“Reluctantly, I have concluded that President Trump is a serious threat to U.S. national security.”
General (USA/ret.) Barry R. McCaffrey, March 18, 2018
“The safety of the People Shall be the highest law.”
Cicero, The Laws
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In plausible response to assorted violations of his oath of office – egregious wrongdoings that endanger even the core safety of the United States – President Donald Trump faces multiple authoritative calls for impeachment. Although most such calls center on appropriate and well-known expectations of the U.S. Constitution, and on certain overlapping provisions of U.S. domestic law, other still-binding obligations could also be invoked. These antecedent or “peremptory” principles of jurisprudence concern so-called Higher Law expectations of the United States.
While still in the distant background of U.S. public awareness, they nonetheless represent equally “sacred” security foundations for “The People.”
In essence, recalling celebrated jurist A.P. d’Entreves classic Natural Law (1951, Oxford University Press): “The Natural Law (Higher Law) is absolutely binding, and overrules all other laws.”
But how can this peremptory or “jus cogens”[1] declaration be usefully operationalized in the presidential impeachment matter presently at hand?
Here are some informed yet preliminary answers, pertinent to both already-committed presidential transgressions, and to those reasonably still-anticipated.
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History has it’s legitimate pride of place. For Americans, the principle of a Higher Law is not just “any principle.” It is, rather, one of the most enduring and utterly canonic principles in the country’s legal foundation.[2] Revealed in both the Declaration of Independence and in the Constitution,[3] it rests solidly and incontrovertibly upon the willing acceptance of right and justice for its own sake.
These always-vital principles, as Blackstone himself declared,[4] represent nothing less than “the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover so far as they are necessary for the conduct of human actions.”[5]
When Thomas Jefferson set to work on drafting the Declaration, he drew productively upon Aristotle, Cicero, Grotius, Vattel, Pufendorf, Burlamaqui, and – most conspicuously – John Locke (Second Treatise of Government).[6] Asserting the right of revolution whenever government becomes destructive of “certain unalienable rights,”[7] the Declaration of Independence posits a discernible natural order in the world, whose irreducible laws are external to all human will, and which are inevitably discoverable through human reason.[8] Although, by the eighteenth century, God had “withdrawn” from any immediate contact with humankind, and been transformed into the Final Cause or Prime Mover of the universe, “Nature” remained conveniently available to offer an apt substitute.[9]
Reflecting the uniquely decisive influence of Isaac Newton, whose Principia was first published in 1686, all of creation could now be taken as an obvious and recognizable expression of divine will.[10]
Reciprocally, however, the only true way to know this will was to first discover the eternal Law of Nature. In essence, Locke and Jefferson had deified nature, and simultaneously “denatured” God.[11]
But what, exactly, was this “Law of Nature”? Above all, as Jefferson learned from Locke, it was an indispensable source of Reason: More exactly, according to Locke’s Second Treatise:
The state of nature has a law to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions….
In transgressing the law of nature, the offender declares himself to live by another rule than that of reason and common equity, which is that measure God has set to the actions of men….
A criminal, who having renounced reason, the common rule and measure God hath given to mankind, hath, by the unjust violence and slaughter he hath committed on one, declared war against all mankind.[12]
As Reason is the only sure guide to what God has given to humankind, it must then become the only reliable foundation of true law. Significantly, this Lockean and Jeffersonian idea of a transcendent or Higher Law is manifest not only in the Declaration of Independence, but also in the Constitution.[13] The Ninth Amendment, in stipulating that “the enumeration of certain rights in this Constitution shall not prejudice other rights not so enumerated,”[14] reflects belief in a law absolutely superior to any will of human governance.
This vital conviction runs continuously from ancient times, especially traditional Jewish Law,[15] up to the present moment.
