Debunking Natural Rights and Recovering Natural Law

French political philosopher Pierre Manent has given us all a great gift in his new book Natural Law and Human Rights: Toward a Recovery of Practical Reason. First published in French in 2018, this work is recently available in an English translation by Ralph Hancock. Manent’s concern with practical reason (as opposed to mere theory) makes his argument relevant for everyone, not just political scholars. I will attempt to summarize them in this essay, to be elaborated upon and evaluated later.

Chapter One: Why Natural Law Matters

What exactly is natural law?

We often refer without hesitation to a universal standard for judging human actions, one that is both clear and stable. Manent proposes three criteria for judging human actions: the useful, the pleasant, and the noble (alternatively, the just). Building a house, performing a symphony, and saving a fellow soldier’s life on the battlefield can all be judged positively according to this standard. People of diverse cultures are still moved today by the aqueducts of Rome, the melodies of Mozart, and the poetry of Homer.

This view contrasts with that of cultural relativism. Manent notes that the West has long distinguished between “here” (where universal norms apply) and “elsewhere” (where relativism is embraced). And yet globalization has blurred the line between here and elsewhere, as “they” are now “here.” Will westerners still tolerate practices such as female genital mutilation when they occur in Europe as opposed to East Africa?

Abstract notions of human rights simply do not suffice in the face of such questions, as the language of rights both stimulates and constrains our faculties of judgment.

How did we arrive at such a point where we can no longer judge actions by a universal standard?

Manent takes us back some five hundred years to the original rejection of natural law and its replacement with the theoretical construct of the state of nature.

Unlike the original condition posited by natural law, the state of nature is a state of anarchy. It has no law to govern it, save “might makes right” (Hobbes) or the satisfaction of desire (Rousseau). Individuals in the state of nature are radically separated from each other and essentially interchangeable. They are ageless, sexless, possessing no distinct capabilities. Whether they subsist in nasty brutishness (Hobbes) or primitive contentment (Rousseau), nothing is viewed as natural beyond the isolated individual: not family, not community, not the nation.

There is just one problem with such a theory: it bears no resemblance whatsoever to reality.

Man is not born into a state of anarchy, but rather an “archic” or already-governed world interwoven with rules and purposes. Infants do not spring into existence as the social and political equals of adults (though in the Christian formulation, they have equal dignity as beings made in God’s image). Rather, they are born weak and defenseless, requiring the care of a mother and father whose responsibility it is to nourish them. They are brought up in communities structured hierarchically to meet basic needs.

We are not autonomous individuals, but rather fathers and mothers, daughters and sons. We are held together in particular by the bonds of marriage, the universal human institution which has forever (or at least, until quite recently) organized sexual difference and connected the generations.

In summary, natural law asserts that man is born into an ordered world with certain inborn motives and imperatives, while the state of nature posits an original condition of anarchy at odds with both experience and common sense.

Chapter Two: Counsels of Fear

To explain how such a rejection of natural law first came to be, Manent takes us through the minds of three great moderns: Thomas Hobbes, Nicolo Machiavelli, and Martin Luther.

Hobbes is most famous for his dictum that life in the state of nature is “nasty, brutish, and short.” He reduces all human motives to the desire for power, rejecting any room for notions of justice or the desire to do good. In Hobbes’ state of nature, there is no place for practical reason, no room for conscience. The ambitions of each individual are only held in check by external constraints – namely, fear.

In a quasi-mystical act known as the social contract, individuals in the state of nature forfeit their natural freedom in exchange for the protection of the state. Hobbes cares more for how the state is organized than what it does, prioritizing form over action. In fact, under his social contract, nothing the state does can ever be unjust, as the state is the foundation of all law (the state of nature being the condition without law). Having authorized the state in advance through the social contract, the individuals under its authority have no recourse should it behave tyrannically.

