In the seventeenth-century, the Dutch lawyer, magistrate, and scholar Hugo Grotius advanced Protestant natural-law thinking by grounding it in human nature rather than in the divine commands of God. As he claimed, “the mother of right—that is, of natural law—is human nature.” For Grotius, if an action agrees with the rational and social aspects of human nature, it is permissible; if it doesn’t, it is impermissible.
This view of law shaped his writings on jurisprudence, which in turn, had a profound influence on the shape of the law in the West. The Founding Fathers of America considered Grotius’s jurisprudence to be authoritative and relied on it when forming their perspectives on such areas as international law. One of the principles that Grotius advanced—and that was enshrined in our common law—was the concept that for a formal contract to be legally binding it must be entered into freely and with the consent of all parties involved.
In certain circumstances, such as when entering into commercial contracts, consent is considered to be inviolable precondition. If a person who is incapacitated and is unable to give consent or makes an agreement under duress, the contract is rendered invalid. Today, we consider this principle to be such a basic legal axiom that it seems inconceivable that anyone would challenge it.
And yet, that is precisely what the Obama Administration is doing with its inclusion of an “individual mandate” in the Affordable Care Act.
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