Martin Luther King wasn’t the first to apply natural law to the questions of civil rights, but rather he is that wonderfully heroic prophet of natural rights and civil rights in our own day. But he relies upon a tradition that was much older.
A century before Martin Luther King, Charles H. Langston was convicted by an Ohio court. The year is 1859 and so we are before the civil war. He was convicted for violating the federal laws at that point that required the return of fugitive slaves. This is one of those incidents that led to our civil war. In the course of his defense speech, he too invoked a higher law. He did not succeed in his plea before the court. Civil rights, at that stage in our history, required a very bloody war and then after the war required amendments. We will have a chance to look at them later on in the course of our lectures. But listen to his words and hear that doctrine of natural law ring out in the course of what he considered to be the civil rights of individuals, where those civil rights were not being respected.
He said: “I will do all I can, for any man thus seized and held, though the inevitable penalty … hang over me!” He says: “We all have a common humanity and you all would do that; your manhood would require it; and no matter what the laws might be, you would honor yourself for doing it, while your friends and your children to all generations would honor you for doing it, and every good and honest man would say you have done right!”
Notice his reference to a common humanity. His sense that no matter what the law may say, (calling the black people of that day who were slaves and therefore property or chattel; nonetheless, he recognizes in them a common humanity and he thinks that this requires that he act) failing to return fugitive slaves, even if it is against the federal law of that day (precisely because there are duties that flow from our common humanity), he is willing to accept the penalty. This too will be an important part of the natural law tradition. The willingness to accept the penalties that civil disobedience incurs because there is a higher law that must be respected as higher, not because we prefer it but rather out of a sense that it is superior and supreme.
Now in these examples what I hope to have shown is, is that people of very widely different periods of time, in extremely varied circumstances, and even of different background and religious belief, have nonetheless called upon this tradition of a higher law or a natural law. In this course what I would like to do is to give philosophical consideration to that idea.
Philosophy is a wonderful approach to these questions that we sometimes have an intuitive sense of. We heard in all three of those examples, especially in Antigone’s speech, her intuition that she had to do something for her brother. We heard in Martin Luther King, a sense that we have a fundamental humanity, which must be respected. But when we find that others disagree with us, we need to make arguments. And so the burden of this course of lectures will be to try to make a philosophical argument. It will be an effort to make those intuitions that we have more rigorous — give them very precise statement — for that is for a large part what philosophy does.
We need to consider ideas that are other than our own. Ideas with which we might disagree or agree spontaneously; and we must submit them to rigorous scrutiny. Because sometimes the things that we find so evident and so compelling are merely prejudices. And the things that we find a little disagreeable with, perhaps because we sense something uncomfortable about their implications, might actually bear tremendous importance and have affect upon things that we have taken for granted. That there can be tremendous moral progress, even in the course of examining the ideas that we have a spontaneous reaction to — favorable or unfavorable.
A second reason for submitting this to philosophical scrutiny, beyond merely the desire to be fair and honest about somebody’s idea, has to do with the institutionalization of these ideas. Mainly, we can have ideas (Antigone had them, Martin Luther King had them, Ike justices at Nuremberg were very deeply having them), but there is a need for the institutionalization of ideas if we want everyone to receive fair treatment by law courts, by administrative officials, by those authorities who are charged with the care of the common good.
Philosophy, especially the philosophy of natural law, is aimed with considering how to institutionalize those ideas. Some of the obligations of morality will be relatively easy to institutionalize. Laws for instance against murder or against theft, laws that defend our property and our liberty.
But other ideas of morality will be extremely difficult to institutionalize. Have you ever thought for instance about whether there could be a law that required gratitude? We tell our children from the time when they are knee high to a grasshopper that they need to say thank you and that they are not doing right if they fail to be grateful. And if we wouldn’t think of locking somebody up for not being grateful. Some parts of morality can be institutionalized in ways that requires sanction, penal sanction if they are violated. Others are things which moral suasion does better at and hence a philosophical review is intended to consider these questions.
A third reason for turning to philosophical consideration of natural law is precisely because of the status of natural law ideas in our own legal theory today. Legal theory that is present in most law schools and practiced in most courts goes under the name of “positivism.” Just a few minutes ago we talked about those supra-positive ideas that were referred to in the German 1955 decision. Positivism is a broad legal theory, which suggests that law and morality have to be kept entirely separate. Perhaps morality can have a role in legislatures. So that if you have moral ideas, whether from a philosophical source or from a religious source, you ought to work with legislatures to try to enact those if think it appropriate and for the common good.
But that courts should stay strictly away from any such reference to morality. And that courts should insist only upon formality (on asking about whether a particular deed does or does not follow under a particular law) and secondly to ask whether a particular law does or does not fall under the purview of the constitution. As such, the consideration is purely formal and in a pluralist society that may be the best we can do. Confining the questions of morality to the legislature and then asking our justices to make a strictly formal consideration of it.
On the other hand, something doesn’t sit right within us when we have laws that seem to violate our moral convictions. One found that, for instance in the civil rights cases of last century, when the case of slaves was brought to the court and decided against the slave in the case of Dread Scott, most of us feel that there is something dreadfully wrong about that. But it’s a question of whether or not there should be a moral angle to the judicial review that is practiced by the courts charged with considerations of deeds and laws.
What we will be undertaking then, with a philosophical consideration of the matter, is to bring philosophical scrutiny to these fundamental ideas of justice and a theory of justice. I’ll be referring again and again to the following traits: objectivity, universality and intelligibility because I think these are philosophical ideals for anything that we try to turn our philosophical acumen to. When it’s a matter of questions of ethics, these will be extremely important. In considerations for instance of universality, what we’ll be aiming at is some kind of notion, some kind of theory, some kind of justification that applies to every human being, not just a people of certain race, not just a people of certain religion, not just a people of a certain kinship relationship to us. But rather something that is truly universal.
Secondly, there will be a concern with objectivity. That is to say, a desire to have any person who is attempting to make these claims provide the kind of evidence, provide the kind of argument, provide the kind of understanding of the material that will compel, that will seem to be truly coercive, that will seem to be truly strong to another person considering the matter. It won’t be just subjective opinion, but rather will have an element of objectivity to it; something that I do not create or control or alter that is the basis of my truth plan.
Third, we’ll be considering intelligibility. That is, whether or not the notion that I propose, or that anyone in the natural law tradition proposes, is something that is readily understandable. Some of these things will I think strike us as very simple and common. And ethics is generally on sound footing when it starts with cases that are intuitively clear. Murder for instance is wrong because it’s a matter of taking an innocent life and doing so deliberately. That’s an intelligible notion and we find it readily intelligible that there should be no arbitrary license to kill.
But when we turn to things that are much more complicated, things much further in detail, the intelligibility will come only when there is sufficient training. What we will be attempting to do then in this course is to submit the notion of law, the notion of nature, the notion of human nature, and finally the notion of natural law to philosophical scrutiny in order to try to provide a morality, a theory of ethics that has those characteristics: objectivity, universality, and intelligibility.