Dec 1, 1978
Natural Law: Dead or Alive?
Philospher Henry Babcock Veatch explores the long history and vibrant future of Natural Law.
Surely, the ancient and honorable doctrine of natural law is dead, is it not? And many would add, “Long dead and well dead!” What, then, can a bibliographical essay such as this amount to, if not to a kind of funeral oration, or else to a chronicle of “old, forgotten far-off things, and battles long ago”?
Not so, though. For two excellent recent historical studies—the older and shorter one by A.P. D’Entrèves, and the longer and very recent one by M.B. Crowe—both tell a similarly fascinating story of the continual births and rebirths of natural law doctrines in the course of their long history. Professor Crowe has even remarked that “the natural law, as an idea, is almost as old as philosophy itself.” He thinks he can find the origins of a natural law doctrine even among the pre-Socratics. Following this, it received at the hands of the Sophists what appeared to be, if not a death-blow, then certainly a serious set-back. Plato and Aristotle, however, promptly revived it, if not in name, then certainly in essence. And with the Stoics, it really came into full flower. Proceeding, then, to the Christian thinkers of the Middle Ages, natural law doctrines at first enjoyed a rather more dubious status, only to receive eventually their most definitive formulation and justification at the hands of St. Thomas Aquinas in the thirteenth century.
In the later Middle Ages and the Renaissance, to be sure, there occurred something of an eclipse, only to be followed by the great sunburst of natural law doctrines, albeit in somewhat altered form, in the seventeenth and eighteenth centuries. The great names that always recur are first those of Hugo Grotius and Samuel Pufendorf, and then later and to a somewhat different effect, those of John Locke and Jean-Jacques Rousseau. The story is only too familiar of how their influence carried right over into the Age of Reason, when doctrines of natural rights seemed to crop up everywhere, and not least in America with the publication of the Declaration of Independence, followed by the numerous Bills of Rights in the various State and Federal constitutions.
Once again, though, the flourishing of natural law in the eighteenth century was followed by its apparent demise in the nineteenth century. As one contemporary critic has put it, “the philosophers tended to say that the natural law was not natural, and the lawyers that it was not law.” Nevertheless, with the Thomistic revival in the latter part of the nineteenth century, an interest in natural law appeared to be in full swing again by the first quarter of the present century, particularly in Catholic circles. In this country, Catholic institutions of higher learning, especially law schools, pressed for the teaching of so-called natural law along with positive law; and thinkers of the stature of Jacques Maritain enjoyed vogue and influence alike in their efforts to awaken both Europeans and Americans to the pressing demands of human rights, particularly in the light of the ruthless suppression and perversion of those rights at the hands of the Nazis. Then suddenly, in the late 1950s and 1960s, it was almost as if the bottom had dropped out, so far as natural law doctrines were concerned. In academic circles, especially among philosophers and political scientists, no one talked about natural law or natural rights anymore; and if one did, one was promptly relegated to beyond the pale by scornful colleagues.
And now just as suddenly, and seemingly no less unpredictably, there has been a dramatic revival of interest in so-called “rights theories”—and this just in the last ten, perhaps even in just the last five, years. True, such recent rights theories have not always involved an effort at reinstating anything like “natural” rights, and certainly not “natural law.” Yet many of them have. And in any case, they have all had the effect of bringing the issue of whether or not there is a natural law right out into the open again, thus making it not just respectable, but even imperative to discuss it and to take it seriously.
How “Natural Law” Should Be Understood: The Thomistic View of the Objective Grounding of Ethical Standards
What, though, is this doctrine of the so-called “natural law,” that has thus had such a long and chequered career, and has even displayed, in the words of more than one authority, the happy faculty of repeatedly being able to bury its own undertakers! Quite obviously, the doctrine is aimed at affirming that such things as human responsibilities and obligations, as well as human rights and “entitlements,” are more than a mere affair of human convention or human agreement, and this no matter how enthusiastic or how widespread may be the acceptance of those conventions and agreements. Thus whether it be Antigone in Sophocles’ drama, Socrates in Plato’s Apology, or Shcharansky and Ginzburg of today’s Soviet Union, the mere fact that a person has been convicted of a crime does not necessarily mean that hers or his was really a crime at all. Likewise, what may be right or just according to the standards of a given community or society may still be radically at variance with the standards of a natural right or a natural justice. Yes, might not one be inclined to say that in the Shcharansky case, for example, it is patent and obvious for all to see the glaring disparity between what the civil or military authorities are agreed in saying is just and right and what is really so? For it is an implication of any doctrine of natural law or natural right that the marks and standards of a natural justice are such as to make it recognizable, even in the face of whatever the prevailing conventional or customary justice may affirm to the contrary. Indeed, in this sense natural laws are held to be evidenced by nature itself, and to be there, as it were, right in the facts for all to see, if we have but eyes to see, and are not blinded by habit or by convention or by social conditioning or whatever.
Still, it is one thing to say that in any natural law doctrine, ethical and political standards are objectively grounded, or that they literally have a status as laws of nature, and thus are knowable and rationally determinable. It is yet another thing to understand just how such natural norms and standards may thus come to be known, to say nothing of how they can have an actual ontological status in reality. And it is just such points that we need to be clearer about, if we are ever to find our way around in the contemporary literature, particularly as it surrounds the newly emerging contemporary rights theories.
To this end, we would make reference to an exceedingly illuminating article published in The Monist a few years ago by Vernon Bourke, entitled “Is Thomas Aquinas a Natural Law Ethicist?” It is true that Professor Bourke is primarily concerned with medieval versions of the theory of natural law and with the way in which so-called natural laws were held to be associated with the law of God. In this context “two radically different meanings for natural law” emerged, the one theological in origin, the other naturalistic or secularized, based on the natural light of unaided human reason. According to the one, natural law came to “name a code of moral precepts implanted in man’s nature, or mind, and issuing from the legislative Will of God.” From such a view, what is good or bad, right or wrong, for man clearly depends on divine fiat. Accordingly, moral and political norms, so far from being in any proper sense “natural” or discoverable by reason in the very nature of things, would appear rather to be but so many “ought’s” that are binding for no other reason than that God has decreed them to be so. By contrast, in the other view of natural law, namely, that of Thomas Aquinas, a natural law theory of ethics or politics stresses, as Bourke puts it, “the rational discernment of norms of human conduct, working from man’s ordinary experiences in a world environment of many different kinds of things.”
