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On Natural Rights, Speaking Prose All Our Livesi

By Hadley Arkes 424

On Natural Rights: Speaking Prose All Our Lives

By Hadley Arkes Bertrand Russell once had a joke about Mrs. Christine Franklyn-Ladd, who was a solipsist: she professed not to know that there was anyone in the world apart from herself. But she was so disappointed that she couldn't find others to come to meetings. And Immanuel Kant once re- marked upon those philosophers who marshalled reasons in the most strenuous and demanding way to prove that we are incapable of reason. Now, in a similar style, we have seen people in Washington recently, who have spen t their lives appealing to the logic and language of natural rights, but who find themselves denouncing Clarence Thomas for taking natural rights seriously. We find these people, members of the political class, on the left as well as the right, who seem to be affecting the style of Claude Rains in the movie "Casablanca": they affect to be "shocked- shocked!' that anyone should truly find the anchor of his understanding in the natural rights teach- ings of Abraham Lincoln and the American founders; that anyo n e should take seriously the moral premises on which the American regime and the Constitution were founded. Lincoln-Douglas Debates. For most people trained in the modem law school, there is some- thing novel, or even exotic, about the notion of natural ri g hts. If we bring back the classic debate between Abraham Lincoln and Stephen Douglas, most lawyers would align themselves with Douglas, whether they are conservatives or liberals. Most of the teaching in the law schools has been in the spirit of Douglas. M ost lawyers don't recall what was in dispute between Lincoln and Douglas; they have heard something about natural rights, but they have the impression that the case for natural rights was refuted long ago, for reasons that have slipped from memory. We oug h t to recall, then, the way in which the question of natural rights was posed again during the "crisis of our house divided," in the debate between Lincoln and Douglas. Ile issue was cast in this way: When the Founders declared in the Declaration of Indepe n - dence that "all men are created equal," did they in fact mean aU men, blacks as well as whites? Or did they really mean-as Douglas contended-all white men, or all people of British stock? In that case-as Harry Jaffa offered the translation-when the Foun d ers were proclaiming the right of all men everywhere to be governed by their own consent, they were really proclaiming the right of all men, everywhere, to be Britishl As Jaffa pointed out, that notion would have made a fine aria in a Gilbert & Sullivan o p eretta, but it hardly made sense of what the Founders were saying. Lincoln argued, on the other side, that when the founders said "all men," they meant, as an ab- stract, universal proposition, all men. It was not that all men were equally intelligent, eq u ally virtuous, equally deserving of rewards and punishment. But they deserved to be measured and judged by the same, equal standard-, and whether they were slow of wit, or swift, they deserved to be governed only with their own consent. As Lincoln and the Founders understood, that claim arose from nature, from the things that enduringly separated human beings from animals; and hence the universal sweep of those rights: those rights would be the same in all places, where human nature remained the same, and human beings were still distinguishable from animals. That sense of "human nature' identified what was human by marking off the differences that sep- arated human things finorn the things that were either superhuman or subhuman. And so the

Dr. Hadley Arkes is-Edward Ney Professor of Jurisprudence and American Institutions at Amherst College and an Adjunct Scholar at 7be Heritage Foundation. He delivered this address at 1U Heritage Foundation on December 11, 199 1.

ISSN 0272-1155. 0 IM by Mw Heritage Foundation.

