SYMPOSIUM: Natural Law v. Natural Rights:
What Are They? How Do They Differ? The Association of American Law Schools,
Jurisprudence Section -- 1997: A LAW PROFESSOR'S GUIDE TO NATURAL LAW AND NATURAL RIGHTS
Randy E. Barnett *
* Austin B. Fletcher Professor, Boston University School of Law. This paper was
prepared for presentation at the 1997 meeting of the Jurisprudence Section of
the Association of American Law Schools and is based on a portion of the
introduction to my book, THE STRUCTURE OF LIBERTY: JUSTICE AND THE RULE OF LAW
(forthcoming 1998) [hereinafter BARNETT, STRUCTURE OF LIBERTY]. I wish to thank
David Lyons, Tom Palmer, Henry Veatch, Michael Zuckert, and Stephen Shute for
their helpful comments on an earlier draft. Permission to photocopy for
classroom use is hereby granted. (c) 1997 by Randy E. Barnett.
SUMMARY:
... Reflection on some very obvious generalizations, indeed truisms,
concerning human nature and the world in which men live, show that as long as
these hold good, there are certain rules of conduct which any social
organization must contain if it is to be viable. . . . Such universally
recognized principles of conduct which have a basis in elementary truths
concerning human beings, their natural environment, and aims, may be considered
the minimum content of Natural Law, in
contrast with the more grandiose and more challengeable constructions which
have often been proffered under that name. ... The general form of the argument
is simply that without such a content laws and morals could not forward the
minimum purpose of survival which men have in associating with each other. ...
Unlike some philosophers, persons who make laws are not content to employ a
merely descriptive "value-free" conception of law. ... In determining
the content of background rights, legal rights generated by a sound legal
process may even be entitled to presumptive legitimacy. ...
TEXT-1:
[*655]
Law professors nowadays mention natural law and natural rights on a regular
basis, and not just in jurisprudence. Given that the founding generation
universally subscribed to the idea of natural rights, this concept regularly
makes a prominent appearance in discussions of constitutional law. One simply
cannot avoid the concept if one is to explain Justice Samuel Chase's well-known
claim in Calder v. Bull n1 that "there
are certain vital principles in our free Republican governments, which will
determine and over-rule an apparent and flagrant abuse of legislative power . .
. . An ACT of the Legislature (for I cannot call it a law) contrary to the
great first principles of the social compact, cannot be considered a rightful
exercise of legislative authority." n2 Nor can law professors explain to
their students the reference in the Ninth Amendment to the "other" rights
"retained by the people" n3 without mentioning "the pre-existent
rights of nature." n4
Yet in my experience, when law professors discuss natural rights, they
typically run this concept together with that of natural law. Though these two
ideas are closely related, they are not the same. This Symposium is intended to
discuss the difference between natural law and natural rights. Whereas the
[*656] other contributors are taking primarily an historical and
descriptive approach, my approach will be more conceptual and normative. That
is, I will explain how I think the concept of natural law ought to be
distinguished from that of natural rights. Nonetheless, I believe (though I
will not take pains to demonstrate) that the distinction I draw between the two
concepts is consistent with much of the classical usage of these terms and
helps clarify such usage.
I. THE NATURAL LAW METHODS OF ANALYSIS
The idea of natural law is mysterious to us today. n5 We are accustomed to
thinking of law as the command of the legislature, or perhaps the command of a
government official or judge, that is enforced by a government. A natural law,
whatever that might be, that was not incorporated into a command enforceable by
government seems hardly worth the paper it isn't written on. How can there be a
law in any meaningful sense in the absence of government recognition and
enforcement?
But when we think of the disciplines of engineering or architecture, the idea
of a natural law is not so mysterious. For example, engineers reason that, given the force that gravity exerts on a building, if we want a building that will enable persons to live or work
inside it, then we need to provide a foundation, walls, and
roof of a certain strength. The physical law of gravity leads to the following
"natural law" injunction for human action: given that gravity will cause us to fall rapidly, if we want to live and be happy, then we had better not
jump off tall buildings. The principles of engineering, though formulated by
human beings, are not a product of their will. These principles must come to
grips with the nature of human beings and the world in which human beings live,
and they operate whether or not they are recognized or enforced by any
government. And though they are never perfectly precise and always subject to
incremental improvements and sometimes even breakthroughs, they are far from
arbitrary, and we violate them at our peril.
[*657]
The disciplines of engineering and architecture are normative in that, unlike
the physical sciences on which they may be based in part, they instruct us on
how we ought to act, given the nature of human beings
and the world in which they live, and the purpose at hand. Nor need one be an
engineer or an architect to formulate similar "natural law" normative
principles. For example, the existence of gravity and the nature of the human
body lead to the following natural law injunction for human action: given that gravity will cause us to fall rapidly and that our bodies
will not withstand the fall, if we want to live and be happy, then we had better not jump off tall buildings.
Could it be that the "great first principles of the social compact"
are natural "laws" of this type? If we want persons to
be able to pursue happiness while living in society with each other, then they had best adopt and respect a social structure that
reflects these principles. In the words of the influential seventeenth-century
natural-law theorist Hugo Grotius, the "maintenance of the social order,
which we have roughly sketched, and which is consonant with human intelligence,
is the source of law." n6 According to this way of thinking, "the
basic requirements of an organized social life are the basic principles of the
natural law." n7
True, any such natural law principles may be more difficult to discern and
consequently more controversial than the principles of engineering or
architecture. Partly this is true because human beings are so amazingly complex
and, unlike the materials from which buildings are constructed, are
self-directed in pursuit of their own purposes. But the mere existence of
controversy does not render such principles nonexistent. Nor does the fact that
we cannot see, hear, taste, or touch them. After all, we cannot see, hear,
taste, or touch the principles of engineering or architecture either. Both sets
of principles or "laws" are humanly [*658] constructed
concepts used to explain and predict the world in which we live.
Americans at the founding of the United States well-accepted the idea that the
world, including worldly governments, is governed by laws or principles that
dictate how society ought to be structured, in the very same way that such
natural laws dictate how buildings ought to be built or how crops ought to be
planted. n8 Consider this passage from a sermon delivered by Pastor Elizur
Goodrich (1734-1797) to the governor and general assembly of Connecticut on the
eve of the Constitutional Convention:
The principles of society are the laws, which Almighty God has established in
the moral world, and made necessary to be observed by mankind; in order to
promote their true happiness, in their transactions and intercourse. These laws
may be considered as principles, in respect of their fixedness and operation;
and as maxims, since by the knowledge of them, we discover those rules of
conduct, which direct mankind to the highest perfection, and supreme happiness
of their nature. They are as fixed and unchangeable as
the laws which operate in the natural world.
