The Home of American Intellectual Conservatism — First Principles

September 20, 2014

REFERENCE DESK
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Natural Law
Russell Hittinger - 12/10/10

Among conservatives, nothing discredited theories of natural rights more than the French Revolution, in which appeals to the “rights of man” were used to overthrow the social, political, and ecclesiastical orders. Both Jeremy Bentham’s positivism and Edmund Burke’s defense of custom and tradition represented reactions to the revolutionary effects of natural-rights theories on the Continent. The waning of natural-law jurisprudence in the English tradition was due in large part to the revulsion caused by the French experiment. Moreover, the nineteenth-century abolitionist movement in the United States frequently appealed to a “higher law” to justify the expansion of federal authority over state governments. Although Jefferson Davis himself defended the Southern cause in the language of natural rights, the Civil War and Reconstruction convinced many conservatives, particularly southerners, that “higher law” doctrines were mere ideologies crafted for the purpose of undermining custom and positive law. Not only southerners expressed disapproval of “higher law” doctrines. The New England Catholic convert Orestes Brownson wrote an important treatise, “The Higher Law,” which took abolitionists to task for undermining the authority of the Constitution in the name of natural law.

In the contemporary debate, conservative suspicion of natural law has been aroused by the activist judiciary, which has used various kinds of natural-law reasoning to justify federal supervision and abrogation of the moral police powers of the states. The Robert Bork and Clarence Thomas nomination hearings indicated the extent to which natural law, as a tool of jurisprudence, has become a mainstay of Left-liberal theorists. Both nominees were criticized for being “originalists” in jurisprudence and for failing to respect the alleged moral grounds of modern privacy rights.

Of course, there is no necessary reason why natural law requires judicial supremacy—Aquinas, for example, argued that judges ought not to be given principal authority to make the natural law effective in the political community. Yet the continuous and seemingly arbitrary use of “natural law” by the judiciary, usually for the purpose of reaching egalitarian social results and in order to vindicate individual rights against traditional morals legislation, has deeply soured conservatives on the subject.

Generally speaking, within the conservative movement today, only some libertarians enthusiastically embrace the notion of judicially cognizable natural rights. The libertarian interest in natural rights can be explained, in part, by the Supreme Court’s use of a substantive due process doctrine earlier in the century in vindicating property and contract rights. Substantive due process is the doctrine that the due process clause of section 1 of the Fourteenth Amendment (“nor shall any State deprive a person of life, liberty or property without due process of law . . .”) mandates more than procedural justice and reaches the substantive goods being deprived or regulated by the state. Thus, according to this doctrine, judges are authorized to consider not merely whether life, liberty, or property are being fairly deprived, but also whether the state has any compelling reason to limit these substantive values. For some theorists, life, liberty, and property are natural rights, and therefore there is a prima facie ground for putting the burden of justification on the state whenever these rights are touched by statutes.

While conservatives have been, at best, ambivalent about natural-law doctrines in the areas of law and politics, the opposite is true in the area of philosophy. The three most important philosophical schools of postwar conservatism in the United States—Straussian, Voegelinian, and neo-Thomist—have all insisted, in different ways, on the importance of natural law. Hence, once the issue is shifted from practical matters of politics and jurisprudence to the more speculative arena of moral and political theory, conservatives have tended to be more prepared to defend natural law—at least the ancient and medieval conceptions of natural law. Leo Strauss and his disciples have been very effective in pointing out the differences between modern conceptions of natural rights and premodern conceptions of natural law.

In sum, modern conservatives gravitate toward custom and positive law in matters of law and politics, while gravitating toward nature in the more abstract discussions of the foundations of moral and political order. Since the French Revolution, conservatism has not been of one mind on this subject. Much of what counts as “conservative” opinion on natural law is shaped by reactions to the use of the concept by Left-liberals.

Further Reading
  • Barnett, Randy E., ed. The Rights Retained by the People: The History and Meaning of the Ninth Amendment. Fairfax, Va.: George Mason University Press, 1989.
  • Haines, Charles Groves. The Revival of Natural Law Concepts. Cambridge, Mass.: Harvard University Press, 1930.
  • Hittinger, Russell. “Natural Law in the Positive Laws: A Legislative or Adjudicative Issue?” Review of Politics 55 (1993): 5–34.
  • Kirk, Russell. “Burke and Natural Rights.” Review of Politics 13 (1951): 441–56.
  • Strauss, Leo. Natural Right and History. Chicago: University of Chicago Press, 1953.
  • Tuck, Richard. Natural Rights Theories. Cambridge: Cambridge University Press, 1979.
  • Voegelin, Eric. The Nature of the Law and Related Writings. Edited by Robert A. Pascal, James L. Babin and John W. Corrington. Baton Rouge, La.: Louisiana State University Press, 1991.
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