Intellectual Origins of Natural Rights

0:00You know, having to talk right after Ralph Rehka, who's such a great speaker, I'm a little bit nervous, you know, because I'm not a great speaker. But I'm going to be talking to you about natural rights, and I'll make the case for natural law and natural rights in a very subtle manner, supposedly. I'll try to make this, you know, I'll just, I won't push it, I won't be a fanatic at all. I'll just say a few things, and at the end of at least four hours, because I'm going to talk today about the natural law tradition in antiquity in the Middle Ages. Then I'll be talking about the birth of economic science, and since I'm not an economist, I'll be talking again about natural rights, that tradition. So the third lecture will be on natural rights, and supposedly I'll be talking about natural rights.

0:50In the end, I'll be talking about the anti-Federalist tradition until the Civil War, which could be dependent on natural rights ground, and I'll do exactly that. So, you know, just don't jump at me, because we'll have time to discuss all the issues about natural rights and natural law. And I do know that a lot of libertarians do not agree with this view, and they, like my friend Don Livingstone, I mean, he's a great scholar, I admire him very much, I'm not going to try to convince him this time, but eventually, you know, in due time, I will. And I just do not believe that libertarianism can be defended only on natural rights ground. I just think it's a better way to defend it. It's different. It's very forceful.

1:36So, actually, when we talk about natural law, we talk about one of the oldest and the most discussed and the most discussed and most frequently used concepts of political theory. I mean, it went into oblivion for about a century or so, but now it's in vogue because of a guy named Robert Nozick, oddly enough. And I will entertain you, as I said, for about three or four hours on this topic, so dwelling on this concept and its history. So we better start with some very broad distinctions and generalizations, very general things. And if you do not understand anything, it means I'm mispronouncing it, you know, because it's very simple.

2:22It's got to be very simple. If you do understand everything and just congratulate yourself, it doesn't mean I'm being just too basic. I mean, it means you know a lot. So, like, in general law, natural law concepts have assumed two forms. Now, one is the rules which are statements of the basic laws of the universe, or of man's constitution, or of social and political relationships. This is a very general meaning. And the second one, the most interesting one actually, is the principles of what is right. And the principles which are to be established if justice is to prevail. So it's very close and linked to the theory of justice, not Joan Roll's one, I mean, a different one, just...

3:08So in other words, natural law carries two meanings. It is a term indicating either the scientific laws of man and his environment, or the laws which should exist. The two meanings are usually very much related, as most thinkers derived from the observation of nature of man, certain laws that should be established. Once again, if justice is to prevail. And the doctrine of natural law was a major theme in the Western political thought from the 5th century before Christ until at least the end of the 18th century. and then I guess there's a new interest right now going on in the past 30 years but there was a great decline at the beginning of the 19th century so as a moral philosophy it played a central role in three important historical events the extension of the influence of the Roman civilization and law over Western Europe that was a key thing and then the fusion of Christianity and classical culture during the Middle Ages and the emergence of classical liberalism

4:21Naturalism from the 16th to the 18th century, which was definitely based on natural rights theory. So every great moment in the history of the West was marked by a peculiar interpretation of natural law. And actually it was the irrelevance of the natural law doctrine in the 20th century that must be considered at least one of the causes of the success of totalitarianism, hard and soft versions of it. When I say hard totalitarianism, it means it attacks the lives and properties of the people. It's soft when it attacks only the properties. So we're living under what I would call soft totalitarianism. And the criminal utopians and social planners of the past century had a great advantage in finding individuals that believed that they had no rights based on their very nature of human beings.

5:14It was a great advantage for them, at least in my point of view. And generally, the theory of natural law, as the words immediately suggest, has been used to provide a universal, rational standard to determine the nature and the limits of political obligation, and the evaluation of competing forms of government also, and also the relation of law and politics to morals. This is supposed to be very unscientific. I mean, if you want something scientific, you've got to sever everything from morals. Actually, natural law is not supposed to be scientific, because it's very closely related to morals. So the real quest that is behind almost every natural law doctrine is the quest for political order, firmly rooted in reason, in our moral understanding of it, or in the universe, in man, as opposed to a political order based on the will of the strongest of the best organized, which is usually what they call themselves the state.

