How can a law be illegitimate? Isn’t this an oxymoronic question? It is a question that brings us to the concept that there can be a difference between what is legal and what is right. This is the debate between those who believe in Legal Positivism and those who believe in Natural Rights.
Legal positivists “believe that the only legitimate sources of law are those written rules, regulations, and principles that have been expressly enacted, adopted, or recognized by a governmental entity or political institution, including administrative, executive, legislative, and judicial bodies.” In other words whatever the government says is legal is right.
While those who believe in Natural Law believe “all written laws must be informed by, or made to comport with, universal principles of morality, religion, and justice, such that a law that is not fair and just may not rightly be called law.” Any law which is contrary to Natural Law is not a legitimate law. For example a law that says it is legal to murder others would be seen by all to be illegitimate in a moral sense even though it would be technically legal.
That this is the concept under which the United States was first formulated is self-evident when we read that incomparable document which was issued by the Continental Congress as a justification for its war and its purpose: the Declaration of Independence. In its opening paragraph, the preamble which all school children once memorized, this document explains itself thusly: “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”
This brings us to the first debate of this essay. Is God supreme and consequently His laws binding upon all people and all nations? Or is man supreme and all nations amendable to his will and purpose and all his laws supreme until they are changed?
When they decided to adopt the phrase "Laws of Nature and of Nature's God" the fifty six signers of the Declaration based the foundation of our country on a legal standard of freedom. They sought to impress this mold into all the various forms of government to follow. This legal standard of freedom they adopted was that God's law was supreme and that this law inherently gives man freedom. The phrase "Laws of Nature and of Nature's God" referred to the laws that God as the Creator of the universe established for the governance of people, nations, and nature. Throughout History these laws have been described as the laws of Creation, God's Creation laws, or as the Founders of our nation chose to call them, the laws of nature and of nature's God. These laws, whatever they are called, are ascertained through an examination of God's creation, the text of the Bible, and instinct or reason.
The decision of the Founders to expressly rely upon God's law was not a casual one. The debate concerning the basis of law had raged on both sides of the Atlantic for many years before and after the Declaration was drafted. After years of reflection on the Declaration of Independence, its principle author, Thomas Jefferson, stated in 1825 that its central point was “not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject.”
That this is a generally accepted theory has been affirmed by the world in the universal acceptance of the correctness of the Nuremburg Trials after World War II. The Nazis who were on trial universally sought to defend themselves on the grounds that everything they did was legal and that they were just following the orders of the legally constituted government. This defense was universally rejected. The world came together and said in effect there is a higher law.
In America today it is the accepted practice that our federal legislature enacts laws which direct the apparatus of government as to how it should operate. It is also accepted practice that the same body enacts laws which establish rules for how ordinary individuals should live their lives. This duality obscures the truth that though it is necessary and proper for the government to administer the labor of those who have been hired to carry out its will this does not translate into an objective right to administer the individual efforts of its citizens.
The distinguishing characteristic between a free society and a command society is that in a free society there is a recognized sphere of personal action which stands apart from the public sphere. In a free society it is recognized that within the private sphere an individual cannot be ordered about at the whim of government bureaucrats. It is also recognized that in the public sphere individuals should only be required to obey laws which are generally applicable to all. It used to be the proud declaration of free people that as long as they kept within the bounds of known law they didn’t need to ask by your leave of anyone, they were sovereign of their own life.
This however was a declaration grounded on the belief that laws should be of a general nature; they should be clearly stated and knowable.
Today our Progressive leaders pass laws composed of thousands of pages written in the clear and precise language of government new-speak insurance papers by saying, “We have to pass it to know what’s in it.” We also have the spectacle of the man who was in charge of writing the tax code for decades when he is caught cheating on his taxes saying, "I personally feel that I have done nothing morally wrong." While Mr. Rangle was never indicted for tax evasion since he is above the laws he passes he was found guilty of violating the rules of the House for the same charges.
There is little that is more important to a free society than laws being clear and certain. If people do not know what the law is there will be paralysis. In totalitarian societies people never know when they might be accused of breaking a law or rule that they may not even be aware of. In authoritarian and totalitarian societies the apparatus of government is not used merely to operate the necessary functions of civil administration it is used to coerce citizens to obey.
Article 2 section 1 of the Articles of Impeachment filed against President Nixon was about the abuse of power. It stated, “He has, acting personally and through his subordinated and agents, endeavored to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposes not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigation to be initiated or conducted in a discriminatory manner.”
Nixon “endeavored to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information.” He “endeavored to obtain,” but he never did obtain this information. The IRS turned him down and turned him in. Today the Obama regime after years of hiding documents and sending their operatives to Congress to either mislead, lie, or plead the fifth has finally been exposed by documents obtained through a Freedom of Information request that was enforced by a judge. It has definitively been learned that the IRS persecution of conservative groups was not the work of a few rogue agents in a district office. The targeting of the Tea Party groups was directed by the IRS Headquarters in Washington.
We have come full circle. From a nation founded upon the Laws of Nature and of Nature's God we have allowed the Progressives and their Living Document to lead us to a land governed by the laws of man. The children of the Founders and the descendants of the Framers now cower before an all-powerful corporate state that passes laws no one reads, regulates everything, and employs armies of bureaucrats to harass us into obedience and conformity.
Looking at the contradiction between what we were created to be and what we have become, the question why do we obey comes to mind. Is it that we are too timid to follow in the footsteps of Washington, Jefferson, and Henry? Is it that we have developed a habit of following the directions of our leaders? Or is it that we have a respect for the rule of law?
In the face of continued abuse the timid grow bold, old habits are broken, and when respect is lost it is not easily regained.
One day there will be one abuse too many. And in that day the people of America will recall that the same people who based our society on the Laws of Nature and of Nature's God also said, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
Why do we obey? Ask yourself, why do I obey, and you will have the answer, because We the People is merely you and I waiting to recall who we are, how we got here, and what we are supposed to be.
Dr. Owens teaches History, Political Science, and Religion. He is the Historian of the Future @ http://drrobertowens.com © 2014 Contact Dr. Owens [email protected] Follow Dr. Robert Owens on Facebook or Twitter @ Drrobertowens / Edited by Dr. Rosalie Owens