By Hilary White

GARDONE RIVIERA, July 19, 2010 ( – The roots of the anti-life and anti-family movement in law around the world go deep into the history of philosophical errors of the 18th century, a pro-life legal expert told (LSN) recently. “Legal positivism,” or the idea that “the law is whatever is posited,” is an idea that is divorced from 3000 years of the legal philosophy of the west, said Christopher Ferrara. It is also an idea that has resulted, inevitably, in legalized abortion, contraception and “gay marriage.”

Ferrara, whose New Jersey-based American Catholic Lawyer’s Association focuses on pro-bono work defending pro-life activists, spoke with LSN on July 9th in Gardone Riviera in northern Italy where he was a speaker at the Roman Forum conference. Among Ferrara’s notable cases was his defense of Terri Schiavo, the disabled Florida woman whose husband ultimately succeeded in euthanizing her by court-ordered dehydration.

Ferrara told LSN that because of philosophical changes that began in 18th century England and France, “the law is no longer rooted in the Natural Law, the divine law, the concept of all of life being ordered according to a divine plan for man, and which is eternal law, has all been lost.”

(Read the complete interview here)

Enlightenment political concepts of “the liberty of man,” he said, have “given us Roe vs. Wade, 50 million abortions and the destruction of the family through divorce and contraception.” What is left, he said, “is the illusion of social order” based on nothing more than commerce.

The problem of legal positivism – the concept that the law is whatever we say it is, without any principled foundations – ultimately comes from “the shifting of our civilization onto liberal foundations” over 200 years ago, Ferrara said. These foundations were laid down first by the French thinker and radical sceptic Rene Descartes (1596 –1650) and were later carried into the realms of law and politics through the works of such Enlightenment luminaries as John Locke, Thomas Hobbes and Baron Charles de Montesquieu, the founders of the modern liberal democratic states.

The result was a legal philosophy that specifically excluded the state from concern for the human soul. According to Locke, “The magistrate [legal authority] has no concern for the care of souls.” Instead, Locke said that the law should only concern itself with protecting life and property.

This philosophy, said Ferrara, has left modern states without any grounds for maintaining laws defending the moral realm, “Because beyond security of persons and property, on what grounds do you stand to prohibit, for example, contraception? That’s no threat to peace and security.”

He continued, “In terms of life issues and positive law, the fundamental problem is that political modernity no longer cares about the question, ‘what is man?’. And certainly not the question, ‘what is man for?’ which is to know, to love, to serve God in this world, and to be happy with Him forever in the next.”

“So the modern state is basically a peace-keeping operation that exists only to preserve an outward security of persons and property. And not very well at that, I might add. It no longer exists to escort man, within the sphere of his competence, to his final end in [eternal] beatitude by appropriate laws that protect the moral order.”

Ferrara said that when there is “no integration of the law with a vision of man as ordered to eternal beatitude” the law becomes corrupted and subject to whatever the social whims of the time decree.

In Locke’s own time, the logic of his positions led him to doubt the humanity of the unborn. Ferrara quoted Locke’s famous Essay Concerning Human Understanding, in which he asks whether the fetus is “a man” to be “nourished and baptised.” Locke’s predecessor Thomas Hobbes went further, concluding outright that the fetus is the “propriety” or property of the mother until birth, an opinion that is the current legal condition of the fetus in Canadian and US law.

Ultimately, Ferrara said, this Lockian vision of the state has reduced western societies to being one “vast trading ground, hosted by secular governments which now completely prescind from the question of what man is, or what man is for, and which pretend to be religiously neutral, when they’re not.”

In the new state, man is nothing more than “a bundle of desires attached to a bundle of rights.” This view of man, adopted by modern “secular” states, he said, leads inevitably to state persecution of traditional religious faith.

“In fact,” Ferrara said, “the very function of such a state is to protect itself from religion, not to guarantee the free exercise of religion, but to protect itself from religion.”

(Read the complete interview here)

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