Nappa 2021 Legal Education Conference
November 23, 2022
Nearmap Legal Counsel
November 24, 2022

Natural Rights and Higher Law

Now, it seems strangely naïve to imagine that American courts would always subscribe to Thomistic concepts of natural laws and renounce the Jacobin teachings of natural law. The courts must, as a general rule, coincide with the general legislative branch; Otherwise, the Book of Judges is followed by the Book of Kings. Meanwhile, in America, Thomas Jefferson “took his division of rights into alienable and inalienable from Hutcheson, which made the distinction popular and important,”[28] and in the 1776 United States Declaration of Independence, he condensed this into: The mechanical model of man, however, is not sufficient to refute classical natural law. Hobbes develops a second argument based on moral experience and shows that people are motivated not only by pleasure and power, but also by vanity – a misconception of one`s superiority over others. In his historical writings, Hobbes shows how the passion for vanity undermined traditional political authority, where kings relied on superior laws to obtain the obedience of the people. The defect of this arrangement is that the traditional superior juridical doctrines are easily exploited by conceited and ambitious men who claim to be superior to the sovereign on the basis of a privileged knowledge of divine, natural and habitual law. Hobbes` account of the English Civil War (1642-60) in Behemoth illustrates the problem: King Charles I. was overthrown by Puritan clergymen, Democratic parliamentarians and common law advocates who sought recognition of their superior knowledge of the higher law, but who could not agree among themselves on the correct doctrine, which led to sectarian wars that reduced English society to the anarchic state of nature. [2] From this frightening analysis, however, Hobbes draws a lesson of hope: if higher laws are not equated with immaterial goods such as virtue, wisdom, and salvation, then the evils of civilization can be avoided and humanity can enjoy lasting civil peace. Different philosophers have drawn up different lists of rights that they consider natural.

Proponents of natural rights, especially Hesselberg and Rothbard, responded that reason can be used to separate truly axiomatic rights from supposed rights, arguing that any principle that must be refuted is an axiom. Critics have pointed to the lack of agreement among supporters as evidence for the claim that the idea of natural rights is merely a political tool. One of the first Western thinkers to develop the contemporary idea of natural rights was the French theologian Jean Gerson, whose treatise De Vita Spirituali Animae of 1402 is considered one of the first attempts to develop what would be called the modern theory of natural law. [16] “Whether the term `natural law` is used more frequently today, or whether ius naturale is an ancient invention,” begins my German correspondent, “I consider this term false and misleading. There is no law or legal system that can be derived from nature. Nature has rules that have evolved over the course of evolution, but there is only one hominis juice and no natural juice. All forms of natural law theory subscribe to the overlap thesis, which claims that there is some kind of unconventional relationship between law and morality. According to this view, the concept of law cannot be fully articulated without reference to moral ideas. While the overlap thesis may seem clear, there are a number of different ways to interpret it. There are some problems with this objection.

First, conceptual naturalism does not exclude criticism of the norms that are applied by a society as law. To the extent that it can plausibly be asserted that the content of a norm imposed by society as a law does not correspond to natural law, this is a legitimate reason for moral criticism: since the norm to be applied by the law is unjust, it follows from conceptual naturalism that it is not legally valid. Thus, the state commits an injustice by applying this norm against individuals. Contemporary political philosophies that continue the classical liberal tradition of natural rights include libertarianism, anarcho-capitalism, and objectivism, and their canon includes the works of authors such as Robert Nozick, Ludwig von Mises, Ayn Rand,[50] and Murray Rothbard. [51] A libertarian view of inalienable rights is expounded in Morris and Linda Tannehill`s The Market for Liberty, which argues that a man is entitled to ownership of his life, and therefore of his property, because he has invested time (i.e., .part of his life), making it an extension of his life. However, when he uses violence against and to the detriment of another human being, he alienates the right to the part of his life necessary to pay his debt: “Rights are not inalienable, but only the owner of a right can alienate himself from that right – no one else can take away the rights of a human being. [52] In its natural state, according to Hobbes, man`s life consisted exclusively of liberties and not at all of laws: “It follows that, in such a state, every man is entitled to everything; even to the body of the other. And therefore, as long as this natural right of every human being to all things endures, there can be no security for any man. to live the time that nature usually allows man to live. (Leviathan. 1, XIV) Vattel, like Blackstone, warned that only strict obedience to higher legal obligations can produce a virtuous, secure and prosperous state: “One would have to be very ignorant of political matters not to realize how much more capable a virtuous nation is of forming a happy, peaceful, prosperous and secure state, respected by its neighbors and formidable to its enemies. Earlier, when the U.S.

Senate launched a robust impeachment process, Vattel`s wisdom could have taken a pragmatic or utilitarian place. At the very least, it could have been an indisputable corrective to Donald J. Trump`s patently unfair and illegal behavior. Thomas Jefferson was undoubtedly a learned American president, educated and cultured at a time when serious study was more difficult than it is today. As Jefferson worked on his explanation — without tangible benefits from electric light, air conditioning, central heating, computers, or even a manual typewriter — he was productively inspired by Aristotle, Cicero, Grotius, Vattel, Pufendorf, Burlamaqui, and (especially) John Locke (Second Treatise of Government). The Declaration of Independence, as is well known, affirms the right to revolution when the government destroys “certain inalienable rights” and postulates a natural order easily recognizable in the world, whose immutable and irreducible laws are beyond human political will and which remain traceable forever by the conscious application of human reason. First, a very small state where the people can be easily gathered and where every citizen can easily know everything else; secondly, simplicity of manner to prevent companies from multiplying and raising difficult problems; secondly, a high degree of equality of rank and ownership, without which equality of rights and authority cannot last long; After all, little or no luxury – because luxury arises from wealth or makes it necessary. All that, in short, as a definition.

Let us now turn to the difficulty of explaining the law of nature to the average sensual person. Let me talk for a moment about natural law and moral imagination. By the way, an unpublished essay by the late Raymond English, who understood and praised natural law and understood and despised claims to “natural law,” helps me here. Like Finnis, Lon Fuller (1964) rejects the conceptual naturalistic idea that there are substantial moral constraints necessary on the content of law. But Fuller, unlike Finnis, believes that the law is necessarily subject to procedural morality. According to Fuller, human activity is necessarily goal-oriented or goal-oriented in the sense that people engage in a particular activity because it helps them achieve a goal. To the extent that human activity is essentially useful, according to Fuller, some human activities can only be understood in terms related to their goals and objectives. Since legislation is essentially a useful activity, it can only be understood in terms that explicitly recognize its essential values and objectives: Thomas Hobbes (1588-1679) and John Locke (1632-1704) in England and Jean Jacques Rousseau (1712-1778) in France (pictured above from left to right) were among the philosophers who developed a theory of natural rights based on the right to life. Freedom and property (later extended by Jefferson to “the pursuit of happiness”) that individuals would have in a pre-political “state of nature.” (Image, public domain) Hobbes opposed the attempt to derive rights from “natural law”, arguing that law (“lex”) and law (“jus”), although often confused, mean opposites, law referring to obligations while rights referring to the absence of obligations.