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Source: This essay first appeared in the journal Literature of Liberty: A Review of Contemporary Liberal Thought ,
vol. 1, no. 4 October-December 1978 published by the Cato Institute
(1978-1979) and the Institute for Humane Studies (1980-1982) under the
editorial direction of Leonard P. Liggio. It is republished with thanks
to the original copyright holders.
Henry Babcock Veatch (1911-1999) was born in Evansville, Indiana,
and educated at Harvard. He was recognized as one of the leading
neo-Aristotelian philosophers of the twentieth century. Besides Rational Man, he was the author of Intentional Logic; Realism and Nominalism Revisited; Aristotle: A Contemporary Appreciation; and many others.
Henry Veatch, "Natural Law: Dead or Alive?"
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Surely, the ancient and honorable doctrine of natural
law is dead, is it not? And many would add, "Long dead and well dead!"
What, then, can a bibliographical essay such as this amount to, if not to a
kind of funeral oration, or else to a chronicle of "old, forgotten far-off
things, and battles long ago"?
Not so, though. For two excellent recent historical studies
- the older and shorter one by A.P. D'Entrèves, and the longer and very
recent one by M.B. Crowe - both tell a similarly fascinating story of the continual
births and rebirths of natural law doctrines in the course of their long history.
Professor Crowe has even remarked that "the natural law, as an idea, is
almost as old as philosophy itself." 
He thinks he can find the origins of a natural law doctrine even among the pre-Socratics.
Following this, it received at the hands of the Sophists what appeared to be,
if not a death-blow, then certainly a serious set-back. Plato and Aristotle,
however, promptly revived it, if not in name, then certainly in essence. And
with the Stoics, it really came into full flower. 
Proceeding, then, to the Christian thinkers of the Middle Ages, natural law
doctrines at first enjoyed a rather more dubious status, only to receive eventually
their most definitive formulation and justification at the hands of St. Thomas
Aquinas in the thirteenth century.
In the later Middle Ages and the Renaissance, to be sure,
there occurred something of an eclipse, only to be followed by the great sunburst
of natural law doctrines, albeit in somewhat altered form, in the seventeenth
and eighteenth centuries. The great names that always recur are first those
of Hugo Grotius and Samuel Pufendorf, and then later and to a somewhat different
effect, those of John Locke and Jean-Jacques Rousseau. The story is only too
familiar of how their influence carried right over into the Age of Reason, when
doctrines of natural rights seemed to crop up everywhere, and not least in America
with the publication of the Declaration of Independence, followed by the numerous
Bills of Rights in the various State and Federal constitutions.
Once again, though, the flourishing of natural law in
the eighteenth century was followed by its apparent demise in the nineteenth
century. As one contemporary critic has put it, "the philosophers tended
to say that the natural law was not natural, and the lawyers that it was not
law."  Nevertheless, with
the Thomistic revival in the latter part of the nineteenth century, an interest
in natural law appeared to be in full swing again by the first quarter of the
present century, particularly in Catholic circles. In this country, Catholic
institutions of higher learning, especially law schools, pressed for the teaching
of so-called natural law along with positive law; and thinkers of the stature
of Jacques Maritain enjoyed vogue and influence alike in their efforts to awaken
both Europeans and Americans to the pressing demands of human rights, particularly
in the light of the ruthless suppression and perversion of those rights at the
hands of the Nazis. Then suddenly, in the late 1950s and 1960s, it was almost
as if the bottom had dropped out, so far as natural law doctrines were concerned.
In academic circles, especially among philosophers and political scientists,
no one talked about natural law or natural rights anymore; and if one did, one
was promptly relegated to beyond the pale by scornful colleagues.
And now just as suddenly, and seemingly no less unpredictably,
there has been a dramatic revival of interest in so-called "rights theories"
- and this just in the last ten, perhaps even in just the last five, years.
True, such recent rights theories have not always involved an effort at reinstating
anything like "natural" rights, and certainly not "natural law."
Yet many of them have. And in any case, they have all had the effect of bringing
the issue of whether or not there is a natural law right out into the open again,
thus making it not just respectable, but even imperative to discuss it and to
take it seriously.
How "Natural Law"
Should Be Understood: The Thomistic View of the Objective Grounding of Ethical
What, though, is this doctrine of the so-called "natural
law," that has thus had such a long and chequered career, and has even
displayed, in the words of more than one authority, the happy faculty of repeatedly
being able to bury its own undertakers! 
Quite obviously, the doctrine is aimed at affirming that such things as human
responsibilities and obligations, as well as human rights and "entitlements,"
are more than a mere affair of human convention or human agreement, and this
no matter how enthusiastic or how widespread may be the acceptance of those
conventions and agreements. Thus whether it be Antigone in Sophocles' drama,
Socrates in Plato's Apology, or Shcharansky and Ginzburg of today's Soviet
Union, the mere fact that a person has been convicted of a crime does not necessarily
mean that hers or his was really a crime at all. Likewise, what may be right
or just according to the standards of a given community or society may still
be radically at variance with the standards of a natural right or a natural
justice. Yes, might not one be inclined to say that in the Shcharansky case,
for example, it is patent and obvious for all to see the glaring disparity between
what the civil or military authorities are agreed in saying is just and right
and what is really so? For it is an implication of any doctrine of natural law
or natural right that the marks and standards of a natural justice are such
as to make it recognizable, even in the face of whatever the prevailing conventional
or customary justice may affirm to the contrary. Indeed, in this sense natural
laws are held to be evidenced by nature itself, and to be there, as it were,
right in the facts for all to see, if we have but eyes to see, and are not blinded
by habit or by convention or by social conditioning or whatever.
Still, it is one thing to say that in any natural law
doctrine, ethical and political standards are objectively grounded, or that
they literally have a status as laws of nature, and thus are knowable and rationally
determinable. It is yet another thing to understand just how such natural norms
and standards may thus come to be known, to say nothing of how they can have
an actual ontological status in reality. And it is just such points that we
need to be clearer about, if we are ever to find our way around in the contemporary
literature, particularly as it surrounds the newly emerging contemporary rights
To this end, we would make reference to an exceedingly
illuminating article published in The Monist a few years ago by Vernon
Bourke, entitled "Is Thomas Aquinas a Natural Law Ethicist?" 
It is true that Professor Bourke is primarily concerned with medieval versions
of the theory of natural law and with the way in which so-called natural laws
were held to be associated with the law of God. In this context "two radically
different meanings for natural law" emerged, the one theological in origin,
the other naturalistic or secularized, based on the natural light of unaided
human reason. According to the one, natural law came to "name a code of
moral precepts implanted in man's nature, or mind, and issuing from the legislative
Will of God." From such a view, what is good or bad, right or wrong, for
man clearly depends on divine fiat. Accordingly, moral and political norms,
so far from being in any proper sense "natural" or discoverable by
reason in the very nature of things, would appear rather to be but so many "oughts"
that are binding for no other reason than that God has decreed them to be so.
By contrast, in the other view of natural law, namely, that of Thomas Aquinas,
a natural law theory of ethics or politics stresses, as Bourke puts it, "the
rational discernment of norms of human conduct, working from man's ordinary
experiences in a world environment of many different kinds of things."
Bourke's way of characterizing the Thomistic understanding
of natural law may appear to be a bit of a mouthful. But why not consider ethics
and politics, as construed in the light of this conception of natural law, as
analogous to certain arts, skills, and crafts? Why does the skilled surgeon,
for instance, make his incision in one way rather than another? Don't we say
that it is because he knows how to do the job? There is presumably some reason
- a real reason - for his doing it that way rather than another. In this sense,
we should scarcely say that the rules of good surgical practice are mere agreed-upon
conventions with no natural basis at all. Or why does the football coach insist
that a tackle be made in one way rather than another? Is it just because he
happens to like the one way rather than the other; or is it because there are
reasons why one way of making the tackle is better than some other? And so also
for countless other skills and techniques - bait-casting, accounting, gourmet
cooking, pleading a case, teaching a class, building a bridge, or whatever.
