Natural law.

• Author: George, Robert P.

Oliver Wendell Holmes, the legal philosopher and judge whom Richard Posner has, with admiration, dubbed "the American Nietzsche," (1) established in the minds of many people a certain image of what natural law theories are theories of, and a certain set of reasons for supposing that such theories are misguided and even ridiculous. While I have my own reasons for admiring some of Holmes's work--despite, rather than because of, the Nietzscheanism that endears him to Judge Posner--I think that everything Holmes thought and taught about natural law is wrong. I have elsewhere set forth a detailed critique of Holmes's thought, (2) which I will not repeat here. Rather, this Article offers a constructive account of what natural law theories are in fact theories of, explains why the idea of natural law and natural rights is far more plausible than people influenced by Holmes have supposed, and shows how natural law theories are similar to and different from leading competing accounts of practical reasoning and of moral judgments that provide the justificatory basis of positive law as well as standards for its critical evaluation.

Theories of natural law are reflective critical accounts of the constitutive aspects of the well-being and fulfillment of human persons and the communities they form. The propositions that pick out fundamental aspects of human flourishing are directive (that is, prescriptive) in our thinking about what to do and refrain from doing (our practical reason)--they are, or provide, more than merely instrumental reasons for action and self-restraint. When these foundational principles of practical reflection are taken together (that is, integrally), they entail norms that may exclude certain options and require other options in situations of morally significant choosing. Natural law theories, then, propose to identify principles of right action--moral principles--specifying the first and most general principle of morality, namely, that one should choose and act in ways that are compatible with a will towards integral human fulfillment. (3) Among these principles is a respect for rights people possess simply by virtue of their humanity--rights which, as a matter of justice, others are bound to respect and governments are bound not only to respect but, to the extent possible, also to protect.

Theorists of natural law understand human fulfillment--the human good--as variegated. There are many irreducible dimensions of human well-being. This is not to deny that human nature is determinate. It is to affirm that our nature, though determinate, is complex. We are animals, but rational. Our integral good includes our bodily well-being, but also our intellectual, moral, and spiritual well-being. We are individuals, but friendship and sociability are constitutive aspects of our flourishing. We form bonds with others not only for instrumental purposes, but because of our grasp of the inherent fulfillments available in joining together in a wide variety of formal and informal types of association and community. In ways that are highly relevant to moral reflection and judgment, man truly is a social animal.

By reflecting on the basic goods of human nature, especially those most immediately pertaining to social and political life, natural law theorists propose to arrive at a sound understanding of principles of justice, including those principles we call human rights. In light of what I have already said about how natural law theorists understand human nature and the human good, it should be no surprise that natural law theorists typically reject both strict individualism and collectivism.

Individualism overlooks the intrinsic value of human sociability and tends to view human beings atomistically. It reduces all forms of human association to the instrumental value they possess. To criticize this reductionism is not to deny that some forms of association are indeed purely instrumentally valuable or that virtually all forms of human association have instrumental value in addition to whatever intrinsic value they may have, but instead to remember that sociability is an intrinsic aspect of human well-being and fulfillment.

Similarly, collectivism compromises the dignity of human beings by tending to instrumentalize and subordinate their well-being to the interests of larger social units. It reduces the individual to the status of a cog in the wheel whose flourishing is merely a means rather than an end to which other things--such as government, systems of public and private law, and other institutions created by members of human communities for the sake of their common good--however noble and important (or, to use Aristotle's description, "great and god-like" (4)), are ultimately merely means.

Individualists and collectivists both have theories of justice and human rights, but they are highly unsatisfactory. They are rooted in grave misunderstandings of human nature and the human good. Neither can do justice to the concept of a human person--that is, a rational animal who is a locus of intrinsic value (and, as such, an end-in-himself who may never legitimately be treated as a mere means to others' ends), but whose well-being intrinsically includes relationships with others and membership in formal and informal communities in which he or she has, as a matter of justice, both rights and responsibilities.

I am sometimes asked whether natural law theorists suppose that rights are "hard-wired into our nature." Unfortunately, this metaphor is more likely to mislead than to illuminate. There are human rights if there are principles of practical reason directing us to act or abstain from acting in certain ways out of respect for the well-being and the dignity of persons whose legitimate interests may be affected by what we do. I certainly believe that there are such principles. They cannot be overridden by considerations of utility. (So a complete defense of any account of natural law and natural rights must include a telling critique of utilitarian and other consequentialist or aggregative accounts of moral reasoning.) (5) At a very general level, they direct us, in Kant's phrase, to treat human beings always as ends and never as means only. When we begin to specify this general norm, we identify important negative duties, such as the duty to refrain from enslaving people.

Although we need not put the matter in terms of "rights," it is perfectly reasonable, and I believe helpful, to speak of a right against being enslaved, and to speak of slavery as a violation of human rights. It is a moral right that people have--one that every community is morally obliged to protect by law--not by virtue of being members of a certain race, sex, class, or ethnic group, but simply by virtue of our humanity. (6) In that sense, it is a human right. But there are, in addition to negative duties and their corresponding rights, certain positive duties. We can articulate these too in the language of rights, though here it is especially important that we be clear about by whom and how a given right is to be honored. Some say, for example, that education or health care is a human right. It is not unreasonable to speak this way, but much more needs to be said if it is to be a meaningful statement. Who is supposed to provide education or health care to whom? Why should those persons or institutions be the providers? What place should the provision of education or health care occupy on the list of social and political priorities? Is it better for education and health care to be provided by governments under socialized systems or by private providers in markets? These questions go beyond the application of moral principles. They require technical (for example, economic) and prudential judgments, including judgments of the sort that can vary depending on contingent circumstances people face in a given society at a given point in time. There is rarely a single, uniquely correct answer. The answer to each question, moreover, can lead to further questions, and the problems can be extremely complex, far more complex than, for example, the issue of slavery, in which once a right has been identified its universality and the basic terms of its application are fairly clear. Everybody has a moral right not to be enslaved, and everybody an obligation as a matter of strict justice to refrain from enslaving others; governments have a moral obligation to respect and protect the right and, correspondingly, to enforce the obligation. (7)

The discussion thus far provides an idea of how we ought to go about identifying human rights. The argument must be made with regard to each putative right, however, and in many cases complexities arise. For example, one basic human right that almost all natural law theorists would recognize is the right of an innocent person not to be directly killed or maimed (including by torture). This is a right that is violated when someone makes the death or injury of another person the precise object of his action. It is the right that grounds the norm against targeting non-combatants, even in justified wars, and against abortion, euthanasia, the killing of hostages, and the torturing of prisoners, even for the sake of preventing disasters. When we examine these norms individually, however, complexities emerge. In the case of abortion, some argue that human beings in the embryonic or fetal stages of development do not yet qualify as persons and so do not possess human rights. Similarly, in the case of euthanasia, some argue that permanently comatose or severely retarded or demented people do not (or no longer) qualify as rights-bearers. I think that these claims are mistaken, (8) but for present purposes I will say only that people who do not share with me the conviction that human beings in early stages of development and in severely debilitated conditions are rights-bearers may nevertheless agree that whoever qualifies as a...