WEBVTT NOTE 4. Natural Law and Natural Rights 1 00:00:00.000 --> 00:00:07.040 Chapter 4 Natural Law and Natural Rights 2 00:00:07.040 --> 00:00:12.440 As we have indicated, the great failing of natural law theory, from Plato and Aristotle 3 00:00:12.440 --> 00:00:17.760 to the Thomists and down to Leo Strauss and his followers in the present day, is to have 4 00:00:17.760 --> 00:00:22.440 been profoundly statist rather than individualist. 5 00:00:22.440 --> 00:00:28.280 This classical natural law theory placed the locus of the good and of virtuous action in 6 00:00:28.280 --> 00:00:34.280 and the State, with individuals strictly subordinated to state action. 7 00:00:34.280 --> 00:00:39.840 Thus from Aristotle's correct dictum that man is a social animal, that his nature is 8 00:00:39.840 --> 00:00:47.220 best fitted for social cooperation, the classicists leaped illegitimately to a virtual identification 9 00:00:47.220 --> 00:00:55.020 of society and the state, and thence to the state as the major locus of virtuous action. 10 00:00:55.020 --> 00:01:02.660 It was, in contrast, the Levellers, and particularly John Locke in 17th century England, who transformed 11 00:01:02.660 --> 00:01:10.840 classical natural law into a theory grounded on methodological, and hence political, individualism. 12 00:01:10.840 --> 00:01:16.860 From the Lockean emphasis on the individual as the unit of action, as the entity who thinks, 13 00:01:16.860 --> 00:01:23.860 feels, chooses and acts, stemmed his conception of natural law in politics as establishing 14 00:01:23.860 --> 00:01:27.580 the natural rights of each individual. 15 00:01:27.580 --> 00:01:32.580 It was the Lockean individualist tradition that profoundly influenced the later American 16 00:01:32.580 --> 00:01:38.440 revolutionaries and the dominant tradition of libertarian political thought in the revolutionary 17 00:01:38.440 --> 00:01:40.500 new nation. 18 00:01:40.500 --> 00:01:46.300 It is this tradition of natural rights libertarianism upon which the present volume attempts to 19 00:01:46.300 --> 00:01:48.740 build. 20 00:01:48.740 --> 00:01:53.900 Locke's celebrated second treatise on government was certainly one of the first systematic 21 00:01:53.900 --> 00:01:59.620 elaborations of libertarian, individualistic, natural rights theory. 22 00:01:59.620 --> 00:02:05.660 Indeed, the similarity between Locke's view and the theory set forth below will become 23 00:02:05.660 --> 00:02:09.820 evident from the following passage. 24 00:02:09.820 --> 00:02:13.700 Every man has a property in his own person. 25 00:02:13.700 --> 00:02:17.160 This nobody has any right to but himself. 26 00:02:17.160 --> 00:02:23.480 The labor of his body and the work of his hands, we may say, are properly his. 27 00:02:23.480 --> 00:02:29.320 Whatsoever then he removes out of the state that Nature hath provided and left it in, 28 00:02:29.320 --> 00:02:35.280 he hath mixed his labor with and joined to it something that is his own, and thereby 29 00:02:35.280 --> 00:02:38.240 makes it his property. 30 00:02:38.240 --> 00:02:44.480 It being by him removed from the common state Nature placed it in, it hath by this labor 31 00:02:44.480 --> 00:02:50.800 Something annexed to it that excludes the common right of other men. 32 00:02:50.800 --> 00:02:56.960 For this laborer being the unquestionable property of the laborer, no man but he can 33 00:02:56.960 --> 00:03:01.400 have a right to what that is once joined to. 34 00:03:01.400 --> 00:03:07.300 He that is nourished by the acorns he picked up under an oak, or the apples he gathered 35 00:03:07.300 --> 00:03:12.840 from the trees in the wood, has certainly appropriated them to himself. 