Natural Law's Modern Cousin Germain: Rights Talk

HUMAN RIGHTS OR NATURAL RIGHTS ARE here to stay, and so we must become accustomed the "grammar of rights" though it does not fit perfectly into the natural law without some accommodation. The accommodation, however, needs to be from the end of right, not from the end of law. Morality ought not change so as to accommodate rights. Rights ought to accommodate to the good. (And for Finnis human rights are nothing less than moral in origin.) Rights talk ought to accept a "grammar of morality," the grammar of the natural moral law. Else rights cannot find a sound basis, and without basis seem to be the favored tool of the unscrupulous, the powerful, the clever, or those with their hands on propaganda machines who use the vehicle of rights to advance agendas that are nothing less that vice writ large, and advance an immorality institutionalized and writ into law.

With that caveat, however, it remains true that the principles of natural law can be framed in the language of rights, and that "the modern grammar of rights," at least according to Finnis, "provides a way of expressing virtually all the requirements of practical reasonableness." NLNR, 199. There is, however, something lost by expressing moral realities in rights language rather than in law language or duty language. The insight that one obtains from framing issues in terms of duty or in terms of law must not allow these classical formulations to be treated as unwanted cousins. In other words, we ought to be comfortable speaking of duty and law at the same time we speak of right.

Wesley Newcomb Hohfeld

Not only do we forget duties when we sound off on rights. We are sloppy in our rights talk. So the first thing that Finnis does in his treatment of rights is to focus on the subtle language that is involved in rights. He does so by adopting (and adapting) the language of the short-lived American scholar, Wesley Newcomb Hohfeld (1879-1918). The effort of Hohfeld to disambiguate the term "rights" is a remarkable achievement.

Finnis encapsulates the Hohfeldian effort by distinguishing four basic "Hohfeldian rights":

1. a "claim-right" (which Hohfeld calls a "right stricto sensu," a right in the strict sense);
2. a "liberty" (which Hohfeld calls a "privilege");
3. a "power"; and
   
4. an "immunity".
   

Distinguishing rights into these four general categories, Hohfeld then suggested that rights need to be understood within a "three-term relation between one person, on act-description, and one other person." NLNR, 199. Applying the triadic schema with the four-fold division of rights, we get the following expansion of rights:*

1. A has a claim-right that B should φ, if and only if B has a duty to A to φ.
2. B gas a liberty (relative to A) to φ, if and only if A has no claim-right ("a no-right") that B should not φ.
3. B has a liberty (relative to A) not to φ, if and only if A has no claim-right ("a no-right") that B should φ.
4. A has a power (relative to B) to φ, if and only if B has a liability to have his legal position changed by A's φ-ing.**
5. B has an immunity (relative to A's φ-ing), if and only if A has no power (i.e., a disability) to change B's legal position by φ-ing.**

NLNR, 199. All of a sudden "rights" become saddled with a matrix of more intricate language, and we speak of claim rights, of no-rights, of a liberties, of duties, liabilities, immunities, and disabilities. In the area of rights as we commonly discuss them, however, the notion of "claim-right" and "liberty" appear to be most important.

If A has a claim-right, then B has a correlative duty. If A's claim-right positive, then A can require something of B (to be given something, to be assisted in exercising the claim-right to φ). If A's claim-right is negative, he has a right not to be interfered with or dealt with or treated in a certain way by B. A has a liberty to φ (or not to φ) if he is free of any duty to B in the matter, which means that B has no claim-right over A that A not φ (or φ).

If A's claim-right or liberty involves more than B (i.e., also involves C, D, etc.), then that claim-right or liberty is multital.

A claim-right and a liberty are distinct, but are not mutually exclusive. Accordingly, A may have both a claim-right and a liberty to φ.

Hohfeld's rights analysis seems to suffer from one weakness, and that is that commonly people do not talk about a three-fold relationship when it comes to rights (A, B and φ). Usually, people talk in a two-term manner: A has a right to a subject matter, to a thing. Unfortunately, speaking of rights in a two-term manner disguises how rights for one person may be an obligation (and, therefore, a loss of rights or liberty for another). When a homosexual claims his "right" to marriage, does he ever think about how and who his "right" may effect? What sort of obligations he will impose on others? NLNR, 201.***

The relationship between claim-right and duty appears to present a problem when rules or rights are translated into the Hohfeldian schema. If B has a duty, when is A said to have a claim-right? There are two possible answers which a person who wants to translate a rule or a right into the Hohfeldian schema must choose:

1. A has a claim-right that correlates to B's duty if and only if there is a person A for whose benefit that duty has been imposed on B, which is to say that A is to be the recipient of B's performance consonant with his duty.
2. A has a claim-right that correlates to B's duty if and only if there is a person A who has the power to remedy B's disregard of that duty by judicial remedy.
   

NLNR, 202-03.

But, pulling away from the technical Hohfeldian analysis, Finnis sees the problem as a little more basic, more fundamental than merely translating rights into more precise Hohfeldian formulations and choosing what stipulation one wants in adjoining claim-rights to duties:

[T]here is a philosophical problem not to be solved by stipulation. This is the question: What, if any, is the underlying principle, unifying the various types of relationships that are reasonably said to concern 'rights'? Or, more crudely: Is there some general explanation of what it is to have a right?

NLNR, 203. At heart, the difference in which stipulation one should use is the difference between one's vision of rights. Are rights to be considered as benefits or interests (so that A's claim-right involves "benefits" or "advantages")? Or are rights to be considered as vehicles which respect choice? The first stipulation views rights as benefits or interests, whereas the second stipulation would emphasize the importance of choice or will.

