An esteemed correspondent took exception to my statement in “Natural Law, Natural Rights, and the Real World” that I “don’t accept the broad outlines of natural law and natural rights,” which I had summarized thus:
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.
The correspondent later sent me a copy of Hadley Arkes’s essay “A Natural Law Manifesto” (Claremont Review of Books, Fall 2011, pp. 43-49). There’s an online version of the essay (with a slightly different opening sentence) at the website of The James Wilson Institute on Natural Rights and the American Founding, which I’ll quote from in the course of this post.
I don’t lightly dismiss natural law and natural rights. Many proponents of those concepts are on the side of liberty and against statism, which makes me their natural ally. As I say in “Natural Law, Natural Rights, and the Real World,” my problem with the concepts is their malleability. It is too easy to claim to know specifically what is and isn’t in accordance with natural law and natural rights, and it is too easy to issue vague generalizations about rights — generalizations that collapse easily under the weight of specification.
Consider the UN’s Universal Declaration of Human Rights, which rights are declared to be inalienable (i.e., natural). (The Declaration’s 30 articles comprise 48 such rights.) Quotations from the Declaration are followed by my comments in italics:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. What is arbitrary? One person’s “arbitrary” will be another person’s “lawful,” and there will be endless quibbles about where to draw lines.
1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country. Everyone, even including criminals and terrorists? And if “everyone” is qualified by criteria of criminality, there will be endless quibbles about those criteria.
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. But what if the practice of a religion includes the commission of terrorist acts?
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. The qualification about the “organization and resources of each State” speak volumes about the relative nature of entitlements. But left unsaid is the nature of the “right” by which some are taxed to provide “social security” for others. Is there no natural right to the full enjoyment of the fruits of one’s own labors? I would think that there would be such a natural right, if there were any natural rights.
Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. See the preceding comment.
Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. Ditto.
It goes on an on like that. And the UN’s litany of “rights” is surely one that millions or even billions of people would claim to be “natural rights” which inhere in them as human beings. Certainly in the United States almost every Democrat, most independents, and a large fraction of Republicans would agree that such rights are “natural” or God-given or just plain obvious. And many of them would put up a good argument for their position.
If the Declaration of Human Rights seems too easy a target, consider abortion. Arkes and I are in agreement about the wrongness of abortion. He says this in his essay:
[T]he differences in jural perspective that I’m marking off here may have their most profound effect as they reach the most central question that the law may ever reach: who counts as a human person—who counts as the kind of being whose injuries matter? It was the question raised as President Bill Clinton vetoed the bill on partial birth abortion and expressed the deepest concern for the health of the woman denied that procedure. Of that other being present in the surgery, the one whose head was being punctured and the contents sucked out—the assault on the health of that being made no impression on Clinton. The harms didn’t register because the sufferer of the harms did not count in this picture.
But in raising questions of this kind, a jurisprudence with our [natural law] perspective would pose the question insistently: what is the ground of principle on which the law may remove a whole class of human beings from the circle of rights-bearing beings who may be subject to the protections of the law?
The “ground of reason,” though I hesitate to call it that, is the libertarian doctrine of self-ownership (which is tautologous). The child in the womb is dependent on the mother for its life. It is therefore up to the mother to decide whether the “demands” of the child in the womb should take precedence over other aspects of her life, including the remote possibility that bearing a child will kill her.
My objection to abortion is both empathic and prudential. Empathically, I can’t countenance what amounts to the brutal murder of an innocent human being for what is, in almost every case, a matter of convenience. Prudentially, abortion is a step down a slippery slope that leads to involuntary euthanasia. It puts the state on the wrong side of its only legitimate function, which is to protect the lives, liberty, and property of the citizenry.
In any event, Arkes’s essay is as much an attack on jurisprudence that scorns natural law as it is an explanation and defense of natural law. In that vein, Arkes says this:
I come then today, perhaps in the style of Edmund Burke, to make An Appeal from the Old Jurisprudence to the New: from the old jurisprudence, which relied on natural law as a matter of course, to a new conservative jurisprudence that has not only been resistant to natural law, but scorns it. At one level, some of the conservative jurists insist that their concern is merely prudential: Justice Antonin Scalia will say that he esteems the notion of natural law but the problem is there is no agreement on the content of natural law. Far better, he argues, that we simply concentrate on the text of the Constitution, or where the text is silent, on the way in which the text was “originally understood” by the men who framed and ratified it.
Justice Scalia’s key point — there is no agreement on the content of natural law — is underscored by two letters to the editor of the Claremont Review of Books, and Arkes’s reply to those letters (all found here). The writers take issue with Arkes’s pronouncements about the certainty of natural law. The crux of Arkes’s long and argumentative reply is that there are truths that may not be known to all people, but the truths nevertheless exist.
