Natural Law and Constitutionalism: Towards Ordered Liberty
delivered at conference
etiche di Europa e Stati Uniti :
Le radici comuni
e il dialogo possible
In passing from despotism to liberty, nations cease to have
masters, but they are not replaced by servants. They then
have leaders in whose hands authority is not demeaning, and
who, in accepting the necessity to act for the common good,
remain heads of state.
no subject remains as perennially controversial in American
and European political discourse as the role of the state.
The cluster of American and European views that marshal themselves
under the banner of "liberalism" emerged partly as a critique
of classical and medieval concepts of state power. Central
to these developments was an often-acute consciousness that
the state-and, more specifically, the organs of government
and law-is the only institution that may legitimately exercise
time, the state has assumed a variety of guises. The association
of the Greek polis with the deities characterizing the pre-Christian
world contrasts dramatically with the prevailing liberal democratic
view of government and its connection with the idea of human
rights. Alexis de Tocqueville was one of the first to grasp
the significance of these transitions for any society that
valued liberty. He always reminded people that, even after
the disintegration of aristocratic privilege following the
French Revolution, the extent of state power remained an essential
question, even in democracies.
significant debt is owed to the decision of many liberal thinkers
to focus on how to limit state power. Their research has yielded
a rich literature on subjects such as the ability of written
and unwritten constitutions to protect individual freedom.
Friedrich Hayek even claimed that protecting individual liberty
was always the priority pursued by "the founders of liberal
This overriding concern for autonomy underlies the thought
of American liberal scholars such as Ronald Dworkin and John
seeking to limit state power constitutionally, liberal theorists
have generally avoided making any reference to the good or
the truth. Many liberals are also wary of those who aspire
to use state power to pursue some greater good. There are
sound reasons for this. Such aspirations have in the past
been determined and justified by reference to the will of
the Revolution (Jacobinism), the Volk (Nazism), or
the proletariat (Communism). At an even more basic level,
Sir Thomas More was surely right to surmise that "unlimited
power has a tendency to weaken good minds . . . even in the
case of very gifted men."
however, liberals have been less willing to consider is that
an absence of some reference point beyond choice or preference
can open the road to more subtle forms of tyranny. In their
concern for liberty, some liberals may have actually have
placed freedom in danger. The irony is that a commitment to
fostering integral liberty within a society, which I regard
as implicit to a natural law understanding of such matters,
may well be an effective way of limiting the state's coercive
activities, but without relying upon skepticism as the source
of legitimacy for such restrictions.
The State and the Common Good
Defining the limits of state power requires a clear grasp
of its purposes. This in turn reflects the fact that human
persons rely greatly upon association with others.
From the moment of our conception, we depend upon our mother
for sustenance. As a baby, we are helpless, utterly dependent
upon the good will of others, especially our families. As
we grow, however, our associations with others gradually become
less exclusively familial. They increasingly become the outcome
of human reason and choice. This reflects our condition as
a social being whose capacity for self-reliance is limited.
No doubt reflecting in part upon his life as a scholar in
monasteries and universities, Aquinas highlighted this truth
when he wrote:
It is not possible for one man to arrive at knowledge of all
these things by his own individual reason. It is therefore
necessary for man to live in a multitude so that each one
may assist his fellows, and different men may be occupied
in seeking, by their reason, to make different discoveries-one,
for example, in medicine, one in this, another in that.
Nor, presumably, did Aquinas imagine that our dependence upon
associational life confined to our immediate circumstances.
When we engage in shaping material, be it physical or intellectual
in nature, we almost always draw upon a common stock of human
knowledge. This can range from something as fundamental as
language, to a specific technique developed over time by particular
professions. In undertaking his project of discerning what
in Greek thought was compatible with the Revelation preached
by Christianity, Aquinas himself drew on the work of his teachers,
such as Albertus Magnus, as well as that of men who lived
1500 years before him.
Yet no matter how apparently trivial or significant they may
seem, our associative acts do not always require accord about
the end to be achieved. Even the apparently dis-associative
act of differing with someone as we debate him involves two
or more people aligning their respective conceptions of an
idea in order to determine where and why discrepancy exists.
Many forms of associative action are directed to a common
basic good, even if the acts themselves are different. A person
at church may choose to listen to the priest's sermon
in order to deepen his commitment to certain beliefs about
the transcendent. But the priest himself has chosen to speak
the words because he has devoted much of his life to the same
good of religion. Moreover, both listener and speaker are
engaging their reason in pursuing this good, and are thereby
involved in intrinsically valuable practical reasoning. We
thus see that the basic goods are indeed "common" goods because
they may be participated in innumerable ways by infinite numbers
Not all types of associative action have
the same good as their end. There are, for example, what Aristotle
called relationships of utility. In these cases, two or more
people agree to observe certain conditions. In their totality,
these conditions constitute an instrumental common good that
enables all people involved in the relationship to pursue
different ends. Two people attending a lecture may, for example,
agree to be quiet when the lecturer is speaking: the first
because of his choice to assimilate the knowledge imparted
by the lecturer; the second because she is painting a portrait
of the lecturer.