Bourke’s way of characterizing the Thomistic understanding of natural law may appear to be a bit of a mouthful. But why not consider ethics and politics, as construed in the light of this conception of natural law, as analogous to certain arts, skills, and crafts? Why does the skilled surgeon, for instance, make his incision in one way rather than another? Don’t we say that it is because he knows how to do the job? There is presumably some reason—a real reason—for his doing it that way rather than another. In this sense, we should scarcely say that the rules of good surgical practice are mere agreed-upon conventions with no natural basis at all. Or why does the football coach insist that a tackle be made in one way rather than another? Is it just because he happens to like the one way rather than the other; or is it because there are reasons why one way of making the tackle is better than some other? And so also for countless other skills and techniques—bait-casting, accounting, gourmet cooking, pleading a case, teaching a class, building a bridge, or whatever. In all of these cases the expert is said to know how to do the job, and his knowledge is but a knowledge of what the nature of the case or the situation demands, be it in surgery or fishing or cooking or building a bridge or whatever.
The Art of Living Based on Objective Nature and Reason
Accordingly, in Aquinas’s view the living of our lives, be it either as individuals or as political animals, requires certain skills and know-how. That is to say, just as in the various arts the end in view determines the natural ground or reason for the means used—e.g., the health of the patient in the case of medicine, or the instruction of the student in the case of teaching, or victory in the case of strategy, or convincing the court in the case of legal pleading, etc.—so also in the case of living our lives as human beings and attaining such fulfillment and perfection as is appropriate to human nature, this requires that we know what needs to be done and how we need to conduct ourselves to such an end. Just as in making tackles, or preparing meals, or performing surgical operations, or landing a fish, there are right ways of doing the thing as over against wrong ways. And since there are reasons why in the nature of the case such right ways of doing the job are right, so too, by analogy, in the living of our lives, the right way of doing the thing might be said to be that which is naturally right or just. Thus the various moral or ethical rules that need to be followed in the conduct of our lives may be said to be rules that are determined not subjectively by arbitrary whim but rather by “right reason” considering the pertinent facts. In this sense such moral rules may be properly termed “natural laws.”
So much, then, for the two rival conceptions of natural law, or rival ways of construing the meaning of that somewhat hackneyed, and now rather ambiguous, term. In the one sense, natural laws are to be understood as scarcely “natural” at all, in as much as they represent no more than certain absolute prescriptions and prohibitions, which, so far from being rationally discoverable by human reason in nature, are simply decreed by God. In the other sense, natural laws are thought of as being none other than such rules of intelligent conduct and behavior as any knowledgeable person ought to be able to see are demanded by the very nature of the case, when it comes to the living of our lives. Unhappily, though, it is just such an ambiguity in the notion of “natural law” that has led to no little confusion and misunderstanding, particularly in current discussions of the topic.
Grotius and the Secularization of Natural Law
Nevertheless, before we can move to a consideration of what the current climate of opinion is regarding natural law, we need first to consider certain added features of natural law doctrine that are due to the revival of natural law teachings in the seventeenth and eighteenth centuries. Generally, authorities would seem to be agreed that these features amount to two principal ones. For one thing, Grotius in his treatment of natural law was peculiarly insistent that so-called natural laws could, if one so wished, be regarded as literally and exclusively natural, and therefore as not being of divine origin at all. His point was that natural laws, as he conceived them to be, could be seen as binding upon men even if there were no God, and hence eliminates any claim to divine authority for such laws. Naturally enough, such a stand on Grotius’s part has been interpreted as heralding that increasing secularization of doctrines of natural law that was so characteristic of the eighteenth century. At the same time, be it noted that if the validity and binding character of so-called natural laws is considered to be in no wise dependent upon their being decrees of God, this could not be other than profoundly upsetting to that one view of natural law, that based such laws solely on their proceeding from God’s will. On the other hand, such a secularization of the doctrine of natural law need not be comparably disturbing to the Thomistic understanding of natural law. Not that in Aquinas’s eyes the so-called natural law did not constitute a part of the eternal law of God; and yet as Aquinas saw the matter, the natural laws that are prescriptive of how human beings should conduct themselves are like the how-to-do-it rules in any of the various arts or techniques: there are perfectly good reasons in the nature of the case why such rules are rules; nor are they rules merely because some “ruler” or some authority happened to want things done in that way and decreed that they be done in that way—and this regardless of whether that ruler be man, God, or beast!
From Natural Law to Natural Rights: Is It a Shift in Emphasis or Principle?
But now what of that second feature of natural law doctrine that dates from the eighteenth century? Not only would there seem to be a general secularization of the doctrine, but more importantly, in the eighteenth century, emphasis seemed to shift quite markedly from talk of “natural laws” to talk of “natural rights.” Immediately there springs to mind the whole business of “the rights of man”—the right to life, liberty, and the pursuit of happiness; the right to freedom of speech, of religion, of assembly; the rights of property, and the right not to be deprived of “life, liberty, or property without due process of law”; the right of revolution, the right to representation in government, etc.
Superficially, and even to many authorities, it has seemed that such a shift of emphasis from natural law to natural rights was far from being a major shift. For supposing that as in medieval discussions of natural law, the emphasis was upon what might be called the natural duties and obligations and responsibilities of human begins to lead, as the English Book of Common Prayer would have it, “a Godly, righteous, and sober life,” still there would seem to be a sense in which any and all duties tend to involve rights that are somehow correlative with them. After all, if I have a duty to lead my life and conduct myself in such and such a way, then do I not have a corresponding right not to be interfered with in the performance of those duties, and perhaps even a right to be aided and assisted in such performance?
