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The only solid foundation for human rights is natural law | August 8, 2017 | MercatorNet |

The only solid foundation for human rights is natural law

August 8, 2017  | MercatorNet |

The only solid foundation for human rights is natural law

It's as ancient as the Greeks, but has lost none of its power to defend human dignity
John Lawrence Hill | Aug 8 2017 | comment 1 

Law professor John Lawrence Hill recently published an extremely interesting overview of the natural law tradition, from the Ancient Greeks to the leading figures of modern philosophy. In After the Natural Law: How the Classical Worldview Supports Our Modern Moral and Political Views he contends that our treasured ideals of human rights, equality, freedom and human dignity are ultimately based on the controversial notion of natural law. In this interview, he explains some key themes in his book.
* * * * * * * *
MercatorNet: Our society pays at least lip service to the triad of freedom, responsibility and human dignity as the ideals of the age. Are these under threat as we abandon Christian morality?  
John Lawrence Hill: They are, and the irony is that most secular liberals don’t realize this. They don’t recognize that their most cherished values depend on a deeper moral and philosophical foundation which they now increasingly reject.  
We are going to get into the details a bit below, but let me say here that the debate we are having – the debate about whether there is a God or not, and the consequences of the two alternative possibilities – is an ancient controversy. It goes back to the very beginnings of Western philosophy.
Even before the Christian era there were great philosophical minds such as Plato and Aristotle who saw clearly that the world must be the product of a Mind which is distinct from the world. On the other side were materialists like Epicurus and Lucretius and sophists like Protagoras who disparaged religion and taught that morality is simply a set of rules that we human beings make up. From Plato and Aristotle comes the tradition of moral realism. From the other thinkers – the sophists, in particular -- moral relativism.
The greatest and noblest values of Western civilization depend on the worldview that Plato and Aristotle and the Stoics began to develop, and which the Christian tradition completes. Our ideas of freedom, responsibility and dignity began to be developed by these thinkers and now that this worldview is again under assault, the values which rest upon it are in jeopardy.
So, what I want to say at the outset is that there is nothing new about materialism and atheism. They are not the results of a more “scientific” worldview. Rather, modern civilization is coming full circle – back to beliefs that were corrected by Plato, Aristotle and the natural law tradition.
Freedom is usually interpreted as being able to do anything we want, provided we don’t hurt others – leading to a right to drugs, euthanasia, abortion and so on. What’s the problem with that?
Freedom requires two ideas central to Christian thought and the natural law tradition. Both have been under attack by secular thinkers since the Enlightenment. The first is the idea of freedom of the will, that we really do make choices and are responsible for them. The second is the idea that liberty is bounded by moral norms, that there is a difference between “liberty” and “license.”
Let’s think about it this way. Have you noticed that we use the term “freedom” to refer both to our inner freedom of choice – what used to be called “freedom of the will” – and out external political liberties (as in political and social freedoms, freedom of speech, freedom of religion, economic freedom, etc.)? Freedom is a Janus-faced idea. It looks inward to our capacity to choose and outward to the kinds of social and political activities that we all believe should be protected.  
Now, since the Enlightenment, it has been fashionable for secular thinkers to deny the first (inner) aspect of freedom and blow the limits off of the second (external) aspect of freedom. This has completely corrupted our ideas of freedom.
Let’s start with inner freedom: many philosophers and educated people today are “determinists” – they tend to believe, as the ancient materialists believed, that there is no inner freedom of the will, that all of our choices are causally determined by our biology or our environment or other causes. Determinism means that we don’t really make choices. Our biology and environment make them for us.
Secular thinkers do not realize it, but determinism ultimately undermines our claims to have external political freedoms. Why protect freedom of choice to choose an occupation, or one’s faith, or one’s mode of political expression, if all of our choices are simply caused by external factors? Our external political liberties depend on our inner liberty of choice. There can be no real motive for political freedom if there is no inner freedom on which the external freedoms depend. So we need to hold onto the idea of freedom of the will. But freedom of the will is one of the central ideas of a spiritual worldview and modern secular thinkers are increasingly materialists.
At the same time, many secular liberals believe that freedom means that there are no moral limits on our actions or that the only real limit is when our acts cause direct harm to others. Several liberals recently have even argued that liberty includes “a right to do wrong.” But blowing up the external limit on freedom does as much damage to the idea of freedom as eliminating the inner source of freedom. It confuses liberty and license.
