Natural Law, Natural Rights, and the Real World

Natural law is about morality, that is, right and wrong. Natural rights are about the duties and obligations that human beings owe to each other. Believers in natural law claim to start with the nature of human beings, then derive from that nature the “laws” of morality. Believers in natural rights claim to start with the nature of human beings, then derive from that nature the inalienable “rights” of human beings.

A natural law would be something like this: It is in the nature of human beings to seek life and to avoid death. A natural right would be something like this: Given that it is natural for human beings to seek life and avoid death, every human being has the right to life.

Maybe. But what about this? It is in the nature of human beings to enjoy sex. Given that it is natural for human beings to enjoy sex, every human being has the right to rape at will. Or not. Following the natural law-natural rights formula, it’s easy deny a natural right to rape at will: It is in the nature of human beings to seek pleasure and to avoid pain. Rape is usually painful to the person being raped. It is therefore a natural right not to be raped.

I daresay that many other contradictory and absurd propositions can be concocted from the natural law-natural rights formula; for example: Dying is often (usually?) painful, psychologically if not physically to the dying person. It is therefore a natural right not to be killed deliberately. But if there is a natural right not to be raped, and if a rapist is shot and mortally wounded by the person who is being raped (perhaps it was her only possible defense), how does that square with the supposed natural right not to be killed deliberately. Or what about the case of a terrorist who is killed just before he can detonate a bomb that would have killed dozens of persons? And so on.

In sum, natural law and natural rights are malleable concepts. Here, for example, is Timothy Sandefur, writing in “Judge Gorsuch’s Natural Law” (reason.com, February 12, 2017):

Natural law is among the oldest philosophical traditions. Some of history’s greatest geniuses, from Aristotle to Thomas Jefferson, devoted their most brilliant arguments to it, often differing about details but agreeing on the broad outlines. Natural law was the basis on which America’s founders wrote the Constitution….

… [E]ven those who embrace natural law, including Justice Clarence Thomas, have their differences. For example, while Thomas and his allies see natural law as a basis for attacking legal protections for abortion and euthanasia—because they contradict the sanctity of life—others believe that natural law theory actually supports these rights, because it prioritizes individual autonomy.

It seems that Sandefur is in favor of the right to an abortion, as a matter of individual autonomy. He is clearly critical of what he sees as Judge Gorsuch’s “circumscribed view of individual choice,” and “Gorsuch’s ultimate conclusion that government can bar people from doing things it deems evil—just because—without actually violating their freedom of choice.” So in Sandefur’s parsing of the natural law-natural rights formula, individual autonomy overrules a (qualified) natural right: the right to life.

What puts individual autonomy on a higher plane than life, or — to be precise — the life of a fetus? Sandefur is a clever lawyer, so I’m sure that he has a clever explanation. But I’m unable to access it because of a dead-end link in his blog. Speculation is in order.

If individual autonomy trumps the right to life there must be a natural law-natural right argument that makes it so. Something like this, perhaps:

It is in the nature of human beings that they own themselves and are not the property of others.

Human beings therefore have a natural right to reject man-made (positive) laws that dictate what they can do with their own bodies.

Among many things, this natural right encompasses suicide, drug use, consenting sexual acts of any kind, and abortion.

There are, of course, arguments against suicide, drug use, and unrestricted sexual acts. The arguments are “social”; that is, they appeal to the effects of such acts on other persons, and the ways in which such acts violate the natural rights of other persons. Only an extreme individualist (extreme libertarian) will reject such arguments by proclaiming the superiority of individual autonomy over other considerations. I wonder how those extreme individualists cope with the prospect of euthanasia in the guise of physician-assisted suicide, an epidemic resulting from widespread rejection of vaccinations, or the dire effects of inbreeding.

Is there a natural-rights argument against abortion? The basic one — the right to life — is sidestepped by arguments like these:

A fetus may be a human being but it isn’t yet a person.

A fetus is part of another human being, and not an independent being. The other human being (the mother) may therefore exercise her natural right to rid herself of an encumbrance.

