Thursday, December 13, 2012

More on the Natural Law and the Founding

A Natural Law Manifesto

by Hadley Arkes

In launching the Claremont Institute's new Center for Natural Law Jurisprudence we want to proclaim again the case for natural law, and offer a kind of Natural Law Manifesto. We announce here nothing new to the world, much in the way that James Wilson, at the origin of the Constitution, proclaimed that we were not, under this Constitution, inventing new rights.

The object of the Constitution, he said, was "to acquire a new security for the possession or the recovery of those rights" we already possess by nature. The great Blackstone had famously said that, on entering civil society, we give up those unqualified rights we had in the State of Nature, including the liberty of "doing mischief." To which James Wilson asked, in a Talmudic question, "Is it part of natural liberty to do mischief to anyone?" In other words, as Abraham Lincoln and Thomas Aquinas had it, we never had a "right to do a wrong." Even in the state of nature we did not have a right to murder or rape, and therefore as we entered civil society, the laws that barred people from murdering and raping never barred them from anything they ever had a rightful liberty to do. And so, what rights did we give up on entering civil society? The answer given by Wilson and Alexander Hamilton was: none. As Hamilton said in Federalist 84, "Here, in strictness, the people surrender nothing." 

Hence there was something not quite right in the notion of a Bill of Rights reserving to people rights they hadn't surrendered to the state, for that implied that they had indeed surrendered the body of their rights to the state and that they were holding back now a few they hadn't surrendered. The very purpose of the Constitution—the purpose that directed all branches of the government, not merely the courts—was the securing of those "natural rights." One could deny that point, as Hamilton said, only by slipping into the teaching of Thomas Hobbes and supposing that there were no rights before the advent of a government, no morality antecedent to civil society. As Hamilton pointed out, in Hobbes's view morality was all conventional. We could not expect anyone to accept any moral restraints on his conduct, for until there were laws, he could have no assurance that there were moral truths out there that anyone would respect.
Hamilton may be taken as a telling voice here, for indeed the American Founding would not make any sense unless those doctrines of Hobbes were decisively rejected. But that is to say, again, that the founding, and the second Constitution it brought forth, found its telos, its central purpose, in the securing of natural rights, the rights that had to be there even before a government came into place.

As they say, read the whole thing.


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Jason Pappas said...

I remember reading it the first time (I subscribe) and thought it provocative but vague. Arkes seems to lean towards a rationalist strain of "natural law [that] found its grounds in the laws of reason" and "'"laws of reason'" that I take as the ground of the natural law." He quotes Hamilton in his cause.

There is also a more empirical "natural law" that grounds rights in human nature, human society, and the lessons of history. I take Locke to be in this empirical dialectic when he argues for property rights to protect man's production and very life. Adams might be in this category when he brings the weight of history and the frailty of man to argue for a well-constructed balanced constitution.

It seems the French were top-down natural lawyers and Kant (whom Arkes cites) was a pro-French rationalist. At least my suspicions make me wonder if his natural law is compatible with our founders' natural law. I'd like to know more about both.

Tom Van Dyke said...

There is also a more empirical "natural law" that grounds rights in human nature, human society, and the lessons of history.

This would be a fine first approach--an approach to the first principles of the Founding. The problem with modern philosophy is that it begins to deny the existence of first principles!

[Another problem is Hegel, etc., a belief in human progress. I favor the classical view that man is about the same heinous creature he was in Socrates' time. I believe Madison, et al., set up our system with man's heinousness more in mind than his perfectibility.]

Hence Jefferson's question still stands unredressed

Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God?

...or at least, that these liberties---the necessity of being free---are interwoven with man's nature and constitute some sort of natural law. [This is how an atheist like Murray Rothbard could approach and embrace the Founding principles without signing onto the God Squad.]

The current crisis is that we don't understand the Founding's "negative" liberties and rights, guarantees against not only the tyranny of government, but the tyranny of the majority, the other side of the tyrant coin.

Once we get into "positive" rights, like the right to free whatever to make everything "fair," the negative rights are at risk.

As for Arkes' interpretation of natural law, I think it may be beyond the scope of this blog. My own concern is that we in 2012 have no understanding of the "Founding principles," which are more than Yankee Doodle and low taxes, and different from a natural "right" to your fellow citizens being responsible for providing you free stuff.

[I love the legal stuff, the interesting thing to keep in mind with Arkes is that his pals Scalia and Bork are not "natural lawyers"---they're "legal positivists," believing that we have enough written laws and precedents in the bag that judges should stop fishing around the stratosphere for their own interpretations of cosmic truth.]

Jason Pappas said...

Yes, the average person today has no idea of the founders conception of rights and contemporary schools of philosophy are hostile to the very notion (as understood by the founders). I appreciate the need for Arkes to advocate for "natural law" -- even in a conservative journal!