But for Finnis, the decision is not required:

[I]t is not necessary here to settle the dispute between the 'benefit' and the 'choice' theories . . . It suffices that . . . we may safely speak of rights wherever a basic principle or requirement of practical reasonableness, or a rule derived therefrom, gives to A . . . the benefit of (i) a positive or negative requirement (obligation) imposed upon B (including, inter alia, any requirement not to interfere with A's activity or with A's enjoyment of some other form of good) or of (ii) the ability to bring it about that B is subject to such requirement, or of (iii) the immunity from being himself subjected by B to any such requirement.

NLNR, 205.

This was all rather tedious. Let's see where Finnis goes with it.

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*A and B signify persons, but they need not be individuals, they can be natural persons or corporate persons (e.g., the State or business entities). The symbol φ represents an act-description.
**In 4 and 5, the act φ has juridical connotations. In other words, it involves a juridical act or a legally-cognizable act such as buying, selling, leasing, granting, conveying, marrying, paying, adjudicating, enacting, etc. NLNR, 200. In 1, 2, and 3, the act φ can be either juridical in nature or natural (with or without juridical import), e.g., walking, hitting, traveling by plane, defaming.
***All this seems laboriously technical, but Finnis explains that the "persistence of 'two-term' 'thing-oriented' rights talk" in conjunction with the "'three-term' 'act-oriented' schema of rights" becomes important when certain natural rights (e.g., the right to life) are discussed.

Contra Consequentialismum: Moral Rights

GOODNESS OR HAPPINESS IS NOT THE ENTIRETY of moral study. Moral thinking also encompasses the concepts of duty or obligation. The moment there is another person in the mix, there will be the issue of obligation or duty, as well as the correlative issue of right. Because they have been wrested out of their foundation in natural law and duty, rights, however, have become unmoored. They are like half a man, a thing that cannot be expected to live. Rights have therefore become the enfants terribles, the black sheep, of moral thought.

Rights without Duty and Law: Like Half a Man

As Oderberg explains:

Rights are perhaps the most misunderstood aspect of moral theory: there are those (mainly consequentialists . . . ) who frankly deny their existence while at the same time paying them regular lip service, even appealing to them when their own interests require it; others give them exaggerated prominence in ethics, sometimes basing their entire morality on them; yet others abuse the term "right," claiming to find rights where there are none, hurling it at their opponents on this or that issue, or elevating rights to such a status that the mere utterance of the word is supposed to silence all debate.

Oderberg, 53. The notion of right, however, is all about us, and central political documents, including those of our nation's founding, are all about right. The United Nations has been particularly prolific in promulgating documents regarding right: beginning with the Universal Declaration of Human Rights in 1948, an International Covenant on Civil and Political Rights in 1966, and another on Economic, Social and Cultural Rights in 1976.

What is the place of "rights" in moral theory? For Oderbeg, rights arise from the interplay between man's quest for happiness (understood as the quest for the good) and other men's similar quest. While morality directs and orders one man's quest for happiness, his quest for the good, does it also guarantee that quest for happiness for others? The answer is necessarily yes, since the opposite assumption--that morality does not guarantee the quest for happiness for others--results in absurdity and practical collapse.

Suppose that, as far as morality was concerned, every person could pursue the good in any way they chose, without regard for others. . . . [S]uppose that morality gave no "space" to an individual to pursue the good--he was constantly under the threat of, and regularly suffered, intrusions or interference by other individuals in their pursuit of the good. Would such a system of morality be incoherent or unworkable? It seems that it would be both.

Oderberg, 54. It is apparent that this lacuna or gap in moral theory would leave us without guidance on how to achieve happiness, that is, what would be the good, in regard to what may do to others, or in what we may do to defend ourselves from others. How do we achieve happiness vis-à-vis others without knowing what happiness with regards to others entails? Without an answer to such a question, we apparently have a moral vacuum in a huge area of our life.* More, morality is incoherent if it imposes a personal duty to seek the good without boundaries with respect to others, since it would also necessarily offer no protection to the person as against others (since others also would have no boundaries in their quest for good), and without moral protection against others, there would be no moral right to defend against others' interference to the quest for good. "[M]orality would be taking away with one hand what it gave with the other--and this would make morality incoherent." Oderberg, 57. Morality would be one big game of Indian giving.

It is apparent, then, that rights are a fundamental part of morality.

No more basic and transparent answer to the question of "where rights come from" can be given than to reply, "They come from morality itself; they are a conceptually indispensable part of the correct moral system."

Oderberg, MT, 57. If "rights" are an indispensable part of a moral system, then we ought to have a working definition of (moral) right, and Oderberg obliges:

A right, then (and by right I mean "moral right" unless otherwise stated), is best defined as a moral power of doing or having something. By "power" is meant a capacity or potentiality of doing or having something according to law. . . . A moral power, then is a power to do or to have something according to moral law, and which enables one to act licitly before its tribunal, before one's conscience, and before [the conscience of] all other people. . . . A right can be though of as a claim or title to certain things and actions against other people, namely those things necessary for the achievement of happiness.

Oderberg, 57, 58. Thus a moral right is not tied to power, physical ability, mental acumen, or others' recognition of it. Nor is moral right tied to human positive law; moral right is independent of legal authorization or protection.** "Might does not make right and man-made law does not make right." Oderberg, 58. Around moral right, the primary right, "cluster" other moral concomitant rights, the "most obvious" being the "right to defend oneself against any intrusion intended to deprive one of the primary right."*** Oderberg, 58. Other such rights would be the right to demand reparation from someone who has violated the principal right. The right to respect for the primary right which requires others to acknowledge such a primary right is likewise clustered around the primary right. The respect may show itself, for example, by the admission that such fundamental right exists, by the asking of permission to interfere with that right, or the giving of an apology if such right is breached without permission. Oderberg, 58-60. There is, however, an intrinsic limitation on the exercise of moral right: "all people are physically incapable of exercising all of their rights all of the time." Oderberg, 58 (emphasis added). Oderberg addresses this later, when he discusses the collision of rights.

