(University of Chicago.
Third Year Student in Fundamentals:
Issues and Texts, New Collegiate Division
Chicago, IL 60637 USA)
Most people with the time to mull over such things—philosophers and social scientists, among others—regard theories of natural law and natural rights as indefensible chimeras, the treasured illusions of the naïve and the juvenile. Jeremy Bentham famously referred to natural rights as “nonsense upon stilts”.
Although the din from its critics overwhelms, the case for natural law is not quite as weak as they imply. Indeed, convincing arguments can be made for the legitimacy of such theories based on observations from nature. Everything that grows and develops does so in a recognizable way—a way tending towards increasing benefit and efficiency. The pattern of growth and movement through such widely varied systems as watersheds and city traffic adheres to the same principle, so closely even that its future progress can be predicted and imitated.
Such a principle of design certainly fulfills John Finnis’s requirement that natural law “hold good, as [principle], however extensively...overlooked, misapplied, or defied in practical thinking, and however little...recognized by those who...theorize about human thinking”.
If these similarities suggest—as I believe they do—that there exist universal design principles at work in nature and elsewhere, such a principle could then be considered as ‘natural’ and any necessary preconditions for its operation would be considered natural as well. Thus, one can argue for natural rights as these necessary preconditions, derived from a theory of natural design. Moreover, one can also argue for an approach to political organization working within such a conception of Nature, by actively facilitating natural trends as opposed to imposing artificial order from without.
This, of course, is not the argument generally made by proponents of natural law, but it withstands the attacks of skeptics far better. And, certain accounts, such as John Finnis’s and Robert Nozick’s, contain intimations of a similar argument.
As a philosophical position, natural law presents a fairly easy target; after all, the high-minded religious and metaphysical notions normally associated with the theory have long gone out of style. Yet every so-called ‘social science’ that regards man as its subject and object relies heavily on assumptions of universal truths and similarities about mankind on the basis of which the social scientists analyze and pass judgments. Such disciplines would be impossible without these assumptions, which provide the basis for evaluation. As John Finnis puts it, “reflection on the methodology of any social science confirms, that a theorist cannot give...analysis of social facts, unless he also participates...in evaluation of...what is really good for human persons”.
Finnis overstates his case, however, unnecessarily, by claiming that there are specific ‘human goods’ acknowledged and believed in by all persons. Although he argues convincingly, the attempt fails because human goods are not reconcilable or common; Jeremy Bentham’s view of the Good is not Robert Nozick’s.
What all men do share, however, is the idea that there is such a ‘best’, i.e. our current position as human beings leaves much to be desired, and something better exists. What that ‘best’ situation is or looks like will never be agreed upon; Finnis equates this ‘best’ with human flourishing, the eudaimonia
Any claim to agreement by humanity as to what constitutes ‘human flourishing’, however, is thoroughly preposterous and paves the way for totalitarianism. Nevertheless, all men agree by virtue of their efforts—reflecting on justice, for example, or seeking governmental and legal reforms—that there is such a best
that differs substantially from the current state of affairs and, moreover, that there is something we could and should be doing better in order to realize it. One does well to emphasize this final point in particular because the question of human flourishing is necessarily one of both ends and means. Again, we all might disagree on what constitutes ‘best’, as well as the better and more efficient way of achieving it, but we can all agree that the best is not
what we are or have right now
It is this particular realization that motivates those particularly high-minded humanitarians, the social engineers and utopians. Such people, with the goal of human flourishing firmly in their sights, take their cue from scientists and engineers, and, citing the vast progress made in the scientific and technological spheres in recent years as their inspiration, attempt to apply the same rational principles and designs to human matters. These scientifically-minded humanitarians want to make scientific human relationships. Whereas true social scientists, like the natural law theorists, look for overriding principles that govern human interaction and social development, these individuals set about designing from their imaginations—or Reason, as they often insists—social systems and governments that will realize their personal view of the Good. The result is often a radical departure from anything seen in the natural world.
All such idealists and social engineers are simply utopians diluted to different degrees. They wish to, through determining a theory of humanity or human interactions, thereby design the perfect society, and systematically apply it, top-down, like an edict or papal bull, on all those subject to their authority. Special emphasis should be placed on the flow of ideas for such utopians; knowledge and social organization alike always flow from the top to the bottom. Those below have no choice but to heed what is decreed from above.
The problems with such utopias, in theory and application, have been discussed and expanded upon at length by many intellects, but it is worth dwelling on a few such weaknesses that particularly impact the argument at hand. The first and most striking problem is the necessarily static nature of such systems. For the utopian, once his vision is established, progress ends; there is nowhere else to go, no possible improvement. As the current situation is perfect, change is strictly forbidden. This, of course, ignores the insight of Leonardo da Vinci that “il moto e causa d’ogni vita”.
