Positive vs. Natural Law
Picture this scene, a few years hence:
The vote of the Review Committee was 3 to 0. The Doctor, who was secretary of the meeting, marked the patient’s card “MR” and added his initials and the date. This “Merciful Release” had been provided by the Congress almost two years ago in the Geriatric Welfare Act of 1996, which was part of an overall revision of the bankrupt Social Security system.
Under the law, Social Security retirement benefits were reduced by the full amount of any outside income received from whatever source. The only persons, therefore, who actually received Social Security benefits were those whose outside earnings, gifts from relatives, and other income totaled less than the ordinary Social Security benefits. As a result, only the poor received Social Security retirement checks. But still there were too many of them. The Geriatric Welfare Act of 1996 provided that each recipient of Social Security retirement benefits over the age of 65 who was “confined to any hospital or infirmary” for more than three consecutive days “shall be entitled to a Merciful Release on his or her own request or on a decision by the Review Committee that prolongation of life is a meaningless burden.”
The patient was a 71-year-old retired carpenter. His arthritis, thought the Doctor, was what did him in. He had been assigned to the infirmary in the Golden Age Center for “observation” when he became unable to work effectively at his trade. The Geriatric Welfare Act provided that recipients of retirement benefits “are encouraged to be usefully engaged at a task of social significance” for at least the equivalent of three full days a week.
The patient’s wife was in good health for her age. Her four-hour a day job in a public school cafeteria was socially significant. She was therefore not a total burden on society. The couple had two grown sons. Both were married with children of their own and had declined to contribute to their parents’ support. “We love them,” said the elder son, “but we have to look out for our own. Let nature take its course.”
The Doctor returned to the examining room, where the patient sat in his infirmary gown. He ushered the patient into an adjoining treatment room “for further tests.” There, another Doctor on duty would administer the Merciful Release by injection. Because the patient was not in severe pain and had expressed no wish to die, his widow would be informed that he had “passed away unexpectedly in his sleep.” In a few days, she would be asked to report to the Golden Age Center for “consultation.” They would explain to her that she had the option to choose a Merciful Release for herself. They would explain its advantages for a lonely widow. A surprising number of spouses chose that course.
The Doctor sometimes wondered whether all this was wrong. But it was, after all, the law. And its beneficiaries would be better off with a Merciful Release than they would be struggling on the borderline of poverty. There were too many old, poor people. Social Security could not support them because there were too few young wage earners.…In 1977, five states relaxed their euthanasia laws to provide for voluntary “death with dignity.” It was all in the name of individual rights and all for the benefit of the patient. Predictably, however, the shift came from voluntary withdrawal of life support from the terminally ill to the presumption that the senile would want such release were it available to them.
Then the involuntary killings began. The change was hardly noticed. In part this was because Americans had become…”a violent people.” They had “lost a sense of the sacredness of life. There is a love of death, injury and hurting.” A psychiatrist described the violence by fans at athletic contests as used “not as a means to an end, but for pleasure. It’s an end in itself.”
…A British physician, Dr. John Goundry, urged in 1977 that doctors be allowed to give a “demise pill” to elderly patients. The “demise pill,” he predicted, “will be obligatory within 50 years. People are horrified by my statements. Today’s emotions cannot be equated with how people will think in 2025.” The doctor was sharply criticized for his views, but he knew better than his critics. “The economics” of elderly care, he wrote, “are devastating and the standard of care is rapidly falling.”…There were too many old folks, too few young workers to support them, and the young were not willing to sacrifice their lifestyle for their elders.
Suppose you are a member of the House of Representatives in 1996. The Geriatric Welfare Act is on the floor for debate. It would subject to death all aged recipients of Social Security whose lives are officially found to be “meaningless.” How would you argue against it?
The first thing you might say is that it is unconstitutional, a violation of the Fifth Amendment’s guarantee that no person shall be deprived of life without “due process of law.” But the act provides that the subject who refuses to request his own Merciful Release shall be presumed incompetent. So if the Review Committee decides to grant him a “merciful” death, it is really carrying out what he would desire if he were competent to choose. A similar presumption of incompetency had been developed by the Supreme Court in a 1987 case upholding the Merciful Release of handicapped patients in public hospitals.
…Or you could argue that to kill the aged is unwise and inexpedient. But that argument, too, is a loser. The bottom line is a money line. In that light, most of them should be killed. They are useless eaters, and those who are not could be spared by the Review Committee for a time. And if you argue that we ought to beware that the same fate might befall us in our old age, you would be told that we are secure as long as we are useful. And who in his right mind would want to linger on into an old age of humiliating dependency?
Then, if finally you argue that it is simply wrong to kill the innocent, they would laugh at you. You have no right to impose your morality on others. Morality is personal and each individual must decide for himself. Who are you to say what is right or wrong for others?
If they are right, if morality is wholly personal, then the majority may do as they will with the aged and anyone else. If Congress will not admit that some things are always wrong, that there is a law higher than the state, you might as well save your breath.
An act of Congress, a court decision, and even the Constitution itself are forms of man-made law. Are they subject to a higher law, so that they are void if they violate it?
