Question:

My question is really double.  Or triple.  First, disparagement of natural law has been a common theme in most of my law school courses.  I expected that.  What I didn’t expect is that everyone calls natural law theory “natural rights theory.”  Is there a historical or ideological reason for this change in terms?  If so, could you comment on it?

Second, my property casebook describes rights theorists as attempting to "identify individual interests that are so important from a moral point of view that they not only deserve legal protection but may count as ‘trumps’ that override more general considerations of public policy by which competing interests are balanced against each other. Such individual rights cannot legitimately be sacrificed for the good of the community."  What accounts for this emphasis on the individual?  I thought natural law focused on the common good.

I'm trying to think of a prominent recent policy debate that highlights all of this in order to discuss it with my prof.  Since natural law thinkers emphasize the good of families and children, the gay "marriage" controversy comes to mind, but I'm afraid that's too politically charged to allow my prof to respond dispassionately.  Can you suggest any other examples?

Reply:

The difficulty you are having in communicating with your professor is probably due to the fact that you are thinking of the classical natural law tradition, but he is thinking of the revisionist movement which began in the early modern period and grew more and more radical.

From the way these matters are discussed in most law schools, you might never know that there was a classical tradition.  Revisionists speak as though nobody ever talked about rights before themselves.  If they do mention the classical tradition, they speak as though it were a dusty historical curiosity.  Actually a lot of people work in the classical tradition, and it is experiencing one of its periodic revivals.

At the risk of repeating things I’ve said in snips and threads in other posts, let me try to pull the threads together.

The classical tradition views rights as rooted in the eternal principles of right and wrong, so that there could never be a right to commit a wrong.  However, the revisionists view rights as rooted in personal autonomy – in radical self-rule, or self-law. 

Don’t misunderstand:  The classical tradition had certainly viewed persons as governing themselves under a higher law.  But that is not what the revisionists mean.  They view self-rule as the source of law, a “law” that each person gives himself.  In their view there is no higher law.

That’s one of the reasons for the terminological change which you’ve noticed.  Although the early modern revisionists still used the language of natural law, they eviscerated it.  Today’s revisionists just say “natural rights” -- or they drop the “natural” and say only “rights.”

This revisionist view makes it difficult, if not impossible, to distinguish autonomy from the sheer assertion of will; it seems to imply that one may make up one’s own right and wrong.  Revisionists do say that in the exercise of liberty, individuals should agree not to infringe upon the liberty of others.  But if individuals really do make up their own right and wrong, then it is difficult to see the force of this “should.”  Why honor promises?  Why care about the liberty of others at all?

Although revisionists have offered a variety of solutions to this problem, such as mutual fear as a motivation for a social contract, classical natural law thinkers find none of these solutions convincing.  Each solution relies covertly on the higher law which revisionism tries to do without.

For without a higher law, why shouldn’t I agree to the supposed contract, but then break my promise?  Why not board the train, but refuse to pay?  Casebooks written by revisionists try to avoid the language of higher law, but then what do they mean by words like “good” or by euphemisms like “legitimate”?  If there is no higher law, then then there is only power.

From the classical point of view, revisionism is thoroughly confused.  We do not rule ourselves; we participate in ruling ourselves under God.  There really are “natural” rights, but they are not free-standing; they arise from natural law.  They exist to safeguard the ability of all persons to do their duties and to have the freedom of action necessary to direct their lives in the ways which develop their human gifts in community with others, not only for their private good, but also for the good of their neighbors.

Thus not only individuals, but also certain forms of association, such as families, voluntary organizations, and the Church, have rights, and these rights need to be codified with appropriate legal sanctions in order to protect them against the potential tyranny of other individuals, other social groups, or the state.  You’re right that that the classical natural law tradition focuses on the common good – but justice is an element in the common good, and respect for both individual and organizational rights is an element of justice.

Some rights are rights to have or receive something; for example, merchants have the right to payment from their customers, and children the right to care from their parents.  Other rights are rights to do something; for example, a man and woman have a right to marry if there are no impediments to the union.  Another useful distinction is among rights that are permissive, protective, or supportive.

