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Natural law is a contribution to the perennial discussion of the nature of justice and morality; it is an attempt to root them in something beyond human convention and creation. The notion has had various meanings and contents—no less than the word nature itself—most of which can be traced back to Saint Thomas Aquinas (1225–1274), Roman Stoicism, and ultimately, Aristotle (384–322 B.C.E.). Constant to all its meanings is that natural law is coherent, suprahuman, objective moral order that contains the standards of what is good and just; and that it contains the standards by which human or positive law is to be judged from the perspective of a harmonious and coherent universe and is inherent in the "nature" of the world. It was born of attempts by ancient philosophers and jurists to discover—or determine—what was common to all legal systems in order to eliminate what would today be seen as the problems of "relativism" and cultural and legal "diversity." The presumption that there is a common core to all systems of morality and law that provides the standards by which they are to be evaluated leads to the issues of discovery, validation, and enforcement.
Universality and Permanence
Natural law, like justice, aims at universality and permanence. Operationally, like all law, it is duty-contradict, a series of moral prohibitions, permissions, and requirements. It proclaimed the union of morality and politics and emerged from an ancient worldview that saw a singular harmony in nature, manifested in the universal jus (or ius) gentium (international law). That universality was subsequently incorporated by Christianity into its conception of the divine ordering of all creation. Aquinas separated this classical understanding into the eternal, the divine, the natural, and the human (or positive) laws. The natural was still common to all humanity and was part of God's will and was the direct source for human law. In keeping with its Stoic roots, the natural law as conceived by Aquinas was discoverable through the use of natural reason, with the difference that for Aquinas that reason had been planted in everyone by God. Justice was an irresistible, rational necessity of naturally sociable human beings.
In this Aristotelian-Thomist form, for the most part, natural law continued into the early modern period. Even Jean Bodin (1530–1596), famed for his conception of political sovereignty as the absolute power to make and enforce law, held in his Six livres de la République (1576; Six books of the commonwealth) that the state in general was under the moral aegis of the overarching law of nature and limited sovereign absolutism to the positive law.
Protestant and secular natural-law theorists retained the understanding of humans as naturally sociable and rational and viewed the natural law as that which superintended human laws. The Vindiciae, contra Tyrannos (1579; Defense of liberty against tyrants; written by Philippe de Mornay, known as Duplessis-Mornay [1549–1623], but published anonymously) pointed to violations of the natural law as one of the signs of tyranny, and the sixteenth-century Anglican theologian Richard Hooker (1553 or 1554–1600) espoused a conception of natural law that was heavily indebted to Scholasticism in his Laws of Ecclesiastical Polity (1593, et seq.).
Reason and Natural Sociability
The seventeenth century witnessed the beginnings of a series of remarkable changes in natural-law theory, starting with the Dutch thinker Hugo Grotius (1583–1645), whomadereasonandnaturalsociability, rather than divinity, central to the conception developed in his De Iure Belli ac Pacis (1625; On the law of war and peace). So strong was his reliance upon these two that he suggested that the natural law would obtain even without God. Grotius was certainly not an atheist, but that charge was hurled at Thomas Hobbes (1588–1679), the English philosopher whose understanding of natural law shared many features with that of Grotius.
Sociability, Grotius argued, drove humanity into society from its prepolitical, state-of-nature beginnings; people were capable of understanding the ruling law of nature through their natural reason. Aquinas and the early-seventeenth-century Jesuit natural-law philosopher Francisco Suárez (1548–1617) had seen rationality as a reflection of divinity that enabled humans to understand God's will. Grotius appeared to have minimized that relationship, treating reason as a semiautonomous—albeit divinely implanted—and extremely important aspect of human nature. In his hands and those of his successors, this radically secularized and rationalized natural law was potentially removed from the realm of experience in which it had previously been rooted. The inherent human capacity to reason and the use of "right reason" independent of actual experience could lead to universal moral, social, and political principles by which human life was to be governed.