Even farther: life is
motion. It is clear that the process of living is one of change; human existence is dynamic. We start as one thing and end as another, not only physically, but mentally, morally, emotionally, socially, etc.... Human beings, indeed, all things in this world, make this progress in time, through history. In human, animal, economic, etc...development, time represents the independent variable. Thus, a system in which change no longer happens and time becomes irrelevant sets itself directly at odds with nature.
In fact, one cannot divorce time and history from the very notion of human identity and the separateness of persons.
Some moralities claim that human life is made of choices, that each one of us is the sum of all such choices. This is only half the story. We are also the sum of each one of the choices made by our parents, starting long before we were born, and their parents before them.
Every choice plays a part, from whether your mother smoked or drank while pregnant to whether your parents sacrificed in order to send you to private school. We even inherit genetic propensities for certain diseases. Furthermore, one can say, not only do I have my father’s eyes, I am the fully bloomed result of his
flourishing. Contrary to the assumptions of some philosophers, then, it is clear that a human being does not spring fully formed from God’s, or his father’s, head.
He is the result of a long, historical process of choice heaped upon choice followed by success and failure—evolution.
In many ways, this particular truth especially offends the utopians and social engineers. A right understanding of how identity works refutes some of their more ridiculous arguments, such as “history is unfair”, that is, that any inherited advantages should be eliminated; after every generation, play should stop, the field leveled, and only then play resumed. (Whether or not this ‘giant reset button’ is a practical proposal or simply the whining of those disappointed in the birthing lottery is not a point of particular importance; the complaint, in itself and empirically, is ridiculous). Yet this assumption underlies all utopias. It works most clearly in Plato’s Republic
, which clearly demonstrates reliance on human beings without history. The noble lie and dissolution of families ensure that each citizen will have no idea of his true origin or real identity.
Unfortunately, we cannot divorce our origins from who we are. Beyond identity, all natural development in the world, human and otherwise, is a process of inheritance and building upon what came before. One can clearly say that this is how the world “simply is
as is clear from the rise and fall of civilization or the formation of certain annoying personality traits.
Given the fundamental dynamism and historical nature of human development, what more can we say about overriding principles at work, guiding this process? Instead of trying to impose a design based on a theory of how the world ought to operate as dictated by a central authority, we should take our cue from actual engineers who, recognizing that natural design and selection tend towards efficiency, try to identify the principle at work in nature and apply it. As mentioned earlier, it should be clear that this ‘best’ all philosophers and politicians seek also requires maximum efficiency. We have a state for a reason, to protect men from each other, but what is the most efficient way to set up this system?
The tide of humanity ebbs and flows, things change, human institutions crumble and are replaced, nothing is constant, and observation suggests that the same holds true for all systems in nature. Evolution, so readily accepted by all intellectual and forward-thinking people in the realm of biology, works also in human institutions and everyday interactions. Nature produces and discards designs, each based on modifications of varying size made to its direct predecessor. The relative strength and efficacy of a particular design determines its survival. The same is true, or should be, of governmental designs or social programs. If they do not work, they should be discarded, a provision not allowed for in utopian models. In nature, designs change and improve over time. Due to evolution, things do get better naturally
Other observable trends in nature provide insight, especially the specific designs that result from this process of natural selection. The same designs appear over and over again, obviously due to increased superiority of design. In systems, both natural and non-, materials flow from small channels to large, a sort of reverse branching. These ‘trees’ appear everywhere in nature, and, more shockingly, one can perceive just as clearly this flow pattern in artificial systems as well, such as the flow money within a market or cars in a city. These things begin in high resistance tributaries and make their way to the low-resistance arteries (cash for small money transactions, credit for large, for example, or narrow alleys leading eventually to superhighways).
Streams to the river, etc, etc.... But what does this all mean for human beings?
The best designs of engineering are those that most closely approximate nature. For example, the fuel to mass ratio of all flying structures, from hummingbirds to transatlantic jets, is nearly constant. If, then, the best designs copy nature, why shouldn’t we try to observe the flow of human life, authority, or responsibility and design accordingly? The suggestion that the flow of human flourishing can be traced just like the flow of water to the sea or air through a lung is obviously shocking, although not necessarily obvious. However, as Finnis puts it, “the remarkable fact that there is an order of nature which, like the orders human artifacts, actions, and thoughts, is amenable to human understanding calls for some explanation”.
And, the explanation, at work in nature and elsewhere, seems to be that systems arrange and rearrange themselves in such a way as to achieve the best possible situation with maximum efficiency—that is, that nature herself seeks to accomplish what is ‘best’ just like her human counterparts. Yet nature does not go about via a prescriptive approach, such as social programs and utopias, rather by building and revising institutions over time in an ongoing evolutionary process.
