From Loyola Law Review (New Orleans), XXXVIII (#2, 1992). 289-309. The Annual Brendan Brown Lecture.
ON BEING DISSATISFIED WITH COMPROMISES:
NATURAL LAW AND HUMAN RIGHTS
"In the modern development, 'natural law' is as it were replaced by 'the rights of man,' or in other words the emphasis shifts from man's duties to his rights. Whereas pre-modern natural law was on the whole 'conservative,' modern natural law is essentially 'revolutionary.' The radical difference between modern and pre-modern natural law appears most clearly if one studies the still-remembered great modern natural law teachers rather than the university professors who as a rule rest satisfied with compromises."
-- Leo Strauss, "On Natural Law."
Natural law and natural rights in recent years have received a certain impressive amount of academic attention. But no one could ever say that natural rights were especially in the public eye until the Hearings for the Nomination of Judge Clarence Thomas to the United States Supreme Court, though natural rights were also rumblings around the edges in critiques of Judge Robert Bork's theories. Suddenly, for a time, anyone who espoused this curious doctrine of natural law seemed either by some to be a defender of public morality against irresponsible civil legislation or, conversely, by others, he seemed to be a subversive of the public order itself for implying that even the Constitution is subject to a "higher law." Many scholars, no doubt, will recall, on hearing such words, Edward S. Corwin's little book The "Higher Law" Background of American Constitutional Law, while we might hope that everyone would have once heard in a most famous Document a phrase that refers to "the Laws of Nature and of Nature's God."
Writing to this controversy, Jerome J. Shestack, former United States Ambassador to the United Nations Commission on Human Rights, remarked that "there may be reasons to question Judge Clarence Thomas's qualifications for the Supreme Court, but his espousal of natural rights philosophy is not one of them." Shestack pointed out that such documents as the American Declaration of Independence, from whence in fact came the phrase "The Laws of Nature and of Nature's God," the French Declaration for the Rights of Man, and the Universal Declaration of Human Rights found their "moral philosophic underpinnings" in "natural rights."
What was embarrassing was thus not Judge Thomas' recalling the foundations of modern political society but the views of those who sought to reject these very foundations in the name of positive laws that might indeed violate something essential to human dignity and life. The long intellectual struggle to limit the state has invariably led minds back to considerations that must be described as natural law, that is, to a source outside the powers of the state itself to formulate entirely by itself what it was.
For Shestack, the "chief exponent of modern natural rights theory (divorced from religion) was England's great philosopher, John Locke." Clearly, for Shestack, America is founded in "modern" natural rights that are "divorced" from religion. These rights are still "inalienable" because they are the foundations of why we enter society in the first place. The Constitution incorporated a more particular statement of these natural rights into the law of the land. "First Amendment rights, due-process, and immunities" are examples of natural rights.
When natural rights came under attack from Bentham, natural rights were replaced with positive rights in which "legal authority stems solely from what the state has laid down as law." To the positivist charge that "natural law thinkers" -- notice that natural "law," not "rights," is used here -- "blurred the distinction between what law is and what it ought to be," Shestack replied that the difficulty for positivism was that "the law is not better than the source of its authority." Shestack remarked that after World War II natural rights enjoyed a revival because the Nazi experience revealed "the horrors that could emerge from the positivist system in which the individual was completely subject to the state." Even Justice Thurgood Marshall referred to "natural rights" in the famous desegregation case, Brown v. Board of Education.
I have cited from this short essay of Jerome Shestack at some length because he gives a good historical summary of the case for natural rights, rather than natural law, terminology. Yet, certain aspects of this not uncommon presentation can be wondered about. Here, natural rights are treated as something specifically "modern." They are rooted in Locke, not Aristotle. Shestack noted, furthermore, that some modern philosophers base rights not on Locke but on Kant, on the notion that "rights flow from the autonomy of the individual in choosing his or her own ends." Is it possible, we might wonder, in our freedom to choose ends against nature? If this be so, the autonomy of the individual is not remarkably different from the positivist position. This position holds that whatever the state, which itself is but a collection of equally autonomous wills, establishes as law is law, with no answerability to some "higher law."
If modern natural rights, moreover, are "divorced" from religion, what are we to make of the classical position of natural law that had already made a distinction of this sort when divine and natural law were clearly distinguished from each other? Are modern natural rights designed particularly to support the autonomous individual who is responsible to no one but himself, even in his polity, as Rousseau attempted to demonstrate? Are the collective decisions of autonomous individuals the only source of law even against the individual's own autonomy? If this alternative position is the case, are natural or human rights all that defensible? Is there something about particularly "modern" natural or human rights that needs to be carefully reflected upon? Are modern human rights simply equivalent to what was historically called natural law or even classical natural right? Is there after all something "alien," to use Shestack's word, about natural rights and if so, what is it?