While families and intermediate associations
establish some of the conditions that facilitate our ability
to participate in the basic goods, no one community can promote
and protect the conditions that assist all people to achieve
integral liberty. No single business, for example, no matter
how successful, can provide for the widely diverse and reasonable
material requirements of any one group of associations or
individuals. Likewise, a church cannot resolve all disputes
between individuals and associations, not least because not
everyone will recognize the authority of a church to act in
such a manner. The situation is further complicated by the
fact that in any one cluster of individuals, families, and
associations, there will always be disputes concerning the
reasonableness of many actions. Thus a need exists for some
organization to resolve many such disputes in a formal and
Law is one means by which such coordination
may occur. Law itself is not an expression of the will of
any one individual or any one group. Even in tyrannical situations,
the law is rarely understood, in formal terms, to be the expression
of one person's arbitrary decisions. It is normally held to
reflect the reasoned will of a wider community that encapsulates
many individuals and associations. This wider grouping may
be called a political community or the body politic.
The requirement for such a community becomes
more evident as the range of different, sometimes incompatible,
possibilities for reasonable choice by individuals and associations
continues to expand. It therefore becomes increasingly difficult
to reconcile all choices with each other. Decisions thus need
to be made concerning the processes, rules, and policies that
allow different reasonable choices to be reconciled, and to
address problems arising from unreasonable choices.
In certain areas, various procedures emerge
to resolve particular problems. By reflecting the supply and
demand status of different goods and services, the price mechanism
that functions in economic life provides people with some
of the information they need in order to choose what to purchase.
But even here, judgments need to be made concerning what to
do when, for example, a person reneges on their promise to
pay the agreed-upon price.
When it comes to deciding how to coordinate
a multitude of free acts, there are only two ways: unanimity
The agreed voluntary undertakings contained in
a contract, for instance, are based upon unanimity insofar
as the contracting individuals adhere to the original voluntary
agreement. In the case of a breakdown of unanimity, the two
individuals either (1) agree to dissolve the contract (unanimity),
or (2) they admit the authority of a law demanding completion
of agreed undertakings, or (3) they are held to their undertakings
by some organization wielding a recognized authority.
The on-going increase of possible reasonable and unreasonable
choices in most societies decreases the possibility of achieving
unanimity on a range of questions. While this may mirror increasing
dissension about the proper ends of people, it also reflects
an increase in the incompatible but nonetheless reasonable
ways of pursuing incompatible but reasonable ends. The subsequent
lack of unanimity necessitates:
a community invested with authority;
the charging of particular institutions (collectively described
as the state, which in turn embraces the government
and the law) of that community with the responsibility
of exercising that authority; and
the defining and delimiting of the subsequent powers of these
As a form of human association, the political community may
thus be understood as existing to assist all its members to
realize integral liberty. Its ways of doing so might include:
interacting with other political communities; protecting its
members from hostile outsiders; vindicating justice by punishing
wrongdoers; or defining the responsibilities associated with
particular relationships, such as contractual duties and the
obligations of harm-doers to the harmed.
What these activities have in common is that they are all
conditions that assist, as distinct from directly cause, people
to achieve self-mastery. It is harder, for example, to choose
to pursue the good of knowledge in a situation of civil disorder.
Likewise, we know that the incentives for us to work for someone
else will be radically diminished if there is no guarantee
that our earnings will not be arbitrarily taken from us.
These conditions thus constitute the common good of a political
community. A particular characteristic of this common good
is that it is not the all-inclusive end of its members. Rather,
it is instrumental inasmuch as it
is directed to assisting the integral fulfillment of
The common good of the political community thus
helps not only to define its legitimate authority, but to
limit it. For the political community's authority does not
derive its power from itself. It always proceeds from the
responsibility of state institutions to serve a political
community's common good.
Provided that this common good is understood in the terms
stated above, there are good reasons to hope that it will
not become the basis for authoritarian tendencies. For one
thing, the state's responsibility for the political community's
common good is to help people to make choices for basic moral
goods, not to force them to do so. Second, the common good,
properly understood, does not necessarily require uniformity.
It actually creates room for pluralism insofar as it seeks
to enable as many people as possible to pursue the basic goods
in a potentially infinite number of ways. Even disagreement
among those charged with determining what the state may do
in pursuing the common good, does not imply that the common
good is not being served. Argument may actually contribute
to the common good precisely because beneath the hustle, hyperbole,
and rhetoric of political debate, the relevant individuals
may be engaging in a serious discussion about the most reasonable
means of serving the common good. Such discussion is surely essential if state institutions are to act reasonably.
A Question of Prudence
This understanding of the political community and its common
good provides us with the basis for serious reflection upon
the principles that determine what state authorities may do
in a society that values freedom. Far from constituting an
open-ended invitation to expanded government, it actually
points us in the direction of constitutionally limited government,
an aspiration that continues to inspire much European and
American political and legal thought. It indicates, for example,
that the political community is only one of a number of communities
and should not therefore displace or absorb the proper responsibilities
of other individuals and associations. Understood in this
way, the common good of a political society is incompatible
with totalitarianism of any kind, precisely because the totalitarian
state attempts to absorb all other groups within itself. Even
social welfare measures of modern democratic states must,
if they are to serve the political community's common good,
be limited to assisting rather than usurping the efforts of
others to establish conditions that assist others to help
The state's ability to perform this assistance role is, however,
complicated by a number of factors. One might be called the
knowledge problem. Attempting to determine the conditions
that constitute a political community's common good is an
extremely difficult exercise. The totality of these conditions
is never static. Hence, just as one individual cannot know
everything, nor can the state authorities know everything
about all the conditions that constitute the common good of
a political community at any one point in time. Neither legislators
nor judges are in a position to know the number and particular
character of obligations incumbent upon all individuals and
There are, however, some occasions when a political community's
common good requires state institutions to act in an authoritative
and often coercive manner, despite the fact that they cannot
know everything. This may include, among other things, punishing
violations of justice. It may also embrace adjudicating disputes
between reasonable courses of action in those instances where
they cannot be resolved without the exercise of state authority.