Perhaps the most important and influential proponent of this Grotian view of natural law was Samuel von Pufendorf (1632–1694), the first holder of a chair in natural law in a German university. In his De Jure Naturae et Gentium (1672; On natural and civil law), Pufendorf went even further and separated the natural, sociable world of human affairs and the natural law that governed it from the spiritual realm of theology. In this form, the new, secular natural law was adopted by many seventeenth- and eighteenth-century philosophers, especially Richard Cumberland (1631–1718), bishop of Peterborough (whose De Legibus Naturae [On natural laws] was published the same year as Pufendorf's work) and Jean Barbeyrac (1674–1744), the translator of Grotius and Pufendorf into French and historian of moral philosophy.
Cumberland had reached his conclusions independently of Pufendorf and was acknowledged in later editions of De Jure Naturae. Paradoxically, perhaps, Cumberland had developed some of his argument in opposition to the writings of Thomas Hobbes, who had denied natural sociability and ignored, if he did not actually deny, divinity. But Hobbes was subsequently to be ranked by Barbeyrac in the company of Grotius and Pufendorf as one of the great innovators in natural law theory.
State of Nature
Hobbes's theory, most notably in Leviathan (1651) and earlier in his De Cive (1642; On citizenship), began with an utterly undeveloped, fiercely competitive, and dangerously uncertain state of nature in which the natural law gave everyone the right to all things within their reach. People escaped this state of nature by voluntarily establishing a conventional absolutism in accord with the natural law requirement of self-preservation. Where traditional natural-law doctrine had provided a natural and rational basis for rights and liberties that persisted in some form in political society and had imposed varying limits on political authority, in Hobbes's hands, the inevitable destructiveness of natural freedom led only to a rationally established absolutism in which subjects had only as much freedom as their rulers permitted. It was the conceptual genius of Hobbes to subvert the appeal to natural law by many of his contemporaries—especially the Levellers—to attack the rule of Charles I as antithetical to their natural rights.
This Hobbesian reworking of natural law created great difficulties for his successors—he was frequently attacked and his books were subsequently banned in England—especially John Locke (1632–1704), who sought to establish a notion of secular natural law as leading to limited government. Locke is better known for his doctrine of natural rights than for his theory of natural law. The state of nature described in his Two Treatises of Government (1690) was sociable and far more peaceful than that of Hobbes, precisely because it was governed by the God-given natural law that people recognized and generally obeyed. The establishment of political—or "civil," as Locke often called it—society, accomplished by consent, was fully in accord with the law of nature and enabled people to achieve their natural ends by overcoming the uncertainties and insecurities of the state of nature. Locke's political state was to be limited by the natural justice contained in the natural law, and prolonged violations of that justice legitimated—in some cases, even required—a resort to revolution.
The Problem of Divine Will
There is a paradox inherent in a natural law theory that depends on divine will. Grotius and those who followed him recognized this problem. If God is the author or legislator of the law of nature, and its validity is a consequence of his will, then things are right or wrong because God has so directed, which makes him into something of an arbitrary but benevolent ruler. If, on the other hand, there are principles according to which God has decreed the natural law, as Aquinas seemed to have implied, then God is not omnipotent. Consigning all this to the realm of divine mystery severely limits its applicability to human affairs. The role of reason is crucial, but reason that is God-dependent simply pushes the problem one step further away. Aquinas, following Aristotle, argued for the relationship between divine natural law, reason, and human experience. But an independent reason of the sort advocated by Pufendorf requires some standard of validation. Locke tacitly sidestepped the issue in his Two Treatises, but at an earlier period in his life, in a series of lecturers he delivered in 1664 but refused to publish (published from the manuscripts in 1954 as Essays on the Law of Nature), he had agonized over the source of natural law and how and whether it could be known.