6:21So that's really the quest of many natural law doctrine, you know, the quest for something objectively rooted somewhere else from the will of man. So in this sense, the very opposite of natural law is the current view that laws are what the legislatures, as representative of the people, of course, want them to be. So law is whatever the sovereign says it is. So in most doctrines of natural law, we can find the belief that there exists, in nature and or human nature, a rational order which can provide intelligible value statements independently of human will, that are universal in application, unchangeable in their ultimate content, and morally mandatory on mankind, I'm sorry, humankind.

7:12With these generalizations, we can begin our discussion of natural law and history. So a good, very good, a very good starting point is Sophocles' Antigone. Antigone Now, Antigone, as most of you probably remember, was a woman whose brother Polonisus had attacked the city of thieves, and he was formerly a citizen of thieves, so that was treason, and had been killed in battle, and he lost, so they're victors, you know. For his treason, the tyrant Creon ordered that his body left to rot outside the gates, Unburied and unmoored, that was, you know, the law. And Antigone defied the tyrant's decree and buried her brother.

7:59And so she was brought before Creon, and she declared that a law made by mere men could not override the God's unwritten and unfailing laws, which had existed longer than anyone could say. And the passage is great because, let me read it to you, because it's really like the first Appearance of Clear Doctrine of Natural Law So, Creon is trying to be kind of polite at the beginning, and he says, Now tell me, Antigonus, straight yes or no? Did you know an addict had forbidden this? And she says, of course I knew. Was it not publicly proclaimed? So you chose flagrantry to disobey my law? Naturally, since God never promulgated such a law.

8:45Nor will you find that justice, mistress of the world below, publishes such laws to humankind. I never thought your mortal edicts had such force, they nullified the laws of heaven, which unwritten, not proclaimed, can boast the currency that everlasting is valid, in origin beyond the birth of man. This is like, I'm sorry I read it to you in English, I could have read it in Greek, but it's very interesting because it's like the first instance of a natural law, right doctrine, and it doesn't come from a philosopher, it comes from a person who used to write plays that enjoyed, I mean the people really enjoyed, so however it was up to the greatest philosophers of all time, the greatest philosopher of all times actually to render natural law The Central Theme of Political Philosophy And of course I'm talking about Aristotle And so many books, you know, and conflicting interpretations of Aristotle came out that I'll give you a very simple one And it's very simple because it's mine

9:58And it's, but it's correct So don't, don't, don't bother You know, as Wittgenstein said, Simplex sigillum veri Simplicity means it's true, you know So when you see something too, too much complex Now, he wrote The Politics, or politics, in 340-330, before crisis had ever been dated, and this is pretty much uncontroversial, and the focus of his political thought is actually the polis, what we now call the city-state, but it should be called the free state, or the political community, as there was no such thing as a free state. through the political community as there was no state, there was no sovereignty, there was nothing like that in ancient times, not even in medieval times.

10:47I mean, sometimes they used the state as a genetic concept to convey certain ideas, but the state is only modern. So, politics is the science of polis, of the polis of this, we should call it the free state, the free city, of this free city. So the two doctrines that Aristotle defends are that human beings are political animals, zon politikon, and that polis exists by nature, so the natural condition is for men and for political animals to be in the polis, which plural is polis. Now, these claims presuppose that the polis is a community in which individuals must cooperate in order to attain self-sufficiency and thereby lead what he called the good life, which was a very important concept for all Greek thinkers.

11:49This is a very classic theme, you know, the good life or old ancient thought. The idea of leading a good life and no political thinker ever thought this could be attained outside of the policy, of the polis, so the political community was really like very important for the people. It was to be outcasted from the political community was an amount to be dead, it was pretty much the same thing for a lot of people. So according to Aristotle, politics is intended to provide guidance to politicians and lawgivers, as it is a practical science, it's not a theoretical science. And again, it's a science of the polis. And the politicians should bring the polis into a natural condition or maintain it in such a condition.

