In Defence of Natural Law | Myles Watts
As governments around the world advance on the road to serfdom by placing their citizens under intermittent house arrest and infringing upon private property rights and personal liberties to an unprecedented degree in peacetime all in the name of public health, it is of profound importance that we have a coherent theory of legal validity. Natural law theory provides such a theory. The natural law theorist can subject the edicts of the State to robust criticism on the grounds of objectively derived moral principles and conclude that where there are discrepancies between actual law and natural justice, then those edicts are not legally valid — they are not law at all. In this article, I want to sketch an outline of what exactly natural law theory is and also explain its great intellectual utility to opponents of the legal tyranny that the coronavirus epidemic has engendered.
The term “natural law” is somewhat nebulous. It refers to a strand of moral theory, as well as a strand of legal theory. Although they are closely related, the principal claims of the two kinds of theory are logically and structurally independent. Notwithstanding their independence, the two theories intersect and can be conceived of as subsets of a natural law theory that pervades moral and legal theory. However, I will not elaborate on natural law moral theory here; the aim of the article is to explicate the essential characteristics of natural law legal theory.
According to natural law theory, the legal validity of the positive law (man-made law) is determined by its conformity with certain moral principles, that is by the moral merit of the positive law. The eminent legal philosopher Lon Fuller tentatively defined law as the enterprise of subjecting human conduct to the governance of rules. The core claim of natural law theory, then, is that there exists an objective set of ethical norms, a moral ordering, discoverable by man’s reason, and by which the legitimacy of those legal rules can be assessed. Put another way, the commands emanating from the will of the sovereign authority, whether that authority be monarchical, dictatorial, or democratic, do not constitute valid law unless they are compatible with certain rationally derived just principles.
Natural law theory was eventually displaced by legal positivism. One reason for the abandonment of natural law theory by legal philosophers was the widespread notion that natural law and theology are inextricably intertwined. Natural law theory was perceived as unscientific. However, this is simply not true. The naturalist claim is that natural law can be discovered by rational, philosophical methods independent of theology. The statement that there is a natural law does not, therefore, rest on the existence of God. That there is a natural ordering of norms open to discovery by man’s reason was the precise view of Aquinas.
As the modern Thomist philosopher Thomas E. Davitt wrote:
“If the word “natural” means anything at all, it refers to the nature of a man, and when used with “law,” “natural” must refer to an ordering that is manifested in the inclinations of a man’s nature and to nothing else. Hence, taken in itself, there is nothing religious or theological in the “Natural Law” of Aquinas.”
Thus, in the Thomistic tradition, natural law theory is not predicated on the presupposition that God exists.
One common, glib criticism proffered by opponents of natural law can be summarised as follows: who is to establish the content of the natural law? As Rothbard has stated, the answer is not whom but what: man’s reason. Not faith, not divine revelation, not intuition — reason.
Another common criticism is that natural law theorists disagree among themselves about the proper formulation of natural law theory, and that therefore all forms and interpretations of natural law theory must be rejected. Legal philosophy, like all philosophical and scientific disciplines, is inherently contentious. Economics, for instance, is infamous for its controversies, and yet few people suggest discarding all of economics simply because the Austrians and the Keynesians disagree on the causes of the business cycle. It is correct that there are several different kinds of natural law legal theories, distinct in terms of the precise function morality serves in determining the validity of legal standards, but they all share one common feature: that is, they all assert that legal validity is determined in some way by moral standards.
The great flaw inherent in traditional forms of natural law theory – from Aristotle to Aquinas and his followers – is, according to Rothbard, that they constructed a profoundly statist rather than individualist natural law ethic. As Rothbard wrote, “the “classical” natural law theory placed the locus of the good and of virtuous action in the State, with individuals strictly subordinated to State action. Thus, from Aristotle’s correct dictum that man is a “social animal,” that his nature is best fitted for social cooperation, the classicists leaped illegitimately to a virtual identification of “society” and “the State,” and thence to the State as the major locus of virtuous action.”
John Locke’s Second Treatise on Government, his magnum opus, was one of the first attempts to correct the statist errors of classical naturalism and to elucidate an individualist natural law theory. Locke writes:
“Every man has a property in his own person. This nobody has any right to but himself. The labour of his body and the work of his hands, we may say, are properly his. Whatsoever then he removed out the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature placed it in, it hath by this labour something annexed to it that excludes the common right of other men. For this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to…”
This passage conveys the basic axiom of Lockean natural rights theory, namely that every man is a self-owner, exercising absolute jurisdiction over his own body. The consequence of which is that no one else may justly invade, or aggress against, another’s person. It follows, then, from the right to self-ownership that each person justly owns whatever formerly unowned resources he appropriates, or to use the Lockean phrase “mixes his labour with.” It is from these two axioms that the rights of contractual exchange and bequest are derived, and the entire market structure of property rights titles is justified.
Thus, in the Lockean theory, which we have seen is an improvement on the Thomistic theory, the natural law consists of the body of rights which we deduce from the essential nature of man.
Lockean natural law theory has an esteemed pedigree. The American Declaration of Independence was an especially radical expression of Lockean natural rights theory:
“We hold these truths to be self-evident, that all men are created equal, they are endowed by the Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.”
Another example of the radical use of natural rights is its application to the question of slavery. The prose of prominent abolitionist William Lloyd Garrison is fraught with allusions to Lockean natural rights theory:
“Every man has a right to his own body — to the products of his own labour — to the protection of law. That all these laws which are now in force, admitting the right of slavery, therefore, before God, utterly null and void…and therefore they ought instantly to be abrogated.
Just as the abolitionists applied natural law theory to the legal despotism of their age, slavery, we must apply the theory to the legal despotism afflicting modern society – State measures ostensibly against the coronavirus. Its application will necessarily produce the following verdict: the lockdowns, curfews, forced closures, vaccine passports, mandatory masking, and the multitude of other restrictions on private property rights and individual freedom are impermissible violations of natural rights, are incompatible with the natural law and natural justice, and, therefore, lack legal validity. They do not, in short, possess the authoritative weight of “law.”