Chapter 2:
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Basics About Law Above Domestic Law
The Constitution is Not the Supreme Law of the Land
Three provisions in the Constitution of the United States may appear on the surface to void international law as binding the U.S., and this appearance coincides with or reflects interests in nationalism and thus the views that other nations are irrelevant or inferior are likely to persist, but all of the provisions are misunderstood. The better-known one establishes the supremacy of the Constitution. Another lets Congress define offenses against international law. And another gives to the President the duty of faithful execution of the laws, which some people may misunderstand as applying only to domestic law or even only to some domestic law but which applies to all law except some that is exclusively another nation’s responsibility.
The Supremacy Clause, Explained
Some international law and some natural law is higher than any nation’s own law, but, before elucidating the basis for the legal claims above, it’ll create a clear foundation to address one common misconception that interferes with understanding.
What confuses most people in the U.S. is likely what they learned the Constitution says. It says, in Article VI, second paragraph, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” (This text is from a transcript by the National Archives and Records Administration (U.S.).)2
This or a phrasing akin to “[the] Constitution . . . [is] the supreme Law of the Land” is taught by nonlawyers to nonlawyers, at least as early as high school and maybe in elementary school. It’s taught cautiously, to avoid interpreting in ways the legal system might disapprove. It’s likely taught as literal. As an example, see Civics (History and Government) Questions for the Naturalization Test (U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, rev. 02/16), p. 1, American Government, section A, question 1 and answer (“What is the supreme law of the land?” “the Constitution”) (cf. “[a]lthough USCIS is aware that there may be additional correct answers to the 100 civics questions, applicants are encouraged to respond to the civics questions using the answers provided below”, per introduction). The State of California (U.S.) promulgated its own legal provision purporting to restate it, “[T]he United States Constitution is the supreme law of the land” (California Constitution, Article III, Section 1, as added ).3
This simple-sounding declaration fits well with a theme of American greatness, personal patriotism, and civic duty. The statement is widely remembered. It feels good to be exclusively in charge of our own futures.
But the clause is misunderstood. It means less than its literal meaning.
Understanding the phrase requires understanding what the whole Constitution is and, importantly, what it is not. It is not primarily a statement of Constitutional law, although it is partly that and we read it for that purpose, and so does the Supreme Court. Even an originalist Supreme Court justice sometimes finds Constitutional law where the words of the Constitution do not explicate it. (One Justice, described as an originalist, said in an off-the-bench radio interview that the Court upholds rights for handbills even though they are not spoken speech and they are not issued from a printing press.) Statements of Constitutional law can be found more reliably in treatises, journal articles, judicial opinions, and advice from knowledgeable attorneys, which can more thoroughly reflect recent developments in Constitutional law. At the same time, the Constitution is not primarily a statement of aspirations for law, although it has taken decades, maybe over a century, for the judiciary to apply certain provisions. The Constitution is not primarily a historical or political document, although it is partly both, being vital to U.S. history and politics.
Rather, the Constitution is primarily a means by which people, having decided what the law should say, made it binding on people. That is promulgation. They promulgated law for many people. In this case, who did the promulgating were delegates from new states and ratifiers, what was promulgated was fundamental domestic law and, being law, it included rights and obligations, and who was bound was almost everyone in the young nation (foreign diplomats were arguably exempt but they were few), and, in that way, the Constitution is primarily a means by which law was promulgated.
The Constitution is thus legally binding, but its legal power is limited by the context within which the Constitution exists. That context is all the law already existing at the Constitution’s promulgation or existing during the Constitution’s duration, whether anyone liked it or not. The U.S., even if combined with our former colonial masters, the Indians (if we hadn’t been shoving them around and killing them), and allies, has never been strong enough to toss most of the other laws into a trash can. And we probably never will be, at least through our children’s lifetimes. The law governing the U.S. that could not be overthrown or repealed by the new Constitution included parts of international law and parts of natural law.
What our nation, like any, could do was replace some or all of our domestic law. We did that. We replaced the Articles of Confederation, which, in turn, replaced some earlier law. We took charge within the U.S. of the former colonists’ law by which our recent ancestors lived, such as English common law. We discovered, interpreted, and amended old law as we saw fit. We promulgated new law, and still do.
So, where the Constitution says it’s the supreme law of the land, that’s true only within domestic law, that is, only within the Constitution and its inferior law. It is false with respect to higher law. That’s an absolute limit on the Supremacy Clause, although it’s a rarely-noticed limit. The Constitution cannot be supreme over all law because the promulgators did not have the legal authority to make it that. They could only go as far as higher law allowed, and, at any time, the law that was higher than what the U.S. could amend or repeal was a limit on what the U.S. could promulgate. For that reason, the Constitution’s Supremacy Clause (i.e., Supreme Law Clause) applies only to the Constitution and to law beneath it.
For an analogy, suppose the U.S. Congress with the President’s approval enacts a statute on a new subject, creating an agency and authorizing it to promulgate regulations under the statute. This has already been done many times, probably thousands. This agency’s regulations state that they are, on the subject, the supreme regulations of the nation. That regulatory provision would be true only insofar as superior law, including the statute and the Constitution, allows it. If it contradicts superior law, that regulatory provision would be void. The Internal Revenue Service cannot issue a regulation doubling everyone’s tax or cutting everyone’s tax in half, even though Congress could enact such a statute. For the I.R.S. to do something that large, a law higher than an I.R.S. regulation would have to authorize it.
Another analogy is available. Suppose two people enter into a contract in the U.S. for one to purchase a slave provided by the other (or maybe the other person becomes the slave). Suppose the model of slavery is the former U.S. model found in Southern states: the slave has no rights without the owner’s ongoing agreement. No one says whether this new contract is for the purpose of freeing the slave or so someone will clean a house, pick crops, and provide sex, so the worst would be allowed by the contract. That would violate the Constitution’s Thirteenth Amendment (banning involuntary servitude, already held to include slavery) and a host of statutes against slavery, rape, and several other abuses. That would void the entire contract.
But suppose the contract has a clause stating that the contract is the supreme law of the universe on the subject of this contract. If litigation ensues in which the contract’s supremacy clause is claimed to overrule other domestic law, the contract’s supremacy clause would be voided and the other domestic law would be upheld and applied so that the contract would be void. The contract’s supremacy clause might have had utility for other disputes, such as if a proposal to do something else with the services of the would-be slave under another contract were pending, but that utility would be limited and such a supremacy clause would have been an overreach unauthorized by higher domestic law and therefore it would have been void.