In all of these cases the expert is said to know how to do the job, and
his knowledge is but a knowledge of what the nature of the case or the
situation demands, be it in surgery or fishing or cooking or building a bridge
The Art of Living Based on
Objective Nature and Reason
Accordingly, in Aquinas's view the living of our lives,
be it either as individuals or as political animals, requires certain skills
and know-how. That is to say, just as in the various arts the end in view determines
the natural ground or reason for the means used - e.g., the health of the patient
in the case of medicine, or the instruction of the student in the case of teaching,
or victory in the case of strategy, or convincing the court in the case of legal
pleading, etc. - so also in the case of living our lives as human beings and
attaining such fulfillment and perfection as is appropriate to human nature,
this requires that we know what needs to be done and how we need to conduct
ourselves to such an end. Just
as in making tackles, or preparing meals, or performing surgical operations,
or landing a fish, there are right ways of doing the thing as over against wrong
ways. And since there are reasons why in the nature of the case such right ways
of doing the job are right, so too, by analogy, in the living of our lives,
the right way of doing the thing might be said to be that which is naturally
right or just. Thus the various moral or ethical rules that need to be followed
in the conduct of our lives may be said to be rules that are determined not
subjectively by arbitrary whim but rather by "right reason" considering
the pertinent facts. In this sense such moral rules may be properly termed "natural
So much, then, for the two rival conceptions of natural
law, or rival ways of construing the meaning of that somewhat hackneyed, and
now rather ambiguous, term. In the one sense, natural laws are to be understood
as scarcely "natural" at all, in as much as they represent no more
than certain absolute prescriptions and prohibitions, which, so far from being
rationally discoverable by human reason in nature, are simply decreed by God.
In the other sense, natural laws are thought of as being none other than such
rules of intelligent conduct and behavior as any knowledgeable person ought
to be able to see are demanded by the very nature of the case, when it comes
to the living of our lives. Unhappily, though, it is just such an ambiguity
in the notion of "natural law" that has led to no little confusion
and misunderstanding, particularly in current discussions of the topic.
Grotius and the Secularization
of Natural Law
Nevertheless, before we can move to a consideration of
what the current climate of opinion is regarding natural law, we need first
to consider certain added features of natural law doctrine that are due to the
revival of natural law teachings in the seventeenth and eighteenth centuries.
Generally, authorities would seem to be agreed
that these features amount to two principal ones. For one thing, Grotius in
his treatment of natural law was peculiarly insistent that so-called natural
laws could, if one so wished, be regarded as literally and exclusively natural,
and therefore as not being of divine origin at all. His point was that natural
laws, as he conceived them to be, could be seen as binding upon men even if
there were no God, and hence
eliminates any claim to divine authority for such laws. Naturally enough, such
a stand on Grotius's part has been interpreted as heralding that increasing
secularization of doctrines of natural law that was so characteristic of the
eighteenth century. At the same time, be it noted that if the validity and binding
character of so-called natural laws is considered to be in no wise dependent
upon their being decrees of God, this could not be other than profoundly upsetting
to that one view of natural law, that based such laws solely on their proceeding
from God's will. On the other hand, such a secularization of the doctrine of
natural law need not be comparably disturbing to the Thomistic understanding
of natural law. Not that in Aquinas's eyes the so-called natural law did not
constitute a part of the eternal law of God; and yet as Aquinas saw the matter,
the natural laws that are prescriptive of how human beings should conduct themselves
are like the how-to-do it rules in any of the various arts or techniques: there
are perfectly good reasons in the nature of the case why such rules are rules;
nor are they rules merely because some "ruler" or some authority happened
to want things done in that way and decreed that they be done in that way -
and this regardless of whether that ruler be man, God, or beast!
From Natural Law to Natural
Rights: Is it a Shift in Emphasis or Principle?
But now what of that second feature of natural law doctrine
that dates from the eighteenth century? Not only would there seem to be a general
secularization of the doctrine, but more importantly, in the eighteenth century,
emphasis seemed to shift quite markedly from talk of "natural laws"
to talk of "natural rights." Immediately there springs to mind the
whole business of "the rights of man" - the right to life, liberty,
and the pursuit of happiness; the right to freedom of speech, of religion, of
assembly; the rights of property, and the right not to be deprived of "life,
liberty, or property without due process of law"; the right of revolution,
the right to representation in government, etc.
Superficially, and even to many authorities, it has seemed
that such a shift of emphasis from natural law to natural rights was far from
being a major shift. For supposing that as in medieval discussions of natural
law, the emphasis was upon what might be called the natural duties and obligations
and responsibilities of human beings to lead, as the English Book of Common
Prayer would have it, "a Godly, righteous, and sober life," still
there would seem to be a sense in which any and all duties tend to involve rights
that are somehow correlative with them. After all, if I have a duty to lead
my life and conduct myself in such and such a way, then do I not have a corresponding
right not to be interfered with in the performance of those duties, and perhaps
even a right to be aided and assisted in such performance?
Nevertheless, the notion that the shift of emphasis from
natural law to natural right was but a minor shift, and in no wise a shift in
principle, has been effectively challenged by the late Leo Strauss in his monumental
work of some years ago, Natural Right and History (1953). According to
Strauss, the classical natural law tradition, as it stemmed from the Greeks
and from Aquinas, while it could hardly be said to have been without concern
for so-called human rights, was certainly not concerned about them in the manner
of the eighteenth century thinkers, or even in the manner of most contemporary
thinkers either. Instead, on the Thomistic theory of natural law - to take this
as an example - human duties and rights are both of them subordinated to, and
made intelligible in terms of, the business of human beings attaining their
natural end or goal or perfection as human beings.
Suppose that we again recur to our earlier analogy between
ethics (and politics) on the one hand and the various arts and skills on the
other. For is it not plausible to say that there are right ways and wrong ways
for physicians to go about the care and treatment of their patients, and that
these ways are determined by the very nature of the case, in the light of the
end and purpose of the medical art, which is human health? But analogously,
then, when it comes just to the living of our lives, not as butchers or bakers
or candlestickmakers, but simply as human beings, may it not be said that our
natural end, or what we all naturally seek or aim at as human beings, is nothing
if not simply our human well-being or human perfection just as such, and as
contrasted with that more restricted sort of mere health or well-being that
the physician is concerned with? For would we not all say - perhaps not Nietzsche,
to be sure, but then we scarcely need deal with such an exception in the present
context - that someone like Socrates managed to attain an excellence and a perfection,
just in the business of being human, that a Hitler or a Stalin, or, in a different
way, a Macbeth or a Hamlet, could not be said to have brought off at all? In
the light of examples such as these, why would it not be possible to determine
what some of those natural laws are - i.e., what some of the right ways, as
over against some of the wrong ways, of our going about the living of our lives?
As Richard Hooker in the sixteenth century phrased it - in a rhetoric that may
put us off somewhat for being strangely Elizabethan, but which is still effective
for all of that:
All things that are have some operation not violent
or casual. Neither doth any thing ever begin to exercise the same without
some fore-conceived end for which it worketh. And the end which it worketh
for is not obtained, unless the work be also fit to obtain it by. For unto
every end every operation will not serve. That which doth assign unto each
thing the kind, that which doth moderate the force and power, that which doth
appoint the form and measure of working, the same we term a law.
The Rational Justification
of Human Goals: The "Naturally Right" vs. "Natural Rights"
Clearly on this conception, a so-called "natural
law" simply determines what our natural obligations and responsibilities
are in the living of our lives - how we ought to do it, in other words. And
as for "natural right," that term might be taken as but a translation
of the medieval expression, jus naturale, much as "natural law"
is a translation of lex naturalis. Indeed, it is in this sense that Strauss
takes the term in his title, Natural Right and History. Yet note that
in this sense of the term a natural right does not so much signify what it is
someone's natural right to do, as rather what it is naturally right for someone
to do. And these senses of "right" are far from being the same. Indeed,
in the second and more traditional sense of "right" a right is really
equivalent to a duty and obligation, and hence is scarcely "a right"
in the current sense of the term at all.