reasoning ran in this way: that no man was by nature the ruler of other men in the way that God was, by nature, the ruler of men, and men were, by nature, the ruler of dogs, horses, or monkeys. Animal Rights. Even in this age of animal rights, no one has thought it especially apt to ob- tain the consent of dogs and horses before we rule them, or to secure the informed consent of our pets before we authorize surgery for them. But on the other hand we persist in the judgment that beings who can giv e and understand reasons deserve to be ruled with the rendering of reasons, in a regime of five elections. Whether we are in Europe, then, or Africa, or Asia, the case in princi- ple for a government of consent remains the same: beings who can give and und e rstand reasons do not deserve to be ruled in the way that we are warranted in ruling horses and monkeys. Hence the irony we find now in the universities: -the people on the Left, flirting with deconstruction, Derrida, and Heidegger, insist that there are n o moral truths that hold across cul- tures, and that there is no "nature." The differences between humans and other species, or even the Oferences between men and women are not fixed in nature, but "socially constructed," a matter of convention and imagin a tion. And yet, these people support the interests in "human lib- eration," and rights of feminism in all places. Apparently, there are human rights-rights that arise for human beings in all places-but there are no "humans," and no truths that would make t h ese rights truly rightful. Independent Standards vs. Majority Rule. But in the debate with Lincoln, Stephen Douglas denied that them were any rights that arose in this way from nature. Douglas came closer to the cultural relativists, on the left and right , of our own day, in holding that all rights are "relative" to the s of right and wrong that are held in any place, or in the local culture. These rights do not derive from nature; they exist only because they are "posited," set down, in formal statutes by particular men in particular places. They were rights, as we say, of "positive law." But then the question of course arose: What if the local culture were divided in.its opinions about right and wrong, as this country was divided in the middle of the nine t eenth century on the ques- tion of slavery? Which grand of opinion was more authoritative'. more genuinely reflective, of the local culture? And the answer was clear: the strand of opinion that was dominant. That is, with the premises of positivism or cul t ural relativism, what we mean by right and wrong is "that which is approved (or disapproved) by the majority-" But as Lincoln understood, that doctrine would cut the ground out from under the very notion of constitutional rights: For if the will of the ma j ority is the decisive test of right and wrong, there could be no independent standard to which we could appeal in challenging the judgments reached by a majority, and vindicating the rights of a minority. And so what we must understand here is that we are appealing to the logic of natural rights whenever we invoke some independent standard of right and wrong, apart from the will of the majority, and apart from anything that has been posited or set down in a statute or in the text of the Constitution. This i s .sely the understanding to which people like Joseph Biden and Laurence Tribe were appealing four years ago, when they sought to draw a dramatic contrast between them- selves and Robert Bork by pointing up Bork's attachment to legal positivism. When Bide n opened the hearings over Bork, he staked out for himself a natural rights position: He insisted that he had rights that were "not dadved from the Constitution... [or] from any government... [or] from any majority. My rights are [he saidj because I exist. " That is, certain rights flowed to him, as Biden said, simply on account of his standing as a human being, from the moment he ex- ists. That sentiment seemed sufficiently sweeping that it would encompass the unborn child, as soon as she comes to "exist." B ut we assumed that Biden would not allow his newly discovered natural rights position to undercut his support for abortion. We may have rights as soon as we exist, but presumably other people will be left to decide whether we exist, and have rights that o thers are obliged to respect.

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Chairman Biden's adviser, Professor Tribe, appealed to the logic of unwritten rights in oppos- ing Judge Bork, but he has always been uneasy over the claim of "natural rights" to speak of moral truths. Ile Founders held that "all men are created equal" was a self-evident, or necessary truth. Tribe would support the same principle, but he doesn't wish to claim it is true. But what sense would it make to claim rights that am false, or which am not truly "righrmn any event, Tribe has professed to reject natural rights because certain judges in the past have made extrava- gant mistakes in reasoning from natural rights. Judges have made even more extravagant mistakes, of course, in rejecting natur-al rights, and defending slav e ry. But from the fact that mis- takes have been made in construing natural rights, would Tribe and his friends wish to conclude that there are no such things as "human rights'@--rights drawn from the very nature of human be- ings? Attacks on Natural Law. T he critics of natural law, on the right and the left, have spent their energies in attacking an understanding of natural law that no proponent of natural law would take seriously. They have often assumed that natural law arrives at an understanding of hum a n nature by drawing generalizations from the record of human behavior. In this vein, Richard Pos- ner has treated Social Darwinism as one theory of natural law: that theory would offer "the survival of the fittese' as a "law" or a doctrine about the behav i or that is natural to men. But the Proponents of natural law recognized long ago that we could not draw out natural law in this way, as a generalization fiun experience. If we did, we would find that genocide, infanticide, slavery, have been enduring, int r actable parts of the human record. Would we conclude then that infanticide and slavery are natural to human beings? And yet, natural law has ever rejected the notion of slavery and the destruction of the innocent; and so it should be plain that natural la w has never depended merely on generalizations about the behavior of humans. All notions of natural law have depended on an understanding of what was higher or lower in human nature; about the attributes that were distinctively human, as opposed to the att r ibutes that we shared with other animals. Lincoln could refer to "the better angels in our nature"; and Aris- totle and Kant could recognize, as quite distinct to human beings, the capacity to reason about the things that are right or wrong, justified or u njustified. The giving and demanding of justifica- tions is as much a part of our natures as the understanding of space and time; it is as much a part of our natural world as trees and rocks. Even people who reject the existence of morality and moral reas o ning, end up insisting to us passionately that it would be "wrong" and "unjustified7 for others to impose moral judgments on them. That is, they find themselves appealing to the logic and language of morality for the sake of sta&g their resistance to mora l ity. And if we are asked, Can we conduct politics and law, can we argue over matters of right and wrong, without the language and logic of moral reasoning, we might as well ask: Can we order coffee without using syntax? This language, this logic, simply c a nnot be purged from our experience. Even the most con- firmed positivists cannot purge from their language the logic of moral reasoning, and they don't seem to be aware that they are simply taking for granted one of the most important meanings of natural l aw: namely, the discourse on right and wrong that is accessible, commonly, to all human beings as human beings, regardless of their religion or their citizenship. Justifying Slavery. In this understanding, we see natural rights at work whenever we find pe o - ple engaged in principled reasoning about the things that are right and wrong; and there is no more dramatic example of principled reasoning than that fragment written by Lincoln, in which he imagined himself engaged in an argument with an owner of slav e s. He puts the question of how the man could be justified in making slaves of other human beings: Is it intelligence, he asks? Then beware: "By this rule, you are to be slave to the first man you meet, with an intellect superior to your own." Is it color- that people of lighter skin have a right to enslave people of

