Natural Law: The Alternative to Woke

Yesterday, I examined wokeness as the expression of a powerful idea. Woke folk have been taught that everything is socially constructed: our language, forms of knowledge, ways of reasoning, laws, institutions... even right and wrong. And it's all constructed by those who have power to exclude those who do not have power. People who have money, cultural authority, and control of our political institutions use coercion and influence to define out of existence the subjective experience of those who do not have money, cultural influence, and political power.

The powerful do this by creating "discursive regimes," which are arbitrary sets of words and concepts that privilege the subjective experiences of the powerful at the expense of the powerless. "Man" and "woman," for example, do not point to anything essentially true. They are arbitrary signifiers which privilege the experience of people whose bodies align with a certain experience of gender. Other people have different experiences of gender, and they need the rest of us to use different terms so that they can recognize their subjective experiences in the world around them, and thereby become real.

The end of this, of course, is nihilism. Worse, this is the path to endless war of all against all, as every subject strives to gain power in order to define the terms of existence for himself and for everyone else. Nor can we reason together, for reason itself is a discursive regime that privileges the arbitrary constructs of European white males. The principle of non-contradiction and the other principles of logic; concepts of the good life and human flourishing; good and bad and right and wrong are all inherently suspect.

Here's some good news: We can respond to the legitimate concerns of our woke friends without following them down the dark path of nihilism and endless conflict. The alternative to the young woke tradition is a much older--indeed, ancient--tradition known as "natural law."

Natural law situates the concerns of woke folk within a broader understanding of human flourishing. Consider Black Lives Matter, an organization whose original statement of principles called for the deconstruction of the nuclear family and other counter-productive, unjust commitments. The central concern of BLM is that young men with dark skin are targeted by law enforcement with suspicion and unnecessary violence more often than young men with light skin. That's a problem. We may wonder about the scope of the problem, the causes of the problem, and the best solutions to the problem. But note that BLM, whose principles are drawn from post-modern ideology, doesn't have the intellectual resources to answer the important questions. The best it can do is draw clear lines: white v. black, police v. the community.

By contrast, the natural law tradition can (a) affirm that law enforcement should target only those whom we have good reasons to believe have committed a particular act of wrongdoing, (b) insist that race is not a valid reason to presume guilt, and (c) explain why. Natural law jurists gave us the presumption of innocence, a foundational commitment of our legal tradition (the very legal tradition that our woke friends insist is inherently racist and unjust) long before the American founding. And it has been a cornerstone of our criminal justice institutions and our constitution ever since.

The law's commitment to the presumption of innocence is famously expressed in the maxim of the seventeenth-century Christian jurist, William Blackstone, “that it is better that ten guilty persons escape than that one innocent suffer." And both the idea and the maxim precede Blackstone. Blackstone received them from the earlier Christian jurist Matthew Hale. Hale grounded the maxim in the natural law principle of retribution, that we can only be justified in punishing someone who has perpetrated an intentional act of wrongdoing. Hale added to that principle of natural reason Jewish and Christian teachings, especially the idea that God can dispense justice to a guilty person who has escaped punishment, but the “loss of the life of an innocent” cannot be undone. From all of those we derive the legal doctrine that everyone in our institutions of law enforcement and adjudication, from the police to the judge and jury, should presume the best of their fellow citizens, and may only deprive a person of life, liberty, or property after it has been proven that they committed a public wrong, a crime or misdemeanor.

To the extent that we no longer assume the best of each other, and presume guilt rather than innocence, our BLM friends have reason for concern. But note: The fundamental problem is our unjust attitudes toward each other, not race. Race is an arbitrary social construct. By contrast, the presumption of innocence is a true principle of natural and legal justice. We owe the presumption to *everyone*, regardless of the color of their skin.

Natural law gives us a more accurate diagnoses of the basic problem than woke ideology. And whereas woke ideology leaves us stuck in zero-sum warfare, natural law shows us a way out.

Tomorrow I'll begin explaining what natural law is, and how we can use natural law to reason well together about what is good, right, and just.