There are two basic approaches to this question. One is positivism, the theory which affirms the validity of human law provided only that it be duly enacted. The other is a natural-law approach that affirms “there is in fact an objective moral order within the range of human intelligence, to which human societies are bound in conscience to conform, and upon which the peace and happiness of personal, national and international life depend.”
The crucial question is one of epistemology–the theory of knowledge. If man cannot know the essences of things, then there is no objective rightness or wrongness which he can know. If man cannot really know what is just in a given situation, he cannot criticize any particular course of action as unjust. Questions of right and wrong will therefore have to be resolved by the political process. If that process produces a Buchenwald…it cannot be said to be unjust. Describing Nazi Germany, Gustav Radbruch said that positivism “disarmed the German jurists against law of an arbitrary and criminal content.” If one believes that he cannot know reality and that he therefore cannot know what is right or wrong in a given situation, he has to be a positivist.
This is seen in the writings of Hans Kelsen (1881-1973), who has been well described as “the jurist of our century.” The author of the Austrian Constitution of 1920, Kelsen was very influential in Germany between the two World Wars. Kelsen denied the possibility of natural law. He rejected what he called “philosophical absolutism,” the “metaphysical view that there is an absolute reality, i.e., a reality that exists independently of human knowledge.” He felt that the claim that one can actually know reality, and what is right and wrong, leads to tyranny through the efforts of the rulers to impose on the people what they, the rulers, “know” to be for the people’s good.
Instead, he adopted what he called “philosophical relativism,” the “empirical doctrine that reality exists only within human knowledge, and that, as the object of knowledge, reality is relative to the knowing subject. The absolute, the thing in itself, is beyond human experience; it is inaccessible to human knowledge and therefore unknowable.” This philosophical relativism, “in Kelsen’s view, leads to democracy and the tolerance of divergent views, because ‘what is right today may be wrong tomorrow,’ and the minority must have full opportunity of becoming the majority. Only if it is not possible to decide in an absolute way what is right and what is wrong is it advisable to discuss the issue and, after discussion, to submit to a compromise.”
The problem with this, of course, is that when the majority or those who are in control of the political process decide to oppress a minority, there is neither moral nor legal recourse. When the positivist is confronted by Auschwitz, his only objections are those of utility or esthetics. It is not useful to kill millions of Jews, and the tables might be turned on us some day. Or the slaughter is offensive to his sensibilities. He cannot say it is wrong because he does not believe he can know what is right or wrong.
Law, according to Kelsen, is a system of coercive rules called “legal norms.” These rules are prescribed by the legislator in accord with the “basic norm” or constitution of the community. That basic norm may or may not be a written constitution. Moreover, it is entirely up to the legislator to decide what the basic norm is and whether any particular enactment is in accord with it. Nor is there any restriction on the content of legal rules. “Any content whatsoever can be legal; there is no human behavior which could not function as the content of a legal norm.” The only requirement for a law to be valid and binding is that “it has been constituted in a particular fashion, born of a definite procedure and a definite rule.”
The legislator decides what law will be useful and in accord with the basic norm as determined by himself. Once a law is enacted, it is obligatory. There is no higher law of nature or of God, and the ultimate criterion is force. The positive law can do anything. It cannot be criticized as unjust. For justice, according to Kelsen, “is not ascertainable by rational knowledge at all. Rather, from the standpoint of rational knowledge there are only interests and conflicts of interests.…Justice is an irrational ideal.” It is worthwhile to examine Kelsen, because his “pure theory of law” is the most clear-cut form of positivism. All positivist systems, however, are characterized, in greater or lesser degree, by the denial of the capacity of human reason to know objective truth and to know what is right and wrong. They are concerned only with what the law is, not with what it ought to be.
The fruits of legal positivism can be seen in the experience of Nazi Germany. Even prior to World War I, positivism was dominant in Germany. “According to this new positivistic jurisprudence, the legislator, and he alone, creates the law. Everything prior to legislative enactment is at best ‘custom,’ but never true law. Thus, law and right became wholly identified, and bare ‘legality’ takes the place of substantive justice as an ideal.” The Weimar Constitution, under which Germany was governed from 1918 to 1933, did not recognize any law higher than itself. Certain principles of the natural law, it is true, were embodied in Weimar constitutional guarantees, but the constitution could be readily changed and it was often disregarded through the enactment of unconstitutional laws. Moreover, the constitution empowered the president to abrogate basic rights in some situations.
But the greatest obstacle to the recognition of natural law was the doctrine of positivism which equated right and might to begin with and, hence, assigned to the legislator full discretion as to the detailed content or provisions of the law, to the point of injustice, indeed to the point of complete, highhanded arbitrariness. A decision of the Supreme Court of the Reich of November 4, 1927, makes this fully clear: “The legislator is absolutely autocratic, and bound by no limits save those he has set for himself either in the constitution or in some other laws.”
Of course, positivism was totally dominant during the Hitler years, from 1933 to 1945. A 1936 decree of the Reich Commissar of Justice epitomized this condition: “A decision of the Fuhrer in the express form of a law or decree may not be scrutinized by a judge. In addition, the judge is bound by any other decisions of the Fuhrer, provided that they are clearly intended to declare law.”
