From Dr A. Grech

Those involved in the ongoing debate about divorce using the natural law argument run into a lot of difficulties. First of all, natural law is as “natural” as common sense is common, which, it has been said, is the least common of all the senses. In a chaotic and relativistic universe, those who stand by absolute categories are invariably those whose position becomes untenable.

Natural law is not the same for Muslims and Christians, or for any other religious belief, simply because to the extent that it is innate it becomes embedded into some sort of religious conviction. If it were not, why is there such a difference in approach?

And as regards marriage, the so-called “natural law” may account for lot of things, but what does it say where a man and a woman cannot together make a marriage work? Does it say it is a sacrament and therefore to be regulated by canon law or, and especially in the case of non-believers, just another contract to be ruled by accepted norms of the law of contract?

The argument about natural law runs into greater difficulty when one speaks about “natural” or “human” rights. It is not, and cannot, be true that so-called human rights find their source in natural law.

At a time when the illuminists were trying to find an argument to put human rights beyond the reach of monarchs or despots who were also at the time the

legislators, they described human rights as being

universal, inalienable and inherent, and a consequence of natural law.

But the notion of natural law, like the notion of “divine law” before it, could hardly stand the test of history and practice, and explain how it meant different things to different people in different times and circumstances. For example, does the notion of a marriage bond according to natural law mean the same to a Christian as it does to a Muslim? Inasmuch as it is often stated that “human rights” – as conceived in the west – are an imposition of western culture and a sort of cultural colonialism on the rest of mankind, so is any preconceived idea of natural law and natural rights as we understand them in the west a proposition taken for

granted.

Legal positivism was a reaction against the futility of the natural law stance. Judges and administrators had to be tied down by positive legislation and their latitude of discretion reduced as much as possible to avoid travesties and injustices. It was an attempt to put in clear terms how those in a position to decide should operate vis-à-vis the ordinary citizens, as well as an admission that those who judge are, after all, human beings subject, if not prone, to error. In a world where everybody is subject to error, the greatest anomaly is certainly where somebody claims to be infallible. This, the Catholic Church unfortunately does through its head, the Pontifex Maximus.

Legal positivism through its main exponent, Hans Kelsen, reached its extreme in the form of Nazi Germany. That is why humanity had to find another basis for human rights, away from the trimmings of natural (or divine) or positive law. The United Nations, together with other regional agencies, were able to put the matter of human rights beyond municipal law by promulgating international instruments on human rights, thereby setting international standards with which member states had to comply.

The Universal Declaration on Human Rights 1948 is said to be the bible of human rights not because it embodies natural law, but because it was adopted unanimously by the international community, and member states are, at least in principle, bound to abide by it – a far cry indeed from the vicissitudes of

natural law.

Alfred Grech

GOZO