For the modern world, the original and formative paradigm is based in natural rights.

The US Declaration of Independence refers to the right of life, liberty, and the pursuit of happiness. These, the Declaration states, are the reason for which governments were instituted, and no government may infringe them.

This doctrine was originally developed in the 17th century by Hugo Grotius and, with some modifications, John Locke.

A non-confessional alternative to divine right

It is important to realize the background to the development of this school of thought. As far as Grotius is concerned, that backdrop was the wars of religion – firstly, the 80 Years’ War between Spain and the Netherlands, then the 30 Years’ War in Germany. Grotius was concerned to discover the basis for the authority of government, for sovereignty, apart from divine right. The wars of religion, he was convinced, had made this venerable basis untenable, for divine right required acknowledgment of a particular religion, and thus precluded adherents of various faiths from living together in peace.

Grotius felt he had discovered a more secure basis on the purely human plane of contract. Law, he stated, was the expression of strict justice, and thus the stuff of contract and property. And here, contract is even prior to property, for property itself, the division of the goods of the earth, was the result of human agreement. And governments were formed in like manner, by a primordial agreement through which sovereignty was formed by the delegation and in fact alienation of the right of the sword which each individual has from nature.

John Locke

Locke adapted Grotius’ basic approach but changed it in significant ways. Firstly, he made property to be dependent not upon an hypothetical agreement but simply upon a natural right derived from each individual’s own labor. That which an individual appropriated or created by his own labor was by the law of nature his own (see below). Thus, property cannot be undone by agreement. Furthermore, governments were formed by the delegation of the power of the sword, but this delegation did not entail alienation. Every man retained the right of resistance, retained the right to bear arms, and in fact the government’s power of the sword is simply derivative of this primordial right.

This line of reasoning would seem to provide the citizen with a solid rationale for insisting on limited government and on the necessity for government to bow to the will of the citizeny and ensure that the laws it passes and enforces correspond with that will. Furthermore, that these laws serve to protect these basic natural rights which in fact, at least in the Lockean approach as continued by the Declaration of Independence, stand even beyond the reach of the will of the people, are inalienable and sacrosanct, by virtue of being established by God, whose will is prior to the will of any man, individual or collective.

The source of law: human nature

There is a fly in the ointment, however, at least for those who do not believe in human autonomy but in the primacy of God’s will and law, not only for one’s private affairs but also for human life in society. And it is this: the philosophy of natural rights makes man – human nature – into the source of law. For it is not the content of purported natural rights that is the difference-maker. Rather, it is the very fact that this thing called natural rights is set up as the source of law – is what makes the difference.

To ground the legitimacy of law in pre-existing natural rights is to make law dependent upon the concept of human nature, for it is in human nature that these rights inhere, and from which these rights derive.

Originally, the keystone of the conception of natural rights — because it was developed by religious thinkers who were looking for a source of legitimacy with potency equal to the reigning notion of divine right — is the biblical doctrine of man created in the image of God. It is this image of God that places government under a range of obligations.

The key at this point is interpretation. What comprises the range of obligations the government is charged to uphold?

The door opened to judicial activism

Here is where the Pandora’s box is opened. What we get is conflicting opinion and chaos precisely where settled legal foundations are required. The result is judicial activism. If natural rights are the source of law, then all laws are subject to the philosophical opinion of the court.

It is precisely at this point that Stahl directed his major criticism of this school of thought. “The application of natural law in the courtroom is … impermissible legally, is contrary to justice. Every man has the right not to be subjected to any other norm than those which are established as the objective order of the common life, which are sanctioned by the ruling authorities, as the norms of positive law.”(1)Natural-rights doctrine gives the judge a blank check regarding his interpretation of the law, allowing him to strike down any law he believes contradicts natural rights. “The rule of natural law is therefore in truth only the establishment of the arbitrariness of every opinion regarding the common public order, it is the establishment of the war of all against all.” (2)

The doctrine of subjective right

The attempt to integrate the concept of human nature into the philosophy of law is praiseworthy, but it must be done properly. The history of the development of the philosophy of natural rights demonstrates this. Jurists and theologians early on realized the importance of anthropology to legal philosophy, and developed the idea of subjective right, which explores the role of the human subject in the formation of law. Stahl’s summary formulation of the concept is worth quoting precisely for its conciseness: (3)

Accordingly, law in the subjective sense is the ethical power which a man has over against others in the sphere allotted to him by the legal order, by virtue of that order. Its essence is not merely the negative of allowance or the intransitive of freedom, but the positive and transitive of ethical power against others.