The most elementary statement of natural law as it exists in human beings is simply "do what is reasonable." Indeed, the statement can be made even briefer than that: "Act reasonably." Thomas Aquinas, in his extraordinary capacity to be both brief and to the point, put the principle this way: "Naturalis inclinatio inest cuilibet homini ad hoc quod agat secundum rationem." We not only do things, but we have a reason for doing them, a reason that, while it is our own reason, is not merely our own. It is a reason in its essence that seeks to conform itself with what we ought to do, with what is, not just with what we do "do". Deeds or actions in their intelligibility are open to the understanding of whatever else in the universe besides ourselves has reason. Though our thoughts and even our willed deeds may be private, they are not unintelligible. They can be explained. Indeed, their very nature is to seek explanation or intelligibility for themselves.
Perhaps I can illustrate this position in a more familiar manner. Sally and Linus are walking along a path by a stone wall. Linus is following Sally, his little sister. Linus asks her with some curiosity, "How come you didn't go to summer camp this year?" In the next scene, she stops dead by a telephone pole, turns abruptly to him with some genuine perplexity to ask a puzzled Linus, "You mean I have to have a reason?" The very humor of this scene depends on the natural law at work in all of us; it depends on the fact that yes, we do need a reason in all that we do, even when we do not go to camp this summer. Humor, as Aristotle said, is itself a sign of reason, a sign indicated by the fact that we get the point, that we can see the reason why something is funny, why a cartoon denying a reasonable action is itself suddenly a manifestation of reason.
The most philosophic issue that the experience of politics occasions, through its bewildering experience of differing actual and historic regimes, is that of the best regime. And as Aristotle pointed out in the Second Book of The Politics, we must consider not merely the variety of actual regimes but also the variety of theoretic regimes proposed by the philosophers. The best regime, as we know it from Plato, however, only existed in speech. In human history, including the history of the 20th Century, efforts actually to establish the best regime in some political entity always seemed to entail something tyrannical. St. Augustine had recognized that it was of the very essence of human nature to seek the best city, the City of God, as he called it. But St. Augustine, not unlike Plato, warned us not to look for this City in this world. The identification of the best regime with some actual regime, a problem we already seem to find in Cicero's understanding of the actual Roman Republic, displayed a profound misunderstanding of the proper location of human happiness, the happiness to which all regimes indeed pointed, as Aristotle taught in the First Book of The Ethics.
Aristotle had held, moreover, that political science was the highest of the practical sciences, but not the highest science as such. Politics existed in its own right, yet at the same time, it was the condition for something further, something more "divine," as he put it (1177b27). Politics at its best existed for the leisure in which the highest things as such could be considered and lived. The "doing" and the "making" of the life of man on earth, the "practical" life, was naturally related to the highest things as such, to what the Greeks meant by "theory" and the Romans by "contemplation." But Socrates soberly remarked in The Apology, that he, the philosopher, had to remain a private citizen in his polity of Athens, the best actual regime, lest he be killed sooner than he was by his politician accusers, by the craftsman, the lawyer, and the poet. There seemed to be some dangerous conflict between polity, poetry, and philosophy.
In his short "Preface" to The Natural Law Reader, Professor Brendan F. Brown, in whose honor this Lecture is given, wrote in 1960, that consideration of natural law was relevant not merely to professional experts in the field but to all human beings. Natural law, Brendan Brown thought, related "to the most fundamental values of every day living. It is pertinent to the choice of the best future legal and political order, and the kind of civilization which will be most conducive to man's happiness." Already here, if we reflect on it, is the question of the best regime posed as an aspect of natural law. Brown was even rather optimistic and thought that "natural law jurisprudence ... is slowly but surely winning its final battle with the force concept of law contained in positivism which makes the essence of law depend on the will of the political sovereign."
Though the intellectual discussion of natural law is currently at a high level, as I have indicated, I would not be so sanguine as Professor Brown about its chances. And yet, if we are familiar with, say, Professor Ellis' Sandoz' brilliant A Government of Law or the more Hegelian reflection of Francis Fukuyama's The End of History and the Last Man or Mary Ann Glendon's Rights Talk, we will realize that the question of the best regime can be carefully re-posed either in terms of the American Founding, of the democratic-free market system, or a communitarian rights system as the best possible regime for all the world.
Hadley Arkes, in his Beyond the Constitution, speaking of the philosophical principles that lie behind any reasonable regime, including our own, remarked that we still need to appeal to "those moral understandings lying behind the text; the understandings that were never written down in the Constitution, but which must be grasped again if we are to preserve -- and perfect -- the character of a constitutional government." This approach would suggest that the distinction between good regimes and the best regimes remains crucial. We can distinguish between bad, good, and the best regimes only if we have some principle of common distinction among them.