Another analogy would be to an organized crime organization that murders people for offenses that aren’t even legal violations in society. Murders are usually of prime interest to law enforcement agencies and sentences for murder tend to be highly inconvenient to those caught. For that reason, some organized crime organizations pay a great deal of money for each murder in order to support loyalty, skill, and nondisclosure. That’s expensive. One way to substantially lower costs would be to get as murderers people who are less worrisome regarding method and secrecy. If the organization could, with a few strokes of a pen, simply deny all law enforcement agencies and courts any involvement in their murder orders, the organization could contract for cheaper killers. So, in a contract with a contract killer, an enforcement clause replacing familiar law enforcement with arbitration (to be conducted in a way customary within the Mafia) and a supremacy clause positioning the contract above all other law could, if valid, be quite profitable for the organization. Alas for the organizations and for the contract killers and cheers for the good side and the reach of law, such a supremacy clause would not have the effect desired by the parties to those contracts, because it would be void.
Despite anyone’s efforts to the contrary, the Constitution’s Supremacy Clause cannot mean more than law superior to the Constitution lets it mean. The same applies to any nation’s domestic law with any similar kind of provision.
Who May Define Offenses
Congress is given several authorities, including to “define and punish . . . Offences against the Law of Nations” (Article I, section 8). This, however, does not deny that someone else might have concurrent authority so to define. And someone else does. In particular, other nations have that right as well.
Were that not the case, the U.S. would have had no right to act against other nations in the way that it would have had to claim that other nations could not act against the U.S. (this presumes that other nations would have denied the existence of foreign jurisdiction in their nations but not denying it would have been very improbable).
If the power so to define were exclusively in the hands of Congress, Congress could decide that nothing is offensive. (There is law in the U.S. that, in at least some cases, discretion must be exercised so that applying a discretionary authority to nothing would be unlawful, but that may be only in domestic law and, even if not, Congress could enact a trivial exception, which will not be here considered.) Deciding that nothing is offensive would render international law not law at all, at least relative to the U.S., and presumably other nations would have likewise rendered it relative to their nations, too. Then, for example, no international debt would ever have to be paid (making it unlikely debts, public or private, would be entered into and that in turn would make it unlikely that much international commerce would proceed except for barter, which is economically less efficient than cash- and credit-based trade), no law could authorize an international law, a nation could colonize another, a full-scale existential war could be led to punish a bad knitter or just because one military sergeant with troops and tanks wants some big-time practice against a foreign leadership (an enemy’s domestic law would almost certainly forbid this but the invader could ignore such quaint legal daydreams), nuclear bombs could be thrown for fun, surrenders and international recognition of nations would have no legal effect so that all national boundaries would be changeable on anyone’s whim, a nation could enact and enforce laws governing other nations’ internal affairs, a nation could claim international oceans as their own and collect high fees for shipping and seize ships, cargoes, and crews, a nation could drill for oil and other liquid extractables under another nation’s topsoil and hide the theft, ambassadors could be shot, foreign nationals could be genocidally killed in large numbers just for being foreigners, assassinations could be done with legal impunity, and so on. Presumably, however, nations would punish most of these acts even without international law; and desires for stability and predictability would lead to the development of international advice and then international law as binding, both as norms and by treaty. That, I posit, already happened, much of it thousands of years ago, perhaps much earlier. The practice of nations shows it now; e.g., nations enter into treaties and expect them to be adhered to even against the interest of a party so adhering; and the practice of each nation as accepting the norms as law over that nation and other nations and over domestic law of each nation may estop each nation from claiming the norms generally not to be such law.
Law as Rather Huge
Law is not exactly what Americans tend to think of as law. Law is ‘one entity’s right or rights against and obligation or obligations to another entity and enforceable by those entities and possibly a third entity and others’, entity as used therein being defined inclusively of various possible kinds of persons and other entities. A law is not necessarily something written and organized in sections and drafted in nearly impenetrable language that pretty much only a lawyer could love. It may be that, but it is also anything that creates a right or an obligation and can be carried out even if someone wishes they didn’t have to live by it. It doesn’t have to be written or formal. It’s not even necessary that anyone knows just when it was promulgated or by who. Perhaps it was promulgated 179,413 years ago by cave-dwelling people who uttered “ugh hoo ha”, or sounds with like meaning, to each other while catching food and never scratched a cave wall, but no one lately has a clue except it wasn’t within historic memory. And maybe it hasn’t been invoked against anyone in centuries, as far as anyone remembers. It can still be law now.
Foreign Notice of Domestic Law to Bind Foreigners
It is possible for domestic law to bind a foreign nation, a foreign national, or a stateless person not otherwise bound by it in its interaction with the nation that has the domestic law in question. For the domestic law to be binding on any such party, the nation with the law must provide notice of what the particular law says directly to the party in question or must prevent the party from violating it. The notice may have to be in either the foreign nation’s official language or in a lingua franca. Without that notice, it may not punish a violation of the domestic law by any such party.
It is not notice simply to declare all of the one nation’s domestic laws as binding or even to recite the content thereof when the sheer quantity would so overwhelm the notice recipient as to make it nearly impossible to absorb the full notice. A nation cannot require that the foreign party complete three years of law school and pass an examination, for example, or require that the party hire a local attorney and then presume knowledge of all of that nation’s domestic law.
By contrast, a nation may, for example, declare that to enter its borders requires a visa and that a visa does not grant a right to go further in than the port of entry or even to stay long at the port of entry. It may declare that a visitor choosing to stay in the nation must obey local law, as long as the visitor has the legal and practical right to not stay (e.g., a physical means of departure from the nation is available even in the event of indigence).
Hierarchy in Law
Fundaments
Having all laws be equal to each other would likely be unwieldy and the world doesn’t try it anymore, if it ever did. Having only one level of law (e.g., international, national, or local) be the law for all levels demanded would require that, e.g., either international lawmakers or local lawmakers in one locality understand local conditions in each locality around the globe well enough to write law well for most of them. To date, no single group of people in history has been that skillful, so we divide lawmaking duties across many groups of lawmakers, including those who developed the norms.
As a result, the norms do not regulate everything. By other law, e.g., both capitalism and communism are allowed, elections, capital punishment, and dissent are both allowed and forbidden, and tax rates differ.
Division of responsibility is thus both practicably useful and legally meaningful in every nation, except perhaps in the few smallest and least populous, of which each might opt for a single body of domestic lawmakers, and even all of those nations are under international and higher law. The world relies on laws being promulgated by separate authorities and being in a hierarchy, and this legal hierarchy that invalidates all contrary inferior provisions comes from a vital legal principle. What the legal system must enforce is law.