Law in the subjective sense, e.g., the right of men due him in all his life positions, constructs, in that it is his own power inhering in him, a true center about which the entire external world (things, actions of others, etc.) is related as controlled object, and in accordance with which the content of legal norms is often determined. It is therefore a secondary principle of the legal order alongside the primary and absolute principle: the purpose (τέλος) of life relations. As secondary principle, however, it is always based upon this latter. Its own content and range is originally and essentially derived from, and the coherence of all the rights of all men lies in, this objective higher principle.

There is therefore a law-conditioning principle inherent in human nature; it is rooted in man’s being created in the image of God, stemming from his capacity to reason and choose, his capacity for ethical activity. It calls for a sphere of activity to be established on his behalf within the legal order and protected by that legal order. The specific content of that sphere is more closely determined by the legal order in accordance with the institutions of law (marriage, family, property, etc.).

Therefore, that a “sphere of influence” is called for regarding each individual human being is what is put forward in the doctrine of subjective right; but the specific content of that sphere is the province of positive law, to be determined in terms of the various factors of the human condition.

Human nature a fallible source of law

Now then, the Christian confesses a peculiar understanding of the human condition, one which is anthropological although cosmological as well: the human condition as fallen, corrupted, sinful. This factor is of decisive importance to the development of a legal order.

Roman jurists, following in the footsteps of Stoic philosophers, postulated an original “golden age” in which all men were equal, all men were free, in which there was no war, no subjection, and no private property, no meum et tuum, “mine and thine.” This was the age of the natural law. But there then came the age of the jus gentium (“law of nations”), which brought all of these things into being. This is how Justinian’s Institutes (Book I, Title II, §. 2) states the matter:

The Law of Nations… is common to the entire human race, for all nations have established for themselves certain regulations exacted by custom and human necessity. For wars have arisen, and captivity and slavery, which are contrary to natural law, have followed as a result, as, according to natural law, all men were originally born free; and from this law nearly all contracts, such as purchase, sale, hire, partnership, deposit, loan, and innumerable others have been derived.

The Romans therefore understood that a break had occurred at some point in primordial history, a break in which an age of innocence was followed by the age of division, subjection, property, slavery – the various institutions of civilization as then understood. And it would seem from the above quotation that they attributed that break precisely to these institutions, anticipating Rousseau’s argument.

Authority and liberty

The Christians knew better. The corruption in the world was cause by man’s fall into sin, by primordial disobedience to God. The consequences were clear, at least to Augustine, the patron saint of Western civilization, and Western theology in his train. The fall into sin was what had given rise to the subjection of man to man, both as punishment for sin and as a restraint on sin’s effects. Therefore the prior concept was not liberty, but authority: the recognition thereof, and the proper exercise thereof. Hence medieval society knew little of abstract liberty, but rather of liberties: gradual, and graduated, release from the baseline condition of subjection, resulting in the typical hierarchical order progressing from serf to king.

The right of the fully free was, in the middle ages, at bottom essentially the same as the right of the partly free, whereas in antiquity freeman and slave stood in sharpest contrast to each other, the one a person, the other a thing. In the middle ages both were persons, and the rights of both had a similar legal structure. Each possessed a concrete bundle of rights, with corresponding duties. Differences were largely quantitative. The unfree lived under the most widely varying laws, but even the lowest had some rights and were not at their lord’s arbitrary disposal. Though bound to the soil, the villein had a claim to his land and could not be separated from it; frequently he had the right only to be judged by his fellow-villeins; and he could only be called upon to do a fixed amount of labour in the fields. Similarly, those who were unfree but not bound to the soil were only liable for limited dues in money and labour. It is characteristic of medieval freedom that it is frequently mentioned in relation to men who were in law either unfree or only partly free; it is common to find the rights of ministerialescensuales, or cerocensuales described as libertates. (4)

The growth of liberty

It seems a paradox, but actually it was in such soil that the constitution of liberty sprouted. Feudalism expressed the Augustinian grounding in authority that incipient Western nations needed to generate progress in terms of liberty. Only in this manner could man’s basic corruption and sinfulness be kept in check, allowing the development of subjective right, the ever-expanding “sphere of influence” which each individual possesses as a potentiality to be actualized.

The actualization of this potentiality into the concrete shape of legal personality, legal capacity, citizenship, was the work of sovereignty. Kingship, in which sovereignty found expression, is what enabled feudal society to move forward into a proper property-based, common-law social order. This is obvious in a country like England, where the king’s authority for the most part was above dispute, and where his writ ran right across the isle. Matters were different in the Holy Roman Empire, where the emperor was relatively powerless to impose his writ at all. But this confirms rather than obviates the thesis proposed here. With the burgeoning associationalism of Italy and the other member regions of the Holy Roman Empire, the towns, the centers of that associationalism, came to the emperor for legitimization, and it was his approval, his grant of rights, immunities, privileges, and charters, which created the public-legal framework of authority which could support a complexifying, differentiating social order.

