“That some persons are free and others slaves by nature … and that for these slavery is both advantageous and just, is evident.” So said Aristotle, one of the first advocates of the “natural law” approach to ethics. (See his Politics, Book I, ch. 5.)
The State Department has just established a Commission on Unalienable Rights, whose mandate is to provide advice on such questions as: “What is a human right?” and “How do we know or how do we determine whether the claim that this or that is a human right is true?” In the abstract, there is nothing objectionable in the formation of such a commission. Indeed, it is laudable for the State Department to call attention to the importance of human rights. Unfortunately, the official announcement of the creation of the commission in the Federal Register states that the purpose of the commission is to “provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights.” In other words, the commission takes as its starting point the premise that natural law is the foundation for human rights – and that anyone engaged in “discourse [that] has departed from” natural law theory is on the wrong track.
This is entirely the wrong approach. Before the commission has even met, it has prejudged the basis on which we can argue for human rights. And the theory which will direct its work is deeply flawed.
Natural law theory has had a number of different proponents throughout history, and the exact contours of the theory vary from proponent to proponent, but the core of the theory is comprised of these three elements: there are some things that are intrinsically good and intrinsically evil because of their relationship to human nature; the human intellect, through reason correctly applied, can discern these fundamental goods and evils; actions are right or wrong depending on whether they further or oppose these fundamental goods and evils. From this summary, one can see that the cornerstone of this theory is its understanding of human nature.
Therein is a key flaw. What one considers right and wrong is going to reflect one’s view of human nature, and, as we all know, there is no unanimity of opinion regarding our “nature.” As indicated above, Aristotle maintained some are by nature slaves. Aquinas held that the acts that are intrinsically wrong include blasphemy and sodomy. The Catholic Church holds that birth control is intrinsically wrong because it frustrates the natural act of procreation. Recently, natural law theory has been invoked by opponents of abortion and same-sex marriage, who argue that such acts contravene human nature. All these positions are disputed, to put it mildly.
Part of the allure of natural law theory is that it gives a patina of objectivity to morality. Our nature is (supposedly) a matter of fact, so any person who is deploying their reasoning powers correctly can discern that action X is wrong because it’s contrary to our nature. But this objectivity is illusory because of the lack of consensus about what is “natural” for humans. Furthermore, even if there were a universally shared understanding of human nature, one would still need to make the argument that what is natural is what is good. Fact doesn’t imply value. If anything is natural for humans, one would think sexual desire is, but that does not imply that it’s morally wrong to commit oneself to a lifetime of celibacy (weird, unnecessary, and self-stultifying perhaps, but not morally wrong).
Stripped of its window dressing, an argument on the basis of natural law is just another way of saying “this is my view of what’s good and bad to do” – except that the person making this claim is likely to be dogmatic because, you see, they know THE TRUTH.
What of the argument, implied in the State Department’s Federal Register notice, that the Founders believed in natural law and natural rights? Well, that is true for some of the Founders. To put their arguments in context, however, it’s important to bear in mind they had to justify a rebellion against a monarchy that was supported by the prevailing political theory of the time, namely the divine right of monarchs to rule – which theory was based on natural law. The primary work in the English-speaking world espousing the divine right of kings was Filmer’s Patriarcha, or The Natural Power of Kings. In countering Filmer’s view, John Locke argued that the natural state of humans was liberty, not submission to a monarch. Some Founders, heavily influenced by Locke, borrowed his arguments to make their case within the political vocabulary of the time. But that some of the Founders made the case for a republic within the context of Locke’s understanding of natural law doesn’t entail that today we must accept natural law theory or that American democracy and respect for human rights are in danger if we do not.
How do we argue for human rights? Roughly, through an approach something like this: Think of the purposes of morality (fostering trust, facilitating cooperation in achieving shared and complementary goals, providing security, ameliorating harmful conditions, etc.) and ask what rules and rights most everyone in the moral community would accept if such rules and rights applied to everyone. (For more detail, one can consult John Rawls, Tim Scanlon and a host of other philosophers and thinkers.) Does such an approach ensure unanimity, an end to any disagreement? Of course not. Does it imply that humans are the source of morality? Sure, because we are.
Throughout much of our history, many have tried to impose on others their view of right and wrong by claiming their view is backed by God or natural law. It’s time to rid ourselves of this pernicious fantasy. With respect to morality, there is no special authority. We’re all in this together.