12:36So the important thing is that the polis must be in a natural condition, and we'll see in a minute what it means. And he calls this, what the politicians should do with the polis, the polis of our prayers. The polis of our prayers is the polis that is in a natural condition. And a polis is in a natural condition when it aims at justice, a justice on one side and the common advantage on the other. So the basic problem of politics is actually a dispute over who in the polis has a just claim or right to be a citizen, and over what rights the citizens should have.

13:22Now I'm talking about rights in ancient Greece, rights in the political discourse of Aristotle, and a lot of people would not agree. Some scholars would disagree because they believe that rights talk is the byproduct of Modernity, in a certain sense, it's a by-product of classical liberalism, and it couldn't be used by the ancients, but you'll have to trust me on this. Actually, Aristotle is talking about rights, and all individual rights are based on justice and nature. He calls them claims, but as a citizen of the polis, you do have claims against the polis, but he's actually talking about rights. But the real difference between modern natural rights theories and Aristotle's doctrine is that the Greek philosopher would never conceive individuals in a state of nature in which they already possess a set of natural rights.

14:21To him, as I said, the policy is a natural existing phenomenon, which may be in a natural or unnatural condition. And when the polis is in a natural condition, it is governed according to justice, also natural, and its citizens possess rights based on nature again. So it's all natural, the polis, the citizens, their rights, and everything else. The real difference between modern rights talk is that he never thought there could exist individuals in the state of nature. He never thought of the state of nature without a polis. Actually, he thought the state of nature was a policy in a natural state.

15:09So when the policy is in a natural condition, it is governed according to justice. And in this sense, we may view Aristotle as an ancestor of the natural rights tradition, but in a very qualified sense. and all these rights are actually claimed by individuals as member of the policy, of the polis, as a cooperative association and of course there's a clear difference between him and the modern thinkers but I would say that individuality plays a crucial role in his political philosophy as well and this becomes very clear if we analyze his view of property and of property rights Aristotle goes to a full vindication of the right of private property in the second book of the politics.

15:58And then he talks about property rights all over his works, actually. And he takes a clear stand against Plato and Socrates, who believed that children, women and property ought to be common. Who believed in the community of women. Not a bad idea, but... but anyway especially when you're young I mean you're in college I mean you get excited about it but then you grow up and there are several arguments that he employs to defend the legitimacy of private property and I'm not going to go through that otherwise I wouldn't have time to talk about anything else but that range you know from utilitarian arguments instrumentality and and from the eudemonistic argument which is based on happiness, you know, the idea that the property brings happiness and so on, and all sorts of justifications of property.

17:01But one must know that Aristotle discusses three schemes of property, which is private property common use, and that's the one he prefers, he favors. and then is a common property, private use, and the third one is common property, common use. Now, there's one missing, isn't there? It's the one I favor and the one most of us favor. So he leaves out private property, private use, and it's certainly the one that most of us would prefer. However, you've got to remember that Aristotle had anticipated the noted tragedy of the commons As he points out that I cannot feel for the community's resources what I feel for myself and my own things.

17:53As the policy or the polis in his thought is prior to the individual, clearly private property can be regulated by the polis. However, it must be owned privately, never in common. Moreover, he criticizes confiscation by democratic majorities of the property of the wealthy citizens, and explicitly rejects the conventionalist argument that whatever law the majority decides to enact is just, objecting that confiscation is unjust even if the majority supports it. And thus, the property owner has a claim of justice.

18:44Now a claim of justice in Aristotle's talk would be very similar to what we might call a right. And plus, a claim of justice is definitely based on nature. And so he's got a right against other citizens which is violated by the law of confiscation. And the best constitution, in his opinion, is actually the one that respects the property of the citizens. In this sense, I consider him very, very modern. But the theory that there is a law which is above the power of man to alter found his best defender in the Roman world. And this defender was Cicero. He clearly stated a lot of things that were to become, like, common knowledge in this tradition of thought.

