When dealing with International Law and social policy, most of us who support the Catholic social teachings find it difficult to form an opinion about the laws of other countries. Essentially we find ourselves in the dilemma of wanting to be faithful Catholics but not wanting to establish a theocracy. We accept the reality that we live in a country where Catholicism is not the only religion and that the price of freedom means tolerating dissent. So what basis do we have in making arguments against gay marriage, abortion, and euthanasia in this country founded on a respect for natural rights? Perhaps the challenge is reminding ourselves that we cannot argue for natural rights or human dignity without first arguing about natural law. It is in natural law that we find the basis in a diverse world for seeking justice on an international scale.
One of the best legal minds on the subject of natural law is Professor Hadley Arkes of Amherst College. His book Constitutional Illusions & Anchoring Truths gives us a taste of how natural law upholds the American Constitution and how Legal Positivism has proved problematic as a guiding philosophy for jurisprudence. In particular, his remarks about Legal Positivism are incredibly informative because they reveal how relativistic American society has become. Legal positivism is, according to Stanford’s Encyclopedia of Philosophy,
“the thesis that the existence and content of law depends on social facts and not on its merits…. law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction.”
Arkes’ most basic argument against this radical thesis is that law must derive ultimately from a sense of justice. In the chapter “The Natural Law- Again, Ever” Arkes shows us that try as we might we cannot escape the fact that oppressive legal institutions (like slavery) could only have been undone by appealing to the natural law. Something must transcend and bestow authority upon the law in order for it to be worth following in the first place. The law must be anchored in some sense of reality, otherwise everything legislated is absolutely arbitrary.
Our discussions of social policy must recognize the perils of legal positivism and work to change the discussion into one that recognizes principles and fundamental truths. Clearly, when one appeals to natural law it should undergo heavy scrutiny. To say that something is fundamental to preserve human dignity is a bold claim. However, if we discard natural law, as the positivists have done, we find ourselves basing our arguments on nothing. Why should same-sex marriage be a “right” in the first place if there is no such thing as truth? Can someone be deprived of rights that nobody inherently possesses? These are all questions of the natural law that must be answered and debated in order for a genuine debate about these issues can arise.
About The Contributor
