Lecture 7: Natural Law

Classical Liberalism

A Lecture Series with Prof. Thomas Patrick Burke

“If justice does not exist in nature, it does not exist at all. If it is constituted by utility, it is destroyed by utility.” (Cicero, De Legibus, I, xv.)

1. Nature

The universe we live in is not chaotic, but ordered. From the largest galaxy down to the smallest quark, every material thing is governed by physical laws.  On the micro level, it is true, many of these are laws of probability, but they are still laws. The purpose of the sciences of physics and chemistry is to discover these laws, and they have discovered many.  They are called the laws of “nature.” But what is nature?

By nature here is meant that realm of the world that exists independently of human will. It is everything that has not been created by man. It exists on several levels. One level is that of inanimate or lifeless being, which is bound within the limits of mechanistic causation. Another and higher level of nature is that of living beings, that, while using mechanistic causation for many purposes, operate most fundamentally according to teleological or purposive causation, as we discussed in a previous lecture. This level of the living contains within itself three sublevels according to our ordinary observation:  the lower forms of life that grow and reproduce but do not have the power of movement in place or locomotion, the realm of plants;  the higher forms of life that do have the power of locomotion and can move themselves around in place, the animals; and among these are the third class, we ourselves, endowed with freedom of the will, who also belong to the realm of nature in so far as we exist independently of our will.

This natural order on all levels is the realm of unfreedom, where there is no moral obligation, no moral right and no conscience. It is the very visible realm of tornadoes, floods, earthquakes and tsunamis, of disease and death, of necessity and chance. It is “nature red in tooth and claw,” in Tennyson’s words,  where living beings survive and flourish only by killing and eating other living beings.  The law  of action that prevails in the natural order is that described by Hobbes: self-preservation.

A law of nature, lex naturalis, is a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or taketh away the means of preserving the same, and to omit that by which he thinketh it may be best preserved.

And because the condition of man… is a condition of war of every one against every one, in which case every one is governed by his own reason, and there is nothing he can make use of that may not be a help unto him in preserving his life against his enemies; it followeth that in such a condition every man has a right to every thing, even to one another’s body. And therefore, as long as this natural right of every man to every thing endureth, there can be no security to any man, how strong or wise soever he be, of living out the time which nature ordinarily alloweth men to live.     (Leviathan, 14)

As humans, however, we also belong to a second and very different order, the moral order. This is the realm governed by the freedom of our will, where we make decisions, and so where we are responsible for our actions and accountable for them to others.   It is the invisible realm of moral obligation and moral right, of conscience, where moral and immoral actions are done and judgements about morality and immorality are made. The moral order is universal, in the sense that it embraces without exception all beings that possess freedom of will. For it arises out of that freedom and is present wherever that freedom is present.

These two orders, the natural and the moral, are in conflict, and each rejects the other.  The very existence of the natural order of earthquakes and tsunamis, of the red tooth and claw, is a scandal and a stumbling block to the moral order.  Although the natural world is not chaotic but ordered, and provides the moral order with all the material for its action, nature takes no account of human will, does not at all harmonize with it except by accident, and so from the perspective of our purposes often appears random and chaotic.

There is an important distinction in regard to freedom to be made between the existence and nature of the will on the one hand, and on the other its activity.  The activity of our will is free. But the existence and nature of the will are given to us by nature, they are not themselves the creation of our own will, and so they are not free. In this sense the freedom of our will is not free. We do not choose to have a free will, we just have it.

In another sense, it is true, we can choose to have a free will, or alternatively we can allow ourselves to become unfree: this is freedom from the domination of our inclinations.  This freedom can be won only through hardship, by the practice of resisting them. A person who has the habit of giving in to his inclinations will not find it easy to resist them when duty calls.

Now the will itself is an objective reality, given to us by nature, even though it is available only for interior experience and not for sense experience. Similarly the freedom of the will is an objective reality, given to us by nature. If it exists, it exists independently of anybody’s belief in it. And this is also true of the moral order. Although it has a vitally important subjective dimension, it is an objective reality, and exists even where no one believes in it.

This means that the moral order can justifiably be considered as a higher level of nature.  It is not nature red in tooth and claw, but nature as the objective claims of justice. It has no less reality than nature in the original sense.

This ties in with what we saw about the teleology of life and the living. Once a living being exists, there are two concepts of nature that apply to it. One embraces everything that belongs de facto to the natural order. This is the sense in which we say that suffering, disease and death are natural. The other is the sense in which we say that what is natural is inherently good.

All of this is what Cicero means when he says that if justice does not exist in nature, it does not exist at all.  The moral law is not something human beings create, but something we discover, just as we do not create but discover the fact that our will is free.  The account we have been giving of the moral order in these lectures, therefore, can well be described as one of natural law. The concept was originated by the Stoic philosophers of ancient Greece, who realized that some principles of morality had universal validity.  This meant that some moral values were not relative but absolute, and by the same token not merely subjective but objective.  Aristotle had remarked that if we find something that is universal, that is a good sign that it is natural.  Cicero adopted the Stoic concept of natural law as his own, and he has given us in many respects the best account of it.

