Dean Erwin Chemerinsky deserves credit for bucking the Left’s agenda to silence disfavored speech.
In this essay I present a sketch of a classical natural law approach to natural rights and private property. The approach is “classical” insofar as it is grounded in metaphysical assumptions of the sort defended by ancient and medieval philosophers like Plato, Aristotle, and Aquinas — assumptions very different from the paradigmatically modern, post-Cartesian metaphysical assumptions that underlie other so-called natural law theories, such as those of early modern thinkers like John Locke or the contemporary “new natural law theory” associated with John Finnis and Robert P. George.
How exactly do the classical metaphysical assumptions in question differ from modern ones? To paint with an admittedly broad brush, classical philosophy tends toward essentialism, while modern philosophy tends toward nominalism and related views; that is to say, classical philosophers tended to take the view that things have essences or natures as a matter of objective fact, while modern philosophers have tended to hold either that things have no essences or that their essences are conventional, made by man rather than found in nature. Classical philosophy also tends toward a teleological view of nature, while modern philosophy tends toward a mechanistic one; or in other words, classical philosophers generally held that things are naturally oriented toward the realization of certain ends or goals (“final causes,” as followers of Aristotle famously call them), while modern philosophers generally deny this.
It is often claimed that the classical metaphysical theses in question were refuted by modern science. That is not the case. In fact early modern philosophers like Descartes, Hobbes, and Locke rejected the assumptions in question for a combination of political and philosophical reasons, and then simply redefined science in such a way that no explanation that made reference to essences (as classical thinkers understood that concept) or final causes would be allowed to count as scientific. And in fact the actual results of modern science are perfectly compatible with these classical metaphysical theses when rightly understood (as they rarely are by contemporary writers who lack expertise in the history of ancient or medieval philosophy). Indeed, contemporary “new essentialist” metaphysicians and philosophers of science like Brian Ellis, Nancy Cartwright, C. B. Martin, John Heil, and George Molnar have advocated a return to something like these older categories precisely as a way of making sense of modern science. These are, needless to say, large issues, and I have defended classical metaphysics at length, and polemically, in my book The Last Superstition — and non-polemically in my book Aquinas.
The differences between classical and modern philosophers over metaphysics entail, at any rate, crucial differences over morality. For the classical tradition, the essence or nature of a thing determines an objective standard of goodness. To take a simple example, the fact that the essence of a Euclidean triangle is to be a closed plane figure with three straight sides entails that a triangle drawn slowly and carefully on art paper with a fine tip pen and a straight edge is a good triangle and one drawn hastily in crayon on the cracked plastic seat of a moving bus a bad one, because the former will at least closely approximate the essence while the latter (with its inevitable broken and wavy lines) will fall far short of doing so. Similarly, there is an obvious sense in which a whole and healthy squirrel which likes to scamper up trees and gather nuts for the winter is a good squirrel while a sickly squirrel missing a tail or a leg which prefers to stay in a cage eating toothpaste on Ritz crackers is a bad squirrel. For the former more closely approximates the normal anatomy and pattern of life that nature has set for squirrels, as defined in part by the ends, goals, or tendencies (such as scampering about and gathering nuts) that are typical of the species.
Obviously the examples given so far are not examples of moral goodness per se. (It would make no sense to accuse a badly drawn triangle or an injured squirrel of an ethical lapse!) But for the classical tradition in philosophy they illustrate a general concept of goodness of which the moral kind is a species. As the contemporary neo-Aristotelian ethicist Philippa Foot has emphasized (and as the squirrel example indicates), with living things especially, their “natural goodness” or lack thereof is to be defined in largely teleological terms. The lioness who nurtures her cubs is a good lioness because she fulfills (to that extent anyway) the ends set for her by nature, while the lioness who allows her cubs to starve is to that extent defective, just as a three-legged squirrel or badly drawn triangle is defective. Unlike the goodness or defectiveness of triangles and the like, that of a living thing has to do not only with the static realization of some archetypical shape or structure, but also with the development over time of certain paradigmatic behavioral patterns. In human beings, this standard of goodness or defectiveness takes on a moral character to the extent that our realization of, or failure to realize, the ends set for us by nature results from our freely chosen actions. Hence, to take a simple example, the human intellect is according to the classical tradition naturally oriented toward the pursuit of truth; that is its purpose, its final cause, even if it does not always realize that purpose (just as it is the natural end or purpose of the heart to pump blood, even if it sometimes fails to do so because of genetic defect or injury, or because Hannibal Lecter decides to make of it a meal instead). For us to fulfill this end or purpose is for us to flourish as the kind of beings we are, while to fail to do so is to that extent to atrophy as a human being. It follows that to pursue truth is good for us and to fail to do so is bad, and that those who pursue it are to that extent good or virtuous while those who do not are to that extent bad or vicious.
