Category: Natural Law

On May 25, 2022, the United States Navy-Marine Corps Court of Criminal Appeals (“NMCCA”) handed down an opinion in United States v. Dereck Tabor, No. 202100046. The case involves the unpleasant question of whether encouraging someone via text message to commit self-abuse while lying in bed next to a sleeping child constituted a lewd act upon the child for the purposes of Article 120b of the Uniform Code of Military Justice. See United States v. Tabor, No. 202100046, slip op. at 2–3 (N-M. Ct. Crim. App. May 25, 2022). Ultimately, under military precedent, this becomes a question of whether the acts were committed in the presence of the child, which, in Tabor, turns on whether the child was aware of the lewd acts. Id. at 5. The provisions at issue, which have been amended and restated several times since the promulgation of the UCMJ, have vexed the military courts since they were introduced in 1951. Judge Christopher Deerwester’s opinion for the Court admirably traces the statutory developments and the responses of the military courts over the last sixty years and comes to the conclusion that it is sexual abuse of a child to encourage someone to abuse herself while the child sleeps next to her. 

In and of itself, United States v. Tabor deals with lamentable criminal conduct by a member of the armed forces and a statute that has given the military courts no end of trouble. However, Senior Judge John Stephens’s separate concurrence is worthy of special attention. He begins by acknowledging that “we are supposed to use a textualist approach to statutory interpretation.” Id. at 42. But, in his view, textualism “has contributed to the confusion over the meaning and effect of Article 120b(c) . . . and whether it possesses some penumbric ‘awareness’ element.” Id. To “cut the modernist Gordian knot,” id., Senior Judge Stephens proposes returning to the classical legal tradition. Id. Looking to Adrian Vermeule’s Common Good Constitutionalism, Thomas Aquinas, and Blackstone’s Commentaries, Senior Judge Stephens proposes interpreting Article 120b from the perspective of the common good. See id. at 44–46.

Anna Lukina proposes an interesting thought experiment for considering the law that exists in wicked states, like Nazi Germany, the Soviet Union, or the so-called Islamic State. She proposes looking at the fallen angels, at demons. She argues that demons have a need among themselves for hierarchy and indeed for rules. The world of demons, she notes, is not a world of chaos; there is still order among the demons. By analogy, a human community ordered toward evil ends has the same need. While she acknowledges that, by Aquinas’s definition of law, the law of an evil regime will be defective, she suggests that its law may well be effective as a coordination mechanism. 

However, Lukina’s angelology has some problems. These problems, I think, lead ultimately to problems for Lukina’s argument. The crux of the matter is this: Lukina assumes—or seems to assume—that the bad angels establish some order among themselves in response to a need for order. She suggests that they band together and coordinate through rules, even if the ends they pursue are vicious. (An understatement.) However, Lukina does not account sufficiently for the created nature of angels versus men. “Quia parvus error in principio magnus est in fine”—“A small mistake in the beginning is a big one in the end” (QD de Ente et Essentia, Prooemium).

In his remarkable and underappreciated book on Natural Law in Court, Dick Helmholz observes that when moderns turn to the subject of the relationship between natural law and positive law, they immediately focus on the question whether the former in some sense “trumps” the latter in cases of irreconcilable conflict. To the classical lawyer, however, that question was not central. To be sure, as early as the Institutes of Gaius it was said that “changes to civil law can take away rights belonging to civil law (jus civile), but not rights belonging to natural law (jus naturale)” (I.158). But natural law had many other roles detailed by Helmholz, roles much more central in actual practice, such as supplying interpretive principles and default rules for construing statutes, supplying principles of just procedure, and suggesting remedies.

More broadly, for the classical lawyer, the whole framework within which to discuss the relationship between natural and positive law was different, centering on their complementary roles rather than on potential conflict. The positive law, the ius civile, was understood as a set of rational ordinances promulgated by the public authority for the common good —that is, in order to give more specific content to the general principles of the natural law. In a famous passage, Aquinas distinguished two ways in which positive law might be derived from the natural law:

Part of revitalizing the classical legal tradition, as Ius & Iustitium proposes to do, is recovering the classical conception of the science of law, traditionally named Jurisprudence, which was defined by the Roman jurist Ulpian as “divinarum atque humanarum rerum notitia, iusti atque iniusti scientia” (“the awareness of divine and human affairs, the science of what is just and what is unjust”) (Digest I, I, 10, § 2). The part of the classical view that we want to focus on here is the idea that Jurisprudence is a subaltern science, that is, a science epistemologically ordered to other, higher sciences.

This subalternation explains how, on the classical conception, the law is structurally arrayed at the service of metaphysically and theologically rich conceptions of the common good. We may dispense with the vulgar notion that political or judicial mandarins must “put” an otherwise neutral tool called “law” at the service of some external end of their choosing, which may or may not happen to coincide with our own preferences. The truth is that the law, properly understood, is formally ordered to an objective end, the common good, by virtue of its own rational nature. Thus, in order to be epistemologically consistent, classical Jurisprudence understands itself to be intrinsically ordered to the higher sciences that study that objective end.