The Non-Absurdity of Natural Law
One Can Disagree with Natural Rights without Declaring the Concept Nonsensical
FEBRUARY 01, 1998 by WENDY MCELROY
Filed Under : Ludwig von Mises
There is an immense difference between disagreeing with a theory and considering it to be absurd. The former can be a respectful process that encourages discussion; the latter implies that anyone who holds the theory must be a fool. In vernacular language, the difference can be expressed as, “Is the other guy wrong, or is he just stupid?”
Natural law has always had vigorous opponents who believed, with the early nineteenth-century English philosopher Jeremy Bentham, that the theory was nonsense upon stilts. Before the twentieth century, the accusation of absurdity was usually hurled by people hostile to individualism, or at least by those who wished to assign a higher priority to some other social consideration, such as utilitarianism. Sir Robert Filmer’s Patriarcha, a defense of the divine right of kings, critiqued the natural-law theory that existed prior to 1640. Within the individualist tradition itself, however, natural law remained a prevailing and well-regarded theory.
Then in the late nineteenth and early twentieth centuries, natural-law theory came under sustained and derisive attack from individualists. The situation was especially contentious in the United States, where individualists who espoused what Benjamin Tucker called “society by contract” began to deride natural rights as being patently absurd. The leading wedge of ridicule was Tucker’s individualist-anarchist periodical Liberty (1881–1907), which was key in transmitting and preserving individualist ideas in post-Civil War America. Liberty, for example, was one of the main conduits of Herbert Spencer’s thought to America.
Unfortunately for natural-law advocates, contributors to Liberty also translated into English the thought of Johann Kasper Schmidt—more popularly known as Max Stirner—who believed natural rights were “ghosts” in men’s minds. The spread of Stirnerite egoism within American individualist ranks emanated from Stirner’s pivotal work on law, property, and the state, The Ego and His Own. The debate that ensued centered on two issues: first, whether egoism or natural rights formed the proper basis of radical individualist theory, and second, whether those who advocated rights were mad.
By contrast, many contemporary individualists find it possible to disagree with natural rights without declaring them to be nonsensical. For example, David Friedman’s latest book, Hidden Order: The Economics of Everyday Life, argues for freedom on purely economic, rather than moral or natural-law grounds. Rather than causing a schism, however, Friedman’s different approach offers valuable insights into the tradition. In Human Action, the Austrian economist Ludwig von Mises goes one step farther and explicitly argues against natural law. But he presents a reasoned argument. Although he is a staunch opponent, he is not a detractor—a difference that may explain why so many natural-rights advocates consider themselves Misesians.
I wish to argue for the non-absurdity of natural law and for the need to tolerate any approach to freedom that is peaceful. But, to do so, it is necessary to first explain what natural-law theory is.
The Theory of Natural Law
Although it consists of only two words, the term “natural law” has long been a battlefield of semantics. The simplest term to grapple with is “law.” It is not used in a legal sense, as in legislation. Rather it refers to a principle, much as you might speak of the laws of physics.
The other word, “natural,” has a more complicated history. The first question to ask is, natural as opposed to what? This particular question has occasioned great debate within the tradition of natural law. Some argue that the word is used as a term of distinction from “supernatural,” or the will of God. Others, such as Thomas Aquinas and those in the Thomistic tradition, interpret natural law in a somewhat more theistic context. Such great ambiguity exists in the term “natural” that long debate has raged over whether there is one tradition or many traditions of natural law.
As Mises explains in Human Action, “From the notion of natural law some people deduce the justice of the institution of private property in the means of production. Other people resort to natural law for the justification of the abolition of private property in the means of production.” In a compelling critique, Mises claims, “There is . . . no . . . perennial standard of what is just and what is unjust. Nature is alien to the idea of right and wrong. ‘Thou shalt not kill’ is certainly not part of natural law. The characteristic feature of natural conditions is that one animal is intent upon killing other animals.”