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darker skin. Then take care again: "by this rule, you are to be slave to the first man you meet, with a fairer skin than your own." As the argument is drawn forth, as a compelling form of principled reasoning, the pitch is this: There is nothing one could cite, in justifying the enslavement of black people, that would not Jus- tify die enslavement of whites as well. Now it is critical for my point here to notice that nowhere in this chain o f reasoning does Lincoln appeal to faith or revelation. There is no religious claim here. This argument can be understood-it can be 'measured, grasped, judged for its validity-by any person of reason, regardless of his religious persuasion. I have suggest e d in print that the same style of masoning may be applied to the question of abortion: Why is a fetus, or an unborn child, thought to be less than a human being, with a claim to the protections of the law? Because she doesn't speak yet? Neither do deaf mu t es. Because she lacks arms or legs? Many people were born with missing limbs, or they may come to lose an arm or a leg, and yet we don't say that they have suffered a change in species, that they have become something less than human beings. It is one of t he common cliches now of our politics to insist that abortion is a religious question, and therefore it may not be addressed in our politics. But we can simply proceed in this style of reasoning, die style of a principled argument, in testing the argument s brought forward on abortion, and we can do that in the style of Lincoln, without the need to appeal to revelation or to any claims of religious faith. Moral Reasoning. But if we say that it is possible to engage in that kind of conversation, we are sayin g that it is possible to have a discourse, among fellow citizens, about the things that are right or wrong, even when those citizens are drawn from different nationalities and different com- munities of faith. And that is precisely what was meant in that " p roposition," as Lincoln called it, on which this republic was founded, the proposition that "all men are created equal." This nation would not require, as the ground of citizenship, a common ethnic identity. This nation was founded on a proposition, and t h e ground of our citizenship came in our capacity to understand that proposition: to understand the implications for our duties and our -rights that arise fi-om our' natural equality. I think we would find, in the end, that even the positivists on the left and right would not wish to argue that constitutional government, or government by consent, is good merely because it is the form of government that most people prefer, and that it would cease to be good if most peo- ple should cease to prefer it. I think we will find a disposition to think that there is something in principle good about this form of government, that it is the kind of government nwstfittingfor the nature oftuman beings. I think we will find, even among the most adamant positivists, a marke d inclination to believe there are standards of right and wrong that do not depend on the votes of a majority; that there are rights that do not depend on our citizenship; that there are things we may aptly call "human rights"; and there are laws of reason that allow us to make some plausible distinctions between the claims of rights that are reasonable or unreasonable, jus- tified. or unjustified. What we will discover then, I think, is that even the people who profess to be most skeptical of natural right s cannot get through the day without the use of moral reasoning. In spite of themselves, they write and speak with the language of reason, and they have spoken natural justice all their lives.

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