There is more. The Fragments of Heraclitus attest to the antiquity of a Higher Law: “For all human laws are nourished by one, which is divine. For it governs as far as it will, and is sufficient for all, and more than enough.”[16] Such Heraclitean dicta, offered somewhere around 500 B.C.E., entered into later Stoic philosophy, and described a genuinely universal and expectedly rational law.
In 442 B.C.E., Sophocles explained the idea of true law as an act of discovery, thus challenging the superiority of human rule-making in Antigone.[17] Exploring the essential conflict between claims of the state and those of the individual conscience, this drama has since been taken to represent the incontestable supremacy of a Higher Law over all man-made law. Later, in the nineteenth century, Henry David Thoreau, noting that men live with “too passive a regard for the moral laws,”[18] explicitly cited Antigone as a suitably stirring example of civil disobedience.
Building upon Plato’s theory of Ideas,[19] which sought to elevate “nature” from the transient sphere of contingent facts to the “higher” realm of immutable archetypes or Forms,[20] Aristotle advanced in his Ethics the concept of “natural justice.”[21] Quoting the Antigone, he argued importantly that “an unjust law is not a law.”[22] This idealistic position, of course, stands in stark contrast to the instrumental opinion of the Sophists that justice is never anything more than an expression of supremacy, that it is merely what Thrasymachus cynically calls, in Plato’s Republic, “the interest of the stronger.”[23]
Apropos of President Donald Trump’s current presidency, this crude brand of Realpolitik is now also the acknowledged philosophic underpinning of present-day U.S. foreign policy.
Much earlier, the Stoics, whose legal philosophies arose on the threshold of the Greek and Roman worlds, regarded nature itself as the supreme legislator.[24] Applying Platonic and Aristotelian thought to the hopefully emerging cosmopolis, they had defined this nascent order as one wherein humankind, by means of its established capacity to reason, can commune directly with the gods.[25] And since this definition required further expansion of Plato’s and Aristotle’s developing notions of universalism, the Stoics effectively articulated a further division between lex aeterna, ius natural and ius humanum.[26]
Lex aeterna is the law of reason of the cosmos, the logos which rules the universe. As an emanation of cosmic reason, human reason rules the lives of men. It follows that natural law partakes of eternal law, though it has a more limited range of application. Unlike the more elitist conception of Plato (and, to a certain extent, even Aristotle), the Stoic idea of an innate “right reason” presumed no divisions between peoples.[27]
Instead, in linking all persons with the cosmic order, it established the essential foundations of an authentic universality.
Cicero, in De Republica, defined the state as a “coming together of a considerable number of men who are united by a common agreement about law and rights and by the desire to participate in mutual advantages.”[28] This definition sheds light on the problems surrounding positivist jurisprudence, a legal philosophy that values a state’s edicts as intrinsically just and obligatory.[29] In a justly famous passage of De Republica, one well known to Jefferson and other Founders, Cicero set forth the still classic articulation of Natural Law:
True law is right reason, harmonious with nature, diffused among all, constant, eternal; a law which calls to duty by its commands and restrains from evil by its prohibitions….It is a sacred obligation not to attempt to legislate in contradiction to this law; nor may it be derogated from nor abrogated. Indeed, by neither the Senate nor the people can we be released from this law; nor does it require any but oneself to be its expositor or interpreter. Nor is it one law at Rome and another at Athens; one now and another at a late time; but one eternal and unchangeable law binding all nations through all time… [30]
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But what is to be done when positive law (which now includes U.S. Constitutional law) is at variance with true law? The Romans already had a remedy. They incorporated into their statutes a contingency clause that man-made law could never abrogate those obligations that are inherently right or even sacred.[31] On several occasions, Cicero and others invoked this clause, or jus, against one statute or another.[32]
In this way, the written law of the moment, never more than an artifact of the extant civic community, always remained correctly subject to “right reason.”