Mises’s point is well taken if it is directed at the more extreme traditions of natural-law theory, which do cling, in Mises’s words, “to the doctrine that what is right and what is wrong is established from the dawn of the remotest ages and for eternity.” Some natural-law theorists go so far as to say that values are a category of fact.
But there is a more flexible interpretation that better withstands Mises’s criticism. It makes the far more reasonable statement that human values should be grounded in, or based upon facts, and discovered through a process of reason. This version does not extend its theory to include animals other than human beings. It makes no comment on, again Mises’s words, “the many species [that] cannot preserve their own life except by killing others.” It comments only on human nature and assumes that as human beings interact some concept of right and wrong inevitably evolves.
This contention is based partly on history. Even the most primitive of human cultures evolved some standard of right and wrong behavior. Although “Thou shalt not kill” may not be writ in nature, every society has prohibited murder. Indeed, one of the few points on which all societies agree is that the killing of another human being is presumed to be wrong unless somehow justified.
Equally, some concept of right and wrong seems to evolve naturally within the psychology of individuals. A child who is hit for no reason has an automatic reaction to the effect: “He shouldn’t have done that.” He feels wronged. This childlike response may be crude and perhaps merely an emotional one. But it shows that considering the right and wrong of actions is, on some level, a human response to circumstances.
In its simplest statement, then, the more flexible form of natural law is an attempt to ground human values in the facts of reality and of human nature. But given what we know of those facts, is it possible to reason out a code of behavior that maximizes man’s well-being?
Classical liberalism’s answer, which emerged in the seventeenth century through the political analysis of John Locke, is the concept of natural rights—rights being principles of how to behave toward others. Such principles derive from the facts of human nature, and men observe them because rights are conducive to their own well-being. Consider your chances for happiness within society. Certainly happiness is a personal matter that cannot be divorced from the actions you take on a purely individual, nonsocietal level. But it is valid to ask, “Are you more likely to achieve happiness in a violent totalitarian society or in a society that respects your right to peacefully interact with others?”
Approaching the same point from a different angle, consider the question: Why is it wrong to initiate force? The advantages of violating rights are obvious. You can steal money rather than work hard to obtain it; you can eliminate people you find disagreeable. The advantages of respecting rights may not be as clear. In many cases, respecting rights seems to involve sacrificing self-interest. The onus of proof seems to be on the advocate of natural law to explain why rights are in your self-interest.
Return to the question of whether a peaceful society promotes happiness more than a Hobbesian one. Answering this question requires a theory of how society relates to happiness and why life in society is preferable to dwelling alone on a desert island. After all, a desert island offers absolutely unbridled individual freedom. In society, there is always the threat of violence. Why associate with people and run such a risk?
The answer is clear: because association offers tremendous benefits, including friendship, expanded knowledge, a division of labor, and romantic love. Society can maximize your choices if only because many of your decisions, and some of the most important ones, require the presence of other people, for example, the decision to have a child. Yet you can imagine a society from which you would gladly flee into solitude—to name one, a plantation community in which you were a field slave. To the extent a society relies on force, it minimizes choices and becomes a disadvantage. Seen through this lens, rights set a peaceful context that maximizes choice and thus maximizes the chances of individuals attaining happiness within society.
The Charge of Absurdity
Having sketched a version of natural-law theory, I want to leap over the process of defending it—which is not my purpose—and address instead the consequences of contemptuously dismissing natural rights as absurd. Consider an incident that occurred within the nineteenth-century individualist movement in America, specifically, in Benjamin Tucker’s Liberty.
The March 6, 1886, issue of Liberty printed a watershed article by James L. Walker (using the pen name Tak Kak) entitled “What is Justice?,” which advanced the Stirnerite egoist perspective. In a later article in Liberty (April 9, 1887), Tak Kak explicitly attacked the notion that people should abide by principles. Indeed, he claimed, “A declaration of rights is often the pitiful expression of a lack of power. . . . The devotee of a fixed idea is mad. He either runs amuck, or cowers as mesmerized by the idea.”
