Natural Law
(This is inspired by an article by James Taranto called "What Went Wrong With Human Rights?" The original Wall Street Journal article is paywalled, but it isn't too hard to find the full text of the article elsewhere.)
Conservatives generally are big believers in natural law. It was a given for most of the founders, and it serves to underpin the fact that people have rights ("natural rights") that are prior to government. These rights aren't granted by government, and therefore can't be taken away from them. All the government can do is to secure the rights, or, as the case sometimes is, not secure them.
The idea of natural law is a very old one and is based on the principle that reason dictates certain rules -- for example, that one person may not harm another without cause. On the other side is "positive law," which consists of agreements made by people, such as laws passed by a legislature or a treaty agreed between nations. Most people acknowledge that there is a role for positive law, but the existence of a natural law that exists prior to it prevents (morally if not physically) people from agreeing to do bad things. If Congress passed a law allowing police departments to use torture to obtain confessions, for example, that would clearly violate natural law and would therefore be invalid.
The "clearly" here is the trick. I like the principle of a law that is higher than positive law, but natural law seems like such a slippery concept that I am very sceptical of it. There are some few, very few, things that almost everyone agrees should apply as universal rules of behaviour, but there is a vast realm consisting of activities that one person might argue are covered by natural law and another person might believe are not. If there is no consistent agreement on what a law is, there is no law but anarchy. Natural law can only be a viable concept as long as it is narrowly constrained to areas that people generally agree on. (I don't say "that all people agree on" because that is an impossible standard, but I would think that something could not qualify as a natural law if fewer than 19 people out of 20 agreed on it.)
The article cited above complains that people have tried to extend natural rights (which are a fundamental element of natural law) to broader and broader areas. All Americans know the words of the Declaration of Independence where Jefferson declares that God has imbued everyone with the right to life, liberty, and the pursuit of happiness. Franklin Roosevelt enumerated "four freedoms" that include "freedom from want" and "freedom from fear," and he later argued for a "Second Bill of Rights" that included the right to a job, a home, an education, and health care. The first two are impossibly vague, and the last four require the active participation of other people. Things like "freedom from want" and a right to an education would have been inconceivable in the pre-modern period, which suggests that they can't be universal, and therefore can't be natural rights.
Do your rights expand as society becomes wealthier? Possibly, but remember that society's ability to control you also advances (think of all the surveillance technology that we have today), so securing your basic rights to life and liberty are still very important. There are many things to be said about whether Roosevelt's freedoms and rights could qualify as natural law, but I basically just want to point out that such a plastic definition of law -- one in which fundamental changes can be introduced at any point -- makes for poor law. There is some meaning to natural law; it is not completely content-free, because we have two thousand years of history in which statesmen and philosophers have argued about it and its definition. Still, anyone can claim to discover a new principle which should be included in natural law, and this principle immediately becomes compulsory for those who accept it even over positive law, i.e. the laws actually enforced by the legislature. That means that the written law can be overturned whenever one group of people with sufficient power wants it to be.
Because of these limitations of natural law, I prefer another source for fundamental human rights: divine law. I realize that introducing religion into a legal system, even on a foundational level (i.e. not into specific legal principles or laws), is problematic. However, without some definitive source for our rights, I fear that they can be twisted and distorted beyond recognition. I don't think it's necessary to adopt a narrow concept of divine law, only to agree that people get their rights to life and liberty from a divine being. Nothing a legislator says, nothing a philosopher writes, can change these fundamental rights. You may construct a society as you will, but you may not create other rights higher than these.
Conservatives generally are big believers in natural law. It was a given for most of the founders, and it serves to underpin the fact that people have rights ("natural rights") that are prior to government. These rights aren't granted by government, and therefore can't be taken away from them. All the government can do is to secure the rights, or, as the case sometimes is, not secure them.
The idea of natural law is a very old one and is based on the principle that reason dictates certain rules -- for example, that one person may not harm another without cause. On the other side is "positive law," which consists of agreements made by people, such as laws passed by a legislature or a treaty agreed between nations. Most people acknowledge that there is a role for positive law, but the existence of a natural law that exists prior to it prevents (morally if not physically) people from agreeing to do bad things. If Congress passed a law allowing police departments to use torture to obtain confessions, for example, that would clearly violate natural law and would therefore be invalid.
The "clearly" here is the trick. I like the principle of a law that is higher than positive law, but natural law seems like such a slippery concept that I am very sceptical of it. There are some few, very few, things that almost everyone agrees should apply as universal rules of behaviour, but there is a vast realm consisting of activities that one person might argue are covered by natural law and another person might believe are not. If there is no consistent agreement on what a law is, there is no law but anarchy. Natural law can only be a viable concept as long as it is narrowly constrained to areas that people generally agree on. (I don't say "that all people agree on" because that is an impossible standard, but I would think that something could not qualify as a natural law if fewer than 19 people out of 20 agreed on it.)
The article cited above complains that people have tried to extend natural rights (which are a fundamental element of natural law) to broader and broader areas. All Americans know the words of the Declaration of Independence where Jefferson declares that God has imbued everyone with the right to life, liberty, and the pursuit of happiness. Franklin Roosevelt enumerated "four freedoms" that include "freedom from want" and "freedom from fear," and he later argued for a "Second Bill of Rights" that included the right to a job, a home, an education, and health care. The first two are impossibly vague, and the last four require the active participation of other people. Things like "freedom from want" and a right to an education would have been inconceivable in the pre-modern period, which suggests that they can't be universal, and therefore can't be natural rights.
Do your rights expand as society becomes wealthier? Possibly, but remember that society's ability to control you also advances (think of all the surveillance technology that we have today), so securing your basic rights to life and liberty are still very important. There are many things to be said about whether Roosevelt's freedoms and rights could qualify as natural law, but I basically just want to point out that such a plastic definition of law -- one in which fundamental changes can be introduced at any point -- makes for poor law. There is some meaning to natural law; it is not completely content-free, because we have two thousand years of history in which statesmen and philosophers have argued about it and its definition. Still, anyone can claim to discover a new principle which should be included in natural law, and this principle immediately becomes compulsory for those who accept it even over positive law, i.e. the laws actually enforced by the legislature. That means that the written law can be overturned whenever one group of people with sufficient power wants it to be.
Because of these limitations of natural law, I prefer another source for fundamental human rights: divine law. I realize that introducing religion into a legal system, even on a foundational level (i.e. not into specific legal principles or laws), is problematic. However, without some definitive source for our rights, I fear that they can be twisted and distorted beyond recognition. I don't think it's necessary to adopt a narrow concept of divine law, only to agree that people get their rights to life and liberty from a divine being. Nothing a legislator says, nothing a philosopher writes, can change these fundamental rights. You may construct a society as you will, but you may not create other rights higher than these.
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