It is apparent that our claim to right as against others in our pursuit of happiness, that is the pursuit of the good, brings with it its reciprocal: duty or obligation.

Every right imposes a duty on every other person to respect it. Without duties correlative to rights, morality would again be self-contradictory, for it would permit what it prohibited--interference by others with the legitimate pursuit of the good on the part of an individual. Duties correlative with rights are simply the logical mirror of those rights--they reflect those rights into the eyes of other people.

Oderberg, 60. We will address the relationship between duties and rights in our next blog posting. It is not quite as simplistic as those inebriated with "rights talk" might think.

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*As Oderberg notes, Hobbes went even beyond this thought experiment which postulates that morality simply does not address one man's quest for the good versus another man's quest for the good, and thus gives a "mere permission to interfere [with another man's quest] rather than the conferral of a right to do so." Hobbes actually believed, not that morality was silent, but that morality positively gave one man in his quest for the good the right to interfere with others' quest for the good. In a Hobbesian state of nature, might made right. This destructive state of affairs is what compelled, in Hobbes's view, the social compact. Oderberg, 56-57.
**It is, as Oderberg notes, "of course desirable that a moral power [right] be accompanied by physical and legal power, in other words that a person be both physically capable [and physically protected] and legally empowered [and without legal recourse in the event of violation] . . . to do what he has a moral right to do." Oderberg, 58. However, "no legal system in history has ever been so comprehensive (or, more significantly, intrusive) as to protect everyone's rights all of the time, or so well-crafted as never to confer rights that morality itself does not confer (for example, the right to own slaves, or to exploit certain minorities because of their race or origin)." Oderberg, 58. There is, and forever will be, a discontinuity between moral right and legal right. That is why the positive law must always be reforming itself. Lex positiva semper reformanda. Ius positivum semper reformandum.
***The right to defend does not always entail the right to use physical force against an aggressor, and it goes beyond the use of physical force. The defense may include what Oderberg calls "physical, economic, or psychological 'ring-fencing' of what one has a right to do." Oderberg, 58-59. Thus one may warn (e.g., post "no trespassing signs), one may conceal or protect (e.g., put property in a safe), and so forth.

Cardinal Mercier and the Natural Law, Part 15: Individual Right to Life and Work

LIFE, LIBERTY, AND PROPERTY are the three headings under which Cardinal Mercier organizes his discussion of the rights of the individual in his A Manual of Modern Scholastic Philosophy. Individual right subsumes the "obligations of justice which a man must fulfill with regard to his neighbor, obligations which are independent of any family or political ties." In other words, one man's right is everyone else's duty to respect, and they are his independent of family, tribe, politics, or faith.

As we have seen in prior postings, the natural end for which man by his very nature is made is the contemplation of God. God is each man's natural summum bonum or finis ultimus, his greatest good, his ultimate end. It follows from this that each man has the right to work out his individual path toward this common, universal goal. This goal, this end, common to and shared by all men, is what gives each man his or her unique dignity before God:

Since man is created for this state of perfection and happiness [that comes from the contemplation of God], he must tend towards it during his life. He has therefore the right to work out his perfection, the right to act and to live. He is much more than a means towards the welfare of his fellow-men. We may not, then, dispose of the life of another as we may that of an animal. The human personality is the ground of the right to live. Only higher moral motives can justify the sacrifice of human life.

[270(76)] As a consequence of his right to life, man has the right to self-defense against an unjust aggressor. He may use any reasonable means to protect his life from the threats of an unjust aggressor.

Does this right to self-defense against an unjust aggressor also include the right to defend against an unjust aggressor who threatens not one's life, but one's property? Mercier notes that many penal codes limit or even restrict the use of deadly force against someone in defending one's property. The argument in support of such restriction is that where there is a conflict between two rights--the right to property and the right to life of the one who threatens one's property--the greater right ought to prevail. To the contrary, there are those who argue that an owner has no obligation to remain defenseless to one who is unjustly despoiling him, and that assault against property is very closely tied to assault against one's person, especially if there is a threat of violence against the owner or if the property that is in question is one that is indispensable or essential for his continued existence. Moreover, the defense of a right, such as a right to property, "must not be stopped by the fact that a criminal forces us to do him a greater injury than that which he threatens us." [271(77)] This principle is true even if the injury is eternal damnation. Thus, if an innocent traveler is accosted by a brigand who threatens his life, he may legitimately kill the brigand, even though in killing the brigand while the latter is "yielding to his criminal impulse" exposes the brigand's soul to eternal damnation. "The man who attacks us unjustly puts himself outside his rights." [271(77)]

Juan de Lugo by Unknown Artist

Mercier elaborates on the second opinion by pointing to the teaching of Juan de Lugo (1583-1660), the Spanish Jesuit and Cardinal whom St. Alphonsus de Liguori considered a preeminent authority, easily first right under St. Thomas Aquinas, "post D. Thomam inter alios theologos facile princeps." (Th. Mor., lib. 4. n. 552). De Lugo opines that it is allowable to kill a thief if there is no other means to protect and defend one's possessions. De Lugo, however, also provides that both charity and the greater interests of social order require that the possession be of some consequence to justify the killing of a thief to protect property. [271(77)] One ought not to kill a petty thief for stealing an apple.

