Gavin Howe
The higher law tradition of constitutional development is a concept that asserts that the laws governing people's lives should embody essential and unchanging justice. This idea, which has its roots in Western European thought from the classical world to the Middle Ages, was later brought to America and integrated into the US system of government and the American Constitution. The higher law concept is based on the belief in inalienable rights and natural justice, which take precedence over all other laws and cannot be taken away by governments. This tradition has played a significant role in American constitutional law, with lawyers often invoking it when challenging the constitutionality of a law.
| Characteristics | Values |
|---|---|
| Connecting Western European experience from the classical world, the Middle Ages, and the seventeenth-century thought of Coke and Locke | Natural law, Christian theology, and secular individualism |
| Aggressive laissez-faire constitutionalism | Natural law, evolution, and Social Darwinism |
| The idea of a "higher law" | Essential and unchanging justice |
| The "higher law" of the United States | Inalienable rights, individual rights, and natural rights |
| Unwritten higher law | Natural law and customary common law procedures |
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What You'll Learn
The 'higher law' background of American Constitutional Law
The "Higher Law Background" of American Constitutional Law is a concept that connects the Western European experience from the classical world, the Middle Ages, and the 17th-century thought of Coke and Locke to the American founding. It outlines the tradition behind the "higher law" in the United States, providing historical context for the political philosophy of the Declaration of Independence and the Constitution. The idea of a "higher law" implies that there are certain basic rules that take precedence over all other laws.
The concept of "higher law" or natural law has its roots in ancient Stoic philosophy, which was later integrated with Christian theology by medieval scholastics. This natural law tradition provided the intellectual foundation for the American colonists' assertion of "certain inalienable rights" in the Declaration of Independence. Thinkers like Aristotle, Cicero, and Locke insisted that the laws should embody "essential and unchanging justice." This idea of natural law was further developed by Enlightenment philosophers, who asserted that individuals possess certain rights, such as freedom of worship, freedom of expression, property rights, and protection against unfair punishment, that governments cannot take away.
In the American context, the "higher law" tradition has been used to argue that if a law is deemed bad, it must be unconstitutional. American lawyers often turn to this ancient tradition of unwritten higher law when no written constitutional provision exists to support their argument. This tradition has played a significant role in shaping American constitutional law, with cases like Taylor v. Porter (New York, 1843) and Budd v. State (New York, 1889) reflecting the implementation of higher law notions.
The "Higher Law Background" of American Constitutional Law, as presented by Edward S. Corwin, provides valuable insights into the development and understanding of the concept of "higher law" during the American Revolutionary period. It demonstrates how the ideal of higher law influenced the creation of the American Constitution, contributing to the unique character of American constitutionalism and its emphasis on basic rules and institutional controls.
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The role of natural law in higher law tradition
The "higher law tradition" is a term used to describe the American constitutional law tradition, which has its roots in Western European thought from the classical world, the Middle Ages, and the seventeenth century. The idea of "higher law" or natural law has played a significant role in the development of this tradition.
Natural law theory in ethics asserts that certain rights and moral values are inherent in human nature and can be understood universally, independent of enacted laws or societal norms. In jurisprudence, natural law holds that there are objective legal standards based on morality that underpin the creation, interpretation, and application of human-made laws. This view contrasts with legal positivism, which emphasises that laws are human-made rules that are not necessarily connected to moral principles.
The ancient Stoics, including Cicero, are often credited with developing the concept of natural law, which they saw as "right reason, harmonious, diffused among all, constant, and eternal." This idea was later integrated with Christian theology by medieval scholastics like Thomas Aquinas, who distinguished between eternal law, natural law, human law, and divine law. For Aquinas, natural law was a part of God's divine providence and constituted the principles of practical rationality by which human actions could be judged.
The natural law tradition played a significant role in the intellectual background of the American colonists' assertion of "certain inalienable rights" in the Declaration of Independence. When no written constitutional provision exists to undermine a law under attack, American lawyers have often turned to the ancient tradition of unwritten higher law or natural law for support. This tradition continued to influence the interpretation of constitutional provisions and the development of concepts such as substantive due process in American constitutional law.
In conclusion, the natural law tradition has played a significant role in the higher law tradition of constitutional development by providing a moral and philosophical foundation for law and influencing the interpretation and application of legal principles over time. It has shaped the understanding of rights, justice, and the role of law in society, contributing to the unique character of the American constitutional law tradition.
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The influence of Western European thought
The "Higher Law" tradition of constitutional development in the United States is deeply rooted in Western European thought, drawing on ideas from the classical world, the Middle Ages, and the Enlightenment. This intellectual tradition holds that laws should embody "essential and unchanging justice," as described by ancient philosophers such as Cicero and Seneca, and later Christian scholars like St. Thomas Aquinas.
During the American Revolutionary period, the concept of "higher law" was influential in shaping the country's political philosophy and the Declaration of Independence. The natural law tradition, integrated with Christian theology by medieval scholastics, provided the intellectual foundation for the assertion of "certain inalienable rights" in the Declaration. This tradition views law as based on universal moral principles rather than arbitrary rules, and it played a significant role in the development of American constitutional law.