Human art in order to produce certain effects, must conform to the
principles and laws, which the Almighty Creator has established in the natural
world. He who neglects the cultivation of his field, and the proper time of
sowing, may not expect a harvest. He, who would assist mankind in raising
weights, and overcoming obstacles, depends on certain rules, derived from the
knowledge of mechanical principles applied to the construction of machines, in
order to give the most useful effect to the smallest force: And every builder
should well understand the best position of firmness and strength, when he is
about to erect an edifice. For he, who attempts
these things, on other principles, than those of nature, attempts to make a new
world; and his aim will prove absurd and his labour lost. No more can mankind
be conducted to happiness; or civil societies united, and enjoy peace and
prosperity, without observing the moral principles and connections, which the
[*659] same Almighty Creator has established for the government of
the moral world. n9
Notice that, although Goodrich identifies God as the original source of the
laws that govern in the moral world, so too does he identify God as the source
of the laws that govern agriculture engineering and architecture. With both
types of principles and laws, once established by a divine power they become
part of the world in which we find ourselves and are discoverable by human
reason. Thus today one can no more disparage the idea of natural law (or
natural rights) because eighteenth-century thinkers attributed their origin to
a divine power than one can disparage the laws of physics because
eighteenth-century scientists believed that such laws were also established by
God.
Whatever the source of these moral principles or laws, however they came to be
inscribed in the world in which we live, Goodrich's argument is that they must
be respected if we are to achieve the end of happiness, peace, and prosperity.
As Hugo Grotius wrote: "What we have been saying [about natural law] would
have a degree of validity even if we should concede that which cannot be
conceded without the utmost wickedness, that there is no God, or that the
affairs of men are of no concern to Him." n10 Richard Tuck characterizes
this passage to mean: "Given the natural facts about men, the laws of
nature followed by (allegedly) strict entailment without any mediating
premisses about God's will (though his will might still be an explanation of
those natural facts)." n11
When one mentions "natural law," some ask, "where are these natural
laws?" Are they "out there" somewhere? Yet we do not speak of
the humanly-developed principles of engineering or agriculture as being
"out there," though these principles must be respected if bridges are
to stand and crops to grow. The [*660] "principles of
society" spoken of by Goodrich are of the same status. They must be
respected if people are to pursue happiness, peace, and prosperity while living
in society with one another.
This natural law account of moral "principles of society" assumes, of
course, that "happiness . . . peace and prosperity" are appropriate
ends. While the essence or nature of happiness, peace, and prosperity may
properly be controversial, should anyone question the assumption that these are
desirable ends to be pursued, additional arguments will need to be presented.
Every intellectual discipline, however, presupposes a commitment by those
within it to certain shared ambitions or problems thought by all members of the
discipline to be worthy of solution. n12 As H.L.A. Hart wrote of the human
desire for survival: "We are committed to it as something presupposed by
the terms of the discussion." n13 Surely, the disciplines of agriculture,
engineering, and architecture are also based on the assumption that human existence
and happiness are worthwhile.
The normative force of natural law can be seen therefore as the imperative of
"if-then." If you want to achieve Y, then you ought to
do Z. If you want to live and be happy, then you ought not jump off tall buildings or drink poison. If you
want to facilitate the pursuit of happiness by those living in society with
others, then you ought to adhere to certain basic
principles. Later in this Article, I shall return to the issue of whether it is
appropriate to characterize as moral the normative
conclusions reached by a "hypothetical imperative" type of
natural-law reasoning.
In describing natural law as based on if-then reasoning, however, I have
omitted one crucial and problematic dimension of this approach. As was seen
above, the existence of gravity provides a prefatory "given" before
the if-then claim: Given that gravity will cause us to fall rapidly, if we want to live and be [*661] happy, then we had better not jump off tall buildings. n14 What
distinguishes natural law reasoning from other types of if-then reasoning is
the particular "given" on which it is based: the nature of human
beings and of the world in which they live. So the fuller argument is: "Given that the nature of human beings and the world in which they
live is X, if we want to achieve Y, then we ought to do Z." This adds yet
another layer of inquiry and controversy. Do human beings have a
"nature"? If so, what is it, and how does that nature suggest that,
if we want to achieve Y, then we ought to do Z?
Some today may dispute the idea that human nature is "innate" or
natural and insist that human nature is "socially constructed," by
which is meant it is the product of complex interaction with others. For
example, what it means to be a man or a woman may not be entirely biological, but rooted also in the
expectations that are imbued in each of us by others from the earliest ages.
While there may be much truth to this observation, it misunderstands the claim
being made by natural-law theorists in two ways. First, unless one posits that
this process of social construction can be willfully manipulated or altered,
then the fact that human nature is a product of social processes, as opposed to
innate natural qualities, is as immaterial to discerning principles of human action
as the belief of classical thinkers that natural law was of divine origin. Even
were processes of social construction the source of what is thought of as human
nature, if these processes cannot freely be altered in any desired manner,
human nature would still affect the manner by which we must accomplish our
ends.
Some who believe that human nature is a product of social construction may
indeed think that it may be deliberately altered or manipulated. That is, they
believe that if a particular social construction of human nature is X and we prefer it to be Y, we can change
social processes to accomplish this objective. But while it seems clear that
some widespread beliefs or prejudices can, with great effort, be changed, the
types of human characteristics on which natural law reasoning is or ought to be
based cannot be so affected. For example, persons [*662] have
access to personal and local knowledge and are pervasively ignorant of the
personal and local knowledge of others. People also have a tendency to prefer
their own interests and the interests of those for whom they have affection to
the interests of those who are remote to them. The physical resources that
people need to use to pursue happiness are scarce. These and other facts of
human nature and the nature of the world in which we live that greatly
influence the principles that order society, for better or worse, cannot be
changed. They can only be dealt with. n15
Second, some who speak of social construction in this context are objecting to
basing claims simply on an alleged natural tendency of persons to act in
certain ways. They deny that such behavioral tendencies are "natural"
and therefore inevitable or unalterable, much less good. If natural law is
based on how human beings "naturally" or normally act, then it is
based on a fallacy, for human nature, they argue, is as much a product of
social attitudes and practices as it is of any "innate" human nature.
This response to natural law reasoning is based on a misunderstanding of natural
law reasoning.
The concept of "human nature" that is the basis of natural law is not
limited to how persons "naturally," normally, or instinctively
behave. Natural tendencies play only a very small role in such reasoning,
though passages from writings on natural law sometimes suggest otherwise.