We are thus faced with a dilemma. If we are to flourish as
human beings, we need to be able to act under our own volition.
Yet we cannot do so if our decisions are constantly pre-empted
for us by the state. On the other hand, our opportunities
for free choice may be unreasonably limited if certain prerequisites
such as public order and rule of law, which rely heavily upon
state authority for their efficacy, are absent.
This underscores the importance of state institutions and
officials cultivating a special type of human wisdom if they
are to assume their responsibilities for a society's political
common good. This wisdom consists of discerning what the political
community can properly and reasonably contribute toward the
integral liberty of its members.
Aquinas underlined this point when he specified
three levels of prudential wisdom: individual prudentia;
domestic practical reasonableness, and political practical
reasonableness. "The good of individuals, the good of families,
and the good of civitas," he wrote, "are different
ends; so there are necessarily different species of prudentia
corresponding to this difference in their respective ends."
One way of prudentially discerning the role of state institutions
in a given situation is to ask ourselves what the state can
generally do well and what it cannot. This may be determined
by identifying the deficiencies of other groups and asking
when no other community, save the state, is able to render
the assistance that will remedy the deficiency until the wanting
social organization can reassume its appropriate role.
Reason and experience tell us that no family is capable of
securing public order or administering justice within a political
community. Nor can any private person, local association,
or church successfully undertake such a role. The same reason
and experience suggest, however, that the state is a very
inadequate child-raiser. In normal circumstances, this function
is properly performed by a family that knows and loves its
children. When the family experiences problems beyond its
control, it should normally be the case that extended family
or neighbors are the first to render assistance. When no other
group can render the appropriate form of assistance, it may
then be necessary for the state to attempt to do so.
the fact that children are best raised by their families does
not rule out, in principle, any possibility of state intervention
in particular circumstances. Examples might be when the police
are summoned to stop a man beating his wife or when state
officials use force to prevent a parent from sexually abusing
a child. The urgent need to protect the goods of life and
health in such cases may make it imprudent to wait for other
family members or other intermediate groups to intervene.
Nonetheless, direct state intervention in family matters is
generally unwise because it involves, in part, the application
of political wisdom to a sphere where domestic wisdom ought
to prevail. The state's responsibility to maintain an order
of justice will nevertheless occasionally necessitate such
intervention, precisely because failure to act coercively
against the wife-beater or child-abuser may contribute to
a deterioration of the public order that is essential for
a political community's common good. Though it is impossible
for the state to prevent all cases of, for instance, stealing
and intentional killing, such actions should always be prohibited
by state authority. For unless such practices are always discouraged
and face the ultimate sanction of state punishment, a fundamental
condition that assists all to fulfill themselves will not
suggests that, in principle, state institutions may act in
ways that contribute to the moral-cultural dimension of a
society's common good. The same common good, however, demands
that the state should not attempt to protect or alter a society's
moral ecology in ways that seek to force people to acquire
virtuous dispositions. This point is well-explained by Germain
Grisez in his reflections on the nature of the political order.
Though recognizing that a political community will not be
well-ordered unless most of its members are encouraged to
freely choose acts that lead to integral liberty, Grisez insists
that it is not the state's direct responsibility to
demand virtue in general:
even though a political society cannot flourish without virtuous
citizens, it plainly cannot be government's proper end
directly to promote virtue in general . . . both the limits
of political society's common good and its instrumentality
in relation to the good of citizens as individuals and nonpolitical
communities set analogous limits on the extent to which government
can rightly concern itself with other aspects of morality,
especially insofar as they concern the interior acts and affections
of heart rather than the outward behavior which directly affects
we should expect those exercising state power to act in a
virtuous manner, it is not the state's primary concern to
promote virtue directly. The important word in Grisez's reflection
is, however, directly. This indicates that the state's
legitimate concern for public order is not limited to upholding
the law and procedurally adjudicating disputes. Rather, it
is a question of state institutions indirectly supporting
the efforts of individuals to choose the good freely, while
directly fulfilling its responsibility to the common good
by addressing those problems that cannot be resolved through
the actions of individuals, families, and intermediate associations.
Towards Constitutional Order
need for people to make free choices normally means formally
delimiting the power of state institutions to, unwittingly
or otherwise, restrict such choices unreasonably. A genuine
concern that people realize integral liberty means that the
state should only help people in ways that respect their need
to be reasonable, to choose, and to act. Thus the way in which
state authority functions becomes subject to the conditions
that allow all to achieve integral liberty: i.e., the common
state institutions are to serve the political community's
common good, it needs to do so in a reasonable manner. Hence,
a division of responsibility between state organs is required
by virtue of the fact that we know that no one individual
can perform all the functions of government. The same concern
for the common good also demands delineation of the limits
of each state organ's coercive powers as well as some specification
of the appropriate relationships between these institutions.
For unless such certainty exists, it becomes more difficult
for individuals, families, and intermediate associations to
make choices in a reasonably predictable social environment.