Now practical reason, on this view, has as its own natural end the pursuit of what the intellect perceives to be good for us and the avoidance of what it takes to be bad. Hence Aquinas’s famous claim that the self-evident first principle of natural law is that good is to be done and pursued and evil is to be avoided. Aquinas was not suggesting that it is self-evident that we are bound by the moral law. What he means is that it is self-evident that whenever we choose to do something, we do so because we regard it as good in some way or other, and that when we avoid doing something we do so because we regard it as bad in some way or other. This is true even of someone who is convinced that what he is doing is morally wrong. The mugger who admits that robbery is evil nevertheless takes his victim’s wallet because he thinks it would be good to have some money to pay for his drugs; the drug addict who knows that his habit is wrong and degrading nevertheless thinks it would be bad to suffer the unpleasantness of withdrawal; and so forth. We are simply built to pursue good and avoid evil in this thin sense. But suppose that the intellect comes to perceive that what is in fact good for us is to realize the ends that nature has set for us and to avoid anything that frustrates the realization of those ends. Then to the extent that we are rational we will strive to realize those ends. In short, reason is built to pursue what it takes to be good; what is in fact good is the realization of the ends set for us by nature; and thus a rational person apprised of the facts will seek to realize those ends. In this sense to be moral is simply to act rationally and to be immoral is to be irrational. The obligatory force of morality thus follows from the natural end or final cause of reason, just as the content of morality follows from the natural ends or final causes of our various capacities more generally. Morality, for the classical philosophical tradition, is thus doubly dependent on an essentialist and teleological conception of nature.
Where do natural rights come in? The basic argument is this. We are rationally obliged to pursue what is good for us and to avoid what is bad, where “good” and “bad” are to be understood in terms of the classical metaphysical picture described above. Hence we are obliged (for example) to pursue truth and avoid error, to sustain our lives and health and avoid what is damaging to them, and so forth (ignoring for present purposes the various qualifications and complications a fully developed natural law theory would have to spell out). The force and content of these obligations derive from our nature as human beings. Now it is part of that nature that we are social animals, as Aristotle famously noted. That is to say, we naturally live in communities with other human beings and depend on them for our well-being in various ways, both negative (such as our need not to be harmed by others) and positive (such as our need for various kinds of assistance from them). Most obviously, we are related to others by virtue of being parents or children, siblings, grandparents or grandchildren, cousins, and so on. Within the larger societies that collections of families give rise to, other kinds of relationships form, such as that of being a friend, an employee or employer, a citizen, and so forth. To the extent that some of these relationships are natural to us, their flourishing is part of what is naturally good for us.
For example, as Foot has noted in her book Natural Goodness, “like lionesses, human parents are defective if they do not teach their young the skills that they need to survive.” It is part of our nature to become parents, and part of our nature that while we are children we depend on our own parents. Accordingly, it is as a matter of objective fact good for us to be good parents to our children and bad for us to be bad parents, just as it is (even more obviously) an objective fact that it is good for children to be taken care of by their parents. Now if it is good for a parent to provide for his children, then given that we are obliged to do what is good for us, it follows that a parent has an obligation to provide for them. Similarly, since given their need for instruction, discipline, and the like, it is good for children to obey and respect their parents, it follows that they have an obligation to obey and respect them. But an obligation on the part of a person A toward another person B entails a right on the part of B against A. It follows in turn, then, that children have a right to be provided for by their parents, and parents have a right to be obeyed and respected by their children. And since the obligations that generate the rights in question are obligations under natural law (rather than positive law) it follows that they are natural rights, grounded not in human convention but in human nature.
Other obligations we have under natural law toward various other human beings will similarly generate various other natural rights. At the most general level, we are all obliged to refrain from interfering with others’ attempts to fulfill the various moral obligations placed on them by the natural law; the most basic natural right is the right to do what is good and not to be coerced into doing evil. Individual talents and circumstances inevitably leave open several possible equally legitimate ways in which one might concretely pursue the goods set for him by nature, so that the natural law also entails a right to a significant measure of personal liberty (e.g. with respect to choice of spouse, career path, where to live, and so forth). And of course we cannot pursue any good or fulfill any obligation at all if our very lives could be taken from us by others as they saw fit, so that the natural law entails that every human being (or at least every innocent human being) has a right not to be killed. Yet other rights would follow from various other aspects of the ends set for us by nature.
