Ours by Right
Natural Rights and the Right to Choose by Hadley Arkes
Cambridge University Press, 2002 xiii + 302 pgs.
Hadley Arkes gives us too much of a good thing. He argues, with great effectiveness, that legal thinkers today ignore the natural law basis that grounds human rights. Instead, personal value judgments, with no backing in reality, are exalted above all else. Thus, if a woman wishes to terminate her pregnancy, she should, on this modern view, be free to do so, since nothing can override her right to decide for herself whether she has a duty to respect the life of her baby. Such thinking Arkes finds in the notorious Roe v. Wade decision and later Supreme Court decisions that have extended and modified this decision.
Arkes seeks to entrap supporters of legalized abortion in a contradiction. They claim a right to abortion; but at the same time, their defense of unlimited personal autonomy overthrows the basis of all rights—including the claimed right of abortion. Thus, their position destroys itself. I shall endeavor to show that Arkes's argument does not have the full force he imputes to it: it works against some, but not all, defenses of abortion. I shall resolutely avoid taking a position on the morality of abortion. As my readers will know, I always avoid controversy.
Classical liberals place great stress on individual freedom; but, in apparent paradox, not everything in a libertarian system rests on the free decisions of individuals. The very existence of individual rights is a matter that does not rest on choice. It is a truth about the world that persons have rights: they do not decide to have them.
Arkes goes further: the existence of rights rests on natural law. Not only is it true that human beings have rights, but these rights are entailed by man's nature. In his view, natural law underlies the founding of the United States; but the views of the Founders arouse scorn in modern-day relativists and skeptics. In the most influential twentieth-century book on the Declaration of Independence, Carl Becker claimed, "to ask whether the natural rights philosophy of the Declaration of Independence is true or false . . . is essentially a meaningless question" (p. 22, quoting Becker). About this view Arkes tartly remarks: "Becker was hardly detached or open-minded himself; his detachment revealed his own settled judgment that the doctrines of the Declaration were not indeed truths, because there were no moral truths" (p. 23).
Our author is interested in Becker primarily as a symptom. His attitude reflects a general trend among twentieth-century legal, philosophical, and historical theorists to embrace moral skepticism.
Several problems with Arkes's analysis arise. First, he fails to distinguish between accepting natural law and believing in the existence of moral truth. All believers in natural law accept moral truth, but the converse is by no means the case. Several other moral theories acknowledge moral truths, e.g., Kantianism, divine command theories, and intuitionism. I am not here just making one of my usual pedantic points: Arkes's equation of moral objectivity with natural law leads him into error. (I do not mean to suggest that there is something amiss with natural-law ethics. On the contrary, it seems to be a compelling view, although, unlike Arkes, I prefer Murray Rothbard's version of it to Harry Jaffa's.)
For one thing, the passage he cites from Becker does not say what Arkes alleges it does. Becker does not deny the existence of moral truth: he says only that to ask whether natural law philosophy is true raises a meaningless question. On the strength of a passage from a later work that Arkes later cites, Becker probably accepted ordinary, commonsensical moral judgments as true but questioned philosophical accounts of them. To speak of "the incredible cynicism and brutality of Adolf Hitler's ambitions" (p. 23, quoting Becker) hardly suggests moral skepticism.
So what? Why does it matter whether Arkes has got Becker right? Arkes's narrow view of moral objectivity leads him grossly to overrate the prevalence of moral skepticism in contemporary legal thought. Unless you embrace natural law, Arkes counts you a nihilist; and this sometimes leads him to ridiculous conclusions. He says, e.g., that Ronald Dworkin, the most influential contemporary legal philosopher, "has carefully avoided any claim that [he] . . . is appealing to moral truths or natural law" (p. 63). Dworkin's appeal to a nation's traditions is a formula that "in the nineteenth century, would have encompassed slavery in America" (p. 63). Arkes appears totally unaware that Dworkin has strongly defended moral objectivity. Further, he has argued that the immorality of slavery ruled out enforcement of the Fugitive Slave clause of the Constitution.1
I must not press my objection too far. Arkes is clearly right to think that many of the Founding Fathers embraced natural law, that few legal thinkers do so today, and that this change has very much been for the worse. Oliver Wendell Holmes, Learned Hand, and Richard Posner are not creatures of Arkes's imagination: they are genuine, and enormously influential, moral skeptics.
But what has all this to do with legalized abortion? Our author thinks that its defenders necessarily reject natural law and embrace moral skepticism. A mother, it is held, may if she wishes destroy the life of the human being within her. She must then believe that whether the human being in question has a right to life depends entirely on her decision, or on the decision of the "society" that permits her to elect abortion. Only certain human beings count as "persons" entitled to moral standing.
This view at once leads to a contradiction. Society can decide whether a human baby counts as a person; if the decision goes against it, it has no rights. But if rights rest on social decision, what of a woman's supposed "right to choose"? Is society not free to deny this as well? May it not in fact end the mother's right to life, if she turns out to be a member of a condemned class or racial group? The "right to choose" implies moral skepticism, which undermines all rights, including the right to choose.
Arkes states the essence of his argument in this way: let us assume a right to abortion. "Plainly, the child had a claim to exist, as the bearer of rights, only when the mother decided to confer on her the privilege of living. . . . But if the child gains her rights in this way, they can hardly be natural rights. . . . If there is no objective truth attending to 'nature,' or human nature . . . then how could any of us be bearers of rights that have objective standing? Could our rights, after all, have objective standing, when we ourselves do not? . . . The people who sign on to the 'right to abortion' in the radical style of our current laws . . . set in place the logic that deprives them of all of their rights" (pp. 179, 181, emphasis removed).
This argument strikes with great force at the rationale of the major Supreme Court decisions on abortion. When, in Planned Parenthood v. Casey, the court informs us, "at the heart of liberty is the right to define one's own concept of meaning, of the universe, and of the mystery of human life" (p. 43), do we not have a precise example of what Arkes has in mind? The Court is saying that whether a child is to be accorded human rights depends on the mother's opinion of its status. If the child's right to live depends on the mother's world-outlook, then Arkes's question is to the point: what is the basis of the mother's rights? Do they rest only on opinion?
I cannot think, though, that Arkes's argument entirely settles the morality of abortion. Someone might acknowledge the full humanity of the fetus, accept a version of natural law, yet still think abortion should be legal. He might hold that the right to life does not entail positive rights by others to preserve it. Thus, even if the fetus has full human rights, the mother should be under no enforceable obligation to allow her body to be used for its support. I do not say this view is correct—remember, I have resolved to stay out of trouble. Rather, my point is more limited: someone with this position need not fall victim to Arkes's argument. In like manner, someone could hold that the fetus, by objective criteria, fails to meet the requirements for human rights. Would he not escape our author's strictures?
Our author agrees with Lenin on the unity of theory and practice, and he has been heavily involved in political action to limit or reverse Roe v. Wade. In particular, he has sought to ensure legally that a baby that survives an abortion has a full human right to life and that partial-birth abortions are banned. He offers a fascinating narrative of his struggles in these and other matters. Here I shall tip my hand and say that on these issues he seems to me entirely in the right.
1 For further discussion of Dworkin, see my review of his Sovereign Virtue, in The Mises Review, Winter, 2000.