Indeed, John Locke explicitly denied that natural inclinations were the same as
natural laws. He rejected the view of those who "seek the principles of
moral action and a rule to live by in men's appetites and natural instincts
rather than in the binding force of a law, just as if that was morally best
which most people desired." n16
[*663]
Though classical natural law reasoning is not based on the natural instincts of
people, to the extent such instincts exist and cannot be changed, whether or
not such instincts are the product of social construction, they may very well
influence what human laws can and cannot accomplish. For example, if humans
instinctively do crave survival, a legal system that required tremendous
personal sacrifice under ordinary circumstances is likely to be resisted by
many. Or because human beings normally try to overcome obstacles put in the way
of their chosen projects, the prohibition of certain pleasurable activities is
likely to lead to an illegal or black market to supply these activities, and
this illegal market, in turn, will likely lead to corruption of law
enforcement. Any legal system that ignored these likely human reactions to
certain laws will reap unfortunate consequences.
The nature of human beings and the world in which they live from which
"principles of society" are derived goes far beyond whatever natural
instincts people may have. In addition to their psychological makeup, this
nature includes the physical needs and abilities of human beings and the
physical properties of the physical world in which humans must live. True, the
natural law mode of analysis does require us to generalize about these features
of social life -- to abstract from the particulars. And though this process is
very much one of "construction," it is no more or less so than any
other theoretical effort. All theories are constructed, if by constructed it is
meant that they are the fallible product of human thought and are not somehow "out
there" written in the stars. n17
None of this is simple or easy. To the contrary, natural law reasoning is
highly contestable because it depends on what we think are the "facts of
human life," both the makeup of human beings and the world in which they
live, and what generalizations we choose to make from these facts. Having made
these factual generalizations (X), it then depends
upon a claim that given X, if you want to accomplish Y, then you must [*664] do Z. Each step of this analysis is subject to error and dispute.
But it is the nature of human life that we must act (this is one of those pesky
generalizations), and, given this imperative, we must decide how to act, and we
ought to act as best we can. Adopting a natural-law mode of reasoning does not
guarantee that we will act wisely, but it does, I think, point in the direction
of wisdom. It tells us what we should be looking for. As important, a proper
theory of natural law explains what we usually do look for and why.
Though I have drawn a parallel between natural laws in engineering and those
which concern the governance of society, this version of natural law does not
succumb to H.L.A. Hart's criticism that some natural-law proponents confuse two
different uses of the term law: so-called natural laws that can be
"broken" by human beings and physical laws that cannot. According to
Hart, though human beings can disobey so-called natural laws,
if the stars behave in ways contrary to the scientific laws which purport to
describe their regular movements, these are not broken but they lose their
title to be called 'laws' and must be reformulated . . . . So, on this view,
belief in Natural Law is reducible to a very simple fallacy: a failure to
perceive the very different senses which those law-impregnated words can bear.
n18
In the conception of natural law I have sketched here, "scientific"
laws influence the formation of "natural-law" principles of society
in the same way they bear on the normative principles of agriculture,
architecture, and engineering. Given facts about human
nature and the nature of the world (including, but not limited to, such
"scientific" laws as the law of gravity), if you want to accomplish certain ends, then you should do X. While a human actor
cannot "break" the law of gravity or the natural law principles that
apply to human social interaction in the sense of repealing them, one pays a price for violating them
none-the-less.
Unsurprisingly then, while Hart rejects the identification of natural law with
physical laws, he endorses a conception of natural law whose analytic structure
is much the same as the natural-law theories I have cited above:
[*665] Reflection on some very obvious generalizations, indeed
truisms, concerning human nature and the world in which men live, show that as
long as these hold good, there are certain rules of conduct which any social
organization must contain if it is to be viable. . . . Such universally
recognized principles of conduct which have a basis in elementary truths
concerning human beings, their natural environment, and aims, may be considered
the minimum content of Natural Law, in
contrast with the more grandiose and more challengeable constructions which
have often been proffered under that name. n19
Hart takes as "given" five contingent facts about "human nature
and the world in which men live" n20 : (a) human vulnerability; (b)
approximate equality; (c) limited altruism; (d) limited resources; and (e)
limited understanding and strength of will. n21 He then assumes, on the basis
of observation, the additional contingent fact that most people desire to
survive: "survival has . . . a special status in relation to human conduct
and in our thought about it, which parallels the prominence and the necessity
ascribed to it in the orthodox formulations of Natural Law." n22
Hart concludes that, given these five factual
conditions, if persons desire to survive, then their legal systems ought to have such features as rules that
"restrict the use of violence in killing or inflicting bodily harm";
n23 "a system of mutual forbearance and compromise"; n24 "some
minimal form of the institution of property (though not necessarily individual
property), and the distinctive kind of rule which requires respect for
it"; n25 rules that "enable individuals to create obligations and to
vary their incidence"; n26 and the imposition of sanctions by an
"organization for the coercion of those who would . . . try to obtain the
advantages of the system without submitting to its obligations." n27
A natural law method of analysis need not be confined to the facts Hart takes
as given, nor limited to the objective of survival. [*666]
Nevertheless, for a natural-law method of analysis to yield answers to the
question of how human beings are to survive, and pursue happiness, peace, and
prosperity while living in society with others, it must be based on some such
generalized features of human beings and the world that are common to all
persons who are interacting with one another. With all this in mind, what then
is the difference between natural law and natural rights?
II. NATURAL LAW ETHICS VERSUS NATURAL RIGHTS
As I have sketched it here, natural law describes a method of analysis of the following type: "Given that the nature of human beings and the world in which they
live is X, if we want to achieve Y, then we ought to do Z." The subject
of any particular natural law analysis fills in the "if." When the
subject is agriculture, the "if" might be "if we want to raise
crops so that human beings may eat." When the subject is engineering the
"if" might be "if we want to build a bridge so that human beings
may cross a river." By the same token, the study of ethics may be conceived as an inquiry into the question of "given
the nature of human beings and the world in which they live (X), if a person wants to live a good life (Y), then he or she ought to do Z." Whether we
attempt to feed ourselves, build bridges, or live a good life is a matter of
choice (though human nature may impel a certain choice n28 ). How we go about
making our attempts and whether they succeed or fail will be constrained by
natural law.
Thus, applying a natural-law method of analysis to the ethical question of how
people ought to live their lives would begin with an inquiry into the nature of
a "good life," resting this judgment, at least in part, on human
nature. Then, given a conception of the good life, a "natural-law
ethics" could potentially address nearly every choice a person confronts.
Should I go to school? Which one? What should I study? Should I use drugs? With
whom should I have sex? Each one of these [*667] questions can
potentially be addressed by the natural-law method of "given-if-then"
analysis.
