Natual law: twice I named it in this blog. But: how does it stand in relation to positive law?
That's the nth million dollar question.
I don't have millions of dollars, so I will try to answer it for myself... and for those who happen to read me.
When in the 6th century AC the emperor Justinian brought to completion his Corpus Juris, he threw anathema against those who there to dare to subject it to interpretation.
Luckily, when in the 12th century the Corpus Juris was rediscovered by Bolognese jurists, they didn't obey the proscription of interpretation by the long dead emperor, and quietly went on to inteprete it to adapt to their times.
So it was born the tradition of common law which dominated throuout Europe up to a few century ago. It was all based on jurisprudence, the conjoined work of scholars and judges.
The Corpus Juris gave them some authoritative texts, let's say a positive law, to refer to. Their prudent understanding made it alive in their time.
This raises a question: what is prudent?
But before I try to answer let'me go on with the story.
In England common law based on jurisprudence survived the time of kingly absolutism. In the continent, the consolidation of absolute monarchies led slowly to the widespread codification of law. Law came to be understood from then on almost exclusively as written, statutory law: the product of law making by a state power. The famous separation of powers of the English constitution admired by Montsquieu and source of ispiration for the American founding fathers, doesn't change the fact of the law being thus made a product of the state: sovereign, absolute state.
Coming to America: the founding fathers thought to preserve society by the invasiveness of the state by writing a constitution. But this is a bit like the snake biting its tail. By the sheer fact of its being written, the state becomes the guarantor of society.
Not only, but being written the constituzion need to be intepreted. And this takes us right back to Justinian, and to what he wanted to avoid by proscribing interpretation.
With the famous Roe versus Wade the supreme courte could draw from the constitution the right of women to have, if they wanted, an abortion. Which to my modest view was a juridical monster. Again, the supreme court of Masschussets could declare, in the sentence written by the honorable Justice Catherin Marshall, that equality of human beings extends to the point of effacing any difference between man and woman, thus allowing marriage among all people, neutrally. Should I add what a juridical monster that was? With no regard anymore for the constitution to which it appealed (exspecially considering that it had been written by John Adams, exemplar with his wife Abigail of what marriage is).
There you have the question: written law should preserve from the arbitrariness of judgments. But in spite of all the Justinians of this world written law is unavoidably in need of interpretation. And it can be thus turned into a simple authorization to the (constitutional) judge to make it say what he wants: by asserting that, instead of sticking to the letter of what its original authors meant, he conforms to the "living constitution".
Of course, this happens if the judges lack prudence.
What makes jurisprudence prudent is the capability of interpreting positive law in the light of the understanding it represents of what is constant in human affairs: that which imakes possible to talk of natural law.
But someone objected to me: isn't that precisely what Justice Marshall did?
The answer is no.
And for now I leave it at that. If the reader of this post wants to know why, and asks more about prudence, he will have to wait until next. Hopefully.
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