivalent articulations of the common reality of human experience. That is the argument. Thus, the
inalienable right to life corresponds to the law of self-preservation. The right to liberty bears
correspondence to the law of so living as freely to propagate and nurture the physical, intellectual
and spiritual well-being of one’s self , progeny and family according to one’s own lights and rational
inclinations toward the beneficial and good. And the right to "pursue Happiness" corresponds to
the desire to know the truth about God and ultimate reality and to live at peace in society. The
highest expressions of this quest as proper to the specifically human in man include the desire for
earthly flourishing in political and economic communities formed through friendship and
like-mindedness, civic orders protective of property, peace and safety. Beyond history and the
world itself, the spiritual quest encompasses the hope through love of God of eternal Beatitude.
From Aristotle onward the highest good attainable by action is happiness and
blessedness–eudaimonia and makarios in his words. For Christians it is the summum Bonum of
union with God, Beatitude, and the satisfactions of the life of faith-grace relationship formed through
love in the here and now in hope of salvation in the eternal beyond. This is experientially to know
through participation the presence and truth of God. Such a range of highest goods and their
sources clearly fell within the range of the American founders’ thought as reflected in the
Declaration and much more discursively elsewhere at the time. There is, of course, no excluding nor
minimizing of the lesser goods we seek as contributory to personal happiness in life. The goods
whereby we preserve and foster life and well-being, both personally and socially, are both ordained
by natural law to human fulfillment, as the rule of our natures, and also presumptive rights that inhere
in every person in relationship to every other person and to institutional authority of every kind.
7. Conclusion. To conclude, then, it can be stressed that both the Declaration and Thomas proffer
person-centered teachings. The goods that define inclinations or affections in terms of natural law
find their correlates in natural rights to those goods as the just aspirations of every human being
considered as all equal and brothers because potentially bearing the image and likeness of the
Creator. The goods essential to human thriving that define what it is to be a man rather than
something less are, at the same time, both natural law and natural rights, both the word of the
Creator governing life and the just desire of the creature, despite all sin and imperfection. Such a
map of reality human-divine as we have hinted at is a great gift of our civilization in both its medieval
and modern stages. Its vitality continues into the present. In its political and constitutional aspects,
the Founders supposed, perhaps civilization’s best gift to mankind in history.