A balanced idea of freedom requires both a robust idea of (inner) freedom of the will and the (external) notion of a moral limit on our choices. Natural rights thinkers such as John Locke (who, incidentally, is the real father of the classical liberal tradition) held to both of these precepts but modern liberals have forgotten them.
If we accept that all reality is material and that all of our actions are determined, how can we be responsible?
The simple answer is that we cannot be. If Charlie Manson or Ted Bundy (or Adolf Hitler, for that matter) was causally determined to do what he did in life, then he made no choice. And if he made no choice, he would not be “responsible” any more than an automobile would be responsible for being driven at 100 mph. Responsibility requires real freedom of choice.
(If determinism were true, we would probably still imprison these people to keep everyone else safe, but we certainly would not blame them for being who they are. In fact, as some theorists have recently suggested, we should offer criminal offenders “funishment,” instead of punishment, to provide them some enjoyment even as they spend their lives behind bars since, after all, they are really not responsible for their acts.)
Another way around this problem, which has been taken by several important modern philosophers, is to redefine what it means to be “free” and “responsible.” (So much of modern philosophy is about redefining traditional ideas to be able to shoehorn them into a materialistic outlook.)
The most famous version of this is known as “soft determinism” or “compatibilism” (a position taken by materialists like Hobbes, Bentham and Mill.) According to this view, you are “free” is you act in accordance with a desire (even if the desire itself is completely determined) and you are “responsible” if it makes good utilitarian sense to punish you for your act. So Manson was “free” if he wanted to do what he did – even if he was determined by his environment or biology to perform these acts. And we “hold him responsible” to deter others from doing the same act.
For the traditionalist, Christian or otherwise, responsibility is a “descriptive” idea: you simply are responsible if you had a choice in performing whatever action you performed. But for these more secular, utilitarian thinkers, responsibility becomes a “prescriptive” idea: it is something that society puts on the offender if it makes sense (from a utilitarian point of view) to punish him.
There is a deep conundrum in this way of looking at things and it would take quite a bit of discussion to unfold. But the bottom line is that responsibility depends on freedom of the will. No freedom, no responsibility. No responsibility, and you have to rethink the very reason for punishment – which is exactly what secular thinkers are doing today.
Why doesn’t the idea of human dignity get much traction amongst progressive thinkers?
Because it is an inconvenient truth for them. True dignity does not depend on a person’s functional attributes – how intelligent he is, or how socially productive – or whether he happens to be a fetus or a person in a persistent vegetative state. Dignity is something that all human beings share equally in virtue of our being in the image of God. The ethic of dignity clashes with the secular ethic of death – the ethic of abortion and euthanasia, in particular.
Secular thinkers want to shift the argument from dignity to functional capacities. It is about whether you are fully rational, or conscious. This permits them to defend abortion and euthanasia: only adult, fully-conscious human beings have a dignity interest in living out their lives.
One problem with this, however, is that there have been as many different definition of what counts as the relevant functional attribute as there have been thinkers defending this view. More worrisome is the problem that this slides into a nasty functionalism: that we begin using some set of criteria that cuts against not only the unborn, or the unconscious, but those who are socially undesirable, disabled, or those who are a “drain” on society. The slippery slope beckons.
Again, the father of this whole tradition in modern thought is Thomas Hobbes, the first important modern materialist. And for all of the difficulties with Hobbes’s view, at least he was courageous and honest enough to draw the consequences: In the Leviathan, his best-known work, he says that dignity is nothing but the social worth we put on an individual. Hobbes saw his way clear to the end of the slippery slope from the beginning – and fully embraced it.
You cite the English novelist and philosopher Iris Murdoch – “It is easy to say there is no God. It is not easy to believe it and to draw the consequences.” What are these difficulties?
Exactly the difficulties we have been discussing. I was an atheist myself until about ten years ago, writing about freedom and rights and responsibility. And then one day I realized that I couldn’t have my cake and eat it, too. There had to be something deeper to ground these ideas. Murdoch’s quote was one of those little turning points in my thought, leading me back toward theism and, ultimately, Christianity.
The problem with atheism and agnosticism in most of its forms (as Murodch saw) is that we seldom ask: What does the atheist believe, exactly?