This series of questions was faced by Pufendorf, who concluded that the will of God in matters of natural law could be determined by consulting what is humanity's long-term and therefore best interests, thereby opening the door to a rational natural law that could be professed without any direct reliance upon divine will and revolution, which was ultimately a major break from the Scholastic tradition. He further urged that the author of this break was Grotius. The focus of natural law for Pufendorf—and Grotius—shifted from the morally requisite duties of individuals to the preservation of society, a view that was passed on to the eighteenth century by Barbeyrac. He published French translations of Grotius and Pufendorf that were translated into English and enjoyed wide popularity in both languages. His Historical and Critical Account of the Science of Morality (English translation, 1729), which prefaced his edition of Pufendorf, accepted and furthered Pufendorf's understanding of Grotius as the author of the radical break in natural-law theory. Barbeyrac argued for a new school of natural-law theory that included Grotius, John Selden (1584–1654), Pufendorf, Hobbes, Cumberland, and Locke, and his view became the accepted history of modern moral philosophy.
Human Will
These moves would make human will the determiner of natural-law precepts, leaving altogether open the issue of how to resolve conflicting accounts. Ultimately, this would be dealt with by the reintroduction of experience as that upon which reason operated. And, in keeping with the precepts of natural sociability, a standard of social utility extended over time would become the measure of justice as secular natural law gave place to utilitarianism. The Scholastic doctrine of natural law remained alive in Roman Catholic philosophy and theology.
Yet another and not unrelated direction for the development of natural law thinking was already present in Locke's conception of natural rights, for his emphasis was upon the natural entitlements as limits on the behavior of others and on the actions of government. The popularity of this doctrine represents the triumph of what has been called "individualism." This part of the natural law story ends with Thomas Jefferson's (1743–1826) invocation in the Declaration of Independence of the "law of Nature and Nature's God," a cosmetic reversion to the earlier theistic conception, from which he quickly moved to the self-evident, God-given "unalienable Rights" of "Life, Liberty, and the pursuit of Happiness" as the only legitimate ends of government. Expanded into the universal "human rights" of contemporary international politics, the modernized version of natural rights has become one of the primary alternatives to utilitarianism and social good as the test for good and just government.
Bibliography
Burns, J. H., ed. The Cambridge History of Political Thought, 1450–1700. Cambridge, U.K., and New York, 1991.
Gierke, Otto Friedrich von. Natural Law and the Theory of Society, 1500 to 1800, by Otto Gierke, with a lecture on The Ideas of Natural Law and Humanity, by Ernst Troeltsch. Translated and with an introduction by Ernest Barker. Cambridge, U.K., 1958.
Haakonssen, Knud. Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge, U.K., and New York, 1996.
Johnson, Harold J., ed. The Medieval Tradition of Natural Law. Kalamazoo, Mich., 1987.
Krieger, Leonard. The Politics of Discretion: Pufendorf and the Acceptance of Natural Law. Chicago, 1965.
—GORDON SCHOCHET
This entry contains information applicable to United States law only.
The unwritten body of universal moral principles that underlie the ethical and legal norms by which human conduct is sometimes evaluated and governed. Natural law is often contrasted with positive law, which consists of the written rules and regulations enacted by government. The term natural law is derived from the Roman term jus naturale. Adherents to natural law philosophy are known as naturalists.
Naturalists believe that natural-law principles are an inherent part of nature and exist regardless of whether government recognizes or enforces them. Naturalists further believe that governments must incorporate natural-law principles into their legal systems before justice can be achieved. There are three schools of natural-law theory: divine natural law, secular natural law, and historical natural law.
Divine natural law represents the system of principles revealed or inspired by God, or some other supreme and supernatural being. These divine principles are typically reflected by authoritative religious writings such as Scripture. Secular natural law represents the system of principles derived from the physical, biological, and behavioral laws of nature as perceived by the human intellect and elaborated through reason. Historical natural law represents the system of principles that has evolved over time through the gradual accretion of custom, tradition, and experience. Each school of natural law influenced the Founding Fathers during the nascent years of U.S. law in the eighteenth century and continue to influence the decision-making process of state and federal courts today.
Divine Natural Law
Proponents of divine natural law contend that law must be made to conform to the commands laid down or inspired by God, or some other deity, who governs according to principles of compassion, truth, and justice. These naturalists assert that the legitimacy of any enacted human law must be measured by its consonance with divine principles of right and wrong. Such principles can be found in Scripture, church doctrine, papal decrees, and the decisions of ecclesiastical courts and councils. Human laws that are inconsistent with divine principles of morality, naturalists maintain, are invalid and should neither be enforced nor obeyed. St. Thomas Aquinas, a theologian and philosopher from the thirteenth century, was a leading exponent of divine natural law.