Moreover, as St. Augustine implied, even though the question of the best regime is a legitimate one, its location can never be in this world. Thus, following this line of thought from Plato and St. Augustine, there are a number of political philosophers who hold that the effort to put the best regime in this world is in fact the origin of the totalitarian mind and system. In this sense, since no actual regime can embody the elements or items of human happiness, we must look elsewhere to complete this pursuit of happiness, or else we must despair of ever finding it. Political happiness, consequently, as Aristotle already observed in the Tenth Book of The Ethics, is a secondary form of happiness, less divine, more human. It is not to be neglected, but it is not to be confused with the best to which mankind is ordained.
What is new about this re-posing of natural law and the best regime, of course, is that it takes place in the light of the death of Marxism and those forms of ideology, left and right, that have caused such turmoil in this century. It would be comforting to see in this demise of Marxist ideology the likelihood of a return to classic natural law, but there are perhaps more ominous indications, as Paul Johnson has warned, of the continuation of the philosophic causes of ideology in a new, more subtle, ironically more "democratic" form. We should not forget, moreover, that practically every extreme ideological state in this century has been proposed as a "best" regime and usually put into effect by a politician with philosophic pretensions. On this account there are some who would erroneously conclude that reflection on the best regime is an illegitimate occupation. But the only true way to deal with a legitimate question, which the question of the best regime is, is to think about it properly, not to stop thinking about it at all.
Brendan Brown noted the influence of positivism as the alternative to natural law. Both Leo Strauss and Eric Voegelin have argued that historicism and positivism, both of which result in the same position that there is no natural human order known to reason, are the dominant methods and theses in our culture. Hadley Arkes also had written that modern liberalism and conservatism are both rooted in the same general philosophic premise. This is
the displacement of natural rights, in our public philosophy, with one variety or another of "positivism" or moral relativism. Regardless of whether lawyers are liberals or conservatives, they are products of our law schools, and since the inception of law schools, their students have been tutored in the reigning orthodoxy of "legal positivism."
This suggests that, in practice, there is little real dialogue with natural law theory, however much the philosophic occasion for this dialogue might now be possible and however high might be the quality of natural law discussions in obscure areas of contemporary political philosophy.
But if the positivist side of this discussion is perhaps most prevalent in law schools, in universities it can be argued that the historicist side of modernity is most prominent. The cultural relativist or historicist or deconstructionist thesis against natural law is that there are no universal civilizations or discussions. Whatever is done in this or that culture is a kind of absolute, not subject to any standard of philosophical analysis other than itself. This argument means that the world is strictly and in principle "pluralist," that politics has no "best regime" except that regime that accommodates opposite, even contradictory, philosophic, ideological, national, or religious systems. It means that natural law is not even "natural."
This accommodation to all cultural systems no matter how contradictory usually entails the doctrine that there is and can be no truth and that claims to truth are themselves enemies of the best regime now brought forth by modern philosophy. Thus, there can be no principle of better and worse, the very stuff of classical natural law and ethical theory. It is to be emphasized here that this cultural pluralism is a very different position from that traditionally elaborated under the heading of the legitimacy of different regimes.
Catholic social thought in particular has often stated that nations are free to choose the form of rule that is best suited to them so that a wide variety of regimes would be normal. Aristotelian theory also recognized differing forms of "good" and "possible" practical regimes. But both of these theories were grounded in a reflection on the best regime. The distinction of good, better, and best thus remained, as did the distinction between bad, worse, and worst. From the point of view of a theory of prudence, the central intellectual virtue of moral and political philosophy, it might be necessary to accept systems that were not the best. It might even be necessary to accept a bad regime in preference to the worst regime. Elements of possibility and gradualness were necessary aspects of any common sense discussion of ethics or politics. But neither considerations of possibility or gradualness meant that continued reflection on and understanding of the best regime did not remain the condition for any decisions about ordinary regimes.
No one has seen more clearly the result of this historicist position that all regimes are equal than Gertrude Himmelfarb. "The presumption against greatness goes deep," she remarked in her Jefferson Lecture.
It is, in fact, at the heart of the debate about "great books." The argument is no longer about the specific composition of the canon, the inclusion of this or that book, but about the very idea of greatness, a greatness that traditionally has been thought to transcend race, gender, and class -- and genre, too.... (The truth is) that high culture is higher, more elevating, than popular culture, and that some events in history are more momentous than others.
We do not exalt the common man by depriving him of nobility, of his formidable capacity to recognize greatness and dignity, even when he may not himself possess it.
