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Natural Law for Modern Times

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Natural Law for Modern Times

Pierre Manent sees modern political theory as incorrect and incoherent. July 24, 2020
The Social Order
Politics and law

Natural Law and Human Rights: Toward a Recovery of Practical Reason, by Pierre Manent (University of Notre Dame Press, 149 pp., $29)

Russell Kirk once described natural law as “an ethical knowledge, innate perhaps, but made more clearly known to us through the operation of right reason,” and closely aligned with what he called the moral imagination. Today, natural law has opponents on Left and Right, both of which believe, in different ways, that a person is an isolated bundle of rights. For the Left, this vision is understood primarily in terms of identity; for the Right, primarily in terms of economic freedom and liberation from “big government.”

For the distinguished French scholar Pierre Manent, the difference falls between the modern conception of the human person as a being with rights and the more traditional conception, derived from Aristotle, that defines the person as a political animal, or politkon zoon. On this view, the rights-bearing individual enters a world that already exists, one ordered toward political and social goods, and with existing institutions, customs, and patterns of living. Understanding the person as a political animal, in other words, presupposes political and social context—it is concrete, where the rights-bearer is abstract. “[H]uman rights . . . presuppose a human world already ordered not by rights but by laws—political and moral laws, but also customary rules, such as, for example, as those that guide the expression of sexual desire,” Manent writes. “They presuppose that the city and its diverse laws are already there.” Thus, for Manent, to say that a person is a rights-bearing animal says nothing about the goods that are or should be constitutive of human life. Nor does it tell us anything meaningful about the rights that that person supposedly bears.

The modern definition of rights, which Manent derives primarily from Rousseau and Hobbes, puts the individual into an adversarial position with society. “What comes to mind,” says Manent, “are not concrete images of a human world defined by rights, but concrete images of ‘the struggle for rights,’ that is, social movements or changes that, however important or desirable one judges them to be, intervene in an already constituted human world, such that our definition . . . is deliberately partial and biased.” That is, once we take the position that human beings can be stripped of all context except for rights, then the surrounding actual society must soon become intolerable and “oppressive” to the exercise of those rights. The proclamation of rights, then, becomes a never-ending struggle to overturn every actual, developed political and moral arrangement, from government to the family. This is Manent’s great indictment of France’s generation of 1968, which did much to further a revolution in understanding of the interplay between individual and society. It has analogs in the Anglophone world, too.

In Natural Law and Human Rights: Toward a Recovery of Practical Reason, translated by Ralph Hancock, Manent seeks to overturn modern political theory as not just incorrect, but incoherent. He begins with the contradiction typical of most modern discourse. Rights are individual, universal, and must be acknowledged as absolute, yet at the same time, no culture or cultural practice can be judged—even as being against those rights. “Caught between the diversity-without-rule of cultures on the one hand and, on the other, the lawless freedom of human rights, we no longer have a solid basis for exercising practical judgment,” Manent writes.

Manent believes that practical judgment is impossible in a framework that starts with a person in absolute freedom, possessing rights but nothing else. Contrast this with the Christian view of the person. For Christian politics, humanity lives under the law, from the beginning. The law is what makes freedom possible, but the law is not itself freedom. The natural law, moreover, speaks to us as relational and associative beings. That is, the rational commands of natural law recognize us as differentiated rational beings with connections to one another, even as we remain individuals.

Modern natural rights theory, though appearing to celebrate the “uniqueness” of each individual, in fact does the opposite, Manent maintains. A regime of rights strips us down to one common denominator: our abstract freedom. We are no longer members of families, religions, nations, cultures, professions, or any other entity that requires an obligation or duty consistent with our being in nature. Rather, “the bearers or bases of rights are sufficiently or even exhaustively defined by the fact that they are identical or similar, and separate. From this . . . it is impossible to derive any directly practical commandments or recommendation.” This conclusion has troublesome ramifications for political society, since the rights regime provides the state with no common basis to act.

This difference in understanding the human person has another implication. In the modern view, law is legitimate only insofar as it protects human rights. “In other words, the law has validity or legitimacy only if it aims to guarantee human rights and limits itself to this purpose,” Manent writes. The unconvinced listener might respond: What is so surprising about the law preserving rights? Manent takes this position apart in a chapter called “The Law, Slave to Rights.” The reason this approach is ultimately destructive of political society is that, under the liberal understanding of rights, “the law proposes to give members of society only those commands necessary to lead a life without law”—including not just positive law but also every kind of restriction or border to absolute freedom. In these circumstances, what arises is a dynamic in which the forces of good (those that expand rights) constantly need an enemy, a reactionary force against which rights can be asserted. As Manent puts it: “[t]here is always a new freedom and there are always some new rights to promulgate to remove restraints, to free up and liberate the natural necessity that was already there and making itself felt.”

Thus, current political society—which must exist in a real place and time and have rules of action, even if unstated—is in the process of dissolving the basis for its own authority. Of course, as the state dissolves other “oppressive” restrictions on our freedom—such as the family and religious observance—it wants to retain its own power, even as its “principles of action are nevertheless more and more uncertain.” The idea of command, for any other purpose than guaranteeing the fluidity of individual rights, becomes incomprehensible.

And so, modernity gives us law that is not law and a state whose power rests on an assumption that it cannot articulate, because to do so would imply that it could command something other than rights-fulfillment. Political society under liberalism becomes impossible.

In addition, this modern rights-language, again contrary to the apparent aims of its proponents, destroys the individual whom it means to elevate. Behind the language of rights is the belief that rights are a “natural necessity,” which “reigns not only over our material and passionate nature; our very ideas are subject to it.” Reduced to its essentials, to “have” rights is a compulsion: we exercise them as we will, according to whatever we feel compelled to do. There is not—and for Manent, cannot be—any objective reason against which we can judge whether the right is worth exercising, or if it is a right. This position overturns both the Greek view of a rational citizen and the Christian view of free will, since both contemplate reasons for action that discipline the exercise of freedom in favor of other goods—courage, temperance, purity, and so on. For modern rights-bearers, rights are just “preferences.” It’s a short step from there to say that rights have no rational content, and that we are little more than beings living for immediate pleasure.

Manent, however, sees hope for a return of natural law. He argues that the forces that compelled the overthrow of the Christian understanding of the human person are now as weak as institutional religion in Europe. Natural law can become foundational as a matter of political theory once again, he believes, can be restored to Western political thought, because it is more in accord with human dignity. He may be too hopeful. While natural law accords with reason and human flourishing, and our rights regime does not, contemporary society is itself infused with religion. As Manent argues, modernity is anti-reason, and so the philosophical defense of natural law, while necessary, may not be sufficient to reverse the damage. A dose of Kirk’s moral imagination may be needed.

Photo by Michael A. McCoy/Getty Images

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