Not only that, but when in the context of classical natural
law theory, one asks why it is held to be right for someone to act or proceed
in a certain way, or why he is obliged to conduct himself in that way, the answer
is always to be given in terms of the end to be achieved thereby. That is to
say, given a natural or proper end of human life, then it may be determined
both in nature and by reason, what it is that one needs to do or that one ought
to do or that it is right for one to do in order to attain that end. But what
is this, if not to say that natural rights and natural duties - and hence natural
laws as well - are always susceptible of a proper justification? Or in other
words, there is always a reason for holding such obligations to be naturally
binding upon us: they are so in virtue of the natural end or goal toward which
human beings are oriented by their very nature.
Not so, though, "natural rights" in the eighteenth
century sense or in the modern sense either. For as Strauss has argued, this
newer notion of natural rights was developed in an entirely different philosophical
setting from that of the classical or medieval notion. Instead of its being
supposed that human beings were naturally oriented toward a proper end or goal
of human perfection or achievement, it became fashionable in the seventeenth
and eighteenth centuries to consider human beings simply as they are, just naturally
and in fact, and quite apart from any fancied notions of what they ought to
be, or apart from any supposed natural ends or purposes toward which they might
be supposed to be somehow naturally ordered and oriented. In fact, did it really
make any sense any more to talk about natural ends or final causes at all? For
had not the new science, as it emerged from the hands of the Galileos and the
Descartes and the Newtons, simply left final causes out of account altogether?
Why, then, continue to talk in the way Hooker had done: "All things that
are have some operation not violent or casual. Neither doth any thing ever begin
to exercise the same without some fore-conceived end for which it worketh"?
Surely, such a way of looking at nature and at the changes that take place in
nature would now seem to be outmoded.
Revolution in Natural Law:
Hobbesian "Natural" Rights as Subjective Desires
Likewise, with respect to human beings, why not follow
the lead of a typical modern thinker like Hobbes, and consider human beings
simply in their natural state or condition? For considered in that condition,
what is a human being if not a creature of countless appetites and desires?
And as for there being any natural end or goal or perfection which a human being
is under a natural obligation to strive for and try to attain,
there is no finis ultimus, utmost aim, nor summum
bonum, greatest good, as is spoken of in the books of the old moral philosophers.
Nor can a man anymore live whose desires are at an end than he whose senses
and imaginations are at a stand. Felicity is a continual progress of the desire
from one object to another, the attaining of the former being still but the
way to the latter. ... So that, in the first place, I put for a general inclination
of mankind a perpetual and restless desire of power after power that ceases
only in death.
Here, surely, is a veritable revolution in the understanding
of nature and natural law, particularly as it pertains to human nature. For
as Strauss remarks, with respect to Machiavelli:
Classical political philosophy had taken its bearings
by how man ought to live; the correct way [now and in the spirit of Machiavelli]
of answering the question of the right order of society consists in taking
one's bearings by how men actually do live. ... What Hobbes attempted to do
[more or less following Machiavelli] was to maintain the idea of natural law,
but to divorce it from the idea of man's perfection; only if natural law can
be deduced from how men actually live, from the most powerful force that actually
determines all men, or most men most of the time, can it be effectual or of
practical value. The complete basis of natural law must be sought, not in
the end of man, but in his beginnings....
And what do these "beginnings" of man, or this
natural condition of man, as conceived now in the new sense of "nature,"
have to teach us regarding man's natural rights? Clearly, any such natural human
rights may no longer be understood in the sense of those things which it is
right for a human being to do, or which he ought to do, or has a responsibility
to do, in the light of his naturally determined human end or perfection. No,
for in his natural condition man is no longer to be thought of as having any
natural end or perfection at all; instead, he is but a creature of needs, appetites,
and desires. And the need or appetite that tops all others is that of self-preservation,
and the desire to avoid death. Here, then, is man's basic natural right: it
is just his inalienable right to self-preservation; and by derivation his right
to gratify his desires and appetites, as far as the power within him lies. And
so Strauss thus moves to his conclusion as to this new and radically transformed
notion of "natural right," à la Hobbes:
Natural law must [now] be deduced from the desire of
self-preservation.... [It is this that] is the sole root of all justice and
morality. The fundamental moral fact is not a duty but a right; all duties
are derivative from the fundamental and inalienable right of self-preservation....
duties are binding only to the extent to which their performance does not
endanger our self-preservation. Only the right of self-preservation is unconditional
and absolute. By nature there exists only a perfect right and no perfect duty....
Since the fundamental and absolute moral fact is a right and not a duty, the
function as well as the limits of civil society must be defined in terms of
man's natural right and not in terms of his natural duty. The state has the
function, not of producing or promoting a virtuous life, but of safeguarding
the natural right of each. And the power of the state finds its absolute limit
in that natural right and in no other moral fact. If we call liberalism that
political doctrine which regards as the fundamental political fact the rights,
as distinguished from the duties, of man and which identifies the function
of the state with the protection or the safeguarding of those rights, we must
say that the founder of liberalism was Hobbes.
The Problem with Natural
Rights: Are they Natural, and do they have any Foundation at all?
With this mention of liberalism, though, we are getting
ahead of our story again. Instead, we need first consider still another point
that is relevant to the newly emerging natural rights doctrine of the seventeenth
and eighteenth centuries. For so far as these doctrines go, one key question
remains: granted that Hobbes may have been right, that on the basis of the new
scientific conception of nature in general and of human nature in particular,
the natural condition of men is one of ceaseless and ever proliferating appetites
and desires; and granted that man's overriding passion is thus one of self-preservation
in the gratification of these appetites and desires; still, why should such
a natural concern on man's part be considered as being in any way a "right"?
Yes, granted that even among all mankind there is indeed
just such "a perpetual and restless desire of power after power that ceases
only in death," why should the pursuit of such power be regarded as in
any wise a right on the part of those impelled toward such a pursuit? After
all, on the more traditional and classical view of natural law, the mere fact
that human beings, either some of them or all of them, should be naturally endowed
with all sorts of limitless and heterogeneous appetites and desires certainly
does not make such desires to be right, or their pursuit warranted.
On the contrary, their rightness is entirely dependent
upon their conformity with the standards of what a human being ought to do or
be, as judged in the light of a man's natural end. Or to put it more bluntly,
the mere fact of our having certain desires is of no moral import whatever;
rather what is morally relevant is only whether such desires as we have are
those we ought to have or not. Nor is that all, for as we were at pains to note
in our foregoing discussion, on the basis of the more traditional natural law
theory, all human duties and human rights may be reasonably adjudged to be duties
and rights only in so far as they can be justified, and thus shown to be duties
or rights, in the light of man's natural end and perfection. Take away, then,
this notion of a natural end or a natural perfection of human life, and there
would no longer appear to be any ground on the basis of which rights or duties
of any kind might be rationally justified.
Why are Natural Inclinations
Yes, suppose we go beyond Hobbes with his basic right
of self-preservation, and suppose we open the gates to all of those further
and derivative and typical rights so dear to the eighteenth century - and needless
to say, to us today as well - the right to life, liberty, and the pursuit of
happiness, the right to property, the right to freedom of speech, the right
of "one people to dissolve the political bands which have connected them
with another," etc. What is the basis of these rights? Why do we hold them
to be natural rights? For that matter, what possible ground do we have for taking
any supposed right to be a right, much less these particular rights? For on
the modern scientific view of nature, as contrasted with the Aristotelian view
to which both Aquinas and Hooker adhered, there just does not seem to be any
way in which such things as rights can be said to be items in the natural world
at all. And granted that we human beings may be naturally inclined to life,
liberty, and the pursuit of happiness; that we do have a natural desire to acquire
property, or that we naturally cherish certain freedoms; why suppose that our
natural inclinations and desires in these regards can in any way constitute
a natural right on our part to such things?
