Natural Law, Natural Rights, and the Law of Freedom

It is a great honor to be asked to comment on Gerald Russello’s excellent piece.  A man whose scholarship and wisdom is as high as his integrity is deep, Russello has pioneered much in his own writing and editing and in his profound grasp of the law.  Almost every topic I’ve explored academically has proudly followed the trails he has already cut and blazed.

The Conservative Mind

Sixty years ago, Russell Kirk (1918-1994) published his stunning and culturally and politically shattering work, his barely revised dissertation, The Conservative Mind.  Knopf had accepted it but the prestigious publishing firm wanted the relatively young author to pare the manuscript down significantly.  In response, Kirk submitted the full manuscript to the Chicago publishing firm founded only a few years earlier by Henry Regnery.  Arriving on bookshelves on May 11, 1953, The Conservative Mind enjoyed a popularity that stunned its author and its publisher.  Nearly every major newspaper, magazine, and journal in the English speaking world reviewed it, sometimes twice, and Kirk became nothing less than a major celebrity for the next decade.  Time magazine even went so far as to label the Michiganian one of the fifteen most important intellectuals in America.

It can be argued rather effectively that without Kirk and Hayek, the Goldwater movement could never have emerged in the fashion that it did in the late 1950s and first half of the 1960s.  As almost every writing and scholar, regardless of political disposition, agrees, if Kirk is not THE founder of the post-war conservative movement, he is one of its most important architects.  Additionally, almost everyone agrees that The Conservative Mind gave creditability to the budding conservative and libertarian movements, post World War II.

Kirk’s literary output throughout his adult life is nothing short of astounding.  During the sixteen years prior to his marriage, 1948-1964, he published nine books of history and cultural criticism, his first novel, over four-hundred articles, twenty-six reference articles, sixty book reviews, seventeen book introductions, and ten short stories.  He also founded and edited two journals–Modern Age and the University Bookman–over the same time period.  Between 1962 and 1975, Kirk also wrote close to 3,000 syndicated newspaper columns.  Covering every topic imaginable—from the encouragement of defacing billboards to the condemnation of Barbra Streisand as a no-talent hack made popular only by massive corporate marketing—Kirk’s “To the Point” syndicated column reached millions of readers.  And, the record of publication does not cease here.  During his married years, 1965-1994, Kirk published fourteen books of cultural criticism and history, 408 articles, 32 original chapters in edited books, 182 book reviews, 2 novels, and 8 short stories.  Political scientist W. Wesley McDonald properly claims that “Russell Kirk has written more, it would be fair to say, than the ordinary American has read.”

Most Americans, therefore, knew Kirk through his newspaper columns and through his fiction writing.  His first novel, Old House of Fear sold well over 100,000 hardback copies initially, and Avon, having bought the paperback rights, offered 12 different printings between 1961 and 1971.  The American Library Association displayed and promoted it prominently at the New York World’s Fair of 1964, and it became a beloved Book Club selection.  Another hardback edition appeared in 1965, and British and Dutch editions of the novel appeared quickly.  Pocket Books bought the rights to it in 1977 and reissued it yet again that same year.  This one novel sold more than all of Kirk’s other works combined, and popularized a genre that would eventually spawn Stephen King.

Back to Kirk’s non-fiction.  When Kirk wrote his dissertation under the very loose direction of an old Whig, Professor J.W. Williams at the University of St. Andrews, giving voice to the anti-ideological voices in the wake of World War II, he attempted a number of things.  The first, and perhaps most important for a piece written for Liberty Fund, was a desire to bridge the various strands of non-left thought.  Still rather skeptical in his own religious beliefs (he wouldn’t formally convert to Christianity until 1964, at the age of 45), he was first and foremost a Stoic in the ancient, pre-Christian mode.  Even in his last days, Kirk kept a copy of Aurelius’ Meditations next to his bed.  The other more contemporaneous influences were the humanist Irving Babbitt, the Christian humanist Paul Elmer More, the anarchist Albert Jay Nock, and the constitutionalist/individualist Isabel Paterson.

The first edition attempted to reconcile these five distinct traditions, and it did so by praising the subtle differences of the human person, past, present, and future, and by rather poetically and hagiographically linking together a group of Anglo-American thinkers following from Edmund Burke.  Probably the best word to use to describe Kirk’s beliefs is “personalist” rather than “individualist,” a term he despised, even in his more libertarian days.

And, this brings me to a main point.  The Platonic idea of Justice as one of the four cardinal virtues and as a transcendent idea fascinated Kirk throughout his adult life.  Classically defined, Justice is “to give each his/her due.”  Justice connects us to the transcendent, it connects us to those in our immediate community, and it connects us to all of the human race, from Adam to the last man.  How did work in the here and now?  As Russello so expertly notes, Kirk believed in the slow evolution and adaptation of cultures to various needs and demands.  Here, Kirk has much in common with Hayek’s spontaneous understanding, not surprising given that both men looked to Burke, Smith, and Tocqueville for wisdom.  Law, as Russello argues, comes in various forms, often dogmatically (not systemically) and more often than not, in disparate competition with a number of other forms of law.  The Natural Law transcends all of this, but it’s a very difficult thing to pin down and make real in this world.  Hence, Kirk embraced Orestes Brownson’s skepticism of William Seward’s ability to interpret the “higher law” in 1850.