Religious liberty is an interesting case, because it is a right in all three senses.  It permits each person to seek the truth about God, because seeking it is our duty and finding it our highest good; it protects each person in seeking the truth about God, by prohibiting others from unreasonably hindering the search; and it supports each person in seeking the truth about God, by obligating other people to give the seeker such aid as they reasonably can (though only the first two dimensions of this natural right can be enforced by civil rights).

In Commentary on Thomas Aquinas’s Treatise on Law, I ask where the epitome of the classical tradition, St. Thomas, stands in all of this, since he says a lot about what is “right,” but not much about “rights.”  It is easier to say what he doesn’t think:  He would certainly reject the revisionist view which tries to root rights in radical self-rulership.  What he would say think is a matter of dispute.  I think the three most interesting possibilities are as follows.  In my view, these three possibilities complement each other.

First, natural rights may be simply implications of natural commands and prohibitions.  For example, if the natural law forbids all from taking innocent human life, then each innocent person may be said to have a right not to have his life taken by others.  This line of argument has been urged by John Finnis.

Second, natural rights may be naturally protected permissions.  Suppose, for example, that the natural law permits a man to marry a woman (provided certain conditions are met).  Suppose further that the natural law forbids others from preventing him from doing so.  Then he may be said to have a natural right to marry her.  This trail has been followed by Brian Tierney.

The third complementary possibility is that rights are grounded in essential humanity -- in the dignity of human beings as responsible persons.  I have in mind what St. Thomas says about the difference between “royal and politic” rule and “despotic” rule, a distinction he borrows from Aristotle:

For a power is called despotic whereby a man rules his slaves, who have not the right [facultatem] to resist in any way the orders of the one that commands them, since they have nothing of their own.  But that power is called politic and royal by which a man rules over free subjects, who, though subject to the government of the ruler, have nevertheless something of their own, by reason of which they can resist the orders of him who commands.

By this “faculty,” this “something of their own,” St. Thomas here means merely the bare ability to resiSt. But other passages suggest that normally, human beings ought to have such an ability – that a certain constitutional respect is due to them just because they are persons rather than things, individual rational substances endowed by God with free will and moral capacities.  Because of this dignity, the best human government requires an element of democracy (Summa Theologiae, I-II, Question 105, Article 1).  Because of this it, subjects may sometimes – in fact must sometimes – disobey unjust laws (Question 96, Article 4).  Because of it, not only individuals but even their licit forms of association enjoy certain privileges that no human ruler may abridge.  And because of it, the Divine governor Himself, whose law is always just and who must not be disobeyed, rules us, His images, not as He rules the animals, but through the participation of our minds (Question 91, Article 2).

We must step carefully here, for though the right to be ruled in a “royal and politic” manner may be natural, but it does not follow that it is unconditional.  Many natural rights are conditional; for example, the right to a wage is conditioned on performing the labor.  Another example is that when the citizens become so corrupt as to sell their votes, it may be necessary to deprive them of the privilege of choosing their own magistrates (Question 97, Article 1).  And concerning the government of God Himself, St. Thomas agrees with the tradition that for those who are obstinate to the end, there is hell.

Some Thomists are uneasy with the language of natural rights.  The reasons for this disquiet are understandable.  However firmly rights may be grounded in what is objectively just, grammatically speaking they seem to be subjective, just in the sense that they are “mine.”  Of course, the same is true of duties, yet, psychologically, there is a difference.  “My” duties direct my attention outward, to the persons toward whom I owe them.  By contrast, “my” rights direct my attention inward, toward myself.

This fact makes it very easy to view rights as though they were not really about objective moral realities, but “all about me” – about sheer self-assertion.  The fear of these thinkers, then, is that talking too much about rights subtly influences us to accept a false view of rights, which may be true.

To most Thomists, however, it seems unreasonable that we should avoid the language of natural rights just because the idea is so badly abused by revisionists.  The reality of natural rights, properly understood, is a truth, knowable by reason.

In this life, truth is always abused; even liars know that to be persuasive, they must fit as much truth into their lies as possible.  Instead of avoidance, then, a better strategy (though perhaps a risky one) would seem to be redemption: To reclaim the spoiled language of natural rights, to rescue the concept from its abusers, to uproot it from the theory of radical self-rule and plant it again in the soil of natural law.

