One obvious drawback to natural law theory is that it
requires legislators to fully comprehend human nature, a topic of considerable
philosophical—not to mention sociological, psychological, and medical
—disagreement, with many scholars doubting the very existence of a universal
human nature. Another, however, lies in the historical origins of natural law
theory, which are theological. The medieval Christian theologian Thomas Aquinas
believed that the nature of things is revealed by their purpose. The nature of
a pen is to write, because that’s its purpose. But what is the purpose of the
human being? According to Aquinas, humans could discover their purpose simply
by applying their reason. But the answer they would find, he argued, happened
to coincide with what God intended that purpose to be. In practice, that meant
that Aquinas believed the purpose of humans included procreation, and that
sexual acts that did not take place within a context geared towards
reproduction were immoral. Natural law is still used today by its proponents as
a justification of the view that gay sex is morally wrong, as well as for
banning abortion, and even contraception.
Aquinas was a 13th century Parisian philosopher
whose works represent the pinnacle of scholastic philosophy. It was in many
ways a canonization of Aristotle placed in a Christian milieu and attempting to
establish Christian thought as reachable by reason. It would take Ockham some
fifty years later to reinsert faith in such issues as the Eucharist. Namely, it
would be Ockham that said; one relies upon reason to go too far and fail to
rely upon faith and the Biblical texts.
The concept of natural rights as a check to state power
evolved in the seventeenth century out of natural law theory. As citizens, the
idea went, we tacitly enter into a social contract with the state: We agree to
obey its laws in exchange for security, social order, etc. But there are limits
to what those laws can dictate —certain things the state cannot, without
legitimate reason, take away from us, and, in fact, has a responsibility to
protect: our natural rights, integral to our human nature and granted to us by
God. According to English political theorist John Locke, these rights included
life, liberty, and property.
Natural Rights are twofold. First, they are Natural,
whatever that means, and as such are inherent in all people perforce of their
humanity. Second, they are rights, which we seem to see as a term much more
comfortably. But rights to the Medieval were unheard of since then people were
subjects, they were not citizens, namely Kings and Popes were at the top, and
serfs were nowhere to be seen. It took initially Ockham and his revolt against
the Avignon Papacy and then Locke and Rousseau to examine and articulate
elements of individual rights. Natural Rights are Individual Rights, and they
are Natural because people, individuals, think they are.
Natural law and natural rights don’t necessarily have to
be used to promote a conservative, religious moral agenda. Sanders himself has
said that the right to healthcare comes from "being a human being”—a claim
echoing natural rights language. There are also scholars who have argued that
abortion rights are in fact natural rights. Some debate on natural rights is to
be expected, given that human nature and its moral implications are hardly
consensus-generating topics. But this also suggests appeals to natural law
might not be a good guide to drafting legislation: The defense and
interpretation of human rights is ultimately a political project, and should be
treated as such.
Philosophers from Aquinas, Ockham, Locke, Kant and others
have struggled with Natural Rights and Laws. The key question is; what is
natural or in one's nature? How does one determine what is natural and how does
one ascertain that some act is natural or un-natural? Without stating details,
which, depending on who one is, could be quite extensive, we can simply ask; why
do many people consider acts of a few as un-natural if those people find them
natural? Again we defer on any example.
One can say that it is the nature of a wolf to hunt in
packs, it is the nature of a chipmunk to be solitary, it is the nature anything
to do what it does. The latter is a tautology, but the two former are really
just biology. Namely the genetic makeup of wolves and chipmunks do what they do
because their genes are programmed to reinforce certain behavior and suppress
others. It is a result of the natural selection of these species.
Thus, one may posit that it is in the nature of humans to be
social, to hunt, to farm, and the list goes on. It is also in the nature of
humans to kill. Wolves kill, primarily to eat, but they will also do so for
pack leadership. No one trains wolves to do this, it is in their nature, namely
their genetic makeup. Man kills and it may very well be in the makeup of that
specific individual. It may be suppressed in the makeup of many individuals
which is why the military must bring this trait out of many who otherwise would
not be "naturally" inclined to kill. There are mass murders, very
few, but they exist. One could posit that it is in their nature, and one could
then posit that this means it is in their genetic makeup. After all we blame
genes from everything from drinking, smoking, obesity, and drug abuse. But
perhaps there is more than a bit of truth here.