A cartoon in The New Yorker shows a young romantic couple sitting on a bench in Central Park. We see the trees, the grass, the birds, the city buildings in the distance. The young lady has very bright eager eyes. She is holding the young man's hand and touching his shoulder reassuringly. She faces him. He in suit and tie has equally big eyes, but he seems a bit confused by it all. Behind the bench, in the air, however, we see two cupids, a Military Cupid with the traditional bow and arrow about to shoot his fatal shaft at the young man and a Legal Cupid with a piece of parchment but also with a rather angry, concerned look. The Military Cupid yells down to the Legal Cupid impatiently, so he can get on with his amorous business, "Read him his rights".
We are accustomed to finding what we call "rights" in official documents that "declare" or "hold" that we have them -- the Bill of Rights, the Universal Declaration of Human Rights, the French Declaration of the Rights of Man. We are perhaps vaguely aware that "rights talk" is the successor to "law talk," that the discussion of human rights is not exactly the same as the discussion of natural rights and that neither are exactly the same as discussion of natural law. Not a few have sought with some care to put all of these notions together in one coherent discourse. Jacques Maritain has sought to do so as has John Finnis in recent years.
On the other hand, many historians of the subject maintain that there is a radical distinction between modern and classical natural law, that the two concepts are not the same and should not be confused. "Except for the name, the medieval and the modern notions of natural law have little in common," Alexander Passerin d'Entreves wrote in a famous book. Alasdair MacIntyre would go even further:
The concept (of rights) lacks any means of expression in Hebrew, Greek, Latin or Arabic, classical or medieval, before about 1400, let alone in Old English, or in Japanese even as late as the mid-nineteenth century. From this it does not of course follow that there are no natural or human rights; it only follows that no one could have known that there were. And this at least raises certain questions. But we do not need to be distracted into answering them, for the truth is plain: there are no such rights, and belief in them is one with belief in witches and in unicorns.
"What is going on here?" we might ask ourselves. Why has so formidable a thinker as Leo Strauss pointed out that modern natural right is "revolutionary," that it is associated with modern totalitarian movements and, at the same time, we are told that rights are proposed as the way to limit absolutist states in the modern era? We are told that a new sort of "right" is invented about 1400 that seems quite different from the natural law that went before with the medievals or with the Greek notion of natural right.
The obvious culprit seems by all odds to be Hobbes, to be his peculiar way of formulating natural right as something that in itself allows no limits of nature or reason, but only a kind of instrumental reason calculated to protect and multiply one's own rights. Another cartoon in The New Yorker showed two cave men, clearly in the state of nature, both with huge rough-hewn clubs over their shoulders, both wearing the famous loin cloth invented shortly after Adam's expulsion from Eden. The cave men, obviously still in the classic State of Nature, are coming down a mountain conversing. The first cave man, with evident sincerity and perplexity, declares to the second, who listens with some sympathy, "I'd be the first to say 'Repeal the harsh old rule of tooth and claw' if someone could show me that it wasn't working." Well, Machiavelli and Hobbes developed a system of natural right that showed how it could work. Brendan Brown's insightful remark that "the essence of law (for legal positivism) depends on the will of the political sovereign" is nothing but the logical consequences of natural right doctrine as it has worked its way through modern political philosophy.
In her recent study, Mary Ann Glendon wrote of the degree to which human rights have had a destabilizing effect in public and private life. Divorced from any corresponding concept of duties and any grounding in a higher reality, they have become claims based on nothing other than themselves. "Our rights talk, in its absoluteness," Glendon has written,
promotes unrealistic expectations, heightens social conflict, and inhibits dialogue that might lead toward consensus, accommodation, or at least the discovery of common ground. In its silence concerning responsibility, it seems to condone acceptance of the benefits of living in a democratic social welfare state, without accepting a corresponding personal and civic obligation.... In its neglect of civil society, it undermines the principal seedbeds of civic and personal virtue.
Rights, which in some sense were understood as a protection from the state, have somehow become an instrument in its growth and power.
If human beings have "rights," then, for every right they do not have, they can look at themselves as "victims." The state becomes responsible for redressing every perceived violation of rights. And if there are no truth limits to rights except what is legislated or willed, then the state has practically unlimited power to define and promote "rights." A "rights" based morality is in this sense conceived in opposition to a "virtue" based morality and politics. The emphasis of the latter is mainly on the individual's own powers of self-action and initiative, on his own prudence. People can fail to do the normal things, a failure that is not the result of a lack of "rights," but a lack of energy or enterprise.