That attitude has two possible bases. The first is that Arkes is setting himself up as a member of the cognoscenti who knows what natural law is and is therefore qualified to reveal it to the ignorant. The second possibility, and the one that Arkes seems to prefer, is that reasonable people will ferret out the natural law. For example, here is a comment and reply about the 14th Amendment:
Max Hocutt: Arkes’s discussion of the 14th Amendment raises a very difficult question: its contemporaries believed mix-raced marriage to be contrary to nature. On the basis of what definition of nature is Arkes confident they were mistaken?
Arkes: It is quite arguable in this vein that the framers of the 14th Amendment did not understand the implications of their own principles when they insisted that nothing in that amendment would be at odds with the laws that barred marriage across racial lines. On the other hand, Mr. Hocutt may want to argue that there was no inconsistency, that there may be some kind of argument in prudence, or perhaps even a racial principle, that could make it justified to bar marriage across racial lines. Well, it is quite possible to have that argument. And the only way of having the “argument”— the only thing that makes it an argument—is that there are standards of reason to which we can appeal to judge the soundness, the truth of falsity, of these reasons.
Clearly, Arkes believes that the “standards of reason” will result in a declaration that the 14th Amendment allows interracial marriage, even if the amendment’s framers didn’t intend that outcome. But Arkes concedes that there is an argument to be had. And that is why Justice Scalia (and I, and many others) say that there is no agreement on the content of natural law, and therefore no agreement as to the rights that ought to be considered “natural” because they flow from natural law.
For example, there is eloquent disagreement with Arkes’s views in Timothy Sandefur’s review of Arkes’s Constitutional Illusions and Anchoring Truths. Notably, Sandefur is also a proponent of natural rights, and I have sparred with him on the subject.
Endless arguments about natural law and natural rights will lead nowhere because even reasonable people will disagree about human nature and the rights that inhere in human beings, if any. In “Evolution, Human Nature, and ‘Natural Rights’,” I explain at length why human beings do not have inherent (i.e., inalienable or “natural”) rights, at least not in the way that Arkes would have it. In the end, I take my stand on negative rights and the Golden Rule:
The following observations set the stage for my explanation:
1. “Natural rights” inhere in a particular way; that is, according to Randy Barnett, they “do not proscribe how rights-holders ought to act towards others. Rather they describe how others ought to act towards rights-holders.” In other words, the thing (for want of a better word) that arises from my nature is not a set of negative rights that I own; rather, it is an inclination or imperative to treat others as if they have negative rights. To put it crudely, I am wired to leave others alone as long as they leave me alone; others are wired to leave me alone as long as I leave them alone.
2. The idea of being inclined or compelled to “act toward” is more plausible than idea that “natural rights” inhere in their holders. It is so because “act toward” suggests that we learn that it is a good thing (for us) to leave others alone, and not that we (each of us) has a soul or psyche on which is indelibly inscribed a right to be left alone.
3. That leads to the question of how one learns to leave others alone as he is left alone by them. Is it by virtue of evolution or by virtue of socialization? And if the learning is evolutionary, why does it seem not to be universal; that is, why it is so routinely ignored?
4. The painful truth that vast numbers of human beings — past and present — have not acted and do not act as if there are “natural rights” suggests that the notion of “natural rights” is of little practical consequence. It may sometimes serve as a rallying point for political action, but with mixed results. Consider, for example, the contrast between the American Revolution, with its Declaration of Independence, and the French Revolution, with its Déclaration des droits de l’Homme et du Citoyen.
5. Even if humans are wired to leave others alone as they are left alone, it is evident that they are not wired exclusively in that way.
And now, for my natural (but not biologically deterministic) explanation. It comes from my post, “The Golden Rule and the State“:
I call the Golden Rule a natural law because it’s neither a logical construct … nor a state-imposed one. Its long history and widespread observance (if only vestigial) suggest that it embodies an understanding that arises from the similar experiences of human beings across time and place. The resulting behavioral convention, the ethic of reciprocity, arises from observations about the effects of one’s behavior on that of others and mutual agreement (tacit or otherwise) to reciprocate preferred behavior, in the service of self-interest and empathy. That is to say, the convention is a consequence of the observed and anticipated benefits of adhering to it.
The Golden Rule implies the acceptance of negative rights as a way of ensuring peaceful (and presumably fruitful) human coexistence. But, as I point out, there is a “positive” side to the Golden rule:
[It] can be expanded into two, complementary sub-rules:
- Do no harm to others, lest they do harm to you.