This gives us some idea of how rights are generated under classical natural law theory, though it is, of course, very general, and natural law theorists would add a great many further details, complications, and qualifications to this basic account. It is particularly important to emphasize that the classical natural law approach to rights theory puts definite limits on what we can be said to have a natural right to. While the very concept of a right entails a certain measure of liberty, that liberty cannot be absolute; for since the point of natural rights is to enable us to realize the ends set for us by nature, there cannot, even in principle, be a natural right to do what is contrary to the realization of those ends. In short, there cannot be a natural right to do wrong. That does not mean that classical natural law theory entails a paternalistic nanny state or the institution of a morality police. There might be all sorts of reasons, including moral ones, why that would be a bad idea even from a natural law point of view. The point is just that there can be no question of a natural right to indulge in vice, even if there might be pragmatic grounds, or moral grounds apart from rights-based ones, to tolerate such indulgence.
Now, by nature human beings obviously need natural resources in order to survive. But that fact is consistent with holding that they ought to be allowed only the use of natural resources rather than ownership of them, or with the view that natural resources ought to be collectively owned. Of course, there are very serious and well-known practical problems both with a situation where natural resources are left in the commons and with any system of collective ownership à la socialism and communism. But that would by itself show only that private property has certain practical advantages, not that there is a natural right to it. So how does classical natural law theory show that such a right does in fact exist?
The case begins by noting that the institution of private property is something toward which we are both naturally suited and even require for our well-being. With respect to the former point, we can note first that an individual human being’s intellectwill make it possible for him (unlike the lower animals) to take permanent occupation and control of a resource and to use it for his personal benefit; and such occupation, control, and use is precisely what private property consists in. Furthermore, in doing so the individual inevitably imparts something of his own personality to the resources he transforms, insofar as the particular properties a resource takes on as a result of his use and transformation of it reflect his personal intentions, knowledge, talents, and efforts. In our very use of external resources, then, we tend unavoidably to put into them something that is already ours (which is, of course, something Locke also emphasizes in his talk of “mixing our labor” with external resources).
So our inherent faculties naturally orient us toward private ownership. But such ownership is also necessary for us. It is necessary for us first of all as individuals. An individual’s personal capacities and potentials cannot be exercised and realized, respectively, without at least some stable body of resources on which to bring his efforts to bear; the freedom of action required in order to do this cannot exist unless he has permanent access to at least some of those resources; and as the experience of individuals in even the most egalitarian societies attests, human beings have a natural desire for at least something to call their own, and cannot be happy if this desire is frustrated.
Ownership is also necessary for us as families. We are naturally ordered toward the having of children, and as we have seen, for classical natural law theory this entails an obligation to provide for whatever children we have, not only materially but spiritually, that is, with respect to their moral upbringing, education, and the like. As children grow to adulthood and have families of their own, they tend to need assistance from parents in starting out; there are other relatives (aunts and uncles, cousins and the like) to whom in some circumstances we might also owe some assistance under natural law, even if our obligations here are not as strong as to our own children; and there are always emergencies that need to be planned for as far as possible. As the fundamental social arrangement, for the sake of which others (such as states) exist, it is also crucial that the family maintains a significant measure of independence. These considerations entail that families need to be able to amass wealth to which they have permanent rights of use and transfer.
Finally, private ownership is necessary for the good of the larger societies that tend naturally to form out of groups of families. Here the sorts of considerations favoring private property famously adduced by Aristotle and Aquinas become particularly relevant. The incentives to labor are massively reduced where the laborer is not allowed to reap its fruits, which drastically limits the amount of wealth available for the use of society at large; economic and social planning are far more efficient when individuals are able to look after their own property than when things are held in common (a point Mises and Hayek have developed in illuminating detail); and social peace is more likely when individuals each have their own property than when they must debate over how best to use what is held in common.
If our natural capacities are ordered toward private ownership, and if the fulfillment of those capacities and of our moral obligations under natural law requires such ownership, then it follows, given the justification of natural rights outlined above, that the natural law entails a natural right to private property. So far, though, this establishes only the general institution of private property. We need to say something more to determine how a title to this or that particular resource can come to be acquired by this or that particular individual. That is to say, we need a theory of “original appropriation” or “initial acquisition.”
