It is with some hesitancy that I enter the lists once again against Michael Anton. On political and social issues, I have no differences with him and can only applaud his writings on the fallen state of our constitutional republic, while admiring his forcefulness in expressing our shared views. Where we necessarily part company is in his defense of the natural right teachings of the late, esteemed Harry Jaffa. Although his (to my knowledge) latest polemic against the deniers of natural right, does not mention me specifically, I do nonetheless feel implicated in this imbroglio. Christopher Zeeman, the pugnacious blogger whom Anton was addressing, was pillorying natural rights thinking apropos of something I had posted. And the “New Right” which Anton scolds for its improper or confused thoughts was certainly imprinted by my views about rights.
Like Professor Jaffa, Anton puts his debating opponents (like me) in what seems to be an untenable either/or situation. Either we must accept natural right as a universal moral standard or else be relegated to the dark pit of moral relativism and (Heaven forfend!) historicism. According to Michael: the reason why natural right is less corrosive than nihilism should be obvious. If the truth is that there are no truths—no rules, principles, hierarchies, etc.—then men are free of all obligation and may rightly (if “rightly” even exists as a concept in such a world) behave however they want.” I have no understanding why my choice is either to accept Anton’s idea of natural right or embrace nihilism as the only possible alternative. Anton also seems to assume that natural right, which is a concept that gained currency in the 17th century, is the same as natural law, a concept that originated with the medieval schoolmen and more distantly, with the Stoics and Aristotle.
Thomas Hobbes in Leviathan refers to individual freedoms that supposedly exist in a state of nature as jus naturale, a semantic association that John Locke and various continental thinkers incorporated into their systems of thought. But it’s doubtful these references to natural law as inborn subjective rights mostly restate older moral notions going back to antiquity. As Leo Strauss, Michel Villey, and other respected legal-political thinkers have pointed out, the early modern European idea of natural right, which builds on the scientific revolution then in progress, is different from the medieval idea of natural law. One deals with measurable material rights that in Hobbes’s language is “ascribed to individuals (suum jus cuique tribuendum)” who are imagined having come out of a state of nature; the other concept is about moral and social obligations that those who are properly instructed should be able to derive from natural reason. Whereas in the medieval understanding of dominion (dominium) over Nature, it is the human community that receives control over the rest of creation, in the natural right understanding, it is a collection of individuals who are thus empowered.
I fully concede that many of America’s founders believed in among other things natural rights and that state constitutions framed during and after the Revolution clearly show the influence of natural right thinking. I also believe that intellectual leaders of the Old Right were misguided in trying to deny this influence entirely; and it sometimes amuses me to read their efforts to demonstrate that natural right is of no importance in the Declaration. But Anton and other West Coast Straussians go equally far in the opposite direction, by making it appear that the appeal to Lockean natural right in the Declaration provides the moral foundation and raison d’être for America’s existence.
They also insist on a selective trip down memory lane, which is intended to demonstrate the preliminary appearance of Professor Jaffa’s preferred moral truth in Plato and Aristotle. Admittedly natural right thinking was one among other tools that American leaders availed themselves of in making moral and legal arguments for independence and against slavery. But it was hardly the only one. Debates over burning issues in the 18th and 19th centuries were pursued through appeals to the Bible in what was once an overwhelmingly pious Protestant country. America’s founders were also deeply interested in the political examples of classical antiquity, and what they drew from this reference point didn’t have much to do with Lockean natural right.
I’m also unclear why defending laws as the longstanding traditions of a people furnishes a less cogent defense than dragging out early modern European natural right. I certainly don’t begrudge Anton the pleasure of invoking that tradition, but I’m not at all convinced that those who choose to appeal to other moral principles are engaging in relativistic outrages. Nor do I understand how Socratic defenses of Truth and Justice contain the seeds of 18th-century natural right thinking, which as far as I can tell, issues from Hobbes, Locke and more distantly, the Scottish Covenanters and Spanish Jesuits of the 16th century. Anton might choose to accuse me of historicizing what for him is a sacred tradition going back many thousands of years. For me, however, what he invokes is one among other defenses of individual freedom from government control or overreach that developed in the early modern West.
For me, moreover, this concept remains problematic because it does provide a conceptual bridge to the “human rights” industry that Anton and I both reject as a leftist trick. The focus on individual rights and the inherent right to judge individual interest both lead to an expanding laundry list of sacralized rights that our ideological theocrats can now declare as universally valid. Last week, I heard Tucker Carlson explain that gay marriage is a human right resting on natural affection. This from someone who in other ways has been rightly hailed as a daring critic of the establishment Left.
Since all human beings are, according to natural rights doctrine, “free” and “equal” and since rights are subjective rather than vested in a traditional hierarchically based society, such as we meet in Aristotle’s household or in the ancient or medieval commonwealth, why must the listing of natural rights stop with “life, liberty, and the pursuit of happiness”? Why shouldn’t that list also include gay marriage and gender reassignment? Yes, I can anticipate Anton’s response that natural right, properly understood, also includes biblical and classical moral codes, that is, if one reads jus naturale in the manner in which West Coast Straussians want me to read it. But I’m not persuaded that their gloss is the proper one or that the religious and political tradition of the West in its best and most authentic form is summed up in natural right teachings.
That said, I do not reject the liberal constitutional order to which natural right theorists contributed. What I do reject is the attempt to make the entire American Right fit a West Coast Straussian grid. There should be room for those who like me appeal to historically based traditions in justifying institutions. It is also entirely possible to accept the reality of universal moral norms without embracing natural right theory. I recommend for example the works of the Sorbonne jurist Michel Villey, who wrote voluminously on this distinction. It might also be instructive that Anton and I usually land up in the same place in assessing the modern condition, even if our philosophical starting points differ. Apparently, I and others who think like me have not fallen off the Earth because we treat natural right more skeptically than Michael Anton.
In any case I trust that I’ve exonerated myself of the charge with which Anton begins his essay. That assumes I’m the kind of rightist he had in mind when he wrote: “This new Right is especially hostile to the idea of natural right. It is hostile to it, however, without quite knowing what it is.” I am certainly not “befuddled” by the notion of “right”; nor would I deny that such an entity exists and must be taken seriously. Our difference lies in the degree of significance that we assign to a certain concept of right, namely “natural right.”