Concern for the common good thus gives rise to constitutional
speaking, the roots of constitutionalism may be traced to
the ancient Greeks and particularly the Athenians of the fifth
and fourth centuries B.C. As an idea, it received powerful
systematization in the Middle Ages, especially in the works
of Aquinas, in the internal organization of religious orders,
as well as in the emerging commercial cities of Italy and
Germany. Some rulers were able to minimize the impact of emerging
rules for political order, and thereby exercise a type of
absolute rule. Even the Bourbon monarchs of France, however,
found that their efforts to create an absolutist political
regime were limited by the authority of France's regional
legal assemblies, known as the parlements. Likewise
the Habsburg rulers of the Austrian Empire found themselves
compelled to exercise their power through the various constitutions
governing different parts of their polyglot realm.
the seventeenth and eighteenth centuries, philosophers ranging
from John Locke to Jean-Jacques Rousseau were expounding the
benefits of specific constitutional arrangements. To minimize
the potential misuse of power, Charles de Montesquieu, insisted
that "it is necessary from the very nature of things that
power should be a check to power."
He thus sought to separate the process of determining "the
general will" of the state from the execution of that general
will. Echoes of such thinking made their way across the Atlantic,
and were absorbed by some of those who founded the American
no matter how influential these contributions to constitutional
theory, careful reflection upon the nature of authority in
any political community tells us that some type of constitutional
order will always exist, however rudimentary, often
in the form of custom, precedent, and tradition. Even in dictatorships,
there is a need to allocate different roles, powers, and responsibilities
to different state organs, and to define (however unreasonably)
the relationships between them. What distinguishes a dictatorial
order from non-dictatorial regimes is that the latter's source
of authority is not the will or charisma of a Stalin, Fidel
Castro, or Pol Pot. Rather, legitimate state authority is
derived from its rational character and the perceived responsibility
of institutions charged by the political community to act
authoritatively in certain ways, while simultaneously being
forbidden to make decisions about other subjects.
in this sense reflects an effort to establish a reasonable
relationship between those charged with state authority and
those who are not. For the idea of constitutional order is
not only about limiting the potential for arbitrary power.
It is also implicitly rooted in claims that are reasonable;
that, for example, the political community's common good requires
some separation of powers. The claims of constitutional authority
are thus respected by members of the political community,
precisely because they are grounded in reason. The existence
of a constitutional order need not therefore be understood
as primarily derived from an effort to institutionalize skepticism
about the efficacy of state power.
same concern for reasonableness means that once a constitutional
order has been established, there is always a strong prima
facie case for adhering to constitutional provisions.
Constitutional orders involve all members of a given society
undertaking prior obligations to act in particular ways, such
as abiding by the legitimate decisions of authority even if
one disagrees with that decision. This is perhaps especially
true of constitutional democracies. The delegation of authority
to elected representatives means that we must be willing to
assume that our representatives will debate matters seriously,
and that they have taken into account facts concerning the
common good of which we may be unaware, precisely because
it is their responsibility to make themselves as aware as
possible of such facts.
to constitutional precepts derived from reasoned reflection
upon the requirements of the common good is also likely to
limit the state authorities' freedom of action and enhance
that of citizens. A regime seeking to pursue ends other than
the common good has no reason to observe the discipline of
acting consistently according to mandated constitutional processes.
The very point of such limitations is furtherance of the common
good rather than its usurpation.
same reasoning suggests that, in certain circumstances, we
ought to ensure that constitutions provide for the state authorities
to act in ways from which they would otherwise abstain. Constitutions
do, after all, serve the common good and thus the continued
existence of a political community. They do not oblige a political
community to permit its own destruction. In a time of crisis,
a constitution must be capable of ensuring that its guidelines
for order do not prevent the state from acting against illegitimate
attempts to overturn or subjugate the political community.
In extraordinary circumstances, such as a civil insurrection,
a general strike, or the outbreak of war, it may be in the
interests of the common good that particular constitutional
canons are temporarily suspended and emergency constitutional
provisions prevail until the crisis is overcome. The temporary
and selective suspension of habeas corpus, for example,
may be necessary if a government is to fulfill its responsibility
to halt a terrorist bombing campaign, perhaps by using methods
normally considered ultra vires. Provisions for such
eventualities ought therefore be inscribed into the constitution.
This will give the citizenry good reasons to continue to respect
the authority of the relevant state agencies during a crisis,
while simultaneously reminding state institutions that their
emergency powers are ultimately grounded in and limited by
their responsibility to advance the common good-the same common
good that requires the government to relinquish such emergency
powers when the crisis has passed.
Evolution or Constructivism?
the approach to constitutions outlined here is likely to result
in limiting state power, we should recognize that, unlike
many liberal students of constitutionalism, this is not its
primary focus. Its main objective is to ensure that the allocation
of authority among state institutions meets the demands of
reason by serving the common good. The drafting of a constitution
is thus an act of reason, but one of a specific kind: an activity
of the practical intellect that Aquinas called determinatio.
itself requires that those in authority translate a political
community's reasonable commitments into some type of authoritative
law to be referenced when conflicts emerge. Constitutions
are part of what we call positive law, but a special part
of the positive law. The American Declaration of Independence,
with its explicit statement that all people have the right
to life, liberty, and the pursuit of happiness, is a statement
of what a particular political community determined to be
its fundamental commitments. The U.S. Constitution was, however,
an act of determinatio insofar it detailed various
rules that attempt to allow all members of that political
community to engage these commitments.
fundamental commitments can be translated more or less directly
into a constitutional provision. Respect for the basic good
of life translates clearly into a constitutional protection
of innocent life, a point that remains in many European constitutions,
despite the on-going violation of this law through legalized
abortion. In other cases, the translation process is not so
simple. Though it may be agreed that a separation of powers
will serve the common good, the precise way in which the separation
should occur is not so evident. A number of different arrangements
concerning, for instance, the power of the judiciary vis-à-vis
the legislature may be consistent with the reasonable end
of separating powers.
making these determinations, a great deal of political
prudentia is necessary. Joseph de Maistre once wrote that
a constitution is a solution to the following problem: "Given
the population, the mores, the religion, the geographic situation,
the political circumstances, the wealth, the good and the
bad qualities of a particular nation, to find the laws that
Centuries beforehand, the Greek philosopher Solon arrived
at a similar conclusion. When asked what is the best form
of constitution, he replied, "First, tell me, for what people
and for what epoch."