The right to life and the end or purpose of human life require man to put his faculties to use in the world at large. In exercising all his faculties and his gifts, and in expending his energies, however, he must do so within the constraints of the moral law and the just precepts of any public authority. In other words, man, in his freedom, has no right or liberty to act against the moral law or contrary to just human law in his efforts to flourish. Thus, a homosexual has no right or liberty to pursue his lifestyle, which is an affront to the natural law. Assuming the exercise of one's faculty is both morally and legally unobjectionable, however, it is an infringement of a man's right to liberty to prevent him from doing so. Similarly, it is an infringement of a man's liberty for one man to compel another to do an act which he is not under any moral or legal compulsion of doing. [272(78)]

The right of liberty therefore evidently encompasses the right to work, to labor, "that is, to apply his activity to external things and to make a general use of the energies of his being, either for his own advantage or that of others." [272(78)]"The State cannot set itself to be a particular providence for each. Should it do so, it would run the risk of crushing all private enterprise besides taking upon itself an impossible task."
--Cardinal MercierThis includes the liberty of choosing one's profession or occupation. [272(79)] The right to work, however, should not be confused with "the pretended right to be given work." [272(78)] (emphasis added). Such latter pretended right would impose upon the State (and hence on all citizens who contribute taxes to the State) an obligation of providing for each man a specific job. The State's role is rather to protect the individual against coercion, to provide in general the conditions that are favorable to the exercise of the right to work. Ultimately, however, "it falls on the individual to bring about these conditions [in each particular case], and this must be the work of personal initiative and effort." [272-73(78)]

The State cannot set itself to be a particular providence for each. Should it do so, it would run the risk of crushing all private enterprise besides taking upon itself an impossible task.

[273(78)] Mercier is not by any means an advocate of a nanny state.

In his discussion of the right to liberty, Mercier tackles the issue of slavery, since slavery, and the compulsion regarding a person's labor that is at its heart, appears to be contrary to the right to work and the liberty of choosing one's occupation or profession. Mercier first distinguishes between "absolute slavery" or chattel slavery, and "mitigated slavery" and "serfdom." Absolute or chattel slavery stands absolutely condemned as against the natural law:

[In absolute or chattel slavery] the slave is accounted as a chattel, destitute of the essential rights of a human person, without the rights to live, to create a family, to acquire property, etc. All modern authors condemn this form of slavery without qualification. Of old it called for the denunciations of the Stoics: 'Whom though callest slave', wrote Seneca,* 'is born of the same seed as thyself, he enjoyeth the same sky, breatheth the same air, liveth and dieth as thou thyself'. And Epictetus: 'There is no slave by nature, save the being devoid of reason; not of men, but of beasts only is this true'.**

The Stoic voices were opposed, it is true, by that of Aristotle, who, though he admits that slaves partake of reason, also justifies slavery on the grounds that some men are, by nature, slaves. *** The vice of slavery runs deep, and it was firmly rooted in the institutions of the age in which Christianity's seed was first planted. On its own, paganism would have been unable to overcome the blight of slavery. And even with the aid of Christianity, it took a long time to get rid of the old yeast of slavery so that the world might be a new batch without the yeast of slavery. And even among Christians, most particularly in the New World, the world lapsed back in a big way into institutional slavery, even chattel slavery. The world "needed the enduring influence of Christian ideas to effect the gradual change from slavery to serfdom, and so to prepare the way for perfect freedom." [274(79)] (emphasis added). And it still does. Without the continuing influence of Christian ideas, is there any doubt that the world, in time, perhaps under the increasing influence and Western accommodation to Islam, will lapse back to slavery? The United Nations is not a repository of Christian leaven, Christian light, Christian salt. In large part, it is living on inherited Christian capital.

The slavery of the ancient world received its death-blow the day when slave and patrician met in the depths of the catacombs to partake of the Mystic Banquet.

[274(79)] From a historical standpoint, it is "supremely unjust" to refuse to recognize the contribution of Christianity in the wiping out of this social blight. The exhortations of St. Paul, at the heart of the Christian Gospel, that "there is neither . . . slave nor free . . . for you are all one in Christ Jesus," was the seed stuff of social transformation. (Gal. 3:28) There is nothing remotely like it in Islam, whose founder participated, indulged, indeed relished, in the institution of slavery enjoying its unjust fruits. Hinduism and Buddhism do not have the requisite dogmatic backbone.

How do we classify mitigated forms of slavery, such as serfdom, indentured servitude, peonage, or even some forms of sharecropping, which, indeed, are not chattel slavery in the strict sense, but, depending upon their particular specifics, may be so attenuated that they become "radically different from it"? In such mitigated forms of slavery, the personality of the slave or servant is acknowledged, as are his inalienable rights by nature. There is some infringement, however, upon the untrammeled exercise of the slave or servant's right to work or to the fruits of his labor, usually in return for some reciprocal consideration or advantage. Historically, such a mitigated forms of slavery were seen in the institution of serfdom, indentured servitude, peonage or debt servitude, and some forms of sharecropping. Generalizing, and recognizing that such mitigated slavery existed in many forms, under such systems as feudalism the serf was not considered personal property of his lord or vassal, nor did the lord or master have the right to sell the serf (although historically, in some cases he could) or to put him to death. The serf was a legal person; he retained the right to marry, for example, though even this right might be somewhat controlled or limited, and he had the right to worship. The right that was refused the serf was the right to choose his occupation, as the serf would be bound by positive law or custom to devote his life to the service of his lord in the working of the the soil or other manual labor. In contrast, the indentured servant would be obligated to an occupation or task for a fixed period of time (typically three to seven years). In return, for the serf's obligation to the lord, the lord would have certain obligations to his serf such as perhaps protecting the serf and his property from harm. Similarly, in return for the promise of labor over time, the indentured servant would obtain food, clothing, lodging, and perhaps transportation (as for example many colonialists were given passage to the colonies in exchange for a promise to work for a term of years), and training in a trade. In some cases (serfdom/vassalage), this legal condition was hereditary or tied to land ownership. In other cases (indentured servitude), the condition was entered into voluntarily; whereas in others (peonage, debt servitude) not necessarily voluntarily. The kinds of economic relationships where liberty of one is restricted can be legion between the extreme of chattel slavery and the extreme of at-will employment.**** What is the morality of such mitigated forms of slavery (and their form can be legion)?

