Natural Law and Social Inequity

The basic premise of natural law is that there is intrinsic order and rationality to nature that controls human societies and that these natural laws can be understood through the use of reason. This notion that there is an overarching system of natural governance and morality that is knowable through reason but still separate from human tinkering has existed from the Greeks to the medieval ages to our current administration in the United States. The fundamental aspect of natural law appears to be that even though we can come to know natural law through the machinations of the mind, it is less clear whether we can ever understand why the order and rationality that governs our legal schemes are ordered and rationalized in the ways that they are. I suggest that this inability to fully understand why natural law exists is problematic. I offer the example of slavery in the United States as an example of how natural law can be offered to rationalize social inequity.

The content of natural law is set by nature. Natural law is thought of as being found and discovered as opposed to being created. Hence, it is perfect and uninfluenced by human vice. The only way for humans to comprehend and apply natural law is through reason. A good way to understand natural law is to consider its similarity to the notion of Platonic form. A very simplified understanding of the Platonic forms requires us to imagine a place way up there in the clouds where things float in space. The things that float in space are Platonic forms. A form is basically the perfect ideal of ideas and objects that exist in the world on earth. As human beings, we are able only to see glimpses of the forms but never the forms themselves. To Plato, the ideas and objects in our world are only shadows of the real thing. For example, if chairs exist in the world, there is one perfect form of a chair existing as a form that all other chairs are based on. If we were to see this form of chair, we would recognize it as the ideal chair that would encompass all ideas of chairs that ever existed and will ever exist. The chairs in the real world exhibit enough characteristics of the chair form that we know a chair is a chair. With objects, this is not so problematic because there's a concrete, real thing that we can touch and verify to be a chair because we could sit on it. However, once we think about concepts, the form idea starts gets tricky. Take the notion of beauty. For Plato, there is beauty and Beauty. If we could see Beauty it would immediately compel us to understand it in all its forms. In our world though, what is beauty? Surely, we can name individual things that are beautiful and exhibit beauty but there is no consensus as to what something would have to be like in order to really resemble its form. Real-world beauty, therefore, is completely subjective and changes depending on who is talking about it. This subjectivity in interpretation is also the flaw in our application of natural law. Natural laws can never be understood removed from cultural influence.

Subjectivity doesn't normally fit into the concept of natural law. This subjectivity is in direct contrast with the understanding that natural law is inherent order and seen as being a natural, immovable component of the natural world. Moreover, it is easy to think that if something exists in the world a certain way, it must exist that way for a good reason and ought to be that way. When people think of something as being part of nature and as being "the way nature intended it to be," it is difficult to then consider change and think of the world without that thing. While this is a perfectly acceptable way of thinking with regards to objects-especially when it comes to environmentalism-the notion of inherent order is a powerful means to instill and maintain social inequities.

Realistically, natural law is never found in a neat package in the woods. The only way to access natural law is through the human thought process and logical reasoning by human beings. It is the case that human beings live in contexts of culture and environment, often being influenced by these things without even realizing it. Natural law is always derived from its source by a person complete with biases and perspectives. Even though we have a conceptual understanding of natural law as being pure and emerging from nature, it seems that natural law must always be filtered through the sieve of human thought. Hence, like Plato's forms, even if we were to accept that there are overarching notions of justice in the world absent governments and philosophers, there's no way that natural law once perceived by human beings can measure up to some form of morality and rightness. Rather, natural law once it has come into contact with human thought ceases to be natural in the sense that in order for people to understand and use natural law, it must be interpreted against a cultural context.
Even though natural law has been the source for rights like privacy that aren't explicitly stated in the Constitution, theories of natural law can also be dangerous because they rationalize actions that are really unjust but can find historical roots. In Dred Scott v. Sandford, the Supreme Court was confronted with the issue of whether persons of African descent could ever have American citizenship. Justice Taney's opinion for the court relied on a positivistic view of the law by interpreting the Constitution as the Framers would have. Taney concluded, quite correctly, that at the time of the framing of the Constitution, blacks were considered "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect." While the Court's decision in Scott relied on the source of authority that is the Constitution and is thus more positivistic in view, Taney's opinion puts in plain sight the perception of blacks by whites at the time of the inception of the United States. Moreover, it speaks to the notions of natural law that were used to justify the treatment of blacks in this country.

The idea that blacks were inferior to whites was clearly not uncommon. Justice Taney writes:

It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.

The weight of this statement is not only the undisguised racism of his writing but also the way that Taney talks about blacks as being "that unfortunate race" and the way that every single European nation has experienced the inferior nature of blacks. The subjugation of blacks in this country was accomplished in part by a rationalization of their treatment through natural law. While our current moral system condemns racism and sees freedom for all individuals as being part of natural law, at one point, natural law was not so all-encompassing.

In a historical context, the concept of natural law was first considered and recorded by the Greeks. Natural law was again considered and recorded by Western Europeans. Because Western Europeans were able to then dominate the world through colonization and economics, they were able to dominate the intellectual marketplace with their ideas. Taney is correct when he says that the Framers could not possibly have even considered blacks as being equals with whites. The Framers brought along their Western European biases when they created the Constitution. This is evident in the three-fifth's clause where the Framers compromised and concluded that every black person would count as only three-fifths of an individual. Even if we understand the three-fifths compromise to be primarily a political compromise regarding representation, the underlying assumptions are impossible to ignore. These actions that treated blacks as inferiors could be rationalized by natural law. Since natural doesn't come from a source per se like an authority, the only way we can see whether something abides by natural law is to find its presence throughout the course of history. Since our culture is essentially a Western European culture, it is not difficult to find notions of non-white inferiority in the norm. For the Framers, it made sense that blacks were inferior because they've always been that way and this is just reflected by natural law.

Natural law is completely malleable. Were natural law to exist as a type of Platonic form that governs human existence, there's no way for human beings to come into contact with those ideas without filling them with the trappings of human cultural context. In light of this, we must be cautious when justifying a right or an action by referring to natural law. As we saw with slavery and notions of non-white inferiority, discrimination and bias permeate cultural norms and are a part of the history and traditions that we examine to find natural laws.