36 00:03:12.840 --> 00:03:20.400 They can deny, but the nourishment is his. I ask, then, when did they begin to be his? 37 00:03:20.400 --> 00:03:27.040 And his plain, if the first gathering made them not his, nothing else could. That labor 38 00:03:27.040 --> 00:03:33.720 put a distinction between them and common. That added something to the more-than nature 39 00:03:33.720 --> 00:03:40.360 the common mother of all had done, and so they become his private right. And will anyone 40 00:03:40.360 --> 00:03:45.680 Can say he had no right to those acorns or apples he thus appropriated because he had 41 00:03:45.680 --> 00:03:49.980 not the consent of all mankind to make them his? 42 00:03:49.980 --> 00:03:55.380 If such a consent as that was necessary, man had starved, notwithstanding the plenty God 43 00:03:55.380 --> 00:03:57.260 had given him. 44 00:03:57.260 --> 00:04:04.160 We see in commons, which remain so by compact, that tis the taking part of what is common, 45 00:04:04.160 --> 00:04:10.640 and removing it out of the state nature leaves it in, which begins the property, without 46 00:04:10.640 --> 00:04:15.600 which the common is of no use. 47 00:04:15.600 --> 00:04:20.880 It should not be surprising that Locke's natural rights theory, as historians of political 48 00:04:20.880 --> 00:04:26.320 thought have shown, was riddled with contradictions and inconsistencies. 49 00:04:26.320 --> 00:04:32.640 After all, the pioneers of any discipline, any science, are bound to suffer from inconsistencies 50 00:04:32.640 --> 00:04:44.680 in the present work are only surprising to those steeped in the unfortunate modern fashion 51 00:04:44.680 --> 00:04:50.560 that has virtually abolished constructive political philosophy in favor of a mere antiquarian 52 00:04:50.560 --> 00:04:53.060 interest in older texts. 53 00:04:53.060 --> 00:04:59.360 In fact, libertarian natural rights theory continued to be expanded and purified after 54 00:04:59.360 --> 00:05:04.040 Postlock, reaching its culmination in the 19th century works of Herbert Spencer and 55 00:05:04.040 --> 00:05:07.000 Lysander Spooner. 56 00:05:07.000 --> 00:05:12.960 The myriad of post-lock and post-leveler natural rights theorists made clear their view that 57 00:05:12.960 --> 00:05:18.560 these rights stem from the nature of man and of the world around him. 58 00:05:18.560 --> 00:05:25.020 A few strikingly worded examples, 19th century German-American theorist Francis Lieber in 59 00:05:25.020 --> 00:05:28.820 In his earlier and more libertarian treatise, wrote, 60 00:05:28.820 --> 00:05:35.340 The law of nature, or natural law, is the law, the body of rights, which we deduce from 61 00:05:35.340 --> 00:05:38.620 the essential nature of man. 62 00:05:38.620 --> 00:05:44.660 And the prominent 19th century American Unitarian minister, William Ellery Channing. 63 00:05:44.660 --> 00:05:50.340 All men have the same rational nature and the same power of conscience, and all are 64 00:05:50.340 --> 00:05:56.140 are equally made for indefinite improvement of these divine faculties and for the happiness 65 00:05:56.140 --> 00:06:00.100 to be found in their virtuous use. 66 00:06:00.100 --> 00:06:05.580 And Theodore Wolsey, one of the last of the systematic natural rights theorists in 19th 67 00:06:05.580 --> 00:06:07.900 century America. 68 00:06:07.900 --> 00:06:13.780 Natural rights are those which by fair deduction from the present physical, moral, social, 69 00:06:13.780 --> 00:06:19.820 religious characteristics of man he must be invested with in order to fulfill the ends 70 00:06:19.820 --> 00:06:30.940 If, as we have seen, natural law is essentially a revolutionary theory, then so a fortiori 71 00:06:30.940 --> 00:06:34.880 is its individualist natural rights branch. 72 00:06:34.880 --> 00:06:41.700 As the 19th century American natural rights theorist Elisha P. Hurlberg put it, the laws 73 00:06:41.700 --> 00:06:48.380 shall be merely declaratory of natural rights and natural wrongs, and whatever is indifferent 74 00:06:48.380 --> 00:06:55.100 to the Laws of Nature shall be left unnoticed by human legislation, and legal tyranny arises 75 00:06:55.100 --> 00:07:00.660 whenever there is a departure from this simple principle. 76 00:07:00.660 --> 00:07:05.740 A notable example of the revolutionary use of natural rights is, of course, the American 77 00:07:05.740 --> 00:07:11.260 Revolution, which was grounded in a radically revolutionary development of Lockean theory 78 00:07:11.260 --> 00:07:14.060 during the 18th century. 