Does a natural-law approach to ethics also entail that human law coercively
mandate every ethical or moral action recommended by a natural-law analysis and
punish every immoral or unethical act? Do the constraints on action recommended
by a natural-law ethics imply coercively imposed legal constraints on virtue
and vice? Because some think the answers to these questions are yes, they
associate a commitment to natural-law reasoning about virtue and vice with
authoritarian political theory. Yet even the father of modern natural law
analysis, Thomas Aquinas, did not hold to so conservative a view. In answer to
the question, "Whether human law prescribes acts of all the virtues,"
he wrote:
Human law does not prescribe concerning all the acts of every virtue, but only
in regard to those that can be ordered to the common good, either immediately,
as when certain things are done directly for the common good, or mediately, as
when a lawgiver prescribes certain things pertaining to good order, by which
the citizens are directed in the upholding of the common good of justice and peace. n29
And, after asking "whether it pertains to human law to repress all
vices," he answered:
Now human law is framed for a number of human beings, the majority of whom are
not perfect in virtue. Therefore human laws do not forbid all vices, from which
the virtuous abstain, but only the more grievous vices, from which it is
possible for the majority to abstain, and chiefly those that are to the hurt of others, without the prohibition of which human society
could not be maintained; thus human law prohibits murder, theft and the like. n30
In this manner, Aquinas anticipated a distinction that later came to be made by
classical liberal political theorists. While a natural-law analysis could be
applied to a variety of questions, including the question of how human beings ought to act (for example, vice and virtue), the
question of how society ought to be structured is a separate and
quite distinct inquiry. Given the various problems that arise when humans live
and act in society [*668] with others, the classical liberal answer
to the latter question n31 was that each person needed a "space" over
which he or she has sole jurisdiction or liberty to act and within
which no one else may rightfully interfere. The concepts defining this
"liberty" or moral space came to be known as natural rights.
Unlike a natural law approach to ethics, then, natural rights do not proscribe
how rights-holders ought to act towards others. Rather they describe how others
ought to act towards rights-holders. As explained by seventeenth-century
natural-rights theorist Dudley Digges:
If we looke back to the law of Nature, we shall finde that the people would
have had a clearer and most distinct notion of it, if common use of calling it Law had not helped to confound their understanding, when it ought
to have been named the Right of nature; for Right and Law differ as much as Liberty and Bonds: Jus, or right not laying any obligation, but signifying, we may
equally choose to doe or not to doe without fault, whereas Lex or law determines us either to a particular performance by way
of command, or a particular abstinence by way of prohibition; and therefore jus naturae, all the right of nature, which now we can innocently
make use of, is that freedome, not which any law gives us, but which no law
takes away, and lawes are the severall restraints and limitations of native
liberty. n32
Thus it is a mistake, and an all-too-common one, to equate natural law with
natural rights. Natural law is a broader term referring to the given-if-then method of evaluating choices based on the "given" of human
nature and the nature of the world. A natural-law approach to ethics uses a given-if-then analysis to evaluate the propriety of any
human action. In contrast, a natural-rights analysis uses a natural law given-if-then
methodology to identify the liberty or space within
which persons ought to be free to make their own choices. It seeks to determine
the appropriate social structure within which people ought to be free to do as
they please.
According to this distinction, when discussing moral virtues and vices -- or
the problem of distinguishing good from bad behavior -- the imperative for which is supposedly based on
human nature, natural-law ethics is the appropriate term [*669]
(though such principles are sometimes referred to simply as natural law). When
discussing the contours of the moral jurisdiction defined by principles of
justice -- or the problem of distinguishing right from wrong behavior -- which is supposedly based on the nature of human
beings and the world in which they live, the appropriate term would be natural
rights. Whereas natural law ethics provides guidance for our actions, natural
rights define a moral space or liberty -- as opposed to license -- in which we
may act free from the interference of other persons.
In short, natural-law ethics instructs us on how to
exercise the liberty that is defined and protected by natural rights. Although principles
of natural-law ethics can be used to guide one's conduct, they should not be
enforced coercively by human law if doing so would violate the moral space or
liberty defined by natural rights. Thus, one can reject a natural-law approach
to proscribing the ethics or propriety of
human conduct, and still accept the usefulness of a natural-rights approach to
specify the appropriate principles of justice that comprise a
social structure within which people can pursue happiness, peace, and
prosperity.
Justice is a concept -- a concept that is used to evaluate the propriety of
using force. We resort to justice to tell us how persons ought to act, not
generally as a natural-law ethics may do, but specifically when they seek to
use force against others. The classical liberal approach defines justice in
terms of particular natural rights, for example, the rights of several
property, freedom of contract, self-defense, and restitution, for various
reasons that are beyond the scope of this Article. n33 This classical liberal
conception of justice (and the rule of law) is then used to evaluate critically
and to correct human laws that are enforced coercively.
Defining justice in terms of rights, especially natural rights, will invite
confusion, however, unless we are clearer about what it means to call something
a right. A nice description is provided by Allen Buchanan:
Assertions of rights are essentially conclusory and hence argumentative. An assertion of right is a conclusion about what the
moral priorities are. At the same time, because it is a [*670]
conclusion, it is an admission that it is appropriate to demand support for
this conclusion, reasons why such priority ought to be recognized. And it is
vital to recognize that there is a plurality of different kinds of
considerations that can count as moral reasons to support a conclusion of this
sort and that the conclusion that an assertion of a right expresses will
usually be an all-things-considered judgment, the result of a balancing of
conflicting considerations. n34
Thus, to call something a natural right is to assert one's conclusion; it is no
substitute for presenting the reasons why this conclusion is justified. What
makes natural rights natural is the type of
given-if-then reasons that are offered in support of its conclusions, based as
they are on the "givens" of human nature and the nature of the world
in which humans live. What makes such concepts rights is the "natural necessity," n35 to use
H.L.A. Hart's felicitous term, of adhering to them if we are to solve certain
pervasive social problems that must be solved somehow if persons are to achieve
their objectives.
Why the conclusions reached by a natural-rights analysis are properly called
rights is more easily grasped if we distinguish between "background"
and "legal" rights. Background rights are those claims a
person has to legal enforcement that are justified, on balance, by the
full constellation of relevant reasons, whether or not they are actually
recognized and enforced by a legal system. Legal rights, by contrast, are
those claims that some actual legal system will recognize as valid. n36 The
legal rights that a [*671] particular legal system recognizes as
valid may or may not conform to the background rights specified by the liberal
conception of justice. Natural-rights reasoning is a method of identifying background
rights against which the legal rights of any particular legal system can be
assessed. If done properly, then, a natural-rights analysis provides reasons
why legal rights ought to correspond as
closely as possible with natural rights. As H.L.A. Hart put it:
In considering the simple truisms which we set forth here, and their connexion
with law and morals, it is important to observe that in each case the facts
mentioned afford a reason why, given survival
as an aim, law and morals should include a specific content. The general form
of the argument is simply that without such a content laws and morals could not
forward the minimum purpose of survival which men have in associating with each
other. n37
In my view, a natural-rights analysis should also take as its objective, not
only the "purpose of survival which man have in associating with each
other," but also the pursuit of happiness, peace, and prosperity. As I
explain elsewhere, n38 to structure society so as to pursue these ends, human
beings must somehow come to grips with the problems of knowledge, interest, and
power. Doing so will require adherence to the rights and procedures that define
the liberal conception of justice and the rule of law. According to this
natural-law argument, given the pervasive social
problems of knowledge, interest, and power confronting every human society, if human beings are to survive and pursue happiness, peace, and
prosperity while living in society with others, then their laws must not violate certain background natural rights
or the rule of law.
