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 followersin 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 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 seventeenth-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:
[E]very man has a property in his own person. This nobody has any right to but himself. The labour 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 labour 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 labour something annexed to it that excludes the common right of other men. For this labour being the unquestionable property of the labourer, 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. Nobody can deny but the nourishment is his. I ask then when did they begin to be his? . . . And ‘tis plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and common. That added something to them more than nature, the common mother of all, had done: and so they become his private right. And will any one 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 and lacunae that will be corrected by those that come after them. Divergences from Locke 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 Locke, reaching its culmination in the nineteenth century works of Herbert Spencer and Lysander Spooner.
The myriad of post-Locke and post-Leveller 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: nineteenth-century German-American theorist Francis Lieber, 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 nineteenth-century American Unitarian minister, William Ellery Channing: “All men have the same rational nature and the same power of conscience, and all are equally made for indefinite improvement of these divine faculties and for the happiness to be found in their virtuous use.” And Theodore Woolsey, one of the last of the systematic natural rights theorists in nineteenth-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 to which his nature calls him.”
If, as we have seen, natural law is essentially a revolutionary theory, then so a fortiori is its individualist, natural-rights branch. As the nineteenth-century American natural-rights theorist Elisha P. Hurlbut 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 eighteenth 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, before God, utterly mill 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 Sadowsky:
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.
Sadowsky’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 itis 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 Hurlbut 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.
For a critique of such typical confusion by a modern Thomist, see Murray N. Rothbard, Power and Market, 2nd ed. (Kansas City: Sheed Andrew sand McMeel, 1977), pp. 237–38. Leo Strauss’s defense of classical natural law and his assault on individualistic natural-rights theory may be found in his Natural Rights and History (Chicago: University of Chicago Press, 1953).
John Locke, An Essay Concerning the True Origin, Extent, and End of Civil Government, V. pp. 27–28, in Two Treatises of Government, P. Laslett, ed. (Cambridge: Cambridge University Press, 1960), pp. 3057.
Current scholars, ranging from Marxists to Straussians, consider Thomas Hobbes rather than Locke as the founder of systematic individualist, natural rights theory. For a refutation of this view and a vindication of the older view of Hobbes as a statist and a totalitarian, see Williamson M. Evers, “Hobbes and Liberalism,” The Libertarian Forum (May 1975): 4–6. Also see Evers, “Social Contract: A Critique,” The Journal of Libertarian Studies 1 (Summer 1977): 187-88. For a stress upon Hobbes’s absolutism by a pro-Hobbesian German political theorist, see Carl Schmitt, Der Leviathan in der Staatslehre Thomas Hobbes (Hamburg, 1938). Schmitt was for a time a pro-Nazi theorist.
Francis Lieber, Manual of Political Ethics (1838); Theodore Woolsey, Political Science (1877); cited in Benjamin F. Wright, Jr., American Interpretations of Natural Law (Cambridge, Mass.: Harvard University Press, 1931), pp. 26lff ., 255ff ., 276ff. William Ellery Channing, Works (Boston: American Unitarian Association, 1895), p. 693.
Elisha P. Hurlbut, Essays on Human Rights and Their Political Guarantees (1845), cited in Wright, American Interpretations, pp. 257ff.
See Bernard Bailyn, The ideological 0rigins of the American Revolution (Cambridge, Mass.: Belknap Press of Harvard University Press, 1967).
William Lloyd Garrison, “Declaration of Sentiments of the American Anti-Slavery Convention” (December 1833), cited in W. and J. Pease, eds., The Antislavery Argument (Indianapolis: Hobbs-Merrill, 1965).
James A. Sadowsky, S.J., “Private Property and Collective Ownership,” in Tibor Machan, ed., The Libertarian Alternative (Chicago: Nelson-Hall, 1974), pp. 120–21.
Hurlbut, cited in Wright, American Interpretations, pp. 257ff.