A Natural Law Basis for Human Rights?
Hans-Martien ten Napel
Attempts by the United States State Department’s Commission on Unalienable Rights to identify a subset of proper “unalienable rights” within the broader category of human rights are sometimes perceived as an almost reactionary effort. The adoption of a historical-philosophical perspective reveals that, on the contrary, even if applied within a natural law framework, natural rights are a fundamentally modern idea. Today, it is sometimes feared that this modern constitutionalism has, from the beginning, been little more than an experiment that was doomed to fail. Given such concerns, the U.S. State Department “unalienable rights” debate represents a reasonable inquiry into how the ideal of human rights can be carried on into the twenty-first century.
Sometime around the middle of the twentieth century, the German-American philosopher and classicist Leo Strauss (1899-1973) gave a lecture series that he later wrote into a book, entitled Natural Right and History (1953). I recently gained some insights from reading and discussing Strauss and his work and from watching a lecture given by a colleague on the contemporary significance of Strauss’ political thinking with a group of talented graduate students of law.
As a German Jew who had fled his home country well before the Second World War broke out, Strauss was concerned about the possible relationship between modernity and totalitarianism in a way that shaped his understanding of natural rights. The mainstream view was, and is, that the Second World War constituted an aberration, that Enlightenment thinking was generally excellent and wholesome, and that the rise of Nazism in the 1930s was something that needed explanation. More or less the same holds for Communism, the ideology that was perhaps even more in Strauss’s mind, when writing in the early 1950s.
For Strauss, on the contrary, the relationship between modernity and totalitarianism was rather obvious. He feared that a causal relationship existed between the two. Modernity had done away with the “classic natural right,” marking the beginning of “modern natural right.” The differences between the two could not be more significant. Modern natural right had given rise to relativism and nihilism—and nihilism led to totalitarianism, as the first half of the 20th century had demonstrated. Strauss feared that history could easily repeat itself.
According to Strauss, there is no more fundamental question than “whether men can acquire that knowledge of the good without which they cannot guide their lives individually or collectively by the unaided efforts of their natural powers, or whether they are dependent for that knowledge on Divine Revelation”1Leo Strauss, Natural Right and History, 74 (1953). In the first case, there would not be a problem with modern natural right. In the latter case, which Strauss considered to be possible as well, it would pose a risk to dispose of classic natural right altogether.
Strauss’s views on natural right call for elaboration in at least four respects that can inform current discussions of “unalienable rights.” First, what does classic natural right mean? Second, what does modern natural right mean? Third, is it the case that a choice between classic natural right and modern natural right must be made, or is there some combination of the two that might be feasible? Finally, what is the relevance of both classic natural right and modern natural right for the state in general and human rights in particular.
What are “classic natural rights”?
As used by Strauss, the term “classic natural right” can probably best be regarded as synonymous with natural law. Strauss chose not to use the term “natural law,” as he did not wish to be identified, in particular, with its theological varieties. In fact, the natural law tradition started with the Greek philosophers Plato and Aristotle. Only later, after the rise of Christianity, did more theological strands of the tradition appear in the works of St. Augustine and Thomas Aquinas. The tradition has continued up to the present with, for example, John Finnis (1940-) and Robert P. George (1955-) as representatives of “new natural law theory.” But this does not tell us much about the content of natural law.
Substantively, what theorists in the classic natural right tradition have in common is a particular view of human nature. According to this view, particularly in the Christian tradition, the human person is a social being inclined towards evil. In order to attain the good life, a form of metanoia, or conversion, is necessary. Through moral education, an individual person’s character must be formed so that particular virtues can grow. The power of sin means that such a conversion will never be complete.
The rules to follow in order to attain the good life are the natural law. As the term “natural” suggests, these rules are not just to be found in divine law, such as the Ten Commandments. All human beings can discover them, with the help of reason. Nor are these rules specific to one theological tradition, i.e. Christianity. On the contrary, many of these rules can be found in one form or another in other faith traditions. The term “law” expresses that the rules are stable and, in principle, apply universally as well as to all times.
What are “modern natural rights”?
The concept of the modern natural right did not arise until the seventeenth-century works of Thomas Hobbes (1588-1679). Hobbes viewed human nature differently from classical theorists, in that he did not emphasize their social nature. Instead, the idea was that every human being possessed certain individual rights, the most important of which was the right to self-preservation. Individuals enter into a social contract so that the state might guarantee their natural rights. In exchange, the state receives support from them.
It should be emphasized that the idea of natural rights, as conceived by Hobbes, was a relatively new concept in history and a new concept of rights legitimacy. Before, individuals were presumed to have duties towards their fellow human beings, as well as towards God. By fulfilling these duties, they contributed to the “common good,” a term that dates back to Aristotle. As such, the idea of natural rights forms the basis of modern liberalism, in general, and human rights, in particular. If one of liberalism’s perceived shortcomings is that it places too much emphasis on the individual rather than the community, then this criticism goes back to Hobbes.
Must We Choose?
The above presupposes, however, that no combination of natural law and natural rights is feasible, which indeed seems to be Strauss’ idea. However, the whole idea behind the American Founding, for example, was that precisely such a synthesis between natural law and natural rights was feasible. In this way, the Founding Fathers attempted to reconcile the best of modernity with the wisdom of ages past. It remains an exciting proposition today, if only because a choice between the classics and modernity can thus be avoided. Several branches of Christianity, including the Roman Catholic Church, also appear to have somewhat reconciled to modernity during the 20th century.
Contemporary Western constitutional practice has moved away from the ideals of 250 years ago. Thus, the so-called Progressive Era in the U.S. gave rise to the administrative state. The rise of international institutions, such as the United Nations, after the Second World War has transformed the notion of natural rights into the broader category of human rights. Human rights, moreover, have continued to expand ever since. Finally, the cultural revolutions of the 1960s led to a definitive break with the classical and the Christian heritage. The results are evident in the new sexual morality that has replaced more traditional normative ethics.
Strauss and similar theorists might argue that these results could have been anticipated from the beginning. Precisely because it is so successful in emphasizing the individual rather than the community, liberalism is failing. Others believe that modern natural rights are possible without a firm foundation in natural law. Between the pessimists and the optimists, is a third group of authors who adhere more closely to the idea behind the American Founding–that a combination of the blessings of modernity and the collected wisdom of ages past is possible. These authors remain hopeful that this experiment will succeed, even though most of them realize that the odds are against them.
What is fascinating to note is that all three groups somehow relate to Strauss’ theologico-political predicament highlighted above. The central issues of our time are not that much different from the ones pondered in the classics. Above all, the question is whether a political order can exist without a metaphysical foundation and, if not, which should take priority: religion or the state.
This is the same question that constitutes the backdrop to today’s debate on the proper definition of human rights. Can these rights be expanded according to the needs of our time? Or, should we abandon the idea of rights altogether and return to the older concept of duties to serve the common good? Distinguishing a limited set of natural rights within a natural law framework seems a middle path between these two extremes that is worth considering by the Commission on Unalienable Rights.
Hans-Martien ten Napel (@hmtennapel) is Associate Professor of Constitutional and Administrative Law at Leiden University in the Netherlands. He is the author of Constitutionalism, Democracy, and Religious Freedom: To Be Fully Human (Routledge 2017).