III. NATURAL RIGHTS AND THE OBLIGATORINESS OF HUMAN LAWS
Is this given-if-then conception of natural rights robust enough to create a moral obligation that they be respected? Are those persons who do not
accept the "if" in this given-if-then analysis morally bound to
adhere to natural rights? Michael [*672] Zuckert pointedly
identifies this difficulty for Hugo Grotius's given-if-then conception of
natural law:
Grotius appears able, at best, to generate a hypothetical obligation: to live
according to one's nature, one ought to obey the natural law. But where is the
obligation to live according to nature? . . . . As Grotius concedes in a key
place, perhaps the best one can really say is that it is "wise" to
live according to the promptings of nature; he cannot establish the
obligatoriness of natural law. n39
This difficulty may be recast as follows: in what sense are natural rights,
conceived in the way I do here, obligatory requirements of justice as opposed to mere prudential guides to conduct? Are persons
obligated to respect them, particularly, if they reject the purposes they
serve?
For reasons I shall explain in this section, I think this response overstates
the distinction between justice and prudence. In this matter I agree with
Phillipa Foote, who wrote: "That moral judgments cannot be hypothetical
imperatives has come to seem an unquestionable truth. It will be argued here
that it is not." n40 The distinction between a hypothetical imperative and
a categorical imperative was made by Immanuel Kant:
All imperatives command either hypothetically or categorically. Hypothetical
imperatives declare a possible action to be practically necessary as a means to
the attainment of something else that one wills (or that one may will). A
categorical imperative would be one which represented an action as objectively
necessary in itself apart from its relation to a further end. n41
Categorical imperatives "tell us what we have to do whatever our interests
or desires, and by their inescapability they are distinguished from
hypothetical imperatives." n42
Foote questions whether categorical imperatives are really any more
"imperative" than hypothetical ones. A moral man "has moral ends
and cannot be indifferent to matters such as [*673] suffering and
injustice." n43 He does not have these ends because they are dictated by
categorical imperatives but because he is moral and cares about morality,
including the morality dictated by categorical imperatives. Foote argues that, despite
the efforts of philosophers to show otherwise, the mere existence of a
categorical imperative does not provide a reason for an amoral person to adopt
a moral demand.
If he is an amoral man, he may deny that he has any reason to trouble his head
over this or any other moral demand. Of course, he may be mistaken, and his
life as well as others' lives may be most sadly spoiled by his selfshness. But
this is not what is urged by those who think they can close the matter by an
emphatic use of "ought." My argument is that they are relying on an
illusion, as if trying to give the moral "ought" a magic force. n44
In short, only if one cares about morality will one care about a categorical
imperative.
I shall not attempt to summarize further Professor Foote's argument here, nor
wager an opinion on whether hypothetical imperatives are just as
"moral" as categorical ones. Instead, I will supplement her argument
with several reasons why, regardless of whether one accepts her conclusion, the
hypothetical imperatives provided by the sort of natural-rights analysis I am
describing were of moral significance. For the real issue may be not so much
whether background natural rights are morally obligatory, but the moral
obligatoriness of human laws that infringe upon them.
The term "law" can be used descriptively or normatively.
Descriptively, it can refer to commands by a recognized lawmaker which, if
disobeyed, will result in the imposition of a legal sanction, whether or not
such commands are just. Even the natural-law theorist Thomas Aquinas was quite
capable of distinguishing, as a descriptive matter, between those human laws
that were just and those that were unjust, when he declared that "laws
framed by man are either just or unjust." n45 Whether just or unjust,
Aquinas described both as "laws."
Rather, for Aquinas and other natural law thinkers, the issue of lawfulness is
not purely descriptive or "value-neutral" as it is [*674]
for modern legal positivists, n46 but normative. Only just laws "have the
power of binding in conscience." n47 It is this issue of "binding in
conscience" that informs his endorsement of Augustine's statement that
"that which is not just seems to be no law at all; therefore the force of a law depends on the extent of its justice." n48 By
"force" he meant moral force of a law to
bind in conscience. As John Locke wrote, "we should not obey a king just
out of fear, because, being more powerful, he can constrain (this in fact would
be to establish firmly the authority of tyrants, robbers, and pirates), but for
conscience' sake." n49 Locke concluded from this that, "hence the
binding force of civil law is dependent on natural law; and we are not so much
coerced into rendering obedience to the magistrate by the power of the civil
law as bound to obedience by natural right." n50 Unless they adhere to
natural law, "the rulers can perhaps by force and with the aid of arms compel the multitude to obedience, but put them under an obligation they cannot." n51
Unlike some philosophers, persons who make laws are not content to employ a
merely descriptive "value-free" conception of law. When they use the
term law to describe their commands they typically claim that others do have a moral duty to obey them. It is legitimate therefore to
assess the validity of their claim. Do their commands really create a duty of
obedience? H.L.A. Hart correctly acknowledged that the challenge for legal
positivism is to explain how a legal command is different than a command of a
gunman -- a "gunman situation writ large." n52 To this he responded
by invoking (albeit without acknowledgment) Locke's distinction between being obliged to obey a command in the sense that one will be coerced
into obedience, and having an obligation. n53 While one was
obliged -- or to use Locke's word, [*675] "compelled" --
to obey the gunman, one had no obligation to do so. But whence comes an
obligation to obey the law?
Hart departed from nineteenth-century legal-positivist John Austin (as well as
from Oliver Wendell Holmes n54 ) by acknowledging that legal obligation is
typically perceived by individuals, not merely as a command from a superior to
a subject or as a way to predict the imposition of a legal sanction, but also
as a reason for personal conduct. This
"internal" point of view cannot be explained entirely by the physical
coercion attached to noncompliance. n55 For Hart, the perception of obligation
was based either on the widespread acceptance of "primary rules"
regulating individual conduct n56 or on the widespread acceptance of
"secondary rules" that regulate the making of primary rules. n57 And
what, according to Hart, accounted for such popular acceptance of primary or
secondary rules?
