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“THE ETERNAL NATURAL MORAL LAW AND ITS PROTECTION OF THE UNDOCUMENTED WORKER”.
EDUARDO SANDOVAL, SAN FRANCISCO MAPA, MARCH 28, 2006.
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STATEMENT OF THE CASE There is a heated and volatile national debate on the undocumented Mexican worker who “illegally” crosses our southern border with Mexico and “illegally” enters the United States to secure employment in our Country.
A recent Time article (February 6, 2006) estimates 6.3 million Mexican undocumented workers live in the United States, and that every year another 485,000 arrive.
Currently, Congress is considering legislation which would criminalize undocumented entry into our Country: that is, instead of the Federal Immigration Service apprehending and deporting the undocumented, the pending congressional legislation would have the effect of imposing criminal penalties on the undocumented.
It is the purpose of this paper to trace the beginnings and development of what we choose to identify as the eternal natural moral law and to show how this law today protects the undocumented from being branded “illegal” or “law breakers” or “criminals”.
ISSUE The natural moral law is an eternal reality which has its source and origin in divine providence and which immediately regulates, at critical historical junctures, the justice in the civil affairs of men and women, and today this law protects the undocumented worker in his/her inclination to find a gainful work in the Unites States by crossing the U.S.—Mexico border without legal documents; and this protection means the bona fide undocumented worker does not have a moral obligation to honor the U.S. border law because the natural moral law is superior to positive law, the U.S. border ordinance.
ARGUMENT Some 2500 years ago, the Greeks introduced the world to the eternal natural moral law through the medium of a Greek tragedy, Antigone.
Sophocles, the Greek dramatist, authored Antigone in the fifth century B.C. Antigone tells a story of a sibling rivalry turned deadly with her two brothers locked in mortal combat over which one would rule the Greek city of Thebes. The brothers slew each other, and the victorious general, Creon, issued a public proclamation honoring one of Antigone’s brothers, Eteocles, with a proper burial while the other brother, Polynices, would receive no burial, could not be mourned, but instead his corpse would be left in the public square for animals to feast on.
In disobedience to Creon’s public proclamation forbidding her brother’s burial, Antigone gives Polynices a burial, she is discovered, arrested and brought before Creon.
Creon demands of Antigone if she knew of his law prohibiting the burial of Polynices and if she disobeyed it. The following exchange between Antigone and Creon takes place:
“ANTIGONE I knew. How could I not? It was public knowledge.
CREON And yet you dared to break this law?
ANTIGONE Yes; for it was not Zeus who made this proclamation
to me; nor did Justice who dwells with the gods below lay
down these laws for mankind. Nor did I think that your
human proclamation had sufficient power to override the
unwritten, unassailable laws of the gods. They live not just
yesterday and today, but forever, and no-one knows when they
first came to light. I was not going to incur punishment from
the gods, not in fear of the will of a man. I knew I must die—
how could I not?—even if you had not made your
proclamation. But if I am to die before my time, then I call
that a gain; for someone who lives in the midst of evils as I do,
how could it not be an advantage to die? So for me to meet this
fate is no pain at all. But if I had allowed the dead son of my
mother to remain unburied, then I would have suffered; as it
is, I feel no pain. If I now seem to you to have acted foolishly,
perhaps I am convicted of folly by a fool.” (emphasis added.)
Thus, Antigone was driven by the “unwritten, unassailable laws of the gods” to give Polynices an honorable burial, in violation of Creon’s positive law.
History and Western Civilization regard Antigone, who was buried alive by Creon for disobedience, as a true heroine because in giving Polynices a burial, she honored, and acted in conformance with, a higher unwritten law—a law superior to Creon’s man-made, positive law.
Aristotle (387-321 B.C.), whose intellectual and philosophical preeminence is acknowledged by Western and Islamic scholars alike, finds favor in Antigone’s actions because Antigone, Aristotle states, “appeals to what is just by nature” notwithstanding the burial was forbidden by the ruler. Ethics 5.7.1.
Further, in his Rhetoric, commenting again on Antigone’s defiance of Creon’s law, Aristotle states:
“For there is something of which we all have an inkling, being a natural universal right and wrong, even if there should be no community between the two parties nor contract, to which Sophocles’s Antigone seems to be referring, in saying that it is just, though forbidden, to bury Polynices, as this is naturally right”, (emphasis added.) Rhetoric 1.13.
Aristotle’s fellow Greek, Zeno (366-265 B.C.) founded Greek Stoicism which advocated a universal and immutable moral order that governed human beings, nature and the rest of the universe. Stoicism championed self-reliance and insisted that men and women display right reason in accord with nature to guarantee justice in the human community.
After Rome conquered Greece in 146 B.C., Stoicism made its way to Rome where it profoundly influenced the Roman elite including Cicero, politician, philosopher and perhaps Roman’s greatest orator and a contemporary of Julius Caesar.
Cicero authored works on political and moral philosophy including The Republic and The Laws.