Under Judeo-Christian belief, the Ten Commandments, which were delivered to Moses by God on Mount Sinai according to the Old Testament, represent one example of divine natural law. The Bible and Torah are thought by many to be other sources of divine natural law because their authors are said to have been inspired by a divine spirit. Some Christians point to the canon law of the Catholic Church, which was applied by the ecclesiastical courts of Europe during the Middle Ages, as a third source of divine natural law.
Before the Protestant Reformation of the sixteenth century, Europe was divided into two separate and competing jurisdictions — secular and religious. The emperors, kings, and queens of Europe governed the secular jurisdiction, and the pope presided over the religious jurisdiction. The notion that a "higher law" transcends the rules enacted by human institutions and that government is bound by this law, also known as the rule of law, fermented during the struggle between the secular and religious powers in Europe before the U.S. Revolution. Henry de Bracton, an English judge and scholar from the thirteenth century, wrote that a court's allegiance to the law and to God is above its allegiance to any ruler or lawmaker.
The influence of divine natural law was also pervasive during the colonial period of U.S. law. In 1690 English philosopher John Locke wrote that all people are born with the inherent rights to life, liberty, and estate. These rights are not unlimited, Locke said, and may only be appropriated according to the fair share earned by the labor of each person. Gluttony and waste of individual liberty are not permitted, Locke argued, because "[n]othing is made by God for man to spoil or destroy."
In the Declaration of Independence, Thomas Jefferson, borrowing from Locke, wrote that "all men are created equal … and are endowed by their creator with certain inalienable rights … [including] life, liberty and the pursuit of happiness." Jefferson identified the freedom of thought as one of the inalienable rights when he said, "Almighty God has created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint." In Powell v. Pennsylvania, 127 U.S. 678, 8 S. Ct. 1257, 32 L. Ed. 253 (1888), the Supreme Court recognized the importance of the divine influence in early U.S. law, stating that the "right to pursue happiness is placed by the Declaration of Independence among the inalienable rights of man, not by the grace of emperors or kings, or by the force of legislative or constitutional enactments, but by the Creator."
The U.S. Constitution altered the relationship between law and religion. Article VI establishes the Constitution as the supreme law of the land. The First Amendment prohibits the government from establishing a religion, which means that a law may not advance one religion at the expense of another or prefer a general belief in religion to irreligion, atheism, or agnosticism. Although the Supremacy and Establishment Clauses seemingly preclude the judiciary from grounding a decision on Scripture or religious doctrine, state and federal courts have occasionally referenced miscellaneous sources of divine natural law.
For example, in Edwards v. Aguillard, 482 U.S. 578, 107 S. Ct. 2573, 96 L. Ed. 2d 510 (1987), the Supreme Court said that "the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him." In McIlvaine v. Coxe's Lessee, 6 U.S. 280, 2 Cranch 280, 2 L. Ed. 279 (1805), the Supreme Court relied on the Bible as "ancient and venerable" proof that expatriation had long been "practiced, approved, and never restrained."
Confronted with the question as to whether the conveyance of a particular piece of land was legally enforceable, the Supreme Court said that it would consider "those principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man, and which are admitted to regulate, in a great degree, the rights of civilized nations" (Johnson v. M'Intosh, 21 U.S. 543, 8 Wheat. 543, 5 L. Ed. 681 [1823]). In Dred Scott v. Sandford, 60 U.S. 393, 19 How. 393, 15 L. Ed. 691 (1856), the Supreme Court held that slaves were the property of their owners and were not entitled to any constitutional protection. In a dissenting opinion, however, Justice John McLean wrote that a "slave is not mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man."; slavery.