Some moral theologians (unnamed by Mercier) condemn serfdom, indentured servitude, debt servitude and peonage outright. Others would allow it provided that such a relationship is based upon a free and voluntary agreement. Modernly, most laws in the West condemn such practices. A third opinion (no source cited by Mercier) would allow as justified provisional or transitional serfdom or servitude, even on a hereditary basis, if extreme or pressing historical or economic circumstances justified it. Such a regime may be tolerated, for example, as a transition from outright chattel slavery to a freer form of society. In practice, this seems to have been the historical attitude of the Church "towards an institution which could not pass away until a profound reform in ideas and customs had eventually been accomplished." [275(79)] Here we have a moral vision tempered, but not overcome, by Realpolitik and the prudence of the limits of power over customary institutions.

Peoples, like individuals, must gradually grow accustomed to the enjoyment of their liberty. Too often an immediate emancipation of slaves without any transitional stage has been the reverse of a blessing. It has offered an easy path to idleness and immorality. After being habituated [by generations of custom] to a rule of absolute slavery or to the wild independence of barbarism, a man is not likely to conform to the great law of work except under some form of compulsion. A mitigated slavery that respects the dignity and the fundamental rights of human personality can then, it would seem, be justified, not indeed as a definitive institution but as a provisional state of affairs.

[275(79)]

Our next blog posting will look at Mercier's discussion of liberty of opinion and expression.


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*Seneca, Epistulae Morales ad Lucilium, V.xlvii.10. (Vis tu cogitare istum quem servum tuum vocas ex isdem seminibus ortum eodem frui caelo, aeque spirare, aeque vivere, aeque mori!) "See that you remember that he whom you call your slave sprang from the same seed, is smiled upon by the same skies [as you], and [with you] breaths, equally lives, and equally dies!)
**Although this is clearly the thought of the Stoics, I could not locate this quote in Epictetus's Enchiridion or Discourses.
***Aristotle, Politics 1254b15-24: ὅσοι μὲν οὖν τοσοῦτον διεστᾶσιν ὅσον ψυχὴ σώματος καὶ ἄνθρωπος θηρίου (διάκεινται δὲ τοῦτον τὸν τρόπον ὅσων ἐστὶν ἔργον ἡ τοῦ σώματος χρῆσις, καὶ τοῦτ᾽ ἐστ᾽ ἀπ᾽ αὐτῶν βέλτιστον), οὗτοι μέν εἰσι φύσει δοῦλοι, οἷς βέλτιόν ἐστιν ἄρχεσθαι ταύτην τὴν ἀρχήν, εἴπερ καὶ τοῖς εἰρημένοις. ἔστι γὰρ φύσει δοῦλος ὁ δυνάμενος ἄλλου εἶναι (διὸ καὶ ἄλλου ἐστίν), καὶ ὁ κοινωνῶν λόγου τοσοῦτον ὅσον αἰσθάνεσθαι ἀλλὰ μὴ ἔχειν. ("[A]ll men that differ as widely as the soul does from the body and the human being from the lower animal (and this is the condition of those whose function is the use of the body and from whom this is the best that is forthcoming) these are by nature slaves, for whom to be governed by this kind of authority is advantageous, inasmuch as it is advantageous to the subject things already mentioned. For he is by nature a slave who is capable of belonging to another (and that is why he does so belong), and who participates in reason so far as to apprehend it but not to possess it . . . ") (H. Rackham, trans.)
****At-will employment is an employment relationship in which both parties are absolutely free to break the employment relationship without any liability or reciprocal obligation for future work or pay or other obligation. One can easily think of situations where such absolute lack of restriction on the employment relationship (the very opposite of chattel slavery) is unjust, either for the employer or for the employee. What if, an employee suddenly quits after the employer has invested three years' of training? Is there any moral obligation on the part of the employee to consider the rights of the employer? Should the law recognize or enforce such a moral obligation? What if a devoted employee, who has contributed years of effort to the success of some enterprise, gets sick and so is fired by the employer? Does the employer have a moral obligation to the employee in such instance? If so, should the law enforce it? If the at-will employment relationship (the opposite of chattel slavery) can itself be unjust, then where, in between at-will employment and chattel slavery, does the relationship become morally acceptable? In this area of contingency there is much room for opinion, adaptation to circumstance, and the exercise of prudence.

Cardinal Mercier and the Natural Law, Part 14: Natural Law, Right, and Duty

FROM GENERAL ETHICS, Cardinal Mercier goes into special ethics. His introduction to the topic of special ethics begins with clarification between the moral law, the natural law, positive law, rights, their origins and their kinds. Natural law or natural right, in its wide or most broad sense, "comprises all the rules of conduct which are logically deduced from the [natural] moral law, and which form the basis of our rights and duties both with regard to our neighbour and society in general." In this wide sense it is equivalent to "social morality." Used in this broader sense, we are dealing not with the foundational natural law, but with natural law after it has been determined, fitted, as it were, to the contingencies of contemporaneous society. Thus, although the natural law in the narrow sense is immutable and universally known, in this wide sense, the natural law or right may not be immutable or universally known. (In fact, it may not even exist until a contingency. Before in vitro fertilization, there was no need for natural law guidance in this area. Before the advent of paper money, "fiat" money, there was no need for natural morality to be applied to this human creation, etc.) The term natural law may also be used in a more restrictive sense than "social morality." It may be used that part of "social morality which treats of our duties arising from justice." [264(70)]. This subset of "social morality," also referred to as natural law, "designates all the rules of conduct which are logically derived from the moral law and whose execution, if need be, may be enforced by coercive measures." [263(70)] Thus we have natural law in the narrow sense, and natural law broadly defined as equivalent to "social morality," and natural law defined as a subset of "social morality," being those aspects of social morality which are subject to enforcement because of their close relationship to justice.