2. The Moral Law

The moral order is governed by a general rule: that moral evil must not be done.  But this general rule cannot properly be described as a law.  For while moral evil includes injustice, which can and must be an object of law, it also includes all the other vices opposed to moral virtues. It includes such things as cowardice, deliberate unkindness, and that abandonment of self-control which is intemperance.  It is not a moral law that we ought to be courageous and kind and have self-control. It is simply morally good and virtuous. But it is a moral law that we must not steal. Justice and injustice are distinctive among the moral virtues and vices in that they demand to be implemented or punished by a civil law. This is not true of any of the other virtues or vices.  Nobody believes that acts of mere private cowardice or private intemperance should be punished by civil law. The concept of natural moral law is therefore properly restricted to the realm of justice.

This means there is only one natural law, and it is to be implemented in a legal system: respect the freedom of will of all persons.  Or, expressed in the negative: do not use coercion.  This law can also be expressed as a natural right:  not to be subjected to coercion.  Of course, it is universally recognized that there can be a sufficient justification for coercion.  What this is remains for us to investigate.

John Finnis, in the most notable treatise on natural law published in the twentieth century, wishes to extend the range of the natural law to all “basic goods,”  which for him embrace life, knowledge, play, aesthetic experience, sociability, practical reasonableness, and religion. This includes our duties to ourselves, which cannot be duties of justice.  Yet it is seems very doubtful that he would wish to see all those goods or duties enforced by the civil law, and so it is not clear what is gained by that enormous nominal extension of the idea of law.

Elizabeth Anscombe has argued that the idea of a moral law made sense only so long as people believed in God, since a law presupposes a lawgiver. As we shall see, this view is not without a point. Nonetheless, it follows from our argument that there is a useful and important role for the idea of a natural moral law if it is restricted to the sphere of justice, even in a society that is not publicly committed to belief in God. It emphasizes that justice is not merely subjective or relative, but is an objective reality resting on an objective foundation, even though it is not empirically available for sense experience.  This was the view of Grotius.

3. God

If it is true that the fundamental law of morality is given to us by nature, and if nature is created by God, then the moral law comes ultimately from God and has the authority of God. This was the moving argument of Locke.

The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another’s pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of creatures are for our’s. Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.  (Second Treatise, Ch. 2)

4. Utilitarianism: “Human” Rights in place of Natural Rights

But the movement of skepticism that gave rise to science at the beginning of the modern era also often extended to religious belief, especially after the subsequent publication of Darwin’s Origin of Species. Thinkers such as David Hume, Jeremy Bentham and John Stuart Mill did not wish to believe in God but desired to retain morality, and consequently concluded that morality should not be dependent on Him. This led them to abandon the doctrine of natural moral law and substitute for it the profoundly different view that the rules of justice are valid only because they produce useful results.

Hume argued that it is impossible to derive any value from a mere statement of fact, an “ought” from an “is;” and thought the doctrine of a natural moral law illicitly required that derivation.  He concluded:

[T]he rules of equity and justice depend entirely on the particular state and condition in which men are placed, and owe their origin and existence to that utility, which results to the public from their strict and regular observance.  (Hume’s emphasis)

Mill wrote a short but influential book On Nature, in which he developed at greater length Hume’s argument that nature is purely a realm of fact and does not contain anything of moral value. He followed Hume in asserting that the validity of ethical principles is a function of their usefulness to society.

Usefulness, or utility, Bentham proposed, consists in happiness. The basic principle of morality, in his account, is that we should act in such as way as to maximize the sum total of  happiness.  This, he said, means maximizing the sum total of pleasure and minimizing the sum total of pain.  He believed this was scientific because pleasure and pain are matters of immediate experience, and so (he thought) we always know which is which.  But in reality they are subjective, not objective, and the line between them is by no means always so clear.   Mill added that there were higher pleasures, such as those of the mind, and lower pleasures, such as those of the body. He also added that each person’s pleasure should be considered as valuable as everyone else’s. But these additions cannot be derived from the notion of utility itself.  By itself, the principle of maximizing happiness is indifferent as to whose happiness is maximized.  It allows that the happiness of some may be purchased by the pain of others, so long as the net amount of happiness resulting is greater.

But both Hume and Mill identify nature exclusively with its lowest rung, the realm of inanimate nature and mechanistic causation. On that level, the level of stones and streams,  it is true there are no moral values. But as we saw in the first lecture, and have seen again at the beginning of this one, there is much more to nature than lifeless mechanism. There is the vast realm of living beings that inhabit a world of teleological causation, and in particular human beings that as a central part of their nature possess a free will. As soon as there are living beings of any kind, the concepts of “good” and “bad” are indispensable. Yet the Utilitarians leave all of that entirely out of account.

