On Natural Right and Other Un-written Guides to Political Well-being

Introduction

The sad saga of David Bruce-Brenda Reimer's struggle with medical clumsiness and parental willfulness provides powerful testimony that human attempts to force nature to their own whims can have tragic consequences.¹ It does not, however, shed any light on natural law nor prove it to be founded on human nature. Nor, claims from the bench notwithstanding, is there any evidence that natural law actually guides judicial practice in the U.S. To revere Saint Thomas is one thing. To accept his pronouncements about natural law and its manifestations is another. Clear and distinct reasoning, the only kind of reasoning that leads to truth according to Descartes, shows that there is no such thing as natural law. Natural right, perhaps. Even, certainly given the politics of our days, divine right. But law exists by human positing, not by nature.

Humans decide what should be established as law and strive to make their human prescriptions reflect what seems to be right or just according to their understanding of what is ever and always has been, what has been revealed by a prophet or a seer, or what has been passed on by ancestors as beyond questioning for one reason or another. Under normal circumstances, only someone who has the good fortune to be accosted by a Hermes while pushing through heavy woods (and consider, please, what Hermes represents in learned discourse) seems able to light upon or be told about the nature of things—even of plants.² Most often, we humans follow the customs we learned from our fathers and mightily resist anyone who dares challenge the old ways. The difficulties Moses had in trying to persuade Pharaoh to change his ways are one example of such recalcitrance. Refusals, at least as set forth in the Quran, of the people to whom different messengers are sent is another.³

What is Right by Nature

The actions humans deem right or just, so right or just that no one should go against them, are precisely those actions that conduce to human association. Or, differently stated, such are the actions that would make it impossible for humans to live together were they not to be observed. For guidance in such matters, Aristotle is very helpful. He is helpful, above all, because he has reflected deeply on nature and on how it does or can shape human conduct. Precisely because the modern rejection of Aristotle and his reasoning does not constitute a refutation, it is reasonable to ask what we might learn from him about such fundamental matters.

The three actions Aristotle deems to admit of no mean, that is, to be wrong no matter how they are done—adultery, stealing, and murder—come immediately to mind, even though there may be some disagreement about the passions he identifies as admitting of no mean, namely, Schadenfreude, shamelessness, and envy.⁴ So, too, though he mentions it in a less declaratory manner, is the case with injustice: it is not possible to be moderately unjust. Moreover, commentary on the Hebrew Bible points to seven rules or commandments God set down for Noah, commandments so obviously necessary as to be considered rational laws or laws such that if they "were not written down, it would be appropriate for them to be written down."⁵

Aristotle discusses justice or right—right, not law—explicitly in Book Five of the Nicomachean Ethics and Book Three of the Politics.⁶ In the first work, justice or right is presented as one of the moral virtues; in the latter, it is considered as a constitutive element of any regime. However, it is not possible to talk intelligently about justice or right as a moral virtue or as a fundamental basis of political life without first gaining some clarity about the way human beings are, as well as about what constitutes human happiness and how political life contributes to it. Aristotle's discussions of justice or right are rooted firmly in these larger contexts. He recognizes that the decisions to be taken in order to preserve life in political society presuppose a...