79 00:07:14.060 --> 00:07:20.120 The famous words of the Declaration of Independence, as Jefferson himself made clear, were enunciating 80 00:07:20.120 --> 00:07:25.380 nothing new, but were simply a brilliantly written distillation of the views held by 81 00:07:25.380 --> 00:07:28.520 the Americans of the day. 82 00:07:28.520 --> 00:07:35.380 We hold these truths to be self-evident, that all men are created equal, that they are endowed 83 00:07:35.380 --> 00:07:41.360 by their Creator with certain unalienable rights, that among these are life, liberty 84 00:07:41.360 --> 00:07:43.960 and the pursuit of happiness. 85 00:07:43.960 --> 00:07:50.240 The more common triad at the time was life, liberty and property. 86 00:07:50.240 --> 00:07:55.640 That to secure these rights, governments are instituted among men, deriving their just 87 00:07:55.640 --> 00:07:58.720 powers from the consent of the governed. 88 00:07:58.720 --> 00:08:03.340 That whenever any form of government becomes destructive of these ends, it is the right 89 00:08:03.340 --> 00:08:07.880 of the people to alter or to abolish it. 90 00:08:07.880 --> 00:08:13.560 Particularly striking is the flaming prose of the great abolitionist William Lloyd Garrison, 91 00:08:13.560 --> 00:08:20.200 Applying natural rights theory in a revolutionary way to the question of slavery. 92 00:08:20.200 --> 00:08:23.800 The right to enjoy liberty is inalienable. 93 00:08:23.800 --> 00:08:29.340 Every man has a right to his own body, to the products of his own labor, to the protection 94 00:08:29.340 --> 00:08:30.960 of law. 95 00:08:30.960 --> 00:08:36.400 That all these laws which are now in force, admitting the right of slavery, are therefore 96 00:08:36.400 --> 00:08:45.160 or before God, utterly null and void, and therefore they ought instantly to be abrogated. 97 00:08:45.160 --> 00:08:50.520 We shall be speaking throughout this work of rights, in particular the rights of individuals 98 00:08:50.520 --> 00:08:54.760 to property in their persons and in material objects. 99 00:08:54.760 --> 00:08:58.260 But how do we define rights? 100 00:08:58.260 --> 00:09:04.240 Right has cogently and trenchantly been defined by Professor Sadowski. 101 00:09:04.240 --> 00:09:10.400 When we say that one has the right to do certain things, we mean this and only this, that it 102 00:09:10.400 --> 00:09:16.720 would be immoral for another, alone or in combination, to stop him from doing this, 103 00:09:16.720 --> 00:09:20.720 by the use of physical force or the threat thereof. 104 00:09:20.720 --> 00:09:26.580 We do not mean that any use a man makes of his property within the limits set forth is 105 00:09:26.580 --> 00:09:30.000 necessarily a moral use. 106 00:09:30.000 --> 00:09:35.280 Sadowski's definition highlights the crucial distinction we shall make throughout this 107 00:09:35.280 --> 00:09:43.280 work between a man's right and the morality or immorality of his exercise of that right. 108 00:09:43.280 --> 00:09:48.840 We will contend that it is a man's right to do whatever he wishes with his person. 109 00:09:48.840 --> 00:09:55.640 It is his right not to be molested or interfered with by violence from exercising that right. 110 00:09:55.640 --> 00:10:01.280 But what may be the moral or immoral ways of exercising that right is a question of 111 00:10:01.280 --> 00:10:07.600 personal ethics rather than of political philosophy, which is concerned solely with matters of 112 00:10:07.600 --> 00:10:14.980 right and of the proper or improper exercise of physical violence in human relations. 113 00:10:14.980 --> 00:10:21.320 The importance of this crucial distinction cannot be overemphasized, or as Elisha Hurlbert 114 00:10:21.320 --> 00:10:28.200 would concisely put it, the exercise of a faculty by an individual is its only use. 115 00:10:28.200 --> 00:10:31.640 The manner of its exercise is one thing. 116 00:10:31.640 --> 00:10:34.540 That involves a question of morals. 117 00:10:34.540 --> 00:10:37.540 The right to its exercise is another thing.