The Role of Roman Law

Roman law facilitated this transformation. It filled in the gaps inevitably left where a property-based society with its emphasis on individualism emerges in the midst of a feudal society with its collectivism. Essentially, the collectives were shrinking while the individuals were expanding. This led to the formation of new forms of association to embed the otherwise free-floating individuals. The manors themselves were being transformed from a system of servile to one of freehold, or at least copyhold, tenure, their monolithic introversion being broken up and replaced through an openness to an integrating, interdependency-shaping world. Roman law helped shape the institutions of private law regarding external relations between these associations; indigenous law maintained and developed the shape of the associations internally (see below).

The legal order itself, developing through the interplay of courts, sovereigns, and jurists with their burgeoning commentaries, became something unique in the unity it displayed in the midst of diversity. This Ius Commune, “common law,” was formed out of the various materials of the Western legal tradition, dominated by the utriumque ius (“one-and-other,” i.e., Roman and canon law), the degree students of law obtained at the culmination of their studies, but also including indigenous customary law, feudal law, manorial law, municipal law, territorial law, admiralty law, and the Law Merchant.

This law has been greatly misunderstood. Its role has been seen chiefly as a secondary (subsidiary) form of positive law, and therefore its importance has been de-emphasized, in tandem with the tendency to de-emphasize the importance of the Holy Roman Empire simply because the lack of direct political power on the part of the Emperor, along with the obvious datum that most of the countries in Europe were independent.

But this is to misconstrue its role, which was never to provide a direct, positive legal order, but to provide an atmosphere, a way of thinking, a form of general equity – akin to Stahl’s doctrine of law – to be used to assist in the formation of positive law. (5)

This common law entered the life of the nations comprising Western civilization, pressing forward to inspire positive legal orders incorporating the universal integrating principles of law, wherein private law strings the beads of an expanding associationalism, allowing for the growth of diversified society of communities, for unity in diversity. The twin poles of this growth were custom and prescription, custom regarding law and prescription regarding rights. The objective order of law developed primarily through custom, thus spontaneously via the courts; the subjective order of rights developed through the mechanism of prescription, whereby the liberties accrued through the passage of time are passed on from generation to generation, in similar fashion to property itself, for having once been attained, such liberties could not be removed again without cause, even if the original “title deed” were no longer available – for that is the significance of prescription, to provide security of property in the absence of title, thus rather as a result of continuous possession.

Even England underwent its influence, albeit in a manner different than the full-blown “Reception” experienced on the continent.

Liberty as inheritance

This body of rights and liberties developed historically, and came to be viewed as an inheritance. This can be seen clearly in England, in particular in the 17th century struggles between constitutionalism and absolutism. Christopher Brooke, a leading member of the House of Commons in the early 17th century, put it this way: “We hold our privileges by prescription and prescription is inheritance.” (6) William Penn (1644-1718) placed great stock in this ancient constitution. The rights of Englishmen were a great good: “Above all Kingdoms under Heaven, it is England’s Felicity to have her Constitution so impartially Just and Free, as there cannot well be any Thing more remote from Arbitrariness, and Zealous of preserving the Laws, by which it’s Rights are maintained.” (7) Basic to this constitution are fundamental laws, of which the first part is the general principles of the common law of nations, (8) the second the rights of Englishmen:

But those Rights and Priviledges, which I call English, and which are the proper Birth-Right of Englishmen, and may be reduced to these Three.

I. An Ownership, and Undisturbed Possession: That what they have, is Rightly theirs, and no Body’s else.

II. A Voting of every Law that is made, whereby that Ownership or Propriety may be maintained.

III. An Influence upon, and a Real Share in that Judicatory Power that must apply every such Law, which is the Ancient Necessary and Laudable Use of Juries: If not found among the Britains, to be sure Practised by the Saxons,and continued through the Normans to this very Day.

That these have been the Ancient and Undoubted Rights of Englishmen, as Three great Roots, under whose Spacious Branches the English People have been wont to shelter themselves against the Storms of Arbitrary Government, I shall endeavour to prove. (9)

The historical accuracy of Penn’s treatment is a matter for debate, but that is a secondary matter compared to the fact that such an ancient constitution had in fact developed historically, and was in fact what he claimed it was. English rights and liberties were precisely those which established the citizen in his liberty and property, which enabled him to function in the common-law social order, the order of private law. The constitution, the public legal order, existed to maintain and support this private legal order.

