Recently we discussed briefly the writing of Gerhard Robbers about the limits of religious freedom in Germany. It was enlightening to understand the possible place of the natural law being an intrinsic limitation to which even the Constitution (Basic Law) must submit. That would allow all those who wish to live by the intrinsic knowledge of good and evil, which God has placed in each person’s conscience, to do so in Germany.1
An intrinsic limitation is a limit arising from the nature of the thing. What is the nature of a constitution? From whence does it derive its authority? From the consent of the governed, perhaps?2 If so, then there are indeed limitations to powers that governments can have, because they must arise from powers the people themselves have. They must further be harmonious with the nature of the people themselves.
Thus natural law’s ability to provide foundation for and limitation to Constitutional law, could come, Robbers wrote, from one of three sources:
- human nature
- the will of God
- human culture
But the very terms employed by Professor Robbers would seem to predetermine the outcome of debate he spoke of:
“Within the system of federal law—and similarly within the framework of state (Land) law—the hierarchy of norms begins at its top with the Constitution.
“(1) The Constitution is the highest ranking norm with which all other norms must conform.
“There is some debate where there is something like natural law or “super-positive” law following from the nature of human beings, the will of God or perhaps from human culture to which the Constitution itself would have to conform.”
Those defining terms are “hierarchy of norms” and “highest ranking norm.” Norms are the foundation of Hans Kelsen theory of pure law, and to express the Basic Law of Germany as the highest norm on which all other norms are based is very significant.
As an encyclopedia puts it:
“Kelsen is considered one of the preeminent jurists of the 20th century and has been highly influential among scholars of jurisprudence and public law, especially in Europe and Latin America although less so in common-law countries. His book titled The Pure Theory of Law was published in two editions, one in Europe in 1934, and a second expanded edition after he had joined the faculty at the University of California at Berkeley in 1960…
“It aims to describe law as a hierarchy of norms which are also binding norms while at the same time refusing, itself, to evaluate those norms. That is, ‘legal science’ is to be separated from ‘legal politics’. Central to the Pure Theory of Law is the notion of a ‘basic norm’—a hypothetical norm, presupposed by the theory, from which in a hierarchy all ‘lower’ norms in a legal system, beginning with constitutional law, are understood to derive their authority or ‘bindingness’. In this way, Kelsen contends, the bindingness of legal norms, their specifically ‘legal’ character, can be understood without tracing it ultimately to some suprahuman source such as God, personified Nature or a personified State or Nation.”3
This is to say, in such a legal system the natural law and its foundations (as articulated by Robbers) have no real place.
Certainly, no government connected to such a “suprahuman source as God” would outlaw what is in the conscience of men and women in regards to raising their children. And any such controversial law that infringed on the religious freedom of even a minority would have a “conscience clause” for those who can not, in good conscience, obey such a law.
What does the absence of a conscience clause tell us about a nation?
- As Genesis 3:22 declares of all men: Then the Lord God said, “Behold, the man has become like one of us in knowing good and evil. Now, lest he reach out his hand and take also of the tree of life and eat, and live forever.” ↩
- Does the power of civil government originate with the people? That is what the American, Roger Williams, said. He maintained in 1644 during the English Revolution that “the sovereign, original, and foundation of civil power lies in the people. . . .And if so, a people may erect and establish what form of government seems to them most meet for their civil condition. It is evident that such governments as are by them erected and established have no more power, nor for no longer time, than the civil power or people consenting and agreeing shall entrust them with.” Roger Williams, Bloody Tenet of Persecution for Cause of Conscience, N.C.P. Vol. 4, p. 249. ↩
- Wikipedia article, “Hans Kelsen.” ↩