“Justice being taken away, then, what are kingdoms but great robberies? For what are robberies themselves, but little kingdoms? The band itself is made up of men; it is ruled by the authority of a prince, it is knit together by the pact of the confederacy; the booty is divided by the law agreed on.” (Augustinus, De civitate dei, IV, 4, 1)
During the 19th and 20th century, we have seen countless examples of this statement by Saint Augustine. From the massacre of the family Romanov in Russia to the security camps in Pol Pots Cambodia, governments have reigned with terror over their people. Few people do not seem to have the moral intuition that this is plainly wrong.
As Gustav Radbruch writes in his 1947 article, there are two ways for governments to act unjustly: by breaking their own laws and also by the creation of laws that are unjust in themselves. (Gustav Radbruch, “Die Erneuerung des Rechts,” Die Wandlung. Eine Monatsschrift 2 (1947): 8–16.)
While the modern “Rechtsstaat” (“rule of law”, lit. “state of laws”) has some safeguards against the first kind of injustice – separation of power, appeal systems in courts, etc. – the law positivistic understanding of “law is law” turned out to be utterly powerless against the second kind of injustice. Worse still, the production of unjust laws does not seem to be restricted to totalitarian or authoritative regimes either. Countries like the United States of America or the Republic of South Africa had racial segregation laws in their books (Jim Crow Laws in the U.S.A. from 1865 to 1964/65, Apartheid in S.A. from 1948 to 1990–96).
In the wake of the Second World War and in plain view of the atrocities the Nazi regime had committed, people were longing for justice to be restored, but how can you judge crimes committed by law? The victorious allied powers answered this question by establishing the Nuremberg Tribunal and by charging the Nazi leaders for “CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population […] whether or not in violation of domestic law of the country where perpetrated.” (International Military Tribunal Nuremberg, Trial of the Major War Criminals Before the International Military Tribunal. Nuremberg 11 November 1945 – 1 October 1946, vol. 1, Nuremberg, 1947, 11.) They were enforcing a “law of humanity” that was different and higher than positive law, in other words: natural law. Another example of this is the famous trial of Adolf Eichmann before a court in Jerusalem. Again he was charged with crimes against humanity. (Arendt, Hannah. Eichmann in Jerusalem: A Report on the Banality of Evil. Penguin Classics. New York, N.Y: Penguin Books, 2006.)
In 1948, the general assembly of the United Nations adopted the Universal Declaration of Human Rights (UDHR). This document again speaks of “the inherent dignity and of the equal and inalienable rights of all members of the human family”, and calls for positive law to protect these “natural” laws of humanity. (Universal Declaration of Human Rights, Preamble.) When the Parlamentarischer Rat (the West German constituent assembly) enacted the German constitution in 1949, they referenced the UDHR in article 1 as the foundation of human community, peace and justice. They declared it to be positive law and binding for every civil power. (Grundgesetz für die Bundesrepublik Deutschland, Artikel 1.) In article 20 they declare the executive and judicative branches to be bound by law and justice (“die vollziehende Gewalt und die Rechtsprechung sind an Gesetz und Recht gebunden”, Grundgesetz, Artikel 20.)
Article 20 of the German constitution makes another provision that answers the question of “Who do I appeal to if natural law is broken?”. Naturally, if the government and courts of my country are acting contrary to natural law, I cannot appeal to them, and most of the time, no foreign powers will be fighting an all-out war against my government. In this case, article 20 permits the German people to resist and fight against the unjust government if all other methods have failed. (Grundgesetz, Artikel 20.)
Even Saint Thomas, who otherwise ranks obedience as a special virtue above other virtues and sedition as a mortal sin, allows for civil disobedience in the case of tyranny. He does, however, postulate that all other options to deal with the unjust tyranny have to be exhausted and that the damage done to the common good by the uprising cannot exceed the damage done by the tyrant. (STh II-II 104.2a and STh II-II 42.2) We encounter these ideas again in the three principles of civil disobedience that Mahatma Gandhi followed to end the colonial oppression of India: 1. respect the general rule of law while disobeying the specific unjust law, 2. plead guilty to the violation of the unjust law, and 3. attempt to convert your opponent by demonstrating the justice of your cause. (Nick Gier, “Three Principles of Civil Disobedience,” accessed May 15, 2021, https://www.webpages.uidaho.edu/ngier/civil.htm.) The first two of these principles show respect for the rule of law in general, the third appeals to the practical reason and conscience of the people upholding the unjust law, and therefore for the power of reason to recognise natural law.
This peaceful civil disobedience has had remarkable success in many cases (the end of segregation laws in the U.S.A., colonial oppression in India, the socialist oppression in eastern Germany etc.), but does it mean “that violent conduct (which includes the destruction of lives and properties) is never the answer to an unjust government. However, it is fair for individuals to non-violently protest an oppressive government as argued by Nelson Mandela (post incarceration) and Henry Thoreau” as Timothy Oladehinde Jiboku concludes? (Timothy Oladehinde Jiboku, “Resistance to an Unjust Government: A Case Study of Apartheid in South Africa,” Journal of Contemporary African Philosophy 2021, no. 1 (2021): 6–11.) Can a regime that has “succeeded in turning the legal order on its head, making the wrong and the malevolent the foundation of a new ‘righteousness’” (Amos Elon, “The Excommunication of Hannah Arendt,” in Eichmann in Jerusalem: A Report on the Banality of Evil, Penguin Classics (New York, N.Y: Penguin Books, 2006), xiii.), as the Nazis did in Germany be stopped by peaceful civil disobedience?
There seems to be a practical necessity for natural law, lest we fall into the unjust chaos of totalitarian tyranny, but does that make a good argument for the theoretical truth of it? As Josef Pieper writes, “we cannot philosophise to chase practical goals.” (Josef Pieper, Buchstabier-Übungen: Aufsätze, Reden, Notizen. München: Kösel, 1980, 103.) The goal of philosophy can only be truth, not practical utility. What then is the truth of the natural law? When confronted with unjust positive law, there appears to be an outright need for justice. Can such a need exist if there is nothing to fulfil it? Can a cow need grass if no such thing exists?
For Holm Tetens, this need gives rise to his ‘moral argument’ for the existence of God. It might be worthwhile to follow this thought. (Holm Tetens, Gott Denken: Ein Versuch Über Rationale Theologie, Reclams Universal-Bibliothek, Nr. 19295. Stuttgart: Reclam, 2015.)