Americans inherited the constitution of liberty

This ancient constitution was brought over by the Englishmen who founded the New World colonies of Virginia, Massachusetts Bay, and those which followed. Americans were Englishmen, endowed with the rights thereto accruing, and the English common law was the law of the land on both sides of the Atlantic. This understanding was reflected in the first of the American revolutionary documents, the Resolutions of the Stamp Act Congress of 1765, which declared “That his majesty’s subjects in these colonies, owe the same allegiance to the crown of Great Britain, that is owing from his subjects born within the realm, and all due subordination to that august body, the parliament of Great Britain,” and, concurrently, “That his majesty’s liege subjects in these colonies are entitled to all the inherent rights and privileges of his natural born subjects within the kingdom of Great Britain.”

From inherited to natural right

Only 11 years later, however, the matter was entirely different. For in the Declaration of Independence, “the actions of that monarch were declared to be in violation of the inalienable rights of man; they had as their object the establishment of an absolute tyranny over the states. No mention was made… of the rights of Englishmen.” (10) The leaven of natural rights had permeated the American colonies, just as it had permeated all of western civilization. Historical rights had given way to natural rights. On the continent, legal philosophy was being conducted entirely in this key.

England, too, had undergone that influence, but its common law had not been subjected to the codification efforts the legal systems of the continent had been. The inherent conflict between historic and natural-rights doctrines had slumbered there beneath the surface. It took the outbreak of the French Revolution and Edmund Burke’s celebrated response (published as Reflections on the Revolution in France) to burst the bubble of harmony. From this point on, the conflict between historic and natural rights was out in the open for all to see.

The conflict was simply this: the common-law tradition first establishes law, from which are derived rights; the natural-rights tradition first establishes rights, from which is derived law.

The American ambiguity

In the Declaration of Independence, natural rights likewise provided the legitimation of the novus ordo seclorum known as the United States of America, but in an entirely different manner than with the French Revolution. The American revolutionaries were not interested in overthrowing the received order; they were interested, rather, in maintaining their received institutions, customs, and laws in the face of an overweening British monarchy and parliament. But undeniably there was more to the American revolutionary movement than Burkean prescriptive rights. The natural-rights-based theory originating in Grotius had here borne significant fruit: “Many of the Revolutionary patriots believed with Thomas Dickinson that liberties do not result from charters; charters rather are in the nature of declarations of pre-existing rights.” (11) Yet, although both the American and the French Revolution partook of the elixir of inalienable natural rights, the underlying constitutions which they established are of a fundamentally different sort. Post-revolutionary France had put paid to its feudal past; America, on the other hand, had carried out “a conservative counter-revolution.” (12)

And so matters stand to this day. The American Revolution and its ideological progeny established a common-law regime upon the basis of natural rights. That inherently unstable mix has led to the interminable conflicts between judiciary and legislature, indeed judiciary and the Constitution itself. For its part, the French Revolution led to the essential overthrow of historic institutions and the impoverishment of law through the establishment of Jacobin institutions of representation and bureaucracy and incessant efforts at the codification of law. It has led to the situation today in which two traditions stand against each other, each claiming to represent Western civilization, indeed world order: the common-law tradition, headed by the United States, and the civil-law tradition, headed by the European Union.

Notes

  1. Stahl, Principles of Law, p. 37.
  2. Stahl, Principles of Law, p. 38.
  3. Stahl, Principles of Law, pp. 99-101.
  4. Tellenbach, Church, State, and Christian Society, p. 19.
  5. This is the point Manlio Bellomo makes in his important book The Common Legal Past of Europe, 1000-1800.
  6. Corinne C. Weston, “England: Ancient Constitution and Common Law,” in The Cambridge History of Political Thought: 1450-1700, p. 377.
  7. “England’s Present Interest Considered,” in The Political Writings of William Penn, p. 26.
  8. “the Corner-Stones of Humane Structure, the Basis of Reasonable Societies, without which all would run into Heaps and Confusion; to wit, Honestè [sic – rca] vivere, Alterum non laedere, jus suum cuique tribuere, that is, To live honestly, not to hurt another, and to give every one their Right, (Excellent Principles, and common to all Nations).” “England’s Present Interest Considered,” in The Political Writings of William Penn, p. 26.
  9. “England’s Present Interest Considered,” in The Political Writings of William Penn, pp. 26-27.
  10. Perry, Sources of Our Liberties, p. 318
  11. Haines, The Revival of Natural Law Concepts, ch. II, sec. 2.
  12. Rushdoony, This Independent Republic, p. 21.