Thus, when we say that something is in the nature of an
entity or natural we are asserting a pre-programmed genetic response. For
example, take the limbic system. This is a section of the brain, internal but a
significant neural connection matrix, which is generally composed of the
hippocampus, thalamus, hypothalamus, and amygdala. The limbic system is a
powerful system in the brain. It controls emotions, desires, controls the
sorting of short term memory to long term. The limbic system has what is termed
limbic valence, the imprinting of a collection of ideas and emotions and
reactions. It is the limbic valence that imprints a memory of just where we
were on say 9/11 or the day Kennedy was shot. It is the limbic system that evokes
the responses we often see as PTSD. It is the limbic system that
"tells" us right from wrong and what we see as rights. Thus, one can
argue that the "Nature" Aquinas and the others argued about is in
essence the limbic system, and the limbic system is wired and operates under a
genetic profile in each human. Namely the limbic systems are individual and
different, but almost the same.
Thus, when we look at "Natural" as generally
acceptable limbic responses we are integrating many individual limbic DNA
responses and finding commonality. Murder is bad, except for those who have a
limbic system for which the DNA has somehow turned that switch off. Society however
creates laws, things which delimit our rights. Most people do not think they
have a right to murder. Thus a law is created to delimit that "right"
that some few may think they have.
Now the discussion above is part science, part biology and
part speculation. It is an attempt to give a non-Kantian definition to what is
Natural and in turn what is a Right. Instead of invoking God directly we invoke
what we know about the human and frankly all species. Thus when we say it is in
their nature we are saying that it is in their DNA. But like Ockham, we assert
that each is an individual, with different DNA, and thus laws are a necessary
sequella to Rights since laws are controlling the putative rights of the few
for the benefit of the many.
Grotius is a seventeenth century Dutch writer on the law who
spent much of his life in France but heavily involved in establishing
international legal principles. He incorporated in his thinking certain
constructs of natural rights worth considering.
As Darwall notes[2]:
An imperfect right, on the other hand, is not a “Faculty”
but an “Aptitude.” Under this heading, Grotius includes considerations of
“Worth” and “Merit” that can recommend actions as more or less worthy or
meritorious, but which no one has standing to demand “Prudent management in the
gratuitous Distribution of Things” to which no individuals or society has a
valid claim may nonetheless recommend giving preference to “one of greater
before one of less Merit, a Relation before a Stranger, a poor Man before one
that is rich” (I, 88). But while “Ancients” like Aristotle, and even “Moderns”
who follow him, may take considerations of the latter to be included within
justice and so right (it is what Aristotle and his followers include under
“distributive justice,”)23 nonetheless “Right, properly speaking, has a quite
different Nature,” namely, “doing for [others] what in Strictness they may
demand” (I, 88-89). The strictly proper, modern sense of right as a quality
“annexed to the Person,” according to Grotius, is the one he here identifies:
respecting persons’ authoritative demands and, we might add, their “Faculty” or
authority to demand it.
In its final sense, ‘ius’ or “Right” signifies
the same Thing as Law when taken in its largest Extent, as being a Rule of
Moral Actions, obliging us . . . . I say obliging: for Counsels, and such other
Precepts, which however honest and reasonable they be, lay us under no
Obligation, come not under this Notion of Law, or Right.
Grotius follows this with his definition of the “law” or
“right” of nature:
NATURAL RIGHT is the Rule and Dictate of Right, Reason,
shewing the Moral Deformity or Moral Necessity there is in any Act, according
to its Suitableness or to a reasonable Nature.