Thus far, it seems, I have suggested that there are considerable intellectual and historical problems with free use of the notion of natural or human rights. John Paul II, however, a man for whom I have the greatest admiration, seems to use the notion of human rights with great frequency and in a manner that, I think, causes some concern because of its failure to attend more specifically to the problems that arise in modern rights theory. Thus, the Holy Father seems rather less aware of this danger inherent in rights language. Times without number the Pope will say that the state is to protect and promote human rights -- civil, economic, social, and human -- and the Church should assist in this task. This sort of language causes confusion not merely because economic and social rights in particular are more like feasible legislation that will vary from country to country and time to time but because rights seem unrelated to duties and seem to have no intrinsic limits.
However, when one examines carefully what the Holy Father says, it is clear that he is aware of the sort of problem I have been suggesting. What I propose to do here, as an example of how we might best think out this problem, is to follow the Holy Father's discussion and to note how he sees rights as involving some intrinsic limit beyond the will of the individual or legislator. There are three passages in John Paul II's recent Encyclical Centesimus Annus that I think are pertinent to our consideration of natural law and human rights, passages that illustrate the problem.
The first passage has to do with a reflection on the causes for the demise of socialism, the second on a notion of democracy that is itself unlimited. "Socialism ... maintains that the good of the individual," the Pope observed,
can be realized without reference to his free choice, to the unique and exclusive responsibility which he exercises in the face of good or evil. Man is thus reduced to a series of social relationships, and the concept of the person as an autonomous subject of moral choice disappears (#13).
Notice that socialism is criticized in its philosophic import not because it is immoral with no concern for good and evil in human affairs, which concern is the basic issue of moral philosophy, as Aristotle said.
Rather socialism is criticized because it improperly located the place where this decision about good and evil should be made, that is, in the individual himself. The person not the state is the subject of moral choice. The state is not a substance or thing. It exists only in the relation of its members to each other. But once this capacity to choose is established or identified, it is to be made for truth, not merely for itself. The fact that a person is a subject of moral choice still does not indicate how he will choose. And ultimately, it is this latter decision that makes the essential difference among human beings.
If "the good of the individual" cannot be achieved without reference to his "free choice," this freedom must be itself a constitutive part of what it is to be a human being. The alternative that human beings are determined either by a fatalistic nature or by social institutions outside their control is the line that must be taken if we deny this intrinsic freedom and the drama of life that goes with it. On the other hand, once we admit this freedom, we can say that it is "right" that we have such a capacity that defines our very uniqueness in the universe. But the exercise of this freedom that is our right itself must direct itself to reality, to what is. In this sense, the object of our freedom is not itself -- we do not choose just to choose. Rather we choose the good that we must know as true if this freedom is to be properly used.
Thus, the Holy Father in the same Document will add, "... Total recognition must be given to the rights of human conscience, which is bound only to the truth, both natural and revealed. The recognition of these rights represents the primary foundation of every authentically free political order" (#29). If there is any theoretic point at which the Pope distinguishes himself most clearly from modern autonomous natural rights theory, without foregoing its confusing terminology, it is here where he insists on using the language of natural rights. I want to take some care with this argument because I think its language is the source of enormous confusion and because I think we need to form some coherent reasoning by which if we must use the natural rights language, it is not rooted simply in will or in the abstract capacity to choose with no attention given to the choosing of what. "Freedom" as such is quite impossible without carefully indicating its object, its choosing what? Freedom always exists in the context of an object, of a choosing something.
Thus, we speak of human conscience. It is that last act of the reason by which we judge in our own souls the moral and ontological status of an act we are about to put into the world, an act we know can be otherwise. We judge this act in light not of itself but of its truth or goodness. From this background, we can see that the Pope is insisting, by his use of the term "rights of human conscience," on a criterion that the conscience discovers but does not make for itself. This is why the Pope says that we are bound only to the "truth either natural or revealed," as if to say that any other claim to bind us must first justify itself before this source outside of itself and of ourselves.
The very existence of this objective criterion is, therefore, why we are ultimately free even in the worst regime or situation. We are not speaking here of things like "honest" error or invincible ignorance, though these two must at some point be subject to the test of truth. We are rather trying to understand that the word "right," however confusing it might be, can and should mean that a being who can know the truth should choose the truth and not merely itself.
When the Holy Father maintains that the recognition of these rights of conscience is the foundation of every "free political order," consequently, he is giving us a theory of the limitation of the state as such. He is denying any theory of "right" that would have will and not truth as the highest obligation or purpose in freedom. This is not a theory that denigrates freedom but one which saves it so that it can be what it is intended to be. The Pope affirms here something that St. Thomas meant when he remarked that the civil law, that is, the positive law that men ought to enact for their common good, cannot reach directly to our inner intentions and souls from which all law and action proceeds.