Later, St. Augustine reaffirmed that temporal law must conform to the unchangeable eternal law,[33] which he defined as “the reason or will of God (ratio divina vel voluntas Dei).”[34] Aquinas continued this tradition of denying the status of law to prescriptions that are inherently unjust (lex iniusta non est lex).[35] “Human law,” he wrote meaningfully in the Summae,[36] “has the quality of law only insofar as it proceeds according to right reason; and in this respect it is clear that it derives from the eternal law. Insofar as it deviates from reason it is called an unjust law, and has the quality not of law, but of violence.”[37]
The concept of a Higher Law, later to figure so importantly in the jurisprudential development of the United States of America, was widely integrated into medieval jurisprudential thought.[38] In John of Salisbury’s Policraticus, “There are certain precepts of the law which have perpetual necessity, having the force of law among all nations and which absolutely cannot be broken.”[39] Recognizing the idea that all political authority must be intrinsically limited, John noted that the prince “may not lawfully have any will of his own apart from that which the law or equity enjoins, or the calculation of the common interest requires.”[40]
“….or the calculation of the common interest requires.” Viewed against the pertinent backdrop of the current U.S. president – now, correctly analogous to the medieval “prince” discussed by John of Salisbury – such “perpetual law” must necessarily prohibit any presidential placement of personal interest over the discernibly “common interest” of the United States. Natural Law, inter alia, exists to frustrate political injustice, a vital function that could soon become material to any authoritative launch of impeachment proceedings against President Donald Trump.
In the seventeenth and eighteenth centuries, Natural Law doctrine was reaffirmed and secularized by Grotius.[41] Reviving the Ciceronian idea of Natural Law and its underlying optimism about human nature, Grotius is credited with liberating this idea from any remaining dependence on ecclesiastical or Papal interpretation.[42] Building upon the prior speculations of the Dominican Francisco de Vitoria, who had proclaimed a natural community of humankind and the universal validity of human rights,[43] Grotius fashioned a conceptual “bridge” from the Christian Commonwealth of the Middle Ages to a brand new interstate society.[44]
In this connection, he strengthened the idea of a universally valid Natural Law transcending in obligation all human law, including the cumulative law of any single sovereign state.[45]
Unlike Machiavelli and Hobbes,[46] Grotius consciously did not reduce law to any presumed will of a prince, or of a separate state.[47] Rather, while recognizing such will as a properly constitutive element within the wider international legal order, he also understood that the binding quality of human edicts must always be derived from an overriding totality of “natural” imperatives.[48] Hence, he proceeded to reject raison d’etat as a just cause for war,[49] a purposeful rejection that may no longer resonate helpfully in President Donald Trump’s United States.
This brings us directly to the conveyance of Natural Law ideas into American political theory, a transmittal that was preeminently the work of Locke’s Second Treatise on Civil Government (1690).[50] The specified American “duty” to revolt whenever governments commit “a long train of abuses and usurpations”[51] flows from Locke’s seminal notion that civil authority can never extend beyond the securing of humankind’s natural rights.[52] Regarding any prospective excursions into U.S. presidential impeachment, the particular motto that Jefferson chose for his seal was, “Rebellion to Tyrants Is Obedience to God.”[53] As for the right to pursue happiness, which Jefferson drew from Burlamaqui’s incorporation into natural law,[54] it had literally nothing whatever to do with today’s contemporary celebrations of materialism.
Nor could this right have any bearing on any contemplated U.S. presidential impeachment proceedings. Though happiness was viewed by Jefferson (in deference to Pufendorf and Locke) as a welcome condition to be achieved as a direct result of humankind’s overriding commitment to Reason,[55] never specified were any corresponding or expressly corollary presidential obligations.
Above all else, the Declaration of Independence implemented a social contract that sets limits on the power of any government.[56] Its central purpose, therefore, was to articulate a set of universally valid constraints upon all secular political authority. Moreover, as justice, which is based on natural law, binds all human society, the rights described by the Declaration of Independence could never be reserved only to Americans.
