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Should We Bother with “Natural Law?”: A Love Letter, from the Levant

Theories of natural law hold that the world and the law follow fundamental rules of justice that are eternally morally correct. Those who unironically call themselves “legal realists” counter claim that values are variable, and that what is ruled to be fair true or moral turns only on the perspective of the relevant lawmaker. I posit, however, that even the most seemingly clearcut manifestations of legal realism (such as two judges ruling differently on the same set of facts), are never completely devoid of the fantasy of natural law. Accordingly, I propose that even though we know natural law does not palpably exist, we should, and in fact do, pretend it does.

To claim that lawmaking is practically unconcerned with morality is erroneous and deceiving, as we all know, experience and sense. Woven into laws are compromises on efficiency and logic in the furtherance of liberty or equality. It is fine to concede that universal morality is a sham, but we do, in practice, ground much of our legal systems in this faith. Thus, it’s worth defining what it is or what it should be. For even if morality cannot be objective, I still think it a worthy venture to define justice; to put our finger on what we mean when we call something “just” or “unjust.”

Is justice liberty? I candidly confess that my personal belief is no. Regardless, it’s a common conception and thus worth exploring. If justice is indeed liberty, is that misleading? Is it sad? If liberty is the freedom to act as one desires, then it is inherently individual and thus inescapably incomplete. There is no way to, in the simultaneous name of both liberty and justice, uphold one’s freedom to discriminate and another’s freedom to not be discriminated against. Guaranteeing liberty requires making somebody else provide it. This problem is why T.H. Green held that the absence of compulsion isn’t enough to make a person free. How can you separate one’s liberty to enslave from one’s liberty to not be enslaved without seemingly compromising on pure liberty and admittedly incorporating other moral principles? We symbolize and embody justice with scales, and liberty is inherently imbalanced. Justice thus isn’t wholly manifested by unfettered liberty. So,

Is justice inequality? Is this unrealistic? Is it backwards? The first difficulty that arises in claiming that justice is equality is the question of whether inequality is engineered or natural. It’s hard to envision a society we would call “just” with pervasive inequality, and yet harder to envision any society with no inequality at all. Regardless, I think it witless to venture through history to determine whether inequality has always existed, because just as societies have conquered many of the challenges of the natural world — making childbirth safe for women or eliminating common illnesses that once were frequent killers — we can alter the course of inequality, too. Further, it is at least certain that a nation’s level of inequality is the result of its policies and institutions. So even if perfect utopian inequality has never existed and is unrealistic, the pursuit of justice can be delineated as the pursuit of moving away from dys topia. With that being said, if inequality is indeed natural and universal, when and how can we claim that it is unjust?

If liberty is incomplete and equality is natural, then perhaps my attempt to interpret natural law is useless and in vain. Yet I still defend principles and criticize laws in the name of equality. I conceded that it’s fallible. I’ve heard that it’s subjective. But I do think it resonates with people. It’s difficult to articulate why equality is worthwhile. In stubbornly resisting the urge to resort to efficiency arguments about mobility and growth, I am left with timid ambition that to cite compassion and to raise love is sufficient, convincing, and true. Legal realism and rejection of the natural law of equality are grounded in the assumption that society is nothing but the sum total of individuals; that nothing transcendental or metaphysical binds us together. We innately, even if timidly, know that’s not true. The lazy and glum narrative that we are inherently individualistic is overstated and disenchanting. There is no account for why we attempt to define, care about, write about, and talk about justice as we do if not because we are inherently concerned with being benevolent.

Despite my romanticism, I do concede that natural law does not objectively exist. But we should continue defining it and studying it; pretending that is does. Individualism is a viral, self-fulfilling prophecy. When we hold that society is but a struggle to contain an underlying selfish and evil human nature, it shapes the way we relate to each other. As a society, if we subscribe to the theory of inevitable individualism, we condemn and limit ourselves to trying to manage individualism. Managing individualism shouldn’t be out priority or structural basis, because our individualism is not the sum total of who we are, for we are actually, (maybe even naturally?), more cooperative than selfish. Perhaps we can ground the objectivity of the natural law of justice not in truth of the universe, but in truth of humans. I believe sincerely that metaphysical love and inborn communism exist deep in our nature. They are true and natural. They are the natural law.