This concern for the limits of law and polity is why John Paul II included both "natural and divine truth" in his description of the proper object of the free will. It is true that neither nature or revelation needed to exist in the first place. In this sense, creation is filled with contingency, with the freedom of its possible non-existence, or, to put it the other way around, it is filled with the glory of God in the existence of what is not God. We often think, perhaps unmindful of the essence of the account of The Fall in Genesis, that the danger of freedom is an act of self-choice in which we choose our truth over the truth of what is.
We find ourselves maintaining, in this understanding of freedom, that the very definition of good and evil depends only on our own will. The fact is that if the only truth we can discover is itself dependent solely on our own wills, we cannot avoid knowing that it is not the truth. We know that we did make ourselves to be human beings or to be at all for that matter. The truth of our being is already contained in the truth of what we are from nature. Yet we still have both to discover and to choose this truth which is why it may not come into existence, as it need not, since its effective existence depends on our freedom.
A final consideration about the Pope's understanding of the notion of rights needs to be made if we are to think our way through the complexity of this term as it refers to political philosophy and natural law. If "rights" depend merely on will, then we automatically have a "right" to do whatever we choose to do individually or politically. This position grounds those accusations against the Pope to the effect that he is not consistent in his "rights" usage.
Modern society, in its own understanding of itself, has in fact developed a number of what it calls "rights" -- abortion, I suppose, is the prime example -- that the Holy Father strongly and rightly objects to on the grounds that they violate human rights. If one's theory of rights is based on will, however, then the content of rights is found to be whatever is willed. In political or sociological terms, we find out what rights we possess by measuring what "rights" are in usage. If we find that certain practices or institutions are in fact popularly willed, then they are called "rights" because this is what, in such a theory, causes rights to be rights.
"Even the law is trying to get by more and more without the concept of guilt," Josef Ratzinger wrote in a passage that gets to the core of the problem:
It prefers to make use of sociological language, which turns the concept of good and evil into statistics and in its place distinguishes between normative and non-normative behavior. Implicit here is the possibility that the statistical proportions will themselves change: what is presently non-normative could one day become the rule; indeed, perhaps one should even strive to make the non-normative normal. In such an atmosphere of quantification, the whole idea of the moral law has accordingly been generally abandoned. This is a logical development if it is true that there is no standard for human beings to use as a model -- something not discovered by us but coming from the inner goodness of creation.
This description is, no doubt, the accurate analysis of what has taken the place of any source of intelligence in nature and reason. "Will" description is merely what we do. The distinction between good and bad is itself based, in this position, on what men "do" do, not on what they ought to do, to recall a famous passage in Machiavelli's Prince (XV).
A natural rights legislation based on modern natural rights, whether interpreted positively or historically, will invariably yield this theoretic result in which what is "right" is decided by what is done for the most part. This practice becomes the norm in lieu of any other source but will. There is thus a form of natural rights theory combined with democratic theory that would propose itself as the embodiment of human civilization and dignity. Indeed, the very notion of a classic natural law or revelation is seen, rightly, as an attack on this understanding of modern humanism. The suggestion that revelation or reason an correct what is chosen or what is done is considered to be anti-democratic and even fanatical, which, of course, it is granted these philosophic foundations of a theory of law based on will and a theory of democracy based on statistics of what is done.
John Paul II shows that he understands the issue as formulated. He wrote, also in Centesimus Annus:
Nowadays there is a tendency to claim that agnosticism and skeptical relativism are the philosophy and the basic attitude which correspond to democratic forms of political rule. Those who are convinced that they know the truth and firmly adhere to it are considered unreliable from a democratic point of view, since they do not accept that truth is determined by the majority, or that it is subjected to variation according to different political trends. It must be observed in this regard that if there is no ultimate truth to guide and direct political activity, then ideas and convictions can easily be manipulated for reasons of power. As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism (#34).
No doubt, this is an accurate description of much modern political and legal philosophy. It is also shows a correct understanding of why, on the basis of this skeptical position, natural law must be looked upon as "anti-democratic." The Pope gives both an historical and philosophical argument about the validity of this position. This historical argument is that positivist theories did lead to totalitarianism. The philosophic argument is that truth must be grounded outside the will by some truth beyond politics, a truth to which every will is ordained through a reason open to truth as such, even from revelation.
From these considerations, I would conclude that the widespread use of the term "natural rights" by our Founding Fathers and even by the contemporary Papacy, needs a rather more careful attention than it has received. The fact is that "natural rights" can found diametrically opposite systems and lead to quite opposed results both in the individual soul and in society. The struggle for control of civilization is being fought out in many ways over the meaning of "natural rights." We should not be surprised that it is, in many ways, a very bitter fight, because it involves nothing less than a proper understanding of man's full reality as a being endowed with a rational faculty open to and capable of knowing and acting on truth.