Instead, by ready deduction, they must always extend to all human societies, and can never be abrogated by any positive law.
This theory of a Higher Law, which could have its useful place in any forthcoming impeachment proceedings that would concern Trump Administration disregard for worldwide human rights, is based on clarity, self-evidence, and coherence. Its validity, therefore, can never be shaken by any presumed imperatives of geopolitics, or even by partisan domestic politics. As noted by the Swiss scholar Emmerich de Vattel in the 1758 edition of The Law of Nations (a work in which several American fathers of independence discovered important maxims of political liberty): “No agreement can bind, or even authorize, a man to violate the natural law.”[57]
Vattel had prudently cautioned that only a strict obedience to higher legal obligations can ever produce a virtuous and thereby safe and prosperous state: “One would have to be very ignorant of political affairs not to perceive how much more capable a virtuous Nation is of forming a happy, peaceful, flourishing and secure state, respected by its neighbors and formidable to its enemies.”[58] Going forward with any U.S. House of Representatives impeachment proceeding, even Vattel’s earlier wisdom could sometime have its proper philosophic place.
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In the end, Trump impeachment advocates will need to understand, Higher Law expectations of the American political tradition can never be self-enforcing. Defied again and again by transient political elites, they can only be sustained where individual citizens act (as does Antigone before Creon[59] ) according to conscience. “Why has every man a conscience,”[60] asks Thoreau in his foundational American essay on Civil Disobedience.
I think that we should be men first,
and subjects afterwards. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right. It is truly enough said that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience.[61]
Where are such “conscientious men” (and women) to be found? Certainly not, says Thoreau insightfully, among the “commonly esteemed good citizens.”[62] These mass men and women serve the state “not as men mainly, but as machines, with their bodies.”[63]
Placing themselves “on a level with wood and earth and stones,”[64] they are incapable of making any essential moral distinctions. This incapacity is easily enough recognized today, where so many of our citizens remain unable to recognize the brutally stark differences between evident U.S. presidential wrongdoing, and legally correct presidential behavior.
Could the United States still create the conditions for a conscientious “corporation” though the enhanced education of an informed citizenry? From Rousseau to the present, this has been the preferred path of virtually all democratic theory. Rousseau believed that law and liberty could best exist in a city-state of properly educated voters like Geneva:
As he stipulates in Book III of the Social Contract:
First, a very small state where the people can be readily got together and where each citizen can with ease know all the rest; secondly, great simplicity of manners, to prevent business from multiplying and raising thorny problems; next, a large measure of equality in rank and fortune, without which equality of rights and authority cannot long subsist; lastly, little or no luxury – for luxury either comes of riches or makes them necessary.
But the contemporary United States is not at all like Geneva, and Rousseau’s idea that (even under very specified conditions) a majority can be trusted with what is really best for “The People” is too-often mistaken. Now, the dangers of the “general will” have been made manifest not only in the exploits of Robespierre and Napoleon, but also in the stunningly inauspicious selection of U.S. President Donald Trump. Whether this selection shall soon led to proper efforts at removal is still unclear.
In any event, Rousseau’s deification of The People actually points toward the very opposite of our own Higher Law tradition. The Genevan made “The People” sovereign; for us, ultimately, sovereignty must come to reside in The Citizen. As Thoreau had understood, apathy, complacency passivity and moral cowardice are the inevitable qualities of the mass of men and women. Hope, therefore, lies only in those still-thoughtful individuals whose primary allegiance is directed toward properly overriding and universal laws; that is, not in the presumptive “good citizen,” but rather in the indispensable “wise minority.”
What is the real task of this body of enlightened persons, one which could in fact represent a true and distinct majority? Thoreau speaks truthfully of civil disobedience, one still possible act of “counter-friction.” Now confronted with an American president who might bring unparalleled harms to the United States – today, such harms could even include the onset of a catastrophic nuclear war[65] – he would urge, as he once did about other policy deformations (see Civil Disobedience),: “Let your life be a counter-friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn.”
