Natural Law

Another school of natural law is known as historical natural law. According to this school, law must be made to conform with the well-established, but unwritten, customs, traditions, and experiences that have evolved over the course of history. Historical natural law has played an integral role in the development of the Anglo-American system of justice. When King James I attempted to assert the absolute power of the British monarchy during the seventeenth century, for example, English jurist SIR EDWARD COKE argued that the sovereignty of the crown was limited by the ancient liberties of the English people, immemorial custom, and the rights prescribed by MAGNA CHARTA in 1215.

Magna Charta also laid the cornerstone for many U.S. constitutional liberties. The Supreme Court has traced the origins of grand juries, petit juries, and the writ of HABEAS CORPUS to Magna Charta. The EIGHTH AMENDMENT proportionality analysis, which requires that criminal sanctions bear some reasonable relationship to the seriousness of the offense, was foreshadowed by the Magna Charta prohibition of excessive fines (Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 [1983]). The concept of due process was inherited from the requirement in Magna Charta that all legal proceedings comport with the "law of the land" (IN RE WINSHIP, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 [1970]). DUE PROCESS OF LAW, the Supreme Court has observed, contains both procedural and historical aspects that tend to converge in criminal cases (ROCHIN V. CALIFORNIA, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 [1952]). Procedurally, due process guarantees criminal defendants a fair trial. Historically, due process guarantees that no defendant may be convicted of a crime unless the government can prove his or her guilt BEYOND A REASONABLE DOUBT. Although the REASONABLE DOUBT STANDARD can be found nowhere in the express language of the Constitution, the Supreme Court has said that the demand for a higher degree of persuasion in criminal cases has been repeatedly expressed since "ancient times" through the common-law tradition and is now "embodied in the Constitution" (In re Winship).

The legacy of the trial of JOHN PETER ZENGER, 17 Howell's State Trials 675, further illustrates the symbiotic relationship between history and the law. In 1735, Zenger, the publisher of the New York Weekly Journal, was charged with libeling the governor of New York. At trial Zenger admitted that he had published the allegedly harmful article but argued that the article was not libelous because it contained no inaccurate statements. However, in the American colonies, truth was not considered a defense to LIBEL actions. Nonetheless, despite Zenger's admission of harmful publication and lack of a cognizable legal defense, the jury acquitted him.

The Zenger acquittal spawned two ideas that have become entrenched in U.S. jurisprudence.

First, the acquittal gave birth to the idea that truth is indeed a defense to accusations of libel. This defense received constitutional protection under the First Amendment in NEW YORK TIMES V. SULLIVAN, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). Looking back, the Supreme Court came to describe the Zenger trial as "the earliest and most famous American experience with freedom of the press" (McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S. Ct. 1511, 131 L. Ed. 2d 426, [1995]).

The Zenger trial is also the progenitor of JURY NULLIFICATION, which is the power of a jury, as the conscience of the community, to acquit defendants against whom there is over-whelming evidence of guilt in order to challenge a specific law, prevent oppression, or otherwise achieve justice. For example, the Zenger jurors issued an acquittal despite what amounted to a confession by the defendant in open court. Some observers have compared the Zenger trial to the trial of O. J. SIMPSON, in which the former football star was acquitted of a double HOMICIDE notwithstanding DNA EVIDENCE linking him to the crimes. According to these observers, JOHNNIE COCHRAN, defense attorney for Simpson, implored the jurors to ignore the evidence against his client and render a verdict that would send a message denouncing POLICE CORRUPTION, perjury, and racism.

All three schools of natural law have influenced the development of U.S. law from colonial to modern times. In many ways the creation and ratification of the Constitution replaced Scripture and religion as the ultimate source of law in the United States. The federal Constitution makes the people the fundamental foundation of authority in the U.S. system of government. Many of the Framers characterized the Constitution as containing "sacred and inviolate" truths. In the same vein, THOMAS PAINE described the Constitution as a "political Bible."

In 1728 many Americans understood that the COMMON LAW encompassed the Law of Nature, the Law of Reason, and the Revealed Law of God, which are equally binding at all times, in all places, and to all persons. The law of history could have been added to this list. Between 1776 and 1784, 11 of the original 13 states made some allowance for the adoption of the English common law. One federal court said that the Constitution "did not create any new rights to life, liberty or due process. These rights had existed for Englishmen since Magna Charta. The Declaration of Independence … merely declared and established these rights for the American colonies" (Screven County v. Brier Creek Hunting & Fishing Club, 202 F. 2d 369 [5th Cir. 1953]). Thus, natural law in the United States may be best understood as the integration of history, secular reason, and divine inspiration.