One final cartoon shows two New York businessmen at a party. Both have a drink amidst palm decor, paintings, other casual but well-appointed guests. The larger gentleman, with hand in pocket, quite angrily is telling the smaller moustached, bespectacled men, who listens with some astonishment, "I may not know much about the Constitution, but I certainly know what I like." We should indeed know what we like and like what we know. The Constitution was founded in a kind of knowing, no doubt, a knowing that what we liked, our self-interest, needed various kinds of checks. What if that which checks both our likes and our Constitution is best described by something called our natural rights? But these rights need themselves to be ordained to a freedom oriented to truth, a truth we did not make but a truth we can, to some degree, discover "coming from the inner goodness of creation."
That the teaching about natural or human rights has caused considerable confusion even when pursued with the best of intention is the foundation of what I have wanted to address myself to here. Ernest Fortin, in this same regard, has asked simply "whether the modern rights theory that lies at the root of so much of what our church leaders have been saying lately is compatible with the stress on duties or virtue that is typical of the older approach to these matters." Fortin is quite dubious that these enterprises are compatible as the terms are used in modern political language and thought. I would not deny that in many sectors of religion, knowingly or unknowingly, "modern" rights language and thought have in fact been accepted with all the consequences that go with them. On the other hand, I would suggest that the Holy Father himself, who seems often to be most guilty of using "rights talk" with unqualified enthusiasm, in fact has in his actual discussions recognized the basis of the problem in a theory of rights based on will alone as its origin and justification.
I do not want altogether to abandon the language of rights, though I am willing to acknowledge that more often than not is in fact used to promote positions that are not grounded in any understanding of what the classic natural law was about or intended. When Leo Strauss remarked that university professors in these discussions of natural right were often "satisfied with compromises," he put his finger on the real problem. As Strauss noted, there is a shift in modernity from duties to rights and this shift is not merely one of stress or emphasis.
The "revolutionary" nature of modern natural rights theory that Strauss also noticed is possible not because it is interpreted against a standard of reason, itself found in nature by a mind capable of understanding itself and the order of things, but because it is understood against a theory of rights based on will. If we are to be "dissatisfied with compromises" about human rights and natural law, we must, I think, clearly understand that "rights" easily lend themselves to these two radically different interpretations.
The problem is not so great if we take the trouble to understand exactly what is meant by the differing usages. Furthermore, there is a perfectly valid use of the word "right" or "jus" in classical natural law theory. It refers not to what is willed to be the form of action or regime but to that intelligible rightness that exists in every human action by which it is either good or bad, either this action or that. We may indeed not know much about the Constitution but know quite clearly what we like. What virtue ethics and politics ask is whether what we like is itself in conformity with what is.
One notion of human perfection is whether we put into being what we want. The other asks whether what we want is itself in conformity with what ought to be, itself based on the reality of our being and on the order in the cosmos. The division between these two approaches at bottom is St. Augustine's difference between either creating our own world or discovering that of God as it is reflected in our own nature. The passion generated over the claim about whether there is a "natural law" or only modern "natural rights" is rooted in this ultimate problem, the problem of pride, the problem of whether we create in our ethics or in our polity our own world and consider ourselves to be only happy when we exclude any judgement from it that we did not put there ourselves.
In his comment on the legal theories of Giorgio del Vecchio, Brendan Brown wrote that "the most basic elements in the positive legal order are rights and duties, not merely interests, and that some of these rights are inalienable and exist prior to the state, even to custom." Professor Brown was correct to imply that we cannot talk of "rights" unless we talk of "duties." He also implied that some "rights" are more important than others and that their inalienability does not derive from man himself either by law or custom. In the literally dozens of "rights" that John Paul II spoke of in Centesimus Annus, there is one sentence, itself a quotation from Vatican II (Gaudium et Spes, #24), that serves more than any other, I think, to sum up what I have been arguing here. "It is through a free gift of self that one truly finds oneself" (#41).
In the end, this statement is not "rights talk." It is not even "duties talk." Rather it is "gift talk," that is to say, that our freedom is constituted at its highest by what we give to others. It is when we lose our lives that we find them. We might conclude by observing that even when the legal order is suffused with justice, its proper virtue, it has not yet arrived at that which is most necessary for man and his kind.
The study of rights requires us to distinguish between that view of the world that is merely an expression of our own wills and that view which asks of us to know the truth and to give of what we are. In the end, when we all have our rights, based even on truth, we will have just begun to live in a world not of rights but of gifts. As Aristotle had taught that political happiness is proper to us but it is not our highest end or goal. After we have insisted on our rights, after even we have forced others to acknowledge them, we have just begun the road to virtue, to sacrifice, to gift. This is the importance of understanding talk of natural rights properly, lest we end up with only ourselves and our polities formed only on the image and likeness of ourselves presupposed to nothing but ourselves.