Rules are conceived and spoken of as imposing obligations when the general
demand for conformity is insistent and the social pressure brought to bear upon
those who deviate or threaten to deviate is great.
. . .
. . . The rules supported by this serious social pressure are thought important
because they are believed to be necessary to the maintenance of social life or
some highly prized feature of it. n58
[*676]
Legal obligation in Hart's scheme, then, is largely, if not entirely, a matter
of perception. Legal rules create obligations of obedience when they are "thought important because they are believed to be
necessary." n59
But at most Hart's account explains the general perception in a given society of an obligation to obey the law,
not whether there truly is such an obligation. When a law-making
authority claims that we are obligated (not merely obliged or compelled) to
obey its commands, we are entitled to ask whether this claim is warranted. When
a normative conception of law entailing a moral obligation to obey is invoked,
whatever quality a law must have to make binding in conscience, we are entitled
to demand that this quality goes in before the name
"law" goes on.
In sum, to determine whether legal rules are really obligatory we must
ask whether they are in fact, as Hart put it,
"necessary to the maintenance of social life." And this is exactly
what a natural-rights inquiry attempts to do. If adherence to natural-rights is
indeed essential for the maintenance of social life, as natural rights
theorists maintain, then laws are obligatory only if they are consistent with
natural rights. By this account, commands may be "law" in the
descriptive sense that they are issued by a recognized law-maker, but they are
only law, in the normative sense of a command that
binds in conscience on the citizenry, if such commands do not violate the
background rights of persons. Thus, for human laws to be obligatory, they
should not violate natural rights. n60 For human beings in society with others,
to be able to pursue happiness, peace, and prosperity, certain background
natural rights must be recognized as enforceable legal rights. n61
This account of the obligation to obey the law suggests yet another reason why
human law or legal rights should respect certain natural rights. At the same
time law makers claim that subjects of their laws have a moral duty of
obedience, they also invariably claim that their laws advance the general
welfare or [*677] the common good. Indeed, if pressed, many would
advance the latter claim in defense of the former, that is, people have a duty
to obey the laws because adherence to the
laws does advance the general welfare. Yet if the analysis presented in favor
of certain rights as natural is correct, then laws that violate these rights do
not advance the general welfare or common good. Indeed,
they harm it. Thus human laws that violate natural rights are not obligatory,
and only those human laws that respect natural rights can be obligatory.
Finally, this previous observation suggests yet another basis for legal rights
to adhere to natural rights. We have all heard that the legitimacy of law
making is grounded on the "consent of the governed" to the law-making
regime. Yet the analysis just presented suggests that the obligation of law
makers to respect natural rights rests, at least in part, on the "consent
of the governors" to respect these rights. For do not law makers
explicitly or implicitly claim that their laws promote the common good and are
not unjust? By doing so, are they not consenting to adhere to any principles of
justice that, if violated, would thwart the common good? For example, the
preface to the United States Constitution explicitly claims that its purpose
was to "establish Justice, insure domestic Tranquility, . . . promote the
general Welfare, and secure the Blessings of Liberty to ourselves and our
Posterity." n62 Do not lawmakers in the United States who take an oath to
uphold the Constitution explicitly obligate themselves to pass laws that
actually do establish justice, do ensure peace, do promote the general
welfare, and do secure liberty? Therefore, if the argument
in favor of certain natural rights holds, then these background rights must be
respected by lawmakers in devising legal rights if for no other reason than
because they have promised or consented to do so.
For all these reasons, even if natural rights generated only a
"prudential" or "hypothetical" obligation, this would be
very significant. For the hypothetical obligation at issue is: if we want a society in which persons can survive and pursue
happiness, peace, and prosperity, then we should respect the liberal
conception of justice (as defined by natural rights) and the rule of law. Who
[*678] among us would not accept this as their political goal? What
lawmaker would deny that he or she desires this objective? Responding to those
who would consider as dangerous and subversive a view of justice that depends
on the contingent fact that people happen to care about certain shared
objectives, Phillipa Foote observed:
But it is interesting that the people of Leningrad were not similarly struck by
the thought that only the contingent fact that other
citizens shared their loyalty and devotion to the city stood between them and
the Germans during the terrible years of the siege. Perhaps we should be less
troubled than we are by fear of defection from the moral cause; perhaps we
should even have less reason to fear it if people thought of themselves as
volunteers banded together to fight for liberty and justice and against
inhumanity and oppression. n63
Of course, in suggesting that legal rights should correspond with background
rights, I claim neither that we can use natural rights to derive legal rights, nor that we can always know what a particular person's background rights are independent of
the processes that produce legal rights. Background natural rights are highly
abstract, and many different sets of rules or laws may be consistent with them.
Further, theorists speculating about background rights usually, if not always,
take the legal rights with which they are familiar as starting points. A legal
system operating according to certain procedures associated with the rule of
law may be needed to generate a set of legal rights that can serve as a
necessary starting point of any theory of background rights. And, if these rule
of law procedures are sound, then the starting points they provide may not be
entirely arbitrary. In determining the content of background rights, legal
rights generated by a sound legal process may even be entitled to presumptive
legitimacy.
Yet despite these caveats, a natural rights analysis attempts to provide
knowledge of certain "principles of society" that must be respected
if persons are to pursue happiness, peace, and prosperity while living in
society with others. Though they may often be more controversial than
principles of engineering, architecture, and agriculture, these principles have
the same status.
[*679] IV. NATURAL RIGHTS AND UTILITY
Is a natural rights analysis utilitarian? Although I do not
have a strong view on this question, for what it is worth, my answer depends on
how the term "utilitarian" is used. If utilitarian is viewed as a consequentialist approach that evaluates practices by their
consequences, then the conception of natural rights sketched here appears to be
consequentialist, though only indirectly. n64 Some rights are thought to be
natural because adherence to them is necessary to solve serious social
problems. For this reason, these rights (not an assessment of utility) are then
used to evaluate the justice of human laws.
I must hasten to add, however, that though a given-if-then argument provides
reasons to favor natural rights, these reasons may well be reinforced and
bolstered by other equally valid "nonconsequentialist" types of
analysis. n65 Moreover, the argument presented here assumes that the goal of
enabling persons to survive and pursue happiness, peace, and prosperity, while
living in society with others, is worthwhile. If this goal needs to be
defended, then it must be on some other grounds -- and such grounds need not be
consequentialist.
If utilitarianism is viewed as a general theory of ethics or morality,
however, then the natural-rights approach presented here, though
consequentialist, is not utilitarian. The approach presented here does not
provide a theory of how persons ought to pursue the good life, the traditional
province of ethics. Many but not all natural rights theorists also take a
natural-law approach to this question, but historically a natural-law approach
to ethics has been more teleological -- that is, based on the natural end or
good for human beings n66 -- than utilitarian.