Not statutes, regulations, court opinions, or treaties as such are to be enforced, but law; so that statutes, regulations, court opinions, and treaties are to be legally enforced only to the extent that they are law and not beyond. According to the U.S. Constitution, article II, section 3, the President “shall take Care that the Laws be faithfully executed”4, not faithfully execute statutes and other instruments even if they’re not law. So, what is law shall be enforced but what is not law shall not be enforced. For example, a statute providing a death penalty may be found unconstitutional and thereby be unenforceable but, because the legislature has not repealed it, the statute is still officially in a statute book. When a legal provision that is not law is enforced anyway, that likely would impermissibly restrict someone’s legal rights; enforcing what is not law without limiting anyone’s legal rights may be only hypothetical.
A legal provision that does not create, amend, repeal, or affect either a right or an obligation is trivial, redundant, or meaningless. If the U.S. enacts a statute that says only that “today is a nice day”, it is not a statute that is subject to enforcement and no one can do anything to see to its faithful execution. So, it would not be law, but probably most legal provisions promulgated with the intent that they be law are law for some factual situation.
That apparent conflicts between legal provisions can be resolved by legal hierarchy is part of what gives law predictive utility for constraining or welcoming human behavior and thought.
Legal hierarchy is not taught to everyone. Children, from babyhood onward, are taught about duties, including behavioral limits, by their parents and other caregivers. This includes enforcement, both by immediate caregivers and by neighbors and adult friends. It is law. It is law, even though it comes from within the family. Children try to get something from one parent when another refuses and soon run into the parents’ resolution of that: often, no. It continues in school. For children in elementary schools, even in most high schools, classroom management and school management generally require discipline and respect for teachers’ and administrators’ authority and that is usually interpreted as not allowing doubt suggesting that a school’s rule can be invalid. Thus, invalidity of inferior provisions that otherwise are law is not the sort of principle likely to be taught to schoolchildren when they are taught that the Constitution is “the supreme Law of the Land” (supra). That, however, is not a lack of hierarchy. Rather, it is education being incomplete.
As most adults likely eventually discover, many instances exist in the U.S. of a law being or having been contradicted by an inferior legal provision in which compliance with the latter is demanded by competent legal authority (e.g., a police officer, a government administrative agency, a contracting party, or a court) and secured, followed by a court order voiding the inferior legal provision for the parties and in the future for everyone, followed in some cases, in what may seem a contradiction of the rule of law but is not, by a judicial refusal to apply the voiding to any nonparties previously required to comply with the subsequently voided provision with no intervening change in law underpinning the reason for the earlier voiding for some parties similarly situated. That kind of refusal likely applies as well to parts of international and natural law held to be superior and the Constitution held to be inferior insofar as the latter contradicts the former. In any case, legal hierarchy still controls what is law and thus enforceable.
In this essay, I avoid writing of something being lawful under the norms and write instead of it being lawful in or by the norms or some such. If a village ordinance restricts the eating of pizza to indoors, that’s probably lawful under the norms, but is not a restriction in the norms.
Refusal of Order
If an order is given that is invalid in law, then, by law, it is not an order. As a purported but invalid order, it may be either explicitly or implicitly refused, the latter including the ignoring of it.
Reportedly, near the end of World War II, some Nazi military commanders, who presumably would have preferred to obey Hitler’s orders unmodified, believed that they were then probably on the losing side against the Allies and should expect soon to be facing Allied war crimes trials as defendants. They may then have begun practicing war crime avoidance or minimization.
After the U.S. Presidential election, reportedly some U.S. military generals were reading the U.S. Constitution to determine the extent of their obligation to obey orders,5 given a concern, given previous reportage, that some prospective orders from the new President (after the inauguration in ) would violate law.6
However, the validity of an order, while depending on its legal basis existing, does not depend on the ordering person having had the means to consult an attorney or having consulted an attorney or the order’s legal basis having been verified by an attorney or the order’s legal or factual basis or intent being stated or made available by anyone. Only the order need be communicated. Once that is done, refusal of the order is at the refuser’s peril. While domestic law or a treaty may allow someone to whom an order has been communicated to get a lawyer’s advice, the speed with which the order may have to be executed may preclude seeking that advice and the person receiving the order may have to execute the order or face the legal risk of not doing so. Even a short delay in execution may lawfully be intolerable to the issuer.
The burden on the person refusing can be major, arguably overwhelming. The order’s validity may depend on the knowledge and intent held by the person giving the order, but the knowledge and intent need not be communicated to the person receiving the order or, at least if the basis of the order is the norms, to any domestic person or institution adjudicating whether the person receiving the order had to obey it. In the case of a war, if a foreign nation or international entity conducts a war crimes trial, such as if a person receiving the order in question either wrongfully refused the order or wrongfully obeyed it, under circumstances often obtaining anyone who had the knowledge and knew the intent may be dead or facing the possibility of a similar trial and be unable to recall or be uncooperative on point even if ordered to testify, leaving the defendant without exculpatory evidence that existed or exists and having to face the music alone.
Above National or Domestic Law
Anything superior to domestic law (defined below but not as ‘law about, e.g., domestic relations or domestic corporations’7), even, in the U.S., upon promulgation of the Constitution, stayed superior. Promulgators of domestic law have insufficient power on their own to change that. A nation might influence it, domestic law can organize tools to try, and a nation acting alone might change select pieces of it, but most of it will stay put for a long time, because it takes a lot more than one nation to change it.
Three bodies of law are superior to any nation’s domestic law: part of international law including all of the norms; physical natural law; and the existence of metaphysical natural law (i.e., its concept) although not its content.
More definitions are useful here.
Domestic law is ‘all the law of the nation alone and of subunits of that nation, including the nation’s organic law (except for the case of a law being organic with respect to an identified nation but being law in a treaty or of an entity (such as an international body) other than said nation) and all of the law inferior thereto except international law’. That inferior law includes, in the case of the U.S., statutes, regulations, Presidential Executive Orders, court rulings especially those with opinions, state law (in many other nations provincial law), Indian tribal law, and contracts at least among U.S. nationals in the U.S.
