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Running head:HIGHER LAW THINKING 1

Higher Law Thinking

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HIGHER LAW THINKING 2

Introduction

There is a close relationship between higher law thinking and contemporary legal views

on the goals of the United States Criminal Justice System. In fact, some legal scholars, jurists,

and philosophers have attempted to establish a connection between criminal justice undertakings

such as punishment and higher law. The likes of William Blackstone and Judge Richard Nygaard

argue that natural law which is as old as humankind is superior to the positive law. Therefore,

their contemporary legal views on the goals of the U.S. Criminal Justice System are based on the

norms established by natural law such as common good and morality. From higher law thinking,

natural law is binding all over the world, original and the positive law derives its legitimacy from

natural law norms. This paper interrogates the relationship between higher law thinking and

contemporary legal views on the goals of the United States Criminal Justice System.

Proponents of the higher law argue that natural law jurisprudence should be incorporated

into the contemporary criminal Justice system. According to Judge Richard Nygaard (1995),

there is a need to rethink and reform the United States Justice System to make it more than an

intellectual exercise. More importantly, the learned judge expressed his concern in the “Myth of

Punishment” by stating that although the laws enshrine punishment, there is need to be merciful

and moral. From Judge Richard’s perspective, the contemporary United States Criminal Justice

System must conform to the higher law from God that requires jurors to be ministers of justice.

Judge Nygaard brings forth the argument on the place of natural laws into the contemporary

world by arguing that punishment is morally wrong and does not deter crime (Nygaard, 1995).

According to his “Myth of Punishment” essay, Nygaard contends that the contemporary

criminal justice system has departed from the biblical and natural foundations of law and

punishment. The criminal justice system is, however, in line with higher than provides for

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protection of life and property. Natural law informs Reimund (2004), contemporary legal views

on the goals of the United States Criminal Justice system. Reimund (2004), notes that the

criminal justice system should be restorative on the rights provided by the higher law.

From a philosophical view, Judge Nygaard seems to agree with William Blackstone on

the place of the higher law to the criminal justice system and state in general. However, Nygaard

focused on the role of punishment in restoring and deterring criminal behavior in the society.

William Blackstone argued that the law of nature establishes the relationship between God and

man, man and the state. From Blackstone’s commentaries, he proposed that human beings are

born with certain inherent rights which are inalienable because a supreme being provides them

(Currie, 2013). In fact, the state and governments are established to protect rights of men. The

goal of the United States criminal justice system should be to protect men from harm that may be

occasioned by fellow human beings or the state(Garvey, 2003). According to Blackstone, the

right to life, certain civil liberties and freedom to personal security are inherent rights that cannot

be limited. Currie (2013), noted that Blackstone influenced the making of United States

Constitution through his arguments on the law of nature. Those who support the higher law,

propose that the goals of the Contemporary Criminal Justice system should be founded on morals

and duty to protect human rights. However, the modern perspective is that the state establishes

rights which it can limit.

Contrary to Judge Nygaard, Jeffrey Tuomala holds a different perspective on the

relationship between higher law and criminal justice system. More importantly, Tuomala argues

that natural and positive law serves the same purpose in the society. According to Tuomala

(2009), natural and positive laws are used as utilitarian instruments for maintaining law and

order in the community. Further, Tuomala noted that in the same manner natural law seeks to

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promote social good so does the positive law in the United States. Natural laws are founded on

moral norms which are unchanging, universal and inalienable. Tuomala (2009), observed that

although natural law provides for certain inherent rights, it does not provide for punishment to

sanction criminal behavior. It is the role of the criminal justice system to punish criminals or

those who undermine natural rights. According to Reimund (2004), while the higher law

condemns certain actions the criminal justice system should be based on restorative justice. Mary

Ellen Reimund proposes that the goal of the criminal justice system is to complement the natural

law norms by punishing the offenders while addressing the victim’s needs. As a contemporary

thinker, Reimund noted that punishment should be based on natural law norms such as natural

justice and morality.

Contemporarily, there is a close relationship between higher law and the United States

Criminal Justice System. In this regard, legal scholars, jurists, and philosophers compare higher

law concepts such as natural rights to those enshrined in the United States Constitution. Currie

(2013), argued that the foundation of natural rights cited in the Constitution as the Bill of Rights

are founded by the higher law as provided by the religion. The grundnorm of the United States

Criminal Justice system is the Constitution that guarantees the right to life, fair trial and other

freedoms which were provided by the biblical law. There is a significant discrepancy between

the natural and positive law on their applicability. Whereas the Old Testament law sanctions

certain crimes such as murder and adultery it doesn’t provide for their enforceability. In this

regard, like natural laws, the biblical laws are only enforceable through reason and force.

