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On natural law
> … the rights of the people are never written, or never except as simple declarations of pre-existing rights not written, of which nothing more can be said, than that they exist because they exist.
Natural law is foremost that which excludes alternatives, thus it is a jurispathic standard to which positive law is held; it is thus analogous to the operation of the Supreme Court in striking down law according to the United States Constitution. Yet natural law is not written; it is rather the imaginative environment in which limits are placed on positive law according to the ought and is of it. This entails certain subtle rules of recognition which determine the relevant aspects for and of law. The shifting of these with time is what is entailed in the ‘living constitution.’ These may be explicitly formulated but do not usually operate in this way, tend instead to be unconscious influences as determined by, for lack of a better term, the zeitgeist; it is the moral and spiritual context which determines the shape of these as refracted by the various actors involved. Thus the judge is formed by their culture, by that of the nation and its legal education, etc.
According to the present state of legal culture, the only thing commonly agree to approximate natural law is that of supreme law—i.e., a written substitute for natural law. Yet we see that even the interpretations of this shift according to the obvious presence of a natural law inherent to society as a whole. This has always been the meaning of natural law, as those who seek to pin it down are thus attempting to nail to a wall the sands of time. The whole flows ineluctably through our fingers; and even if any were collected, then we would find immediately that it is dead—time is not the sand itself but the motion of its falling. If we turn then instead to the pattern of this movement, then we find that the whole is constituted according to the dialectic whereby all ideality is reproduced; it is, moreover, constantly negotiated between the various parties—that the dynamics of this contest thereby determine the tendency of its movement.
We cannot, therefore, say that natural law is no more; at most we might say that it has been somewhat impoverished by its being written down. This has constrained the form by making this the centre of legal rhetoric and limiting argument to the lines contained therein. The total effect of this is as a straitjacket on political debate, whereby the whole is forced to conform to a basic structure determined under entirely different circumstances. Written law cannot grow smoothly with the culture as a whole but instead contains in itself lines from which the actuality of unfolding events may diverge. The result is that the discourse of this cultural gravitates around these ill-fitting lines as these constitute the rules of recognition by way of which one accesses the power of the legal system. This constitutes a ritualised site of rhetoric wherein one refers to the law as if scripture, that such a form is expected of all comers and thereby constrains them. The positive and negative aspects of this correspond precisely, as one seeks to avoid tyranny by excluding the subjectivity of individuals; instead all is required to move through reason and vote.
These aspects determine the shape of that which enters, and the other face of the same system determines the powers that may thereby be deployed. The whole may be envisioned as two cones meeting at a point; with one corresponding to perception and the other, articulation. The point at which these meet is the site of integration, wherein perception is transformed into articulation; thus the court receives evidence and gives an order. This point is the channel through which a decision travels and only exists concretely as realised in the process of its functioning. There is no abstract thing corresponding to this point as an entity. The entity to which we refer to rather constitutes the two aspects of the legal system which we have here described. This is the ideality (e.g., the rules of recognition) which constitutes the instruments of perception and mechanisms of articulation; it is constituted only as guaranteed in materiality, and only thus as realised through this. From the perspective of one contemplating the same, however, it is the expectation of this process; it is that the law is what we expect of it, though it may prove other than this in actuality. This is how an individual will treat it from within and remains a valid perspective when considering it externally as here.
Natural law, from this perspective, is readily perceived as indistinguishable from the ordinary operating of the system as a whole; it is that which limits according to the ideality of such as actors as are involved in the process as concretely realised—and as reflected in the imagined expectations of those who navigate this, thus images of the same are intertwined with the playing out of its processes. Indeed, it is by way of the negotiation of these expectations that the whole proceeds. The judge expects such a word means a certain thing, and so the prosecution; or similarly it may be hoped that a defence will work, i.e., they expect the possibility of success—or at least that it is the best option. This determines the path of those that navigate these waters and thus the total image is reflected in these processes as much as the final outcome which emerges at the other end. Natural law, therefore, is relevant only to the extent that it has an influence on these aspects; it exists only insofar as it is expected to and this expectation is acted upon. Where this is unsuccessful, then natural law is killed according to the jurispathic function of the courts; it is negated then and in the precedent set for lower courts—as well the expectations of those that perceive this. Thus it is dead to the extent we cease to act as if, or killed where it is overwhelmed by the violence of positive law.
The Tao, which others may call Natural Law or Traditional Morality or the First Principles of Practical Reason or the First Platitudes, is not one among a series of possible systems of value. It is the sole source of all value judgments.