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More particularly, we have been exploring various jurisprudential remedies to the unsuitable Trump Presidency, most obviously impeachment proceedings rooted in the U.S. Constitution. Should this remedy be selected (structurally, there could be no other proper legal remedies, as the Supreme Court has clarified that presidential impeachment is necessarily a non-justiciable matter[66]), those Members of Congress directly involved with drafting and refining the pertinent Articles of Impeachment should usefully avail themselves of related “Higher Law” arguments. This is suggested here because (1) the Constitution of the United States is indisputably constructed upon certain core principles of Natural Law; and (2) these antecedent legal principles are ultimately binding upon all citizens and government officials as recognizable expressions of a Higher Law.
There can be little doubt that U.S. President Donald Trump is indeed (per U.S. General (ret.) Barry R. McCaffrey’s very courageous public observation) a “serious threat to U.S. national security.”[67] Although, at first hearing, such an allegation might even seem logically or institutionally implausible – after all, a U.S, president should be defending our national security, almost by definition – the still-developing facts on relevant Trump transgressions are manifestly plain and persistently compelling. Moreover, as long as we can remember Cicero’s aptly reinforcing general principle that “The safety of the People Shall be the highest law,” there appears no acceptable or defensible reason to properly resist imposing Articles of Impeachment.
In proceeding to fashion such profoundly important Articles, careful attention ought to be paid not only to all applicable statutory and Constitutional expectations, but also to the everlasting Higher Law traditions of the United States. While clearly less explicit and thus somewhat harder to identify, these utterly core traditions and corollary legal norms are in no way inferior to what has previously been codified.
NOTES
[1] See Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, 1155 UNTS 344; reprinted in 8 ILM 679 (1969)
[2] See Edward S. Corwin, THE “HIGHER LAW” BACKGROUND OF AMERICAN CONSTITUTIONAL LAW (1955); Alexander P. D’Entreves, NATURAL LAW: AN INTRODUCTION TO LEGAL PHILOSOPHY (1951).
[3] See: U.S. Constitution, Art. IX. According to Clinton Rossiter, there exists a “deep-seated conviction” among Americans “that the Constitution is an expression of the Higher Law, that it is, in fact, imperfect man’s most perfect rendering” of eternal law. See Rossiter, preface to Corwin, supra, at vi.
[4] Blackstone’s Commentaries, of course, provided the core foundations for America’s current legal system.
[5] The Higher Law origins of United States municipal law are embedded, inter alia, in Blackstone’s COMMENTARIES, which recognize that all law “results from those principles of natural justice, in which all the learned of every nation agree….” See William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, adapted by Robert Malcolm Kerr (Boston; Beacon Press, 1962), Book IV, “Of Public Wrongs,” p. 62 (Chapter V., “Of Offenses Against the Law of Nations.”)
[6] See John Locke, TWO TREATISES OF GOVERNMENT 123 (T.I. Cook, ed., 1947).
[7] See THE DECLARATION OF INDEPENDENCE
[8] See Julius Stone, THE PROVINCE AND FUNCTION OF LAW (Cambridge MA: Harvard University Press, 1950), Chapter VIII, “Natural Law.”
[9] Here, in the Deist view, Nature had “replaced” God as the source for lawful behavior.
[10] Newton says in his Principia: “This most beautiful system of the sun, planets, and comets could only proceed from the counsel and dominion of an intelligent and powerful Being.” Cited by Abraham Kaplan, IN PURSUIT OF WISDOM: THE SCOPE OF PHILOSOPHY (Beverly Hills CA: Glencoe Press, 1977), p. 550.
[11] See Stone, supra, Ch. VIII.
[12] See Locke, supra, 123.
[13] See The Bill of Rights, as detailed in the following discussion.
[14] See U.S. Constitution, Ninth Amendment.