- Be kind and charitable to others, and they will be kind and charitable to you.
The first sub-rule — the negative one — is compatible with the idea of negative rights, but it doesn’t demand them. The second sub-rule — the positive one — doesn’t yield positive rights because it’s a counsel to kindness and charity, not a command….
An ardent individualist — particularly an anarcho-capitalist — might insist that social comity can be based on the negative sub-rule… I doubt it. There’s but a short psychological distance from mean-spiritedness — failing to be kind and charitable — to sociopathy, a preference for harmful acts…. [K]indness and charity are indispensable to the development of mutual trust among people who live in close proximity, without the protective cover of an external agency (e.g., the state). Without mutual trust, mutual restraint becomes problematic and co-existence becomes a matter of “getting the other guy before he gets you” — a convention that I hereby dub the Radioactive Rule.
The Golden Rule is beneficial even where the state affords “protective cover,” because the state cannot be everywhere all the time. The institutions of civil society are essential to harmonious and productive coexistence. Where those institutions are strong, the state’s role (at least with respect to internal order) becomes less important. Conversely, where the state is especially intrusive, it usurps and displaces the institutions of civil society, leading to the breakdown of the Golden Rule, that is, to a kind of vestigial observance that, in the main, extends only to persons joined by social connections.
In sum, the Golden Rule represents a social compromise that reconciles the various natural imperatives of human behavior (envy, combativeness, meddlesomeness, etc.). Even though human beings have truly natural proclivities, those proclivities do not dictate the existence of “natural rights.” They certainly do not dictate “natural rights” that are solely the negative rights of libertarian doctrine. To the extent that negative rights prevail, it is as part and parcel of the “bargain” that is embedded in the Golden Rule; that is, they are honored not because of their innateness in humans but because of their beneficial consequences.
Among those of us who agree about the proper scope of rights, should the provenance of those rights matter? I think not. The assertion that there are “natural rights” (“inalienable rights”) makes for resounding rhetoric, but (a) it is often misused in the service of positive rights and (b) it makes no practical difference in a world where power routinely accrues to those who make the something-for-nothing promises of positive rights.
The real challenge for the proponents of negative rights — of liberty, in other words — is to overthrow the regulatory-welfare state’s “soft despotism” and nullify its vast array of positive rights. Libertarians, classical liberals, and libertarian-minded conservatives ought to unite around that effort, rather than divide on the provenance of negative rights.
Given the broad range of disagreement about the meaning of the Constitution and the content of natural law, neither will necessarily lead to judicial outcomes of which both Arkes and I approve. What really matters is whether or not judges are conservative in the sense that they are committed to the peaceful, voluntary evolution and exercise of social and economic relationships. Conservative judges of that stripe will more reliably use the words of the Constitution to protect and preserve the voluntary institutions of civil society and the salutary traditions that emerge from them. It is, after all, the Constitution that judges are sworn to support and defend, not amorphous conceptions of natural law and natural rights. As I say in “How Libertarians Ought to Think about the Constitution,” the document “may be a legal fiction, but … it’s a useful fiction when its promises of liberty can be redeemed.”
Arkes’s complaints about Justice Scalia and other strict constitutionalists exemplifies the adage that “perfect is the enemy of good.” The real alternative to Scalia and others similarly inclined isn’t a lineup of judges committed to Arkes’s particular view of natural law and natural rights. The real alternative to Scalia and others similarly inclined is a Court packed with the likes of Douglas, Warren, Brennan, Blackmun, Stevens, Kennedy, Souter, Breyer, Ginsburg, Sotomayor, and Kagan — to name (in chrononlogical order) only the worst in a long list of egregious appointments to the Supreme Court since the New Deal.
I prefer the good — reliably conservative justices like Scalia, Thomas, and Alito — to the impossible perfection sought by Hadley Arkes.
The Real Constitution: I
Negative Rights, Social Norms, and the Constitution
Rights, Liberty, the Golden Rule, and the Legitimate State
The Real Constitution and Civil Disobedience
“Natural Rights” and 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
Human Nature, Liberty, and Rationalism
Libertarianism and Morality
Libertarianism and Morality: A Footnote
Merit Goods, Positive Rights, and Cosmic Justice
More about Merit Goods
Liberty, Negative Rights, and Bleeding Hearts
Liberty as a Social Construct: Moral Relativism?
The Futile Search for “Natural Rights”
How Libertarians Ought to Think about the Constitution
More About Social Norms and Liberty
Liberty and Social Norms Re-examined
Natural Law, Natural Rights, and the Real World