Natural Law and Natural Rights II

Natural Law and Natural Rights

By James A. Donald
jamesd@echeque.com

History

Natural law was discovered (not invented, not created, discovered) by the stoic philosophers. This was the answer (not their answer, the answer) to the logical problems raised by Socrates. The doctrines of the stoics were demonstrated successfully by experiment, but political circumstances (the Alexandrine empire and then the Roman empire) prevented a clear and decisive experiment.
Frequently politicians or revolutionaries use natural law theory, or some competing theory to create institutions. Such cases provide a powerful and direct test of theories. Advances in our understanding of natural law have come primarily from such experiments, and from the very common experience of the breakdown or forcible destruction of state imposed order.
The bloody and unsuccessful experiment of Socrates disciple, Critias, showed that the rule of law, not men, was correct. This renewed the question “What law, who's law.” Not all laws are arbitrary, there must be laws universally applicable, because of the universal nature of man. Laws governing human affairs, or at least some of those laws, must derive from some objective and external reality, not subject to the arbitrary will of the ruler or the people. If this was not so, then it would be impossible to make an unlawful law. Any law duly decreed by a legitimate ruling body, such as the Athenian assembly, would necessarily be lawful, yet history shows that this was obviously false. Some laws are clearly unlawful. Proof by contradiction.
“There is in fact a true law - namely, right reason - which is in accordance with nature, applies to all men, and is unchangeable and eternal.” (Cicero) Cicero successfully argued before a Roman court that one of the laws of Rome was unlawful, being contrary to natural law, creating a legal precedent that held throughout the western world for two thousand years. Although it was frequently violated, it was rarely openly rejected in the West until the twentieth century.
The arguments and reasoning of the Stoics were generally accepted, but not thoroughly put into practice and therefore not vigorously tested, for over a thousand years.
A philosopher can choose to disbelieve in Newton's laws, but this will not enable him to fly. He can disbelieve in natural law, but political and social institutions built on false law will fail, just as a bridge built on false physical law will fall, just as the deer that does not notice the tiger gets eaten, just as the Marxist philosophers who voluntarily returned to Cambodia to aid the revolution were for the most part murdered or tortured to death by the revolutionaries. The most extreme failure in recent times was the attempt of the Cambodian government to increase the rice harvest by central direction of irrigation, also known as “the Cambodian Autogenocide”.
During the dark ages, the knowledge of natural law, like much other ancient knowledge, was kept alive by the church. This knowledge proved very useful. Hordes of armed refugees wandered this way and that, thus tribal and customary law was often inadequate for resolving disputes. Sometimes a king would rise up and impose his peoples customary law on everyone around, but such kings came and went, and their laws and institutions faded swiftly.
In those days the church persistently and rightly claimed that natural law was above customary law, and that customary law was above tribal law and the law of the kings (fiat law). Natural law was taught in the great Universities of Oxford, Salamanca, Prague, and Krakow, and in many other places.
In England the theory of natural law led to the Magna Carta, the Glorious Revolution, the declaration of right, and the English Enlightenment. It was the basis for the US revolution and the US bill of rights.
The next major advance in our knowledge of natural law after the dark ages came with the Dutch republic. The success of this experiment is almost as illuminating as the failure of Critias. The failure of Critias showed that the rule of law, not men was correct. The success of the Dutch Republic showed that the medieval understanding of natural law was sufficiently accurate.
The long revolution by the Dutch against Spain obliterated or gravely weakened those people and institutions responsible for enforcing customary law and fiat law, and little was done to replace these institutions for two generations. But it is everyone's right and duty to forcibly uphold natural law, thus in order to get a law enforced, or to get away with enforcing it oneself, ones lawyer had to argue natural law, rather than customary law. Thus the Netherlands came to be governed predominantly by natural law, rather than by men or by customary law.