[15] The fundamental principle of ancient Hebrew law, of course, is that the revealed will of God is the only source of all Jewish law. In the Talmudic position, “Whatever a competent scholar will yet derive from the Law, that was already given to Moses on Mount Sinai.” (See Jerusalem Megillah IV, 74d.)
[16] See Sec. 81, Fragment No. DK 22B114 of THE PRESOCRATICS 75 (Philip Wheelwright ed., Bobbs-Merrill 1960). The authoritative text for the fragments of Heraclitus is Hermann Diels & Walther Kranz, DIE FRAGMENTE DER VORSOKRATIKER (6th ed., Weidmann 1966).
[17] A century before Demosthenes, Antigone’s appeal against Creon’s order to the “unwritten and steadfast customs of the Gods” had evidenced the inferiority of human rule-making to a Higher Law. Here, in the drama by Sophocles, Creon represents the Greek tyrant who disturbs the ancient harmony of the city state. Aristotle, in his RHETORIC, quotes from Sophocles’ ANTIGONE when he argues that “an unjust law is not a law.” See RHETORIC 1, 15, 1375, a 27 et seq.
[18] See Henry David Thoreau, ON THE DUTY OF CIVIL DISOBEDIENCE, in WALDEN, OR LIFE IN THE WOODS AND ON THE DUTY OF CIVIL DISOBEDIENCE (Signet 1960).
[19] Plato’s theory, offered in the fourth century B.C.E, seeks to explain politics as an unstable realm of sense and matter, an arena formed and sustained by half-truths and distorted perceptions. In contrast to the stable realm of immaterial Forms, from which all genuine knowledge must be derived, the political realm is dominated by the uncertainties of the sensible world. At the basis of this political theory is a physical-mental analogy that establishes a correlation between the head, the heart and the abdomen, and the virtues of intelligence, courage and moderation.
[20] Supra.
[21] See Corwin, supra, at 7.
[22] Id.
[23] “Right is the interest of the stronger,” says Thrasymachus in Bk. I, Sec. 338 of Plato, THE REPUBLIC (B. Jowett tr., 1875). “Justice is a contract neither to do nor to suffer wrong,” says Glaucon, id., Bk. II, Sec. 359. See also, Philus in Bk III, Sec. 5 of Cicero, DE REPUBLICA.
[24] See Corwin, supra, at 9: “The Stoics…thought of Nature or the Universe as a living organism, of which the material world was the body, and of which the Deity or the Universal Reason was the pervading, animating and governing soul; and natural law was the rule of conduct laid down by this Universal Reason for the direction of mankind.” Salmond, JURISPRUDENCE 27 (7th ed., 1924), cited in Corwin, supra, at 9.
[25] Id.
[26] These terms are defined and discussed below.
[27] See Corwin, supra, at 9.
[28] Spoken by Scipio in Bk. I of DE REPUBLICA; cited in Alexander P. D’Entreves, THE NOTION OF THE STATE 24 (1967).
[29] See Stone, THE PROVINCE AND FUNCTION OF LAW, supra, 224-230. Stone calls positive law “…the law actually enforced by organized society in a particular place at a particular time.” (p. 225) Understood in terms of natural law, positive law is merely a necessary evil, tolerable and valid only to the extent that it coincides with natural law. In this theory, says Julius Stone, “Not only does natural law provide the criterion for judgment whether positive law is just. It goes further and provides the criterion for deciding whether positive law is valid law at all.” (Id., at 226)
[30] See Cicero, I DE LEGIBUS, cited in Corwin, supra, at 10; D’Entreves, supra., at 20 – 21. Similarly, in his DE OFFICIIS, Cicero wrote: “There is in fact a true law namely right reason, which is in accordance with nature, applies to all men and is unchangeable and eternal….It will not lay down one rule at Rome and another at Athens, nor will it be one rule today and another tomorrow. But there will be one law eternal and unchangeable binding at all times and upon all peoples.” (cited by Stone, supra, at 216.) See also DE LEGIBUS, Bk. i, c, vii; cited by Stone, supra, at 216.
