Natural Law and Natural RightsBy James A. Donald
Natural law and natural rights follow from the nature of man and the world. We have the right to defend ourselves and our property, because of the kind of animals that we are. True law derives from this right, not from the arbitrary power of the omnipotent state.
Natural law has objective, external existence. It follows from the ESS (evolutionary stable strategy) for the use of force that is natural for humans and similar animals. The ability to make moral judgments, the capacity to know good and evil, has immediate evolutionary benefits: just as the capacity to perceive three dimensionally tells me when I am standing on the edge of a cliff, so the capacity to know good and evil tells me if my companions are liable to cut my throat. It evolved in the same way, for the same straightforward and uncomplicated reasons, as our ability to throw rocks accurately.
Natural law is not some far away and long ago golden age myth imagined by Locke three hundred years ago, but a real and potent force in today's world, which still today forcibly constrains the lawless arrogance of government officials, as it did in Dade county very recently.
The opponents of natural rights often complain that the advocates of natural rights are not logically consistent, because we continually shift between inequivalent definitions of natural law. They gleefully manufacture long lists of “logical contradictions”. Indeed, the definitions we use are not logically equivalent, but because of the nature of man and the nature of the world, they are substantially equivalent in practice. These complaints by the opponents of natural rights are trivial hair splitting, and pointless legalistic logic chopping. It is easy to imagine in principle a world where these definitions were not equivalent. If humans were intelligent bees, rather than intelligent apes, these definitions would not be equivalent, and the concept of natural law would be trivial or meaningless, but we are what we are and the world is what it is, and these definitions, the definitions of natural law, are equivalent, not by some proof of pure reason, but by history, experience, economics, and observation.
In this paper I have used several different definitions of natural law, often without indicating which definition I was using, often without knowing or caring which definition I was using. Among the definitions that I use are:
- The medieval/legal definition: Natural law cannot be defined in the way that positive law is defined, and to attempt to do so plays into the hands of the enemies of freedom. Natural law is best defined by pointing at particular examples, as a biologist defines a species by pointing at a particular animal, a type specimen preserved in formalin. (This definition is the most widely used, and is probably the most useful definition for lawyers)
- The historical state of nature definition: Natural law is that law which corresponds to a spontaneous order in the absence of a state and which is enforced, (in the absence of better methods), by individual unorganized violence, in particular the law that historically existed (in so far as any law existed) during the dark ages among the mingled barbarians that overran the Roman Empire.
- The medieval / philosophical definition: Natural law is that law, which it is proper to uphold by unorganized individual violence, whether a state is present or absent, and for which, in the absence of orderly society, it is proper to punish violators by unorganized individual violence. Locke gives the example of Cain, in the absence of orderly society, and the example of a mugger, where the state exists, but is not present at the crime. Note Locke's important distinction between the state and society. For example trial by jury originated in places and times where there was no state power, or where the state was violently hostile to due process and the rule of law but was too weak and distant to entirely suppress it.
- The scientific/ sociobiological/ game theoretic/ evolutionary definition: Natural law is, or follows from, an ESS for the use of force: Conduct which violates natural law is conduct such that, if a man were to use individual unorganized violence to prevent such conduct, or, in the absence of orderly society, use individual unorganized violence to punish such conduct, then such violence would not indicate that the person using such violence, (violence in accord with natural law) is a danger to a reasonable man. This definition is equivalent to the definition that comes from the game theory of iterated three or more player non zero sum games, applied to evolutionary theory. The idea of law, of actions being lawful or unlawful, has the emotional significance that it does have, because this ESS for the use of force is part of our nature.
The socialists attempted to remold human nature. Their failure is further evidence that the nature of man is universal and unchanging. Man is a rational animal, a social animal, a property owning animal, and a maker of things. He is social in the way that wolves and penguins are social, not social in the way that bees are social. The kind of society that is right for bees, a totalitarian society, is not right for people. In the language of sociobiology, humans are social, but not eusocial. Natural law follows from the nature of men, from the kind of animal that we are. We have the right to life, liberty and property, the right to defend ourselves against those who would rob, enslave, or kill us, because of the kind of animal that we are.
