In a previous article (link) we saw that Carl Menger traced the origin of money, cities, and law back to the action of individuals who pursued their own goals without following any common plan or being ordered about by any central authority. Unintentionally, they created an order that was spontaneous. Certainly, an order that grows out of individual pursuits must include some form of rights over land and other goods, as means to fulfill individual ends.
Of course, sooner or later chieftains and kings started to issue their rules and impose their own order, which in their case wasn't individual, it was meant for all; it had a common purpose -good or bad. How exactly this process took place in different lands and nations is difficult to ascertain. Nevertheless it is unrealistic to assume that kings and parliaments started issuing commands on a blank slate. An order that they didn't create —with rights and duties— was already in place. So it is not true that, as some assume, every right and duty owns its existence either to the will of legislators or to the musings of sages. Certainly, statutes gave rights new shapes and thinkers inspired changes, but they did it on top of a spontaneous order that neither of them created.
Unfortunately, both men in positions of power and revolutionaries often fail to see how it is possible that an order that is spontaneous works. The French economist Frederic Bastiat once wrote that people who despise the free market and its price mechanism do not realize how wonderful it is that a big city like Paris is fed without any central plan that tells bakers how much flour to buy and how many loafs of breed to bake —and so with potatoes, onions and thousands of other goods.
There was at the end of the XVIII century an inordinate number of busybodies full with bright ideas about the way other people would have to conduct their lives. Worse than that, a good number of them thought themselves justified in imposing their plans by force. In such conviction were united both men in government and those who wanted to overthrow them —it was simply that the latter thought they had better and more radical plans to impose on others.
No doubt at that time many nations, and in particular France, lived under very defective rule, the result of centuries of absolute kings imposing their will on people. The trouble was that on the other side there were men, revolutionaries and their mentors, even more ruthless in their disregard of anything and anyone that would hinder their plans.
Edmund Burke and the Rights of Man
Carl Menger cites Edmund Burke as one of the first who understood how wrong they were those who, without understanding spontaneous order, worked to destroy it. Burke was no denier of natural law. Yet he saw that it was a very defective ground on which to defend rights, that is, rights that people must enjoy in the real world, not rights lingering in some theoretical cloud. Moreover, he realized that, as it happened in France, natural law could be used to knock down rights and even lead to tyranny.
Neither was Burke an enemy of positive law. On the contrary, he wrote that “Men cannot enjoy rights of an uncivil and of a civil state together” (Reflexions on the Revolution in France, p. 50). On the issue of political power he wrote “Government is not made in virtue of natural rights, which may and do exist in total independence of it, and exist in much greater clearness and in a much greater degree of abstract perfection; but their abstract perfection is their practical defect” (op. cit. p. 51). In a famous image about the way rights work in a civil society Burke wrote “These metaphysic rights entering into common life, like rays of light which pierce into a dense medium, are by the laws of nature refracted from their straight line. Indeed, in the gross and complicated mass of human passions and concerns the primitive rights of men undergo such a variety of refractions and reflections that it becomes absurd to talk of them as if they continued in the simplicity of their original direction” (op. cit. p. 52).
So Burke didn't deny natural rights and he acknowledged the importance of positive law. What was he against then? Burke was against positive law enacted on the basis of abstract reasoning resting only on very general dogmas.
In his answer to the French philosophers and their British admirers Burke wrote that rights should be viewed as the inheritance of people -of each and every man and woman- and not the result of the will of the majority among them, or the majority in the assemblies they elect, or the plans devised by doctrinaires. That was the key element that distinguished British Glorious Revolution of 1688 from the French revolution of 1789.
Burke compared the results of following English traditions and ancient laws and those of the theories of philosophers and the experiments of legislators. Already in his first essay “Vindication of Natural Society” he had assumed -tongue in cheek- the attitude of those who disdain the consequences of laws and value them only as the necessary corollaries of their petty theories.
By the way, if people had followed Burke's advice, Marxism would have been discarded long ago, after its horrible consequences had become manifest in real life. Of course Marxists rejected with scorn the notion of natural rights, but they too built their systems on a few abstruse postulates and —as the French revolutionaries— where ready to kill anyone who opposed them. Marxists say: the reasoning looks good to us, so it doesn't matter if in the past all our patients have died, lets try the same medicine again. This time it will work.
Burke was well aware of the many defects in the law of the land as it stood. But he thought it better to improve on it than to take it down. He used the image of a mortmain, that is, an estate that cannot be sold o renounced, but on which one could build. That applied even to legislatures. Burke wrote: “We entertain a high opinion of the legislative authority, but we have never dreamt that parliaments had any right whatever to violate property, to overrule prescription, or to force a currency of their own fiction in the place of that which is real and recognized by the law of nations” (op. cit. p. 126).