The Enlightenment, a pivotal era in Western European intellectual history, also left its mark on the "Higher Law" tradition. The Enlightenment's emphasis on reason and individualism influenced the development of secular and individualistic interpretations of natural law. This shift was driven by Enlightenment natural rights theorists, who reinterpreted natural law in a way that emphasised individual freedoms and rights.
In the context of American constitutional law, the "Higher Law" tradition has been used to challenge legislation deemed inconsistent with fundamental legal principles. In cases such as Budd v. State (New York, 1889) and Davidson v. New Orleans (1878), courts invoked the notion of evolution and Social Darwinism to argue that legal principles should adapt and progress. This "aggressive laissez-faire constitutionalism" reflected a belief that laws should evolve to align with societal progress and a fuller understanding of political economy.
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The impact of higher law on the American Revolution
The "higher law" tradition in the context of American constitutional development refers to the ancient tradition of unwritten higher law that American lawyers have often turned to when no written constitutional provision could be interpreted to undermine a law under attack. This tradition holds that the laws by which people live can and should be the "embodiment of essential and unchanging justice."
The impact of this tradition on the American Revolution was significant. The notion of "higher law" provided the intellectual background for the American colonists' assertion of "certain inalienable rights" in the Declaration of Independence. The colonists' belief in natural rights and their understanding of higher law led them to challenge the British Crown's authority and assert their rights to self-governance and independence.
For example, in 1700, an American argued against a Parliamentary bill that would deprive Connecticut of its "judicial autonomy," seeing it as an attempt to undermine the very nature of colonial government. This demonstrates an early recognition of the concept of "higher law" and the belief that certain laws or principles were superior to the Crown's authority.
The idea of "higher law" also influenced the development of American constitutional law during and after the Revolution. The courts and commentators often echoed the language of natural law, asserting that fundamental legal principles evolved and that the courts should accommodate this evolution. This notion of legal evolution supported the doctrines of Social Darwinism and the idea that the law should be interpreted through a gradual process of judicial inclusion and exclusion.
Additionally, the "higher law" tradition contributed to the creation of the American Constitution. The Founding Fathers, influenced by the leading thinkers of the time, incorporated the ideal of "higher law" into the Constitution, emphasizing the equal rights of citizens and popular sovereignty. As Jay noted, the Constitution was attentive to the equal rights of the people, and sovereignty rested with the people, not with the Crown.
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The evolution of fundamental legal principles
The ancient Stoics, including Cicero, believed in "right reason, harmonious, diffused among all, constant, eternal," which formed the basis for natural law. This concept was later integrated with Christian theology by medieval scholastics and was influential during the American Revolutionary period. Leading thinkers such as Demosthenes, Sophocles, Aristotle, Cicero, Locke, and others, advocated for laws that represented unchanging justice, laying the foundation for the notion of higher law.
The theory of natural law gained prominence during the Enlightenment, with thinkers like John Locke championing the idea of "inalienable rights" inherent to individuals. These rights, including freedom of worship, expression, property ownership, and protection against unfair punishment, were considered natural and above governmental authority. The federal Constitution, drafted in 1787, and its subsequent Bill of Rights (ratified in 1791), enshrined these principles, establishing a higher status for rules defining the organisation of government and limiting its powers.
The "Higher Law" background of American Constitutional Law, as outlined by Edward S. Corwin, highlights the connection between Western European thought and the American political philosophy encapsulated in the Declaration of Independence and the Constitution. It addresses the survival and transformation of the idea of higher law, as well as its integration into the American system of government.
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Frequently asked questions
The Higher Law Tradition is a concept in American constitutional law that asserts that laws should embody "essential and unchanging justice". It is based on the ancient tradition of unwritten higher law or natural law, which holds that certain rights are inalienable and inherent to individuals, rather than granted by governments.
The concept of a "higher law" has its roots in Western European thought, dating back to ancient Greek philosophers like Aristotle, Roman senators like Cicero, and medieval thinkers. The idea was further developed by early modern thinkers like John Locke, who championed the notion of natural law and inalienable rights.
The Higher Law Tradition provided the intellectual foundation for the American colonists' assertion of "certain inalienable rights" in the Declaration of Independence. It also shaped the creation of the American Constitution, with its emphasis on limited government and the protection of individual rights.
Corwin's work is significant as it provides a comprehensive outline of the tradition behind the "higher law" in the United States and places the political philosophy of the Declaration of Independence and the Constitution in historical context. It highlights the connections between Western European thought and the American founding, demonstrating how America is deeply rooted in Western civilization.
The Higher Law Tradition has been a part of an ongoing debate and conflict in American constitutional law. It has influenced the interpretation of vague constitutional provisions, such as "due process," to include notions of natural justice. This has resulted in the concept of "substantive due process," which has been a vehicle for implementing higher law notions in American constitutional law.
