The Three Layers Of Natural Law

“The Heavens are high, and the Emperor is far away.” – traditional Chinese

For the purposes of this essay, I read that to say the Gods and the Emperor are good in ways we don't understand; or maybe the higher-ups are good, but their local representatives are not.

I suggest all nations should respect an admittedly smudged and blurry line, albeit one with a long and dignified provenance: Natural Law.

I say there are three layers of law that can be found in (within reason) all places and all civilized times. (I accept the exception of small communities profoundly endangered such as that of the Donner Party survivors, whose resort to cannibalism – presumably at the behest of their leaders – was necessary.)

The first two layers of law are familiar: The lowest is law emanating from the legislature and executive administration. It is malleable, even to the point of being easily altered and subject to regular revision. It is interpreted by ordinary judges and administered by the executive.

The second layer is constitutional and relatively unchanging, albeit capable of amendment. First-layer laws, executive acts and usurpations of natural rights that are inconsistent with constitutional principles are ruled to be illegitimate by the special judges who interpret constitutional law. These are familiar, traditional ways of describing a rule of law.

The third layer has always been there, but it came into the bright light of actual, practical enforcement after World War II.

At the“war crimes” trials it was held that, for example, even if a national constitution or a supreme leader said it was OK to remove certain persons or despised nationals from the protection of the law, and kill them, Natural Law, even if unwritten, disallowed it, and persons who broke Natural Law, no matter how high and mighty they may have been in their life under their bad laws, could be punished even with death, for their transgressions of Natural Law.

(Although that phrase,“Natural Law,” was not used during the postwar prosecutions, it was there enforced.)

What are the current implications of this essay for China and America?

No one in either nation is going to be charged with breaking Natural Law.

Trump has been twice charged (impeached) but not convicted of committing constitutional infractions of“ordinary” two-layer law. Chinese officials (especially during and for a time after 2012) have been charged and some punished under a version of two-layer law deemed“corruption.” Their“trials” were consistent with the“Heaven is high ...” adage quoted above, that is, Heaven and the Emperor are OK, but local officials not so.

International critics of both nations often find fault with them, but compared with the time just before and during World War II, today's two most powerful nations are not going to be effectively charged with crimes against Natural Law: and that condition may be counted as progress.

But there are current leaders of lesser nations – I will not name my list here, and readers will have their own“charge sheet” of names – who unfortunately qualify for at least impeachment if not eventual conviction, of great wrongdoing, malfeasance and worse.

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But that dreadful reality may provide a welcome opportunity for the two leading nations, as a consequence of their recognition of this“chance to do good and at the same time do well” if they take up the courage and show the will to act in quiet, back-channel,“correct” coordinated ways (in the language of Wang Li) to enforce some forms of international Natural Law.

How can it be done in ways consistent with national interest?

China and America are natural trading partners. That's not theory. The past 20 years of reality have proved it. By widening the circle of mutual multination trade, letting in the good guys and keeping out the bad guys, and forgetting the petty trade spats the two have been indulging themselves with these past few years, a strategy for growth and profit can be made to serve a greater purpose as well.

Pre-modern students of ethics said that wealth-seeking, profit-making activities were incompatible with“the good.” They were wrong. Pre-modern leaders believed force was the best instrument able to sustain beneficent power. They were wrong too.

The enlightenment ethic allows neighbors to know cooperation among civil partners allows the group to simultaneously police outlaws and earn mutual benefits for those who play fair.

Tom Velk is a libertarian-leaning American economist who writes and lives in Montreal, Canada. He has served as visiting professor at the Board of Governors of the US Federal Reserve system, at the US Congress and as the chairman of the North American Studies program at McGill University and a professor in that university's Economics Department.