In short, though constitutions must meet the demands of reason
and serve the common good, some measure of adjustment to certain
specific conditions should normally be included as part of
one's reasoned deliberation about this good.
adjustment is needed more often than recognized. Comparing
Mexico and the United States in the nineteenth century, Tocqueville
observed that Mexico had adopted a constitution like the United
States. Mexico was, however, unable to overcome instability
and anarchy. "The Mexicans," Tocqueville lamented, "wishing
to establish a federal system, took the federal Constitution
of their Anglo-American neighbors as a model and copied it
almost completely. But when they borrowed the letter of the
law, they could not at the same time transfer the spirit that
gave it life."
of these errors has led some to prefer constitutional arrangements
that have emerged over time. Many have portrayed the partly
unwritten British constitution as reflecting the type of evolutionary
development that is preferable to a written text. The relative
long-term stability of the British political order compared
to that of Continental European states, not to mention those
of Africa and Latin America, lends much credence to this thesis.
It is also true that the rules of a constitution are often
interpreted against a background of conventions, habits, and
customs that inform how constitutional responsibilities ought
to be carried out.
is, however, a significant weakness in this argument. Reflecting
upon history, the fifteenth-century English jurist Sir John
Fortescue commented that it is almost always the case that
new regimes emerge following the overturning of the previous
The evidence for this is ample. The American colonies emerged
as a nation following their decision to rebel against a political
order that, in the view of many colonists, had become tyrannical.
The Whig settlement of 1689 in Britain was preceded by a long
struggle between Crown and Parliament, a civil war, a foreign
invasion, and the eventual deposition of the senior branch
of the Stuart dynasty. The Fifth French Republic inaugurated
by General Charles de Gaulle in 1958, followed the collapse
of parliamentary rule in the wake of riots in French Algeria
and the military's refusal to obey the legitimate civilian
government. In each case, the drafting of new constitutional
canons, debate over their provisions, and then some manner
of approval by the political community legitimized sudden
changes to the political order.
thus plays a greater role in the formation of constitutional
regimes than many are willing to acknowledge. Such development
need not be viewed as an example of "constructivism": the
error of imagining that we can somehow construct a social
order as if people were inanimate, unthinking objects. For
the application of political prudentia is not a matter
of abstract reasoning. It requires the quality of what Aristotle
called statesmanship: a statesmanship that integrates consciousness
of historical circumstances with the need for individuals
to make free choices, and the equally pressing necessity for
a social order that allows people to make such choices; a
statesmanship that can resist not only arbitrary opinion,
but also the potential tyranny of majority desires. As the
doyen of eighteenth-century German philosophers, Immanuel
Kant, put it: "A constitution achieves the greatest possible
freedom by framing the laws in such a way that the freedom
of each can co-exist with the freedom of all."
prominent feature of modern constitutional orders is their
increasing attention to the expression of what are called
"rights." The 1789 French Declaration of the Rights of Man
and the Citizen proclaims, for example, "Any society in which
rights are not securely guaranteed and the separation of powers
is not determined, has no constitution." Questions, however,
persist concerning the efficacy of the concept of human rights
for furthering constitutional order within a political community.
For despite their omnipresence in modern political discourse,
it is often unclear just what a right is.
Rights and Rights-Talk
the idea of rights enjoys considerable lineage in theological,
philosophical, and legal thought, its promotion received particular
impetus from nineteenth-century liberal intellectuals. Tocqueville
wrote, for example, that, "Next to virtue as a general idea,
nothing, I think, is so beautiful as that of rights, and indeed
the two ideas are mingled. The idea of rights is nothing but
the conception of virtue applied to the world of politics."
Employing somewhat less-enthusiastic language, Constant emphasized
the necessity of rights for protecting individuals from potential
state infringements upon liberty. "There is," he insisted,
"a part of human existence which by necessity remains individual
and independent, and which is, by right, outside any social
competence. At the point where independence and individual
existence begin, the jurisdiction of sovereignty ends. If
society oversteps this line, it is as guilty as the despot
who has, as his only title, his exterminating sword."
recognition of rights by the state does appear to have the
potential to resolve some of the problems of living in a pluralist
society. The religious believer, for example, will regard
the right of religious liberty as reflecting and protecting
his freedom to fulfill his duties towards God. Nevertheless,
the same juridical protection of religious liberty as a right
means that the non-believer cannot be forced to worship anyone
or anything. Thus the same civil recognition of a right of
religious liberty confers upon believer and non-believer alike
certain protections from state coercion, regardless of their
however, who have spoken the language of rights also include
people not immediately identifiable as liberal. They embrace
the American Founders and Charles de Gaulle, but also the
architect of French revolutionary terror, Maximilian Robespierre,
and the builder of gulags, Joseph Stalin. This disparity suggests
two things. One is that the language of human rights is the
most available discourse for universal deliberation about
what people are objectively owed in entitlements and protections.
