In Defence of Natural Law

Austrian Political Economy

Austrian Political Economy

I write about economics and political philosophy.

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, it is of profound importance that we have a coherent theory of legal validity. Natural law theory provides such a theory. Armed with natural law theory, the natural law theorist can subject the laws 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 explain its great utility to those who wish to formulate a sound theoretical opposition to 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. And while 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 essentially be conceived of as subsets of a natural law theory that pervades both moral and legal theory. However, I will not elaborate on natural law moral theory here; the principal aim of the present article is to explicate the essential characteristics of natural law legal theory. 

Natural law legal theory can be defined in terms of the following proposition:

In any legal system, whether a given norm is legally valid and hence whether it constitutes a law of that system, is determined by its conformity with certain moral merits.

If law is the exercise of subjecting human behaviour to the operation of rules, then the core claim of natural law theory is that there exists an objective set of ethical norms, a rationally discoverable moral order, by which the legal validity of those rules can be ascertained.

Natural law theory has a substantial intellectual pedigree. Classical natural law derives from the writings of the preeminent philosopher of the Middle Ages, Thomas Aquinas. However, classical natural law legal theory was eventually displaced by the rise of legal positivism and the utilitarian tradition represented by Jeremy Bentham and John Austin. One reason for the abandonment of natural law theory by legal philosophers was the belief that natural law and theology are inextricably intertwined. Thus, under the influence of empiricism, jurists came to reject naturalism as unscientific. This claim, however, is simply not true. As we have seen, the central claim of natural law theory is that legal validity can be determined by rational, philosophical methods. Accordingly, the statement that there is a natural law does not depend on the existence of God; the existence of God is an entirely separate question. Indeed, this was the view espoused by the great Catholic philosopher-theologian himself.

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.”

The conflation with theology is not the only myth commonly attributed to naturalism. Another glib criticism that we often hear can be summarised as follows: whom is to establish the content of the natural law? As the natural law theorist Murray Rothbard has stated, the question is not whom but what. The answer is man’s reason. Not faith, not divine revelation, not intuition — reason. 

Another common criticism raised against natural law theory is that its proponents disagree among themselves about the proper formulation of naturalist theory, and that therefore all natural law theory must be rejected. This is a particularly uncogent argument.  

Legal philosophy, like all philosophical and scientific disciplines, is inherently contentious. Philosophers and theorists disagree. 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. Granted, there are different variants of natural law theory, from the classical natural law of Aquinas to the neo-naturalism of John Finnis and from the procedural naturalism of Lon Fuller to the natural rights doctrine of John Locke. Although they are distinct in terms of the precise function that morality serves in determining the validity of legal standards, they all share one common feature: that is, they all assert that legal validity is determined in some way by moral standards. 

So far in this article, I have defined natural law legal theory as the belief that legal validity of a norm is determined, not by its source, but by its moral merits and have defended natural law legal theory against several persistent criticisms. I now turn to an important feature of naturalism, namely natural rights theory.

The great flaw inherent in classical natural law theory was that it postulated 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.” 

In the seventeenth century, the great philosopher John Locke in his seminal Second Treatise on Government, attempted to rehabilitate natural law theory by correcting its statist errors. His was one of the first attempts to formulate 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 proprietary 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 classical theory, the natural law consists of the body of rights which we deduce from the essential nature of man.

A prominent example of the application of Lockean natural rights theory is the American Declaration of Independence:

“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.” 

Moreover, natural rights theory supplied the theoretical justification for the abolitionist movement in the United States. For example, 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 too must apply the theory to the legal despotism afflicting modern society – the anarcho-tyranny of the public health police state. Its application will necessarily produce the following verdict: the lockdowns, curfews, forced closures, vaccine passports, mandatory masking, and the panoply of other restrictions on private property rights and individual freedom are gross 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.”