A Nation of Laws

By Sam Huntington

Why must we accept the authority of government? There are actually three reasons: fear, tradition, or philosophy. If we refuse to obey the law, government will punish us. If we refuse to obey the law, we violate religious teaching (Give unto Caesar). If we refuse to obey the law, we break faith with our fellow citizens. Therefore, it is possible to postulate that government has a stake in maintaining its power over its citizens, even to the extent of fooling us into believing that we the people actually govern. We do not.

If this is true, then what must we think about this notion of natural law? There is actually more than one form of natural law: Divine, secular, and historic. Divine law is revealed to us from an all-powerful being. Secular law is the consequence of man’s understanding of physical, biological, and behavioral factors. Historic law has evolved over the course of human history, either because of accumulated understanding, or well-established practices and experiences. Of these three, historic law is most flexible.


Divine Law. We find divine law firmly encased in Judeo-Christian and Islamic tradition —writings from the Torah, Bible, and Qur’an that claim divine inspiration. We find these claims legitimate because most human beings acknowledge the wisdom of commandments handed down, all of which appear to inspire us to create and maintain peaceful communities and that help us to delineate between right and wrong. We find general agreement that divine law is inherent, inalienable, indivisible, and universal.

Secular Law. These are laws of nature that we generally agree are unchallengeable, just as there are things in the physical environment that are given. As examples, we might suggest biology, physics, and mechanics. Physical laws are observable, repeatable, and measureable—and it is through this process that we understand certain truths about our physical world. So too does secular natural law depend on observation and measurement within human nature, and beyond government. It identifies uniform and fixed moral and ethical customs that not even government can change —among these, the supposition that inalienable and immutable human rights flow from human nature and exist independent of government.

John Locke observed that these fixed moral and ethical elements formed the basis of a social contract, within the confines of which human beings would behave reasonably and tolerantly toward others. Within this contract, mankind consent, either explicitly or tacitly, to surrender some of their freedoms, and submit to the authority of the social majority (government) in exchange for guaranteeing their remaining “inalienable” rights. Locke argued that in the absence of government, every individual possesses a right of self-preservation equal to that of everyone else —the fulfillment of personal needs consistent with the liberties of others.

Recognizing an inconsistency of self-preservation on the one hand, and human greed and narcissism on the other, people establish government —and laws— to protect life, liberty, and property (the pursuant of happiness). To the extent that government provides these protections, it becomes part of the secular natural law. When government actions extend beyond the consent of the government, it becomes illegitimate.

Historical Natural Law. Also called historicism, we based historic natural law upon the experience gained throughout human history. The individual responsible for creating this formal school of thought was Friedrich Karl von Savigny, who lived between 1779 and 1861. Savigny rejected out of hand the absolute nature of divine and secular concepts to the extent that the comprise customs and traditions; judges have determined the course of human relationships over time, as embodied by case law even so far back as Hammurabi’s Laws. Oliver Wendell Holmes embraced this school of thought: judicial wisdom is the most reliable source of law. Holmes argued that religious liberty is not “inalienable” at all —merely fundamental. This notion, by the way, occurred after the founding of the United States. In this sense, it is un-American.

Why this is important

It is my contention that the American people are soon to embark upon a new and dangerous ground. They do so quite unconsciously, and what I mean by this is that when we go to the polls to vote for the latest best hope for mankind, we do so without a clear understanding of his or her philosophy. Barack Obama is an example of this. What he actually believes is very different from what he acknowledges publicly, or stated in another way, his behavior does not reflect his public pronouncements. Consequently, voters choose him based upon incomplete or an inaccurate understanding.

Our Declaration of Independence affirms the legal basis of the United States of America is natural law. This precious document leads us to a mandatory recognition of rights beyond the Constitution, or the so-called unenumerated rights as set forth in the Ninth Amendment to the U. S. Constitution. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

This guarantee recognizes that rights do exist outside the written positive law. As part of our nation’s formal philosophy, the Ninth Amendment affirms that while the Constitution limits government, the people are less constrained. It releases us to pursue happiness consistent with the laws of the states where we reside. We can feel good about the Supreme Court, for whenever it considers natural rights, it overwhelmingly comes down on the side of liberty.

However, this is not what our politicians want. They are leading us down the pathway toward historicism … the law as decided by the judges appointed by politicians.

Dictators obtain their authority over the people by instilling fear of disobedience. The US government today exercises this dictatorial authority in a number of ways, which Alexis de Tocqueville described as soft tyranny. One of the more recent examples of this is the so-called Affordable Car Act; it is no more affordable than Nancy Pelosi is lucid. What Obama Care does is force Americans to succumb to the will of government, to behave in a certain way. If we do not succumb, if we do not behave in the prescribed manner, then government will impose arduous taxes until we finally come around to the government’s way of thinking. This is tyranny.

I believe that most of our citizens have not given much thought to our nation’s legal philosophy, but few things are more important toward the preservation of our great Republic. It is the very foundation of our relationship with government, and government’s relationship with us. Our public schools have not offered civics classes for many years … and this is the reason so many people are uniformed or unaware of our country's framework. I also believe it is still possible to achieve a better America —one that does not demand the institution of Marxist ideology— but with this one caveat: we can only achieve a better country when the American people do a better job choosing their political leaders.