Related Links in the Library:
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.
Although the editorials were unsigned, they were probably written by
the Editor Leonard P. Liggio or the Managing Editor John V. Cody. It is republished with thanks
to the original copyright holders.
Natural Law and Liberalism
The complex tradition of natural law exercised a profound, but historically
problematic, influence on modern natural rights theory and the equally complex
liberal tradition. Liberalism, as the political philosophy of absolute human
rights, might well be described as an ideology of freedom in search of an ethical
justification - which perhaps only natural law can supply. Indeed, a major
theme of Professor Veatch's
essay holds that the liberal doctrine of natural rights (or any other political
philosophy or ethical system for that matter) is untenable without the ontological
and epistemological support of a natural law approach.
And, of course, natural law seems a very congenial idea-complex for liberalism
both in natural law's historical function and in the thrust of its unit-ideas
of rationalism and the nomos/physis dichotomy. Historically, as
d'Entreves's Natural Law amply documents,1
natural law served the liberal function of placing rational limits on political
power. Furthermore, at the heart of natural law lies an antithesis with radical
political implications: the contrast between nomos (convention or custom)
and physis (nature). From the ancient Greek political gadfly Socrates
to the modern civil disobedients Thoreau and Solzhenitsyn, humans have appealed
to a "higher law" or true natural law to protest and rebel against
unjust conventional laws. In his essay Professor Veatch draws this same ethical
distinction between nomos and physis as an intrinsic unit-idea
of natural law:
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.
So understood, natural law was charged with a radical liberal and revolutionary
potential to challenge all illegitimate state authority and edicts by submitting
these to the rival sovereignty of individual reason and ethical judgment. Thus
natural law concealed a subversive potential akin to imperium in imperio.
For the touchstone and voice of natural law was not public authority but private
conscience, the individual's right reason, which the Stoics called orthos
logos and Cicero ratio recta. Professor Veatch cites Vernon Bourke's
formulation: "the rational discernment of the norms of human conduct working
from man's ordinary experience in a world environment of many different kinds
of things was right and natural in politics and ethics."
Reason - universally available to every individual - remained always a ready
and powerful weapon to protest against violations of human nature in politics.
What was right for man was rationally discoverable by human reason consulting
human nature and its ends. This concept of what was "naturally right"
for man led to the concern for natural rights characteristic of a significant
strand of the modern liberal tradition. In fact, the English liberal, Lord Acton,
impressed by Thomas Aquinas's natural law advocacy of the values of freedom,
natural rights, and government by consent, went so far as to pay Aquinas the
homage of being "the first Whig".2
The liberal catalyst inherent in natural law, then, was its touchstone of critical
reason rigorously examining the moral rightness of laws and social institutions.
D'Entreves has distilled his study of Natural Law (p.110) by observing:
"The doctrine of natural law is in fact nothing but an assertion that law
is a part of ethics." To the question "what is law?" (quid
jus?) the natural law tradition answered that law is law only if it is just
(jus quia justum). This primacy and sovereignty of the ethical reason
over politics led the natural law jurists to "recognize that 'law' does
not necessarily coincide with the law of the State." (d'Entreves, p. 113).
This approach opposed state-centered legal positivism and voluntarism, or the
doctrine that law is whatever a ruler wills. From the natural law perspective,
law to be true law must be an act of the intellect corresponding to the natural
order of justice rather than a simple act of the will of a legislator. Since
private reason, not civil authority, defined true law, natural law paved the
way toward principled civil disobedience and the liberal legal order based on
the inviolable rights of the individual moral conscience.
Liberalism flourished and then declined to the extent that it consistently
and radically defended such individual rights and to the degree that it was
nourished by the absolutism of the "higher law" or natural law doctrine.
Liberals worked massive and radical social and political upheavals by rationally
questioning the rightness of laws and institutions. Just as natural law, liberalism
also rejected the unnatural interference of nomos in the form of arbitrary,
conventional laws, legal privileges, and economic intervention. Inspired by
a natural law vision of a natural order of reason, freedom, peace, and prosperity,
liberalism toppled the Old Order of the ancien regime in Western Europe, It
replaced the trappings of the Old Order's nomos - legally enforced privileges,
class exploitation, mercantilism, slavery, status, and statism - with a new
liberal order of legal equality and individual freedom. The liberal temperament's
rational analysis of nature and the state ushered in the dynamic ferment of
the Enlightenment, the Industrial Revolution, and the American and French Revolutions
together with their modern progeny.