More recently, the Supreme Court relied on Judeo-Christian standards as evidence that homosexual sodomy is a practice not worthy of constitutional protection because it has been condemned throughout the history of western civilization (Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 [1986] [Burger, J., concurring]). State and federal courts also have considered Judeo-Christian standards when evaluating the constitutionality of statutes prohibiting bigamy and incest. For example, Benton v. State, 265 Ga. 648, 461 S.E.2d 202 (1995), upheld the constitutionality of a Georgia statute prohibiting incest.
Despite the sprinkling of cases that have referenced Scripture, religious doctrine, and Judeo-Christian heritage, such sources of divine natural law do not ordinarily form the express basis of judicial decisions. At the same time, it cannot be said that state and federal courts have completely eliminated any reliance on natural-law principles. To the contrary, many controversial legal disputes are still decided in accordance with unwritten legal principles that are derived not from religion, but from secular political philosophy.
Secular Natural Law
The school of natural law known as secular natural law replaces the divine laws of God with the physical, biological, and behavioral laws of nature as perceived by human reason. This school theorizes about the uniform and fixed rules of nature, particularly human nature, to identify moral and ethical norms. Influenced by the rational empiricism of the seventeenth and eighteenth century Enlightenment thinkers who stressed the importance of observation and experiment in arriving at reliable and demonstrable truths, secular natural law elevates the capacity of the human intellect over the spiritual authority of religion.
Many secular-natural-law theorists base their philosophy upon hypotheses about human behavior in the state of nature, a primitive stage in human evolution before the creation of governmental institutions and other complex societal organizations. In the state of nature, John Locke wrote, human beings live according to three principles — liberty, equality, and self-preservation. Because no government exists in the state of nature to offer police protection or regulate the distribution of goods and benefits, each individual has a right to self-preservation that he or she may exercise on equal footing with everyone else.
This right includes the liberties to enjoy a peaceful life, accumulate wealth and property, and otherwise satisfy personal needs and desires consistent with the coterminous liberties of others. Anyone who deprives another person of his or her rights in the state of nature, Locke argued, violates the principle of equality. Ultimately, Locke wrote, the state of nature proves unsatisfying. Human liberty is neither equally fulfilled nor protected. Because individuals possess the liberty to delineate the parameters of their own personal needs and desires in the state of nature, greed, narcissism, and self-interest eventually rise to the surface, causing irrational and excessive behavior and rendering human safety evanescent. Thus, Locke concluded, the law of nature leads people to establish a government that is empowered to protect life, liberty, and property.
Lockean jurisprudence has manifested itself in the decisions of the Supreme Court. In Powell v. Pennsylvania, 127 U.S. 678, 8 S. Ct. 1257, 32 L. Ed. 253 (1888), Justice Stephen J. Field wrote that he had "always supposed that the gift of life was accompanied by the right to seek and produce food, by which life can be preserved and enjoyed, in all ways not encroaching upon the equal rights of others." In another case the Supreme Court said that the "rights of life and personal liberty are the natural rights of man. To secure these rights … governments are instituted among men" (U.S. v. Cruikshank, 92 U.S. 542, 2 Otto 542, 23 L. Ed. 588 [1875]).
In the spirit of Lockean natural law, the Fifth and Fourteenth Amendments to the Constitution prohibit the government from taking "life, liberty, or property without due process of law." The concept of "due process" has been a continuing source of natural law in constitutional jurisprudence. If Lockean natural law involves theorizing about the scope of human liberty in the state of nature, constitutional natural law involves theorizing about the scope of liberty protected by the Due Process Clauses of the Fifth and Fourteenth Amendments.
On their face the Due Process Clauses appear to offer only procedural protection, guaranteeing litigants the right to be informed of any legal action being taken against them and the opportunity to be heard during an impartial hearing where relevant claims and defenses may be asserted. Over the last 150 years, however, federal courts have interpreted the Due Process Clauses to provide substantive protection against arbitrary and discriminatory governmental encroachment of fundamental liberties. Similar to the rational empiricism by which Enlightenment thinkers identified human rights in the state of nature, federal judges have identified the liberties protected by the Due Process Clauses through a reasoned elaboration of the Fifth and Fourteenth Amendments.