Has Hobbes allowed himself to be somehow befuddled on
this score, and have the rest of us who are advocates of what Strauss earlier
called "liberalism" - have we likewise just followed suit and let
ourselves be taken in no less than was Hobbes? For surely, on the new conception
of nature and the natural, which Hobbes took over from the newly emerging science,
and which presumably none of us in this day and age would be so foolhardy as
to question, the mere fact that something occurs naturally, or in accordance
with the laws of nature, certainly does not warrant anyone's saying that it
was right that it should have occurred, or that it ought to have occurred, etc.
Could it be, then, that our seventeenth and eighteenth
century predecessors in the natural law tradition have given us a full-fledged
doctrine of natural rights, but without providing us with any rational basis
or justification for such a doctrine? Indeed, may we even go further and say
that theories of natural rights of the kind that emerged in the seventeenth
and eighteenth centuries, and that tended to become but so many appendages to
the more traditional natural law theories - could it be that by a strange irony
such natural rights theories tended almost unwittingly to involve a recurrence
to that one meaning or interpretation of natural law theories according to which
natural laws, so far from being discernible or discoverable in nature, are rather
to be thought of as simply "issuing from the legislative Will of God"?
That there should be such an association of "natural rights" with
"natural laws" understood as mere divine decrees,
would surely not be without irony. In fact, the irony immediately becomes apparent,
the minute we remind ourselves of those two features of natural right theories
in terms of which they were originally distinguished from natural law theories
of the more traditional sort. The one feature was simply that of the obvious
shift of emphasis from so-called "natural laws" to "natural rights"
- which thus far has been the feature that we have been discussing at such length.
But the second feature was what we earlier characterized
as being one of the increasing secularization of the notions of both natural
laws and natural rights, that was so marked a feature of seventeenth and eighteenth
century theories. How singular it is, then, that a shift of emphasis from natural
laws to natural rights should have entailed so radically different a conception
of nature and the natural, as to make it largely unintelligible how natural
rights could have any sort of basis in nature at all. In consequence, the affirmation
of natural rights - at least in the seventeenth and eighteenth century context
- tended to be just that, namely, a mere affirmation. But to imply that natural
rights are really not grounded in nature, but are mere affirmations on the part
of those of us who subscribe to them - is this not tantamount to holding that
such rights are not rights by nature, but only by decree? Not by divine decree,
perhaps, but still by decree.
But by whose decree? Apparently, as it turned out, it
might be by decree of just about anybody who might come to feel certain things
to be very dear to him or very important, and who would then proclaim them to
be his rights, or to be somehow ordained for him by nature. Professor Crowe,
in fact, gives some amusing, even if incredible, examples of such appeals to
natural rights and natural laws as were not uncommon in the eighteenth century.
For instance, it was put forward as a serious contravention of the law of nature
"to enter unbidden, or to make journeys troublesome," or to expect
soldiers to wear the stiff leather stocks that were then customary. Best of
all is an example of a New England delegate to the Constitutional Convention
in the U.S. who objected to the proposed two-year term for senators on the ground
that a one-year term was "a dictate of the law of nature, [considering
that] spring comes once a year, and so should a batch of new senators!"
Theories of Human Rights:
Their Decline and Fall in the Nineteenth Century and their Dramatic Rise and
In the light of examples such as these, is it any wonder
that the popular natural law and natural rights doctrines of the eighteenth
century should have tended to be pretty well discredited in the course of the
nineteenth century? So patently ridiculous were so many of the claims as to
what might be natural rights or natural laws, that there came to be an increasing
consensus that there just weren't any natural rights or natural laws at all.
Nor was it merely because individual claims of this sort were so often patently
ridiculous that nineteenth century thinkers were inclined to repudiate the doctrine
of natural law altogether. In addition, one had only to reflect on the character
of the natural world, as this had been disclosed by the scientists, and one
could readily see that neither value distinctions nor moral distinctions could
possibly have any place in nature. Facts were not values; nor was there any
way that values could be said to have a place in the world of facts. And even
worse for natural law doctrines, was the eventual impact of teachings like those
of Hume, who maintained that there is no way in which an "ought" can
ever be derived from an "is."
In fact, to revert again to some of our own earlier examples
in connection with Hobbes: granted that men actually do work for their own self-preservation,
that certainly does not make it right that they should do so. Or granted that
men deeply cherish life, liberty, and the pursuit of happiness, or that they
will fight to retain their property, or be resentful of any taxation without
representation, or whatever, that still does not as such mean that they have
any right to these things, or that anyone who interferes with them in this regard
is violating a very right or law of nature. Indeed, to think otherwise is to
commit the fallacy of trying to infer an "ought" from an "is,"
or a value from a fact, or, as G.E. Moore was to term it years later, it involves
"the naturalistic fallacy." From the point of view then of many thinkers
in the nineteenth century and even after, the entire doctrine of natural rights
and natural law would appear to rest on nothing less than a patent logical fallacy.
Natural Rights Assaulted:
Historicism and Positivism
Of course, this was by no means the only ground on which
various nineteenth century thinkers were inclined to challenge natural law theories,
be it of law, ethics, or politics - the ground, namely, that all such theories
tended to involve a fallacious inference from nature to ethics, from fact to
value, or from "is" to "ought." In addition, there was a
widespread tendency for thinkers and scholars, to fall back, as it were, on
history, and to regard the process of historical evolution as somehow ultimate
and absolute. Thinkers as different as Edmund Burke in England, or Hegel in
Germany, kept insisting that there could not, either in justice or in logic,
be any warranted appeal to fancied standards of a natural right or a natural
justice over and above those actual standards of justice and norms of political
action that had been developed and had evolved in the course of a nation's or
a people's history. It is true that this kind of historicism, if we may so term
it, with respect to ethics, law, or politics, does tend to end in a position
not far removed from a bland acceptance of the principle that "whatever
is, is right." But at least, the advocates of this kind of historicism
could claim that they made no spurious or illogical appeals to any imagined
natural norms or natural laws, outside of and beyond the actual historical facts.
Indeed, similar arguments were not uncommon among legal
scholars in the nineteenth century as well. For as is clear from our earlier
remarks about Grotius and Pufendorf, these men were not so much concerned with
a natural law, to the extent that it might have implications for ethics and
politics; instead, their preoccupation was primarily with law in the narrower
sense and with jurisprudence. Ironically enough, though, just as the natural
law thinkers in the seventeenth and eighteenth centuries felt it essential that
they be able to appeal to a natural law and justice, over and above the actual
laws of a particular country or jurisdiction, or of any particular age or time,
by the nineteenth century the pendulum had quite swung in the other direction.
Remember that earlier quip which we quoted to the effect
that while the philosophers had come to think that a natural law was not natural,
the lawyers had come to think that it was not law. And sure enough, that ancient
principle of St. Augustine - and one that was repeated in turn by St. Thomas
- to the effect that "an unjust law is no law," became the butt of
criticism and attack on the part of both historicists and positivists among
the legal theorists of the nineteenth century and after. How could a law be
said to be not a law when it is on the statute books and is actually enforceable?
And how can positive laws be held to be invalid and of no effect in virtue of
mere appeals to a supposed natural law, when such natural laws amount to no
more than ideals having no basis in fact at all? Yes, speaking of perhaps the
most eminent of the legal positivists of a generation ago, the late Hans Kelsen,
D'Entrèves observes that "Kelsen's 'pure theory of law' can be used
to show the Achilles heel of positivism." For "Kelsen's refined form
of positivism shows its real face [in that it involves] the reduction of law
to a mere expression of force."
