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?
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?