The “personhood” argument is legalistic, at best, because personhood is an abstraction, not a physical fact. A human being is created at the moment of conception. It may be a rudimentary human being, but it is one nevertheless. And it has the potential to become a fully formed human being. In fact, it becomes one before birth. Is it then also a person? Why not, if a new-born baby is a person? But perhaps a baby doesn’t become a person until it vocalizes, or seems to recognize a face, or demands food. Arbitrary, as I say, and therefore unconvincing.

Which is why the “encumbrance” argument is usually deployed, though more euphemistically, in the form of slogans like “reproductive rights” and “a woman’s right to control her own body.” It boils down to the “right to choose,” whence “pro-choice” — meaning pro-abortion.

But this merely sidesteps the basic issue: Is there a natural right to life, or is there not? And if there is, infanticide is surely a violation of that right. So if a human being has a right to life as a new-born infant — which most pro-abortionists will concede — why doesn’t the same human being have the right to life just before he is born; or while he is “viable,” because he could be born prematurely and (probably) survive; or before he is viable but would become so were it not for the intervention of an abortionist?

Now, we’re down to line-drawing and can dispense with the fiction that there’s a natural-rights argument for abortion. In fact, line-drawing is a concession to the natural-rights argument against abortion. If you’re pro-life, you don’t draw a line. It’s those who wish to defend abortion who will argue about where to draw the line. But if there were a real natural-rights argument for abortion, there wouldn’t be a line. There would be a natural right to kill a defenseless, non-aggressive human being, whether it’s called abortion, partial-birth abortion, infanticide, or just plain murder.

As I said, natural law and natural rights are malleable concepts. They can be tortured into yielding almost any interpretation that supports the preferences of the torturer. Or, as Sandefur puts it, “differing about details but agreeing on the broad outlines.” But the devil is in the details.

An extension of natural law is that human beings not only seek to live, but also seek to flourish. (Sandefur likes that extension.) A natural right that fosters flourishing is the right to own property, to use it as a means to the end of flourishing, and to enjoy the use of the property itself, as an aspect of flourishing. Socialism denies or severely limits the right to own property, thus depriving some persons of the ability to flourish as fully as they could in order to underwrite the flourishing of other persons. Socialists — and do-gooders, generally — set themselves up as arbiters of flourishing: Some persons must flourish less so that others may flourish more. As skilled accountants of the soul, they know precisely where to draw the line — just like pro-abortionists (which most of them probably are).

There are those persons — like me — who don’t accept the broad outlines of natural law and natural rights. Jazz Shaw says this in “On the Truth of Man’s Rights Under Natural Law” (Hot Air, March 29, 2015):

Certainly … “natural rights” are things that most rational, decent people could agree upon as things that would be wonderful indeed. But if we are to accept that, then how do you deny someone else claiming a “right” which you don’t support? What of the liberal who claims they have a God given right to health care? Or even the right not to be offended by the speech of others? I can find you a library of examples of both with only a few moments on Google. Some of these same folks regularly point to the General Welfare clause and insist that this means they have a God given right to social security and any other number of safety net items. Are they right? Or are they misinterpreting the words of the founders? Oh, my… now we have another debate on our hands….

If we wish to define the “rights” of man in this world, they are – in only the most general sense – the rights which groups of us agree to and work constantly to enforce as a society. And even that is weak tea in terms of definitions because it is so easy for those “rights” to be thwarted by malefactors. To get to the true definition of rights, I drill down even further. Your rights are precisely what you can seize and hold for yourself by strength of arm or force of wit. Anything beyond that is a desirable goal, but most certainly not a right and it is obviously not permanent.

Amen.

Where does that leave me? Try these on for size:
Negative Rights
Negative Rights, Social Norms, and the Constitution
Rights, Liberty, the Golden Rule, and the Legitimate State
“Natural Rights” and Consequentialism
More about Consequentialism
Positivism, “Natural Rights,” and Libertarianism
What Are “Natural Rights”?
The Golden Rule and the State
Evolution, Human Nature, and “Natural Rights”
The Golden Rule as Beneficial Learning
Rights: Source, Applicability, How Held
Human Nature, Liberty, and Rationalism
The Futile Search for “Natural Rights”
Natural Law and Natural Rights Revisited

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See also: Jazz Shaw, “On the Truth of Man’s Rights Under Natural Law“, Hot Air, March 29, 2015