Manent notes how the Italian theorist, Machiavelli, is often celebrated as the first to adopt a “realist” or “scientific” perspective on human behavior, pointing out the gap between how we are and how we ought to be. Yet instead of urging us to bring our actions more in line with our ideals, Machiavelli dispenses with conscience altogether. He advises the ambitious prince to reject all constraints on his own behavior and learn how to be bad should the situation demand it. Like Hobbes, Machiavelli dispenses with conscience and proposes fear as a sufficient substitute.

Martin Luther, the Augustinian monk who began the Protestant Reformation, may seem an odd candidate for this grouping. And yet Luther too rejected Erasmus’ defense of free will, refusing to concede that conscience could ever guide proper action. Just as Machiavelli observed the gap between how we are and how we ought to be, so Luther was haunted by awareness of sin – the gap between man and God. In his terror over the fate of his own soul, Luther asserted the possibility of salvation by faith alone. The acting Christian was thus transformed into the more passive “believer,” he who must believe above all else in the surety of his own salvation.

Hobbes, Machiavelli, and Luther all despaired of man’s capacity for improvement and rejected practical conscience, substituting fear in its place.

Chapter Three: The Order of the State without Right or Law

Fear is more than just a reality of life for Hobbes; it has a moralizing mission. Fear motivates us to create the one force that can provide peace – the unbound state or Leviathan. If the state of nature is a war of everyone against everyone else, then we need our rights as a matter of self-defense, and an ever-more-powerful state to enforce these rights.

The social contract attaches indefinite rights to indefinite individuals, indifferent to the complexity of human society. Manent asks, “why would not everyone demand his right to all things, since all things have been declared a matter of human rights?” As the list of new rights grows, so must all human institutions (the nation, the family, the university, etc.) submit to the power of the state, which has been granted unlimited authorization in advance, regardless of rhyme or reason.

The social contract is presented as an agreement between the powerless many and the one who holds power. Yet Hobbes is indifferent to the motives of the one who commands, one who cannot logically escape the same condition of fear and pride that presumably besets his subjects. If man is born naturally free and equal, then obedience must be essentially repugnant to him, as he is essentially recalcitrant. Thus, the only a supremely powerful instrument (the state) can enforce his obedience.

As the state expands, our capacity for action and understanding of its motives shrink. The immense machinery of the state sets about emptying the world of all norms, producing a world without command. Thus does the state produce the very “state of nature” it presupposed in its construction: a condition of anarchy, bereft of Law.

Chapter Four: The Law, Slave to Rights

Manent notes that the modern state does not command in the proper sense; rather, it enforces obedience without command. It begins by obscuring the one who commands, producing the specter of the subject commanding himself. Yet this cannot be, as to command and to obey are different acts requiring different positions in a hierarchy. Self-command is not the same as self-mastery, as obeying the dictates of the government is a fundamentally different act than obeying one’s command to oneself not to smoke cigarettes.

The state obliges members of society to live in a world in which neither commanding nor obeying is either visible or possible. The subject must comply with rules that look like commands, but he cannot obey in the proper sense things which are not commands. A soldier obeys his officer’s command to charge at the enemy. A child obeys his father’s directive to clean his room. A Christian obeys the Ten Commandments and the teachings of the Church. Yet the modern state does not direct the subject to do anything in particular; thus, he cannot properly obey.

Instead, the subject must adopt a general disposition of allowing himself to be shaped and molded, to the point that he can no longer command nor obey. He becomes a passive subject, an autonomous individual like those in the hypothetical state of nature posited by Hobbes and Rousseau. He becomes, in Manent’s words, an “unrecognized but faithful product of the unperceived tyranny of the state.”

Manent sees the unpardonable, irreparable error of modern natural rights theory as the fact that it presumes to command starting from a condition of non-command (namely, from the state of nature), whereas human freedom must always be grounded in something beyond man’s own will. Even a man without home or country “cannot be without law or rule, because that would mean that one is not an acting being, and thus that one does not belong to humanity.”