When asked what was the reason she did not go to summer camp, Sally responded, "You mean I have to have a reason?" Leo Strauss suggested that when it comes to understanding natural rights properly, we should not "be satisfied with compromises." "Naturalis inclinatio inest cuilibet homini ad hoc quod agat secundum rationem." We can be grateful to Brendan Brown for encouraging us to continue to reflect on the meaning of the natural law, for this issue, more perhaps than most others in the public order, brings us to wonder about the best regime and our relation to it. "Indeed it is through the free gift of self that one truly finds oneself."
See Yves Simon, The Tradition of Natural Law: A Philosopher's Reflections (New York: Fordham University Press, 1965); John Finnis, Natural Law and Natural Right (New York: Oxford, 1980); Heinrich Rommen, The Natural Law: A Study in Legal and Social History and Philosophy, Translated by Thomas R. Hanley (St. Louis: B. Herder, 1947); Javier Hervada, Natural Right and Natural Law: A Critical Introduction (Pamplona: University of Navarra, 1987); Michael Bertram Crowe, The Changing Profile of the Natural Law (The Hague: Matrinus Nijhoff, 1977); Henry Veatch, Human Rights: Fact or Fancy? (Baton Rouge: Louisiana State University Press, 1985); Russell Hittinger, A Critique of the New Natural Law Theory (Notre Dame: University of Notre Dame Press, 1987); Ernest Bloch, Natural Law and Human Dignity, Translated by Dennis J. Schmidt (Cambridge: MIT Press, 1986); Natural Law and Modern Society (Cleveland: World, 1963); Paul Sigmund, Natural Law in Political Thought (Cambridge: Winthrop, 1971); Light on Natural Law, Edited by Illud Evans (Baltimore: Helicon, 1965); E. B. F. Midgley, Natural Law and International Relations (London: Elek, 1975); Jacques Maritain, The Rights of Man and Natural Law (San Francisco: Ignatius Press, 1986); Peter J. Stanlis, Edmund Burke and the Natural Law (Shreveport, LA.: Huntington House, 1987). The two journals The American Journal of Jurisprudence and Vera Lex (Natural Law Society: An International Review on a Global Issue) are both concerned with natural law questions.
See Herbert Deane, The Political and Social Ideas of St. Augustine (New York: Columbia, 1965); William R. Stevenson, Christian Love and Just War: Moral Paradox and Political Life in St. Augustine and His Modern Interpreters (Macon, GA.: Mercer University Press, 1987); Christopher Dawson, "St. Augustine and His Age," St. Augustine (New York: Meridian, 1957); James V. Schall, "St. Augustine and Christian Political Theory," The Politics of Heaven and Hell: Christian Themes from Classical, Medieval, and Modern Political Philosophy (Lanham, MD.: University Press of America, 1984), pp. 39-66.
Ellis Sandoz, A Government of Laws: Political Theory, Religion, and the American Founding (Baton Rouge: Louisiana State University Press, 1990); Francis Fukuyama, The End of History and the Last Man (New York: The Free Press, 1991); Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1990).
Arkes, ibid., p. 15. See also Thomas E. Baker and James E. Viator, "Not Another Law Course: A Proposal to Teach a Course on the Constitution," Iowa Law Review, 76 (May, 1991), 739-61; Charles N. R. McCoy, The Structure of Political Thought (New York: McGraw-Hill, 1963), pp. 29-72..
It can be noted that in Centesimus Annus, John Paul II did not use the term "natural law" but exclusively used "rights talk." The European Bishops, at their Synod in 1991 did use the expression "natural law," interestingly when they referred to anti-Semitism: "After the terrible Shoah of our century, for which the church feels a profound grief, new attempts have to be made to acknowledge Judaism more profoundly, rejecting all forms of anti-Semitism, which are contrary to both the Gospel and natural law." Final Declaration, #8, L'Osservatore Romano, English, 23-30 December, 1991, p. 13.
John Paul II, Centesimus Annus (Boston: St. Paul Editions, 1991). See A New Worldly Order: John Paul II and Human Freedom (A Centesimus Annus Reader), Edited by George Weigel (Washington: Ethics and Public Policy Center, 1991).
Ernest L. Fortin, "Church Activism in the 1980's: Politics in the Guise of Religion?" Religion and Politics, Edited by F. E. Baumann and K. N. Jensen (Charlottesville: University of Virginia Press, 1989), p. 49.
This sentence, no doubt, brings up the further question that we need to reflect on in the light of the limits of natural rights, namely, our relation to revelation itself. See James V. Schall, Reason, Revelation, and the Foundations of Political Philosophy (Baton Rouge: Louisiana State University Press, 1987).