by John Tyler, JD, PhD
Two troubling trends have radically transformed American jurisprudence since the 1950s.
The first is the intentional separation of law from morality. The second is the increased acceptance of judicial activism. This is the first of two essays explaining these trends, the harm they create, and how Christian universities can help reverse them.
A page of legal history is worth a volume of logic in explaining these trends. American jurisprudence originated in Sir William Blackstone’s Commentaries on the Laws of England, published in four volumes from 1765 through 1769. Blackstone’s Commentaries dominated American jurisprudence from the founding through the early 20th century. The two trends discussed in these essays attack two of Blackstone’s fundamental principles of jurisprudence.
The first principle, known as natural law theory, ensures just laws by maintaining harmony between law and morality. Under natural law theory, laws that violate the moral precepts of natural law are invalid and unenforceable.
The second principle, known as the declaratory theory of law, establishes the sovereignty of law over judges. The declaratory theory protects against judicial tyranny by separating the power to enforce law from the power to make law. The declaratory theory provides that judges enforce law by finding, declaring, and applying the law that already exists. It forbids judges, however, from making new law by legislating from the bench.
This essay focuses on the first principle listed above, natural law theory. It explains how natural law theory maintains harmony between law and morality. It next explains the contemporary movement to separate law from morality in American law. Lastly, this essay reviews the horrific consequences of separating law from morality in the Soviet Union, Nazi Germany, and the United States.
A. Natural law theory
Natural law theory protects against unjust laws by maintaining a harmony of law with morality. Morality is an indispensible component of justice. Immoral laws are unjust, and unjust laws inevitably become instruments of oppression and despotism. Laws must therefore act in harmony with moral precepts.
Natural law theory is the most ancient tradition in Western jurisprudence. Early elements of natural law theory appear in Hesiod’s didactic poem “Works and Days” (c. 700 B.C.). Hesiod writes that just actions bring peace and prosperity. Unjust actions, however, bring famine, plague, infertility, and military disaster. Socrates argues in Plato’s Crito (c. 380 B.C.) that citizens have a duty either (1) to obey the law, or (2) to demonstrate that the laws are not just.
Justinian’s Institutes (AD 535) evaluates whether laws are just using three precepts of natural law. Natural law requires us “to live honestly, to injure no one, and to give every man his due.” Divine providence establishes these natural law precepts, which are immutable and universal.
Sir John Fortescue’s De laudibus legum Angliae (In Praise of the Laws of England) (c. 1470) establishes a natural law standard of legal validity in the common law tradition. Laws that violate natural law precepts are invalid and unenforceable.
John Locke’s Second Treatise on Civil Government (1689) holds that natural law provides natural rights to “life, health, liberty, and possessions” for every person. Natural law originates in God’s will, and God establishes these natural rights prior to the formation of society. These rights are also inalienable, meaning society can only limit these rights with the consent of the governed.
Like Fortescue, Locke adopts a standard of legal validity based on natural law precepts. Locke holds that man-made or positive laws are “only so far right, as they are founded on the law of nature.” Positive laws that violate natural law precepts are invalid and unenforceable.
Scripture guides man in discerning the precepts of morality and natural law. Locke maintains that human reason is incapable, by itself, of discerning these precepts. God therefore promulgates the precepts of morality and natural law through scriptural revelation.
Blackstone’s Commentaries on the Laws of England (1765-1769) combines elements of the natural law tradition from all of the above. Blackstone posits that immutable laws of human nature govern man. Man’s happiness depends on conforming to these laws.
The foundation of natural law for Blackstone is the pursuit of man’s “true and substantial happiness.” God, as both the creator of man and the author of natural law, made human happiness and justice mutually interdependent. Human beings obtain happiness by pursuing justice. Conversely, human beings become unhappy by failing to pursue justice. Natural law permits just actions that promote man’s happiness, and it forbids unjust actions that destroy man’s happiness.
Blackstone expressly adopts Justinian’s three precepts of natural law. “Such, among others, are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian has reduced the whole doctrine of law.” Blackstone also adopts Locke’s view that positive law derives all its validity and force from natural law. Blackstone lastly adopts Fortescue’s and Locke’s standard of legal validity. Positive laws that violate natural law precepts are invalid and unenforceable.
Blackstone’s natural law theory commands us to ignore positive laws that violate natural law precepts, such as laws that punish or kill innocents. Blackstone argues that true laws must be just laws. Unjust laws, by definition, are not laws at all. There is no duty to obey them.
