Natural Law and Liberalism
- Subject Area: Law
- Tipoc: Natural Law
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 or slavery.
 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 include:
- 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 Law Forum).
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.
- A Legal Glossary by Roscoe Pound
- Bastiat, The Law (revised LF edition)
- Bentham on the Principles of Morals & Legislation
- Blackstone on Property (1753)
- Blackstone on the Absolute Rights of Individuals (1753)
- Blackstone: Analysis and Contents of Vol. 1 of Commentaries on the Law of England
- Blackstone: Analysis and Contents of Vol. 2 of Commentaries on the Law of England
- Blackstone: Introduction to the Laws of England
- Bryce on the Legal History of Rome and England
- Burlamaqui and Natural Law
- Carmichael & Natural Rights
- Cicero’s Treatise on the Laws
- Dicey on Law and Public Opinion in the 19th Century
- Dicey on the Rise of Legal Collectivism in the 20thC
- Doctrine of the Separation of Powers
- Fuller and the Law
- Gaius' Institutes of Roman Law: An Historical Introduction
- Gardiner on the Constitional Issues of the English Revolution
- Gardiner on the English Revolution
- Grotius & the Freedom of the Seas
- Grotius and the Natural Law Tradition
- Grotius on Prize and Booty
- Heineccius and Turnbull on Natural Law
- History of English Law
- Holdsworth on the Law Merchant
- Kant’s Philosophy of Law
- Law and Liberty by Roscoe Pound
- Lenks on the history of Habeus Corpus
- Leoni on the Rule of Law
- Magna Carta 700th Anniversary
- Magna Carta and the Common Law
- Magna Carta and the US Constitution
- Magna Carta in 16th Century English Legal Thought
- Magna Carta: An Historical Introduction
- Maitland on English Law before the Norman Conquest
- Maitland’s Outlines of English Legal History
- McIlwain on Ancient Constitutionalism
- Natural Law and Liberalism
- Pollock on the King’s Peace in the Middle Ages
- Pollock on the Law of Torts
- Pollock on the Oath of Allegiance in English History
- Pollock’s Model Version of Tort Law
- Pound and the Law
- Pound on the Ideal Element of Law
- Pound on the Philosophy of Law (Property)
- Pufendorf and Universal Jurisprudence
- Richard Cumberland and Natural Law
- Rommen & the Study of Natural Law in the 20thC
- Rommen and Natural Law
- Rommen on Natural Law in the Age of Individualism
- Roots of Liberty: Magna Carta (2008)
- Spooner on Natural Law (1882)
- Spooner, Taxation and the Common Law (1852)
- The History of James Wilson’s Law Lectures