[31] See Corwin, supra, at 12.
[32] Id, at 13.
[33] See D’Entreves, supra, 36 – 37. In early Christendom, Augustine offered a system of thought that identified the locus of all global problems in the human potentiality for evil. Combining a philosophy of Neo-Platonism with a view of the universe as a struggle between good and evil, he attributed the trials of humankind to the taint of original sin. This view, transformed into a secular political philosophy, is now reflected by exponents of the school of realism or realpolitik. Augustine, writing at the beginning of the fifth century C.E., sets out, in the CITY OF GOD, to describe human history as a contest of two societies, the intrinsically debased City of Man and the eternally peaceful City of God. In this contest, the state, the product of humankind’s most base tendencies, is devoid of justice and destructive of salvation. A mirror image of human wickedness, the state is little more than a “large gang of robbers.” In an oft-quoted passage, Augustine recalls the answer offered by a pirate who had been captured by Alexander the Great. When asked by Alexander what right he had to infest the seas, the pirate replied: “The same right that you have to infest the world. But because I do it in a small boat I am called a robber, while because you do it with a large fleet you are called an emperor.”
[34] See Julius Stone, HUMAN LAW AND HUMAN JUSTICE (Stanford CA: Stanford University Press, 1965), p. 44. For Augustine, this reason or will of God “commands us to preserve the natural order and prohibits us to disturb it.” (See Contra Faustum, XXII, 27; cited by Stone, HUMAN LAW AND HUMAN JUSTICE, supra, p. 44.
[35] Thomas Aquinas recalls Augustine as follows: “St. Augustine says: `There is no law unless it be just.’ So the validity of law depends upon its justice. But in human affairs a thing is said to be just when it accords aright with the rule of reason: and as we have already seen, the first rule of reason is the Natural Law. Thus all humanly enacted laws are in accord with reason to the extent that they derive from the Natural law. And if a human law is at variance in any particular with the Natural law, it is no longer legal, but rather a corruption of law.” See SUMMA THEOLOGICA, 1a 2ae, 95, 2; cited by D’Entreves, supra, pp. 42 – 43.
[36] See D’Entreves, supra, at 42 – 43.
[37] The importance of reason to legal judgment was prefigured in ancient Israel, which accommodated reason within its system of revealed law. Jewish theory of law, insofar as it displays the marks of natural law, offers a transcending order revealed by the divine word as interpreted by human reason. In the striking words of Ecclesiasticus 32.23, 37.16, 13-14: “Let reason go before every enterprise and counsel before any action…And let the counsel of thine own heart stand…For a man’s mind is sometimes wont to tell him more than seven watchmen that sit above in an high tower….”
[38] See Stone, THE PROVINCE AND FUNCTION OF LAW, supra, Chapter VIII.
[39] See Corwin, supra, at 17 – 18.
[40] Id., at 19.
[41] See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, pp. 64 – 68.
[42] Id.
[43] See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, pp. 61 – 63.
[44] Id, pp. 65 – 68.
[45] Id.