Blackstone, like Locke, looks to scripture to discern the precepts of natural law. Prior to Adam’s fall, human reason was sufficient to discern these precepts. Adam’s fall, however, corrupted human reason. Fallen man requires divine revelation to discern the precepts of natural law, and God’s “compassionate providence” provides this revelation in scripture.
B. Blackstone’s influence on American jurisprudence
For more than a century, Blackstone’s Commentaries provided the foundation of American law and legal education. Published reports of American decisions did not exist in the decades surrounding the American Revolution. Reports of English decisions were frequently unavailable. In many jurisdictions, the four volumes of Blackstone’s Commentaries represented all there was of the law.
Carl Sandburg describes Blackstone’s influence on the life of Abraham Lincoln. The young Lincoln was advised by a lawyer friend that Blackstone‘s Commentaries was the first book that a prospective lawyer should read. Lincoln fortuitously obtained a copy from a man driving west who needed to lighten the load of his covered wagon. Twenty-five years later, Lincoln wrote a letter advising another young man to “come to the law” as Lincoln had, by reading Blackstone “for himself, without an instructor.”
A 1914 Carnegie Foundation study records that “all of the older American law schools started by being so-called lecture schools. Blackstone’s Commentaries, which, as we know, were used for purposes of instruction earlier and with far more lasting effect in America than in England, formed the almost exclusive basis of the work.” For more than 100 years, “thousands upon thousands of lawyers and influential laymen on both sides of the Atlantic read Blackstone’s Commentaries and believed them.”
C.The separation of law and morality
Contemporary American jurisprudence repudiates Blackstone’s natural law theory and rejects its validity standard. Instead, contemporary jurisprudence intentionally separates law from morality. It expressly accepts “morally iniquitous laws,” and it enforces “legal rights and duties that have no moral justification or force whatever.”
Why does contemporary American jurisprudence reject Blackstone’s natural law theory? The vehicle of change is a legal philosophy known as legal positivism. Three English utilitarian philosophers, Jeremy Bentham (1748-1832), John Austin (1790-1859), and H. L. A. Hart (1907-1992), developed legal positivism to oppose Blackstone’s jurisprudence. Many judges embrace legal positivism because, contrary to Blackstone’s declaratory theory of law, legal positivism permits judges to legislate from the bench. Moral skeptics embrace legal positivism because it purges morality from law. Secularists embrace legal positivism because it repudiates scripture.
The legal positivist movement began in the United States at Harvard Law School in 1957 when Oxford philosopher H. L. A. Hart gave a lecture entitled “Positivism and the Separation of Law and Morals.” Hart made three claims in his lecture. First, positive law is the only real law. Second, natural law is imaginary, not real. Third, there is no necessary connection between law and morality.
Hart’s lecture built on the works of Jeremy Bentham (1748-1832) and John Austin (1790-1859). Jeremy Bentham rejected the moral precepts of natural law that people should live honestly, injure no one, and give every man his due. Instead, Bentham claimed the only standards for right and wrong are physical pleasure and physical pain. Morality is not determined by the nature of an act, but rather by its consequences. Acts are moral if they produce physical pleasure. Acts are immoral if they produce physical pain. A familiar criticism of Bentham’s moral philosophy, of course, is that a philosophy founded on pleasure is a philosophy fit for pigs.
Jeremy Bentham also rejected the existence of natural law. Bentham claimed that man-made or positive laws are the only real laws. Only positive laws, therefore, can create real rights. Natural law is “imaginary,” and natural rights are “simple nonsense.” Inalienable natural rights, the type of rights described by John Locke and the American Declaration of Independence, are “nonsense walking upon stilts.”
John Austin (1790-1859) agreed with Bentham that natural law is “stark nonsense.” Austin claimed that morality has no role in law. “The existence of law is one thing; its merit and demerit another.” An immoral law is still a law, even if “we happen to dislike it.” Austin also rejected scripture as a basis of morality in law. Austin wrote in The Province of Jurisprudence Determined (1832) that the laws of God are too uncertain and ambiguous to provide a source of law.
Austin also attacked Blackstone’s “declaratory theory” of law that judges must never make new law. Austin actually prefers judges to legislatures for making law. “That part of the law of every country which was made by judges,” he wrote, “has been far better made then that part which consists of statutes enacted by the legislature.”
