There is a ten-part exchange about natural law vs. positive law at Political Questions, the blog of Steven Hayward. (Links are at the bottom of this post.) The exchange pits Hayward and Linda Denno (a.k.a. Lucretia) against John Yoo. Hayward and Denno defend natural law; Yoo defends positive law. The exchange is entertaining but thus far disappointing — to this lay person, at least.
To overcome my disappointment, I am offering my own version of the controversy. It is more straightforward and conclusive than the rather meandering (albeit enjoyable) repartee offered up by Hayward, Denno, and Yoo.
A law, in the realm of human endeavor, is a rule that arises from one or more sources:
- It may be “ingrained” in human nature, either divinely or through natural processes. Such a rule would be universal and self-enforcing if all human beings were “wired” identically. But they are not. (Think of two squabbling siblings with different conceptions of fairness.)
- It may a cultural norm, where culture includes religious belief. Here, it becomes obvious that universality is unattainable. (Think of Muslims and Jews.)
- It may established and enforced by a powerful entity (e.g., a parent, the state). In this instance, it may mimic a norm that is either “ingrained” or cultural in origin (e.g., the prohibition of murder).
The first two points address “natural” law, which has an uncertain provenance. The third point addresses positive law. It is evident that “natural” law cannot be universal or self-enforcing. But even if it were universal (self-enforcement is patently impossible), most of mankind doesn’t agree as to its tenets. Positive law is therefore essential to the functioning of most human groupings, from nations to families.
Having disposed of the main issue, I will venture into the question of rights, which are implicit in law. For example, if there is a law (“natural” or positive) against the murder of blameless persons, all blameless persons must have the right not to be murdered.
Does a right inhere in a person, or is a right an obligation on the part of all persons? In the case of positive law, the answer is obvious: The right not to be murdered is a legal construction that imposes an obligation on all persons.
Regarding “natural” law, I argue at length here that rights do not inhere in persons — at least not through the operation of reproductive processes.
What about through the operation of cultural processes? Culture is an artifact of the inculcation of beliefs and behavior, adherence to which signifies cultural kinship. The belief that something is a right is a cultural artifact grounded in human nature. Thus the commonality of certain rights (e.g., the last six of the Ten Commandments) across many or most cultures.
I put it to you that the (almost) universal desire to live a life in which one is not a victim of murder, theft, etc., is the basis of rights. But what such rights signify are only desires that no law — “natural” or positive — can guarantee.
That observation is consistent with the accumulation of rights (in the West) over the past century-and-a-half. Until the rise of “progressivism” — with its ever-expanding list of rights intended for the attainment of “racial justice”, “social justice”, “equity” and the like — rights were negative in the main. Negative rights require (and even demand) no action on the part of others (e.g., abstention from murder and theft). “Progressivism” gave birth to a panoply of positive rights, through which government usurps private charity (the receipt of which is not a right) and imposes costs on the general public for the benefit of selected recipients. The worthiness of those recipients is determined by arbitrary measures, including (but far from limited to) skin color, record of criminality, lack of intelligence or aptitude for a job, and illegal residence in the United States.
It is true that a person cannot live without food, clothing, shelter, or the effective functioning of myriad biological processes. That fact, like the inevitability death (but not taxes) is a truly natural law. But that law belies to the existence of “natural” rights. If there is no right to live forever, there is no right to anything that enables living at all.
In a post that is now eight years old, I quote the late Jazz Shaw, who penned this:
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. [“On the Truth of Man’s Rights under Natural Law“, Hot Air, March 29, 2015]
Amen.
Here are the links, in chronological order:
https://stevehayward.substack.com/p/thomas-jefferson-versus-jeremy-bentham
https://stevehayward.substack.com/p/is-natural-law-jurisprudence-just
https://stevehayward.substack.com/p/the-natural-law-vs-positivism-debate
https://stevehayward.substack.com/p/the-natural-law-vs-positivism-debate-174
https://stevehayward.substack.com/p/the-natural-law-vs-positivism-debate-37f
https://stevehayward.substack.com/p/natural-law-vs-positivism-debate
https://stevehayward.substack.com/p/natural-law-vs-positivism-chapter
https://stevehayward.substack.com/p/natural-law-vs-positivism-chapter-cb7
https://stevehayward.substack.com/p/natural-law-vs-positivism-chapter-335
https://stevehayward.substack.com/p/natural-law-vs-positivism-chapter-3f5
Politics and Prosperity 