The problem with natural law theories can be simply stated: They beg the question they need to resolve.
Consider John Locke’s Second Treatise of Government. In chapter two, when discussing punishment for violation of the law of nature, he writes: “it would be besides my present purposes, to enter here into the Particulars of the Law of Nature, … yet it is certain there is such a Law, and that too, as intelligent and plain to a rational Creature, and a Studier of that Law, as the positive Laws of Common-wealths, nay possible plainer;…”
Rendered simply, Locke is saying the law of nature, and its precepts, are capable of being ascertained by reason alone. We can know natural rights simply by introspection; no sovereign is necessary to declare these rights.
Welcome to the fallacy of “right reason.”
Locke needs natural law to support the full weight of his argument. Before there were societies, there were individuals living in the state of nature. Those individuals possessed rights that predated society and the creation of government. Governments were created by the consent of the governed to preserve and protect these natural rights. It follows, therefore, that governments can be overturned when they fail to protect natural rights.
I suspect all this is, as Jeremy Bentham once famously noted, “nonsense on stilts.”
Don’t get me wrong. I like the theory of limited government. And I think consent is a good theory of legitimacy. I just can’t ground it in a coherent theory of natural rights.
Neither, I suspect, can you.
A question is begged when the conclusion sought to be proven is smuggled into a premise, and accepted as a given, without being demonstrated. Thus, all men enjoy equal rights to life, liberty and the pursuit of happiness, because they possess equal and inalienable rights.
That’s simply an assertion, and grand and noble one, to be sure, but, try as I might, I cannot inspect the contents of my mind and reach the axiomatic conclusion that it is true, much less derive corollaries about life, liberty and property. Locke couldn’t do it either. Instead of trying to do so, he posited what he need to prove.
Not long ago, a good friend, Andy Warren, reminded me that the Kansas constitution was grounded in a theory of natural rights: “Sec. 1, Kansas Constitution Bill of Rights: § 1. Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
Question begging, I say. A noble half-truth.
Decades ago, I spent years in graduate school asking myself in a thousand and one different ways what could be known, and how we could know it. What purposes made life worth living. Indeed, why was the world rather than not. I struggled through the collapse of a naïve religious faith and sought in vain reason’s response to the vacuum left by the disappearance of God.
In one seminar – I was the only student – the professor and I read great classics of natural law by Hugo Grotius and Samuel Pufendorf. Always the same conundrum at the start: apprehension of the natural law by “right reason.” What is right reason?, I’d ask the professor. How can I recognize it, know it, and use it to reach reliable conclusions about the social and political world.
I never got an answer.
I’m old now, and I’ve made my peace with reason. It is an instrument we used to navigate in the world. When I hunger, I search for and prepare food in known and reliably tested ways. I’ve learned the norms and usages of my trade – the practice of law – and advocate for the interests of others in an instrumental way.
Reason is a tool, but, I believe, it is a limited tool. I side with David Hume, the great philosopher of the Scottish Enlightenment: Reason is and always shall be the slave of the passions. As I round third and head for home along life’s way, I’m now comfortable with the fact that our passions find us, we don’t find them. That is the mystery at the heart of Augustine’s Confessions.
So where does this leave me as regard the spectacular creation called the state? It is a limited tool, designed to set the minimum conditions necessary for us to live in peace with one another. I no more expect the state to set the ends toward which I direct my energies than I do reason to do so. I still believe in limited government, but not because right reason and natural law compel the result. Rather, I do so because I fear the energies of a self-righteous mob more than death itself.
That makes me a contrarian, bucking against every enthusiasm. Let the human soul, or psyche, flourish in solitude, and protect the individual at all costs from the tyranny of the group.
I don’t have answers to life’s profound questions grounded in reason and reason alone. That’s a mathematician’s conceit. Life is strife, chaos and indeterminancy; we are all redeemed, when we are redeemed at all, by Grace. I accept the substance of things hoped for and the evidence of things unseen.
So I still cherish Locke and his theory of rights reserved and independent of government. I just wish he sought a more realistic foundation. Natural law and right reason seem quaint artifacts of a bygone time. Or, to put it directly to my good friend Andy Warren: We're not in Kansas any longer, not even remotely so.