Friederick Hayek agreed. As he wrote in The Road to Serfdom, “The idea that there is no limit to the powers of the legislator is in part a result of popular sovereignty and democratic government. It has been strengthened by the belief that, so long as all actions of the state are duly authorized by legislation, the Rule of Law will be preserved. But this is completely to misconceive the meaning of the Rule of Law. This rule has little to do with the question whether all actions of government are legal in the juridical sense. They may well be and yet not conform to the Rule of Law…It may well be that Hitler has obtained his unlimited powers in a strictly constitutional manner and that whatever he does is therefore legal in the juridical sense. But who would suggest for that reason that the Rule of Law still prevails in Germany?” (p. 91, 50th edition).
A false dichotomy
Neither Burke nor Hayek based their convictions on an appeal to natural law or human rights. They praised the tradition of the rule of law, painstakingly built, first in Britain and then extended to other European countries and the United States. Yet the value of that tradition was not acknowledged by everyone. In Hayek's time (and still today) scholars offered their readers a misleading choice between positivism ands natural law. According to the first, we must assume that rights are the creatures of legislators, who will grant them or take them away A written constitution does not change significantly that picture because after all constitutions are voted at constitutional conventions, also by legislators. That is not a pretty picture.
Then we are told that the alternative is to assume that there is a law that is “natural” in some sense. In its most simple formulation, natural law is assumed to be woven into the structure of the world and in every human heart. It is there for us to reveal, to discover but not to change at will. That is a prettier picture but unfortunately a very hazy one.
If the source of that natural law is men's heart then we would have to explain away the burning of wives at the pyre of their husbands, practised in India for centuries. We would have to somehow dismiss the relevance of pogroms practised enthusiastically by people in Russia and Eastern Europe. Bear in mind that those were not actions taken by arbitrary rulers and resisted, or at least lamented, by common people. People did it, and often forced rulers to accept cruel customs against their better will. Human hearts and the natural law which, we are told, is written in each of them seem to have been awkwardly silent in these and many similar cases. Even sages like Aristotle saw no problem in endorsing slavery. If the human heart is the pillar on which rights stand, it is a very shaky one. Let alone the “structure of the universe”.
Hazy natural law
Well aware of these objections, philosophers have tried to present refined versions of natural law. Nevertheless, in their efforts to bulletproof their theories they have distanced natural law from nature, they no longer claim that it can be deducted in any way from human nature or the structure of the universe. They readily recognized that the human heart is no sure source of it. That was bad enough a concession but at the same time philosophers have made natural law less similar to law. They no longer try to come up with a system that could remotely be compared to those that rule nations. By these means philosophers have have made their theories less susceptible to attack but also less useful as a weapon against injustice.
This is no place to deal with the theories of Lon Fuller or John Finnis —two of the most renowned modern defenders of natural law— who in different ways have tried to parry the most obvious criticisms to which a naive version of natural law view is liable. I would just say that Lon Fuller's strategy avoids the whole issue about the origin and justification of natural law by arguing that it is already part of positive law. Fuller says that one cannot understand how judges (presumably he has in mind Western judges) apply law unless one takes into account some basic moral principles. Unfortunately, what he then enumerates are mostly procedural requirements for trials but he says very little about substantive law. (Lon Fuller:Positivism and Fidelity to Law).
John Finnis does take substantive law into account. And he does not, as Fuller, make the rather self-defeating argument that natural law —or a bit of it— is in fact already positive law. The trouble is that Finnis provides only very general views that could easily be used to justify very different law systems, with the exception of the most obviously absurd and arbitrary ones. Concerning the issue of property rights —a usual subject of controversy—, he cites Aristotle, who wrote that “property ought to be common in a sense, but privately speaking generally...possessions should be privately owned, but common in use; and to train the citizens in this is the special task of the legislator”. If that wasn't sufficiently vague, Finnis adds that “the analyses put forward in this section, even when they are applicable on issues of current political debate in the reader's community, are not to be taken as if they were intended as a contribution to any particular such debate” (Finnis, John: Natural Law and Natural Rights, Oxford University Press 1980, p. 171).
As all modern defenders of natural law do, Finnis does not pretend that even his highly general remarks would be acknowledged by all men as truths written in their hearts. Nevertheless, he argues that after all it is the same in science because -he asserts- all sciences rest on some epistemic principles that are indemonstrable. He cites Aquinas, who wrote that some propositions are self-evident only to the wise (op. cit. p. 32).
Collective goals dictated from above
It is interesting to realize that for all their differences, positivism and naturalism tend to converge to similar solutions. The former relies on the views of legislators, the latter, at the end of the day, on those of philosophers and wise men. Both authorities will tell us what in their views is good not just for themselves but for the community. Appeals to the political power or to the opinions of wise men are different from appeals to an order that allows individuals to pursue their own goals.
While positivists reserve the job of granting and taking rights to legislators, natural law champions add above them the pronouncements of sages who will find for us indemonstrable principles that they will be able, somehow, to uncover. In modern times it often means the opinions of Harvard, Yale, Oxford, and Cambridge professors —repeated in a simplified form by hundreds of other sources. It isn't clear that their findings are better informed or have more sense than those of legislators.
