Locke, Aquinas, the Founders, and Laws

Grim does a lot of heavy lifting.  I just graze and steal the results.

He is reviewing a book on the Founding principles by a fellow named West.  In some ways, the book runs counter to the Received Wisdom, and the "laws" section is one of them.

...We are reaching the heart of what interested me about this book: the refutation of many scholars, whose work has influenced my own understanding, who held that the Founders had not meant for the government to morally shape individuals as a matter of respect for individual liberty....

 ...West is doing it right, too: ... offering new textual evidence that seems clear-cut on the point....

 He quotes John Locke on the 'four kinds of moral law,' and notes that there is no evidence he knows of that the Founders used this concept (though some of them read the book in which it is mentioned). (188-9) Rather, West says, he is bringing it up to give us a framework for considering how the Founders' actions can be interpreted. Locke is himself following Aquinas' tradition for the most part, which West doesn't mention at all. 

Locke's four laws are: 

1) Divine Revelation ("Eternal Law" for Aquinas)

2) Natural Law ("Natural Law" for Aquinas)

3) Civil Law ("Human Law" for Aquinas)

4) "The law of fashion and private censure" (This is not a kind of law for Aquinas, but rather the domain of honor and shame)

 

 

For the first, he has citations even from Jefferson that a foundation on the divine is the only firm foundation for the defense of liberty. (190-1). Divine law is known to us only by revelation, and reason cannot access it directly. 

Natural law is derived by reason from what is observed about Creation; to know God's works is to learn something about God and God's intentions. What reason can derive about the moral structure of the world is of the second water, but it is still higher than man-made civil law. Human-made laws that violate natural law are and ought to be void; as we have seen throughout, the Founders thought a system of civil law that violated natural rights ought to be overthrown. 

Civil law is the least interesting category. It should serve the natural law by spelling out consequences for violating the natural rights of others, and by offering non-violent ways of settling disputes ('torts,' for example). Here too is public education, which is supposed to shape and train the virtues in the hope of raising up citizens fit for a free society, its offices, and its duties. 

The fourth category is one that I wouldn't normally think of as being a sort of law, but West makes a good case that the Founders might have done. As he points out, the Founders used this a lot to try to shape moral society through praise, condemnation, celebratory speeches, funerary speeches, honors, shames, and so and and so forth. 

West is also good on the limits of Enlightenment thought in the view of the Founders. A lot of scholars view the Founding as an Enlightenment project. West shows that the Founders, though aware of the Enlightenment and interested in it, were also skeptical of how far pure reason could take you. He has good citations to Jefferson, Adams, Madison, and Washington's Farewell Address. (198-200)

Most of you readers will recognize the limits of "positive law" --the third category above--immediately, although there are vanishingly small remnants of the judiciary which observe those limits; in fact it's likely that most of them don't know there are limits.  Don't believe that?  Then defend Roe and all the decisions on homosexual practice (not orientation) or the apparent success of 'tranny' causes in the courts.

My, we have descended quite some distance in only 230+ years, eh?  And that descent is toward the planet of the apes, not away from it.

Grim concludes:

I am convinced, with only the reservation mentioned above, [concerning the fourth "laws"] that the Founders were hugely interested in shaping American moral character in salutatory directions. They could adopt this without much fear because they had an idea of the good to which 'salutatory' pointed that was rooted in natural law. The great hazard of a similar movement today -- that 'health' would become aligned with the interests of the state and its powerful corporate bedmates -- was not present because of a robust, rooted philosophical tradition. 

That should serve as an excellent opener in any useful debate.