Positive law is the law that is posited,* or promulgated, by legitimate authority over a civil society. By its nature, it is flexible and changing by circumstance, and its aim, and indeed its justification, is that it orders the body politic with the end of the common good.

Our obedience is due to positive laws because such obedience is a condition of social life in its full development. Hence nature, or what comes to the same, natural law, enjoins a respect for the commands of a human legislator. The will of a legislator, since it is of a kind no different from our own, cannot of itself constitute the source of a true obligation for us; but the natural law, being dictated by God, does possess sovereign claims to our obedience.

[264(72)] Thus human positive law is, as it were, an appendage to the natural law. It requires the natural law for its authority. "There is a higher law than human laws, one 'written on the tablets of the heart', in the name of which the individual always has the right to protest against the tyranny of rulers."
--Cardinal Mercier It has no authority outside of the natural law, since it is based upon the will of man, and one man's will has, without authority behind it, no particular right to obedience. Mere aggregation of human wills in a chamber at a capitol does not make those wills any more grand so as to justify obedience without authority. Since all authority comes from God (Rom. 13:1), it follows that the positive law must accord with the law of God, must be within the scope of God's agency, or it ceases to have any binding nature. A human law that strays from its justification, that issues outside of the scope of its agency, collapses once again mere human will. So even though it comes dressed as a law, it is not law at all.

That is precisely where Mercier finds a corollary that is anathema to the positivists, secularists, and tyrants of any time and place:

No one must obey a positive law that clearly contradicts the fundamental principles of the moral law. In such circumstances the inalienable rights of the individual conscience must be resolutely vindicated against the claims of any form absolutism.

[264(73)] The source of this absolutism is irrelevant: it can be the will of one man, it can be the will of all but the conscientious one, it can be the will of any number in between.

It is at once apparent that this principle is subject to abuse. It is not a recipe for revolution or easy excuse for disobedience to properly constituted authority. But the fact that it is subject to abuse does not change one iota the fundamental truth of the principle. The danger of its abuse, however, "only furnishes a reason for not making a light use of its application and for carefully gauging its extent." The danger of its abuse does not give reason for "repudiating it." [264(73)] The fact that a law may be prejudicial to our interests is not justification for disobedience. The fact that a law may be against our best opinion is no justification for disobedience. Benefit of the doubt should be given to authority. Even if a law is clearly unjust, we may have to tolerate it, as affirmative disobedience to an unjust law may foreseeably result in more injustice than tolerance of an unjust law. But with all those caveats it remains unalterably true:

There is a higher law than human laws, one 'written on the tablets of the heart', in the name of which the individual always has the right to protest against the tyranny of rulers. In vindication of this right the martyrs shed their blood.

[265(73)]

Mercier's discussion of the relationship between natural law and positive law then gives way to the discussion of the origin of rights, both natural rights and positive rights. As positive law finds its fons et origo in the natural law, the question can be translated to whether positive rights find their fontes et origines in natural rights.

Mercier rejects at once any notion of rights being derived from a priori principles of individual reason. Thus, any Kantian basis for individual rights (which has essentially been adopted by political liberalism such as John Rawls's version) is spurned. And for good reason. Any Kantian basis for individual rights either ends in might over right or in right being nothing but convention. Mercier explains. Kantian notion of right stems from the categorical imperative, which a priori stems from the constitution of the mind itself. The Kantian formula begins with absolute autonomy of will, and limits it only by the categorical imperative. That imperative requires us to act externally in such a manner with respect to the free exercise of our will so that we may co-exist with the freedom of others and that it may be applied as universal law. The formula essentially requires that "the liberty of each must be reconciled with the liberty of all." [266(74)] The problem with the Kantian formula arises in its overemphasis of autonomy:

If the autonomy of the human person is in a true sense absolute [as proposed by the Kantian formula], I shall respect this autonomy in myself only by exercising my liberty as fully as possible; my right then will know no limit but my might. And everyone else may say the same of himself. Hence an inevitable conflict will arise between the activity of individuals, each of whom will try to extend his rights indefinitely.

[265(74)] In this incessant competitive scramble and clamor for individual rights, which is a necessary result of Kantian autonomy, two things must happen. Either the strongest will win over the weakest, and we fall into that most horrible of prospects that might makes right. Or else some sort of Hobbesian social compact may be made among all competitors so that there may be some sort of mutual pact of coexistence. The basis of right, as a consequence, will either be force or social contract. In one of these two manners will the competition of autonomous wills end. And there will be no notion of natural right. At its root, Mercier further notes, Kantian autonomy, and its emphasis on individualism, is anti-social since it advances the notion that autonomy is the superior good, and there is a mistaken perception that there is a loss of dignity or freedom in subordinating one's autonomy to the life of the community. Mercier therefore rejects any Kantian basis of individual right based upon autonomy and the application of the categorical imperative.

Equally rejected by Mercier is the notion that individual rights derive from the State. Here, the vaguely pantheistic musings of Hegel and Schelling and their followers tie in the Absolute with the State.

The Absolute is one with the substance of the Universe, and this substance is mind. The State is only a mode or aspect of the absolute or divine reason. The will of the State, not as arbitrary but as regulated according to the immutable principles of reason, creates rights.

[266(74)] Not only are these pantheistic theories subject to the criticisms against pantheism generally, but it is more patently offensive and in fact endemically against any sense of natural right. The State is the provider of right, and civil law becomes raised to the stature of absolute sovereignty.

Mercier also rejects any suggestion that human rights derive from a hedonistic or utilitarian principle. The natural right to these essentially Hobbesian thinkers derives from the natural "free for all" that exists in a State of Nature. These rights are entirely traded in for the peace and security of the social compact. Following this trade, the only rights that exist are those that are given by the State, which parcels them out on some sort of utilitarian formula (greatest good for greatest number). So it is that these ultimately lapse into notions that laws and rights derive from social compact or from the will of the legislator.