The second is that the same language is open to being co-opted
by tyrannical regimes to serve unreasonable ends.
complicating matters is the fact that despite being among
the strongest proponents of rights, liberal thinkers have
not proved very adept at providing coherent explanations of
their basis. Robert P. George goes so far as to claim that
no secular thinker has provided "any plausible account
of where rights comes from or why we should respect others
The legal obligation to respect rights has been formally recognized
by most states since the 1948 United Nations Declaration of
Human Rights. Yet as one of the members of the Declaration's
drafting committee stated at the time, "We are unanimous about
these rights on condition that no one asks why."
It seems that the participants decided that agreement on common
principles-a common philosophy-was unlikely to be achieved.
of the difficulty is derived, as the English philosopher Elizabeth
Anscombe illustrated, from the apparent inability of modern
philosophy to provide a moral account of anything insofar
as it declines to-and cannot-identify an ultimately authoritative
source of moral goodness.
One need only think of all the unsuccessful modern attempts
to establish a foundation for rights. These include the decree
of the King; a majority vote in parliament; or, perhaps most
strangely, John Rawls' imaginary social contract that abstract
non-existent persons might adopt in an equally imaginary original
position. A similar difficulty manifests itself in one of
the more famous responses to Rawls' Theory of Justice.
The first and fundamental proposition of Robert Nozick's 1974
treatise, Anarchy, State and Utopia, is that "individuals
have rights." But nowhere in the entire text is there any
justification or explanation of this claim. Nozick himself
states, "it is only a minor comfort to note that we here are
following the respectable tradition of Locke, who does not
provide anything remotely resembling a satisfactory explanation
of the status and basis of the law of nature in his Second
Unfortunately when it comes to matters as serious as rights,
we cannot simply defer to respectable scholarly tradition.
David Hume, Constant sought to provide an explanation for
rights by contending that people had those rights that a given
society could afford to confer on them.
This is a troubling proposition. If rights are understood
primarily in terms of whatever has been authorized by the
political community, then their coherence and stability becomes
questionable. For once one accepts that rights have no stronger
foundation than the state's exercise of its sovereign powers,
they may be diminished or even abolished by another act of
sovereignty on the state's part. In such circumstances, rights
would simply be identified or abolished according to whatever
a particular majority in a particular country at a particular
time preferred rights to be. The capacity of constitutions
to withstand such arbitrariness is not infinite.
lack of a coherent reference point for rights beyond majority
preference thus has more than academic implications. It allows
the question of right and wrong-and therefore of truly inalienable
rights-to be replaced by the question of who has power or
a determination to acquire power. Without an authoritative
foundational reference point, any person inevitably becomes
endowed with as much authority to determine rights as another.
In these circumstances, we can still say that a person has
a right to privacy or a right to life. But in a world where
preference rather than reason is regnant, people who want
to kill life or violate privacy can offer the blunt retort:
"What gives you the authority to prescribe what is good for
me? Why is your preference for life or privacy more significant
than my preference to kill life or violate privacy?"
Rights and the Good
see rights as safeguards of liberty undermined in the name
of preferences masquerading as rights would surely be one
of the cruelest paradoxes of all. Where, then, do we find
the type of foundations that allow us to overcome these modern
problems of rights, but in a way consistent with a commitment
to integral liberty?
contemporary rights-talk centers around the presumed existence
of an association between two people. To this extent, recognition
of a right means that someone has a duty to another. Others,
however, are unsure if this tells us very much. The jurist
Lloyd Weinreb comments "That there is a connection between
rights and responsibilities is, I think, intuitively obvious,
but any such intuition fails to disclose its source."
key to discovering such a source may be to remember that to
respect human rights is to respect what man is:
an embodied creature with reason and free will, capable of
making choices that lead to integral liberty. We also know
that if people are to have any possibility of realizing this
self-mastery, they require certain things. Once we establish
that a certain protection or entitlement is essential for
any person if he is to have any possibility of realizing integral
liberty, we may speak of this protection or entitlement, this
essential condition, as a right.
this is true, then we can say that rights are a way of describing
basic elements of the common good. Careful examination of
the United Nations Declaration of Human Rights demonstrates
that this may indeed be the case.
Here we find that the idea of rights normally spoken of in
"Everyone has the right to . . ."; and
shall be . . .".
expressions are linked to each other inasmuch as the second
phrase specifies the limits on the rights arising from the
first. Thus, we may say that everyone has a "right to free
speech," but also that "noone shall defame another's reputation."
The right to free speech is thus inalienable, though subject
to the duty that we owe to others not to defame their reputation.
are variations in the way that "noone shall" statements are
expressed. Article 9 of the Declaration of Human Rights notes
that "Noone shall be subject to arbitrary arrest, detention,
or exile." To arrest a person, then, is not unthinkable. Indeed,
a person may be arrested, provided that due process
is followed and his other rights are not unduly infringed.
Some of those rights may be found in other parts of the Declaration.
Article 10, for example, states: "Everyone is entitled in
full equality to a fair and public hearing by an independent
and impartial tribunal, in the determination of his rights
and obligations and of any criminal charge against him."
the same Declaration speaks of certain rights that are apparently
not only inalienable but absolute inasmuch as no qualifying
phrase is evident. Article 4 states that "No one shall be
held in slavery or servitude; slavery and the slave trade
shall be prohibited in all its forms." In this case, there
is no room for compromise. For such rights, such as the right
not to be intentionally deprived of one's life, reflect the
basic goods such as life that are integral to man's very identity.