Organic law for the U.S. is necessarily in the Constitution (because of its supremacy clause it cannot be elsewhere), perhaps implied in the preamble, and, before that, in the Declaration of Independence. This is despite one law publisher having considered (and maybe still considering) the entire Constitution and the entire Articles of Confederation to be part of the organic law, about which I disagree because at most only part of each document continued the existence of the U.S., the rest serving other legal purposes; the National Archives and Records Administration refers to them as founding documents.8 (For a U.S. State, the State’s most fundamental State law is likely to be its Constitution and the State’s organic law, depending on the State, is likely either a portion of a Federal statute that granted statehood to that State or a portion of the State’s Constitution by which the State granted itself statehood and which portion is still in effect, with the grant of statehood recognized or accepted by the Federal government.)
International law (also called the law of nations especially in past centuries) is ‘law between or among nations or parts of each or applicable where no nation exists’, such as an international contract; within this sense, a part could be ‘a governmental subunit or a person within a nation’s responsibility’.
The head, in this essay, is generally the ‘head of state’ and not, when embodied in a different person (not the case in the U.S.), the ‘head of government’, who is inferior to the head of state.
All of the law that is above domestic law, including all of the law above the U.S. Constitution, even though it is above the Constitution, is legally enforceable. That is why it is accepted as law, and it has been enforced many times in our lifetimes. Many people have died, been incarcerated, or been required to give up property including money directly because of the enforcement, national borders have been moved by the same cause, and other consequences have been imposed in the course of enforcement. This is true for all of the law above any nation’s domestic law.
International Law
Part of this law above the Constitution is some international law.
International law includes norms and treaties. The norms, also known as general international law and customary international law, are the ‘expectations that nations generally believe every nation should adhere to even if it never agreed to them and which are enforceable’, often by war, large and small, and thus are not called that as psychobabble but are law. By contrast, in ordinary local human interactions, generally speaking, politeness is a norm but rudeness is not unlawful. In the context of international law, the norms are law. In this essay, unless otherwise noted, for convenience, all norms are ‘norms of international law’ and treaties include lesser international agreements, even if ad hoc and/or unwritten (in some contexts, the singular treaty may include the plural).
International law itself has several hierarchical levels. Norms are the highest human-made law, thus above treaties, and there are hierarchical distinctions within those. The highest overall within international law are the peremptory norms, which are ‘norms impervious to attempts to amend them by treaty’ because nations in general forbid some nations from making such an amendment among themselves. Peremptory norms are labeled as jus cogens. One argument is that some norms are biologically caused, as discussed infra, which may explain their asserted unamendability. Other than that, however, it is beyond believability that modern humans, whose ancestors created the peremptory norms and of which the enforcement is solely in the hands of humans, cannot amend them by some method. Presumably, a nearly universal consensus of the world’s nations for such an amendment followed by enforcement of the new legal situation contrary to pre-amendment practice would establish an amendment even of peremptory norms.
Treaties can be valid only if the norms allow honoring and enforcing treaties and if the treaties meet some set of requirements by the norms. The widespread long-term practice of nations in accepting and enforcing treaties even between enemies establishes that the norms do so. A norm doing so could not be amended by fewer nations than have treaties without effectively repudiating those treaties at least as to those parties, and that might still be unlawful, so that it appears that the norm allowing treaties is a peremptory, more-difficult-to-amend, norm.
Below the peremptory norms are the norms that are susceptible or more easily susceptible to possible amendment by treaty among or between treaty parties.
An unconditional surrender is an implementation of a norm that encompasses the war, lawful or not, to which the surrender is applicable, viz., not a war entirely within one nation, and such a surrender is above, and may contradict, anything lower. Thus, any claim that the surrender would be forbidden or restricted by treaties or by domestic law would be invalid.
A surrender is the exercise of a right provided in the norms of international law. A right is exercisable at the discretion of the owner of the right. Therefore, it can be waived or alienated by that owner. That owner may be under existential pressure to do so, but only the owner may do so. As among the rights in the norms are nationhood and sovereignty for each nation, and no provision of domestic law, no matter what it says, can alter the right in the norms to waive a right, a nation may exercise its right to sovereignty by waiving sovereignty, even all of it, and the same for nationhood, a means of doing so being a surrender, conditional or otherwise. The waiver may be permanent and may intentionally be permanent.
The natural person who, in the norms, can act for the nation to surrender is the head of state of that nation. Therefore, the domestic law may not alter or restrict what the head of state may do in order to surrender. The domestic law may not provide a requirement to consult with or accept a decision from anyone else, because so providing would be contrary to the norms and therefore would be null and void. A nation might protest that it needs to distribute its political power to render its misuse unlikely or impossible and that it is too risky to allow one person to have so much power, among other reasons because the head of state might terminate the nation’s nationhood. The only answer to that the norms allow is for the head of state to be generally opposed to surrendering and to protect the head of state from an enemy nation placing the nation in a position in which the head of state might prefer to surrender, but even that much cannot be a substitute for the power in the norms for the head of state to act unilaterally on behalf of the nation so headed by that head of state.
Next below all of the norms are agreements between a subset of nations and stateless persons and that do not bind parties not agreeing thereto.
(I used to think that unconditional surrenders were at this level, but I no longer think so. They’re higher, as discussed above.)
Next lower are treaties that are superior to the nation’s organic law, agreed to without a reservation (inclusively defined) that would position it as lower than that. These would likely be rare among treaties.
Next lower are treaties that are equal to the nation‘s organic law but above any other domestic law, an unlikely if arguably even possible situation.
Treaties that are inferior to the nation‘s organic law are ranked according to that relationship.
Natural Law
Types
Natural law includes both physical and metaphysical.
They can have a gap between them or overlap, because a question of content has to be in one but is considered by humans to be unanswered in either one, thus the gap, or is considered by humans to be answered (not counting not knowing as an answer for this purpose) in both, thus the overlap, such as if the answer in the physical is from scientists on the fringe of the scientific field of study but not from the mainstream of scientists in that field offering the consensus answer, a fringe answer having the possibility of being entirely and forever wrong or of being newly discovered and not yet fully evaluated by scientists for mainstream acceptance. All this, however, does not create a third type of natural law, just uncertainty in the boundary between the two types.
While the body of discovered physical natural law has, empirically, encroached on bodies of discovered metaphysical natural law, there is no requirement that it do so. Stability or reversal are up to people and therefore could occur; and efforts to reverse appear underway. In that context, one could speak of losing or undiscovering some or, conceivably, all of physical natural law. However, at least for our convenience, we‘ll address that as another form of discovery, such as of content of metaphysical natural law.
