There's a discussion going on over at The American Conservative regarding the utility of natural law arguments in the American political system. You can read some of the back and forth on the topic in these posts:
Whenever discussions about natural law take place, one of the major issues usually left unaddressed is precisely what one means by the term "natural law," and the related term "natural rights." Noted libertarian legal theorist and law professor Randy Barnett has a guide to understanding natural law available on the web:
A Law Professor's Guide to Natural Law and Natural Rights. Originally published in 1997 by the Harvard Journal of Law & Policy (a journal which has also published work by your humble blog author), Barnett's take is no substitute for the work of men like Aquinas, Hooker, Grotius, Rommen and d'Entreves. But is much more accessible to a current reader, both because of its length and Barnett's writing style. Barnett also helpfully distinguishes natural law from the related but still distinct concept of natural rights. The difference between the two is often overlooked by modern jurists and writers, much to the detriment of both. Barnett sums up the relationship between the two thusly:
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 license67, in which we may act free from the interference of other persons. Although principles of natural-law ethics can be used to guide individual 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.
While Barnett's approach here is heavily influenced by libertarian theory, it stands as a good compliment to the work of Aquinas and other natural law theorists. And as Barnett's essay demonstrates, the discussion of natural law and natural rights really are inevitable in the American system of law and politics. Those who would seek to downplay natural law and natural rights reasoning in our political sphere are not doing themselves any favors.
2 comments:
An excellent though costly book on the subject is John Finnis' Natural Law and Natural Rights. Expensive because published by Oxford University Press.
Thanks for passing that book suggestion along. I'm a fan of Finnish' work and that book is one that I have read several times. His arguments in favor of a secular view of natural law are particularly good, I think, even when he deviates considerably from a traditional Thomistic view of natural law.
My favorite books on natural law are Heinrich Rommen's book Natural Law and Alessandro d'Entreves book Natural Law. Both written after the horror of WWII, one by a German refugee to the US who got a job teaching at Notre Dame and the other by an Italian law professor.
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