Nature, the art whereby God hath made and governs the world, is by the art of man, as in many other things, so in this also imitated, that it can make an artificial animal [i.e. the state is a human imitation of divine designs]. –Hobbes, Leviathan
I hope in this post to illustrate the protestant Christian theory of natural law, distinguishing it among theories of natural law (the term is not used consistently in the history of thought), and indicating that the American founders had in mind specifically the protestant version of natural law theory in founding the federal United States.
In a nutshell, I will argue that the idea that natural law evident to reason provides a standard for justification of rebellion against apparently legitimate authority is a protestant Christian principle, and that it was a central idea to the founders – the idea that distinguishes among natural law theories the one that suited the founders’ purpose.
But first, a quick introduction to the concept of a state and a sovereign: many thinkers, Christian and non-Christian alike, have understood throughout history that there are laws that man ought to obey in his social interactions (e.g. honor your contracts), which man nonetheless due to his sinful nature (or lack of enlightenment, or innate selfishness, or whatever) does not willingly obey. These laws are understood to be for the benefit of society collectively, and therefore also for the benefit of the individual indirectly, insofar as what is good for the body (the state, Hobbes’ “artificial animal”) is also good for an individual organ of that body (the citizen). The state is not the government; the government is merely an organ that looks after the interests and prerogatives of the state.
Whereas men do not voluntarily do what is good for the state, (and thereby indirectly good for themselves or their posterity), the state needs a leader and arbiter, a sovereign (either an individual or a group, but something compact enough to make decisions on behalf of the state and act upon them). All of this is relatively uncontroversial, and as yet not specifically Christian, let alone protestant.
But here we arrive at the point of departure: if the sovereign makes and enforces laws for the state, binding upon the citizens, in order to curb their human tendency to do wrong, and if the sovereign is himself human, with those same tendencies to do wrong, then isn’t the establishment of a state (with its associated government) a bad idea, the replacement of many small uncoordinated evils with one big coordinated evil?
The classical pre-Reformation Christian answer to this is that the sovereign must be self-regulating, in the manner in which a pious Christian is self-regulating. As long as kings were ordained by popes, and subject to being deposed by popes, this tied off all loose ends for those who submitted to papal authority. The king was sovereign by divine commission (ordination), and citizens were subject to the authority of the sovereign, but the sovereign held his authority on behalf of God, was chosen for his godly qualities, and was subject to the oversight of the Vicar of Christ, like all other ordained persons. Aquinas spelled out the classical position in requiring submission of all citizens to the authority of a legitimate sovereign, while recognizing not only a right but an obligation to rebel against an illegitimate sovereign. The judgment of the legitimacy of a sovereign was not the prerogative of the people, but action against an illegitimate sovereign was.
The Reformation, with its rejection of papal authority, reinvigorated the question of the divine right of kings. Granted that the king must be self-regulating, and that God intends order among men, which in practice requires a sovereign of some sort, how are the people to judge when a sovereign is acting consistently with his (or their) divine mandate, and how are the people to judge when a sovereign has breached the divine trust placed in him? When may the people justifiably rebel against their sovereign, if as protestants they have no pope to sanction the rebellion?
The Reformation answer, consistent with protestant theories in rebelling against the papacy itself, is to hold that only such positive laws are truly laws as are consistent with the “natural law”, the latter being an analogue of the moral law that is held to be within the power of reason to grasp, just as the moral law and Word of God are within the power of conscience to grasp. This idea is present already in Aquinas (“every human law has just so much of the nature of a law as is derived from the law of nature”) and Augustine, just as the Reformation ideas of conscience are also based on Thomistic (and Augustinian) doctrine. As with conscience and the Word, so also with reason and the law, the reformers argued that the ability of every Christian to judge certain matters for themselves gives them the sanction to resist any putatively divine authority that contradicts what is made plain by God to conscience or reason. Aquinas (and Augustine) is the source of much Reformation doctrine, but Aquinas consistently denies individual judgment in these matters: the Reformation is, in many ways, nothing more than the innovative assertion of the rights of individual reason and conscience to apply Thomistic doctrine against authoritative institutions, whether the church or the state.