Consequences of Nineteenth
Century Rejection of Natural Law: Utilitarianism
Once more, though, we are getting ahead of ourselves.
For before turning our attention to the contemporary reaction against the detractors
of natural law and natural right in the nineteenth century and at the beginning
of this century, we must first consider what some of the consequences were,
philosophically speaking, of that spurning of all appeals to a natural law,
which were so characteristic of the nineteenth century thinkers whom we have
just been considering. Certainly, so far as ethics and political theory go,
it might not be unfair to say that the rejection of natural law led to a triumph
Superficially, the essence of Utilitarianism can be very
tidily summed up in the slogan, "The greatest happiness of the greatest
number," or "The greatest good of the greatest number." But going
behind the slogan, it is not hard to discern alike the sense and the reason
for Utilitarianism's great appeal. For suppose one becomes convinced that there
really is no rhyme or reason to invoking such things as natural rights or natural
laws. For one thing, it would seem that there just aren't any such things. And
for another, the very enterprise of a natural law type of ethics or politics,
in which one tries to proceed from considerations as to what human beings are
by nature, and what their natural ends and goals might happen to be, to some
sort of argument about what men ought to be or what it is right for them to
be - this enterprise is not just unwarranted; it is fallacious, as involving
a patently fallacious process of moving from "is" to "ought."
Or at least, so it would seem. Very well, putting aside
all concern with natural ends or goals, to say nothing of the natural obligations
and rights that are said to be based upon them, why not just accept the plain
facts about ourselves as human beings? For are we not all of us creatures of
countless needs, desires, impulses, wants, appetites, and whatever? True, your
needs and desires are different from mine; and the other man's from those of
either of us. But why get into a tizzy over questions of what our desires ought
to be, or of whether we have a right to satisfy some of our interests and desires
and not others? Is not the sensible thing for us to do but to settle down to
the business of straightforwardly trying to satisfy just as many of our desires
- as many of yours and mine and of all mankind's - as is humanly possible?
This is what is meant by the greatest happiness, or the
greatest good, of the greatest number; and this is all that it means. And meaning
this, doesn't it make eminently good sense? No worries about "oughts"
or "rights" in the traditional sense, or about moral values or absolute
duties or natural obligations or anything of the sort. Instead, we have only
to get on with the business of all of us becoming as happy as possible, and
of collectively maximizing our satisfactions in as quick and efficient a way
as human calculation may be able to devise?
Rawls, Dworkin, and Nozick:
Criticisms of Utilitarianism and Positivism
Alas, though, sensible and even idyllic as this prospect
might seem to be that Utilitarianism holds out for us, it turns out to have
nothing less than a vicious cancer working at its very core - a cancer that
suddenly, and seemingly quite unannounced, burst on the consciousness of so
many of us a scarce eight years ago with the publication of John Rawls's A
Theory of Justice (1971). Not that what Rawls had to say was anything very
original, and he certainly said it in what many might think to be a somewhat
tedious and turgid way. And yet his saying it did somehow manage to capture
the imaginations of nearly everyone; and as a result, instead of the plain old
diet of ever more and more Utilitarianism, we today have set before us a dramatic
revival of so-called "rights theories" - not necessarily theories
of natural rights, but still rights theories for all of that. For what Rawls
succeeded in bringing home to most was the realization that in any Utilitarian
program of the maximization of the satisfactions of all mankind, there was no
reason in principle why such a maximum satisfaction might not be a satisfaction
of the majority at the expense of the minority, or else, possibly, of the many
at the expense of the few.
If the sum total of human satisfactions can be increased,
even if it be at the cost of the suffering of some one or of a few or even perhaps
of many human beings, then by the Utilitarian program it is just that maximum
satisfaction that is to be opted for and aimed at. But aren't the implications
of this rather damning, so far as Utilitarianism is concerned? After all, in
the course of the Christian centuries not very many people have been inclined
exactly to applaud the judgment of Caiaphas on a certain rather notable occasion,
when he said that "it was expedient that one should die for the people"
(John 18:14). Yet what could be more in accord with Utilitarian sentiments than
just such a judgment?
In any case, in opposition to the Utilitarians Rawls
managed to come right out and say that on any interpretation of justice as fairness,
to secure a maximum satisfaction for mankind, and yet to do so at the expense
of a few, or even of one, would be unjust. It would violate the rights of those
individuals, or of that one individual, whose happiness or satisfaction had
had to be sacrificed in order that the total happiness of the rest might thereby
be enhanced. True, Rawls did not propound this as a natural right. Instead,
in his book he provides for a somewhat elaborate apparatus whereby the rights
of individuals, as determined in the light of the principle of justice as fairness,
will come to be recognized as a result of a social contract.
Likewise, in the field of law, Ronald Dworkin has come
out with a stimulating book, Taking Rights Seriously (1977). Dworkin's
main opponent in the book is none other than the brilliant and eminent English
philosopher of law, H.L.A. Hart. Now, as it happens, the upshot of Hart's work
in jurisprudence had been his telling defense of the thesis that in judicial
proceedings there cannot properly be any appeals to such principles of right
and justice as may transcend and so fall outside of the expressed or implied
principles and rules of a given legal system. However, it is just this basic
tenet of legal positivism that Dworkin undertakes to challenge. Again, it needs
to be said that Dworkin does not base his challenge on any invocation of natural
law or natural right. And yet for all of that, in his own enterprise of "taking
rights seriously," Dworkin implies that the rights that he would take so
seriously and would have others take seriously are precisely such rights as
may well not be included within the positive provisions of a given legal system.
But then just where do these extra-legal rights come
from? Moreover, so long as Dworkin fails to make clear just what their origin
and basis is, may he not be criticized for not fully facing up to the question
of whether there is a justification, and, if so, what the justification may
be, for supposing that there really are such rights in the first place.
Indeed, no less a criticism and in a somewhat similar
vein could perhaps be directed at another new and even somewhat electrifying
book by one of the new rights theorists, namely, Robert Nozick. That is the
book Anarchy, State, and Utopia (1974). Nozick's basic conviction seems
to be - if we might express it more or less in our own language - that human
beings are naturally interested and appetitive animals, each with his own concerns
and wishes. Moreover, there is no reason why each should not pursue his own
interests - provided always that he recognize that there are certain "side-constraints"
on what he does, side-constraints that involve a respect for various rights
that others may have. Thus the persons and property of these others, Nozick
would say, are things to which they have "entitlements," and these
entitlements are such that they may not be violated or interfered with by others.
No, they are, as it were, in the nature of absolute rights; and no Utilitarian
considerations of any kind can ever justify us in any attempt at overriding
What if Rights Theories can
only draw Sustenance from Natural Law Theories?
Now to all of these newly developing rights theories,
which in their different ways might be thought to lead to the establishment
of a genuine Libertarian philosophy, one can only say "Bravo!" And
yet isn't there one fly in the ointment? For these rights that Rawls, Dworkin,
and Nozick have been so vigorous in championing are not held to be natural rights;
nor are the various duties and side-constraints, that are correlative with the
asserted rights of individuals, to be regarded as having any foundation in nature.
Yet if rights and duties cannot be shown to have any
basis in nature or in fact, what reason is there to suppose that they have any
basis at all? True, we may feel strongly about them; and nothing is easier than
to get human beings to warm to affirmations of their individual rights and freedoms.
But mere warmth of feeling can hardly be a substitute for rational justification.
And if rights and duties are not held to be natural rights and duties, what
is there that is rational about them?
Just recall our own earlier account of the natural law
theories in the seventeenth and eighteenth centuries, in which the rights and
the laws that were appealed to, turned out to be not natural laws or natural
rights, so much as rights and laws that appeared to rest on nothing more than
fiat or decree - in the Middle Ages upon divine decree, and in the later secularized
versions of natural law upon no more than man or mankind's decree. But the eighteenth
century experience would surely seem to indicate that rights that turned out
to have no more than an asserted, and not a natural, foundation could be only
too easily denied and discarded altogether. And might not this be a message
that could bode ill for the future of today's newly emerging rights theories?