19:35Sorry, I'm a great drinker of water in the morning. And so, actually, Cicero's discussion of the nature of the law is probably the best we find in antiquity. And it was the one that went through, in scholastic times as well, and it went on, because Cicero was a stoic. I mean, he was a follower of the stoic tradition, and so he used to use the word God instead of gods several times, so it's not like the Christians were fooled, they certainly knew what he was talking about, but they could quote him talking about God and not the gods, because he usually talked about God, but he meant nature, of course, that's not Cicero. And Cicero was, as I said, a stoic, and the stoics would be a very important bridge to study in order to understand natural law and to them nature was objective reason, the divine element in the universe and it was by virtue of man's rational power that he could come to understand the reason that is in the universe and live according to it and according to it and according to the laws of nature.

20:49So human laws, and this was the first time that was said, human laws should approximate as much as possible the laws of nature and the teachings of nature. So this general, historic point of view is summed up very nicely by Cicero in his discussion of the nature of the law, and the book is the very famous De Legibus, which means, of course, on laws. And he says, all of these things about which learned men dispute, there is none more important than clearly to understand that we are born for justice, and that right is founded not in opinion, but in nature. There is indeed a true law, right reason, now he uses this word, this expression, right reason for a true law.

21:40Agreeing with nature, and diffused among all, unchanging, everlasting, which calls to duty by commanding, deters from wrong by forbidding, it is not allowable to alter this law, nor to deviate from it, nor can it be abrogated, nor can we be released from this law either by the Senate or by the people, nor is any person required to Nor is it one law at Rome and another at Athens, one law today and another hereafter, but the same law, everlasting and unchangeable, will bind all nations and all times, and there will be one common Lord and ruler of all, that is God, the framer and proposer of this law.

22:40Well, and of course, he meant nature by God, but he used God and God's interchangeably sometimes, you know, like Spain, lip-homage to the religion that he was born with, but he doesn't really care very much. So the Christian world was very receptive to this concept and especially because of the idea of the sacred individuality and the uniqueness of every person and Christianity just was pretty much born with the idea and the concept of natural law and one must think of Saint Paul who was probably the first to use the expression written on the heart referring to the law of nature and of course the writer of this law was God, that's very simple to understand.

23:32And then you have in the fourth century the emperor Theodosius, who ordered the bishop of Milan, who happens to be also the patron of Milan, Santimbros, to hand over his cathedral to the empire. That was an order, a decree, you had to do that. And Sannebrose told him, by no law you can violate the house of a private man. Do you think that the house of God may be taken away? And then he goes on to curse him, and using words I will not repeat. So this episode actually is considered to be the starting point of the millennial struggle of the church and political power.

24:18Actually, even longer than that, which actually, as Ralph Rago clearly stated, prevented absolute power from arising. Thus, living room for autonomous institutions to develop, and to the living room for what we call, generally speaking, civil society, but was actually markets and associations and oath-based relationships, universities, like the one in Pavia, which was founded in 931. 1931, that's pretty amazing. It's never been recognized by Paris and Bologna, but that's the thing. And it was during the dark times of the Middle Ages, so we had all this, the birth of civil society.

25:04But actually Christian thought is also at the core of our own idea of the individual, So clearly, the idea that every person has a soul, and no matter how similar she may look to any other human beings, she is unique and irreplaceable in the eyes of God, if not of her loved ones. is really a notion that the classical world never knew and never thought was important at all. It didn't exist in the classical world. That came definitely with Christianity.

25:49And actually, I wanted to quote a statement by Rothbard, which I forgot. Can you give me one minute to show the link that there is between modern natural rights theories and this idea, this Christian idea, it's right over there, I'll get it to you, just one second. I forgot the quote. I'll give you me third.

26:28I'll find it. We'll be talking, as I said, we'll be talking about natural rights for quite a while, so I'll find it. But anyway, it's a very Christian idea. You're going to have to stay there for four hours, don't move. And so, actually, it is what in the works of Thomas Aquinas that we find the best expression of Christian natural law and his tradition. And I will be very quick on that as we do not have much time left. But it would deserve certainly a lot of attention. And it's been often compared to a cathedral, you know, his way of thinking.