Nevertheless, the notion that the shift of emphasis from natural law to natural right was but a minor shift, and in no wise a shift in principle, has been effectively challenged by the late Leo Strauss in his monumental work of some years ago, Natural Right and History (1953). According to Strauss, the classical natural law tradition, as it stemmed from the Greeks and from Aquinas, while it could hardly be said to have been without concern for so-called human rights, was certainly not concerned about them in the manner of the eighteenth century thinkers, or even in the manner of most contemporary thinkers either. Instead, on the Thomistic theory of natural law—to take this as an example—human duties and rights are both of them subordinated to, and made intelligible in terms of, the business of human beings attaining their natural and or goal or perfection as human beings.
Suppose that we again recur to our earlier analogy between ethics (and politics) on the one hand and the various arts and skills on the other. For is it not plausible to say that there are right ways and wrong ways for physicians to go about the care and treatment of their patients, and that these ways are determined by the very nature of the case, in the light of the end and purpose of the medical art, which is human health? But analogously, then, when it comes just to the living of our lives, not as butchers or bakers or candle-stickmakers, but simply as human beings, may it not be said that our natural end, or what we all naturally seek or aim at as human beings, is nothing if not simply our human well-being or human perfection just as such, and as contrasted with that more restricted sort of mere health or well-being that the physician is concerned with? For would we not all say—perhaps not Nietzsche, to be sure, but then we scarcely need deal with such an exception in the present context—that someone like Socrates managed to attain an excellence and a perfection, just in the business of being human, that a Hitler or a Stalin, or, in a different way, a Macbeth or a Hamlet, could not be said to have brought off at all? In the light of examples such as these, why would it not be possible to determine what some of those natural laws are—i.e., what some of the right ways, as over against some of the wrong ways, of our going about the living of our lives? As Richard Hooker in the sixteenth century phrased it—in a rhetoric that may put us off somewhat for being strangely Elizabethan, but which is still effective for all of that:
All things that are have some operation not violent or casual. Neither doth any thing ever begin to exercise the same without some fore-conceived end for which it worketh. And the end which it worketh for is not obtained, unless the work be also fit to obtain it by. For unto every end every operation will not serve. That which doth assign unto each thing the kind, that which doth moderate the force and power, that which doth appoint the form and measure of working, the same we term a law.
The Rational Justification of Human Goals: The “Naturally Right” us. “Natural Rights”
Clearly on this conception, a so-called “natural law” simply determines what our natural obligations and responsibilities are in the living of our lives—how we ought to do it, in other words. And as for “natural right,” that term might be taken as but a translation of the medieval expression, jus naturale, much as “natural law” is a translation of lex naturalis. Indeed, it is in this sense that Strauss takes the term in his title, Natural Right and History. Yet note that in this sense of the term a natural right does not so much signify what it is someone’s natural right to do, as rather what it is naturally right for someone to do. And these senses of “right” are far from being the same. Indeed, in the second and more traditional sense of “right,” a right is really equivalent to a duty and obligation, and hence is scarcely “a right” in the current sense of the term at all.
Not only that, but when in the context of classical natural law theory, one asks why it is held to be right for someone to act or proceed in a certain way, or why he is obliged to conduct himself in that way, the answer is always to be given in terms of the end to be achieved thereby. That is to say, given a natural or proper end of human life, then it may be determined both in natural and by reason, what it is that one needs to do or that one ought to do or that it is right for one to do in order to attain that end. But what is this, if not to say that natural rights and natural duties—and hence natural laws as well—are always susceptible of a proper justification? Or in other words, there is always a reason for holding such obligations to be naturally binding upon us: they are so in virtue of the natural end or goal toward which human beings are oriented by their very nature.
Not so, though, “natural rights” in the eighteenth century sense or in the modern sense either. For as Strauss has argued, this newer notion of natural rights was developed in an entirely different philosophical setting from that of the classical or medieval notion. Instead of its being supposed that human beings were naturally oriented toward a proper end or goal of human perfection or achievement, it became fashionable in the seventeenth and eighteenth centuries to consider human beings simply as they are, just naturally and in fact, and quite apart from any fancied notions of what they ought to be, or apart from any supposed natural ends or purposes toward which they might be supposed to be somehow naturally ordered and oriented. In fact, did it really make any sense any more to talk about natural ends or final causes at all? For had not the new science, as it emerged from the hands of the Galileos and the Descartes and the Newtons, simply left final causes out of account altogether? Why, then, continue to talk in the way Hooker had done: “All things that are have some operation not violent or casual. Neither doth any thing ever begin to exercise the same without some fore-conceived end for which it worketh”? Surely, such a way of looking at nature and at the changes that take place in nature would now seem to be outmoded.
Revolution in Natural Law: Hobbesian “Natural” Rights as Subjective Desires
Likewise, with respect to human beings, why not follow the lead of a typical modern thinker like Hobbes, and consider human beings simply in their natural state or condition? For considered in that condition, what is a human being if not a creature of countless appetites and desires? And as for there being any natural end or goal or perfection which a human being is under a natural obligation to strive for and try to attain,
there is no finis ultimus, utmost aim, nor summum bonum, greatest good, as is spoken of in the books of the old moral philosophers. Nor can a man anymore live whose desires are at an end than he whose senses and imaginations are at a stand. Felicity is a continual progress of the desire from one object to another, the attaining of the former being still but the way to the latter…. So that, in the first place, I put for a general inclination of mankind a perpetual and restless desire of power after power that ceases only in death.