Indeed, this is a prospective danger that at least some
contemporary philosophers have been not a little anxious about, though not necessarily
those of a classical liberal persuasion. Two names of authors of two very able
books that have appeared just in the last two years might be mentioned in this
connection, Alan Donagan and Alan Gewirth. In both cases these writers are concerned
to justify human rights and human duties; but they want to do so on some other
basis than an appeal to nature and natural law. Instead, they both prefer to
follow a more Kantian line of justification.
In general, Kant suspected that egoistic or self-interested
motives were non-moral because they were not so much reasoned to and freely
chosen as automatic, given biases or vested interests caused and determined
heteronomously rather than by the autonomous choice of the moral agent. In the
hope of making ethical choice more rational and autonomous, Kant turned to a
universalizability principle. He reasoned that universalizing one's reasons
for action (i.e., by applying those reasons equally to every other agent) would
form the decisive criterion for any action that is truly rational and hence
a truly moral one. This universalizing approach led Kant to formulate his categorical
imperative whose edict applied equally well to all moral agents.
Kant was at pains to remove all self-interested goals, ends, or objects of desire
as the possible justifying reasons for moral actions. Such self-interested motives
seemed to him merely irrational deterministic reflexes of an agent's actions
(similar to Hobbes's "passions") rather than authentic, autonomous,
and rationally chosen motives.
Thus Donagan wishes to argue that there simply is a basic
imperative to which all human beings are subject, and which might be expressed
"Humanity is always to be loved and respected for its own sake," or
"Every human life is to be respected as an absolute and inviolable good."
The only trouble with this is that it would seem only too easy to round on Donagan
and say, "But I don't see that this is an imperative incumbent upon me
at all. What evidence is there that I am really bound by any such absolute obligation
or duty as is here formulated?" Nor does it seem that Donagan has any very
good answer to this. True, as far as Kant was concerned, he claimed that such
an absolute or categorical imperative as that requiring one to respect humanity
or human life as an absolute good was binding on each and all alike - and this
simply for the reason that to deny it was somehow to fall into self-contradiction.
However, very few have been convinced that any such self-contradiction could
really be shown to be involved in such instances. And in any case, Donagan does
not choose to defend his absolute imperative by this means. But what, then,
is the warrant for it?
Moving to Gewirth's case, he would, in Reason and
Morality, appear to want to justify human rights and duties by considering
what the implicit assumptions are of any human action whatever. Thus in acting,
any human agent cannot but recognize that his action has the characteristics
of being both purposive, as well as being voluntary and free. Moreover, Gewirth
feels that to recognize the voluntary and purposive character of our actions
is also to recognize the rightness and the desirability of their being so; but
to recognize that it is but desirable and right that my own actions be voluntary
and purposive is also to acknowledge that it must be no less desirable and right
for any and every human being.
In other words, if it is right that my actions be voluntary
and purposive, then it is right that everyone's should be so; and just as everyone
should recognize my right in this regard, it is no less right and a duty that
I recognize the rights of everyone else in this same regard.
Undoubtedly, this is a telling and ingenious argument
by way of establishing rights and duties; and yet is it sound? For may not someone
make rejoinder by simply saying, "Why, yes, I am glad that I am in a position
to act freely and purposefully as a human being. But even though I like this
situation of mine and certainly hope that it continues, I do not claim it as
a right. Indeed, if I did, it would be an obvious case of the fallacy of trying
to infer an 'ought' from an 'is.' Moreover, not claiming the freedom and purposiveness
of my actions to be in any way a right, since it is nothing more than a simple
fact about my individual situation, albeit a very happy fact, then there is
no way in which I can be held to be logically bound to recognize a corresponding
right to freedom and purposiveness on the part of other human beings."
How can We salvage Contemporary
Rights Theory and Rehabilitate Natural Law?
What to do, then, when it comes to trying to save contemporary
rights theories from the charge of arbitrariness? If the Kantian moves of Donagan
and Gewirth cannot do the trick, what alternative is there by way of justifying
rights and duties, save that of showing that such rights and duties are somehow
natural rights and duties? And what does this call for, if not for some sort
of rehabilitation of the old natural law theory, more or less in its Thomistic
form? For on this view, as we saw, the way one justifies rights and duties in
the context of ethics and politics is analogous to the way in which one justifies
the right ways of doing things, as over against the wrong ways, in the contexts
of various arts, skills and techniques. In the latter sorts of cases - e.g.,
medicine - one justifies a certain care and treatment of patients as being naturally
required on the basis of the end of the medical art, which is health. So likewise,
given that the natural end of human life is the attainment of one's natural
perfection or fulfillment as a human being, then one can come to recognize what
it is that is naturally required of one, and what one needs to do or what it
is right for one to do, in order to attain such an end.
But if the only way really to restore rights and duties
to a proper status once again, either in our individual lives or in society,
is to recognize them as having a natural basis and foundation, and a natural
basis and foundation such as will enable them to be integrated into an overall
scheme of natural law, why has this not been an alternative that has been more
readily resorted to by thinkers in the present-day world, particularly by champions
of latter-day rights theories? The answer surely is that as nature has come
to be conceived and described by modern science there would appear to be just
no room and no place in nature for any such things as natural human ends, to
say nothing of natural rights or duties. Thus Hooker's unqualified assertion
that "all things that are have some operation not violent or casual; nor
doth any thing ever begin to exercise the same without some fore-conceived end
for which it worketh" - this assertion of Hooker's would appear to be directly
contravened by the account of nature given by the scientists. Not only that,
but the very enterprise of trying to ground moral and ethical and political
principles in nature, in addition to being inconsistent with the scientist's
account of nature, would also appear to involve the patent fallacy of attempting
to reason from fact to value and from "is" to "ought." Little
wonder, then, that natural law theories of ethics and politics in the Thomistic
sense, cannot ever seem to get off the ground any more!
Reviving Natural Law: Bridging
Facts and Values and Formulating a New View of Nature
Yet that ground is changing, and hopefully changing fast,
so that a proper takeoff may become possible after all. The old dogma, for instance,
about the absolute and unbridgeable gap between facts and values has recently
been subjected to various sorts of devastating analyses and criticisms,
and while the dogma still hangs on, even in philosophical circles, hopefully
its days are numbered.
The hallmark of a natural law ethics is that the gap
between facts and values is indeed bridgeable. Natural law aims at grounding
norms and values in fact and nature. Because values are claimed to be natural
and factual, and are not mere man-made conventions, it is possible to claim
a rational and objective basis for ethics.
In the natural law perspective, however, values are not
simple objective properties or facts as we commonly understand these terms.
Despite the fact that values are truly objective, they also serve as values
for a subject, namely, the human agent. Speaking in terms of their factual status,
values resemble goals or perfections which the individual strives to achieve
by rational choice. Just as the acorn tends toward the mature oak tree (and
never say, the sycamore), so a young girl tends to actualize her latent potential
to blossom into a wise and beautiful woman.
Facts are viewed as values, when we consider them as
the mature unfolding or actualizations of human potentials. Human values are
also, indeed, facts to the degree that these perfecting actions are worthwhile
and obligatory for us humans if we aim to realize our natural potential. For
example, such human values as wisdom or courage are certainly facts; but as
facts they are no less developmental achievements which represent the realization
of a person's earlier potentialities.
Even more significant for rehabilitating natural law
have been the number of recent books and articles which have argued for an out-and-out
revisionism, so far as the received scientific account of nature is concerned.
On the one hand, there have been studies designed to show that modern natural
science is simply not to be interpreted in the Humean and positivistic manner
that has been fashionable for so many years.