Society ran itself smoothly. This showed that natural law was complete and logically consistent. Of course since natural law is external and objective it has to be complete and consistent, but our understanding of natural law is necessarily incomplete and imperfect, so our understanding of it might have been dangerously incomplete, inconsistent, or plain wrong. The experience of the Dutch strongly supports the belief that our understanding of natural law, the medieval theory of natural law as interpreted by medieval lawyers, is fairly close to the truth. If natural law was just something that somebody made up out of their heads, it would not have worked. Internal inconsistencies would have lead to conflicts that could not be resolved within natural law, requiring the man on horseback to apply fiat law or customary law to resolve them. Incompleteness would have lead to unacceptable lawless behavior. None of this happened, powerful evidence that natural law is not just something invented, but something external and objective that we are able to perceive, like the tiger, like the law of gravity.
For a long time people advocated natural law merely because they thought that if people pretended to believe it, it would lead to less bloodshed and other desirable consequences, and no great effort had been applied to the assumptions and methods of natural law theory. Now people started to advocate natural law because they had convincing evidence that our understanding of it was true. Thus came the English enlightenment, John Locke and Adam Smith.
John Locke made a major advance to our understanding of natural law, by emphasizing the nature of man as a maker of things, and a property owning animal. This leads to a more extensive concept of natural rights than the previous discussions of natural law. From the right to self defense comes the right to the rule of law, but from the right to property comes a multitude of like rights, such as the right to privacy “An Englishman's home is his castle.” Further, Locke repeatedly, in ringing words, reminded us that a ruler is legitimate so far as he upholds the law.
A ruler that violates natural law is illegitimate. He has no right to be obeyed, his commands are mere force and coercion. Rulers who act lawlessly, whose laws are unlawful, are mere criminals, and should be dealt with in accordance with natural law, as applied in a state of nature, in other words they and their servants should be killed as the opportunity presents, like the dangerous animals that they are, the common enemies of all mankind.
John Locke's writings were a call to arms, an assertion of the right and duty to forcibly and violently remove illegitimate rulers and their servants.
This provided the moral and legal basis for many great revolutions, and many governments. After the American revolution the North Americans were governed more or less in accordance with natural law for one hundred and thirty years.
John Locke was writing for an audience that mostly understood what natural law was, even those who disputed the existence and force of natural law knew what he was talking about, and they made valid and relevant criticisms. In the nineteenth century people started to forget what natural law was, and today he is often criticized on grounds that are irrelevant, foolish, and absurd.
Today many people imagine that natural law is a code of words, like the code of Hammurabi, or the twelve tables, written down somewhere, on the wall of an ancient Greek temple, or some medieval vellum manuscript, perhaps revealed by God or some divinely illuminated prophet. Then when they find that no such words exist, no such prophets are recorded, they say there is no such thing as natural law, because no one wrote down what it was.
Natural law is a method, not a code. One does not reason from words but from facts. The nearest thing to a written code of natural law is the vast body of natural law precedent. But a precedent only applies to similar cases, and is thus rooted in the particular time and circumstances of the particular case, whereas natural law is universal, applying to all free men at all times and all places.
In the middle ages the Medieval scholars defined natural law in a deliberately circular fashion. There was “Ius Divinum”, “Ius Commune”, and “Ius Naturale”. “Ius Divinum” means, more or less, the divinely revealed will of God. “Ius Commune” means, more or less, the long established customary law of nations, peoples, and states that are generally regarded as reasonably civilized.
Note that “Ius Naturale” does not derive from the customs of civilized peoples. Instead it provides with a ground on which to judge which peoples are civilized. It does not derive from the divinely revealed will of God. It provides us with a ground to judge the plausibility of claims of divine revelation concerning the will of God.
“Ius Naturale” is the law applicable to men in a state of nature. It precedes religions and kings both in time and in authority. “Ius Naturale” does not derive directly from the will of God. As Hugo Grotius pointed out in the early seventeenth century, even if there was no God, or if God was unreasonable or evil, natural law would still have moral force, and men would still spontaneously back it with physical force. God could not create men as they are, and at the same time make natural law other than what it is. A God that claimed to do that would be a mere tyrant, unworthy of worship.
