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• Editorial
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• I: Paradigms of Freedom
• Conflicting Paradigms
• Paradigms As Procrustes' Bed
• Interest and Ambition
• Thesis and Antithesis
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• Utility and Progress
• Diversity and Equality
• II: Nonspontaneous Order
• State Vs Society
• The Therapeutic State
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• Order and Virtue
• Self-perfection
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• Voluntary Servitude
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• Hegemony
• III: Spontaneous Order
• Freedom and Knowledge
• The Case For Government
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• Community Vs. State
• State and Morality
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• Order Without State
• IV: Individual and Social Good
• The Right to Privacy
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• V: Ethics, Rights, and Freedom
• Objective Values
• Natural Law
• Preambles to Freedom
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• Legal Naturalism
• Justice As Restitution
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• Rights and Contract
• Virtue In the Market
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• Profits and Choice
• Social Framework and Prosperity
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• VI: Equality
• Problems With Inequality
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• The Egalitarian State
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• VII: Power
• Empire, Equality, and Envy
• Imperial Presidency
• Empire and Inflation
• Watergate As a Symptom of Empire
• The Pragmatic Presidency
• “absolute Power” and Corruption
• VIII: Planning Vs. Choice
• Origins of Planning
• Bureaucratic Growth
• Prediction and Control
• Government Planning
• Government Experts
• Useless Usury Laws
• Wartime Regulation
• Government Inflation
• Neomercantilism
• Compulsory Schooling
• Planning In Nonprofit Agencies
• Private Capital and Education
• Choice and Spontaneous Order

Legal Naturalism

Machan, Tibor R.

• SUNY at Fredonia

“Law, Justice, and Natural Rights.” Western Ontario Law Review (Canada), 14 (1975): 119–130.

Can natural law provide the foundations for a valid theory of law? Yes, if we update the theory of natural rights so as to avoid the alleged static character of morality that Hans Kelsen (“The Pure Theory of Law,” in M.P.Golding, ed., The Nature of Law, New York: Random House, 1966, p. 132) regarded as essential for any natural law system. This updated theory, resting on a contextualist epistemology, can provide a sufficient content for a legal system. It can distinguish valid from invalid legal systems on moral grounds, while not requiring only morally perfect law to qualify for legality. Thus a nonpositivist ingredient is essential for law.

Kelsen raises a very serious objection to the prospect of a moral content in the positivelaw. It must be answered if we seek to defend a moral legal system that can be differentiated from the Third Reich's legal system. Kelsen maintains that if there is a valid moral system, its nature is so rigidly fixed that no dynamic legal system could be grounded on it. The seemingly irresolvable dilemma is that a moral system is fixed, whereas legal systems are essentially flexible and changing.

But the degree of fixedness that Kelsen finds in morality is also essential to a legal system, while the dynamic character of a legal system is paralleled at many levels by a fully developed rational moral system.

An updated version of the Lockean natural rights theory, resting on a moral position, could provide a legal system with moral criteria for distinguishing valid from invalid legal systems. It need not require that only morally perfect law qualify for legality. This moral position would support the common sense belief that a legal system should secure justice as well as order (or mere internal consistency).

We can achieve our updating by rejecting the rationalistic grounds of natural rights theory without rejecting the essential soundness of its normative content. Traditional natural law theory erroneously rested on an inflexible rationalistic epistemology that took as its model of truth, mathematical formal necessity and axiomatic finality. Little room remained for the kind of change required by positive law to accommodate varying social and personal contexts. We need to meet the dilemma that positive law must be flexible in some sense, but moral principles must also be firm for there to be a coherent idea of morality. Subjectivism and intuitionism will not pass muster as responses to the positivist challenge. To answer Kelsen we need objective and verifiable knowledge that is both firm and flexible.

The answer lies in a contextualist epistemology to replace the static and faulty rationalistic underpinnings of natural law. Contextualism rejects the rationalistic contention that entities or knowledge must be fixed. Or that definitions must state the necessary and sufficient conditions for something being what it is forever, timelessly. Contextualist epistemology offers solid, objective, but also flexible concepts and classifications. It holds that at any given time, given the available context of knowledge, one can identify the most appropriate classifications of the objects of consciousness. One can then proceed, given a more expanded context of knowledge, to modify the older classfications based on the newer evidence and facts. Contextualism achieves its flexibility in classifications without subscribing to relativism, inherent in any positivist legal theory.

Applying contextualist epistemology to natural rights theory allows us to turn to nature rather than convention to base our moral and then legal judgments. In outline, the proper procedure would first identify what human nature is within the available context of our knowledge. What is right for people in society and legal systems follows from the more basic knowledge of what is right for humans as such. The conditions right for people in communities (so as to do what is morally warranted for them as moral agents) would be the natural rights that each person possesses. Within the Lockean scheme, these conditions would be that each person refrain from interfering with the other's life, actions, and ownership. These are the natural requirements of moral existence. This outline becomes plausible only after we dispose of the epistemological and sceptical issues discussed earlier.

Thus, contextualism can advance a moral, nonpositivist ingredient essential to law. Value-free human institutions are inconceivable. We need moral-laden law to know when we are securing justice within any particular legal system. On the other hand, contextual natural rights theory exhibits open-endedness to changing definitions of human nature and varying applications based on the flux of circumstances—if we can verify the newly available facts and justify altering our concepts and ideas objectively.