Here, surely, is a veritable revolution in the understanding of nature and natural law, particularly as it pertains to human nature. For as Strauss remarks, with respect to Machiavelli:
Classical political philosophy had taken its bearings by how man ought to live; the correct way [now and in the spirit of Machiavelli] of answering the question of the right order of society consists in taking one’s bearings by how men actually do live…. What Hobbes attempted to do [more or less following Machiavelli] was to maintain the idea of natural law, but to divorce it from the idea of man’s perfection; only if natural law can be deduced from how men actually live, from the most powerful force that actually determines all men, or most men most of the time, can it be effectual or of practical value. The complete basis of natural law must be sought, not in the end of man, but in his beginnings…
And what do these “beginnings” of man, or this natural condition of man, as conceived now in the new sense of “nature,” have to teach us regarding man’s natural rights? Clearly, any such natural human rights may no longer be understood in the sense of those things which it is right for a human being to do, or which he ought to do, or has a responsibility to do, in the light of his naturally determined human end or perfection. No, for in his natural condition man is no longer to be thought of as having any natural end or perfection at all; instead, he is but a creature of needs, appetites, and desires. And the need or appetite that tops all others is that of self-preservation, and the desire to avoid death. Here, then, is man’s basic natural right: it is just his inalienable right to self-preservation; and by derivation his right to gratify his desires and appetites, as far as the power within him lies. And so Strauss thus moves to his conclusion as to this new and radically transformed notion of “natural right,” à la Hobbes:
Natural law must [now] be deduced from the desire of self-preservation….[It is this that] is the sole root of all justice and morality. The fundamental moral fact is not a duty but a right; all duties are derivative from the fundamental and inalienable right of self-preservation….duties are binding only to the extent to which their performance does not endanger our self-preservation. Only the right of self-preservation is unconditional and absolute. By nature there exists only a perfect right and no perfect duty…. Since the fundamental and absolute moral fact is a right and not a duty, the function as well as the limits of civil society must be defined in terms of man’s natural right and not in terms of his natural duty. The state has the function, not of producing or promoting a virtuous life, but of safe-guarding the natural right of each. And the power of the state finds its absolute limit in that natural right and in no other moral fact. If we call liberalism that political doctrine which regards as the fundamental political fact the rights, as distinguished from the duties, of man and which identifies the function of the state with the protection or the safeguarding of those rights, we must say that the founder of liberalism was Hobbes.
The Problem with Natural Rights: Are They Natural, and Do They Have Any Foundation at All?
With this mention of liberalism, though, we are getting ahead of our story again. Instead, we need first consider still another point that is relevant to the newly emerging natural rights doctrine of the seventeenth and eighteenth centuries. For so far as these doctrines go, one key question remains: granted that Hobbes may have been right, that on the basis of the new scientific conception of nature in general and of human nature in particular, the natural condition of men is one of ceaseless and ever proliferating appetites and desires; and granted that man’s overriding passion is thus one of self-preservation in the gratification of these appetites and desires; still, why should such a natural concern on man’s part be considered as being in any way a “right”?
Yes, granted that even among all mankind there is indeed just such “a perpetual and restless desire of power after power that ceases only in death,” why should the pursuit of such power be regarded as in any wise a right on the part of those impelled toward such a pursuit? After all, on the more traditional and classical view of natural law, the mere fact that human beings, either some of them or all of them, should be naturally endowed with all sorts of limitless and heterogeneous appetites and desires certainly does not make such desires to be right, or their pursuit warranted.
On the contrary, their rightness is entirely dependent upon their conformity with the standards of what a human being ought to do or be, as judged in the light of a man’s natural end. Or to put it more bluntly, the mere fact of our having certain desires is of no moral import whatever; rather what is morally relevant is only whether such desires as we have are those we ought to have or not. Nor is that all, for as we were at pains to note in our foregoing discussion, on the basis of the more traditional natural law theory, all human duties and human rights may be reasonably adjudged to be duties and rights only in so far as they can be justified, and thus shown to be duties or rights, in the light of man’s natural end and perfection. Take away, then, this notion of a natural end or a natural perfection of human life, and there would no longer appear to be any ground on the basis of which rights or duties of any kind might be rationally justified.
Why Are Natural Inclinations Natural “Rights”?
Yes, suppose we go beyond Hobbes with his basic right of self-preservation, and suppose we open the gates to all of those further and derivative and typical rights so dear to the eighteenth century—and needless to say, to us today as well—the right to life, liberty, and the pursuit of happiness, the right to property, the right to freedom of speech, the right of “one people to dissolve the political bands which have connected them with another,” etc. What is the basis of these rights? Why do we hold them to be natural rights? For that matter, what possible ground do we have for taking any supposed right to be a right, much less these particular rights? For on the modern scientific view of nature, as contrasted with the Aristotelian view to which both Aquinas and Hooker adhered, there just does not seem to be any way in which such things as rights can be said to be items in the natural world at all. And granted that we human beings may be naturally inclined to life, liberty, and the pursuit of happiness; that we do have a natural desire to acquire property, or that we naturally cherish certain freedoms; why suppose that our natural inclinations and desires in these regards can in any way constitute a natural right on our part to such things?
Has Hobbes allowed himself to be somehow befuddled on this score, and have the rest of us who are advocates of what Strauss earlier called “liberalism”—have we likewise just followed suit and let ourselves be taken-in no less than was Hobbes? For surely, on the new conception of nature and the natural, which Hobbes took over from the newly emerging science, and which presumably none of us in this day and age would be so foolhardy as to question, the mere fact that something occurs naturally, or in accordance with the laws of nature, certainly does not warrant anyone’s saying that it was right that it should have occurred, or that it ought to have occurred, etc.
Could it be, then, that our seventeenth and eighteenth century predecessors in the natural law tradition have given us a full-fledged doctrine of natural rights, but without providing us with any rational basis or justification for such a doctrine? Indeed, may we even go further and say that theories of natural rights of the kind that emerged in the seventeenth and eighteenth centuries, and that tended to become but so many appendages to the more traditional natural law theories—could it be that by a strange irony such natural rights theories tended almost unwittingly to involve a recurrence to that one meaning or interpretation of natural law theories according to which natural laws, so far from being discernible or discoverable in nature, are rather to be thought of as simply “issuing from the legislative Will of God”? That there should be such an association of “natural rights” with “natural laws” understood as mere divine decrees, would surely not be without irony. In fact, the irony immediately becomes apparent, the minute we remind ourselves of those two features of natural right theories in terms of which they were originally distinguished from natural law theories of the more traditional sort. The one feature was simply that of the obvious shift of emphasis from so-called “natural laws” to “natural rights”—which thus far has been the feature that we have been discussing at such length.