Liberalism's challenge to the Old Order, on the basis of the natural law-derived
doctrine of natural rights, found expression in the French Declaration of
the Rights of Man and the Citizen (1789) with its echoing allusion to the
American Declaration of Independence: "These natural, imprescriptible,
and inalienable rights:" This new order of human rights was adumbrated
by Enlightenment liberals such as the Abbe Sieyes in What is the Third Estate?
(1789), which challenged the state-imposed caste system of privileged orders
of nobility: 'All privilege.. . is opposed to the common right; therefore all
the privileged, without distinction, form a class that is different from and
opposed to the Third Estate:'3
Such embryonic liberal class analysis exposing unnatural and artificial social
distinctions (or nomos) was later matured and perfected by the French
liberals Charles Dunoyer and Augustin Thierry and by others.4
Earlier, the social revolutionary force latent in the rational analysis of customary
and legal social distinctions was expressed in the pique against nobles by Beaumarchais's
operatic character Figaro on the very eve of the French Revolution: "Nobility,
rank, place; all that makes you so proud. What have you done to deserve all
these blessings? You took the trouble to be born, and nothing more. Otherwise,
a rather ordinary man!" Favoring enlightenment and reason, liberalism subordinated
all legal codes and political institutions to the standards of right and nature.
Characteristically, the French liberal philosophers of the Encyclopédie
were at the forefront of the antislavery movement.
But liberalism, after such monumental achievements, declined in the nineteenth
century - in large measure because it abandoned natural law and absolute human
rights in favor of a utilitarianism that allowed the rights of society to take
precedence over individual rights. Professor Veatch's essay has effectively
traced the quandary and tensions within liberalism resulting from its fitful
adherence to natural law, its fateful emphasis on Hobbesian subjective passions,
and finally the collapse of utilitarian defenses of natural rights. Part of
the liberals' problem was a positivist view of human nature and their related
failure to resolve the Humean fact-value or is-ought dichotomy. To the layman
an abstruse and idle philosophic game, the is-ought split was fraught with profound
practical consequences to man and society: How can we factually justify so radically
value-laden a concept as human rights or freedom? Freedom and rights continue
in jeopardy unless a philosophical justification can rescue these concepts from
being nothing more than subjective whims, no. better nor worse than coercion
 A.P. d'Entreves. Natural
Law: An Introduction to Legal Philosophy. London: Hutchinson University
Library, 1970, second revised edition.
 See Crowe's The Changing
Profile of the Natural Law, p. 235, as well as pp. 223-245, for a discussion
of the rationalist and human rights interpretation of natural law from Hugo
Grotius and Samuel Pufendorf through Locke and Rousseau to the classical liberals
Bentham, Mill, and Sumner Maine.
 In Thomas C. Mendenhall, Basil
D. Henning, and Archibald S. Foord, eds. The Quest for a Principle of Authority
in Europe: 1715-Present, 1964, p. 53.
 Literature of Liberty
1 (July-September 1978): 78-79.
Helpful bibliographical aids or surveys of the history of the natural law tradition
- Michael Bertram Crowe. The Changing Profile of the Natural Law. The
Hague: Martinus Nijhoff, 1977.
- A.P. d'Entreves. Natural Law: An Introduction to Legal Philosophy.
London: Hutchinson University Library, 1970, second revised edition.
- Francis H. Eterovich. Approaches to Natural Law: From Plato to Kant.
New York: Exposition Press, 1972.
- American Journal of Jurisprudence (until 1969 titled the Natural
Supplemental studies or bibliographical tools for human rights theory include:
- Rex Martin and James W. Nickel, 'A Bibliography on the Nature and Foundation
of Rights, 1947-1977;' Political Theory 6 (August 1978): 395-413.
- Tibor R. Machan, Human Rights and Human Liberties: A Radical Reconsideration
of the American Political Tradition. Chicago: Nelson Hall, 1975.
- Mordecai Roshwald, "The Concept of Human Rights." Philosophy
& Phenomenological Research 19, 3 (1958-1959): 354-379.