Law derives from our right to defend ourselves and our property, not from the power of the state. If law was merely whatever the state decreed, then the concepts of the rule of law and of legitimacy could not have the meaning that they plainly do have, the idea of actions being lawful and unlawful would not have the emotional significance that it does have. As Alkibiades argued, (Xenophon) if the Athenian assembly could decree whatever law it chose, then such laws were “not law, but merely force”. The Athenian assembly promptly proceeded to prove him right by issuing decrees that were clearly unlawful, and with the passage of time its decrees became more and more lawless.
The Greeks could see that we could recognize actions as inherently lawful or unlawful, without the need of the state to tell us. (They had lived through some excellent examples of lawless states.) But how is it that we know? They came out with an astonishingly modern answer, a line of reasoning that we would now call sociobiological.
Aristotle and others argued that each kind of animal has a mental nature that is appropriate to its physical nature. All animals know or can discover what they need to do in order to lead the life that they are physically fitted to live. Thus humans are naturally capable of knowing how to live together and do business with each other without killing each other. Humans are capable of knowing natural law because, in a state of nature, they need to be capable of knowing it.
This theory was demonstrated rather successfully in the “Wild West”, which history shows was not nearly as wild as many modern cities with strict gun control. Beyond the reach of state power, property rights existed, businesses functioned. (Kopel, 323 -373)
Modern sociobiology uses the phrase “social animal” to mean what Aristotle meant by “political animal” and what Thomas meant by “political and social animal”. In modern terminology, ants and bees are “eusocial” which means “truly social”. Humans, Apes, and wolves are “social”.
The problem of “how do we know natural law” is no different from the other problems of perception. The arguments used by those that seek to prove that we cannot know natural law, therefore natural law does not exist, are precisely the same as the arguments that we cannot know anything, therefore nothing exists, and many notable philosophers, such as Berkeley and Bertrand Russell, who started out arguing that natural law does not exist ended up concluding exactly that - that nothing exists.
Philosophers usually try to reason from reason alone, as is done in mathematics, though it was long ago proven that this cannot be done, except in mathematics, and perhaps not even there.
To draw conclusions about the world one must look both without and within. Like the chicken and the egg, observation requires theory and observation leads to theory, theory requires observation and theory leads to observation. This is the core of the scientific method, in so far as the scientific method can be expressed in words.
Natural law derives from the nature of man and the world, just as physical law derives from the nature of space, time, and matter.
As a result most people who are not philosophers or lawyers accept natural law as the ultimate basis of all law and ethics, a view expressed most forcibly in recent times at the Nuremberg trials. Philosophers, because they often refuse to look at external facts, are unable to draw any conclusions, and therefore usually come to the false conclusion that one cannot reach objectively true conclusions about matters of morality and law, mistaking self imposed ignorance for knowledge.
Although many philosophers like to pretend that Newton created the law of gravity, that Einstein created general relativity, this is obviously foolish. Universal gravitation was discovered, not invented. It was discovered in the same way a deer might suddenly recognize a tiger partially concealed by bushes and the accidental play of sunlight. The deer would not be able to explain in a rigorous fashion, starting from the laws of optics and the probabilities of physical forms, how it rigorously deduced the existence of the tiger from the two dimensional projections on its retina, nonetheless the tiger was there, outside the deer, in the objective external world whether or not the deer correctly interpreted what it saw. The tiger was a discovery, not a creation, even though neither we nor the deer could prove its existence by formal logic. And proof of its concrete external existence is the fact that if the deer failed to recognize the tiger, it would soon be eaten.
A determined philosopher could obstinately argue that the perception of the tiger was merely an interpretation of light and shadow (which is true), that there is no unique three dimensional interpretation of a two dimensional image (which is also true), and that everyone is entitled to their own private and personal three dimensional interpretation (which is false), and would no doubt continue to argue this until also eaten. Something very similar to this happened to a number of philosophers in Cambodia a few years ago.