- Of the four approaches to law, only functional natural law theory sees justice as antecedent to orde
- One reason is because other approaches can find no means to justify or disallow civil disobedience; another is that they move moral power from individual agency to authorities, and though divine command thinks that transfer divinely commanded, social contract engages in hypocrisy to obscure it, and legal positivism utterly rejects it.
- In contemporary democracies justified by contract, civil disobedience only becomes legitimate when it gains majoritarian support, which is a practical disincentive for individuals, who are theoretically the moral source of the contract, to engage in civil protest..
- The consequence is that civil disobedience as a practice is as free-floating in contractarian states as the rights whose violation ideally would allow it.
- What is clearly needed if a functional natural law theory is to replace contractarianism is a clear standard for legitimizing acts of civil disobedience; which requires that protest is founded on governmental violations of human rights and the second that all avenues of legal redress have been exhausted.
- Even so, this effort must resolve four structural challenges.
- The first concerns the errors that undistilled experience brings to individuals’ understandings of justice to strangers which are confused with values centered on love of intimates; these errors range from intense tribalism to excessive empathy, none of which characterize civil justice.
- This problem is also founded in historical conditions of divine command, authority, contractarian errors involving the proper role of government, and gross self-interested defenses of tradition as justification for public values.
- Functional natural law theory combats this first error by examining historical and anthropological commonalities among societies to build a catalog of universal human needs that are transcultural, timeless, and incommensurable.
- A second problem is to disentangle these needs from the immensely varied means that cultures use to satisfy them so that the naturalness of the need can be separated from the conventionality of the cultural practice that seeks to satisfy it.
- A third problem requires establishing a range of individual variance that law will tolerate as individuals seek satisfaction of their needs; this can be understood as healthy variance so long as the incommensurability of needs is respected.
- The fourth problem is the tentativeness of any conclusions that even a competent inspection of ultimate human concerns can delineate, for such an enumeration cannot be empirical and is bound to be challenged as fiat justified only by authority rather than as a rational conclusion judged true by a preponderance of available evidence; this problem appears insurmountable until the deficiencies of the other three legal axioms are recalled.
- A review of the strangulation of a needs/rights theory, first by religious authority and then by contractarianism allows us to understand the entanglements that hinder contemporary understanding.
- The last three centuries have seen an undulating progression of rights theories that thoroughly confuse natural, human, and civil rights; postmodern objections to all institutional authority have both freed rights theory from its historical connections and demonstrated more than ever a need to justify civil disobedience by some standard of value.
In a previous essay (“Foundations of the Law: An Appetizer”), I examined the four traditional justifications for the law, finding unambiguous support for rights only in the warrant that recognizes them as morally and chronologically antecedent to the demands of order. Functional natural law theory is a unique view of political organization because it ties pre-existing rights to justice, which it defines in the traditional manner as “to each her due.” It rejects the claims of divine command and legal positivism that provide no means to justify civil disobedience. We see echoes of these positions in the admonition to obey legal authority unequivocally because it represents god’s will or settled law. But such inflexibility provides no opportunity for individual conscience or minority claims against that very law, nor does it erase the sense that law exists as a authoritarian implement of power, institutional or divine. Neither of these authorities — or more accurately their representatives — has the power it once could claim because of the more generalized failures of authority and the postmodern sense that power is inherently exploitative (see “The Fragility of Religious Authority” and “Postmodernism Is Its Discontents”). Some of the defenders of a fourth and most popular justification for legality, social contract theory, argue that it makes space for rights. It is possible that constitutions and compacts might institutionalize opportunities for individual and minority rights, but nothing in the nature of social contract theory makes that possibility more than one option among many (see “Natural and Political Rights“). The consequence is that contractarians view the morality of civil disobedience as an issue of critical mass: a movement gains legitimacy when it persuades sufficient numbers of citizens to support it and thereby gains the attention of the majority. In this it echoes the moral system of utilitarianism, unsurprising in that theories of utility arose contemporaneously with theories of social contract (See “Three Moral Systems“).
But isn’t this notion of majoritarian warrant unsatisfactory? Can we really defend the notion that Martin Luther King’s appeal to civil rights only achieved legitimacy after the Civil Rights Act of 1964 was passed? If not then, when? On what grounds did King’s movement attract its first followers? Are we to think the King’s appeals had no moral legitimacy when he spoke to one hundred parishioners of the Ebenezer Baptist Church in 1948 and only gained it when he spoke to half a million in Washington in 1963? If numbers legitimize legal power, then how could the “rights” of any minority be protected, much less individual dissent?
It seems clear that any notion of civil disobedience must first delineate the rights whose violation justifies acts of resistance. Functional natural law theory argues that civil disobedience is just when two conditions exist. First, the human rights of any individual have been intentionally violated by civil functionaries regardless of positive law. Second, legal recourse to redress the grievance has been exhausted. The first condition eliminates the kind of offenses resulting from external circumstance rather than legal power, the lack of resources that produce famine, for instance. The second links acts of civil resistance to the sophistication of legal processes designed to reveal and repair violations of rights. So a mature democracy might have built-in mechanisms of recall, referendum, and initiative or capable judicial systems that allow citizens to challenge governmental power that less functional governments might omit, resulting in a delay of protest in the former case and an acceleration of what positivists call criminal action in the latter. I have in mind the contrast between the march on Selma in the U.S. led by Dr. King in 1964 and the attacks by Mr. Mandela’s followers on the South African police beginning in 1976. But even if we apply these two conditions, ambiguities abound. It is no small thing to break the law.
Let us eliminate the confusion resulting from justifications for law that make no provision for the existence of rights in themselves and so discard divine command, social contract, and legal positivism in favor of a functional natural law (FNL) theory (Functional Natural Law and the Legality of Human Rights“). Still, even when we begin our justification for law by enshrining rights as foundational, where do we place the moral boundaries of civil disobedience in pursuit of rights?