But the second feature was what we earlier characterized as being one of the increasing secularization of the notions of both natural laws and natural rights, that was so marked a feature of seventeenth and eighteenth century theories. How singular it is, then, that a shift of emphasis from natural laws to natural rights should have entailed so radically different a conception of nature and the natural, as to make it largely unintelligible how natural rights could have any sort of basis in nature at all. In consequence, the affirmation of natural rights—at least in the seventeenth and eighteenth century context—tended to be just that, namely, a mere affirmation. But to imply that natural rights are really not grounded in nature, but are mere affirmations on the part of those of us who subscribe to them—is this not tantamount to holding that such rights are not rights by nature, but only be decree? Not by divine decree, perhaps, but still by decree.
But by whose decree? Apparently, as it turned out, it might be by decree of just about anybody who might come to feel certain things to be very dear to him or very important, and who would then proclaim them to be his rights, or to be somehow ordained for him by nature. Professor Crowe, in fact, gives some amusing, even if incredible, examples of such appeals to natural rights and natural laws as were not uncommon in the eighteenth century. For instance, it was put forward as a serious contravention of the law of nature “to enter unbidden, or to make journeys troublesome,” or to expect soldiers to wear the stiff leather stocks that were then customary. Best of all is an example of a New England delegate to the Constitutional Cenvention in the U.S. who objected to the proposed two-year term for senators on the ground that a one-year term was “a dictate of the law of nature, [considering that] spring comes once a year, and so should a batch of new senators!”
Theories of Human Rights: Their Decline and Fall in the Nineteenth Century and Their Dramatic Rise and Resurgence Today
In the light of examples such as these, is it any wonder that the popular natural law and natural rights doctrines of the eighteenth century should have tended to be pretty well discredited in the course of the nineteenth century? So patently ridiculous were so many of the claims as to what might be natural rights or natural laws, that there came to be an increasing consensus that there just weren’t any natural rights or natural laws at all. Nor was it merely because individual claims of this sort were so often patently ridiculous that nineteenth century thinkers were inclined to repudiate the doctrine of natural law altogether. In addition, one had only to reflect on the character of the natural world, as this had been disclosed by the scientists, and one could readily see that neither value distinctions nor moral distinctions could possibly have any place in nature. Facts were not values; nor was there any way that values could be said to have a place in the world of facts. And even worse for natural law doctrines, was the eventual impact of teachings like those of Hume, who maintained that there is no way in which an “ought” can ever be derived from an “is.”
In fact, to revert again to some of our own earlier examples in connection with Hobbes: granted that men actually do work for their own self-preservation, that certainly does not make it right that they should do so. Or granted that men deeply cherish life, liberty, and the pursuit of happiness, or that they will fight to retain their property, or be resentful of any taxation without representation, or whatever, that still does not as such mean that they have any right to these things, or that anyone who interferes with them in this regard is violating a very right or law of nature. Indeed, to think otherwise is to commit the fallacy of trying to infer an “ought” from an “is,” or a value from a fact, or, as G.E. Moore was to term it years later, it involves “the naturalistic fallacy.” From the point of view then of many thinkers in the nineteenth century and even after, the entire doctrine of natural rights and natural law would appear to rest on nothing less than a patent logical fallacy.
Natural Rights Assaulted: Historicism and Positivism
Of course, this was by no means the only ground on which various nineteenth century thinkers were inclined to challenge natural law theories, be it of law, ethics, or politics—the ground, namely, that all such theories tended to involve a fallacious inference from nature to ethics, from fact to value, or from “is” to “ought.” In addition, there was a widespread tendency for thinkers and scholars, to fall back, as it were, on history, and to regard the process of historical evolution as somehow ultimate and absolute. Thinkers as different as Edmund Burke in England, or Hegel in Germany, kept insisting that there could not, either in justice or in logic, be any warranted appeal to fancied standards of a natural right or a natural justice over and above those actual standards of justice and norms of political action that had been developed and had evolved in the course of a nation’s or a people’s history. It is true that this kind of historicism, if we may so term it, with respect to ethics, law, or politics, does tend to end in a position not far removed from a bland acceptance of the principle that “whatever is, is right.” But at least, the advocates of this kind of historicism could claim that they made no spurious or illogical appeals to any imagined natural norms or natural laws, outside of and beyond the actual historical facts.
Indeed, similar arguments were not uncommon among legal scholars in the nineteenth century as well. For as is clear from our earlier remarks about Grotius and Pufendorf, these men were not so much concerned with a natural law, to the extent that it might have implications for ethics and politics; instead, their preoccupation was primarily with law in the narrower sense and with jurisprudence. Ironically enough, though, just as the natural law thinkers in the seventeenth and eighteenth centuries felt it essential that they be able to appeal to a natural law and justice, over and above the actual laws of a particular country or jurisdiction, or of any particular age or time, by the nineteenth century the pendulum had quite swung in the other direction.
Remember that earlier quip which we quoted to the effect that while the philosophers had come to think that a natural law was not natural, the lawyers had come to think that it was not law. And sure enough, that ancient principle of St. Augustine—and one that was repeated in turn by St. Thomas—to the effect that “an unjust law is no law,” became the butt of criticism and attack on the part of both historicists and positivists among the legal theorists of the nineteenth century and after. How could a law be said to be not a law when it is on the statute books and is actually enforceable? And how can positive laws be held to be invalid and of no effect in virtue of mere appeals to a supposed natural law, when such natural laws amount to no more than ideals having no basis in fact at all? Yes, speaking of perhaps the most eminent of the legal positivists of a generation ago, the late Hans Kelsen, D’Entrèves observes that “Kelsen’s ‘pure theory of law’ can be used to show the Achilles heel of positivism.” For “Kelsen’s refined form of positivism shows its real face [in that it involves] the reduction of law to a mere expression of force.”
