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Natural Law v. Common Law

Dr. Conspiracy

Dr. Conspiracy

This isn’t about the definition of “natural born citizen” but it comes out of the principles behind that debate.

Natural law or the law of nature (Latin: lex naturalis) is a theory that posits the existence of a law whose content is set by nature and that therefore has validity everywhere. [Wikipedia]

Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals (called case law), rather than through legislative statutes or executive action. [Wikipedia]

Ignoring all that’s come before, I launch into my personal thoughts about these terms.

One intuitively feels that there are some universal truths, that we should care for our families, for example. But we also know that human nature has a negative side. While I might agree that there are some universally valid principles, I am skeptical in principle that we can tell the differences between them and simple prejudice. I certainly don’t trust in everybody left to their own devices doing the “right thing”.

Because people have difficulty separating their own prejudices from universal principles (thinking every view they hold should be universal) arguments based on natural law tend to be self serving arguments.

Common law, as I see it, is more pragmatic. It comes out of the forge of debate and is tested over time. Common law may be rooted in some understanding of natural law, but it is better “vetted”.

When I come across an argument about citizenship that is based on natural law, I expect to find an undercurrent of racism and prejudice. (When I say “racism” I don’t necessarily mean white racism against blacks, but rather any generalized distrust or stereotyping of any group that is racially, ethnically or nationally different.) Whether it was the Irish, the Chinese, the Puerto Ricans, the Mexicans, the Jews or the Africans, Americans have a sorry history when it comes to color-blindness in the community. The Chinese Exclusion Act and slavery are two examples from history, and it wasn’t so long ago that I saw a sign in a local restaurant: “we don’t serve Iranians”.

Because I don’t trust human nature, I don’t trust natural law. Perhaps the courts do a little better.

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3 Responses to Natural Law v. Common Law

  1. avatar
    Andrew A. Gill February 4, 2009 at 1:25 am #

    Just a note: in practice, I see people use Common Law to refer specifically to English Common Law as it existed when the United States was formed.

    As you say, the term should refer to all common law systems, but in practice, I see it referring to English Common Law more than others.

  2. avatar
    Ian Gould February 4, 2009 at 10:21 am #

    “it wasn’t so long ago that I saw a sign in a local restaurant: “we don’t serve Iranians”.”

    I’d be tempted to respond along the line of “Well maybe if you washed your hands more often they might not go elsewhere.’

  3. avatar
    Hitandrun February 5, 2009 at 3:54 pm #

    “When I come across an argument about citizenship that is based on natural law, I expect to find an undercurrent of racism and prejudice.”

    But Doc, aren’t arguments against racism and prejudiceoften based on natural law as well? Check out Corwin’s Higher Law from the late Twenties on the classical foundations of American Constitutional doctrine.

    Hitandrun