OK, so far so good. But didn’t the Enlightenment establish these same principles (e.g. right of just rebellion) on a secular basis? Of course not, nor could it. The problem at hand is one of establishing authority (of the people over their sovereign), but secularism can at best tear down authority (e.g. tear down the authority of the church or of the sovereign). Reason alone, as a secular “fact of life” (rather than a God-given faculty), cannot be authoritative, it cannot give prescriptive meaning to “ought”, it can only be anarchic (as in “you can do that if you want, just be aware that the likely consequences are… [whatever]”). In Kantian terms, reason as a brute fact can only authoritatively establish hypothetical imperatives, but not categorical imperatives. Reason can tell you how to get what you want, but not what you ought to want, or even that there is any meaningful sense of “ought” at all. Kant, of course, famously solved this problem, and Kant was an Enlightenment figure himself, but though I, as a Lutheran and Kantian, would be overjoyed to tell you that the American Revolution was based on Kantian principles, that just isn’t so.
So what, I hear you say; regardless of any deficiency in the moral sense of “ought”, didn’t Hobbes establish the theory of the democratic state on the basis of natural law and a social contract? Why yes, sort of, he did, if fascism by mutual consent is considered a form of democracy, but relations between the people and the sovereign aren’t covered by a Hobbesian social contract, and so the sovereign cannot be held to be in violation of it based on how he rules (the sovereign is capable of ordinary violations, e.g. theft or rape or adultery or murder, but his laws and edicts are not subject to review under natural law or the social contract). This is an important point to understand about non-theist social contract theory: as Hobbes himself says, “covenants, without the sword, are but words”. The contracts that men make with one another are meaningless unless they occur under the umbrella of a sovereign authority; therefore there can be no contract between the people and the sovereign without a higher authority holding the sword over the parties (the people and the sovereign). Hobbes’ version of natural law doesn’t produce a contract between people and sovereign that the sovereign can be held to bind the sovereign, unless God is considered the guarantor of the contract, and so doesn’t produce a right of just rebellion such as was needed (and claimed) by the founders, except on a non-Hobbesian interpretation of God (or a pope) overseeing the contract.
Here is Hobbes’ “without the sword” passage, in full:
For the Lawes of Nature (as Justice, Equity, Modesty, Mercy, and (in summe) Doing To Others, As Wee Would Be Done To,) if themselves, without the terrour of some Power, to cause them to be observed, are contrary to our naturall Passions, that carry us to Partiality, Pride, Revenge, and the like. And Covenants, without the Sword, are but Words, and of no strength to secure a man at all. Therefore notwithstanding the Lawes of Nature, (which every one hath then kept, when he has the will to keep them, when he can do it safely,) if there be no Power erected, or not great enough for our security; every man will and may lawfully rely on his own strength and art, for caution against all other men. And in all places, where men have lived by small Families, to robbe and spoyle one another, has been a Trade, and so farre from being reputed against the Law of Nature, that the greater spoyles they gained, the greater was their honour; and men observed no other Lawes therein, but the Lawes of Honour; that is, to abstain from cruelty, leaving to men their lives, and instruments of husbandry. And as small Familyes did then; so now do Cities and Kingdomes which are but greater Families (for their own security) enlarge their Dominions, upon all pretences of danger, and fear of Invasion, or assistance that may be given to Invaders, endeavour as much as they can, to subdue, or weaken their neighbours, by open force, and secret arts, for want of other Caution, justly; and are rememdbred for it in after ages with honour.
Note the critical point, made thrice, first for individuals, then for families, then for nations: in the absence of an enforcer, it is not merely a pragmatic fact that nobody obeys natural law, it is a matter of justice that natural law can be disobeyed. In the absence of a sovereign, every man may lawfully rely on his own strength, families may rob one another (subject only to rules of honor), and kingdoms may enlarge their dominions on mere pretence, yet despite violating natural law, they all do so justly. Absent an enforcer there is not only no enforcement of natural law, there is also no obligation to follow natural law, no moral dimension to natural law, no sense of “ought”. Thus, Hobbes’ social contract as a source of right and just can exist only among the subjects of a sovereign; the sovereign and people cannot contract with one another for lack of an enforcer, and so the sovereign cannot violate any such contract, and therefore the people have no basis for just rebellion.
Wait a minute, Kristo, that can’t be: isn’t the whole Enlightenment point behind natural law that such law has objective validity? Hugo Grotius famously argued that even God could not change natural law. Natural law is as it is, fully independent of the will of any sovereign; e.g. Hobbes himself was able to enumerate 16 points of natural law without consulting any sovereign. So the sovereign as enforcer is not needed to determine the natural law.