Similarly, Mercier mentions other competitors to Kant, Hegel, Hobbes, Mill: Rousseau (rights are the result of free will), Herbert Spencer (rights are the product of biological factors or the social organism), only to reject them. [267-68(74)]

The traditional basis for natural right is distinct from those bases advanced by the post-Enlightenment thinkers:

Rights are founded immediately on the moral law inasmuch as this is the expression of the intrinsic exigencies of our nature, and mediately on the Divine Will.

[268(74)] Quite obviously, this basis for human rights is different from the other theories. While it shares with Kantian theories the notion that the basis for human rights is the moral law, it bases itself on a traditional, classical natural-law foundation, both ontological and teleological. It thus does not suffer from the subjectivity of Kantian moral theory, but is ruggedly objective.

[T]his [moral] law, we maintain, [unlike Kant's moral law,] does not resolve itself into a priori judgments arising from the constitution of the mind and without any objective validity. The principles of our reason are the expression of essential relations which exist between things; our reason is not determined in the formation of its judgments by any blind necessity (e.g., by a priori forms) but by the force of objective evidence [i.e., reality, the way things are]. Hence when it prescribes certain rules of conduct in our dealings with other men, it does but formulate an order of relations which are derived from our very nature. Man is by nature a social being. The moral law therefore teaches him to live in accordance with that social nature. From this there result a number of practical judgments or imperatives which constitute the Natural Law.

[268(74)]

The purpose of the positive law, then, is to enflesh, in a human way, these fundamental human rights that derive from the natural law.

The function of Positive law is to interpret what is enjoined by the Natural Law, to develop its consequences, to enforce its execution, and to check its violation.

[268(74)] (emphasis added).

To maintain, as the positivist juridical theorists such as John Austin and his ilk maintain, that law and morality are, like East and West, separate and never should "Rights are founded immediately on the moral law ..."
--Cardinal Mercierthe twain meet, is folly. The moral law is, in fact, the one and only sure basis and foundation, the fons et origo of positive law and positive right. Ultimately, we find human right informed by our nature, "[b]ut as our nature, and consequently the moral law, have their origin from God, it must be the Divine Will, acting under the guidance of the Divine Reason, which is the metaphysical source of the natural law," and, through the natural law, the positive law.

Mercier then launches into a discussion of rights. These he divides into three general groupings: individual right, family right, and public right.

What, in Mercier's view, individual right consists of in light of the natural law is the topic of our next posting.

__________________________________
*posit comes from the Latin positus, past participle of the verb ponere "to put" or "to place." Thus it means having been put or placed forth. It is thus law that is put or placed by the will of the legislator which could be human (in which case it is human positive law) or God (in which case it is divine positive law).

Universal Ethic-The Natural Law and the State 4-Natural Right and Positive Right

4.4. Natural right and positive right

91. Positive right should make an effort of carrying out the requirements of natural right. It does this in the form of conclusions (natural right prohibits murder, positive right prohibits abortion), or through determinations (the natural right prescribes that the guilty ought to be punished, criminal positive law determines the punishment to be applied to all classes of crimes).(82) Inasmuch as they derive truly from natural rights and therefore from the eternal law, human positive laws obligate in conscience. In the contrary case, they do not so obligate. “If the law is not just, it is not even a law.”(83) The positive law is able, or rather ought to, change to remain faithful to its proper calling. In fact, in a certain way, there exists a progress of human reason which, little by little, grasps a better consciousness of what is more suitable for the good of the community. On the other hand, the historical conditions of the life of society change themselves (for good or evil), and the law must adapt to itself to those.(84) So the legislator should determine what is just in concrete historical situations.(85)

92. Natural rights are measures of human relations prior to the will of the legislator. They are given because men live in society. Natural right is what is naturally just before any legal formulation. It is expressed particularly in the subjective rights of the person, like the right with respect to one’s life, to the integrity of the person, to religious freedom, to freedom of thought; the right to form a family and to educate children according to one’s own convictions; the right to associate with others, and to participate the life of the community. . . . These rights, to which contemporary thought attaches great importance, have their source, not in the fluctuating desires of individuals, but in the very structure of human beings and in their humanizing relations. The rights of the human person emerge, therefore, from the just order that should reign in the connections between the men. To recognize these natural rights of man means to recognize the objective order of human relations founded upon the natural law.

(82) Cf. St. Thomas Aquinas, Summa theologiae, Ia-IIae, q. 95, art. 2.

(83) St. Augustine. De libero arbitrio, I, V, 11 [Corpus christianorum, series latina, 29, 217]: "In fact, it seems to me not to be a law, that which is not right"; St. Thomas Aquinas, Summa theologiae, Ia-IIae, q. 93, art 3, ad 2: "Human law has the nature of law in so far as it partakes of right reason; and it is clear that, in this respect, it is derived from the eternal law. But in so far as it deviates from reason, it is called an unjust law, and has the nature, not of law, but of violence. (Lex humana intantum habet rationem legis, inquantum est secundum rationem rectam, et secundum hoc manifestum est quod a lege aeterna derivatur. Inquantum vero a ratione recedit, sic dicitur lex iniqua, et sic non habet rationem legis, sed magis violentiae cuiusdam)”; Ia-IIae, q. 95, art. 2: "Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law. (Unde omnis lex humanitus posita intantum habet de ratione legis, inquantum a lege naturae derivatur. Si vero in aliquo a lege naturali discordet, iam non erit lex sed legis corruptio).”

(84) Cf. St. Thomas Aquinas, Summa theologiae, Ia-IIae, q. 97, art. 1.