When you start asking this question, you get led down the path to some fairly frightening possibilities. This is because a coherent atheism means not only that there is no God, soul and afterlife, but that our moral principles are all manmade (and therefore revisable – even ignorable). It means that we cannot make real sense of freedom, responsibility and human dignity. Even the idea of human rights becomes a non-starter. A “human right” is a right that we have whether or not society or the state wants to recognize it. But where would such a right come from if there are no non-societal or transcendental standards of morality?
Drawing the consequences of atheism is much harder to do than many atheists recognize, as Murdoch pointed out. This permits them to avoid the real problems with it – the moral and political problems.
Most of the time, atheism is just a subterfuge for a strange welter of incoherent beliefs. Don’t we all know “atheists” or “agnostics” who believe in reincarnation, or that the Universe is unfolding toward some magically perfect state? These beliefs themselves are taken from some spiritual view of the universe, often from Eastern thought, and incorporated into a kind of incoherent pastiche of spiritualized agnosticism. But how can there be reincarnation without a soul, or a moral law of Karma without Someone making the rules for Good and Bad? It just isn’t coherent.
How did you come to write “After the Natural Law”? You are a lawyer, not a philosopher, and my impression is that natural law is in a bad odour in both fields!
Well, I have a PhD in philosophy and I have always thought that law requires a deeper foundation – whatever that foundation might be. Lawyers sometimes forget this, however.
Yes, natural law is in bad odour in both law and philosophy. Even the great Oliver Wendell Holmes Jr made fun of it. Yet natural law is always the idea that we – even secular thinkers – return to in moments of crisis. After World War II, we tried the Nazi war criminals at Nuremberg but they raised a perfectly good legal defence: What law are you going to try us under, they questioned? OUR law – German law – permitted our actions, as horrible as they may seem to you. And YOUR law did not apply to us. So what law is it under which you are trying us?  
The Allies could only respond with something that looked exactly like the natural law. Justice Jackson, the Supreme Court justice who was the lead prosecutor at Nuremberg, gave a closing argument that sounded an awful lot like an invocation of the natural law. What the Nazis did was wrong. They knew it. Everyone knew it. And they are responsible for their acts under a law that transcends German or American law. This is the natural law. But if you accept this, you are halfway or more toward a belief in God.
Any suggestions – after your own book, of course – for educating oneself in the natural law tradition?
There has been a resurgence in natural law thinking in the last forty or fifty years and some very good books have been written about it. But here are three great books to get an interest reader started:
J. Budziszewski’s What We Can’t Not Know is a very good book on the subject, and one that does not presuppose a background in philosophy. It is written from an explicitly Christian standpoint but draws from the wider philosophical tradition and, in my view, is one of the best books ever written on the subject for a general audience.
Alasdair MacIntyre’s After Virtue is a classic and one of the books that explores the road to natural law thinking from a broadly philosophical standpoint. But it is not a narrow, academic work. It is an enjoyable read.
Finally, Heinrich Rommen’s The Natural Law: A Study in Legal and Social History and Philosophyis the best for understanding the unfolding of the natural law tradition, historically and philosophically.
John Lawrence Hill is a law professor at Indiana University, Robert H. McKinney School of Law in Indianapolis, where he teaches constitutional law, torts, civil procedure and legal philosophy courses.


August 8, 2017

What are the big, attractive, progressive ideas of 2017? I suppose that they would be freedom, equality, progress and human rights. But as John Lawrence Hill points out in today's lead interview, these notions can be traced back to the wisdom of the Ancient Greeks. In a sense, we are just reprising their debates about the natural law, an order which is built into the very nature of things. As he points out, without some sort of universal code, human rights eventually crumble:
After World War II, we tried the Nazi war criminals at Nuremberg but they raised a perfectly good legal defence: What law are you going to try us under, they questioned? OUR law – German law – permitted our actions, as horrible as they may seem to you. And YOUR law did not apply to us. So what law is it under which you are trying us?  The Allies could only respond with something that looked exactly like the natural law. 
Equality is another gift from the Christian view of the natural law; every person is equal in the sight of his Creator, and therefore before the law. What Professor Hill contends is that causes like "marriage equality" only make sense in a culture built on the natural law tradition, even if its supporters want to wreck it. A very thought-provoking argument. 
On another note, New Media Foundation is looking for a General Manager and a Marketing Director for MercatorNet and BioEdge, its other website. More details here:

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The only solid foundation for human rights is natural law

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