In the real world, the practical world, actions can never be completely separated from their reasons. Political law and the state place themselves at the summit of practical life, but with the difference that it has no aim. It is no longer concerned with setting down the best rules, but rather with guaranteeing and promoting increasingly subjective rights. It is “inept as the Leviathan that has all power but no idea which way is north.”

At this point one might object, how can the modern conception of human rights be wrong when it has produced so much good? It was, after all, in the name of rights that the institutions of liberty were built.

Society adhered so long as religion and the nation (both rooted in natural law) retained a deal of strength. And yet we seemed to reach an “inflection point” around the 1960’s, in particular the social revolutions of 1968. Since then, our institutions have been under attack, as everyone can now claim the “right” of access (for example, the right of women to join the priesthood, of atheists to join Christian associations, of girls to join the Boy Scouts, and of biological males to participate in women’s sports).

Since the sixties, one right has risen as paramount: the right to “be all that we want to be.”

Note that this is not the right to do what we want to do. Action necessarily exposes us to the judgment of others and of our conscience, a judgment we reject at all costs. The expanding state must focus not on our actions, but rather on our passivity and passions, the feelings we cannot help but feel. What we suffer from and what we enjoy must be recognized and granted value by others.

We thus cease to be political animals in the Aristotelian sense, concerned with practical questions – no longer rational animals confronted with the challenge of acting well. We are rather sentient or sensitive animals – “I’s” who simply feel or are affected by things. We become “a tautology of self-feeling from whom no question proceeds and which can hear no question: the living-individual without either city or reason, ceaselessly busy reducing its being to what it feels of it and at the same time to gaining recognition for his being as he feels it.”

Our feelings, passions, and desires rightly belong to our private lives, as they have no bearing on the demands of common action. And yet in order to absolutize subjective rights, the private must be made public. The individual is invited to “come out” and be celebrated for who they are, not what they do. Others are obliged to know things they would rather not know, but are now forced to observe without comment.

Manent concludes with an attack on the idea of a “right” to a “universal income” – a benefit attached merely to the condition of being alive. Universal income authorizes us to live without working, delivering us from the concerns of necessity into the terminal passivity of a life not needing to be earned.

Chapter Five: The Individual and the Agent

Can one not reject the state of nature and the social contract while holding fast to the claims of rights that it produced?

No, answers Manent. The modern state is inconceivable without the philosophical elaboration that accompanied it. The two are inseparable.

Manent observes that our quest for freedom from nature (natural law) has led us to the quest for freedom to obey our “natural” inclinations, producing an attitude of laissez faire, laissez passer. This “let it be” approach is at odds with both ancient Greek conceptions of reflective choice and Christian ideas of free will and conscience. Forfeiting free will is the price of our “liberation.”

The free agent (acting person) aims at right action and cultivates the virtues of courage, temperance, etc. that might lead him to act properly. He is more concerned with the intrinsic quality of his actions than external restraints upon them. Contrarily, the free individual (feeling being) is more concerned with external obstacles – potential infringements upon his rights – that their intrinsic quality. Thus may once assert the “right” to view exploitive pornography, an act no one would claim as virtuous.

An odd effect of a rights-based view is that for the individual “the security of the body, the preservation, comfort, and health of the body, become(s) the most obsessive concern.” (I don’t believe that anyone who has experienced the lockdowns of 2020 requires much elaboration of this claim.)

While he is certainly concerned with his own survival, the agent does not consider avoiding death to be his primary goal. The acting man cannot be dominated by fear of death; how can he be, in a world that requires him to expose himself to risks to achieve his purposes?

The modern state increasingly regards death not as a natural part of life, but as an extrinsic accident – a fact of nature that must be conquered. Examples of this attempted conquest include euthanasia and other cases involving the “right” to end innocent life, even as capital punishment for criminals is abolished.