(85) According to St. Augustine, the legislator, to do a good work, should consult the eternal law; cf. St. Augustine, De vera religione, XXXI, 58 [Corpus christianorum, series latina, 32, 225] : "The temporal lawgiver, if he is wise and good, consults the eternal law, that no man can judge, so that according to its unchanging norms he is able to recognize what at that moment it is fitting to command or to prohibit. (Conditor tamen legum temporalium, si vir bonus est et sapiens, illam ipsam consulit aeternam, de qua nulli animae iudicare datum est; ut secundum eius immutabiles regulas, quid sit pro tempore iubendum vetandumque discernat)". In a seculariezed society, in which not all recognize the signs of this eternal law, the search, the defense, and the expression of the natural right by means of the positive law guarantees its legitimacy.

Universal Ethic-The Natural Law and the State 3-Natural Law to Natural Right

4.3. From the natural law to the natural right

88. The natural law (lex naturalis) expresses itself as natural right (ius naturale) when the relation of justice between men is considered: relations between physical and moral persons, between persons and public power, and relations of all men with the positive law. One passes from the anthropological category of natural law to the legal and political category of the organization of the State. Natural right is the measure inherent in the agreement between members of the society. It is the immanent rule and measure of human interpersonal and social relationships.

89. Right is not arbitrary: the requirement of justice, which derives from the natural law, is previous to the formulation and to the issuance of right. It is not right that decides what is just. Not even politics is arbitrary: the norms of justice do not arise out of a contract established between men, but their provenance is prior, from the very nature of the human being. Natural right is the anchorage of human law to the natural law. It is the horizon the function of which is to regulate the human legislator when he issues rules as part of his mission in service of the common good. In such a sense, he honors the natural law inherent in the humanity of man. To the contrary, when natural right is negated, only the will of the legislator makes law. In such circumstance, the legislator is no longer the interpreter of what is just and good, but he attributes to himself the prerogative of being the ultimate criterion of what is just.

90. Natural right is not ever a measure fixed once and for all. It is the result of an evaluation of the changeable situations in which men live. It formulates a judgment of practical reason which considers what is just. Natural right, the legal expression of the natural law in the political order, appears as it were the measure of just relations between the members of the community.

Ecstasis and Telos: John Locke: From Natural Law to Natural Right

WALKING A SORT OF VIA MEDIA, a middle way, between the atheist Thomas Hobbes and the Anglican Richard Hooker, John Locke (1632-1704) is a fundamental figure in the history of natural law (lex naturalis) and its subtle transformation, arising from an emphasis on individualism and away from common nature, into the doctrine of natural rights (ius naturale). His influence on Thomas Jefferson and the American founding fathers--even on the phraseology of the American Declaration of Independence--merits him an important place.

In his book Passage to Modernity, Professor Louis Dupré succinctly describes this process:

. . . British philosophers, beginning with John Locke, attempted to restore a normative, moral meaning to the notion of natural law: the "dictates of reason" may conflict with positive laws. But the more they stressed the norms inherent in an individualist concept of nature, the more they emptied their natural law of any concrete social content. Natural law thus becomes to function as a rational basis of prepolitical, individual rights.

Louis Dupré, Passage to Modernity: An Essay in the Hermeneutics of Nature and Culture (New Haven: Yale University Press, 2004), 99.


While for Hobbes, all natural rights ceased upon formation of the overweening State, that "Mortall God," for Locke the opposite was very clearly the case. Natural rights remained after the formation of the State; indeed, the State was obligated not only to recognize those rights, but was formed through a social contract for the very purpose of defending those rights. Levering, 99; see also Rommen, 79.

However, Locke does not "view the law as an objective order of norms out of which individual righs flow by intrinsic necessity," such as one would see in a classic Natural Law doctrine. Compared to the traditional and classic Natural Law doctrines, which viewed human law and human right as participating in, and flowing out of, a greater order designed by God and written in the substance of the created world and in particular man, Locke's notion of inalienable rights is a very thin. It is merely a "nominalistic symbol for a catalogue or bundle of individual rights that stem from individual self-interest." Indeed, in an odd sort of way, in Locke's view, instead of rights arising out of law, law arises out of rights. "The rights to life, liberty, and estate or property make the law; the law does not create them." Rommen, 79.


Though in parting with Hobbes's doctrine, Locke's doctrine is commendable, it is something altogether different from the classic and traditional Natural Law doctrine such as was still to be found in the Anglican Richard Hooker. Levering attributes this shift to a failure on the part of Locke to appreciate the natural disposition of individuals to live in community, an overemphasis on the individual, and an undue focus on man's animalistic needs of self-preservation (the right to life and the procreation of children by means of the family) to the exclusion of other, higher goods both individual and social. In addition, for Locke the individual's need for self-preservation includes the ownership of private ownership of property. Levering thus summarizes:

In short, Locke reduces natural law to the bare bones of self-preservation, inclusive of property. He thereby turns natural law radically inward upon the individual and upon the inclination most shared by human beings with other animals. In so doing, he has turned upside-down the biblical theocentric and ecstatic account of natural law . . . .

Levering, 103.

Informed as they are by a political philosophy and culture so deeply influenced by Locke's individualism, Americans suffer from the effect of Locke's thin, individualistic theory of natural rights revolving around a short list, an ensemble of private rights. When we talk about rights, we are therefore predisposed to focus on self-interest and questions of commutative justice over questions of distributive justice, legal justice, and the common good. We engage only in "Rights Talk," and it impoverishes our political discourse (Mary Ann Glendon). We ignore "Duties Talk." Looking at the world from the traditional or classical doctrine of the Natural Law will therefore broaden our perspective.

We ought to put Locke's Two Treatises aside for a time, and turn to Richard Hooker's Laws of Ecclesiastical Polity, or, better yet, turn to Thomas Aquinas's Treatise on Law. Best yet, we ought to go to John Paul II and his masterly synopsis on the Natural Law, his Encyclical Veritatis Splendor.