27:18You have to think that Aquinas wrote about 20,000 pages in his own life, and the Summa, his best, smile yourself, is like 3,000 pages, and everyone, it's considered to be like a cathedral, you know, and the pinnacle, definitely, is the natural law doctrine, and the idea, certainly, that there is a natural law, and that man are bound by it, So, this Christian notion of natural law is definitely to be found in the Summa, written in the 13th century, as you all know. The greatest Christian philosopher of all time, as Ralph Rehka said, even sanctioned rebellion.

28:12I don't know whether according to him you could kill or not the tyrant, but this is what he said. A king who is unfaithful to his duties forfeits his claim to obedience. So I mean the first thing you could do, there's no way you can, if he is against divine law or natural law, if he does anything against these laws, then there's no reason to obey him. It is not rebellion to depose him, for he is himself a rebel. So these words are very strong. I mean, there's nothing comparable to it, either in Montana or at the time, of course, or anywhere else on earth.

28:59And the time during which Thomas wrote was a time of ferment, very good ferment, Because previously unavailable works of Aristotle had come to Europe from the Middle East and, well, I don't want to sound too biased, but it seems to me like the greatest contribution the Middle East ever made to culture. And Thomas actually calls Aristotle the philosopher in the Summa. I mean, he's not like Aristotle, the greatest philosopher. He's the philosopher. So he is like... Well, did you know how the Summa works? It's based on questions, you know, and he says, for instance, whether natural contingents are subject to the eternal law, fifth article.

29:46So this is a question. Then he goes objection one, objection two, objection three, usually three, sometimes it's four. and but he I mean he doesn't just make a mockery out of his adversaries you know it just he takes the objections very seriously and then he says on the contrary it is written and he goes to the sacred scriptures and then he says I answer that and this is a truth you know for according to him and then he goes on to counter and he says reply to objection one reply to objection two Reply to Objection 3. And then the argument is made. Now, in the 13th century, this way of reasoning was thought to be pretty good, scholasticism.

30:31I don't know why we abandoned it. I mean, it seems a perfect way, you know, as long as you make a mockery of objections and so on. I mean, it would be great to have articles written like this. It would be at least clear. Thomas is a set called Aristotle the Philosopher, and not just one of the philosophers. Aquinas' Thomas' work was intended as a synthesis of philosophy and the Christian faith.

31:17But of course to him theology was the master and philosophy the servant. Now for us it may be difficult to understand this concept, but for Thomas, whose doctrine is also called teleological, that is to say that it's directed towards an end, all things actually have within themselves, by their very nature, principles which produce actions and direct it to its proper end. So in this sense it's teleological because there's the end for mankind, there's the end for every single man, and built in the very nature of man, there are principles which, if accordingly followed, will just lead them to its proper nature and its proper finality, So for him, actually, there was no contradiction between philosophy and theology because they both came from God.

32:17One was God's written word and the other one was God implanted reason in the human mind. So there was no contradiction between faith and reason. All this discussion that took place later on about the contradictions between faith and reason, of course, Natural law is none other than the concept naturally impressed upon man by which he is guided towards suitable actions in the activities proper to him.

33:02And this is the extension to men of the intrinsic finality or tendency to an end that pervades all nature. Every creature has it. The thing is, the other creatures don't think. However, the precepts of natural law are also rational judgments. So it is the light of reason by which we discern that has to be done. It is in the light, you know, in this light of reason, and he calls actually natural law the light of reason in certain places, he calls the natural law this way. And natural law is also an expression of the eternal law, and it is what makes reason the right reason. Why do we know that reason is not wrong and it's really the right reason?

33:51Because there is a natural law behind it. And he's also to be found in the Ten Commandments, in the Decalogue. He believes that some of, because, well, man happens to be not only a sinner, but a person who tends to err a lot. So God, God gave him the Ten Commandments just to specify certain things. And the Ten Commandments are part of natural law. They're not, oh, the natural law that you can think about, but they're a part. That's like God helping man, you know, to understand better what he means. So the divine law is given to man as a help to the natural law, in this sense.

