Lex Naturalis and Postmodern Post-Sanity

In my experience man and boy, I know of no topic more likely to provoke incompetent and incoherent reply than the topic of Lex Naturalis, or Natural Law.

I have a theory, nay, a speculation merely, as to why this is.

Natural Law is a term of art used by philosophers and theologians to refer to that objective moral standards by which Positive Law, that is, laws men posit, manmade law, is to be judged as good or bad, fair or unfair.

In jurisprudence this same distinction is called by other names: an offense that is malum in se or wicked in and of itself is contradistinguished from an offense that is malum prohibitum or wicked only because it is prohibited.

Murder is malum in se: if the killing of a human being with malice aforethought takes place on the high sea or in some unclaimed wilderness where no human law has sway, a court of law can still justly punish the crime. Its criminality is innate to the act.

Driving on the unlawful side of the highway is malum prohibitum: which side of the road is forbidden is different in England versus New England.  No court of law could justly punish the act if a man drove on a private road on his own land, or if a scientist landed a wheeled vehicle on Mars and trundled it down some turnpike built by long vanished Barsoomians.  An act that is malum prohibitum is wrong only when and where prohibited by Positive Law.

If no Natural Law existed, all discussions of the goodness or fairness of Positive Law would be silenced.

A man might say he preferred one statute or court ruling to another, but this would be a mere psychological report of his arbitrary and subjective tastes, like saying he preferred pie to cake.

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Originally published at John C. Wright's Journal. Please leave any comments there.