Consequences of Nineteenth Century Rejection of Natural Law: Utilitarianism
Once more, though, we are getting ahead of ourselves. For before turning our attention to the contemporary reaction against the detractors of natural law and natural right in the nineteenth century and at the beginning of this century, we must first consider what some of the consequences were, philosophically speaking, of that spurning of all appeals to a natural law, which were so characteristic of the nineteenth century thinkers whom we have just been considering. Certainly, so far as ethics and political theory go, it might not be unfair to say that the rejection of natural law led to a triumph of Utilitarianism.
Superficially, the essence of Utilitarianism can be very tidily summed up in the slogan, “The greatest happiness of the greatest number,” or “The greatest good of the greatest number.” But going behind the slogan, it is not hard to discern alike the sense and the reason for Utilitarianism’s great appeal. For suppose one becomes convinced that there really is no rhyme or reason to invoking such things as natural rights or natural laws. For one thing, it would seem that there just aren’t any such things. And for another, the very enterprise of a natural law type of ethics or politics, in which one tries to proceed from considerations as to what human beings are by nature, and what their natural ends and goals might happen to be, to some sort of argument about what men ought to be or what it is right for them to be—this enterprise is not just unwarranted; it is fallacious, as involving a patently fallacious process of moving from “is” to “ought.”
Or at least, so it would seem. Very well, putting aside all concern with natural ends or goals, to say nothing of the natural obligations and rights that are said to be based upon them, why not just accept the plain facts about ourselves as human beings? For are we not all of us creatures of countless needs, desires, impulses, wants, appetites, and whatever? True, your needs and desires are different from mine; and the other man’s from those of either of us. But why get into a tizzy over questions of what our desires ought to be, or of whether we have a right to satisfy some of our interests and desires and not others? Is not the sensible thing for us to do but to settle down to the business of straightforwardly trying to satisfy just as many of our desires—as many of yours and mine and of all mankind’s—as is humanly possible?
This is what is meant by the greatest happiness, or the greatest good, of the greatest number; and this is all that it means. And meaning this, doesn’t it make eminently good sense? No worries about “oughts” or “rights” in the traditional sense, or about moral values or absolute duties or natural obligations or anything of the sort. Instead, we have only to get on with the business of all of us becoming as happy as possible, and of collectively maximizing our satisfactions in as quick and efficient a way as human calculation may be able to devise?
Rawls, Dworkin, and Nozick: Criticisms of Utilitarianism and Positivism
Alas, though, sensible and even idyllic as this prospect might seem to be that Utilitarianism holds out for us, it turns out to have nothing less than a vicious cancer working at its very core—a cancer that suddenly, and seemingly quite unannounced, burst on the consciousness of so many of us a scarce eight years ago with the publication of John Rawls’s A Theory of Justice. Not that what Rawls had to say was anything very original, and he certainly said it in what many might think to be a somewhat tedious and turgid way. And yet his saying it did somehow manage to capture the imaginations of nearly everyone; and as a result, instead of the plain old diet of ever more and more Utilitarianism, we today have set before us a dramatic revival of so-called “rights theories”—not necessarily theories of natural rights, but still rights theories for all of that. For what Rawls succeeded in bringing home to most was the realization that in any Utilitarian program of the maximization of the satisfactions of all mankind, there was no reason in principle why such a maximum satisfaction might not be a satisfaction of the majority at the expense of the minority, or else, possibly, of the many at the expense of the few.
If the sum total of human satisfactions can be increased, even if it be at the cost of the suffering of some one or of a few or even perhaps of many human beings, then by the Utilitarian program it is just that maximum satisfaction that is to be opted for and aimed at. But aren’t the implications of this rather damning, so far as Utilitarianism is concerned? After all, in the course of the Christian centuries not very many people have been inclined exactly to applaud the judgment of Caiaphas on a certain rather notable occasion, when he said that “it was expedient that one should die for the people” (John 18:14). Yet what could be more in accord with Utilitarian sentiments than just such a judgment?
In any case, in opposition to the Utilitarians Rawls managed to come right out and say that on any interpretation of justice as fairness, to secure a maximum satisfaction for mankind, and yet to do so at the expense of a few, or even of one, would be unjust. It would violate the rights of those individuals, or of that one individual, whose happiness or satisfaction had had to be sacrificed in order that the total happiness of the rest might thereby be enhanced. True, Rawls did not propound this as a natural right. Instead, in his book he provides for a somewhat elaborate apparatus whereby the rights of individuals, as determined in the light of the principle of justice as fairness, will come to be recognized as a result of a social contract.
Likewise, in the field of law, Ronald Dworkin has come out with a stimulating book, Taking Rights Seriously (1977). Dworkin’s main opponent in the book is none other than the brilliant and eminent English philosopher of law, H.L.A. Hart. Now, as it happens, the upshot of Hart’s work in jurisprudence had been his telling defense of the thesis that in judicial proceedings there cannot properly be any appeals to such principles of right and justice as may transcend and so fall outside of the expressed or implied principles and rules of a given legal system. However, it is just this basic tenet of legal positivism that Dworkin undertakes to challenge. Again, it needs to be said that Dworkin does not base his challenge on any invocation of natural law or natural right. And yet for all of that, in his own enterprise of “taking rights seriously,” Dworkin implies that the rights that he would take so seriously and would have others take seriously are precisely such rights as may well not be included within the positive provisions of a given legal system.
But then just where do these extra-legal rights come from? Moreover, so long as Dworkin fails to make clear just what their origin and basis is, may he not be criticized for not fully facing up to the question of whether there is a justification, and, if so, what the justification may be, for supposing that there really are such rights in the first place.