Barbeyrac notes that other editions interpolated “and
Sociable” between “reasonable” and “Nature” and says there is some reason to
believe that these were simply left out by a printer or transcriber. As he
points out, when Grotius distinguishes between a priori and a posteriori proofs of laws of nature, he
brings in sociability explicitly. A posteriori proofs appeal to a consentium
gentium, that is, to something being “generally believed to be” natural law “by
all, or at least, the most civilized Nations” . An a priori proof, by contrast,
He continues:
Tuck points out that in the Prolegomena to the first
edition, Grotius says that the law of nature “necessarily derives from
intrinsic principles of a human being” and that the law would hold “even if we
were to suppose . . . that there is no God, or that human affairs are of no
concern to him” (Grotius 2005: I, xxiv; III, 1748-1749). Tuck notes that
Grotius is less direct on this point in later editions.
There Grotius says that
“Natural Right [the Law of Nature] is the Rule and Dictate of
Right Reason, shewing the Moral Deformity or Moral Necessity there is in any
Act, according to its Suitableness or Unsuitableness to a reasonable Nature,
and consequently, that such an Act is either forbid or commanded by GOD, the
Author of Nature”.
This might encourage the Suarezian thought that genuinely
obligating natural laws require an authoritative divine direction that is
consequent upon any intrinsic reasonableness or unreasonableness and that the
latter is impotent to provide all by itself. However, Grotius then adds that
actions that are thus suitable or unsuitable to a reasonable nature are “in
themselves either Obligatory or Unlawful, and must, consequently, be understood
to be either commanded or forbid by God himself”. This means that the
obligatory character of natural law depend not on divine legislation, but vice
versa.
and furthermore:
A perfect right is a “Faculty” of the person, which
includes the standing or authority to “deman[d] what is due” to him, including,
Grotius says, “Liberty,” or “power over ourselves” (or over others who are
under his authority) and property. Grotius adds that such a faculty “answers
the Obligation of rendering what is owing”.
There can be natural rights, therefore, only if natural
law includes genuine obligations to respect them. And among our natural rights
is Hegelian subjective freedom, that is, autonomy or our “power over
ourselves.”
We can examine Grotius directly we have a discussion of
rights, justice and the term natural in his work On War and Peace[3].
He writes on the topic of Natural Rights and attempts to delineate them and
establish them as some basis in fact. We examine several of his definitions.
The title of this work, On the Right of War and Peace,
should be understood in the first place in terms of the questions I have begun
by raising: Is there such a thing as a just war? and What is just conduct in
war? “Right” in this context means simply, what is just —“‘just” being
understood in a negative rather than a positive sense, to mean “what is not
unjust.” “Unjust,” in turn, means what is inconsistent with the nature of a
society of rational beings. However, “society” can be of two kinds: a society
of equals, e.g., brothers, citizens, friends, allies; and a society of
unequals, Aristotle’s kath’ huperochen, as of father and children, master and
servant, king and subjects, God and men (NE 1158bl2). So there are two kinds of
justice, the justice of those who live together as equals, and the justice of
those who rule and are ruled, in whatever respect that relation is relevant.
The technical terms rectorial Right and equatorial Right refer, I believe, to
these two.
Thus, above we have his first definition, a right is simply
what is just. For Grotius just is simply what is not unjust. Indeed, this is
apparently circular. For he then says unjust is what is inconsistent with the
nature of society. But who is society and what mechanism does this society use
to make this decision? For if it is just a majority and then one society can
have something being unjust and another being just. There are lots of societies
and thus lots of unjust and thus a conflicting assemblage of natural laws. Yet
perhaps that is nothing more than a reflection of the disparity amongst human
DNA. How would this change is instead of just a majority we required a near
total consensus, say 95% agreement? Would this result in some form of
"natural" convergence in the Grotius I definition?
Now Grotius continues:
[4] There is a second distinct sense of “right” deriving
from the first, which is attributed to a subject [“subject” in the grammatical,
not the political, sense]. A right is a moral quality attaching to a subject
enabling the subject to have something or do something justly. A right, in.
this sense, attaches to the subject even though it is sometimes associated with
a thing. An example: the ownership of an estate carries with it the right to
certain services. These are called “real rights” in contrast to “purely
personal rights.” It is not that real rights do not also attach to persons;
they simply attach to the person who has the thing. A moral quality may be said
to be “perfect,” in which case it is called a “faculty,” or it may be less than
perfect, in which case it is called a “fitness” These two categories correspond
to the categories of act and potency in metaphysics.