For Cicero, the “whole of nature is ruled by the immortal gods”, and we, human beings, enjoy a remarkable status because of the powers of our reason, reflection and judgment by which human beings participate in divinity and therefore participate in a “primordial partnership in reason between man and God”.
Cicero on right reason, law and justice states:
“But those who share reason also share right reason; and since that is law, we men must also be thought of as partners with the gods in law. Furthermore, those who share law share justice. Those who share all these things must be regarded as belonging to the same State; and much the more so if they obey the same powers and authorities. And they do in fact obey this celestial system, the divine mind, and the all powerful God. Hence this whole universe must be thought of as a single community shared by gods and men.” The Laws, Book 1, 16-35.
Hence, for Cicero, our rationality is God-like, and is based on our human nature, and our human nature in concert with right reason institutes law which commands and forbids and establishes justice.
Finally, Cicero believed that justice is not a matter of opinion but is predicated on our human nature; “it is insane to suppose that these things are matters of opinion and not grounded in nature”. The Laws, Book 1, 45.
A little more than a century after Cicero’s death in 43 B.C., Paul of Tarsus, a convert from Pharisaic Judaism to Christianity, and who is hailed by all of Christendom as the Apostle of the Gentiles, exhorted Christians and Gentiles alike that:
“For it is not those who hear the law who are just in the sight of God; rather, those who observe the law will be justified. For when the gentiles who do not have a law by nature observe the prescriptions of the law, they are a law for themselves even though they do not have a law. They show that the demands of the law are written in their hearts…”(emphasis added) Romans 2: 13-15.
This moral exhortation by Paul of Taurus that there is a law written in our hearts resounds as powerfully today as it did when Paul wrote Romans in about 56-58 A.D.
Following Cicero and Paul of Tarsus, St. Augustine of Hippo (354-430) also articulated his thoughts on the natural moral law in his historic treatise The City of God.
It would be the responsibility of St. Thomas Aquinas (1225-1274) of the Dominican Order and Church theologian to fuse Aristotle’s philosophy and Roman Catholic theology and articulate in his Summa Theologica a comprehensive exposition on the nature of law, including the natural law.
First, for Aquinas, the subject of law is distinguished by four kinds of law: eternal law, divine law, nature law and human law; and law is defined as “an ordinance of reason made for the common good by the public personage who has charge of the community, and promulgated”. Second, for Aquinas’s definition of the natural law it, is necessary to cite from the Summa Theologica as follows:
“ Now among all others, the rational creature is subject to Divine providence in the most excellent way, and so far as it partakes of a share of providence, by being provident both for itself and for others. Wherefore it has a share of Eternal Reason, whereby it has a natural inclination to its proper act and end: and this participation of the eternal law in the rational creature is called the natural law.” (emphasis added) S.T. I, II, Q. 91-ART. 2.
According to Aquinas, then, the natural law is promulgated by God who instills this law into the mind of men and women so that they may know it naturally and take actions proper to their nature—their humanity.
The Aquinas doctrine on natural law cannot be understood without considering the Aquinas doctrine on the nature of man which holds that man a rational creature who has natural inclinations instilled in him by divine providence to fully realize human potential and happiness.
Aquinas delineates five basic inclinations of human nature:
<!--[if !supportLists]-->(1) To seek good and avoid evil; (2) Preserve himself in existence;(3) Preserve the species;(4) To live in community with others;(5) To properly use his intellect and will. Rice, “50 Questions on the Natural Law”, 50-53.
In the final portion of this argument we will see how the Aquinas “inclinations” of human nature play a fundamental and significant role in the decision making of the undocumented as they decide to cross the U.S.—Mexico border to secure employment in the United States and contribute to the common good. However, at this point, it is admitted that the common good is not served when an undocumented worker takes a job away from a U.S. citizen.
Subsequent to Thomas Aquinas and The Reformation, the next great natural law thinker is Hugo
Grotius, (1583-1645) a Dutch Armenian Calvinist. Grotius’s masterpiece, The Law of War and Peace (1625) uses the doctrine of natural law as a foundation for the Grotius conception of an international legal system.
Grotius was so convinced of the eternal reality of the natural law that he asserted unequivocally “the natural law is so immutable that it cannot be changed by God himself”.
In the late 17th Century, John Locke, the English Philosopher, who had a profound influence on some of the Founding Fathers of the American republic, published his work, Second Treatise on Civil Government (1691) and used the doctrine of natural law to focus on the “natural right of each individual to life, liberty and property”
Locke’s theory of natural rights influenced Thomas Jefferson, the author of our Declaration of Independence, to declare that “man is endowed by his creator with certain inalienable rights…”.
Another Founding Father, Alexander Hamilton, always maintained a belief in a divinely ordained eternal law, and held as part of his political philosophy that:
“No tribunal, no codes, no systems can repeal or impair this law of God, for by his eternal laws it is inherent in the nature of things”. The Papers of Alexander Hamilton (1961) Vol. I, 87-47.