Supremacy Choice
Fundaments
The other part of this law above the Constitution is some of natural law, consisting of the metaphysical and the physical, but nations and persons disagree on how the physical and the metaphysical are ranked within natural law for the world legal hierarchy. Between the concept of metaphysical natural law (the difference between the concept and the content of such law being discussed elsewhere) and the whole of physical natural law, which of the two is superior to the other is not settled in law. People around the world disagree in such numbers and with such intensity as to leave the matter unsettled as of yet. If attempting to settle the question now, humans would not promulgate that one shall be above the other but would discover and recognize the relationship between the two, possibly erring. This recognition would thus be a matter in the peremptory norms if amendable, nonperemptory norms, and/or other inferior law.
It has been said that natural law is “anterior” to the U.S. Constitution and perhaps to other written constitutions.9 However, natural law preceding the invention of writing or a nation’s domestic law not preceding that invention is not necessarily the case and is irrelevant to natural law’s superiority.
A claim that “natural law” is perhaps not substantive but is a procedure for dispute resolution intended to promote historical consistency is not considered herein. Considered herein is the substantive.
The dispute among many people about the position of metaphysical natural law (combining, as in the popular lay mind, concept and content) in the hierarchy of law manifests in a worldwide tension between theological and secular determinations of law in which, on a given issue, in a given nation, and at a given time, either body of law may be held superior to the other. A predominant folk opinion on which is higher, while not directly dispositive, may properly influence the people who have authority to order the hierarchy, such as if a lay public, democratically or otherwise, through intranational war or otherwise, strips substantially disagreeing authorities of their authority and replaces them with others who largely agree with the public.
Who promulgated metaphysical natural law is relevant. Historians and theologians, among scholars generally, appear to disagree on the closely related issue of whether a human can or did invent any fundamental religious belief or whether only a nonhuman (regardless if human-like) superior or supreme being can cause a human to have or amend a fundamental religious belief. The difference partly determines which body of natural law is supreme.
Promulgation of metaphysical natural law content or any part of it can also have been by humans including atheists if promulgation copied or referenced what was believed into where it would be learned in domestic law by adjudicators not otherwise versed in the content.
If the metaphysical content is partly or wholly from a human or humans who, each necessarily being a national or stateless and regardless of religious belief, is each subject to domestic law, then, while the decision (the concept) that metaphysical natural law exists may be in the norms, metaphysical natural law content is subject to domestic law, and then physical natural law is supreme.
Practicality appears to position the physical above all of the metaphysical. If adjudication of facts requires applying natural law to the behavior of people, that the concept of metaphysical natural law has no practical application in adjudication while physical natural law has content that is so applicable means that people will adjust their behavior to the latter more than to the former.
On the other hand, if the metaphysical natural law is all from a nonhuman supreme being or possibly if it’s all from a nonhuman superior being, so that humans lack authority to amend it or to exempt themselves from it (unless the authority is delegated), that authority belonging to the nonhuman supreme or superior being, then metaphysical natural law is supreme.
A practical application, although hypothetical, may illuminate the relationship between the bodies of law.
Suppose two nations share a theology in which God exists, always has, and always will, is supreme, is omnipresent, is omnipotent, and is omniscient, and allows free will by most or all individuals including when constituting nations. Suppose one of the nations wages existential war against the other, the other thus an enemy. Suppose the enemy wants to continue its existence and is able to fight back.
Should the enemy fight back? If, in the norms of international law, law by people promulgating through nations is superior to theological content law, then yes. However, if the superiority is the other way around, then no. In the latter case, the enemy that was attacked should immediately conclude that the devastation it just suffered at the hands of the attacking nation was ordained by God and therefore was not due to human agency, so that the enemy’s retaliation (if any) would necessarily violate theological content law. Therefore, there’d be no right of self-defense vested in the attacked nation.
Only if the humanly promulgated law permitting self-defense is superior to the theological content law can there be a right of self-defensive war or other breach of sovereignty on any otherwise-lawful scale. That right is recognized, and therefore, among nations, the humanly promulgated law permitting self-defense is superior to the theological content law.
Results of the Supremacy Choice
Which one is supreme has consequences. Perhaps both are.
If physical natural law is above the metaphysical natural law concept, then the metaphysical concept bends to the physical. If the heirarchy is the other way, then the physical bends to the metaphysical concept. This reflects the global debate between science and faith. One famous scientist, Stephen Z. Hawking, gave a lecture on science to a major religious leader; the lecture included a new line of research then being pursued; the religious leader gave permission for the research to continue; the scientist later wrote publicly on his reaction to a notion that permission might be needed for a scientific inquiry.
That all of one is superior to all of the other cannot be established, just as, within physical natural law, the superiority of mathematics over physics or vice versa cannot be established.
That this part of the heirarchy is unknown does not stop various people around the world from acting as if it is established and known. Thus, the heirarchy above the norms may be a matter of treaty and domestic law in the absence of clarity from above, even though lower law cannot establish such a relationship in higher law, only pretend to well enough to satisfy some people.
Knowledge
Natural law differs from inferior law in how we develop our knowledge of it. Whereas inferior law is known mainly from promulgations into existence, natural law is known mainly from discovery of what already exists. Promulgation and discovery are not always mutually exclusive. An overlap may occur when, for example, a law anciently promulgated and since forgotten is newly discovered or if a human creates, essentially promulgates, a new provision of natural law. Nonetheless, promulgation and discovery tend to occur almost as if they are mutually exclusive.
Knowledge of natural law presents some challenges. It includes some so ancient, some likely dating back millions of years, that all we know of it are the known prehistoric, historic, and modern conclusions, thus often incomplete in content. While gaps in promulated law have fallbacks, such as that in criminal domestic law of some nations an offense not promulgated is not an offense, an undiscovered provision of natural law is still part of natural law and may be just as binding as what has been discovered in natural law. Thus, error in discovery differs from error in promulgation in whether the relevant law is changed by correction of error.
Natural law is stated and enforced by humans using the means of legal communication and law enforcement, including war, court, and soft law. Thus, it is left to the persons controlling those tools to determine what it is for which they will use those tools, thus the content of natural law. Since the combination of statement and enforcement almost always requires the participation of multiple humans, determining the content of natural law is not merely a matter of the personal opinion of one individual but of determining what is law beyond such individual, and, in general, a consensus in a geopolitical community is required.