This Grotius II right is more in line to what we have been
using as a right. It attaches to the subject, it is "my" right, my
enabling to have or do something. I have a Grotius II right to free speech, to
own property, to practice or not practice a religion. Here Grotius presents
rights as something attaching to a person, an individual, devoid of any
societal context.
There is a third sense of the term “Right,” which
means the same as “law,” understanding “law” in a broad sense as a
rule of moral action obliging us to do what is correct. It implies obligation;
for counsels are not called “law” or “Right” even if they take the form of
nonbinding precepts. Permission, too, is strictly not an act of law; rather, it
is the negation of an act, except in so far as it obliges someone else not to
interfere. Our definition contained the words “obliging us to do what is
correct” (rectum) not “what is just”; for Right in this sense is not only
concerned with matters of justice, such as we have explained it, but of other
virtues too. However, from this sense of Right (ius) the word “just” comes to
have a looser sense equivalent to “correct” (rectum). The best analysis of
Right in this sense is Aristotle’s: there is natural Right, on the one hand; on
the other, there is voluntary Right (which he calls legal Right, using the word
“law” in a narrower sense than ours, or sometimes to en taxei, positive Right).
This Grotius III definition is the more classic one handed
down from Roman Law, the right one has in an object usually perforce of some
established law. Thus I have a right of use in my car, my house, my clothing.
He continues:
[10] Natural Right is what correct reasoning
prescribes when it identifies moral turpitude or moral necessity in a given act
by virtue of its compatibility or incompatibility with our rational and social
nature, with the inference that acts of that kind have been forbidden, or
commanded, by the author of nature, God. Acts which are the object of such
prescription are obligatory or illicit in themselves, from which we infer that
they are necessarily required or forbidden by God. This is what distinguishes
them not only from human Right but from divine voluntary Right; for that does
not require or forbid things obligatory or illicit in themselves, but makes
them illicit by forbidding them, or obligatory by commanding them. We should
note that there is a looser sense (what the scholastics like to call a
“reductive” sense) in which some things are said to be of natural Right because
they are not inconsistent with it; as we have now defined as “just” those
things that are not unjust. Sometimes, too, the phrase is used in a secondary
sense of actions which reason identifies as virtuous, of superior to the
alternative, though not obligatory. We should also notice that natural Right is
not only to do with acting in situations that arise independently of human
will, but with many situations which arise as a consequence of human actions.
Ownership of property, as we know it now, is 3-h.u- man institution. But given
that institution, natural Right is enough to forbid me to take your property
without your permission.
Grotius concludes some of this discussion with an argument
for demonstrating something as a natural right.
[12] There are two ways of demonstrating that
something is of natural Right, one a priori, the other a posteriori. The
former needs more finesse, so the latter is more often encountered. The a
priori proof is to show that there is a necessary compatibility or
incompatibility of something with our rational and social nature. The a posteriori
proof, which does not admit of absolute certainty but of a reasonable degree of
probability, infers that something is of natural Right from the fact that it is
accepted by all nations, or at least by the more civilized. For a universal
effect must follow from a universal cause; but what cause could there be for
such a generally held
evaluation other than what is called the “common sense”
of mankind?
Unfortunately this proof again relies upon the demonstration
of something predicated upon reason or nature. It is again a circular argument.
Yet if we return to Grotius in the context of our argument regarding Nature and
DNA then we have removed the circular elements.
[2] Darwall,
Grotius At The Creation Of Modern Moral Philosophy, 2008,https://www.semanticscholar.org/paper/GROTIUS-AT-THE-CREATION-OF-MODERN-MORAL-PHILOSOPHY/d7805333f5678caaf66f9410fb7438253cebdab3
[3]
See O'Donovan and O'Donovan p 767 218. O'Donovan
and O'Donovan, From Irenaeus to Grotius, Eerdmans, 1999.
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