Saturday, March 28, 2015

The Higher Law

The month of March has been swamped by my directed research writing project. I have to complete 100 hours of research and writing and have a completed draft to show my work. I decided to explore the application of "higher laws" in society. While I was originally more familiar with the higher laws that Christ explained in the Sermon on the Mount:

I chose to explore the higher laws followed by the Navajo Nation. Since I've really worked hard on my paper, I thought I'd post a portion of the introduction:


Living the Higher Law: The Navajo Nation and Civil rights

In 1945, German military leaders were tried for the atrocities they committed against the Jews during World War II. They argued that they should not be punished for obeying the laws of their country and that their “crimes against humanity” had been defined after the fact, thus making their prosecution ex post facto. Although the United States and other nations recognize the importance of obeying the laws of the land and prohibit prosecution ex post facto, they proceeded with the trial. As the lead prosecutor, Robert Jackson explained that even rulers are under God and the law.[1] He stated that international law recognizes certain principles (“the law”) that have been held to be universal, such as the Crime of Plotting and Waging Wars of Aggression, the Crime of Violating a Treaty, Crimes Against Humanity, and the Law of Individual Responsibility. “Does it take these men by surprise that murder is treated as a crime?” he asked.[2]
The laws Robert Jackson cited are what are known as “natural laws” or “higher laws.” These laws are rules of conduct “arising out of the natural relations of human beings, established by the Creator.”[3] They include principles such as honesty, temperance, humility, and cooperation. Rarely to governments hold their citizens to such high standards in all aspects of their lives--rather, they are enforced through more limited laws and ordinances. For example, most nations have enacted laws against murder. Even in ancient times, communities followed the mandate: “thou shalt not kill.”[4] However, when Christ came, he established a higher law, which encompassed the old law: “But I say unto you, that whosoever is angry with his brother without a cause shall be in danger of the judgment.”[5] While most nations will not enact laws against anger, they will enact laws restricting the expression of anger, since anger leads to willful infliction of bodily harm, i.e. assault, battery, etc.
There are few examples of nation-states enforcing higher laws outright, and the Navajo Nation is one of them. Unfortunately, the Navajo Nation has been overlooked in the discussion of higher law, as most scholars have focused on the international and Anglo-European applications of higher law. This paper will provide an introduction to higher law in Navajo culture and encourage legal scholars and legislatures to turn to the Navajo example in discussing the theory of higher law.
Since the creation of the Navajo Nation Supreme Court in 1985, Navajo justices have sought to apply Navajo higher law in the enforcement of civil rights. Over the years, the court has become increasingly confident in the application of higher laws to legal principles.[6]  In 2002, the application of such higher laws was solidified when the Navajo Nation Council (their equivalent of the Legislative branch) passed a statute recognizing the existence of Navajo higher laws and mandating that they be considered first when interpreting statutes.[7] This has led to a broadening of rights guaranteed to both Indians and non-Indians under the Navajo Nation’s jurisdiction.

Rhetorically,
Rebekah




[1] Robert H. Jackson, Opening Statement Before the International Military Tribunal, available at http://www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-by-robert-h-jackson/opening-statement-before-the-international-military-tribunal/.
[2] Id.
[3] “What is Natural Law?” Black's Law Dictionary Free Online Legal Dictionary 2nd ed., available at http://thelawdictionary.org/natural-law/.
[4] Exodus 20:13.
[5] Matthew 5:22.
[6] Paul Spruhan, The Meaning of Due Process in the Navajo Nation, in The Indian Civil Rights Act at Forty 119, 123 (Kristen A. Carpenter, Matthew L.M. Fletcher, and Angela R. Riley, eds., 2012).
[7] Spruhan, supra note 6, at 123.

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