Natural law derives from the method and approach then called natural philosophy. For thousands of years advocates of natural law would start with what is now the standard rationale for sociobiology, by pointing out how the wolf and the deer each have natures and inclinations appropriate for the kind of life they needed to live and to take proper care of their offspring. Today, in the language used by modern sociobiologists natural law is the ESS (Evolutionary Stable Strategy) for the use of force, employed by our species and by like species, applied by us by means of reason to problems and circumstances that confront us today. In older language, it comes from the tree of knowledge, which made us as gods.
Although natural law is an integral part of Christianity, at least of the Christianity of Thomas and Locke, Christianity is not an integral part of natural law. If you went through Locke's second treatise of Civil Government and substituted the phrase “chance and necessity” for the phrases “divine providence” and “judgment of heaven”, there would not be any great change in the meaning or force of his argument.
Many of the key themes of modern sociobiology first appeared in Locke's treatises on government, for example Second Treatise §79-81, First Treatise §56-57. Some parts of the second treatise are often consciously or unconsciously echoed on Public Broadcasting System nature and science videos whenever they discuss the family lives and social interactions of non human animals.
Locke and the other Christian advocates of natural law believe that natural law is in accordance with the will of God not because they claim a divine revelation concerning the will of God, but because they believe that the nature of man and the world reflects the will of God.
The stoics and Grotius believed in a universe governed by chance and necessity, with a God that created things, but refrained from subsequent interference. Thomas and Locke believed in a universe that reflects the continuing will of God. It makes little difference. The stoics and Saint Thomas Aquinas started from the same facts and came to the same conclusions from those facts. They merely used slightly different language to describe their reasoning.
Throughout most of our evolution, men have been in a state of nature, that is to say. without government, hierarchically organized religion, or an orderly and widely accepted means of resolving disputes. For the past four or five million years the capacity to discern evil lurking in the hearts of men has been an even more crucial survival capability than the capacity to discern tigers lurking in shadows.
The primary purpose of this capability was to guide us in who we should associate with, (so as to avoid having our throats cut in our sleep), who we should make alliance with (to avoid betrayal), who we should trade with, (to avoid being cheated), who we should avoid, who we should drive away, and who, to make ourselves safe, we should kill.
It would frequently happen that one man would, for some reason good or bad, use violence against another. When this happened those knowing of this event needed to decide whether it indicated that the person using force was brave and honorable, hence a potentially valuable ally, or foolish and eager for trouble, hence someone to be avoided, or a dangerous criminal, hence someone to be driven out or eliminated at the first safe opportunity to do so. Such decisions had to be made from time to time, and making them wrongly could be fatal, and often was fatal.
A secondary purpose of this capability was to guide us in our own conduct, to so conduct ourselves that others would be willing to associate with us, ally with us, do deals with us, and would refrain from driving us away or killing us.
Not all things that are evil, or contrary to nature, are violations of natural law. Violations of natural law are those evils that may rightly be opposed by force, by individual unorganized violence.
The Medievals took for granted that natural law was morally and legally binding on freeholder, Emperor and Pope alike, and during the dark ages and for a little time after, men often attempted to enforce natural law against the Holy Roman Emperor, and these attempts were sometimes successful. On one occasion the Holy Roman Emperor was briefly imprisoned for debt by an ordinary butcher, locked up with the beef and mutton, and held by the butcher until the bill was paid, and this action was mostly accepted as lawful and proper, though such actions were safer against some emperors than others.
The definition of natural law that I have just given is similar to that used in the middle ages, but this definition is not obviously scientific. It fails to show that natural law is legitimately part of science. To show that the study of natural law is part of science - part of sociobiology, it is necessary to restate the definition in the same value free, game theoretic, terminology that Reeve & Nonacs would use to describe the social contract in wasps.
Here follows a definition of natural law in properly scientific terms, value free terms:
An act is a violation of natural law if, were a man to commit such an act in a state of nature, (that is to say, in the absence of an orderly and widely accepted method of resolving disputes), a second man, knowing the facts and being a reasonable man, would reasonably conclude that the first man constituted a threat or danger to the second man, his family, or his property, and if a third man, knowing the facts and being a reasonable man, were to observe the second man getting rid of the first man, the third man would not reasonably conclude that the second man constituted a threat or danger to third man, his family, or his property.