Instead, the ancient Aristotelian causal scheme, including material, formal,
efficient, and even final causes, is said to be far more compatible with the
actual practices and procedures of scientists than any Humean scepticism, such
as has been wont to be predicated upon the usual stereotyped contrast between
constant conjunction and necessary connection. Yes, if such a philosophical
revisionism with respect to science itself should begin to gain ground, then
Hooker's old affirmation about the natural operations of things in the natural
world, all of them having fore-conceived ends for which they work, will once
more gain credence and respectability.
Nor is that all, for just as on the one hand, something
rather like the old Aristotelian and medieval view of nature is considered by
some contemporary philosophers of science to be the proper framework in terms
of which the procedures of modern science can best be understood, on the other
hand there is another group of philosophers of science who take as their point
of departure Sir Karl Popper's celebrated thesis that "the logic of scientific
discovery" is to be understood as involving an almost exclusive reliance
upon the so-called hypothetic-deductive method.
Moreover, if such be the nature of scientific method, then it would seem to
follow that science is not really interested in achieving a knowledge of nature
and reality at all. Instead, rather than being concerned to know what nature
is, or is like, in itself, the modern scientist may be said to be concerned
only with nature as it appears to be, depending upon the particular conceptual
framework or set of hypotheses in terms of which the scientist happens to be
viewing nature at a given time. In other words, the objective of science is
to control and manipulate nature, and not necessarily to know it as it is in
itself at all.
Notice, though, what the implications of either of these
recent revisionist accounts of modern science would be with respect to possible
rehabilitation of natural law theories in ethics and politics. For if science
is not concerned with nature as it really is in itself, then modern science
cannot be said to have undermined that conception of nature in terms of which
all operations in nature, and particularly those operations characteristic of
human beings, might be said to have their fore-conceived natural ends. In other
words, there could be no basic incompatibility between what the scientists have
to say about nature and the concept of nature that is required by a natural
law or natural rights philosophy. Of course, on the other revisionist view of
science, there could be no incompatibility between the scientist's view of nature
and the natural, and the natural law philosopher's view of them, for the simple
reason that the scientist's view of nature ultimately comes down to the same
thing as the natural philosopher's view.
"Oh," but you will say, "neither of these revisionist views
of science has gained sufficient currency to again render secure the philosophical
foundations of natural law theories of the traditional sort." True enough,
and yet surely there is enough stirring and going on to admit of a most hopeful
answer to the question, "Natural law - is it dead or alive?" The answer
is, "It's very much alive!"
 Michael B. Crowe, The Changing
Profile, p. 246. (Full citations for works listed in the Endnotes may be
found in the following Bibliography.)
 For both the fact and the character
of natural law doctrines in classical antiquity, Crowe's treatment is excellent.
But by far the most discerning and provocative discussion of natural law, as
it suffered and flourished at the hands of the Sophists and of Plato and Aristotle,
may be found in Leo Strauss (Natural Right and History, esp. Ch. 3).
 Crowe, pp. 246-47.
 Cf. statements by Crowe, p.
ix, and by A.P. D'Entrèves, Natural Law, p. 13, to this same effect.
 A term borrowed from Robert
Nozick and, admittedly, cited here out of context.
 "Is Thomas Aquinas a Natural
Law Ethicist?" The Monist 58 (January 1974). The quoted phrases
that follow in the text are from pages 52 and 53 of that article.
 This is not to say that, just
as there are striking similarities, there are not also just as striking differences,
between right and wrong behavior in the living of our lives and the right ways
and wrong ways of pursuing various arts and skills. For Aquinas these differences
would turn on Aristotle's earlier way of distinguishing the so-called moral
virtues from the intellectual virtues. For a somewhat simplified contemporary
version of such differences, cf. Henry B. Veatch, Rational Man, Chapters
3 and 4.
 It perhaps should be explained
with some apologies that throughout this essay we have not been at pains to
distinguish between what might be called natural laws in the context of ethics
and natural laws in the context of what Aristotle would call politics. Suffice
it to say that natural laws of the former sort are to be determined in the light
of man's natural end, insofar as he is considered just as an individual; those
of the latter sort are determined in the light of man's natural end insofar
as he is a political animal, i.e., a part of a polis or political community.
 Crowe, The Changing Profile
and d'Entrèves, Natural Law.
Reference should perhaps be made in this connection to the somewhat notorious
etiamsi daremus clause in Grotius. The full sentence is quoted in translation
in Crowe: "What we have been saying (namely, about natural law) would have
a degree of validity even if we should concede that which cannot be conceded
without the utmost wickedness, that there is no God, or that the affairs of
men are of no concern to him." For a full discussion of the exact sense
and import of this statement in Grotius, see the illuminating discussion in
Crowe, Ch. 9.
 Hooker, Of the Laws,
Bk. I, Ch. 2, 1 (A.S. McGrade and Brian Vickers, eds., p. 109).
 Hobbes, Leviathan,
Part I, Ch. 11 (Michael Oakeshott, ed., p. 63).
 Strauss, pp. 178 and 180.
 Strauss, pp. 181-182.
 In this connection it is
interesting to note that even so eminent and so devoted a Thomistic scholar
as Professor Vernon Bourke is inclined to give up on the use of the term "natural
law" altogether. He feels that its usage has become almost totally infected
by that one use of the term, which dates back to the Middle Ages, and which
firmly associates the notion of natural law with "a code of moral precepts
divinely implanted in man's nature, or mind, and issuing from the legislative
Will of God." Hence he thinks it is hopeless to try to restore to the term
the sense which it had in Aquinas, and according to which law is defined as
a "rational plan and rule of action." Rather in the article cited
above in note 6, Bourke concludes that with respect to Aquinas's teaching the
term "theory of right reason" is a better expression to use than "theory
of natural law." Cf. also Bourke, Ethics in Crisis.
 Crowe, p. 233.
 This term is here being
used roughly in Karl Popper's sense. Cf. especially The Open Society.
 D'Entrèves, p. 162.
 For a more detailed account
of how a great many recent ethicians have sought, however inadvertently, a Kantian
mode of justifying ethical generalizations, see the author's forthcoming article,
"Is Kant the Gray Eminence of Contemporary Ethical Theory?", as well
as his fifth chapter on "A Transcendental Turn in Ethics: A Possible Solution,"
which appears in For An Ontology of Morals, pp. 85-98.
In the debate between egoism vs. altruism, some ethicians have sought in Kantian
fashion to avoid the alleged moral inadequacy of self-interested goals and motives
by, in effect, universalizing egoism. This universalizing move occurs through
such devices as extending to all human agents the so-called "non-aggression
axiom" which we may formulate as: "No one has the right to initiate
force against the self-interest, life, and property of another." But how
can the device of universally protecting the self-interest of others' egoistic
concerns seem morally superior to simply protecting one's own egoistic interest?
How could one refute some radical egoist who would discern no special merit
in universalizability? Such a person might well proclaim himself unwilling to
invoke any universalizing of the non-aggression axiom and simply act out of
his own personal self-interest and be willing to suffer the consequences. The
Kantian turn toward a universalizability principle is not, in itself, a sufficient
device for establishing an objective ethics.
 For a discussion of this
issue, cf. Veatch, For an Ontology of Morals.
 Three books, all to much
this same effect, have appeared just in the last six years: Wallace, Causality
and Scientific Explanation; Harré, The Philosophies of Science;
Harré and Madden, Causal Powers: A Theory of Natural Necessity.
Needless to say, none of these books speaks to the question of natural law in
the ethical or political sense. However, their revisionist accounts of both
science and the natural world could well prove to be the basis for a revival
of natural law theories of ethics and politics.
 Cf. Popper's The Logic
of Scientific Discovery. It should be noted that rather than Popper himself,
it is a number of successor philosophers of science, men like Hanson, Feyerabend,
and Kuhn who have pushed Popper's theories in the somewhat revisionist direction
suggested in the text.
 This particular species
of revisionism, while suggested and hinted at by a number of contemporary thinkers,
has never been worked out either fully or with very much unanimity. I might
mention just a couple of papers of my own that have been sent up almost as trial
balloons for this particular kind of revisionist thesis in regard to science.