That such an observation be made explicitly might appear pointlessly obvious on the face of it; however, it allows for much progress in understanding the sphere of human action. After all, if design in nature is not random, why should we assume the opposite of human organization and development? Indeed, actual sociological research suggests that the assumption of randomness or relativism between human societies is unfounded. Certain basic similarities between vastly different cultures, whether in social organization, mythology, morality, etc..., prevail. Thus, we might well be justified in applying this principle directly to human beings. Once applied, such a principle offers a view of the natural form of human organization.
Such a theory based on a natural design principle suggests that diffusion is inefficient. Simpler systems, i.e. democracy, the rule of many, work for small homogeneous groups only. More size and complexity of population requires higher levels of organization with the roots still clearly in population itself—a republic. As society grows every larger, interpersonal relationships and small-scale representation remain just as important, but increased efficiency requires centralization at the top—constitutional monarchy, for example. Clearly, human organization becomes increasingly centralized both naturally and necessarily—as Nozick explains, the evolution of authority is natural and just (i.e. voluntary)—but the lower, more complex, levels of organization, such as private associations and local governments remain equally necessary. The bottom must remain strong in order to support the top. Similarly, the same evolutionary principle dictates identity as well: choice couples with and builds upon the results of inherited choices.
Again, such observations may seem less than revolutionary, but one arrives at them through a principle readily observed in nature; that is the salient point. The principle states that there exists a best possible design—or an Idea of one, a la Kant—that minimizes cost and maximizes efficiency. By the same token, the absolute ideal will not necessarily ever be reached; there will always be room for improvement. This fact, that perfection is unattainable, far from negating the principle, proves it farther. It also means that certain, so-called natural laws and rights can be derived directly from it. Certainly, in order to continuously improve the design, the individual actor needs a sphere of non-interference in which he may act in what he perceives as his best interest; he must be free to make beneficial associations and possess the private property necessary for beneficial exchanges. He must also be free to make mistakes. Thus natural rights theory serves as a way to ensure the minimum requirements for this quest for efficiency are met.
The necessity of failure, of course, proves especially hard for those enterprising humanitarians to bear; that failure be a precondition of success seems to them grossly unfair. They would limit the scope of possible human experiences to only the pleasant ones. But, as the Nozick ‘experience machine’ example suggests, such a life would in no way fulfill. “Plugging into the machine is a kind of suicide, ”
and so is effectively outlawing misery. Human beings as individuals require inequality as their only precondition. Life is ruled by x-factors: friction, choice, stupidity, taste, etc.... We cannot predict them, yet they remain necessary to human flourishing. Those compassionate souls who would outlaw choice because it entails loss and pain would choose for us, and, as our design principle suggests, there is nothing more contrary to progress or approaching the ideal as such top-down legislation or regulation contra diversity.
Therein lies Nozick’s objection to patterns, illustrated in the famous Wilt Chamberlain example.
Patterned societies, no matter how lofty their aims, will necessarily be undermined if they allow their citizens to operate and associate freely. Thus, he asserts that liberty upsets pattern. I feel this is to misstate the matter. If liberty upsets your pattern, then you simply have the wrong pattern.
Unplanned actions of free individuals are as much of any societal pattern as anything else. The point of actual interest should be the departure of the practical from the idea. By observing and analyzing the departure, we can revise our view of the pattern and the design principle at work. The idea of ‘enforcing pattern’ is utterly ridiculous. As the constructal principle suggests, patterns arise naturally; they are not dictated
Thus, human beings left to their own devices will choose in ways that maximize benefit and efficiency over time. This is the thought behind Libertarian theories of spontaneous order.
However, nothing can be said or known about the ideal organization of society except in the most general terms as a protection against ideology and also to ensure the free action of the natural design principle. After all, “the life of the political community is open-ended; its ends are never fully achieved and few of its co-ordination problems are solved once and for all”.
Yet, just because we cannot know it exactly or ever be assured of reaching it does not negate the importance of the ideal.
The principle works in extremely sophisticated ways. Each system that forms from the unobstructed intercourse between human agents is a version, more or less complex, of the best possible. Of course, this doctrine is much fairer than that of the utopians, which claim that only future generations will have the great honor of living in perfect societies.
This, then, is what I refer to as natural law, or rather the overriding principle that governs human action and interaction. Human beings are free individuals that act in time, and, alone or in groups, they act, without forethought, in ways that will maximize their happiness and flourishing in their lifetime. Over generations, this process results in the general improvement of society, continually renewed and revised versions of the best possible state of affairs. Yet questions remain over whether this system of natural law is prescriptive or descriptive. After all, the main objection raised against the laws and systems devised by the utopians and their brethren was their prescriptive approach.
On the contrary, the strict adherence to this principle increases freedom and diversity. This quote from Finnis is particularly enlightening:
“One should be looking creatively for new and better ways of carrying out one’s commitments, rather than restricting one’s horizon and one’s efforts to the...familiar. Such creativity and development shows that a person, or a society, is really living on the level of practical principle, not merely on the level of conventional rules...whose real appeal is not to reason...but to the sub-rational