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Tuesday, July 03, 2007

The Foundation Of Law


Some more thoughts about government and the founding of our nation as we celebrate our liberties and freedoms.

Psalms 119:142 - Thy righteousness is an everlasting righteousness, and thy law is the truth.

Law and truth must be irrevocably linked if justice is to be served. Law must reflect truth and truth must be the foundation of law. We live in a nation in which the governing principle is suppose to be the "rule of law". It is extremely irritating to hear people speak of our Democracy. Our own President speaks of spreading Democracy. The spread of Democracy is simply the spread of tyranny by the majority. We are sliding toward a democracy but we were founded as a Constitutional Republic and were to be governed by the "rule of law". The founders were very clear on this point. They did not intend to create a democracy. One of the founders, whose name slips my mind at the moment, called democracy, "mobocracy". The founders understood there had to be a more stable foundation than the whims of the majority.

I rejoice when I hear a public person refer to our nation as a Republic because it causes me to believe that there are a few who know the truth. Words means things. We are not a democracy, we are a Constitutional Republic with some democratic principles, ie. many of our leaders are elected by majority vote. But if you will remember our President is not. He is elected by the electoral college. This is a principle that Al Gore is very familiar with. In fact originally Senators were not popularly elected. They were put into office by the State legislators. We did not start voting for our Senators until 1913 as a result of the 17th amendment to the Constitution. If one thinks about it there was probably a very good reason why Senators were not elected like Representatives but by the respective State legislatures. The point is that the Founders did not give us a Democracy. Democracies are not stable governments.

All governments have laws. They are the precepts by which the people are governed. All governments have foundations for their law. There are no perfect governments and no perfect law except the law of God. Even the law of God is handicapped in the hands of depraved men.

There is coming a day when the Lord Jesus Christ is going to rule and reign and he will do so, as we are told, with a rod of iron. The tribulation saints will be governed by Christ and the resurrected saints. Where there is government there is law. What are we to suppose will be the law of the millennial kingdom? Would it not likely be the law of the Old Testament? We must keep in mind there is nothing wrong with the law.

Romans 7:12 - Wherefore the law is holy, and the commandment holy, and just, and good.

The problem arises in the administration of the law.

Jeremiah 2:8 - The priests said not, Where is the LORD? and they that handle the law knew me not: the pastors also transgressed against me, and the prophets prophesied by Baal, and walked after things that do not profit.

Law in the hands of those who do not know God is a dangerous power!

The biblical principle is clear.

Proverbs 14:34 - Righteousness exalteth a nation: but sin is a reproach to any people.

While we may not be able to achieve perfection there is profit in seeking to achieve the ideal. For America it is especially tragic when we are loosed from our moorings and our foundation is undermined. The reason is because unlike any other nation we were founded primarily upon the principles of Biblical Christianity and the Bible. The evidence to this end is overwhelming.


THE FOUNDATION OF NATURAL LAW
What is the foundation of our Constitutional Republic?

Is the constitution the foundation of our Constitutional Republic? This is the document by which we are governed at the federal level. It is important to remember that the Constitution was for the purpose of clearly identifying the responsibilities of the Federal government, which if a person would take the time to read the Constitution they would discover that the Federal Government was designed to be very limited in its scope and authority. Most of the power and governing was to be left in the hands of the States and the individual; self government, if you will.

The Constitution is a document that was designed to unify the states in a few key areas while maintaining the respect for the sovereignty of the states respectively and the individuals. This of course was altered as a result of the Civil War and several of the Reconstruction era amendments to the Constitution, particularly the equal protection clause of the 14th amendment. This gave the Federal government, especially through the Court system greater power to implement policy for all the States.

Is the Declaration of Independence the foundation of our Constitutional Republic?

This is the document by which we declared our independence from the British Crown. It is a document that does several things. It sets forth the moral justification for our independence. It sets forth a list of our grievances against the king of Great Britain. It pledged the lives, fortunes, and sacred honor of all the signatories.

Both of these, the Declaration of Independence and the Constitution are legal documents.

Is our form of government the foundation of our Constitutional Republic?
Three branches of government established by the Constitution. The Executive Branch – Administration of laws. This is the President and his administration. The Legislative Branch – Legislating of laws. This is Congress composed of the House of Representatives and the Senate. The Judicial Branch – Just application of laws. This is the Federal Courts.

The founders intended for us to have a government of what they called "checks and balances". The founders intended for it to be difficult to get anything done. We complain that Government can't get anything done. The real problem is that they do too much. The government was designed to be slow in their deliberations. The problem arises when people look to government to fix every problem, when people want to be governed instead of governing themselves. When people want to the government to do something so they won't have to. Little do people realize that they are clamouring for the very thing that will erode their personal liberty.

Natural law is the foundation of our Constitutional Republic.
The Declaration of Independence states as much, “When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

Alexander Hamilton – One of the framers of the Constitution and author of the Federalist Papers along with John Jay and James Madison. "Upon this law, depend the natural rights of mankind, the supreme being gave existence to man, together with the means of preserving and beautifying that existence. He endowed him with rational faculties, by the help of which, to discern and pursue such things, as were consistent with his duty and interest, and invested him with an inviolable right to personal liberty and personal safety . . . . Hence, in a state of nature, no man has any moral power to deprive another of his life, limbs, property, or liberty; nor the least authority to command, or exact obedience from him . . . . Hence also, the origin of all civil government, justly established, must be a voluntary compact, between the rulers and the ruled; and must be liable to such limitations, as are necessary for the security of the absolute rights of the latter; for what original title can any man or set of men have, to govern others, except their own consent? To usurp dominion over a people, in their own despite, or to grasp at more extensive power than they are willing to entrust, is to violate that law of nature, which gives every man the right to his personal liberty; and can, therefore, confer no obligation to obedience . . . . "When human laws contradict or discountenance the means, which are necessary to preserve the essential rights of any society, they defeat the proper end of all laws, and so become null and void."