[*680]
Perhaps most importantly, if utilitarianism is taken as a method of decisionmaking in which the effects of various policies
are assessed by determining their effects on the sum of all individual's
subjective preferences, then the view of natural rights described here is
decidedly not utilitarian. For the indirect consequentialist analysis presented
here suggests that respecting natural rights, not the calculation and
aggregation of subjective preferences, promotes the common good. And the common
good is viewed, not as a sum of preference satisfaction, but as the ability of
each person to pursue happiness, peace, and prosperity while in acting in close
proximity to others.
V. CONCLUSION
By running natural law together with natural rights, law professors typically
miss the subtleties of natural law and natural rights arguments. How then, in a
nutshell, should law professors distinguish between natural law and natural
rights? We can sum up the preceding analysis as follows.
Natural law refers to the given-if-then method of analysis where the
"given" is the nature of human beings and the world in which they
live. This method can be applied to a number of distinct problems, the
"if." When discussing moral virtues and vices, or the problem of
distinguishing good from bad behavior, the
imperative for which is supposedly based on human nature, natural-law ethics is the appropriate term (though such principles are sometimes
referred to simply as natural law). When discussing the contours of the moral
jurisdiction defined by principles of justice, or the problem of distinguishing
right from wrong behavior, which is
supposedly based on the nature of human beings and the world in which they
live, the appropriate term would be natural rights.
In short, natural-law ethics instructs us on how to
exercise the liberty that is defined and protected by natural rights. Whereas natural-law
ethics provides guidance for our actions, natural rights define a moral space
or liberty, as opposed to license, n67 in which we may act free from the
interference of other persons. Although principles of natural-law ethics can be
used to guide individual [*681] conduct, they should not be
enforced coercively by human law if doing so would violate the moral space or
liberty defined by natural rights. And human laws that violate natural rights
do not bind the citizenry in conscience.
FOOTNOTES:
n1 3 U.S. (3 Dall.) 386 (1798).
n2 Id. at 388 (emphasis removed).
n3 U.S. CONST. amend. IX ("The enumeration in the Constitution of certain
rights shall not be construed to deny or disparage others retained by the
people.").
n4 1 THE DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES [ANNALS
OF CONGRESS] 437 (Joseph Gales ed., 1834) (statement of Rep. James Madison).
n5 This reaction is less true today, however, than at any time in the past
several decades. See, e.g., NATURAL LAW THEORY:
CONTEMPORARY ESSAYS (Robert P. George ed., 1992); Natural Law Symposium: Natural Law and Legal Reasoning, 38 CLEV. ST. L.
REV. 1 (1990); Symposium: Perspectives on Natural Law, 61 U. CIN. L. REV.
1 (1992); Symposium on Natural Law, 3 S. CAL.
INTERDISC. L.J. 455 (1995).
n6 HUGO GROTIUS, 2 DE JURE BELLI AC PACIS LIBRI TRES 12 (Francis W. Kelsey
trans., Clarendon Press 1925) (1690) (citation omitted). The passage continues:
To this sphere of law belong the abstaining
from that which is another's, the restoration to another of anything of his
which we may have, together with any gain which we may have received from it;
the obligation to fulfil promises, the making good of a loss incurred through
our fault, and the inflicting of penalties upon men according to their deserts.
Id. at 12-13 (citation
omitted).
n7 STEPHEN BUCKLE, NATURAL LAW AND THE THEORY OF PROPERTY 19 (1991).
n8 See Philip A. Hamburger, Natural
Rights, Natural Law, and American Constitutions, 102 YALE L.J. 907
(1993). Although Hamburger presents a remarkably sensitive analysis of the
evidence concerning the founding generation's understanding of natural law and
natural rights with which I am in general agreement, I do not share his
contention, which is beyond the scope of this article, that this generation did
not think natural rights were a source of legal claims to be made in a court.
n9 ELIZUR GOODRICH, THE PRINCIPLES OF CIVIL UNION AND HAPPINESS CONSIDERED AND
RECOMMENDED: A SERMON (1787), reprinted in POLITICAL SERMONS OF
THE AMERICAN FOUNDING ERA: 1730-1805, at 911, 914-15 (Ellis Sandoz ed., 1991)
(emphasis added).
n10 2 GROTIUS, supra note 6, at 13. Of this passage Stephen
Buckle writes:
This brief remark, by affirming the
possibility of at least a partially secularized political theory, exercised a
powerful influence on subsequent political thought. In an age of intense
political conflict arising from or reflected in religious differences, it also
offered the prospect of peace despite continuing religious differences.
BUCKLE, supra note 7, at 23.
n11 See RICHARD TUCK, NATURAL RIGHTS THEORIES:
THEIR ORIGIN AND DEVELOPMENT 76-77 (1979).
n12 For a discussion of the nature of intellectual disciplines, see STEPHEN
TOULMIN, HUMAN UNDERSTANDING (1972). There he explains that "the existence
and unity of an intellectual discipline, regarded as a specific 'historical
entity', reflects the continuity imposed on its problems by the development of
its intellectual ideals and ambitions." Id. at 155.
n13 H.L.A. HART, THE CONCEPT OF LAW 188 (1961).
n14 There are of course many "givens" implicit in this claim. For
example, given the fragility of the human body, it is not the fall that kills
but the sudden stop at the end. This simply illustrates the complexity of
if-then claims.
n15 In STRUCTURE OF LIBERTY, supra note *, I identify
several of the relevant characteristics and organize them into three categories
of social problems: problems of knowledge, of interest, and of power. These
problems, I argue, must be addressed by recognizing certain rights associated
with the liberal conception of justice and certain principles of legality
associated with the rule of law. A summary of a portion of this analysis
appears in Randy E. Barnett, The Function of Several Property and
Freedom of Contract, 9 SOC. PHIL. & POL'Y 62 (1992).
n16 JOHN LOCKE, ESSAYS ON THE LAW OF NATURE 213 (W. von Leyden ed., 1954)
(1660). Although Grotius thought, as did Aquinas and unlike Locke, that human
inclinations tended to the good, like Locke he too thought that
the law of nature has its beginnings in
instinctive nature, but it is certainly not a mere cloak of rectitude over our
instincts. Rather, reason is our highest characteristic good, and so the law of
nature must in some way reflect our rational nature . . . . The law of nature
is, then, the law of our nature, and thus of rational nature: it is not merely
the transformation of instincts into laws.