[46] The sixteenth-century Florentine philosopher, Niccolo Machiavelli, joined Aristotle’s foundations for a scientific study of politics with assumptions of realpolitik to reach certain conclusions about politics. His most important conclusion underscores the dilemma of practicing goodness in an essentially evil world: “A man who wishes to make a profession of goodness in everything must necessarily come to grief among so many who are not good.” (See THE PRINCE, Chapter XV). Recognizing this tragic state of affairs, Machiavelli proceeds to advance the arguments for expediency that have become synonymous with his name. With the placing of the idea of force at the center of his political theory, the author of THE PRINCE stands in sharp contrast to the Platonic and early Christian concepts of the “good.” Rejecting both Plato’s argument that there is a knowable objective “good” that leads to virtue, and Augustine’s otherworldly idea of absolute goodness, Machiavelli constructs his political theory on the assumption that “all men are potential criminals, and always ready to realize their evil intentions whenever they are free to do so.” In his instructions to the statesman on how to rule in a world dominated by force, he advises “to learn how not to be good.” The seventeenth-century materialist and social philosopher, Thomas Hobbes, elaborated a complex system of thought in which man was reduced to a state of nature and then reconstructed. Seeking a science of human nature that would have the rigor of physics, Hobbes looked to introspection as the source of genuine understanding: “Whosoever looketh into himself and considereth what he doth when he does think, opine, reason, hope, fear, etc., and upon what grounds, he shall thereby read and know, what are the thoughts and passions of all other men, upon the like occasions.” (See Introduction to LEVIATHAN). The results of such an analysis of one’s own thought processes led Hobbes to his celebrated theory of the social contract: the natural egoism of man produces a “war of all against all” in the absence of civil government and must be tempered by absolute monarchy. Moreover, the condition of nature, which is also called a condition of war marked by “continual fear, and danger of violent death,” has always been the characteristic condition of international relations and international law: “But though there had never been any time, wherein particular men were in a condition of war one against another; yet, in all times, kings, and persons of sovereign-authority, because of their independency, are in continual jealousies, and in the state and posture of gladiators; having their weapons pointing, and their eyes fixed on one another; that is, their forts, garrisons, and guns upon the frontiers of their kingdoms, and continual spies upon their neighbors, which is a posture of war.” (See LEVIATHAN, Chapter XIII).
[47] This is because the principal Grotian effort was to “translate” natural law from pure philosophical speculation into a pragmatic legal ordering. See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, p. 65.
[48] Id.
[49] The Swiss scholar, Emmerich de Vattel, notes – in his 1758 classic THE LAW OF NATIONS: “No agreement can bind, or even authorize a man to violate the natural law.” See Albert de LaPradelle, Introduction to Emmerich de Vattel, LE DROIT DES GENS (THE LAW OF NATIONS)(Charles G. Fenwick, tr., 1916).
[50] See Corwin, supra, at 61.
[51] Id.
[52] Id.
[53] See Thomas Jefferson, IV WORKS 362 (New York, P.L. Ford, ed., 1892-99).
[54] J.J. Burlamaqui, author of PRINCIPES DU DROIT DE LA NATURE ET DES GENS (1774) was a Swiss scholar who held a Chair at the University of Geneva. His work has been described by J. Stone and others as “rational utilitarianism.” See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, p. 71.
[55] See Corwin, supra, p. 81.
[56] Id.
[57] See Vattel, THE LAW OF NATIONS (Washington D.C.: Carnegie Institution, 1916), C.G. Fenwick tr., p. 4.
[58] Id.
[59] See Sophocles, ANTIGONE, supra.
[60] See H D Thoreau, ON THE DUTY OF CIVIL DISOBEDIENCE (New York: New American Library, 1959).
[61] Id.
[62] Id.
[63] Id.
[64] Id.
[65] “The obligation of subjects to the sovereign,” says Thomas Hobbes in Chapter XXI of LEVIATHAN, “is understood to last as long, and no longer, than the power lasteth by which he is able to protect them.”
[66] See Nixon v. United States, 506 U.S. 224 (1993).
[67] Reference also, in this regard: John Brennan, former Director of Central Intelligence: “When the full extent of your venality, moral turpitude, and political corruption becomes known, you will take your rightful place as a disgraced demagogue in the dustbin of history. You may scapegoat Andy McCabe, but you will not destroy America… America will triumph over you.” (Tweet, March 17, 2018). Somewhat less precisely, but to the same conclusion, John Dean of Watergate era notoriety said on CNN (19 March 2018): “Trump is Nixon on steroids and stilts.”