Chapter 4 Natural Law and Natural Rights
As we have indicated, the great failing of natural law theory, from Plato and Aristotle
to the Thomists and down to Leo Strauss and his followers in the present day, is to have
been profoundly statist rather than individualist.
This classical natural law theory placed the locus of the good and of virtuous action in
and the State, with individuals strictly subordinated to state action.
Thus from Aristotle's correct dictum that man is a social animal, that his nature is
best fitted for social cooperation, the classicists leaped illegitimately to a virtual identification
of society and the state, and thence to the state as the major locus of virtuous action.
It was, in contrast, the Levellers, and particularly John Locke in 17th century England, who transformed
classical natural law into a theory grounded on methodological, and hence political, individualism.
From the Lockean emphasis on the individual as the unit of action, as the entity who thinks,
feels, chooses and acts, stemmed his conception of natural law in politics as establishing
the natural rights of each individual.
It was the Lockean individualist tradition that profoundly influenced the later American
revolutionaries and the dominant tradition of libertarian political thought in the revolutionary
new nation.
It is this tradition of natural rights libertarianism upon which the present volume attempts to
build.
Locke's celebrated second treatise on government was certainly one of the first systematic
elaborations of libertarian, individualistic, natural rights theory.
Indeed, the similarity between Locke's view and the theory set forth below will become
evident from the following passage.
Every man has a property in his own person.
This nobody has any right to but himself.
The labor of his body and the work of his hands, we may say, are properly his.
Whatsoever then he removes out of the state that Nature hath provided and left it in,
he hath mixed his labor with and joined to it something that is his own, and thereby
makes it his property.
It being by him removed from the common state Nature placed it in, it hath by this labor
Something annexed to it that excludes the common right of other men.
For this laborer being the unquestionable property of the laborer, no man but he can
have a right to what that is once joined to.
He that is nourished by the acorns he picked up under an oak, or the apples he gathered
from the trees in the wood, has certainly appropriated them to himself.
They can deny, but the nourishment is his. I ask, then, when did they begin to be his?
And his plain, if the first gathering made them not his, nothing else could. That labor
put a distinction between them and common. That added something to the more-than nature
the common mother of all had done, and so they become his private right. And will anyone
Can say he had no right to those acorns or apples he thus appropriated because he had
not the consent of all mankind to make them his?
If such a consent as that was necessary, man had starved, notwithstanding the plenty God
had given him.
We see in commons, which remain so by compact, that tis the taking part of what is common,
and removing it out of the state nature leaves it in, which begins the property, without
which the common is of no use.
It should not be surprising that Locke's natural rights theory, as historians of political
thought have shown, was riddled with contradictions and inconsistencies.
After all, the pioneers of any discipline, any science, are bound to suffer from inconsistencies
in the present work are only surprising to those steeped in the unfortunate modern fashion
that has virtually abolished constructive political philosophy in favor of a mere antiquarian
interest in older texts.
In fact, libertarian natural rights theory continued to be expanded and purified after
Postlock, reaching its culmination in the 19th century works of Herbert Spencer and
Lysander Spooner.
The myriad of post-lock and post-leveler natural rights theorists made clear their view that
these rights stem from the nature of man and of the world around him.
A few strikingly worded examples, 19th century German-American theorist Francis Lieber in
In his earlier and more libertarian treatise, wrote,
The law of nature, or natural law, is the law, the body of rights, which we deduce from
the essential nature of man.
And the prominent 19th century American Unitarian minister, William Ellery Channing.
All men have the same rational nature and the same power of conscience, and all are
are equally made for indefinite improvement of these divine faculties and for the happiness
to be found in their virtuous use.
And Theodore Wolsey, one of the last of the systematic natural rights theorists in 19th
century America.
Natural rights are those which by fair deduction from the present physical, moral, social,
religious characteristics of man he must be invested with in order to fulfill the ends
If, as we have seen, natural law is essentially a revolutionary theory, then so a fortiori
is its individualist natural rights branch.
As the 19th century American natural rights theorist Elisha P. Hurlberg put it, the laws
shall be merely declaratory of natural rights and natural wrongs, and whatever is indifferent
to the Laws of Nature shall be left unnoticed by human legislation, and legal tyranny arises
whenever there is a departure from this simple principle.
A notable example of the revolutionary use of natural rights is, of course, the American
Revolution, which was grounded in a radically revolutionary development of Lockean theory
during the 18th century.
The famous words of the Declaration of Independence, as Jefferson himself made clear, were enunciating
nothing new, but were simply a brilliantly written distillation of the views held by
the Americans of the day.
We hold these truths to be self-evident, that all men are created equal, that they are endowed
by their Creator with certain unalienable rights, that among these are life, liberty
and the pursuit of happiness.
The more common triad at the time was life, liberty and property.
That to secure these rights, governments are instituted among men, deriving their just
powers from the consent of the governed.
That whenever any form of government becomes destructive of these ends, it is the right
of the people to alter or to abolish it.
Particularly striking is the flaming prose of the great abolitionist William Lloyd Garrison,
Applying natural rights theory in a revolutionary way to the question of slavery.
The right to enjoy liberty is inalienable.
Every man has a right to his own body, to the products of his own labor, to the protection
of law.
That all these laws which are now in force, admitting the right of slavery, are therefore
or before God, utterly null and void, and therefore they ought instantly to be abrogated.
We shall be speaking throughout this work of rights, in particular the rights of individuals
to property in their persons and in material objects.
But how do we define rights?
Right has cogently and trenchantly been defined by Professor Sadowski.
When we say that one has the right to do certain things, we mean this and only this, that it
would be immoral for another, alone or in combination, to stop him from doing this,
by the use of physical force or the threat thereof.
We do not mean that any use a man makes of his property within the limits set forth is
necessarily a moral use.
Sadowski's definition highlights the crucial distinction we shall make throughout this
work between a man's right and the morality or immorality of his exercise of that right.
We will contend that it is a man's right to do whatever he wishes with his person.
It is his right not to be molested or interfered with by violence from exercising that right.
But what may be the moral or immoral ways of exercising that right is a question of
personal ethics rather than of political philosophy, which is concerned solely with matters of
right and of the proper or improper exercise of physical violence in human relations.
The importance of this crucial distinction cannot be overemphasized, or as Elisha Hurlbert
would concisely put it, the exercise of a faculty by an individual is its only use.
The manner of its exercise is one thing.
That involves a question of morals.
The right to its exercise is another thing.