I suppose all controversies are “politically charged.”  But does any of this help you think of a controversy you can discuss with your professor without making him blow up like Vesuvius?

The sluggish economy, combined with the failure of the political class, has does more than put people out of work.  Another result is that for the time being, the two dominant sentiments among the population are no longer liberal and conservative, but leftist and nativist.

In some respects, there is less difference between these two sentiments than one would think.  Both pour fuel on class envy; both share an enthusiasm for crony capitalism; each accuses the other one of doing so.

Considering what happened the last time the West saw this configuration, the portents are not encouraging.  But men are not leaves in blind winds.  Let us try to think clearly.

The lesson of recent history – in every realm from politics to popular culture -- is that you can push the boundaries of the sayable just by saying it, and you can push the boundaries of the doable just by doing it.

Unfortunately, the barbarians have been quicker to learn the lesson.

Presumably, though, one could use this method to nudge the boundaries both toward and away from the modest, the good, and the true.

With so many candidates, the Republican fora couldn’t possibly be structured like debates – and they aren’t.  Some have compared them to joint news conferences.  I think they are more like free-style wrestling tournaments, in which performance is judged according to the criteria of spectacle.  Who made the best pivots?  Who pulled the cleverest sucker punches?  Who got the other guy to slip?

There is no point in protesting the element of spectacle, but I wonder if it could be a more edifying spectacle.  What if the party took a lesson from other athletic competitions and staged a series of one-to-one duels, leading up to a playoff?

“Since the modern world began in the sixteenth century, nobody's system of philosophy has really corresponded to everybody's sense of reality: to what, if left to themselves, common men would call common sense.”  --  G.K. Chesterton

Everyone carries a personal baloney-meter in his mind.  I'm speaking of the useful little app that lights up and beeps when you hear nonsense, prompting you to say to yourself, “That's baloney.”  The baloney-meter is factory-installed, not an option.  You have one, I have one, we all have one -- ever since reaching the age of reason.  Each of us depends on it constantly.  “Tell you what,” says your friend.  “Let's pool our life savings and invest them in the lottery.  One of us is sure to win, and we can split the take.”  Beep!  Beep!  “That's baloney.”

One would be a fool not to recognize how much better off we are having baloney-meters than we would be without them.  Yet even the most appreciative among us must recognize that baloney-meters aren't perfect.  Sometimes they light up and beep when the words we hear are not baloney, and sometimes they fail to light up and beep when they are.  Because you have to use your baloney-meter to recognize a defect in a baloney-meter, the problem is easiest to notice in someone else’s baloney-meter.  Perhaps you haven't noticed this malfunction in your own, but I can assure you that others have.

What causes baloney-meters to go awry?  Is there something wrong with the factory programming?   No, but think for a moment about what it would take for your baloney-meter to be infallible.  The factory would have to program it with a sample of every possible piece of baloney that anyone might ever try to feed you -- libraries upon libraries of samples.  In life, whenever another person spoke to you (or you spoke to yourself), the baloney-meter would look for a match.  If it found one, it would light up and beep.  You can see what's wrong with this design.  Baloney is infinitely various.  Not even galaxies of libraries could hold all the necessary samples.  (No, not even the internet.)

The only practical way to build a baloney-meter is to give it just that basic programming which will allow it to learn more about baloney from experience.  This basic programming is the ability to recognize the truth of what philosophers call the first principles of practical and theoretical reasoning.  “First principles of practical reasoning” is another name for the first principles of natural moral law.

Reflection on the design of the baloney-meter explains several important facts.

In the first place, the factory programming explains why the baloney-meters of different people, even in different cultures, tend to light up and beep about pretty much the same things in certain areas of life.  High-minded men among both the Greeks and the Chinese condemned disrespect for the dead; among both the Vikings and the Babylonians condemned stealing one's neighbor's wife; among both the Hindus and the Egyptians condemned treachery -- not just men whom we call high-minded, but whom they called high-minded.  As C.S. Lewis remarks, “Think of a country where people were admired for running away in battle, or where a man felt proud for double-crossing all the people who had been kindest to him.  You might just as well try to imagine a country where two and two made five.”