The goals of the United States Criminal Justice System are not to uphold morality instead

serve justice (Currie, 2013). Therefore, the criminal justice system is guided by the positive law

as captured in the domestic and international legal instruments. From a punishment perspective,

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the higher law differs with the goals of United States criminal justice system. As observed in the

case of Stone v. Graham (1973), there is no place of morality in dispensing justice. According to

Charles Colson in “The Good Society and Moral Law,” certain immoral conducts such as same

slavery were considered right and legal. Further, Colson and Nolan (2004) noted that the positive

law is overshadowing the place of higher rights.

Thomas Aquinas argued that morals or religious principles take precedence over the

positive law established by the state, political class or legislature. More importantly, proponents

of the higher law argue that it creates individual rights that are inherent and are provided by a

supreme being. The foundation of biblical law is that since God created human beings, they have

to uphold moral behavior and rules.Further, certain forms of punishments such as execution in

the United States Justice System have invited natural law thinkers on the goals of the criminal

justice system. The concern by Colson & Nolan (2004) being whether the system can achieve its

objective while disregarding the higher law. According to the authors, making the society a safer

place does not limit the inherent rights established by natural law.

The Applicability of Biblical Law

The debate on the applicability of biblical law in the contemporary the United States

Criminal Justice System has incited debate among legal scholars and philosophers. Even though

the constitutional provision that, any law inconsistent with the constitution is null and void may

mute the discussion. The debate continues to be relevant. Moreover, judges have attempted to

establish the place of biblical law or teaching in the United States through decisions such as

Goodridge v. Department of Public Health 2004). In the case, as mentioned above, the learned

judges ruled in favor of same-sex marriage in Massachusetts. The decision by Goodridge v.

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Department of Public Health is a contradiction of state law and the biblical teachings that

sanctioned same-sex relationships. The applicability of biblical law was further questioned in the

case of U.S. v. Extreme Associates (2005) where the court argued that morality (which is the

foundation of natural law) has no place in legitimate state interests. From a legal perspective,

decisions are supposed to be made based on the law, facts, and evidence rather than biblical

teachings.

Reconciling the Differences

Charles Colson questions the legitimacy of the United States Criminal Justice System on

two grounds: first, there is a disregard of legislative powers by the judges. Another concern is

that the criminal justice system has departed from the natural law. It is alarming, according to

Colson (2004), that courts are allowing certain actions considered immoral such as abortion and

homosexual conduct. The debate on the place of natural law norms such as morality cannot be

held in isolation with social changes. More importantly, as a large percentage of American

citizens are religious; the place of biblical teaching cannot be ignored. In fact, as observed by

Judge Richard Nygaard punishment cannot entirely eradicate crime, and there is need to

harmonize natural and positive laws.

Actions that the Church or Legal Community should take

The most fundamental questions to ask are: first, whether natural law and biblical law

promote social good and public order in a liberal society? Secondly, the Criminal Justice System

needs to establish if the positive law is enough to do justice in the community. The answer to the

questions has been answered by legal philosophers such as Justice Nygaard and William

Blackstone. Notably, most legal scholars and jurists agree that the earliest foundation of social

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order and common good were founded on biblical and natural law. From my point of view, since

the church lacks instruments of punishing offenders it should be keen in affirming morality and

character in the American citizenry. On the other hand, as suggested by Justice Nygaard the

criminal justice system should be founded on doing justice based on biblical norms. The church

and the legal community need to work in harmony by ensuring that the rules of natural justice

are upheld in the justice system. More importantly, punishment which is one of the goals of

United States Criminal Justice System should be done in accordance with the norms of natural

law.

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References

Colson, C., & Nolan, P. (2004).Prescription for Safer Communities.Notre Dame JL Ethics &

Pub.Pol'y, 18, 387.

Currie, E. (2013).Crime and punishment in America. Macmillan

Garvey, S. P. (2003). Two kinds of criminal wrongs. Punishment & Society, 5(3), 279-294.

Nygaard, R. L. (1995). Is prison an appropriate response to crime. . Louis ULJ, 40, 677.

Reimund, M. E. (2004). The Law and Restorative Justice: Friend or Foe-A Systemic Look at the

Legal Issues in Restorative Justice. Drake L. Rev., 53, 667.

Tuomala, J. C. Robert George’s The Clash of Orthodoxies: Law, Religion, and Morality in.

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