Natural law refers to laws of morality ascertainable through human reason. Moral philosophers have posited that such laws are antecedent and independent of positive, man-made law. The understanding of natural law is varied and complex, dependent upon the role morality plays in determining the authority of legal norms and rules. The relationship between natural law and the First Amendment is equally complex. In general, natural law, as a “higher” law, forms the foundation on which the First Amendment rests.
Natural law is the foundation for legal traditions
As a legal philosophy, natural law forms the basis and foundations for legal traditions. As a term of politics and jurisprudence, natural law is a body of rules prescribed by an authority superior to that of the state. It is intended to protect individual rights from infringement by other individuals, nation-states, or political orders.
Natural law as a protection of social practices and norms applies not only to states and governments but also to individuals. It provides an ethical set of rules for governing individuals in their interactions with one another based on the idea that positive, or man-made, laws are merely the articulation of the preexisting norms, social practices, and ideas held under natural law. Although natural law provides guidance for individuals in their pursuits and relationships, it does not lead to universal agreement. Moreover, humans do not always act on the basis of rational and deductive thought.
Aquinas concluded that man-made law is only valid if it conforms to natural law
The medieval philosopher Thomas Aquinas was among those who concluded that a man-made law is valid only insofar as its content conforms to the content of the natural law. An unjust law is therefore not really a law. This gives individuals who believe that laws are unjust a way to oppose them. Religious beliefs have long been cited as justification for disobeying laws. Dr. Martin Luther King Jr. invoked natural law in opposing racial segregation.
Locke believed if a ruler goes against natural law, the state can be overthrown
Theorists such as the English philosopher John Locke believed that if a ruler goes against natural law and fails to protect “life, liberty, and property,” then the people are justified in overthrowing the existing state. Locke and his successors often referred to “natural rights” rather than to “natural law” — thus somewhat secularizing the earlier concept, albeit while still acknowledging a Creator. Thomas Jefferson articulated this philosophy in the Declaration of Independence when he declared that “all men are created equal” and that “they are endowed by their Creator with certain unalienable rights,” among which he included those of “life, liberty, and the pursuit of happiness.”
Madison believed the state could not meddle in an individual’s relationship to God
James Madison believed that the individual’s relationship to God existed prior even to his or her entry into society; individuals were directly responsible to God, and the state had no authority to meddle in this relationship. The right to the free exercise of religion would be furthered by maintaining the separation of church and state. At the same time, the government had no right to suppress the right of expression to which religious and political freedom were linked.
First Amendment serves as a form of natural law
In some respects the provisions of the First Amendment serve much like natural law: both are a form of “higher” law, superior to laws that governments might make. The power of the First Amendment’s guarantees has undoubtedly been enhanced by the willingness of the Supreme Court to enforce its provisions.
Even as scholars continue to debate the degree to which justices should seek simply to enforce the constitutional text and the degree to which they can also enforce unstated natural law principles of justice, natural law provides an ongoing means by which individuals can appeal beyond governmental actions, and even court decisions, to a higher justice.
This article was originally published in 2009. Dale Mineshima-Lowe is Managing Editor for the Center of International Relations, researcher and Associate Lecturer in both the Department of Politics and Department of Geography at Birkbeck, University of London, and Tutor of Politics and History at the City Lit, adult education college in Central London.