The federal judiciary has described the liberty interest protected by the Due Process Clauses as an interest guaranteeing a number of individual freedoms, including the right to personal autonomy, bodily integrity, self-dignity, and self-determination (Gray v. Romeo, 697 F. Supp. 580 [1988]). The word liberty, the Supreme Court said, means something more than freedom from physical restraint. "It means freedom to go where one may choose, and to act in such manner … as his judgment may dictate for the promotion of his happiness … [while pursuing] such callings and avocations as may be most suitable to develop his capacities, and give to them their highest enjoyment" (Munn v. Illinois, 94 U.S. 113, 4 Otto 113, 24 L. Ed. 77 [1876] [Field, J., dissenting]).
The full breadth of constitutional liberty, the Supreme Court has said, is best explained as a rational continuum safeguarding every facet of human freedom from arbitrary impositions and purposeless restraints (Poe v. Ullman, 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989 [1961]). The government may not intrude upon this liberty unless it can demonstrate a persuasive countervailing interest. However, the more that the U.S. legal system cherishes a particular freedom, the less likely a court is to enforce a law that infringes upon it.
In this regard the Supreme Court has identified certain fundamental rights that qualify for heightened judicial protection against laws threatening to restrict them. This list of fundamental rights includes most of the specific freedoms enumerated in the Bill of Rights, as well as the freedom of association, the right to vote and participate in the electoral process, the right to marry, procreate, and rear children, and the right toprivacy. The right to privacy, which is not expressly enumerated anywhere in the Constitution, guarantees the freedom of adults to use birth control (Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 [1965]) and the right of women to terminate their pregnancy before the fetus becomes viable (Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]).
During the 1990s the right to privacy was enlarged to recognize the right of certain terminally ill or mentally incompetent persons to refuse medical treatment. In Cruzan v. Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990), the Supreme Court ruled that a person who is in a persistent vegetative state, marked by the absence of any significant cognitive abilities, may seek to terminate life-sustaining measures, including artificial nutrition and hydration equipment, through a parent, spouse, or other appropriate guardian who demonstrates that the incompetent person previously expressed a clear desire to discontinue medical treatment under such circumstances.
The Court of Appeals for the Ninth Circuit later cited Cruzan in support of its decision establishing the right of competent but terminally ill patients to hasten their death by refusing medical treatment when the final stages of life are tortured by pain and indignity (Compassion in Dying v. Washington, 79 F.3d 790 [9th Cir. 1996]). However, the Court of Appeals for the Second Circuit ruled that physicians possess no due process right to assist terminally ill patients in accelerating their death by prescribing a lethal dose of narcotics (Quill v. Vacco, 80 F.3d 716 [2d Cir. 1996]). Similarly, in a notorious case involving Dr. Jack Kevorkian, the Michigan Supreme Court ruled that patients have no due process right to physician-assisted suicide (People v. Kevorkian, 447 Mich. 436, 527 N. W. 2d 714 [1994]).
In the Cruzan decision, the manner in which the Supreme Court recognized a qualified right to die reflects the Enlightenment tradition of secular natural law. Where Locke inferred the inalienable rights of life, liberty, and property from observing human behavior, the Supreme Court said in Cruzan that "a Constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions."
For example, in Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643 (1905), the Supreme Court protected the constitutional right of a person to decline a smallpox vaccination that was required by state law. In Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990), the Court ruled that the liberty interest guaranteed by the Due Process Clauses prohibits the government from compelling prisoners to take antipsychotic drugs. These cases, as well as others, the Supreme Court reasoned in Cruzan, establish that all U.S. citizens have a general right to refuse unwanted medical treatment, which includes the specific right of certain mentally incompetent and terminally ill persons to hasten their death.
Historical Natural Law
Another school of natural law is known as historical natural law. According to this school, law must be made to conform with the well-established, but unwritten, customs, traditions, and experiences that have evolved over the course of history. Historical natural law has played an integral role in the development of the Anglo-American system of justice. When King James I attempted to assert the absolute power of the British monarchy during the seventeenth century, for example, English jurist Sir Edward Coke argued that the sovereignty of the crown was limited by the ancient liberties of the English people, immemorial custom, and the rights prescribed by Magna Charta in 1215.