The most striking example of Nazi positivism was the extermination program. At first directed against the nonrehabilitatable sick and then extended to Jews, Gypsies, and other political undesirables, it began with an order in a Hitler letter of September 1, 1939, to the doctor and administrator he placed in charge of the program. No law or formal order was issued to authorize it. Yet the German doctors, and especially the psychiatrists, complied with enthusiasm because they had long since accepted the notion that the only life worth living is one that is useful. Nor were they, at least overtly, conscious of doing wrong.
For example, Dr. August Hirt became alarmed at the thought that the Jewish race was about to become extinct and that very few authentic Jewish skeletons and skulls were available for study. He decided that science needed a collection of 150 body casts and skeletons of Jews; so the desired specimens were assembled from concentration’ camps, specially killed, and preserved for science. This collection and the correspondence pertaining to it were captured by the United States Army at the end of the war. Dr. Hirt, a professor of anatomy at the University of Strassburg, was surprised that his project was regarded as different from the collection of fossils for the Museum of Natural History in New York. Since the state had declared Jews to be non-persons, that apparently settled the matter for him.
Similarly, when Dr. Waldemar Hoven was on trial in a Nazi court on charges of having murdered some SS men by poison, the judge proved Dr. Hoven’s guilt by feeding the same poison to Russian prisoners of war. When they died with the same symptoms as the SS men, Dr. Hoven’s guilt was proved. It apparently never occurred to the judge that he, was committing murder to prove murder. The judge, acting for the Nazi state, was the law and murder was whatever the state said it was.
After the Second World War, Gustav Radbruch, who had been Minister of Justice in the Weimar Republic and who had advocated positivism, renounced his former view. “Law,” he said in 1945, “is the quest for justice.” If enactments or decrees deny people their rights, “they are null and void; the people are not to obey them, and jurists must find the courage to brand them unlawful.” The German courts, after World War II, freely applied natural law principles in holding the legislature subject to a higher law.
In the closing months of the war, for instance, a young German soldier was absent without leave. For this offense, an officer shot him without any form of trial and secretly buried the corpse. After the war, the victim’s mother sought to recover damages from the officer for the death of her son. The officer pleaded that he was justified by the so called Katastrophen order of Adolf Hitler, authorizing any member of the armed forces to kill instantly any coward, traitor, or deserter. As it turned out, the Katastrophen order had not been properly promulgated and therefore did not apply; but the court held that the order could not be a defense even if it had been validly promulgated. The “positive legislative act,” said the court, “loses all obligatory power if it violates the generally recognized principles of international law or the natural law.”
Any legal system that rests on a denial of the capacity of the mind to know objective truth must be described as positivistic. It will ultimately entrust the liberties of people to a political process that is unencumbered by higher moral restraints.
An example is the utilitarianism of Jeremy Bentham (1748-1832), who said the purpose of the law is to achieve the greatest good of the greatest number. The “good” is defined in terms of pleasure. Man’s “only object,” wrote Bentham, “is to seek pleasure and to shun pain.…Evil is pain, or the cause of pain. Good is pleasure, or the cause of pleasure.” Of course, the majority determines what ought to be done to achieve the greatest good for the greatest number. And there is no ground on which one can criticize a law as unjust, for Bentham did not believe that man could know objective right or wrong. “I employ the words just, unjust, moral, immoral, good, bad, simply as collective terms including the ideas of certain pains or pleasures.” In his view, “moral good is good only by its tendency to produce physical good. Moral evil is evil only by its tendency to produce physical evil; but when I say physical, I mean the pains and pleasures of the soul as well as the pains and pleasures of the senses.” For the positivist, the principle of utility is the sole rationale for legislation. Man has no intrinsic worth. His only end is the attainment of pleasure and the avoidance of pain. But if his existence inflicts pain on the community – that is, if he is a nuisance – there is no reason why he must be endured. Ultimately, his value is not in what he is but in what he does. “Producers” are tolerated; “useless eaters” are given a merciful release.
…A positivist will generally be one of two types. One type begins by denying his capacity to know anything beyond an empirical knowledge of individual things. This arid skepticism restricts the mind to the collection and empirical verification of data without coming to any knowledge of the nature of things. The skeptic says, “Nothing is certain.” But this is absurd, because he claims to know at least one thing for certain: that nothing is certain. “I tell you truly that we cannot know what is true.” Or the empiricist will say that, apart from mathematics and formal logic, a statement of fact is meaningful only if it can be empirically verified by observations. But this statement of “fact” is not empirically verifiable. The skeptic….will be a positivist because of his claimed inability to know objective truth.
The second type of positivist begins with materialism. Nothing exists but matter. There is no personal, spiritual Creator; no free will, no free spiritual intellect. “Soul” is a mere label we use for the material activities of the brain. History is the story of the development of matter, explained by one theory or another.
For the materialist, there are no absolute truths. There is no right or wrong, and the idea of justice has no meaning. The state is a wholly natural product of the evolution of social forces or other material elements. The positive law is fixed by the state without reference to any higher standard. Law is whatever the state decrees, and the essence of law is force. He is therefore a positivist.