Natural law, being less well organized than is better-documented domestic law, presents an additional challenge to the understanding of its content. While the application of any law depends first on its plain words, when the law does not answer how to apply it to given facts then what to depend on next may vary by the type of law. For humanly-promulgated law, parts of domestic law, at least in the U.S., may be subject to study for, inter alia, the intent of the Framers in the case of the Constitution, legislative history as determined from public reports and published (sometimes, reputedly, retrospectively written) debates of legislators at the time of statutory enactment, the purpose of a statute as stated in the statute, and the testified-to intent of the parties to a contract. On the other hand, for natural law, what to depend on next may be impossible for a jurist to determine; there may be nothing and so there commonly may be, when applicability to given facts is uncertain, error.
Physical Natural Law
Fundaments
Physical natural law is the law required by the subjects of scientific investigation, whether its content has yet been discovered or not (and probably not all of it has yet been discovered). (What I think is only a tiny possibility is that we might have gotten every last bit of it wrong; if so, we simply haven’t discovered it yet.) What is physical for a definition of natural law is more than what most people ordinarily think of as physical; for purposes of natural law, the physical includes at least mathematics and logic.
A slimmer possibility of human invention of scientific content exists. Given the acceptance by scientists that many of the laws of physics date from shortly after the Big Bang and that the number of possible Big Bangs is not limited to one (although only one is known and others hypothesized as possible are generally speculated on as earlier or simultaneous rather than later) so that if a human could cause a new Big Bang (no evidence that a Big Bang could or could not be caused by a human exists so this is speculation protected only by lack of disproof), then possibly a human could cause there to be a new law of physics. If a human could, by now-unknown means, cause a new Big Bang and if a human could survive it, then the human could have invented new scientific content of and subjected a human to a humanly-promulgated body of physical natural law.
Generally, however, the content of physical natural law is pre-existing and subject to discovery, not promulgation. Either way, its expression is prerequisite to recognition in physical natural law. It’s also humanly subject to consensus before that recognition, unlike with treaty and domestic law codifications, in which a single text is generally prima facie authoritative or even has positivity until explicitly amended.
The consensus on a point of physical natural law is subject to evolving in a community of scientists. Thus, agreement on the exact content of physical natural law is less than it is for published written legislation and kindred documents (such as the U.S. President’s Executive Orders). One problem for people not in a field of science is determining which community of scientists may establish a consensus for purposes of enforceable law. For instance, the law of biological evolution is much in dispute between theologians and biologists. Whether 1 + 1 = 2 or 1 + 1 “by the grace of God” = 2, even if the said “grace of God” is always present (I do not know if the theology of any faith community considers such grace to be intermittent, potentially intermittent, or constant), is less widely in dispute, it’s still in dispute.
Such disagreements may be more common among less-educated people, who are therefore less aware of what nonproximate people claim and who may be less likely to be judges and speakers of law. If that’s so, those individuals responsible for applying law to given facts may be more likely to apply the currently correct law.
Nonetheless, it can and sometimes does happen that a person with that responsibility will commit an error in not understanding where and how content is to be found and thus in applying physical natural law. Many well-educated, long-experienced, and highly-respected judges commit errors in applying legislated and judicially-discovered law that has been widely published in advance, including by reversals on appeal, so, by the principle underlying the firmness of that law despite errors, the existence of errors in the understanding and application of physical natural law does not alter that the whole body of physical natural law is law in the human legal sense.
Technology and Engineering as Distinct
While physical natural law consists of scientific content humans probably don’t create, technology is characterized by the creation of new forms worldwide, daily and often deliberately. Technology or engineering, while based on science, are not themselves science as scientists generally define science (notwithstanding a more encompassing definition that may be found in a dictionary of commonly-used English). In view of the distinction, and even though technology is relevant to most law, such as in methods of how sovereignty can be breached and in methods of how war can be scaled, technology is not in the content of physical natural law, science is.
Application
Physical natural law is found and confirmed through science by scientists, who might be academic, practicing in industry, governmental, or independent of all three; then, legal specialists notice (and perhaps restate) and apply some part of it as human law. By the time legal specialists begin applying it and perhaps as much as infinitely before, besides it being law in the way that scientists talk about law, it is part of the law that humans enforce against each other by war, in court, and by like means.
How much everyone needs to know of it, physical natural law, cannot be determined by saying merely that “ignorance of the law is no excuse.” An adjudicator of liability may apply an expectation (a standard) with respect to what content of physical natural law a given person is required to have known prior to the alleged transgression in question, some content being considered to be common knowledge even among young children and some other content being considered specialized knowledge not likely to be understood even by most university professors, as with a new discovery only recently reported in a peer-reviewed journal and too recently published for replication.
For physical natural law that should be familiar to most children and all adults, hypothetical examples can illustrate its applicability. Consider a shopkeeper. A customer buys a one-dollar item and pays for it with a ten-dollar bill, but the shopkeeper returns only two dollars in change, so the customer sues under domestic law. The shopkeeper tells their defense lawyer that no human being and no group of humans ever enacted the so-called law of subtraction (and we’ll assume that that’s true), so the shopkeeper can invent any law of subtraction. Business has been very profitable ever since the thought of that possibility came up, so profitable that the shopkeeper is willing to pay to go all the way to the U.S. Supreme Court over this issue. The shopkeeper’s lawyer will be able to point out that the world-wide law of subtraction is absolutely binding and its existence won’t even have to be proven in court with a mathematician’s testimony, since, under U.S. law, the court can simply take judicial notice that ten minus one is nine without further ado and the shopkeeper will be better off following that law, which is in physical natural law.
Consider another hypothetical case, that of a competent adult who carelessly throws a brick up in the air. Even if the adult is a muscle-builder, the brick will go only so far up and then it will come back down. If the falling brick cracks someone else’s shoulder and that person sues the brick-thrower, even if no human being, no group of humans, ever enacted the law of gravity and even though many people still misunderstand the science of gravity (and let’s assume that no such law was enacted and the scientific law is still widely misunderstood), under domestic law the brick-thrower will still have liability. Maybe the brick-thrower and the person with the injured shoulder can’t explain what Albert Einstein said that corrected Isaac Newton, but the brick-thrower is still forbidden to throw the brick so that it causes the shoulder to get broken, the chain of causation including what is generally known about gravity, which is that something doesn’t get very far from Earth without more power than a human can heave it with and then it will fall, and how it falls can be consistently predicted with practically sufficient accuracy, as physicists would know, so societies hold people responsible for accounting for basic gravity when they do a great many physical things.