Magna Charta also laid the cornerstone for many U.S. constitutional liberties. The Supreme Court has traced the origins of grand juries, petit juries, and the writ of habeas corpus to Magna Charta. The Eighth Amendment proportionality analysis, which requires that criminal sanctions bear some reasonable relationship to the seriousness of the offense, was foreshadowed by Magna Charta's prohibition of excessive fines (Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 [1983]). The concept of due process was inherited from the requirement in Magna Charta that all legal proceedings comport with the "law of the land" (In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 [1970]).
Due process of law, the Supreme Court has observed, contains both procedural and historical aspects that tend to converge in criminal cases (Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 [1952]). Procedurally, due process guarantees criminal defendants a fair trial. Historically, due process guarantees that no defendant may be convicted of a crime unless the government can prove his or her guilt beyond a reasonable doubt. Although the reasonable doubt standard can be found nowhere in the express language of the Constitution, the Supreme Court has said that the demand for a higher degree of persuasion in criminal cases has been repeatedly expressed since "ancient times" through the common-law tradition and is now "embodied in the Constitution" (In re Winship).
The legacy of the trial of John Peter Zenger, 17 Howell's State Trials 675, further illustrates the symbiotic relationship between history and the law. Zenger, the publisher of the New York Weekly Journal, was charged with libeling the governor of New York in 1735. At trial Zenger admitted that he had published the allegedly harmful article but argued that the article was not libelous because it contained no inaccurate statements. However, truth was not a defense to libel actions in the American colonies. Despite Zenger's admission of harmful publication, and lack of a cognizable legal defense, the jury acquitted him.
The Zenger acquittal spawned two ideas that have become entrenched in U.S. jurisprudence. First, the acquittal gave birth to the idea that truth should be a defense to accusations of libel. This defense received constitutional protection under the First Amendment in New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). The Supreme Court has described the Zenger trial as "the earliest and most famous American experience with freedom of the press" (McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S. Ct. 1511, 131 L. Ed. 2d 426, [1995]).
The Zenger trial is also the progenitor of jury nullification, which is the power of a jury, as the conscience of the community, to acquit defendants against whom there is overwhelming evidence of guilt in order to challenge a specific law, prevent oppression, or otherwise achieve justice. For example, the Zenger jurors issued an acquittal despite what amounted to a confession by the defendant in open court. Some observers have compared the Zenger trial to the trial of O. J. Simpson, where the former football star was acquitted of a double homicide notwithstanding DNA evidence linking him to the crimes. According to these observers, Johnnie Cochran, defense attorney for Simpson, implored the jurors to ignore the evidence against his client and render a verdict that would send a message denouncing police corruption, perjury, and racism.
All three schools of natural law have influenced the development of U.S. law from colonial times to the present day. In many ways the creation and ratification of the Constitution replaced Scripture and religion as the ultimate source of law in the United States. The federal Constitution makes the people the fundamental foundation of authority in the U.S. system of government. Many of the Framers characterized the Constitution as containing "sacred and inviolate" truths. In the same vein, Thomas Paine described the Constitution as a "political Bible."
In 1728 many Americans understood that the common law encompassed the Law of Nature, the Law of Reason, and the Revealed Law of God, which are equally binding at all times, in all places, and to all persons. The law of history could have been added to this litany. Between 1776 and 1784, eleven of the original thirteen states made some allowance for the adoption of the English common law. One federal court said that the Constitution "did not create any new rights to life, liberty or due process. These rights had existed for Englishmen since Magna Charta. The Declaration of Independence . . merely declared and established these rights for the American colonies" (Screven County v. Brier Creek Hunting & Fishing Club, 202 F. 2d 369 [5th Cir. 1953]). Thus, natural law in the United States may be best understood as the integration of history, secular reason, and divine inspiration.
See: Dred Scott v. Sandford; abortion; Griswold v. Connecticut; libel and slander; New York Times v. Sullivan; Constitution of the United States; jurisprudence.