Natural Law, Before reading Allen

As the title suggests, this post will be outlining my thoughts on the concept of "natural law" before reading Allen's essay "The Natural Law Origins of the American Right to Privacy: Natural law, Slaver, and the Right to Privacy Tort." This post is primarily based off of my previous readings of Aquinas and Locke.

First, my understanding of natural law is, "An objective moral code that applies to all human beings." The name (so far as I can gather) is derived from the belief that there is a moral code intrinsic to humanity and the world overall. God is typically credited for creating and enforcing this moral code in the world.

However, one can already see the first glaring issue with prescribing to the theory of "natural law": it undermines the diversity found in different cultures, races, and religions. I once asked an ethics professor, "Would Thomas Aquinas say that a Buddhist monk (one who lives a moral life by Christian standards, but is not, himself/herself a Christian) is a moral or immoral person." My professors response was, "Aquinas would say that they are moral, albeit 'misguided'." This facet of natural law can be taken further when certain practices that are reminiscent of Christian tradition and scripture are touted as being "the natural way of things." For example, many people who argue against gay marriage claim that it is "unnatural", usually following it up with "it is not the way God intended" (to which I would then ask "How can God, being omniscient and omnipotent, allow something to happen that He did not intent?" Unfortunately, this is a legal blog, and I will do my best not to let my interests in religious philosophy bleed through too much).

As such, the concept of natural law becomes unsteady when the foundation of it rests in the need for a higher power/intelligence. If there is no great creator to conjure up a perfect moral code, then there is no moral code.

The secular counter to this would be as follows: "Is it possible to ground 'natural law' in something that isn't divine?" This is typically the claim of the Utilitarian, who claims that pleasure and pain can be used as objective measurements for moral actions. It is further believed that these sensations of pleasure and pain have an intrinsic, psychological root that allow us to know and understand when something is or is not moral.

For me, this falls flat every time. Sensations of pleasure and pain (short or long term) are subjective in every experience (if they were identical in every situation, then phenomenology would not exist). Every person, due to GEP (genetics, environment, and personal decisions; considered the three primary buildings blocks of personality) experiences the world in a different way. People grow tolerant of certain things and sensitive of others.

Three common examples:

A homeless man finds twenty dollars on the street and is overjoyed. He trips and drops the money. The paper then gets caught in the wind and flies away. The homeless man is devastated. The bill lands two blocks away in front of a business man who just made thirty thousand dollars in a single day of work. He sees the bill and tucks it away in his back pocket, forgetting about it almost immediately.

A hopeless romantic gets a date with a dashing young man. The boys go out for dinner and dancing. At the end of the night, they exchange phone numbers. The hopeless romantic calls several times over the next few days to no avail. Realizing he's being ignored, he feels devastated. The dashing young man, who is somewhat of a playboy, doesn't feel anything as he goes out with another man later that same night.

A soldier in the heat of combat takes three shots to the abdomen. She is withdrawn from battle and treated for her wounds. Throughout treatment, she remains stone faced, despite the physical pain. Two years later, she is talking to a friend, who recounts how she has had a headache all day. The friend mentions how "it's the worst pain one could possibly imagine."

In each of these cases, people deal with pain or pleasure in different ways. Some feel a powerful fluctuation in their state of mind, while others are barely effected. Thus, it is impossible for one to claim that pain and pleasure can be used as objective means of measurement since every experience is subjective to the person.

An additional example:

Two men are arrested for vehicular manslaughter while under the influence of alcohol. The first man, a member of a local gang, doesn't feel any remorse. When he is sentenced to several years in prison, he reacts aggressively. The second man, a married man and father of three kids, feels incredible woe at what he has done. When given an identical sentence to the first man, he feels even worse, as he is the primary financial provider for his family. He realizes how his absence will negatively affect his family, both financially and psychologically.

One can see by this example that two identical scenarios yielded two entirely different phenomenological results. Each processed their actions based on their ideals and reacted to their punishment with respects to the repercussions it would have on themselves and the people around them.

All in all, I do not believe there is a justifiable "natural law" to juristic by. With no overarching spiritual paragon for everyone to ascribe to, and no secular means by which to judge by, the only means that a person is left to judge with is in recognition of the subjectivity of humanity and human experience.

Now I will read Allen's article and see if my position holds.