Our country is at a crossroads, and two main perspectives, Natural Law and Evidence-Based Law, are competing. Natural Law is created by God or nature, and therefore it is inherent, universally true, and independent of any particular society.
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Natural Law is deductive and holistic; it respects the subjectivity of human experience and holds that the means must justify the ends.
Evidence-Based Law is a type of positive law. Positive Law is law created by humans through political means in a particular society and in reaction to a specific time, place, and circumstances. Evidence-Based Law is inductive and reductionist; it seeks to minimize the impact of human subjectivity and trends towards the ends justifying the means.
Our nation and state are established on Natural Law, and our foundation of Natural Law is enumerated in our founding documents. Our Declaration of Independence states in part, “…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…”.
Our Declaration of Independence is the original expression of our union, made “more perfect” in the establishment of our nation’s Constitution. Article 2 of the New Hampshire Constitution reads in part, “All men have certain natural, essential, and inherent rights among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness.”.
While we have positive law in the form of executive orders, statutes, and common law, this positive law has, until recently, been interested in working out the particular application of Natural Law within the unique circumstances of the specific time.
We have been humble and careful enough to strive to keep positive law from replacing our foundation of Natural Law. However, the development of Evidence-Based Law has been recently threatening to do away with Natural Law completely in favor of what seems best in the particular time, place, and circumstances.
This competition between Natural Law and Evidence-Based Law can be most easily and immediately observed with regards to Sars-CoV-2. The struggle is between those seeking to preserve a government established to secure individual God-given Rights and the evolving technocratic surveillance police state. I believe the tension between these two perspectives will become increasingly apparent in many meaningful issues over the next five to ten years.