These, we may say, are absolute rights, inasmuch as they reflect
a determinatio of what Finnis calls "the literally
immeasurable value of human personality in each of its basic
aspects (the solid core of the notion of human dignity)."
we examine all the inalienable and absolute rights listed
in the Declaration of Human Rights, we see that John Finnis
makes an important point when he states that they amount to
a outline of a political community's common good.
In short, they describe those conditions that must prevail
in a political community if all people in that society are
to be able to choose freely to participate in the basic goods
that lead to integral liberty.
concept of rights as essential features of the common good
acquires further credence once we recognize how violating
a person's rights damages the political community's common
good. If, for example, a person's right to life is intentionally
violated by another's choice to kill that individual, the
common good is undermined. The damage consists of undermining
the confidence of others in that society that the safety of
their life is relatively guaranteed. Without such a condition,
people will be afraid to work or engage in more-than superficial
relationships with others. Public order is thus subverted.
Such circumstances, in turn, severely hinder our ability to
make free choices of a range of reasonable options.
Many liberals will have great difficulty
accepting this account of rights. While many liberals are
prepared to speak of rights, rather fewer are willing to speak
of absolute rights, and even fewer are willing to concede
the existence of absolute goods. Instead, they tend to resort
to utilitarian considerations: that an unknown number of other
lives is always worth more than one-no matter if the other
lives involved are Caligula and the Marquis de Sade, and the
one life is an innocent child.
There is nothing new about this way of
proceeding. The Gospel of John records the high priest Caiaphas
asking the question, "Is it not better than one innocent man
be put to death than the whole people perish?"
Or, to cite Maximilian Robespierre, "Because la
patrie must live, Louis must die."
Both Robespierre and Caiaphas, in effect, made
quantitative judgments about something that cannot be quantified:
the worth of one life measured against the lives of a number
American and European liberals need to
understand that statements about rights can only be defended
in terms of the duties that give rise to them and a coherent
explanation of where these duties come from: that is, respect
for the basic goods innate to us as humans. Moreover, once
people begin to speak of rights as elements of the political
community's common good, they will be in an immeasurably better
position to demonstrate that the protection of rights by the
state is reasonable. In such a situation, the role
of the state could not be perceived as simply conferring the
legal status of rights upon the preferences of a particular
group. Rather, to paraphrase Abraham Lincoln, the state would
simply declare the right so as to help ensure its legal recognition
as quickly as possible in a given society's circumstances.
The very act of recognition helps to establish
the conditions that assist us to participate in the goods
intrinsic to man.
Right to do Wrong?
then does this vision of rights imply for the common liberal
contention that, provided our act does not harm others, we
have "a right to do wrong?"
rights are both derived from and serve to protect and promote
basic goods, then we cannot claim to have a right to choose
to act directly against basic goods. The possibility of integral
liberty depends upon significant good options being available
for rational choice and action. It does not follow, however,
that various choices against the basic goods should be protected
from any form of state prohibition by being given the
status of a right.
may argue, of course, about the prudence of actively prohibiting
particular choices. We are not, however, arguing about the
prudence: we are arguing about the principle. The question
of whether a particular choice is indeed a right, and the
issue of whether the state may legislate against certain actions
are quite different matters. We may well conclude that it
would not be prudent, for a variety of good reasons, for the
state to legislate on a large number of options for choice.
This need not, however, mean that a right has been recognized.
while it is unreasonable to act in ways that facilitate one's
own inner disintegration, every person's need to make free
choices should make some such acts immune from state prohibition.
A good way of discerning whether the state should prohibit
people from acting upon certain choices is to assess their
meaning for the common good.
patient with a terminal illness may choose, for example, to
ask a doctor to help them commit suicide because of the great
pain the patient anticipates enduring. Some who would dispute
the reasonableness of such an appeal would nonetheless maintain
that the doctor be permitted to accede to the request, as
they believe that it is imprudent for the state to intervene
in such matters. Surely, however, the direct damage of such
a choice to some essential conditions of a political community's
common good-such as the reasonable confidence that we all
require that our lives will not be intentionally killed by
another; the prospect that the non-negotiable principle of
the sanctity of life will be imperceptibly subverted by the
rather slippery and deeply utilitarian-influenced idea of
"quality of life"; the necessary involvement of a member of
a profession ostensibly dedicated to healing human health
and preserving life in an intentional act of killing-is a
more compelling reason for the state to prohibit any such
act of assistance.
approach allows us to speak of what might be called a "modified
harm principle": those who want to act in ways that directly
damage the common good or directly damage the basic goods
need to demonstrate why, beyond the desire to choose, their
actions should be permitted. Precisely how this principle
would apply in different circumstances is another subject.
Nonetheless, it may be one way of beginning a fresh discussion
about the limits of state power that avoids the discussion-stopping
non-sequiter that the fact of choice is somehow sufficient
justification for almost any choice. The correct ends of human
actions simply cannot be derived from the idea of choice alone.
While choice is essential, discussion of a constitutional
order informed by genuine natural law principles forces, inevitably,
a discussion about the proper ends of human choice in social
settings, and may well be a way of rescuing Europe and America
from their untenable present position of simultaneously affirming
the idea of human rights while detaching them from any attention
to the truth about the human person.