Note that in order to define natural law in a value neutral fashion we require three people, not two.
This is well illustrated in the recent events in Dade county, Florida (September - October 1992, three months before I wrote this), where property holders gave other property holders guns in the well founded expectation that those guns would be used to prevent, rather than to facilitate, unlawful transfers of property. To define natural law in Dade county you would need one looter or one corrupt official, and two home owners. In value free language, one Dade county home owner and one corrupt official is a property dispute. Two Dade county home owners and one corrupt official is natural law in action. Two Dade county home owners with nobody bothering them is spontaneous order, and of course part of the definition of spontaneous order is that it is a stable order that arises spontaneously from the action of natural law.
The scientific definition is equivalent to the medieval definition because of the nature of man and the nature of the world. The two definitions are equivalent for our kind of animal, because if someone uses violence properly, and reasonably, he does not show himself to be dangerous to a reasonable man, but if someone uses violence improperly, he shows himself to be a danger. This is obvious by direct intuition, and there is also overwhelming historical evidence for this fact. For example compare the American revolution with the Russian or Cambodian revolution. The surviving American revolutionaries prospered. The communist revolutionaries were soon executed by their new masters. Almost everyone who played a significant role in the 1917 revolution was executed or died from brutal mistreatment.
The varying definitions of natural law are clearly consistent on the issue of individual violence. On the topic of collective violence, the questions of what are just grounds for making war, how may a just war be conducted, and what may a just victor do with an unjust loser, the various definitions of natural law often seem cloudy and contradictory. There are two reasons for this apparent cloudiness. One is that there is no natural definition of a collective entity, so it all depends on what gives the collective entity its substance and cohesion, how the individual is a participant in the acts of the collective entity. The Nuremberg trials contain extensive discussions of this point. The other reason is that there is a large difference between what the victor should do and what the victor may lawfully do. The victor should be magnanimous and lenient, as at Nuremberg, but may lawfully be strict and harsh. On the questions that most commonly arise in practice, all the different definitions of natural law give clear, consistent and straightforward answers: The usual reason for war is that one group defines another group as enemy, and then uses organized collective violence to seize the property of the members of that group, and to enslave or kill them. In such case it is open season on the aggressor because they constitute a clear danger to their neighbors. In a just war it lawful to napalm bomb enemy civilians in a defended city, though not to intentionally target enemy civilians, unlawful to bombard an open city, and unlawful to massacre prisoners under any circumstances, though individual prisoners may be executed for broad reasons. It is sometimes lawful to refuse to take prisoners, depending on the circumstances. The contradictions usually evaporate when we ask the questions that we are actually interested in, about the kind of situations that actually occur in practice. Arguments about whether a given military action was in accordance with the laws of war usually involve appeal to the facts, and arguments about the intentions and capabilities of the combatants, rather than appeal to differing concepts of the laws of war, indicating that our uncertainty concerning the laws of war is less than other sources of uncertainty.
When we apply the value free theory of iterated non zero sum two player games to the value free theory of evolution we get such value loaded concepts as trust, honor, and vengeance (Barkow, Cosmides and Tooby). In the same way, when we apply the value free theory of iterated three player non zero sum games we get such value loaded concepts as natural law.
Natural law theory is a valid part of science, because any n person natural law statement about values can be expressed as an explicitly scientific, value free statement about rational self interest, evolution, and n + 1 player game theory. It is also a valid part of the study of law and economics
In many fields of academia, straying in the direction of consideration natural law is apt to make your grants dry up, perhaps natural law theory tends to delegitimize most grant giving authorities.
Those academics who study sociobiology have been a little braver, perhaps because those who work in the hard sciences are sometimes better at looking after their own, or, as in the case of E.O. Wilson, they simply did not realize they were poking a hornets nest. Also hard science people sometimes seem to be tougher, more obstinate, stubborn, and intransigent than fuzzies.