Secular Law – Introduction
Secular Law (Secular Humanist legal theory) is founded on the two basic assumptions that dictate all aspects of this worldview: 1) God does not exist; and 2) human beings are perfectible, evolving animals. Frederick Edwords puts it this way, “As with laws, so with morals: human beings seem quite capable of making, on their own, sensible and sensitive decisions affecting conduct.”1 Julian Huxley reinforces this conviction when he says, “Our present knowledge indeed forces us to the view that the world of reality is evolution—a single process of self transformation.”2 Our focus, according to this view, must be on creating an environment that encourages further evolutionary progress.
Secular Humanists also believe (as we saw in the sociology section) that the environment is the cause of any evil we do. Perfecting the environment will allow us to learn to choose consistently that which is morally correct. Secular Humanists see law as a tool that can manipulate our ability toward this end.
Secular Law – If God Does Not Exist
The core of secular law is simple. In denying the existence of God, Secular Humanists also deny the existence of an absolute moral code that must be obeyed. They view God’s commands (traditionally understood to be the absolute moral order) as harmful fiction. According to Paul Kurtz, “The traditional supernaturalistic moral commandments are especially repressive of our human needs. They are immoral insofar as they foster illusions about human destiny and suppress vital inclinations [i.e. in the sexual arena].”3
Secular Humanists believe that we are capable of devising our own moral code in regard to both behavior and law. Frederick Edwords notes, “It should be obvious from the most casual observation that human beings are quite capable of setting up systems and then operating within them.”4 Thus, the Secular Humanist system of law requires a human-centered ethics that we discover in the nature of our relations with each other, rather than in the nature of God. Morality is also an evolving process. V.M. Tarkunde explains, “Moral behavior of a rudimentary type is found in the higher animals and can be traced even to lower forms of life. This fact is enough to establish that the source of morality is biological and not theological.”5
Secular Law – Humanist Positive Law
Secular law approaches legal theory from a belief in human reason known as legal positivism. In its strict sense, legal positivism claims that the state is the ultimate authority for creating law. Because God is a myth and natural law a legal fiction, we must rely on human reason to discern what is legal. Those who determine the law are those who are in power.
Humanism’s rejection of natural law leads to the understanding that humans are therefore responsible for the creation of all laws. According to Max Hocutt, “Human beings may, and do, make up their own rules. All existing moralities and all existing laws are human artifacts, products of human society, social conventions.”6 Government, then, is the ultimate source of legal truth since the state, not individuals, enacts laws.
The state thus becomes the source of human rights, which are no longer called natural rights but constitutional rights. McKown explains the difference: “Natural human rights exist only among human beings; that is, one holds natural rights only against other natural rights holders. Maintaining this point, however, begs the question of natural rights and leaves us wondering how such rights differ from constitutional or legal rights.”7 From this, McKown concludes that legal rights are all that exist. He says: “Our eyes and our idealism ought to be focused, rather, on the only kind of rights that can be realized: legal rights...”8
A system of legal positivism results in an arbitrary legal code. When legal positivism is combined with evolution, Humanist legal theory grows capricious. Kurtz describes the result: “Laws...provide us only with general guides for behavior; how they work out depends upon the context.”9
Roscoe Pound explains the unanswerable dilemma of grounding laws in nothing but the state and yet convincing citizens to obey them without question: “From the time when lawgivers gave over the attempt to maintain the general security by belief that particular bodies of human law had been divinely dictated or divinely revealed or divinely sanctioned, they have had to wrestle with the problem of proving to mankind that the law was something fixed and settled, whose authority was beyond question, while at the same time enabling it to make constant readjustments and occasional radical changes under the pressure of infinite and variable human desires.”10 The real problem created by Humanist legal theory, however, is not the potential disobedience of its citizens; rather, it is the government’s potential to take advantage of its position as the ultimate source of legal truth. Tibor Machan, recognizing the danger, says, “If there were no moral, humanistic foundations for the legal rights we ought to have, we would face the prospect of governments that exist without any limits, without any standards by which to ascertain whether or not they are just and morally legitimate.”11 Thus Secular Humanist positive law creates a state with the authority of a god, wielding all power and placing individuals at its mercy.12
Secular Law – Conclusion
In order to be consistent with their worldview (that God does not exist and that humans are mere evolving perfectible animals), Secular Humanists must embrace a legal theory that is both atheistic and evolving. Their legal system must also deny any external or supernatural source of ethics, rights, or laws, including natural law and natural rights. Secular Humanists, therefore, cannot sincerely embrace statements such as, “We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness—That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.”13
To fit their evolutionary beliefs, some Secular Humanists simply redefine natural law as an inner guide. Yet to maintain consistency between their worldview and their legal theory, they must fully embrace legal positivism, which centers the creation of law within the state. Alistair Hannay explains the dilemma of a theory of law that rejects the Lawgiver: “Humanists naturally want to believe that we have moral obligations, duties in some virtually legalistic sense but not the product of arbitrary legislation, to one another. But on what can the belief be based?”14 Because its base is evolutionary theory (and the whims of the state), legal positivism results in an arbitrary legal system that discourages obedience and grants the state virtually unlimited authority.
In stark contrast to Hannay’s dilemma, John Adams, the second president of the United States, says this about our legal foundation: “May that Being who is supreme over all, the Patron of Order, the Fountain of Justice, and the Protector in all ages of the world of virtuous liberty, continue His blessing upon this nation and its Government and give it all possible success and duration consistent with the ends of His providence.”15 Humanist law, therefore, faces a bitter choice: an inconsistent legal theory that embraces natural law, or a consistent legal positivism with its accompanying problems.