James Wilson a signer of the Declaration of Independence, framer of the Constitution, and Associate Justice on the first Supreme Court, "Human law must rest its authority ultimately upon the authority of that law which is divine .... Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other."

John Jay a co-author of the Federalist Papers and the first Chief Justice of the Supreme Court, "[N]o sovereign ought to permit those who are under his Command to violate the precepts of the Law of Nature, which forbids all Injuries ...."

Samuel Adams, Cousin to John Adams and signer of the Declaration of Independence, "In the supposed state of nature, all men are equally bound by the laws of nature, or to speak more properly, the laws of the Creator."


WHAT IS NATURAL LAW?
The concept of natural law is very ancient. It goes all the way back to Aquinas, Cicero, Aristotle, and Plato. It is also a philosophy that has evolved through the years. At its initial stages it seems to be simply the concept of those things that everyone knows is right and wrong. We would call it conscience. The Bible calls it the law of God written upon the heart. In every culture there is a set of characteristics that are considered virtues and another set of characteristics that are considered vices. There tends to be amazingly wide agreement on the virtues and vices.

Yet there can clearly be difference here depending on a persons background and environment. We know from the Bible that conscience can be hardened, defiled, and even seared.

What is important is to understand the founders intent when they embraced the concept of "natural law". The founders took the idea from an English jurist named Sir William Blackstone. He lived from 1723 –1780. Blackstone was an English judge, author, and professor who won recognition for his Commentaries on the Laws of England. This book presented a comprehensive picture of the English law of his time and became the most influential book in the history of English law. It was the basis of legal education in England and America for years. It had great influence in the American colonies, where it provided the colonists with their chief source of information about English law.


Blackstone was more quoted by the Founders than just about any other author other than the Bible. His law commentaries actually sold more copies in American than in England in the years prior to the revelation. Blackstone clearly sets forth his idea of Natural Law.

The following is an abbreviated statement from Blackstone concerning "natural law".

Blackstone wrote, "Good and wise men, in all ages...have supposed, that the deity, from the relations, we stand in, to himself and to each other, has constituted an eternal and immutable law, which is, indispensably, obligatory upon all mankind, prior to any human institution whatever . . . . This is what is called the law of nature, which, being coeval 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 at all times. No human laws are of any validity, if contrary to this; and such of them as are valid, derive all their authority, mediately or immediately, from this original."

This is a fuller explanation for those who have the desire to know. I have put in red the parts that seemed to be most significant for those who were not up to reading the whole portion. It is from Vol. 1 - OF THE NATURE OF LAWS IN GENERAL:

"LAW, in it’s most general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate of inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action, which is prescribed by some superior, and which the inferior is bound to obey.

Thus when the supreme being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which all moveable bodies must conform. And, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes at his own pleasure certain arbitrary laws for it’s direction; as that the hand shall describe a given space in a given time; to which law as long as the work conforms, so long it continues in perfection, and answers the end of it’s formation.

If we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws; more numerous indeed, but equally fixed and invariable. The whole progress of plants, from the seed to the root, and from thence to the seed again; the method of animal nutrition, digestion, secretion, and all other branches of vital economy; performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great creator.

This then is the general signification of law, a rule of action dictated by some superior being: and, in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for it's existence depends on that obedience. But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct: that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and freewill, is commanded to make use of those faculties in the general regulation of his behaviour.

Man, considered as a creature, must necessarily be subject to the laws of his creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct: not indeed in every particular but in all those points wherein his dependence consists. This principle: therefore has more or less extent and effect, in portion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon on his maker for everything, it is necessary that he should in all points conform to his maker's will.

This will of his maker is called the law of nature. For as God, when he created matter, and endured it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.

Considering the creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But as he is also a being of infinite wisdom , he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept. These are 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. Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian has reduced the whole doctrine of law.


But if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be obtained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance it’s inseparable companion. As therefore the creator is a being, not only of infinite power, and wisdom, but also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to inquire after and pursue the rule of right, but only our own self-love, that universal principle of action. For he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. In conse-quence of which mutual connection of justice and human felicity, he has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised; but has graciously reduced the rule of obedience to this one paternal pre-cept, " that man should pursue his own true and substantial "happiness". This is the foundation of what we call ethics, or natural law. For the several articles into which it is branched in our systems, amount to no more than demonstrating, that this or that action tends to man's real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man’s real happiness, and therefore that the law of nature forbids it.

This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other It is binding over all the globe in an 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.

But in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason; whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life: by considering, what method will tend the most effectually to our own substantial happiness. And if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.

This has given manifold occasion for the benign interposition of divine providence; which, in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in divers manners, to discover and enforce it's laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity. But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in it's present corrupted state; since we find that, until they were revealed, they were hid from the wisdom of ages. As then the moral precepts of this law are indeed of the same original with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral system, which is framed by ethical writers, and denominated the natural law . Because one is the law of nature, expressly declared so to be by God himself; the other is only what by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together.

Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There are, it is true a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder ; this is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime. Those human laws that annex a punishment to it, do not at all increase its moral guilt, or superadd any fresh obligation in foro conscientiae to abstain from it's perpetration. Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. But with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws; such, for instance, as exporting of wool into foreign countries; here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so.

This whole area of "common law" is one that is intriuging and I believe is the key to understanding the founding of our nation. It is here where I want to do some more reading, research, study, and thinking!




God Bless The United States Of America!
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