Natural Law, Universal Human Rights and Science

Natural law? Who cares about natural law? Hardly anyone, it seems. Natural law is easy to dismiss as outdated, and easy to ignore as irrelevant. But suppose we developed a notion of natural law that constituted a really serious challenge to established positions, both intellectually and politically. Perhaps it would be harder to ignore.

The conception of natural law I have in mind challenges established intellectual positions both among proponents and opponents of natural law, and among the much larger group who are not interested in the subject. And it challenges established political positions. It is part of an attack on the dominance of the system of sovereign territorial states, based on a strong (and unorthodox) conception of universal human rights, and a distinctive view of what global democracy requires.

It is, first, a way of codifying the idea of universal human rights. It is, second, a return to strong notions of natural law that we find in Cicero and other classical sources. It is not simply a claim of a necessary connection between law and morality. It presents natural law as an idea that requires a radical extension of the dominant views of what counts as law. Hence it will be unacceptable to most lawyers. And it requires a radical extension of the now dominant views of what science, and social science in particular, can do. Hence it will be unacceptable to most social scientists. It is based on what can only appear as a shocking faith in the potential of law and of science. It is a thoroughly uncompromising response to the various forms of postmodern skepticism.

According to one common view, you belong to the natural law tradition if you believe that there is a necessary connection between law and morality (Murphy and Coleman, 1984), or if you believe that what law is depends on what law ought to be (Dworkin, 1982). The ongoing debate about natural law, which is largely about the relation between law and morality, is supposed to be one of the central debates in legal theory. It is odd therefore that it is often difficult to explain why it matters. Why should we care whether there is a necessary connection between law and morality? Or whether law as it is can be separated from law as it ought to be? In the larger scheme of things these are arcane claims in legal theory, seemingly irrelevant to much of our intellectual life, or to politics. They do not even seem all that important in law.

I am not the first one to notice this peculiar feature of the current state of the natural law debate. Weinreb's discussion in Natural Law and Justice (1990), to take one prominent example, begins with the same observation. Weinreb responds by arguing that natural law matters because it is a way of thinking about the conflict between the scientific view that the world is causally determined and the view we adopt when we judge people to be responsible for their actions. This makes natural law philosophically important, but not politically. I will propose and defend instead a version of natural law thinking that has little to say about these basic philosophical questions. I am inclined to think in any case that to handle these questions we need a better understanding of the causal structure within which human actions are enmeshed.

The natural law I do propose is by contrast significant in the empirical questions it attempts to answer, contributing to the development of an empirical normative ethics. And it is politically significant as part of a program of struggle against a world dominated by the system of sovereign territorial states. It makes the question of the relationship of law and morality secondary. And it returns to an older alternative formulation, according to which natural law refers, first of all, to a distinctive body of law. It refers also, derivatively, to a tradition of thinking about law which recognizes the existence of this distinctive body of law.

So our first question is: What kind of laws belong to this distinctive body of law? Everybody quotes Cicero's answer:

True...