Indeed, no less a criticism and in a somewhat similar vein could perhaps be directed at another new and even somewhat electrifying book by one of the new rights theorists, namely, Robert Nozick. That is the book Anarchy, State, and Utopia (1974). Nozick’s basic conviction seems to be—if we might express it more or less in our own language—that human beings are naturally interested and appetitive animals, each with his own concerns and wishes. Moreover, there is no reason why each should not pursue his own interests—provided always that he recognize that there are certain “side-constraints” on what he does, side-constraints that involve a respect for various rights that others may have. Thus the persons and property of these others, Nozick would say, are things to which they have “entitlements,” and these entitlements are such that they may not be violated or interfered with by others. No, they are, as it were, in the nature of absolute rights; and no Utilitarian considerations of any kind can ever justify us in any attempt at overriding them.
What if Rights Theories Can Only Draw Sustenance from Natural Law Theories?
Now to all of these newly developing rights theories, which in their different ways might be thought to lead to the establishment of a genuine Libertarian philosophy, one can only say “Bravo!” And yet isn’t there one fly in the ointment? For these rights that Rawls, Dworkin, and Nozick have been so vigorous in championing are not held to be natural rights; nor are the various duties and side-constraints, that are correlative with the asserted rights of individuals, to be regarded as having any foundation in nature.
Yet if rights and duties cannot be shown to have any basis in nature or in fact, what reason is there to suppose that they have any basis at all? True, we may feel strongly about them; and nothing is easier than to get human beings to warm to affirmations of their individual rights and freedoms. But mere warmth of feeling can hardly be a substitute for rational justification. And if rights and duties are not held to be natural rights and duties, what is there that is rational about them?
Just recall our own earlier account of the natural law theories in the seventeenth and eighteenth centuries, in which the rights and the laws that were appealed to, turned out to be not natural laws or natural rights, so much as rights and laws that appeared to rest on nothing more than fiat or decree—in the Middle Ages upon divine decree, and in the later secularized versions of natural law upon no more than man or mankind’s decree. But the eighteenth century experience would surely seem to indicate that rights that turned out to have no more than an asserted, and not a natural, foundation could be only too easily denied and discarded altogether. And might not this be a message that could bode ill for the future of today’s newly emerging rights theories?
Indeed, this is a prospective danger that at least some contemporary philosophers have been not a little anxious about, though not necessarily those of a classical liberal persuasion. Two names of authors of two very able books that have appeared just in the last two years might be mentioned in this connection, Alan Donagan and Alan Gewirth. In both cases these writers are concerned to justify human rights and human duties; but they want to do so on some other basis than an appeal to nature and natural law. Instead, they both prefer to follow a more Kantian line of justification.
In general, Kant suspected that egoistic or self-interested motives were non-moral because they were not so much reasoned to and freely chosen as automatic, given biases or vested interests caused and determined heteronomously rather than by the autonomous choice of the moral agent. In the hope of making ethical choice more rational and autonomous, Kant turned to a universalizability principle. He reasoned that universalizing one’s reasons for action (i.e., by applying those reasons equally to every other agent) would form the decisive criterion for any action that is truly rational and hence a truly moral one. This universalizing approach led Kant to formulate his categorical imperative whose edict applied equally well to all moral agents. Kant was at pains to remove all self-interested goals, ends, or objects of desire as the possible justifying reasons for moral actions. Such self-interested motives seemed to him merely irrational deterministic reflexes of an agent’s actions (similar to Hobbes’s “passions”) rather than authentic, autonomous, and rationally chosen motives.
Thus Donagan wishes to argue that there simply is a basic imperative to which all human beings are subject, and which might be expressed “Humanity is always to be loved and respected for its own sake,” or “Every human life is to be respected as an absolute and inviolable good.” The only trouble with this is that it would seem only too easy to round on Donagan and say, “But I don’t see that this is an imperative incumbent upon me at all. What evidence is there that I am really bound by any such absolute obligation or duty as is here formulated?” Nor does it seem that Donagan has any very good answer to this. True, as far as Kant was concerned, he claimed that such an absolute or categorical imperative as that requiring one to respect humanity or human life as an absolute good was binding on each and all alike—and this simply for the reason that to deny it was somehow to fall into self-contradiction. However, very few have been convinced that any such self-contradiction could really be shown to be involved in such instances. And in any case, Donagan does not choose to defend his absolute imperative by this means. But what, then, is the warrant for it?
Moving to Gewirth’s case, he would, in Reason and Morality, appear to want to justify human rights and duties by considering what the implicit assumptions are of any human action whatever. Thus in acting, any human agent cannot but recognize that his action has the characteristics of being both purposive, as well as being voluntary and free. Moreover, Gewirth feels that to recognize the voluntary and purposive character of our actions is also to recognize the rightness and the desirability of their being so; but to recognize that it is but desirable and right that my own actions be voluntary and purposive is also to acknowledge that it must be no less desirable and right for any and every human being.
In other words, if it is right that my actions be voluntary and purposive, then it is right that everyone’s should be so; and just as everyone should recognize my right in this regard, it is no less right and a duty that I recognize the rights of everyone else in this same regard.
Undoubtedly, this is a telling and ingenious argument by way of establishing rights and duties; and yet is it sound? For may not someone make rejoinder by simply saying, “Why, yes, I am glad that I am in a position to act freely and purposefully as a human being. But even though I like this situation of mine and certainly hope that it continues, I do not claim it as a right. Indeed, if I did, it would be an obvious case of the fallacy of trying to infer an ‘ought’ from an ‘is.’ Moreover, not claiming the freedom and purposiveness of my actions to be in any way a right, since it is nothing more than simple fact about my individual situation, albeit a very happy fact, then there is no way in which I can be held to be logically bound to recognize a corresponding right to freedom and purposiveness on the part of other human beings.”
How Can We Salvage Contemporary Rights Theory and Rehabilitate Natural Law?
