Thomas Jefferson — “Rebellion to Tyranny is Obedience to God.”
An Unjust Law is No Law at All: Why Obamacare Must Fall
– Kelly OConnell Sunday, July 1, 2012
When Obamacare was recently affirmed, many Americans assumed bad law was established as constitutional—that wrong had trumped right. In fact, as heirs to the constitutional history of Europe connecting back to the earliest Greek and Roman thinkers and biblical writers, there is no compelling reason to accept an evil law. It is the Western concept that claims a set of precepts exists above all human law which is used to model and judge our own temporary laws. In fact, one can argue persuasively that without the notion of good law above used to fight against evil laws, the West as we know it would have never evolved.
Specifically, the Western Natural Law tradition is predicated upon the notion that Nature or God so ordered the universe that a set of rules exists beyond human laws which then are there available to inform humans of the manner of proper conduct and legislation. The greatest thinkers in Western history agree on this, including Cicero, Augustine, Aquinas, John Locke and many others. It is the duty of all free men and women to rise up and fight against unjust laws because all bad rules are an attack against liberty. Further, if we do not do this now, the opportunity to establish freedom may be lost for all future generations.
I. Western Legal Foundation: Natural Law
The legal story of the West has a rich history. Heinrich A. Rommen in The Natural Law: A Study in Legal and Social History and Philosophy, describes Natural Law by using the great Hugo Grotius’ definition:
The law of nature [ius naturale] is a dictate of right reason which points out that an act, according as it is or is not in conformity with rational [and social] nature, has in it a quality of moral baseness or moral necessity; and that, in consequence, such an act is either forbidden or enjoined by the author of nature, God.
The best research traces the ideas behind modern Natural Law and rights to William of Ockham, according to Brian Tierney in The Idea of Natural Rights. Modern rights language can be traced to a debate which occurred between Pope John XXII and the Franciscan Order. According to Tierney, the intrinsic implications for liberty within the Bible for Natural Law became externalized at some point. Ockham provided the language which helped form the tradition.
What Natural Law represents more than any other idea is the notion of a true set of precepts existing above any human laws which can be used to model and correct human law. And bad laws were not considered morally binding. Augustine in On Free Choice Of The Will, Book 1, § 5, says on this: “An unjust law is no law at all.”
II. Greek & Roman Natural Law Foundations: Stoics & Cicero
The notion there is a natural order and logic to good law is not unique to biblical theory but is also found in the thinking of early Greek philosophers like the Stoics who influenced later writers. Cicero was perhaps Rome’s greatest lawyer, a famed speaker and its greatest legal writer. Russell Kirk in Roots Of American Order describes the pagan Cicero’s Stoic-influenced theory of law:
Human laws are only copies of eternal laws. Those eternal laws are peculiar to man, for only man, on earth, is a rational being. The test of validity for the state’s laws is their conformity to reason. This reason, when firmly fixed and fully developed in the human mind, is Law. And so they believe that Law is intelligence, whose natural function it is to command right conduct and forbid wrongdoing. Thus, natural law forms the basis in creation for our intuitions of right and wrong, and is the context for our ability to reason.
Cicero himself discusses the universal existance of natural law across the world:
True law is right reason in agreement with Nature…it is of universal application, unchanging and everlasting… we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one ruler, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment.
III. Obamacare as Denial of Rights to Life, Liberty & Property
The Declaration & US Constitution protect Life, Liberty & Property. Yet many believe that Obamacare is a serious threat to all of these. Consider the following commentator’s thoughts:
Mark Levin excoriated the Supreme Court and Chief Justice John Roberts, saying:
This decision I would go as far to say is lawless. Absolutely lawless! Just because five lawyers in black robes, one of whom was purported to be a conservative, a man I knew a long time ago, issue a decision of the sort that they issued doesn’t make it proper. As a matter of fact, this decision I would go as far to say is lawless. Absolutely lawless. That’s why people are stunned.
Rand Paul also commented on the Court’s decision:
Today the Supreme Court—the ruling body that our Founding Fathers created to protect citizens from tyranny—decided to uphold Obamacare and thus stripped Americans of their personal liberties and freedoms. We have heard the Court’s opinion loud and clear, but now it’s time for them to hear us. It is up to us to reclaim our constitutional rights. It is up to the American people to end President Obama’s political agenda. Obamacare is wrong for Americans and it will destroy our health-care system. This now means that we must fight every hour, every day until November to elect a new president and a new Senate to repeal Obamacare.
IV. Unjust Law As No Law At All
A number of famed legal expositers have stated explicitely that a bad law is not binding. Consider Thomas Aquinas, considered history’s greatest authority on natural law, on just and unjust laws:
Laws framed by man are either just or unjust. If they be just, they have the power of binding in conscience, from the eternal law whence they are derived, according to Prov. 8:15: “By Me kings reign, and lawgivers decree just things.”
On the other hand laws may be unjust in two ways: first, by being contrary to human good… The like are acts of violence rather than laws; because, as Augustine says (De Lib. Arb. i, 5), “a law that is not just, seems to be no law at all.”
Secondly, laws may be unjust through being opposed to the Divine good: such are the laws of tyrants inducing to idolatry, or to anything else contrary to the Divine law: and laws of this kind must nowise be observed, because, as stated in Acts 5:29, “we ought to obey God rather than man.”
V. Do Americans Have a Right to Rebel Against Unjust Laws?
Probably no American is more celebrated for his views of law, tyranny and the right to engage in civil dissobedience than Dr. Martin Luther King, Jr. In his “Letter from a Birmingham Jail” Martin Luther King, Jr. said,
You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”
Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.
There is nothing new about civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.
Conclusion—John Locke’s Thoughts on Bad Government
John Locke, the Founders’ model for much American legal and government theory says the following about unjust government:
“Whenever the power that is put in any hands for the government of the people, and the protection of our properties, is applied to other ends, and made use of to impoverish, harass or subdue them to the arbitrary and irregular commands of those that have it; there it presently becomes tyranny, whether those that thus use it are one or many”. (Second Treatise, Chapter 18).
Kelly O’Connell hosts American Anthem on CFP Radio Sundays at 4 pm (EST).
Kelly O’Connell is an author and attorney. He was born on the West Coast, raised in Las Vegas, and matriculated from the University of Oregon. After laboring for the Reformed Church in Galway, Ireland, he returned to America and attended law school in Virginia, where he earned a JD and a Master’s degree in Government. He spent a stint working as a researcher and writer of academic articles at a Miami law school, focusing on ancient law and society. He has also been employed as a university Speech & Debate professor. He then returned West and worked as an assistant district attorney. Kelly is now is a private practitioner with a small law practice in New Mexico. Kelly is now host of a daily, Monday to Friday talk show at AM KOBE called AM Las Cruces w/Kelly O’Connell