Natural Rights

One important note should be added to Russello’s argument.  Toward the end of his essay, he writes: “Kirk wrote several important essays on the ‘natural law,’ which he sharply distinguished from the doctrine of ‘natural right,’ an ideology he traced to the French revolution.”  Of course, this is true.  Kirk despised the French Revolution, seeing in it–as did Burke–all of the ills of the world made manifest, unleashing a disease upon the world that would take centuries to contain, if ever.

Because Kirk more often than not argued against abstract declarations of rights, such as those offered by John Locke and Thomas Jefferson, many scholars have presumed that Kirk rejected all forms of natural rights, as they also presume had Edmund Burke.  In fact, neither man rejected the concept of natural rights.  Rather, each man embraced the notion firmly.  Each cautioned, however, that these rights by their very nature almost always remain mysteries and certainly cannot exist merely by declaration or abstract reasoning.  That is, natural rights exist, but a definite set of rights for all times and all places and all persons might simply be unknowable and uncategorizable to the finite capacities of man.  As Burke explained in 1783:

The rights of men, that is to say, the natural rights of mankind, are indeed sacred things; and if any public measure is proved mischievously to affect them, the objection ought to be fatal to that measure, even if no charter at all at all could be set up against it.  If these natural rights are further affirmed and declared by express covenants, if they are clearly defined and secured again chicane, against power, and authority, by written instruments and positive engagements, they are in still better condition; they partake not only of the sanctity of the object so secured, but of that solemn public faith itself, which secures an object of such importance.

That is, simply because Locke or Jefferson declared these rights as rights did not make them so and never could.  To believe either man identified these rights perfectly would be to presume that each man could know things that only God could know, and the result would be nothing short of a parody of real rights and real justice, “veiled vices.”  One would find that in the act of declaration, analysis, or even deconstruction of a right, the sacred might very well be lost.  As early as 1951, Kirk had scorned the idea of “any system of unalterable universals. . . a rigid adherence to a harmonious closet philosophy.”  A natural rights divorced from tradition, he held, rarely carried any cultural or societal weight beyond that of a mere decree.

Kirk also argued that one must define the term “rights” appropriately, so that they did not become abused.  A right, he claimed, is at its base, “an immunity, a guarantee that certain things cannot, or ought not to be, done to a person against his will.”  Yet, an understanding of rights determined so much in modern societies that only the most foolish would neglect to understand them and their importance in modern society, Kirk warned.  “In our modern confusion about the meanings of words, most people are at sea when they come upon such terms,” he wrote.  Free societies, though, could not attain any form of justice “until a proper understanding of these terms is restored.”  Even as early as 1957, Kirk presented his arguments in a very Catholic fashion, following a line of thought that can be traced from Aristotle through Aquinas through the Jesuit Thomists of the sixteenth century, Robert Bellarmine and Francisco Suarez.  He credited the Catholic Church for maintaining the tradition of natural law and natural rights best in the western tradition and especially in the United States.

All natural rights, Kirk argued, found their origins in the dignity of the human person as created Imago Dei.  “These are the rights which all men and women are entitled to: rights which belong to them simply because they participate in human dignity,” Kirk wrote in 1957.  He further noted that rights can also be positive rights, those that find their existence and expression in positive legislation or executive action.  There are also rights of conquest as understood in international law.  But positive rights, especially, Kirk continued, are merely “man made,” something quite different from natural rights.  After all, he wrote, because man does not create natural rights, each man possesses them as a universal law of being.

Natural rights are rights which originate in the nature of every man—the character and personality given to men by God, the privileges that come from the fatherhood of God and the brotherhood of man.  Everyone is entitled to possess these rights, no matter how strong or how weak he is, no matter how rich or how poor, not matter how civilized or how savage, no matter how famous or how humble.

Without Natural Rights, Kirk continued, man could not achieve the purpose or destiny or intent that God intended for each person, uniquely.  They allow “the human creature to realize full humanity, in the image of God.”   Ultimately, the only real natural rights must somehow “involve human dignity, human personality, human happiness.”  Any hindrance of Natural Rights limits the Divine will for men and man.

Historically, Kirk noted, no agreement as to the exact nature of such rights could be uncovered beyond the assertions of individual thinkers.  Instead, a healthy dialogue among scholars and theologians exists to the present day.  Such thinkers in the more recent western tradition included Aquinas, Richard Hooker, Locke, Jefferson, and Leo Strauss.

Finally, Kirk argued that all natural rights came down to property rights.  Not that property had rights, but that humans must have rights to the free exchange, creation, and ownership of property.

In America, as in England, nearly everyone was agreed that men and women have three fundamental rights: the right to life, the right to liberty, and the right to property.  These three rights were understood to be coordinate and interdependent; for liberty, and even life, could not be secure unless private property was secure. Without a fundamental right to property, Kirk warned, no civilization could emerge or ever be maintained. Further, Kirk maintained, the right to property was “rooted in inequality.”

Being made in finite nature by the infinite brilliance of God, each man shared in the universal equality and brotherhood as sons of God but as individuals, never to be repeated in time or space.  Further, property allows men to fulfill not only their purpose but find their dignity as well in society.  Hence, Kirk concluded, “Private property is, to some extent, an end in itself; but it is also a means to culture; and it is a means to freedom.”  God and man worked together to release “private energies” through the right of property.