What to do, then, when it comes to trying to save contemporary rights theories from the charge of arbitrariness? If the Kantian moves of Donagan and Gewirth cannot do the trick, what alternative is there by way of justifying rights and duties, save that of showing that such rights and duties are somehow natural rights and duties? And what does this call for, if not for some sort of rehabilitation of the old natural law theory, more or less in its Thomistic form? For on this view, as we saw, the way one justifies rights and duties in the context of ethics and politics is analogous to the way in which one justifies the right ways of doing things, as over against the wrong ways, in the contexts of various arts, skills and techniques. In the latter sorts of cases—e.g., medicine—one justifies a certain care and treatment of patients as being naturally required on the basis of the end of the medical art, which is health. So likewise, given that the natural end of human life is the attainment of one’s natural perfection or fulfillment as a human being, then one can come to recognize what it is that is naturally required of one, and what one needs to do or what it is right for one to do, in order to attain such an end.
But if the only way really to restore rights and duties to a proper status once again, either in our individual lives or in society, is to recognize them as having a natural basis and foundation, and a natural basis and foundation such as will enable them to be integrated into an overall scheme of natural law, why has this not been an alternative that has been more readily resorted to by thinkers in the present-day world, particularly by champions of latter-day rights theories? The answer surely is that as nature has come to be conceived and described by modern science there would appear to be just no room and no place in nature for any such things as natural human ends, to say nothing of natural rights or duties. Thus Hooker’s unqualified assertion that “all things that are have some operation not violent or casual; nor doth any thing ever begin to exercise the same without some fore-conceived end for which it worketh”—this assertion of Hooker’s would appear to be directly contravened by the account of nature given by the scientists. Not only that, but the very enterprise of trying to ground moral and ethical and political principles in nature, in addition to being inconsistent with the scientist’s account of nature, would also appear to involve the patent fallacy of attempting to reason from fact to value and from “is” to “ought.” Little wonder, then, that natural law theories of ethics and politics in the Thomistic sense, cannot ever seem to get off the ground any more!
Reviving Natural Law: Bridging Facts and Values and Formulating a New View of Nature
Yet that ground is changing, and hopefully changing fast, so that a proper takeoff may become possible after all. The old dogma, for instance, about the absolute and unbridgeable gap between facts and values has recently been subjected to various sorts of devastating analyses and criticisms, and while the dogma still hangs on, even in philosophical circles, hopefully its days are numbered.
The hallmark of a natural law ethics is that the gap between facts and values is indeed bridgeable. Natural law aims at grounding norms and values in fact and nature. Because values are claimed to be natural and factual, and are not mere man-made conventions, it is possible to claim a rational and objective basis for ethics.
In the natural law perspective, however, values are not simple objective properties or facts as we commonly understand these terms. Despite the fact that values are truly objective, they also serve as values for a subject, namely, the human agent. Speaking in terms of their factual status, values resemble goals or perfections which the individual strives to achieve by rational choice. Just as the acorn tends toward the mature oak tree (and never say, the sycamore), so a young girl tends to actualize her latent potential to blossom into a wise and beautiful woman.
Facts are viewed as values, when we consider them as the mature unfolding or actualizations of human potentials. Human values are also, indeed, facts to the degree that these perfecting actions are worthwhile and obligatory for us humans if we aim to realize our natural potential. For example, such humane values as wisdom or courage are certainly facts; but as facts they are no less developmental achievements which represent the realization of a person’s earlier potentialities.
Even more significant for rehabilitating natural law have been the number of recent books and articles which have argued for an out-and-out revisionism, so far as the received scientific account of nature is concerned. On the one hand, there have been studies designed to show that modern natural science is simply not to be interpreted in the Humean and positivistic manner that has been fashionable for so many years. Instead, the ancient Aristotelian causal scheme, including material, formal, efficient, and even final causes, is said to be far more compatible with the actual practices and procedures of scientists than any Humean scepticism, such as has been wont to be predicated upon the usual stereotyped contrast between constant conjunction and necessary connection. Yes, if such a philosophical revisionism with respect to science itself should begin to gain ground, then Hooker’s old affirmation about the natural operations of things in the natural world, all of them having fore-conceived ends for which they work, will once more gain credence and respectability.
Nor is that all, for just as on the one hand, something rather like the old Aristotelian and medieval view of nature is considered by some contemporary philosophers of science to be the proper  framework in terms of which the procedures of modern science can best be understood, on the other hand there is another group of philosophers of science who take as their point of departure Sir Karl Popper’s celebrated thesis that “the logic of scientific discovery” is to be understood as involving an almost exclusive reliance upon the so-called hypothetic-deductive method. Moreover, if such be the nature of scientific method, then it would seem to follow that science is not really interested in achieving a knowledge of nature and reality at all. Instead, rather than being concerned to know what nature is, or is like, in itself, the modern scientist may be said to be concerned only with nature as it appears to be, depending upon the particular conceptual framework or set of hypotheses in terms of which the scientist happens to be viewing nature at a given time. In other words, the objective of science is to control and manipulate nature, and not necessarily to know it as it is in itself at all.
Notice, though, what the implications of either of these recent revisionist accounts of modern science would be with respect to possible rehabilitation of natural law theories in ethics and politics. For if science is not concerned with nature as it really is in itself, then modern science cannot be said to have undermined that conception of nature in terms of which all operations in nature, and particularly those operations characteristic of human beings, might be said to have their fore-conceived natural ends. In other words, there could be no basic incompatibility between what the scientists have to say about nature and the concept of nature that is required by a natural law or natural rights philosophy. Of course, on the other revisionist view of science, there could be no incompatibility between the scientist’s view of nature and the natural, and the natural law philosopher’s view of them, for the simple reason that the scientist’s view of nature ultimately comes down to the same thing as the natural philosopher’s view.
“Oh,” but you will say, “neither of these revisionist views of science has gained sufficient currency to again render secure the philosophical foundations of natural law theories of the traditional sort.” True enough, and yet surely there is enough stirring and going on to admit of a most hopeful answer to the question, “Natural law—is it dead or alive?” The answer is, “It’s very much alive!”