BUCKLE, supra note 7, at 25.
n17 If by "constructed" it is meant consciously devised as a whole,
then this is rarely true of human theories. Most theories evolve with only
incremental refinements contributed by individual theorists. See TOULMIN, supra note 12.
n18 HART, supra note 13, at 183.
n19 Id. at 188-89.
n20 Id. at 188.
n21 Id. at 190-193.
n22 Id. at 188.
n23 HART, supra note 13, at 190.
n24 Id. at 191.
n25 Id. at 192.
n26 Id.
n27 Id. at 193.
n28 Aristotelians and Thomists contend that it is part of man's nature to
pursue the good, and I take no stance on this issue. See e.g., THOMAS AQUINAS, SUMMA THEOLOGICA pt. I-II, q. 94, art.
2, reprinted in 20 GREAT BOOKS OF THE WESTERN WORLD 222B
(Robert Hutchins ed., Encyclopaedia Britannica 1952) ("In man there is an
inclination to good in accordance with the nature which he has in common with
all substances; that is, every substance seeks the preservation of its own
being, according to its nature.").
n29 Id. at 232B (emphasis added).
n30 Id. at 232A (emphasis added).
n31 I am not suggesting that this was Aquinas's answer.
n32 DUDLEY DIGGES, THE UNLAWFULNESSE OF SUBJECTS, TAKING UP ARMES AGAINST THEIR
SOVERAIGNE sig. B3v. (1644), quoted in TUCK, supra note 11, at 102-03.
n33 I will present these reasons in STRUCTURE OF LIBERTY, supra note *. I provide a brief and quite incomplete summary in
Barnett, supra note 15.
n34 ALLEN BUCHANAN, SECESSION: THE MORALITY OF POLITICAL DIVORCE FROM FORT
SUMTER TO LITHUANIA AND QUEBEC 151 (1991).
n35 HART, supra note 13, at 195 (emphasis removed from word
"natural"). Hart uses this term while discussing the imperative to
have coercive sanctions in a legal system, as well as rules protecting bodily
integrity, property, and contractual commitments:
We can say, given the setting of natural
facts and aims, which make sanctions both possible and necessary in a municipal
system, that this is a natural necessity; and some such phrase is needed also
to convey the status of the minimum forms of protection for persons, property,
and promises which are similarly indispensable features of municipal law . . .
. [A] place must be reserved, besides definitions and ordinary statements of
fact, for a third category of statements: those the truth of which is
contingent on human beings and the world they live in retaining the salient
characteristics which they have.
Id.
n36 I have loosely adopted this from Ronald Dworkin's distinction between
"background" and "institutional" rights: "Any adequate
[political] theory will distinguish . . . between background rights, which are
rights that provide a justification for political decisions by society in the
abstract, and institutional rights, that provide a justification for a decision
by some particular and specified political institution." RONALD DWORKIN,
TAKING RIGHTS SERIOUSLY 93 (1977). Unfortunately, this helpful distinction has
disappeared from Dworkin's later writings, and it is nowhere to be found in
RONALD DWORKIN, LAW'S EMPIRE (1986).
n37 HART, supra note 13, at 189.
n38 See Barnett, STRUCTURE OF LIBERTY, supra note *.
n39 MICHAEL ZUCKERT, NATURAL RIGHTS AND THE NEW REPUBLICANISM 191 (1994).
n40 Phillipa Foote, Morality as a System of Hypothetical
Imperatives, 81 PHIL. REV. 305, 305 (1972).
n41 IMMANUEL KANT, GROUNDWORK OF THE METAPHYSICS OF MORALS 82 (H. J. Paton
trans., Harper & Row 1964) (1785). The meaning of this passage may be
clarified by substituting the term "desire" for the word
"will" as some translations do.
n42 Foote, supra note 40, at 308.
n43 Id. at 315
n44 Id.
n45 AQUINAS, supra note 28, at 233A.
n46 See, e.g., JOSEPH RAZ, THE AUTHORITY OF LAW
39-40 (1979) ("A jurisprudential theory is acceptable only if its tests
for identifying the content of the law and determining its existence depend
exclusively on facts of human behavior capable of being described in
value-neutral terms, and applied without resort to moral argument.")
(emphasis added).
n47 Id.
n48 Id. at 227 (emphasis added).
n49 LOCKE, supra note 16, at 189.
n50 Id.
n51 Id. at 119 (emphasis added).
n52 HART, supra note 13, at 7.
n53 See HART, supra note 13, at 80:
"There is a difference . . . between the assertion that someone was
obliged to do something and the assertion that he had an obligation to do
it."
n54 See Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 459 (1897) (emphasis
added):
If you want to know the law and nothing
else, you must look at it as a bad man, who cares only for the material
consequences which such knowledge enables him to predict, not as a good one,
who finds his reasons for conduct, whether inside the law or outside of it, in
the vaguer sanctions of conscience.
n55 See HART, supra note 13, at 86-88.
As he summarized this point, for the majority of society, "the violation
of a rule is not merely a basis for the prediction that a hostile reaction will
follow but a reason for hostility."
n56
n57
n58
n59
n60 Although it may be necessary that laws not violate rights for them to be
obligatory, this may not be sufficient. Along with requirements of justice,
requirements of legality specified by the rule of law must also be respected.
n61 Once again, I discuss the particular rights to which I think adherence is
necessary, and the reasons why this is so, in my forthcoming book, supra note *.
n62 U.S. CONST. preamble.
n63 Foote, supra note 40, at 315-16.
n64 See Larry Alexander, Pursuing the Good, Indirectly, 95 ETHICS 315, 317 (1985) ("An
indirect consequentialist is one who, whatever his theory of the Good, believes
the Good is not best attained by conscious attempts to achieve it each time we
act."); John Gray, Indirect Utility and Fundamental
Rights,
1 SOC. PHIL. & POL'Y 73 (1984).
n65 See Randy E. Barnett, Foreword: Of Chickens and
Eggs, The Compatibility of Moral Rights and Consequentialist Analyses, 12 HARV.
J. L. & PUB. POL'Y 610, 611-35 (1989).
n66 See, e.g., HART, supra note 13, at 185 (describing the association of natural-law
thinking with "the teleological conception of nature as containing in
itself levels of excellence which things realize"). For an example of such
a natural law approach to ethics, see HENRY B. VEATCH, FOR AN ONTOLOGY OF
MORALS (1971). For two contemporary examples of a teleological, natural-law
defense of natural rights, see DOUGLAS B. RASMUSSEN & DOUGLAS J. DEN UYL,
LIBERTY AND NATURE (1991); HENRY B. VEATCH, HUMAN RIGHTS: FACT OR FANCY?
(1985).
n67 See JOHN LOCKE, TWO TREATISES OF GOVERNMENT 311
(Peter Laslett ed., Cambridge Mentor rev. ed. 1965) (1690) ("Though this
be a State of Liberty, yet it is not a State of License.").