The tendency of classical natural law theorists of property is to find the origin of such appropriation in first occupation. Taking occupation of a previously unowned resource is necessary for ownership because unless one first takes hold of a resource, nothing else can be done with it at all, including the carrying out of any other procedure that might be claimed to be necessary for appropriation. In particular, one cannot “mix one’s labor” with a resource until one has first taken hold of or occupied it, for which reason classical natural law theorists tend to reject Locke’s theory of appropriation at least as an account of the fundamental means by which ownership gets started. Taking occupation is also (apart from a qualification to be noted presently) sufficient for ownership because it suffices to enable one to fulfill the ends for which natural law theory tells us the right to property exists in the first place.
Though not as fundamental as first occupation, labor nevertheless also has a crucial role to play in the story of how property comes into being. For as noted above, for classical natural law theory, to labor over a resource is, as it were, to put into it an impress of one’s own personality, and thus something one already has a right to. Furthermore, most of the value that comes to exist in a transformed resource derives not from the resource per se but from the labor put into transforming it. Hence the more one has put one’s labor into a previously unowned resource of which he takes first occupation, the stronger or more complete is his property right to that resource.
This naturally brings us to the question of the limits on the right to private property, which is implied by the suggestion that a property right can be more or less strong or complete. As with natural rights in general, the right to private property has a teleological basis, namely the role it plays in enabling us to realize our natural capacities and fulfill our obligations under natural law; and as with natural rights in general, this right is limited by the very teleological considerations that ground it. As what has already been said clearly implies, the right to private property, like our other natural rights, cannot possibly be so strong that it would justify us in doing what is contrary to the natural law. Hence there can be no natural right to use our property for intrinsically immoral purposes. As before, this doesn’t by itself entail that government must or even should regulate our private exercise of our rights so that it conforms to the standards of natural law. But it does entail that there can be no natural law basis for arguments to the effect that outlawing strip clubs and drug dens (or whatever) is necessarily a violation of the natural right to private property.
But there is another limitation on the right to private property, one that is more directly related to its specific teleological grounding. As we have seen, for classical natural law theory, property exists in the first place in order to allow individuals to realize their natural capacities and moral obligations by bringing their powers to bear on external resources. Hence if property rights were so strong that they would justify some people in using their property in a way that undermined the possibility for others to fulfill their natural ends and moral obligations, then the very point of the institution of private property would be undermined. To take an extreme but clear example, if some one person or group of persons acquired a monopoly over some crucial resource (such as land or water) and refused those who did not have this resource access to it, or allowed them access only under onerous conditions, then it is obvious that the institution of private property would allow some individuals to fulfill their natural ends at the expense of the ability of others to fulfill theirs. Clearly, then, the right to private property cannot be so strong as to justify such a circumstance.
What does this limitation imply in practice? The most obvious implication is that individuals in circumstances of absolute distress have a right to the use of the resources of others, where the paradigm examples would be the starving man in the woods who takes food from a cabin, or someone fleeing robbers who can only escape by running through someone else’s back yard. Someone in circumstances like these is not guilty of theft or trespassing, because for actions like the ones in question to count as theft etc., the cabin owner or homeowner would have to have such an absolute right to his property that he could justly refuse to allow others to use it even in the circumstances in question, and according to natural law theory, no one could possibly have so absolute a property right.
For similar reasons, some measure of relief for those who find themselves in economic straits and have no natural resources of their own to fall back on would be justifiable. But for classical natural law theory, the primary responsibility for such relief lies with the families of those in need of it, and taxation for such purposes would be justified only to the extent that such private means were insufficient. Government-provided relief is also best handled at the most local level possible. For given its family-oriented approach to social theory and private property, classical natural law theory is committed to the doctrine of subsidiarity, which holds that the more central authorities within a society should not carry out any functions that can be performed by less central ones (though it should carry out those which cannot be performed by the less central ones).
Obviously, all of this raises questions I cannot answer here. [I pursue the matter in greater depth in my article “Classical Natural Law Theory, Property Rights, and Taxation,” in Social Philosophy and Policy, Vol. 27, No. 1 (2010).] But this much should suffice to indicate how classical natural law theory supports an essentially conservative middle ground position between libertarianism and egalitarian liberalism.