In U.S. law, there is a good Constitutional argument that the government may not restrict the right to breathe air that includes oxygen. However, there is not a good Constitutional argument that the government may not restrict the breathing of water, even though it often contains oxygen. A parent requiring a child to breathe water exclusively more than briefly would probably be abusing the child; and a conviction and sentencing of the parent for child abuse would likely be upheld. This is because the Constitution directly applies to humans and not to fish and, due to physical natural law, humans breathe air and cannot survive if breathing water instead of air, even though water typically contains oxygen. Even though the Constitution does not mention air, water (for use in breathing), oxygen, or breathing, the Constitution, as domestic law, accommodates superior law, in this case, physical natural law.
Society could not have a legal system that did away with all physical natural law, some, possibly yes, but not all. Physical natural law, insofar as enforceable, is law as lawyers know law.
Metaphysical Natural Law
Fundaments
The metaphysical is essentially the theological or the religious. In U.S. law, that includes the moral and the ethical if either is as equally important to the belief holder as the otherwise religious. All of this is limited in natural law to the part of theology or religion that is law. Whether the metaphysical includes beliefs held by very few nonelite people and which are thus practically unenforceable due to outnumbering or overpowering by people with contrary beliefs, or which are of lesser importance among believers, and which are thus not subject to enforcement but may alter other enforcement, is unknown. Beliefs that are not subject to enforcement and not altering other enforcement are not part of law (I do not attempt to identify or distinguish particular statements in theology that are part of law or are not, that being a likely subject of dispute from and among theologians).
Part but not all of metaphysical natural law is superior to the norms. The part that is superior is the concept of metaphysical natural law, abstracted from content. An atheist can accept that the concept is superior. The superiority exists not because of any statement or logic independent of humans but because most people around the world believe in part that it was created by other than humans (even if it was not, a possibility that some would consider moot, the belief generally consistent with that in prima facie reproductions of statutory law), the belief necessarily positing the metaphysical natural law concept as law above law that humans created, and therefore demand that all law be enforced accordingly, with the consequence that most people at least implicitly manage their legal lives and the legal lives of atheists as if it exists, so that even many an atheist is implicitly persuaded or forced to live consistently with the concept (even if the content is optional, part of which content often is not optional).
The content, however, is within treaty and domestic law. The metaphysical (e.g., a supreme being or beings or posthumous destinations or stages) need not physically exist for enough persons to believe it does that they preserve its existence in metaphysical natural law content, and enough do. They believe it also has content typically addressing matters of nonhuman (if human-like) humans’ relations with supreme and superior beings, relations among humans, and humans’ relations with the rest of the infinite universe, generally in approximately that order of priority. However, persons disagree on what is in that content, to the point that the content varies between nations, so any part of the content that is internally consistent (not all of it is) is not universal law but all of the content is within treaty and domestic law.
The part of treaty and domestic law stating metaphysical natural law content may be relatively small, as in U.S. law which treats it generally as a private matter not to be legislated, or empty, as may be aspired to in an antireligious nation. However, some national systems that recently minimized or excluded metaphysical natural law content collapsed and were replaced. The modern frequency of that suggests that lowering or denying religion may lack credibility if enough people prefer unquestionable faith, so that, if that preference is virtually worldwide and viewed as necessarily supranational, metaphysical natural law content may be a necessity for public credence for law in general, lest people no longer tolerate obeying some large volume of law. While that virtually worldwide popular demand could be argued to position metaphysical natural law content as at least above domestic law and perhaps as supreme, that nations embrace conflicting theological contents as law and apparently no longer consider waging war over religious difference to be lawfully justifiable by the norms renders that unsupportable and a supportable view is that public demand for religion is so widespread and deeply-held that a nation politically must include some in its domestic law or risk an internal dispute, perhaps intranational (civil) war, as experience over centuries has shown.
That the totality of the content appears to lack internal consistency, so that internal consistency can be found only within one or another part of the content, encourages comparison by people of parts of the content, and that comparison has often been performed and has shown that metaphysical natural law content may be unique among bodies of law discussed herein in being discovered or created by people who, for the most part, reject each other’s pronouncements and refuse to reconcile their differences so as to agree on content. The content is so much debated that some people have been slaughtering each other in mass quantities over the centuries with retaliation in kind. While secular members of, for example, U.S. legislative bodies divide by ideology and party and still operate as one body, the people who find Christian content for metaphysical natural law and those who find Muslim content for the same law may never in their lifetimes cooperate and may consider the other people due only for death even while each develops metaphysical natural law content with the intent that it govern all people regardless of faith until conversion or death, i.e., universally, and that it be unamendable by anyone else even if allegedly not entirely knowable by a human. Yet, the variations lawfully contradict each other, at least in part, the contradictions being resolvable into a seamless web only by the content being within treaty and domestic law.
The origin of the content is a particular subject of debate. The debate is whether all of it is humanly created or some comes from nonhuman superior or supreme sourcing and some people are attributing their claims to nonhuman superior or supreme sourcing when they’re just human inventions, mainly when two groups of people disagree on the content and each group says the other made theirs up. However, that theology includes some that is apparently prehistoric in origin means that we can’t be, and aren’t, sure of its origin. Whether humanly invented or discovered, its expression in human ways is prerequisite to recognition in metaphysical natural law content enforceable in secular venues. (Some is said to be unknowable, but a human could not enforce an unknown law in a court or in a sovereignty breach, although what is unknown within an enclosing known framework can be so enforced.) It may also be subject to consensus before that recognition, and it may or may not be unlike treaty and domestic law codifications in which a single text is generally prima facie authoritative or even has finality until explicitly amended. Thus, disagreement on the exact metaphysical natural law content may be more than it is for published written legislation and kindred documents (such as the U.S. President’s Executive Orders). Such disagreements may be more common among less-educated people, who tend to be less aware of what nonproximate people claim and who may be less likely to be judges and speakers of law, so that those individuals responsible for applying law to given facts may be more likely to apply the currently correct law.
Nonetheless, it can and sometimes does happen that a person with that responsibility will commit an error in not understanding where and how content is to be found and in applying metaphysical natural law content. Just as many judges of domestic law err in applying published law, as partly shown by reversals on appeal, and errors also occur in some adjudications of the applicability of physical natural law, the existence of errors in the understanding and application of metaphysical natural law content does not alter that all of metaphysical natural law is law in the human legal sense. Metaphysical natural law content is found and confirmed, and perhaps created, through theology by, generally, theologians, who might be academic, practicing in houses of worship (where they need not have followers or believers but likely are more credible when they do), governmental, or independent of all three; then, legal specialists notice (and perhaps restate) and apply some part of it as human law. By the time legal specialists begin applying it and perhaps as much as millennia before, besides it being law in the way that theologians talk about law, it is part of the law that humans enforce against each other by war and in court, for example.