By imposing an artificial equality upon its subjects, the state makes government impossible in the truest sense, as government requires different positions in a hierarchy from which to either command or obey. The solution to this quandary is the supposedly representative character of the government, one based upon the consent expressed though increasingly universal suffrage. The solution is that we are obligated to obey only those whom we have previously and explicitly consented to obey.

Yet this “consent” obscures the virtue of those who command and the content of what they command, focusing more on the form of law than its content. The old question of “Who governs and how; according to what principles and to what ends?” is replaced with a theoretical, optical framework in which the government supposedly reflects society, and society sees itself reflected in the government. But governments are neither the work of our own hands nor the products of our explicit consent. (I personally do not recall signing a social contract or creating any aspect of our current system.)

Manent reminds us that we always intervene into an already-governed world. Our politicians are not merely our “representatives;” they too are agents subject to the demands of action.

Chapter Six: Natural Law and Human Motives

Manent concludes with the observation that ideas like human rights and representative government have profoundly changed the conditions of human action. A result has been the widening chasm between our moral experience and the language of unlimited rights.

While some form of communitarianism may be a tempting response in the face of such anarchic individualism, Manent cautions against such a course. The solution is not to be found in communism or fascism (both of which attempt to reassemble atomized individuals into something with form); rather, it lies in the recovery of the Law.

The infinite diversity of human culture may be of interest to the anthropologist, but it is irrelevant to the agent. The acting man does not need to formulate a categorical imperative which all men at all times must follow. It is for him to act.

We need not establish ironclad rules to be enforced upon all people everywhere. The proposition of natural law is far more modest, and the practical far easier than the theoretical.

Manent dispenses with the “naturalistic fallacy” condemned by Kant and others. There is no chasm between “is” and “ought”, but rather a gentle slope “along which we can walk with moderate confidence.” The aim of natural law not as an exhaustive definition of the good, but rather a simple, concrete criteria for judging institutions, governments, and action in general. Such an approach maintains a high degree of flexibility, opens the possibility of “play” and experimentation, and saves us from the “tyranny of the explicit.”

Yet despite being less explicit (and less pretentious), natural law is no less rigorous. Natural law helps to guide our actions, though it does not command them. It helps us arrive at a point of equilibrium between different goods rather than forcing us to the extremes. We do not make natural law; rather it motivates, illuminates, and guides our man-made laws.

Manent describes modern man as the prisoner of his own attempt to escape the urgency of action, and above all his refusal to hear the question, what is to be done?

And yet, he claims, “this passivity in which we place our pride cannot last indefinitely.”

Rather, it can only build in urgency.

Appendix

The purpose of Manent’s writing is not to abolish human rights, but rather to reground them in natural law after repeated attempts to ground them in something else (consent, the social contract, representation). He sees the recovery of natural law as our most urgent task, and the only way we can preserve authentic human freedom. Most importantly for Manent, we must recover our understanding of the law as practical reason motivating action aimed at the common good.

We find ourselves in a difficult position. The increasing subjectification of rights has aimed to deprive us of our conscience or to keep one from forming in the first place. The agent has been transformed into a subject, the agent into a being. Marriage, the original law organizing sexual difference, has been replaced with an artifice defined by individual desires.

Each day it grows increasingly obvious that the predominating opinion (that which we might call the “woke”) has no interest in being representative, no interest in preserving the rights of conscience or religion, no concern for the well-being of children. It tolerates no dissent, seeking out the last vestiges of Law to destroy.

And yet we cannot ever completely escape natural law. It is, after all, natural.

Manent sees Christians, and especially Catholics, as inclined to a certain political passivity, accustomed to defeat. He urges a reactivation of their political responsibility and offers this note of hope: the imperial republic that has pushed Christianity to the margins is now just as weak as the Church. Weakness and sterility is inscribed within its very project. It cannot create or build, only “undo and unbind.”

Our destiny is “as precarious as all human things… dependent equally on our wisdom and on our prayers.”

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