Veatch, "A Neglected Avenue in Contemporary Religious Apologetics"
(Religious Studies 13, pp. 29-48), and "Is Quine a Metaphysician?"
(Review of Metaphysics 31, March 1978, pp. 406-30).
Some of the Major Sources of Natural Law Doctrines,
Medieval and Modern
St. Thomas Aquinas (1225-1274, Two Sicilies). Summa Theologiae. For
St. Thomas's discussion of law reference is usually made to the so-called Treatise
on Laws in the Summa Theologiae (S.T.) I-II, quest. 90-108. This
treatise, though, needs to be considered in context. Preceding it in S.T. I,
quest. 75-119 is the treatise De Homine, and then in I-II, quest. 1-89
is the discussion of man's natural end and the kinds of actions that are conducive
to human felicity.
Richard Hooker (1553-1600, England). Of the Laws of Ecclesiastical Polity
(1593). The first modern edition is that of John Keble, published by the Clarendon
Press in 1836. The new Folger edition, under the editorship of Edelen, Hill
and Stanwood, is currently appearing. An excellent and convenient abridged edition
is that of A.S. McGrade and Brian Vickers, New York: St. Martin's Press, 1975.
Hugo Grotius (1583-1645, Holland). De jure belli et pacis libri tres
(1625). I - photographic reproduction of 1646 text, Washington, 1913; II - translation
of text by F. W. Kelsey and others, with introduction by J.B. Scott. In the
series "Classics of International Law." Oxford: Clarendon Press, 1925.
Thomas Hobbes (1588-1679, England). Leviathan (1651). Edited by Michael
Oakeshott, Oxford: Basil Blackwell, 1946.
Samuel Pufendorf (1632-1694, Saxony). Elementorum jurisprudentiae universalis
libri duo (1664). In the series "Classics of International Law."
Oxford: Clarendon Press, 1931.
John Locke (1632-1704, England). Essays on the Law of Nature. Latin
text with translation, introduction and notes by W. von Leyden, Oxford: Clarendon
Press, 1954. (This Latin treatise of Locke's, originally written in the early
1660s, was only rediscovered in the present century.) It is discussed at length
in Crowe (The Changing Profile, esp. pp. 237-241).
Jean-Jacques Rousseau (1712-1778, Geneva). For purposes of this present study,
the references can be restricted simply to the Social Contract (1762)
and the two Discourses, namely, Discours sur les sciences et sur les arts
(1749), and Discours sur l'origine de l'inéqualité. See,
Rousseau, The First and Second Discourses. Edited with introduction and
notes by Roger D. Masters. New York: St. Martin's Press, 1964.
Edmund Burke (1729-1797, Ireland). The exact sense in which Burke might be
said either to reject or accept natural law doctrines is hard to determine.
Reference might be made to Reflections on the Revolution in France (1790),
and Appeal from the New to the Old Whigs (1791), passim, any edition.
Immanuel Kant (1724-1804, Prussia). Groundwork of the Metaphysics of Morals
(1797). Translated and analysed by H.J. Paton. New York: Harper Torchbook, 1964.
Some of the Classical References on Utilitarianism
David Hume (1711-1776, Scotland). Enquiry Concerning the Principles of Morals.
In Treatise of Human Nature, Book III (1740).
Jeremy Bentham (1748-1832, England). Introduction to the Principles of Morals
and Legislation (1789).
John Stuart Mill (1806-1873, England). Utilitarianism (1861).
Some Recent and Contemporary Treatments of Natural
Law and Related Topics
Bobbio, N. Locke e il diritto naturale. Turin, 1963.
Bourke, Vernon J. Ethics in Crisis. Esp. Chapt. III. Milwaukee, Wisconsin:
Bruce Publishing Co., 1966.
Bourke, Vernon J. "Is Thomas Aquinas a Natural Law Ethicist?" The
Monist 58 (Jan. 1974): 52-66.
Chroust, A.H. "Hugo Grotius and the Scholastic Natural Law Tradition."
The New Scholasticism 17 (1943): 101-133.
Crowe, Michael Bertram. The Changing Profile of Natural Law. The Hague:
Donagan, Alan. The Theory of Morality. Chicago: University of Chicago
Dworkin, Ronald. Taking Rights Seriously. Cambridge, Massachusetts:
Harvard University Press, 1977.
Edelstein, L. The Meaning of Stoicism. Cambridge, Massachusetts: Harvard
University Press, 1966.
D'Entrèves, A.P. Natural Law: An Introduction to Legal Philosophy.
2d rev. ed. London: Hutchinson University Library, 1970.
Eterovich, Francis H. Approaches to Natural Law from Plato to Kant.
New York: Exposition Press, 1972.
Fassò, G. Storia della filosofia del diritto, I-III. Bologna,
1966, 1968, 1970.
Gewirth, Alan. Reason and Morality. Chicago: University of Chicago Press,
Hamilton, Bernice. Political Thought in Sixteenth Century Spain: A Study
of the Political Ideas of Vitoria, Soto, Suarez and Molina. Oxford: Clarendon
Harré, R. The Philosophies of Science. New York: Oxford University
Harré, R. and Madden, E.H. Causal Powers: A Theory of Natural Necessity.
Oxford: Basil Blackwell, 1975.
Hart, H.L.A. The Concept of Law. Oxford: Clarendon Press, 1961.
Jaeger, W. Paideia: The Ideals of Greek Culture. Translated from the
2d German edition by G. Highet. Oxford. 1939-1944.
Krieger, L. The Politics of Discretion: Pufendorf and the Acceptance of
Natural Law. Chicago-London, 1965.
Levy, E. "Natural Law in Roman Thought." Studia et monumenta historiae
et juris 15 (1949): 1-24.
Maihofer, W. (ed.). Naturrecht oder Rechtspositivismus? Darmstadt, 1972.
Maritain, Jacques. Christianisme et Democratie. New York: Editions de
la Maison Francaise, 1943.
Maritain, Jacques. Principes d'une Politique Humaniste. New York: Editions
de la Maison Francaise, 1944.
Maritain, Jacques. The Rights of Man and Natural Law. New York: Charles
Scribner's Sons, 1943.
Nozick, Robert. Anarchy, State and Utopia. New York: Basic Books, 1974.
O'Connor, D.J. Aquinas and Natural Law. London, 1967.
Ottenwälder, P. Zur Naturrechtslehre des Hugo Grotius. Tübingen,
Popper, Sir Karl. Conjectures and Refutations. New York and London:
Basic Books, 1962.
Popper, Sir Karl. The Logic of Scientific Discovery. New York: Science
Editions, Inc., 1961.
Popper, Sir Karl. The Open Society and Its Enemies. 2 vols. London:
Routledge, Kegan, and Paul, 1945.
Rawls, John. A Theory of Justice. Cambridge, Massachusetts: Harvard
University Press, 1971.
Rommen, H. The Natural Law; A Study in Legal and Social History and Philosophy.
St. Louis and London, 1947.
St. Leger, J. The 'Etiamsi Daremus' of Hugo Grotius: A Study of the Origins
of International Law. Rome, 1962.
Strauss, Leo. Natural Right and History. Chicago: University of Chicago
Veatch, Henry B. For an Ontology of Morals: A Critique of Contemporary Ethical
Theory. Evanston, Illinois: Northwestern University Press, 1971.
Veatch, Henry B. Rational Man: A Modern Interpretation of Aristotelian Ethics.
Bloomington: Indiana University Press, 1962.
Wallace, William A. Causality and Scientific Explanation. Esp. Vol.
2 Ann Arbor: University of Michigan Press, 1972.
Watson, G. "The Early History of Natural Law." Irish Theological
Quarterly 33 (1966): 65-74.
Wild, J. Plato's Modern Enemies and the Theory of Natural Law. Chicago,