How much everyone needs to know of metaphysical natural law cannot be determined by declaring merely that “ignorance of the law is no excuse”,10 although some religious leaders may say words to that effect. An adjudicator of liability may apply a standard with respect to what metaphysical natural law content a given person is required to have known and to obey prior to the alleged transgression in question, some content being considered to be common knowledge (and appropriately so) even among young children and some other content being considered specialized knowledge not likely to be understood even by most religious practitioners and university professors. Nonetheless, metaphysical natural law, insofar as enforceable, is law as lawyers know law.
Whether Only as High as Treaty or Domestic Law
In modern times, purported decisions instituting or denying, contrary to international or domestic law, the existence of particular boundaries, leaderships, population compositions, rights, and obligations of nations, which wars, if any, are justified and, specifically, on whether perpetual war of unlimited scale for the complete annihilation of a people or a nation on the ground of theological difference is justified or required, on the validity of some treaties, on economic, political, and social matters of nations, on adjudicatory procedural matters of nations, on who shall be forbidden to live, and on understandings of physical natural legal provisions that are not as physical natural law would understand them are usually void or rejected, including by treaty, by nations which are recognized under international law. Thus, the practice of nations (often referred to as the practice of states, with states as nations) establishes that metaphysical natural law content is no higher than treaty law.
Where treaties do not address it, it appears to be within domestic law only. Some nations have replaced their choice of metaphysical natural law content, including that England arguably had changed its official national faith affiliation from Roman Catholic to Protestant,11 that Tanzania reportedly required nationals to abandon older indigenous faiths and replace them with a choice of faiths deemed more modern,12 and that the Soviet Union officially had instituted what it called “scientific atheism” to discourage a God-based faith, that of the Russian Orthodox Church,13 with related examples including former colonies, circa when they gained independence and became nations, changing their faith affiliations. Some such changes occurred apparently without other nations waging war against the changing nations on a ground akin to rejection of a faith.
Another type of instance is when a nation of one faith after winning a war finds it pragmatic to leave a losing nation’s survivors to their own differing faiths and does so, whether or not to focus on the victor benefiting in another way, such as economic.
Those patterns suggest that the entirety of law generally treats the choice of metaphysical natural law content as a subject for domestic law, therefore that all of it, except for what is encompassed by treaty, is within domestic law.
Mispositioning as Above International Law
There is an argument that metaphysical natural law content could be or could become superior to international law.
An example shows how it could be. Saudi Arabia is an almost-exclusively Muslim nation14 that is the home of probably the most popularly vital location for Islam, Mecca. Islam is a religion for which claims are for more than a billion and a half adherents globally,15 out of seven billion humans alive,16 with about a third of the billion and a half concentrated in Africa and the Middle East.17 Suppose Saudi Arabia were to change its faith affiliation to one for which Mecca would be irrelevant, Saudi Arabia were to have no issue with any other nation that might lead to war, and another Muslim nation were to fear that Saudi Arabia’s decision would induce a large population to emigrate, even without any national permission, to Saudi Arabia to save Mecca and Islam. Suppose that would leave the emigrated-from nation too weak to survive an immediate challenge (human or otherwise) that threatens the existence of the population-losing nation.
Would Saudi Arabia changing its faith affiliation and the large enough emigration to Saudi Arabia from the nation in question alone constitute an existential threat to the population-losing nation justifying a self-defensive war against Saudi Arabia? That might constitute a war that has as its purported justification a theological one, placing metaphysical natural law content as equal to or higher than the norms. That seems legally unlikely.
But it may not be. Arguably, dozens of largely Muslim nations are at war against Israel on, one might say, the theological ground that perhaps the world but at least the general neighborhood containing a number of nations should be Muslim and therefore not a home for Jews or Israel, the grounds more commonly stated being, in that case, additional. This may combine the principle of the sphere of influence or backyard dominance being part of the norms with a principle, if it exists, of metaphysical natural law content being equal or superior to the norms.
More examples of ambiguous cases abound. During the Cold War, U.S. complaints that the Soviet Union was exporting “Godless” Communism18 might have been thought by some a ground for war but the legal role that the Godlessness itself had in that thought and in that conflict is unknown and, I think, untested. The export of Communism by the Soviet Union was possibly such a ground against Cuba as an importing nation and Soviet Cold War ally. Godlessness as a faith system and Communism as an economic and political system are apparently separable (some practitioners of religions that fundamentally oppose Godlessness reportedly also practice Communism, although likely no entire religious body of adherents do).
A disagreement existed between the People’s Republic of China and the Holy See (related to Vatican City State and the Roman Catholic Church) on which entity could appoint bishops for the Roman Catholic Church in the P.R.C.19 but whether that disagreement ever became war in the legal sense (including small war few people would have noticed) is unknown.
But no clear-cut case appears to exist for metaphysical natural law content being superior to international law.
Whether Error Dispositive and Rectification
A single error in determining the law or in how to apply it does not change the law. Repetition of the same error by many adjudicators over time to a degree that miseducates the part of the general public that is supposed to apply such law may change the law. Re-examination of the law may lead to rectification of the error. On the other hand, a discovery that error has been committed may not suffice for its correction or, if correction is awarded, may not suffice for correction for other misdecided adjudications, especially in other places or past times.
Rectification of an error in determining or applying promulgated law may be with a new promulgation; in the U.S., this is sometimes an underpinning of a court decision relying on a judicial precedent that is challenged by a party as being based on an erroneous interpretation of a statute, because the courts value judicial precedents for offering predictability of outcome for a given course of behavior in which a prospective party might engage, believing it lawful. Rectification of an error in determining or applying discovered law may be with rediscovery; this gives primacy to the work of scientists, theologians, and speakers of law in trying to discover portions of physical and metaphysical natural law and the norms of international law, respectively, and to remind affected people of a past discovery; because discovered law is almost never susceptible to amendment, parties may need to re-examine past discoveries and adjudicators may have to accept that past decisions were erroneous and shun precedentialism more readily. An example of an error in physical natural law was Albert Einstein’s discovery of the cosmological constant in support of relativity, a discovery he later renounced as the biggest blunder of his life. His work in relativity has had a measurable practical effect in the GPS geolocation system and retention of the hypothesis of the cosmological constant could have affected legal adjudications.
Focus on the Norms
The main concentration of this essay is on the norms.
