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home \ conferences \ palermo 18-23 luglio 2004 \ S. Gregg - “Natural Law and Constitutional Order: Towards Ordered Liberty”


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18-23 luglio 2004


The Ethical Traditions of Europe and the USA:

Common Roots and Possibilities for Dialogue



Natural Law and Constitutionalism: Towards Ordered Liberty





Samuel Gregg [1]

Acton Institute

Paper delivered at conference

La tradizione etiche di Europa e Stati Uniti :

Le radici comuni e il dialogo possible

Palermo, Sicily.

21 July 2004






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.


                                                                                              François Guizot [2]





Perhaps 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 coercion.


Over 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.


A 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 constitutionalism." [3] This overriding concern for autonomy underlies the thought of American liberal scholars such as Ronald Dworkin and John Rawls.


In 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." [4]


What, 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. [5]


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 of persons.


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 authoritative manner.


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 or authority. [6] 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. [7]


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 institutions.


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 persons. [8] 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 themselves.


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 associations.


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. [9] 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." [10]


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.

Hence, 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 prevail.


This 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 other people. [11]


While 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


The 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 good.


If 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 order.

Historically 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.


By 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." [12] 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 republic.


Yet 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.


Constitutionalism 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.


The 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.


Adherence 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.


The 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?


While 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. [13]


Reason 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.


Some 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.


In 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 suit it." [14] 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." [15] 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.


Such 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." [16]


Consciousness 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.


There 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 political order. [17] 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.


Reason 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." [18]


A 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


While 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." [19] 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." [20]


The 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 actual beliefs.


Those, 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.


Further 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 rights." [21] 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." [22] It seems that the participants decided that agreement on common principles-a common philosophy-was unlikely to be achieved.

Part 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. [23] 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 Treatise." [24] Unfortunately when it comes to matters as serious as rights, we cannot simply defer to respectable scholarly tradition.


Like 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. [25] 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.


The 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


To 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?


Much 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." [26]


The 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.


If 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. [27] Here we find that the idea of rights normally spoken of in two ways:


·      "Everyone has the right to . . ."; and


·      "Noone shall be . . .".


Both 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.


There 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."


Nonetheless, 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)." [28]

If 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. [29] 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.


The 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?" [30] Or, to cite Maximilian Robespierre, "Because la patrie must live, Louis must die." [31] 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 of others. [32]


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. [33] The very act of recognition helps to establish the conditions that assist us to participate in the goods intrinsic to man.


A Right to do Wrong?


What, 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?"


If 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.


People 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.


Nonetheless, 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.


A 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.


This 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.





[1] 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 Society.

[2] François Guizot, Des moyens de gouvernement et d'opposition dan l'état actuel de la France (Paris: Nouvelle Cité, 1921), p.168.

[3] 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.

[4] 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.

[5] Thomas Aquinas, De Regimine principum ad regem Cypri (Taurini: Marietti, 1948), I, 6.

[6] See John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), pp.231-233.

[7] See Finnis, Natural Law, p.232.

[8] Cf. Aquinas, S.C.G., III c.80 nn.14, 15.

[9] 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.

[10] Aquinas, S.T., II-II, q.48, a. un.

[11] German Grisez, The Way of the Lord Jesus, vol.2, Living a Christian Life (Quincy, Il: Franciscan Press, 1993), p.850 (emphasis added).

[12] Charles de Montesquieu, The Spirit of the Laws, A. Cohler (ed.), (Cambridge: Cambridge University Press, 1989), II, 4.

[13] Aquinas, S.T., I-II, q.95, a.2.

[14] Joseph de Maistre, Considerations on France (Cambridge: Cambridge University Press, 1994), p.53.

[15] Solon, Solonos nomoi, Eberhard Ruschenbusch (ed.) (Wiesbaden: Steiner, 1966).

[16] Alexis de Tocqueville, Democracy in America J.P. Mayer (ed.), G. Lawrence (tr.), (New York: Perennial Classics, 2000), p.165.

[17] See Sir John Fortescue, De Laudibus Legum Angliae, Stanley B. Chrines (ed. and trs.) (Cambridge: Cambridge University Press, 1949), c.12.

[18] Immanuel Kant, Critique of Pure Reason (London: Dent, 1993), II, i.1.

[19] Tocqueville, Democracy, p.238.

[20] Benjamin Constant, The Political Writings of Benjamin Constant, Biancamaria Fontana (ed.) (Cambridge: Cambridge University Press, 1988), pp.177-178.

[21] Robert P. George, The Clash of Orthodoxies: Law, Religion, and Morality in Crisis (Wilmington, DE: ISI Books, 2001), p.18.

[22] Germain Thils, Droits de l'homme et perspectives chrétiennes (Louvain-la-neuve: Fayard, 1981), p.51.

[23] See G.E. Anscombe, "Modern Moral Philosophy," Philosophy 33, 1958, p.11.

[24] Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), p.9.

[25] See Benjamin Constant, Les Principes de politique de Benjamin Constant, Ètienne Hoffman (ed.), (Geneva: Seuil, 1980), vol.1, pp.60-61.

[26] Lloyd Weinreb, "Natural Law and Rights," in Natural Law Theory, p.286.

[27] For a fuller outline of this argument and its use of the Declaration of the Human Rights, see Finnis, Natural Law, pp.210-230.

[28] Finnis, Natural Law, p.225.

[29] Finnis, Natural Law, p.214.

[30] Jn 11: 50.

[31] Cited in J.M. Thompson, Robespierre (Oxford: Oxford University Press, 1939), p.299.

[32] 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.

[33] 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.



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