Judgements of utility, and of the consequences of actions in general, are purely external. They lack the interior dimension of mens rea otherwise so crucial to justice and ethics.  Whether an action is just or unjust depends on the intention with which it is performed. But when an action is judged by its consequences, no account is taken of this intention. This also the Utilitarians omitted.

The great advantage of utilitarianism in the eyes of its proponents is its allegedly scientific character. It confines itself to direct human experience. We can in principle, Bentham believed, add up the pleasures and the pains to be expected from an action, or from the adoption of some rule, and see which side outweighs the other. But in maintaining this, Bentham glossed over a crucial consideration: it is extremely difficult and even impossible to know what will follow in actuality from any of our actions.  We just cannot know ahead of time all the consequences that will result from any action, or from the adoption of any rule.  In a previous lecture I quoted Hegel’s  German proverb: “A flung stone is the devil’s.”  Once we have uttered a word or performed an action it escapes out of our hands and can turn against us.  Even the most intelligent and experienced persons make catastrophic mistakes about the effects to be expected from their actions.  Human beings are unpredictable, not only in their actions but also in their emotional reactions. We can make no more than probable judgements, which will often be wrong, about the pleasure and pain our actions will cause. This greatly weakens the claim of utility to be a scientific criterion.

There is a further question to be asked: Is pleasure always good? And is pain always bad? Is even happiness always good? It is not difficult to think of counter-considerations.  A life that was always pleasurable and happy would remain morally juvenile and never reach maturity, for some important kinds of personal growth only occur through the experience of pain and loss. For this reason ancient thinkers such as Socrates, Plato, Aristotle and Cicero scorned the view that the measure of morality lies in its utility. Which is far from meaning, of course, that they thought morality was useless.

But there is a more glaring limitation in the philosophy of utility, viewed as the exclusive guide to moral value: it has no room for the human dignity that we have seen follows from the freedom of the human will. Dignity means a worthiness to be respected. It implies a certain nobility. But there is nothing in the concept of happiness, or in the calculation of pleasures and pains,  to provide a foundation for the ideas of respect or nobility.

The Utilitarians chose utility in order to avoid subscribing to natural rights. The only rights a utilitarian can coherently acknowledge are those conferred by society. But what society gives, society can take away. As Cicero said, in the quote given at the beginning of this lecture, what utility gives, utility can take away. Since the principle of maximising happiness allows the happiness of some to be bought at the price of the pain of others, so long as the net amount of happiness is greater, this destroys any possible conception of equal and inalienable dignity.

Cicero rightly considered utility the very opposite of morality because it is self-centered, while, as Plato said, justice is another’s good. But the identification of morality with utility in turn led to dissatisfaction with the concept of natural rights, and its replacement by the idea of “human rights.”

On what foundation do these “human” rights, of which so much is made, now rest? If it is not human nature but only utility, Cicero’s argument still stands: rights created by utility can also be destroyed by utility.  The idea of “human” rights is no doubt useful to the oppressed, but scarcely to their oppressors. It is not without cause that the potentates of the undemocratic world are skeptical about human rights. Natural rights have a power that “human” rights do not, because they have a foundation in nature and “human” rights do not.

This fact that “human” rights lack a foundation in nature is reflected in the ease with which they can be manufactured.  The United Nations Universal Declaration of Human Rights of 1948 could assert, without troubling itself to make any reasoned argument to substantiate the assertion, that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”  If everyone possesses these rights, there must be someone who has the obligation to provide them.  Who that might be, however, the Declaration absolves itself from saying.  If such rights had to be demonstrated by objective rational argument, as anything claimed to be a natural right must be, it would arguably not be so easy to make them up.

The Declaration could perhaps be read as assuming that the basis of human rights lies in “the will of the people,” which it also says is the basis for the authority of government. But what if the will of the people should be against giving, for example, a right to life to the members of a different religion, as in some countries now prominent on our daily news screens?  The will of the people is no substitute for the objectivity of reason and nature.

5. Kant

For reasons such as these Immanuel Kant rejected utility as the foundation of morality. In its place he proposed a powerful theory based on the innate freedom of the human will, a theory to which the view I have been elaborating in these lectures owes a good deal. This freedom is something unique in nature, he pointed out. Because of it, human beings possess self-government or autonomy, and this is the foundation of morality.  Autonomy in this sense means that we do what is right because it is the right thing to do, and not because of any extraneous condideration such as the emotional satisfaction we derive from the action.  As soon as freedom of the will arrives on the scene, every action becomes subject to moral judgement. When we believe a person’s freedom of will is impaired through no fault of his own, for example by medication or insanity, we immediately absolve him of moral responsibility and accountability.  But when we are satisfied he is in possession of his natural interior freedom, we recognise that he deserves respect, we ascribe to him the full dignity of a moral being, and with that we grant that he has certain inalienable rights against any and all other persons.