Austin saw no need to protect against tyranny by separating the power to make law from the power to enforce law. He saw no “danger whatever” in allowing judges to legislate from the bench. Instead, Austin argued that judges must legislate from the bench “to make up for the negligence or incapacity” of legislators.
D. The United States Supreme Court adopts Hart’s legal positivism
L. A. Hart published The Concept of Law in 1961, four years after his Harvard Law School lecture entitled “Positivism and the Separation of Law and Morals.” The Concept of Law is the magnum opus of legal positivism and the most influential work on jurisprudence since Blackstone’s Commentaries on the Laws of England (1765-1769).
Hart rejects any standard of legal validity based on moral precepts. The second edition of The Concept of Law embraces the validity of “morally iniquitous laws” having “no moral justification or force whatever:”
I argue in this book that though there are … no necessary conceptual connections between the content of law and morality; and hence morally iniquitous provisions may be valid as legal rules or principles. One aspect of this form of the separation of law from morality is that there can be legal rights and duties which have no moral justification or force whatever. [Emphasis added].
Hart’s legal philosophy recognizes any law as valid, however “morally iniquitous,” including laws establishing slavery, laws facilitating the Holocaust, and laws permitting the killing of innocents.
Like John Austin, Hart rejected Blackstone’s declaratory theory of law and argued that judges should legislate from the bench in most cases. Hart justified his position with his famous “penumbra doctrine.” The meaning of every legal term has a “penumbra of uncertainty at the outer fringe of its meaning.” Judges should provide certainty to the meaning of legal terms by legislating from the bench.
Hart’s legal positivism entered the mainstream of American jurisprudence in Griswold v. Connecticut, 381 U.S. 479 (1965). The United States Supreme Court adopted Hart’s penumbra doctrine in Griswold to make new law and “imply” a new right of privacy in the Bill of Rights. Even though the text of the Bill of Rights contains no right of privacy, the court claimed to find this new right in the “penumbras” of other rights contained in the text.
The Supreme Court used its judge-made right of privacy in Griswold to strike down Connecticut birth control statutes. Eight years later, in Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court used its judge-made right of privacy to strike down the Texas abortion statute.
E. The consequences of separating law from morality
The slaughter bench of history amply illustrates the consequences of separating law from morality. Two countries created positivist legal systems during the 20th century. The Soviet Criminal Codes of 1922 and 1926 adopted Italian positivist theory, particularly the work of Enrico Ferri (1856-1929). These codes expressly permitted the execution and punishment of innocent parties.
Article 7 of the 1926 Criminal Code authorized punishment, including death, for any person deemed to pose a “social danger.” No crime was required for punishment. Article 58 permitted authorities to punish innocent family members and innocent dependents of convicted offenders.
Soviet rulers designed their legal system to control the population through terror. They succeeded. Stalin utilized the Criminal Codes to execute 3.5 million without trials during the “Great Terror” of 1936-1938. Stalin killed an estimated 7.25 million while forcing peasants off their farms during the “Dekulakization” of 1929-1933. Stalin intentionally starved 7.25 million Ukrainians to death, half of them children, during the “Holodomor” or “terror-famine” of 1932-1933.
The Nazis, impressed by the effectiveness of Soviet positivism, adopted Article 1 of the Soviet Civil Code into their own positivist legal system. Article 1 permitted the government, at its discretion, to disregard all civil rights. The Nazis also adopted Article 16 of the 1926 Soviet Criminal Code entitled “Crimes by Analogy.” Article 16 permitted punishment, in the absence of any crime, if the defendant committed an act that was “analogous” to a prohibited act. Most of the atrocities of the Holocaust were legal under German legal positivism.
Stalin’s legal positivism killed 18 million innocents. Hitler’s legal positivism killed 11 million innocents. America’s legal positivism has killed 59 million innocent unborn. This number is more than twice the killings by Hitler and Stalin combined, and America’s butcher’s bill continues to grow.
The evidence of history proves the necessity of morality in law. In my next article I will address a second fundamental legal principle, the sovereignty of law over judges. I will close that essay by discussing how Christian universities can help restore morality and sovereignty to American law.
About the Author
JOHN TYLER, Jr., JD, PhD, is an Associate Professor at Houston Baptist University. Dr. Tyler practiced commercial, civil rights, and toxic tort litigation in Texas for thirty-five years and is the author of multiple award winning leading articles in law journals.