Alexander Hamilton’s belief in the “divinely ordained eternal law” finds resonance in a 1961 United States Supreme Court decision, McGowan v. Maryland, 366 U.S. 420, 562, in the dissenting opinion of Justice William O. Douglas:
“The institutions of our society are founded on the belief that there is an authority higher than the authority of the State; that there is a moral law which the State is powerless to alter; that the individual possesses rights, conferred by the creator, which government must respect”. (emphasis added.)
In the twentieth century, two of the leading exponents of natural law doctrine are Jacques Maritian (1882-1973), a native of France, philosopher and Roman Catholic, and C.S. Lewis (1889-1963), a native of Ireland, an Anglican and professor of medical and renaissance literature, Cambridge, England.
Maritian amplified on the theory of Thomas Aquinas’ natural law by articulating insight to the Aquinas notion of the “inclinations of the human person”. It is necessary to quote directly from Maritian’s Natural Law Reflections On Theory and Practice, 38:
“I have said that natural law is unwritten law: it is unwritten law in the deepest sense of that expression because our knowledge of it is no work of free conceptualization but results from a conceptualization bound to the essential inclinations of being, of living nature, and of reason which are at work in man, because it develops a proportion to the degree of moral experience and self-reflection, and of social experience also, of which man is capable in various ages of his history. Thus it is said in ancient and mediaeval times attention was paid, in natural law, to the obligations of man more than to his rights. The proper achievement –a great achievement indeed—of the XVIIITH Century has been to bring out in full light the rights of man as also required by natural law. That discovery was essentially due to a progress in moral and social experience, through which root inclinations of human nature as regards the rights of the human person were set free, and consequently, knowledge through inclination with regard to them developed.”(emphasis added.)
Therefore, throughout history inclinations of human nature are subject to growth and amplification for the ultimate purpose of the full realization of human potential in society.
Further, Maritian also spoke to the conflict of the positive law and the natural law. A positive law binds us in conscience, as it obliges by virtue of the natural law. Martian also held that an unjust law cannot bind by virtue of the natural law. Why? Listen to Maritian:
“It is inconceivable that an unjust law should oblige by virtue of the Natural Law, by virtue of regulations which go back to the Eternal Law and which are in us a participation in that Law. It is essential to a philosophy such as that of St. Thomas to regard an unjust law as not obligatory. (emphasis added.) Natural Law, 53.
In the twentieth century, C.S. Lewis, a converted atheist, wrote perhaps the finest apologetic or defense of the natural law in his book entitled, Abolition Of Man. C.S. Lewis refers to the eternal natural moral law as the Tao. C.S. Lewis describes the nature of the Tao as follows:
“It is the sole source of all value judgments. If it is rejected, all value is rejected. If any value is retained, it is retained. The effort to refute it and raise a new system of value in its place is self-contradictory. There never has been, and never will be, a radically new judgement of value in the history of the world.”(emphasis added.) Abolition of Man, 43.
For C.S. Lewis, then, the Tao is an eternal moral reality. The Tao is Antigone’s moral law which supports her defiance of Creon’s man made, positive law; the Tao is Cicero’s universal moral order in which men and women exercise right reason in accordance with nature to achieve justice; the Tao is “the demands of the law written in their hearts” as proclaimed by Paul of Taurus; the Tao is “the moral law which the State is powerless to alter” as pronounced by Supreme Court Justice William O. Douglas; the Tao is “eternal law of God inherent in the nature of things” advocated by Alexander Hamilton; the Tao is the “rational creature’s participation in the eternal law which is called natural law” as espoused by Thomas Aquinas.
CONCLUSION
Today, the heroic and indomitable spirit of Antigone lives in the heart and soul of everyone of the 6.3 million undocumented Mexican workers living and working in our Country and in the hearts and souls of 485,000 undocumented workers who will arrive this year to work and live among us.
These undocumented workers are working and living in our country because they were, and are, compelled by the “natural inclination” of their persons to feed themselves and their families by crossing the U.S. Mexican border without papers to find work and live with us.
This “natural inclination” is imbedded in the minds and hearts of the undocumented by divine providence through the eternal natural moral law, and by acting faithfully in conformance with this Law, they find work and contribute to the common good of our communities and country. In this, the undocumented satisfy the demands of natural justice: their border crossing without papers is no violation or transgression of the eternal natural moral law—and if the natural moral law is not violated, neither is the man-made border law. Clearly, the bona fide undocumented worker is not an “illegal” or a “law breaker” or a “criminal”.
The United States of America, all of our peoples, the Congress of the United States, the president of our Country and the representatives of the Republic of Mexico must meet and confer under the sacrosanct standard of justice of the eternal natural moral law and work arduously and successfully to achieve justice for the undocumented for the common good of all concerned.
Eduardo Sandoval, San Francisco MAPA
March 28, 2006
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