In the second place, the fact that the factory programming is only basic explains why the baloney-meters of different people light up and beep about different things in other areas of life -- and also why they can go off over what is not baloney and fail to off over what is.  For although you do know certain things without having to learn them, you learn most things from experience.  But any being that can learn from experience can learn incorrectly -- partly because his experience is not complete, and partly because he may rebel against the lesson.

We see then that any baloney-meter, however perfectly programmed in the factory, will tend to get out of correct calibration.  Originally, the purpose of a higher education was to recalibrate it.  A secondary purpose was to teach it to perform further recalibration on its own.

Courses of study like logic and mathematics trained the mind to think clearly.  Courses of study like history, literature, and politics immersed the mind in the experience of centuries so that it was not isolated on the little island of its own experience.  Courses of study like ethics recalled the mind to what it knew already, so that it did not drown in its own new depths.  Courses of study like theology directed the mind to consider what was deeper and greater than itself.  And courses of study like revealed theology exploded the mind's self-deceptions and enabled it to know what it could not have discovered solely through its own resources.

This attitude toward higher education was humble.  A teacher like Aristotle or St. Thomas Aquinas respected the baloney-meter.  He always started with the common sense of mankind, something he did not invent, then went on to refine it, ennoble it, and gently correct its errors.  You may feel that such humility is impossible, because in our own culture common sense seems largely to have disappeared.  We have come to feel it normal to have disagreements about fundamental issues of morals, just as we might have them about politics and other areas more distant from the factory programming.  This condition, in turn, changes the kind of disagreements we have in politics.  In fact the condition is not normal at all.  Rather it is a symptom of a civilization in an advanced state of decay.

Unlike classical higher education, modern higher education is not humble.  It both reflects and contributes to the decay of the civilization by insisting on the disconnection of the baloney-meter and its replacement by “theory” of its own devising.  It cannot really be disconnected, but it can be scrambled by having another hooked up alongside it.  What educated people now call their common sense is largely a collection of dogmas pumped in from the outside.  Because these dogmas are often pumped in under the guise of liberation from dogma, they often pass unrecognized.  We are entering a strange era in which, in some respects, the educated know a good deal less than the uneducated.

The methods used in higher education for disconnecting the baloney-meter are many.  One method is false anthropology, whereby young people are taught the wholly spurious idea that the human race is in complete disagreement about all the elementary points of right and wrong.  Another method is outright assault.  An especially subtle method is teaching ethics by “quandaries” -- imaginary occasions for moral decision which are deliberately contrived to baffle, the common result being that students lose their confidence that moral law tells them anything at all.

In turn, the usual method for replacing the baloney-meter is meta-ethics -- in which we no longer talk about right and wrong, but instead talk about the talk about it, or maybe even talk about the talk about the talk.  In this way we get further and further from the data.  If mentioned at all, the natural law itself is presented as but one of many competing theories of ethics.  This is like treating the existence of light as but one of many competing theories of vision.  In fact, light is presupposed in any sane theory of vision; in the same way, the law written on the heart ought to be presupposed in any theory of ethics.  Just as in geometry, if we don't already know something, we can't even get started learning the rest.

How would a classical moral teacher go about teaching under such circumstances?  As we have seen, his humble goal is to recalibrate the baloney-meter, not to replace but to refine the common sense of mankind.  But one cannot recalibrate a baloney-meter that receives continuous interfering signals from another installed alongside it.  The ersatz baloney-meter implanted by modern education cannot be calibrated at all.  It lights up and beeps at the very mention of an objective moral law.  “Aren't we beyond all that now?”  “Aren't morals just relative?”  “Aren't good and evil up to the individual?”

In the classroom I answer such questions, “Tell that to the man who is trying to rape or murder you.”  This is a much more aggressive response than Aristotle and St. Thomas would make to their students, but their students did not ask such questions.  Today a classical teacher must be aggressive before he can exercise his humility.  For before the students' original baloney-meters can be recalibrated, the ersatz baloney-meters that have been installed alongside them must be disconnected.  So students must unlearn before they can learn.  A classical teacher today is first, though not last, an unteacher.

Adapted from J. Budziszewski,

Written on the Heart: The

Case for Natural Law