Tak Kak went on the attack, not only in his arguments but in his attitude. For example, he offered sharp commentary on an earlier article in Liberty penned by the natural-rights advocate Gertrude B. Kelly. Kelly—in the belief that all men are “brothers”—had cried out against acts of brutality committed by white American workers against Chinese workers who had been “imported” as cheap labor. Tak Kak provocatively replied that the Chinese were fitted by nature and heredity to remain slaves. He directly accused Kelly of being a victim of the “fixed idea” that there was a common humanity among the races.
The natural-rights side of the debate (Gertrude Kelly was joined by John F. Kelly, Sidney H. Morse, and William J. Lloyd) accused the egoist side (Tak Kak, Tucker, George Schumm) of destroying not only natural rights but also the individualist criticism of government.
Shortly thereafter, John F. Kelly (Gertrude’s brother) wrote Tucker that he would no longer distribute Liberty. Kelly never again contributed to the publication. His sister also withdrew from its pages, as did Sidney H. Morse. With these losses, the natural-rights position was only weakly represented in future issues. As a result, the diminutive individualist movement shrank further, and muted some of its most passionate voices. The schism seemed to result not so much from disagreements in theory as from an inability to discuss those differences without descending into ad hominem attacks.
Are Egoism and Natural-Rights Theory Irreconcilable?
The main loss from accusing an honorable opponent of being not only wrong but also a fool is the debate that does not occur. If an issue is hotly debated between vigorous minds, the participants will surely learn much from one another.
The egoists and natural-rights advocates in Liberty agreed on more than they realized or, at least, on more than they were willing to admit. They agreed, for instance, on a key theoretical point: namely, human beings act in their own self-interest. (Oddly, the Stirnerite egoists never considered that statement of fact to be a “fixed idea.”) Even John F. Kelly acknowledged the primacy of self-interest when he wrote in Liberty, “If we regard . . . all forces pushing us to action as pleasures,—relief from pain being classed as a pleasure,—and all those tending to make us abstain as pains,—deprivation of pleasure being counted a pain,—then it is evident that we act egoistically . . . since we only act because the pleasures exceed the pains.”
With the natural-law side making such concessions, it is difficult to believe that both sides could not have come to a common understanding. Consider one issue: the role of rights in the act of contracting. The egoists believed they were reducing the concept of rights to its proper place as an artificial, but useful, construct with which to organize society. Tucker continued to believe in what he called “society by contract,” but he came to view rights as the byproducts of contracts between individuals, not as entities existing on their own. Writing in his newspaper, he suggested that rights were “a tacit agreement or understanding between human beings . . . not to trespass upon each other’s individualism, the motive of this agreement being the purely egoist desire of each for the peaceful preservation of his own individuality.”
John Kelly attacked Tucker’s theory as self-contradictory. Kelly, responding in Liberty, wrote that “the binding effect of a particular contract can not be due to the contract itself.” Pointing out what he believed to be the major philosophical flaw of Stirnerite egoism, he contended that a contract presupposes a moral system—for a contract is nothing more than a voluntary exchange of what is mine for what is yours. Embedded in the very idea of contract, therefore, is the concept of voluntary versus forced exchange, and the concept of property. Contracts make sense only in the context of rights. To claim that rights spring from contract is to invert the logical order.
A full and dispassionate debate on this point would have been a fascinating chapter in American individualism. It never occurred. Each side became so bitter that productive discussion became impossible. And so the fledgling individualist movement splintered and shrank. Yet the disastrous controversy was avoidable. After all, Tucker managed to remain civil to British individualists such as Wordsworth Donisthorpe, with whom he conducted an extended debate over anarchism versus limited government. But then that debate dealt with arguments, rather than personality.
Debate and passionate discussion are part of the intellectual vigor that draws the best minds of an age to a movement or to an issue. Intolerance and dogma are part of what drives those same minds away. Allow me to put in a good word for intellectual good will.