Natural Law or Legal Positivism, that is the question
This post continues our background on the legal killing of a newborn baby with Down’s Syndrome and a blocked esophagus in Bloomington, Indiana almost 27 years ago.
Because the court-ordered dehydration of a newborn in Bloomington, Indiana figured highly into my own formation as a constitutional law attorney (I was licensed in Kansas 14 years after Baby Doe was ‘lawfully’ killed) I am using his execution as a platform to address significant issues of law and policy affecting all Americans today.
Like this:
The judicially-decreed death rattle of Baby Doe, and of countless babies like him (born and unborn) raises important questions: What is the foundation for the law and what purpose should it serve?
These questions are among the most important any individual can ask of her social order. For that reason they are largely ignored in this amusement-driven culture.
Notre Dame Professor Emeritus Charles Rice, a friend of the Institute, refuses to ignore these crucial questions. One of his best books is 50 Questions on the Natural Law: What it is & Why we need it. (Ignatius Press, ISBN No. 0-89870-454-5, click here to order).
In this very readable work (it is written for laymen) Professor Rice defines such crucial terms as legal positivism and natural law, breaking them down to an understandable level.
“Natural law will seem mysterious if we forget that everything has a law built into its nature….The natural law is the story of how things work. … Morality is governed by a law built into the nature of man and knowable by reason…. Let us say upfront that the natural law makes no ultimate sense without God as its author. The natural law provides a guide through which we can safely and rightly choose to love God by acting in accord with our nature and by helping others to do the same…. The natural law provides an objective standard of right and wrong….. if an enacted law is contrary to the natural law, it is not even a law. It is void, an act of violence rather than law. The natural law is therefore a standard for the state as well as for its citizens.”
50 Questions, excerpts from paragraph 3: “But what is natural law?”
Natural law assumes a Creator who leads us to Reason. Legal positivism is a child of the Enlightenment, and thus assumes no Creator and demands Reason to lead us to affirm that atheistic assumption. (See Romans 1)
Professor Rice quotes Cardinal Joseph Ratzinger to make this point: “The fundamental dogma of the Enlightenment is that man must overcome the prejudices inherited from tradition; he must have the boldness to free himself from every authority in order to think on his own, using nothing but reason.”
50 Questions at p.36, quoting a 1991 address by the current Pope.
Positivism led Europe into a nightmare, and is taking America to the same dark place. Rice turns to a German legal scholar for the following quote: “Positivism, with its thesis that ‘[the] law is [the] law’ has made German jurists and lawyers defenseless against laws of arbitrary or criminal content. Positivism simply holds that a law is valid because it is successfully enforced.”
Rice quoting Henrich Rommen, Natural Law in Decisions on the Federal Supreme Court and the of the Constitutional Courts in Germany, 4 Natural Law Forum, (1959).
Germany rejected Natural Law and embraced Positivism in the years following World War I. Hitler’s dictates were the law, and the law was the law. Dissidents, be they Christian conscientious objectors, Generals who recognized strategic folly or brave pastors like Dietrich Bonhoeffer were all dealt with in very rough fashion.
At the end of the road Gernany’s new found faith did not serve her well.
Baby Doe’s death rattle, which came as the Indiana Supreme Court stood guard over that dying boy’s tortured body, was a signal to Indiana and all of America that this nation was crawling down the God-denying corridor that led our German cousins to trial at Nuremberg.
Indiana was embracing this new found faith, as signaled by a human sacrifice. The sacrifice of a Baby Doe.
Many have stood against this apostasy from the Christian faith these past four decades. One of the goals of the ArchAngel Institute is to memorialize those who so stood and to prepare all for a future that will ask for more Faith and Courage in the face of godless statism. If we do not return to moral sanity quite soon then our collective insanity will claim more careers, more families and even more lives.
The next post will present to the teaching of the Church on the taking the stand against godlessness in high places.
Postscript: The art in this post is a poster from 1930’s Germany informing the reader of the high cost of keeping the handicapped alive. Hilter, like the Indiana Supreme Court, had a final solution for those like Baby Doe.