Dr. Samuel Gregg is a moral philosopher who has written
and spoken extensively on questions of ethics in public
policy, jurisprudence, bioethics, and ethics in business.
He has an MA in political philosophy from the University
of Melbourne, and a Doctor of Philosophy degree in moral
philosophy from the University of Oxford, which he attended
as a Commonwealth Scholar. Dr. Gregg is the author of
several books and monographs, including Morality, Law,
and Public Policy (2000), Economic Thinking for
the Theologically Minded (2001), and, most recently,
On Ordered Liberty (2003). He also publishes regularly
in journals such as Journal of Markets and Morality,
Crisis, and Policy. He is the American
editorial consultant for the Italian journal, La Societa,
as well as American correspondent for the German newspaper
Die Tagespost. Dr. Gregg is Director of Research
at the Acton Institute, Grand Rapids, Michigan, an Adjunct
Professor at the John Paul II Pontifical Institute for
Marriage and the Family within the Pontifical Lateran
University, Rome, and a consultant for Oxford Analytica
Ltd. In 2001, he was elected a Fellow of the Royal Historical
François Guizot, Des moyens de gouvernement et d'opposition
dan l'état actuel de la France (Paris: Nouvelle Cité,
Friedrich Hayek, "The Constitution of a Liberal State,"
in New Studies in Philosophy, Politics, Economics,
and the History of Ideas (Chicago: University of Chicago
Press, 1978), p.98.
Thomas More, The Complete Works of St. Thomas More,
vol.3.2, The Latin Poems, Clarence H. Miller, Leicester
Bradner, Charles A. Lynch and Revilo P. Oliver (eds.),
(New Haven, CT: Yale University Press, 1984), no.19/pp.90-91.
Thomas Aquinas, De Regimine principum ad regem Cypri
(Taurini: Marietti, 1948),
See John Finnis, Natural Law and Natural Rights
(Oxford: Clarendon Press, 1980), pp.231-233.
See Finnis, Natural Law, p.232.
Cf. Aquinas, S.C.G., III c.80 nn.14, 15.
See John Finnis, "Public Good: The Specifically Political
Common Good in Aquinas," in Robert P. George (ed.),
Natural Law and Moral Inquiry: Ethics, Metaphysics, and
Politics in the Work of Germain Grisez (Washington,
D.C.: Georgetown University Press, 1998), p.186.
Aquinas, S.T., II-II, q.48, a. un.
German Grisez, The Way of the Lord Jesus, vol.2,
Living a Christian Life (Quincy, Il: Franciscan
Press, 1993), p.850 (emphasis added).
Charles de Montesquieu, The Spirit of the Laws,
A. Cohler (ed.), (Cambridge: Cambridge University Press,
1989), II, 4.
Aquinas, S.T., I-II, q.95, a.2.
Joseph de Maistre, Considerations on France (Cambridge:
Cambridge University Press, 1994), p.53.
Solon, Solonos nomoi,
Eberhard Ruschenbusch (ed.) (Wiesbaden: Steiner, 1966).
Alexis de Tocqueville, Democracy in
J.P. Mayer (ed.), G. Lawrence (tr.), (New York: Perennial
Classics, 2000), p.165.
See Sir John Fortescue, De Laudibus Legum Angliae,
Stanley B. Chrines (ed. and trs.) (Cambridge: Cambridge
University Press, 1949), c.12.
Immanuel Kant, Critique of Pure Reason (London:
Dent, 1993), II, i.1.
Tocqueville, Democracy, p.238.
Benjamin Constant, The Political Writings of Benjamin
Constant, Biancamaria Fontana (ed.) (Cambridge: Cambridge
University Press, 1988), pp.177-178.
Robert P. George, The Clash of Orthodoxies: Law, Religion,
and Morality in Crisis (Wilmington, DE: ISI Books,
Germain Thils, Droits de l'homme et perspectives chrétiennes
(Louvain-la-neuve: Fayard, 1981), p.51.
See G.E. Anscombe, "Modern Moral Philosophy," Philosophy
33, 1958, p.11.
Robert Nozick, Anarchy, State and Utopia (New York:
Basic Books, 1974), p.9.
See Benjamin Constant, Les Principes de politique de
Benjamin Constant, Ètienne Hoffman (ed.), (Geneva:
Seuil, 1980), vol.1, pp.60-61.
Lloyd Weinreb, "Natural Law and Rights," in Natural
Law Theory, p.286.
For a fuller outline of this argument and its use of the
Declaration of the Human Rights, see Finnis, Natural
Finnis, Natural Law, p.225.
Finnis, Natural Law, p.214.
Cited in J.M. Thompson, Robespierre (Oxford: Oxford
University Press, 1939), p.299.
There are rare occasions in which a person may have to
make a decision that they foresee, but do not intend,
will have the side-effect of resulting in the death of
others. The intention and object of Colonel Claus von
Stauffenberg's attempt to assassinate Hitler was to facilitate
the opportunity for Germans to overthrow a criminal regime
by their own efforts. Hitler's death was a foreseen but
unintended result of the only act that would allow such
circumstances to be effected. Taken as a general principle,
however, the reasoning of Caiaphas and Hayek reflects
an effort to measure the immeasurable.
See Abraham Lincoln, "Speech at Springfield, Illinois
(26 June 1857)," in The Collected Works of Abraham
Lincoln, Vol.2, Roy Basler et al. (ed.), (New Brunswick,
N.J.: Rutgers University Press, 1953), pp.405-406.