Why yes, this is so, but this gets only at the content of natural law, not at its moral gravitas, the sense of “ought”. This important distinction is scholastic; it is a consequence of accepting the role of reason in determining logical modalities, the definitions of “possible” and “necessary”. Whatever can be fully conceived of without contradiction is possible, whatever cannot be so conceived is impossible, whatever cannot be denied without contradiction is necessary, and so on. An immediate consequence of this system of modal reasoning is that reason as we know it is necessary; for we cannot conceive of conceiving things differently than we currently can conceive them. A reason different from reason as we know it is, by our reason-based definition of “possible”, impossible. Thus, e.g., Kant would famously declare that even God cannot change the fact that triangles have three sides, and God cannot change the content of the moral law. However, moral law cannot get its authority from reason; in Kant’s terms, reason is the author of moral law, but God is the lawgiver. This distinction does not begin with Kant; Hobbes himself observed it when he argued, as pointed out above, on the one hand that reason can discover 16 points of natural law independent of any sovereign, yet on the other hand that justice does not require adhering to natural law in the absence of a sovereign. The roles of author and lawgiver are distinct, and both are needed before a law morally binds, before there is any sense of “ought”. Locke also recognizes the same distinction, as he argues on the one hand that natural law is rational in its content, and on the other hand that God is the source of moral prescriptive power.
As a matter of historical accident, the issue of justifiable rebellion in the years leading up to the American Revolution is primarily a British concern, as other protestant domains had either weak monarchs, or little rebellious tendency. Only (or mostly) in Britain was there a critical combination of protestant doctrine, strong monarchy, and vigorous opposition. The seminal work on the topic is John Ponet’s Short Treatise of Political Power, a work known at least to John Adams, who credits Ponet with inspiring Locke. To read Ponet:
For the opposing point of view, updated to post-reformation standards, one can read King James’ (yes, that King James) True Law of Free Monarchies:
William Blackstone summarized the impact of Christian natural law on English common law thus: “This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.” Natural law is the source of the moral force of positive law, as well as the measure of legitimacy of positive law, and the source of natural law (and its moral import) is God. Note also that Blackstone distinguishes validity from authority (the roles of author from lawgiver): laws are valid insofar as they conform to natural law, and such laws as are valid derive authority from natural law.
The Reformation brought many other political innovations, besides the natural law evident to reason as a measure of the validity of positive law (and a measure of the legitimacy of sovereigns). It also, in weakening the position of the sovereign, devolved much of the expectation of pious Christian self-regulation from the sovereign to his many servants, the magistrates and other officials who performed official duties on behalf of the state. Whereas in previous times such officials were subject to the absolute authority of the monarch, in protestant Christian polities, and especially in early America, magistrates and officials had to provide to the public the same sort of evidence of Christian self-regulation as the king was expected to provide, including swearing oaths of office that amounted to Christian creeds of a specifically minimalist nature, stripped of all elements that had no bearing on fidelity to the public trust. In modern terms, some states’ oaths were Christo-Islamic creeds, in that they only emphasized belief in a coming divine judgment, though the founders show little evidence of having Islam on their minds; other states’ creeds were explicitly Christian. The battle lines at the time of the founding were drawn somewhere around Universalism, the belief that everyone goes to heaven. At the time of the revolution and for some time afterward, some states allowed Universalists to hold office, testify in court, etc., but others did not. The Judiciary Act of 1789 set as the federal standard that a witness was not competent to testify who did "not believe that there is a God who rewards truth and avenges falsehood." The transition from Coke’s criteria to the Omychund standard was still being worked out in the colonies at the time of the revolution (and legally binding though no longer enforced remnants of colonial standards denying testimony of nonbelievers persisted well into the 20th century). But I digress.
In summary: the founders, when they spoke or wrote of natural law, had, of necessity, in mind that sort of natural law such as empowers a subject people to justly rise up in rebellion against an established and to all appearances legitimate authority. This is not classic Greek natural law, for neither Aristotle nor the Stoics constructed a moral case for rebellion from natural law; nor is it Renaissance or Enlightenment natural law, for similarly neither Machiavelli nor Hobbes would argue that a sovereign could be judged by his subjects in matters of governance (as opposed to personal conduct) on the basis of any prior natural law. It is reliant upon classical western Christian natural law (e.g. that of Aquinas), which recognized the right (and duty) of peoples to overthrow illegitimate sovereigns (those who govern contrary to natural law), but requires in addition the specifically Reformation principle that the people are authorized to apply their own reason directly to the question of whether their sovereign is legitimate or not, as indicated by the conformance or contradiction of the government of the sovereign and natural law.