34:37And we can see a strong parallel with this philosophy and theology relationship. So the strong idea is that rational creatures, by nature and in consequence of their dignity, have a special position in the ordering of things. In fact, while divine providence governs irrational creatures, of course, and unfortunately we're not talking about socialists or social planners and so on, they're considered to be rational creatures anyway, we're just talking about animals, simply animals. But actually creatures who direct their own actions need what he says, the check of law. They need the check of law. However, though positive law conspicuously locks the universality of the natural law.

35:26So its validity depends directly on natural law. And for instance, while natural law says that theft is a crime, and also a mortal sin, according to St. Thomas. You know, it says a mortal sin. It's not like, I don't know how this Catholics could go on and say that robbing people is fine. Saint Thomas said it's a mortal thing, robbery. Positive law is to decide the punishment. You could hang the guy, cut a couple of hands, do whatever you want with the guy, but that's part of the positive law. And finally, in the Summa, we have the highest conception of natural law, which is defined as the participation of the eternal law in a rational creature.

36:12Question 91, if you want to take a look at it, so it's the participation of the eternal law in a rational creature, because you have eternal law, divine law and natural law in that order. In Question 91, he talks of the various forms of law, eternal law, natural law, human law, divine law and the law of sin. So, eternal law is divine providence, and the way in which God has fashioned and ordered his creation. In other words, it's like God's plan for mankind. That would be divine law. I'm sorry, humankind. And so, it's her plan for humankind.

37:00And natural law is the peculiar human participation in eternal law, in that kind of law. So it's like the peculiar human participation in the plan of God, and the plan of God was actually to have man, and his greatest creature supposedly, as a rational animal. And also, according to the philosopher Anacartes Aquinas as well, as a social animal, not a political one, a social. You know, zon politikon could be translated political animal or social animal. The status people tend to translate it as political animal, I'd rather say social, cooperative, the free market is the kind of cooperation that Sir Leonhard Staudte would have loved. But anyway, natural law is not God's will.

37:48Some people at the time thought that it was very simple, that it was God's will. But, you know, like as a lot of scientists would say later, God's will couldn't make two into five. There's no way he could do that. and the same thing actually argued for St. Thomas. So it is not God's will, but it's really God's plan for mankind. And in a certain peculiar sense, it is what we would call freedom. The fact that mankind and individual men and women are free to choose whatever they want in their own plans. And now, the last thing I'm going to say is Why so many libertarians are at odds, do not like this kind of natural law, especially the Aquinas version of it?

38:38Well, first of all, because it's been exploited a lot by communitarians. And so a lot of libertarians didn't read the original stuff, and so they believed that it's simply communitarian. I mean, communitarian in the sense of McIntyre and that kind of stuff, you know, common contemporary thing. There's one reason for it. He speaks a lot about the common good and that's why he's been exploited by the communitarians. However, actually when he wrote, you have to keep in mind one thing, there was no state. There was nothing like the coercion or monopoly of coercion that we do know today. There was nothing like that. There was a lot of diffusion of power. So when he was talking about the common good and the need we have to cooperate with society and win society, he didn't have in mind taxes or anything like that.

39:32He didn't have in mind anything like being coerced to do that. He just said that was natural. And so Aquinas actually never hinted that one could pursue the common good using coercion or confiscated legitimately owned private property. So, cooperation and social bonds are essential to his theory, but so they are for libertarians. And it is my contention that if Thomas were alive, he'd realize immediately how the common good has several friends, among which we can definitely count the free market, and one single enemy, the state. And although the state, or I mean people on behalf of it, used to talk a lot about the about the common good, the very concept, the very idea of the state actually has obliterated any notion of natural law and natural order and I believe that the communitarian exploitation of scholasticism in general and of Aquinas in particular is totally misleading in fact the greatest medieval philosopher praised community only as he was convinced that it served the individual

40:47that was in the great interest of the individual to be part of a community and he was taking the common Aristotelian standard from which only fools and naves can derive a moral duty to robbery that is taxation. Thank you very much.