There is another problem with naturalism, totally independent from the issue of the soundness of the opinions about it. The fact that we talk of natural “law” should not hide that it is —if it exists at all— something that cannot be viewed as being as detailed as positive law and thus running parallel to it so that we can contrast them. It is true that in the past some philosophers thought that they could deduce a whole system of law from the study of human nature. But modern thinkers have abandoned that pretension. One may peruse the many volumes written by John Finnis —perhaps the most lucid modern defender of natural law— without finding a clear-cut answer to any of the controversies that divide people today. I am not saying that Finnis's insights about the proper ways of reasoning about moral issues are useless. Nor am I saying that his remarks about what factors should be considered when pondering about, say distributive justice, have no point. But it is undeniable that they could be used to support too many answers, leaving outside only the most obviously wrong ones. The same applies to other philosophers and law scholars. As long as they remain abstract and indeterminate, they command assent; as soon as they try their methods in order to yield a direct answer, they became controversial and dubious.
Law philosopher Pauline Westerman wrote an insightful book on the history of natural law for which she chose the title “The Disintegration of Natural Law Theory: Aquinas to Finnis”. About the modern efforts to make natural law less open to objections she wrote “strictly speaking, the new theory of natural law neither has anything to do with law nor with nature” (p. 256) and “In fact, the more these theories are fortified, the less versatile they are in dealing with practical problems (p. 293)
The trouble is that the very purpose of having a natural law distinct from positive law was to use the first to assess the second. And it is very little comfort to say that perhaps even very hazy natural law theories would exclude Hitlerite and Leninist immorality. Nazis and communist empire builders are not easily persuaded by lectures about ways of moral reasoning. We have to be able to deal with subtler deviations from justice, those that open the road to the worst ones. Once they have grown into gross arbitrariness, debate is usually pointless.
That is because, as David Hume wrote “It is seldom, that liberty of any kind is lost all at once. Slavery has so frightful an aspect to men accustomed to freedom, that it must steal upon them by degrees”. Lord Macaulay was of the same opinion. He wrote that in medieval times deviations from the law had a check in the ability of people or aristocrats (or both) to rise up in arms against royal power, "Our forefathers might indeed safely tolerate a king in a few excesses; for they had in reserve a check which soon brought the fiercest and proudest king to reason, the check of physical force". While the weapons at the disposal of kings were not very different from the pikes and the swords in the hands of their subjects, there was a limit that rulers had to take into account. That changed with professional armies. Moreover, Macaulay argued, in pre-industrial economies civil wars destroyed huts, cattle, and a few castles. Recovery took a short time. But in highly developed economies the material losses are immensely higher and people become reluctant to risk them. It is for these two reasons, says Macaulay, that in modern nations even small deviations have to be promptly controlled. (History of England, Vol. 1 p. 23).
A natural law that commands assent as long as its precise meaning remains uncertain is not very useful in that respect. And today there are attacks against rights of the more subtle kind, of the kind that, as Lord Macaulay advised, should be controlled before the issue is no longer about ideas but about force, no longer about arguments but about secret police knocking doors at night.
Natural rights against the rule of law
The tradition of the rule of law has often been confronted, as Burke described, by abstract theories about natural law and the rights of man. In our own time, so-called second and third generation human rights to free education, to a job, to a basic income, to subsidized prices, are among the most powerful weapons against the rule of law. This is exactly what Burke warned against; legislating —be it from Congress or from the bench— on the basis of abstract reasoning.
In Argentina, law professors waged for decades a relentless war against the liberal rules in the old Civil Code (“liberal” in its classical meaning). Starting from a few abstruse postulates (the unity of the illicit phenomenon, the theory of the “adecuate” cause) seasoned with Roman maxims never known as law in Rome, they turned the Code upside down. Already in 1968, they convinced a military government to amend the Code and establish that applying new laws to contracts signed before them was not really retroactive. Finally, towards the end of Cristina Kirchner's government they got their victory, the complete replacement of the old code and the enthronement of their doctrines in a new one.
Unfortunately, too many law professors wax lyrical about the new rights that they discover in the Constitution and human rights conventions but they have little time for the old rights. The trend includes the federal Supreme Court, which has recently published a summary of the cases the Court sees as more relevant in its record, covering the period 2003-2016 (link to the document, in Spanish). The report has a chapter on cases about “Fundamental Rights” which does not include property among them. In turn, we find special chapters on social rights, economic rights, environmental rights, union rights, collective rights but not one about property rights.
Yet there have been very relevant cases on such issue, though there is very little to boast about them. In 2002 a Peronist government started confiscating people's dollar bank accounts and giving them bonds in exchange —which was done with the approval of most of the opposition. When the Court declared it was against the Constitution, Congress removed some judges from the Court and appointed new ones. In 2004 the new majority in the Court reversed its previous decision —now taking the dollars was right. In 2013 the same “revamped” Court rejected the claim of a man who tried to defend his private retirement account against its confiscation by the government. That case sealed the fate of the whole system of private pension funds which then were taken by the government. None of that comes out of mere chance or whim. In order to pay for the myriad of new special rights, the old ones must be looted.