There will never be a time when you read MLK’s masterfully written “Letter From A Birmingham Jail,” and don’t feel the overwhelming beauty of his sentiment wash over you. I’ve read it several times in the past, and it seems like every time I re-read it something new and fantastic pops out at me.
Today, I take slight umbrage with the letter – if only in a devil’s advocate role. I take issue with this letter only within its implicit assumption that natural law is a reality; that there is some ethereal codex that serves as a foundation for law. This is implied when Dr. King speaks of just and unjust laws. The basic tenet being that there are those laws that are fundamentally just, and those that are fundamentally unjust; those that are just are in accordance with the ideals of natural law, and ought to be obeyed – those that are unjust are repugnant to natural law and ought not to be obeyed.
Now, before I move one I just need to say, yes I understand that natural law has been a staple of American political theory since before there was an American political theory. Thomas Aquinas, Tommy Hobbes (to a limited extent), Johnny Locke-Stock-and-Twosmokingbarells, Hugo Grotius, Ronald Dworkin, Francisco Suárez, and who knows how many other brilliant minds in legal and political theory have written page after page about the existence and development of natural law. I do not contend that I know better than these people, nor do I contend that I even disagree with them. BUT – there is something so subjective about it, at its very core, that makes it difficult for me to accept.
In one of his papers, I believe in the Harvard Law Review, Oliver Wendell Holmes mentioned the idea that rights may not be found in nature – instead, it is possible that rights are the attempt to legally guarantee (or protect) something that society wants. To me, it makes much more sense to liken just and unjust laws to something along this line – one will feel a law is unjust, simply because one does not want the affect that the law in question will have on one. The issue then becomes, where is the line drawn? Does this not lead to people disobeying laws simply because they want to? Well… has that been an issue with natural law? I think not. One of (certainly not the only) major theoretical sources of natural law is from religion – which has historically been used to justify some of the most horrific of events – but, it is rare that one will use religion as a scapegoat for the disobeyance (not sure that that’s a word… deal with it) of a law. Instead, the tenets of religion found in natural law have been used much toward societal benefit. However, religion is subjective, as is morality and ethics in general. Imagine a conversation between Immanuel Kant, Jeremy Bentham, and Ayn Rand, and go ahead and tell me that morality and ethics are anything but subjective. This is why I say, let’s just be realistic – natural law is nothing more or less than what one WANTS to be true of the law, not what OUGHT to be true of the law.