But there are serious problems with Kant’s theory itself. For one, Kant believed we are justified only in postulating or assuming the existence of free will, but he did not believe we could know it or prove it because there is no experiment we could perform that would confirm it.[1] For a second, there is a large lacuna in his theory. If free will and autonomy are the foundation of moral dignity and human rights, where does that leave children and the insane? For they do not have actual free will or actual autonomy. Although we may presume Kant would intend to include them in the sphere of dignity and rights, since he was after all in some sense a Christian, he gives no actual reason to do so.[2]

6. Back to God

 We are left, then, with a gap. But there is one theory which bridges this gap and recognizes human dignity and human rights in every human being, even in children and the insane. This is the view that we saw was proposed by Locke, that human dignity and rights are conferred on us by God, in the act of creating us and thereby bestowing on us a common and equal human nature. In this view, we inherit equal human dignity and equal human rights by inheriting our biological nature as human beings from the hand of God. It is this biological nature that gives us also in due course, as we grow up and reach adulthood, the freedom of our will.

By this insight it is possible to unite the core of Kant’s theory with that of Locke.  All the members of the human family, by sharing equally in human nature given by God, inherit equal human dignity and rights. For those who possess freedom of will, it provides the immediate source of that dignity and rights.

An advantage of Locke’s theory is that it provides a stronger foundation for the moral law’s authority.  In Kant’s view the authority of the moral law is just the authority of reason. No doubt this authority is great. We must depend on reason to tell us what kinds of action are right and wrong. But it is hard to deny that the authority of the moral law according to Locke’s view has an additional and powerful foundation in the will, and ultimately in the nature or being, of God. Kant rejected this conception as undermining human autonomy.  But that rejection was based on an assumption that it was an external influence on the human will.  It can be argued, however, that this misunderstands the necessary relationship between the divine and the human, which should rather be understood as something internal to the human.

Kant argued that if reason is to be genuinely ethical in making its decisions it must be autonomous, not subject to any external authority but only to the authority of reason itself.  This is true if the external authorities are human.  The ones he had in mind no doubt included the Christian church in its various manifestations. But the authority of God over the decisions of conscience is not external in that way, it is not an additional voice to that of reason which may lead us to different conclusions from those of reason, but one that speaks through the voice of reason. Only it must be “right reason.”  As Cicero says:

There is a true law, a right reason, conformable to nature, universal, unchangeable, eternal, whose commands urge us to duty, and whose prohibitions restrain us from evil. Whether it enjoins or forbids, the good respect its injunctions, and the wicked treat them with indifference. This law cannot be contradicted by any other law, and is not liable either to derogation or abrogation. Neither the Senate nor the People can give us any dispensation for not obeying this universal law of justice. It needs no other expositor and interpreter than our own conscience. It is not one thing at Rome and another at Athens, one thing today and another tomorrow; but in all times and nations this universal law must for ever reign, eternal and imperishable. It is the sovereign master and emperor of all beings. God himself is its author, its promulgator, its enforcer. He who obeys it not, flies from himself, and does violence to the very nature of man. For his crime he must endure the severest penalties hereafter, even if he avoid the usual misfortunes of the present life.    (Laelius, in Cicero, De Republica, Bk 3.)

7. Synthesis

If it is once granted that justice and injustice are not the mere product of calculations of utility but are rooted in human nature, namely in the freedom of the will and the logic of that freedom, and ultimately in the authority of the Author of that freedom and nature, a very large sphere of moral judgement still lies open to considerations of practicality and usefulness.  If the foundation of human rights and dignity are recognized as lying in our God-given human nature and its inherent freedom of will, it becomes possible to accord an important role to utility in the remaining sphere of morality. It is good to be kind, but sometimes one can do more harm than good by certain forms of kindness. It is good to be brave, but some kinds of bravery can have catastrophic consequences for others. We must do justice even if the heavens fall, fiat iustitia, ruat caelum; but we must do good only when we have reason to be confident we are not making things worse.

When the question is no longer one of fundamental natural rights, but of the wisdom or goodness of a certain course of action compared to others, it is rational to go by our best estimate of the good it is likely to do.  In this way it becomes possible to unite all three philosophies, of Locke, Kant and the Utilitarians,  in a view that gives none a monopoly in explaining the whole of morality, but sees a valid role for each with regard to different levels of moral concern.

[1] I addressed this question in the third lecture in this series, arguing on the basis of our internal experience that we can indeed know we are free.

[2]  I addressed this question in the fourth lecture, arguing that the power of free choice, and with it human dignity, is given us by our biological or genetic nature as human beings.