As far as I have been able to discover, the answer to that question depends on our answer to another that defines the origin and therefore the extent of rights. And this plants us in a swampy history. The progression of rights theory has been anything but linear, which helps explain the wide variations in delineating them.
It is ironic that we can credit Aristotle’s Nicomachean Ethics with both establishing the preconditions of FNL and for illustrating its structural challenges, of which I will focus on four.
As a political philosophy, FNL nests itself in a lovely matrix of ontological and epistemological structure (see “A Virtue Ethics Primer” and “What Do We Mean by ‘Good’?” and on much more recent neurological studies utilizing functional magnetic resonance imaging and computational models developing artificial intelligence. Viewed in that larger context, FNL is but the public expression of a private moral theory, virtue ethics, a model deeply rooted in experience. Whereas virtue ethics is a personalized moral system suited to private interactions, FNL theory is a public morality governing interactions among strangers as individuals and citizens. On the virtue ethics side, individuals exercise moral and intellectual virtue to develop habitual dispositions to prefer the satisfaction of true needs involving themselves and the family and friends they love. On the FNL side, those same individuals bring those same virtues to their interactions with individual strangers and with government, the collective will of strangers writ large. The governing principle in these interactions is fundamentally different from those based on love. They are built upon a foundation of justice: respect for human needs as synonymous with human rights.
But the same experiential basis that grounds this structure in reality introduces errors in judgments, for undistilled experience is an unreliable guide to truth and goodness (see “What Counts as Justification?“). Aristotle is notorious for thinking slavery, misogyny, and xenophobia normative simply because they existed in every society he observed. It is tempting to regard what seems universally experienced as a timeless constant of nature, which only goes to show that the balance between what we do and what we should do is never easy to warrant by a preponderance of the evidence. This objection has particular resonance for natural law theory that originated in an atmosphere of religious authority grounded upon long tradition. By that reckoning, any change to tradition or any challenge to doctrine is likely to be regarded as a violation of what is natural, so long as “natural” is defined as all that is now normalized. But this conception is just another phrasing of divine command or absolute political authority rather than one founded in the needs of an unchanging and species-specific nature. These needs cannot be reliably recognized or championed by present practice, for most of the last century has demonstrated that present practice is precisely what violates needs. “Natural law” advocates who embrace tradition are more likely pre-modernists seeking to warrant by reason what can only be warranted by reason’s surrender to authority (see “Authority, Trust, and Knowledge“). Traditional natural law must always be founded upon trust in authority, which is another way of saying a forfeiture of the very rational agency necessary to submit cultural and political practice to individuals’ reasoning. FNL does not seek trust but rather sanction, the active approval by moral agents, citizens, in pursuit of the satisfaction of their rights. A moral outlook that privileges our “natural” inclinations over moral duty tends toward subjectivism and emotivism whereas one that ignores our proclivities leads us into a sterile duty ethic. The trick is to acknowledge our desires without kowtowing to them and in that act of discrimination find a convincing motivation for self-improvement. FNL theory is unique among the four warrants for law in that it is grounded neither in purely conventional arrangements nor in decrees justified by absolute authority but is instead built up from the aggregate of real persons’ actual experience and exists to allow the equitable satisfaction of their human needs. So how could Aristotle have regarded practices we now regard as abhorrent, such as slavery and oppression of women, as morally acceptable merely because they characterized all two hundred states that he examined in composing his moral theory? More to the point, if the universality of a practice is an indicator that it is “natural,” on what grounds can it be condemned as immoral?
This is the first issue natural law has to resolve. It does so by beginning not with the practice but with reasoning about what need it serves to satisfy. For instance, education of young people to prepare them for productive work is a universal practice that serves vital human needs. No justification can exist to deny that education to any person anywhere. Such denial would constitute a violation of rights. To deprive a person of this need because of gender, class, race, or religion would be tantamount to classifying that person as less than human. Love and friendship are also universal needs, and if that love is expressed in manners rejected by tradition — miscegenation, inter-religious marriage, and homosexual unions come to mind– the test of its morality cannot be that rejection but must instead by whether it satisfied an identifiable human need without violating others. As human needs are incommensurable, they can be neither ranked in importance nor haphazardly satisfied. All are necessary. Those instinctual human proclivities whose satisfaction would violate any need are flagged by reason as contradictory to human flourishing, and that contradiction is or should be sufficient to reject them in either private behavior or public law (see “Needs Anchor Morality“).
A related problem for FNL theory involves variations in practices between cultures. Rights devolve from needs, and needs reveal themselves in particular social arrangements that vary by time and place. The problem then becomes how to tease out universal needs from the varied cultural practices that satisfy them. Concerning the need for education, we see this issue playing out today in regard to controversies involving child labor, particularly in traditional agrarian cultures. For generations, children assisted their families in farm work both as contributions to their welfare and as a form of practical education. Is child labor of this type exploitative? Answering this question is less difficult than it might seem if we embrace an ethic that grounds a common moral framework firmly to universal reason applied to varied cultural means to satisfy needs. If the work load is tailored to the child’s age and abilities, if this kind of traditional education will still apply to her culture once she is grown, and if her other needs are also being met, such an education can indeed be regarded as a culture’s means of satisfying the universal human need for skill. Consider all the ways children have been and are educated in our world today. The more insular our experience, the less likely we are to recognize both the universality of needs and the imposing variety of means cultures have adopted to meet them, and this alone should be an incentive to wide exposure to other cultures. Respect for cultural diversity is certainly warranted so long as customs prove innocuous. For example, no people’s cuisine is superior to another’s so long as all satisfy human nutritional needs. But of course they don’t, so the superiority of Mediterranean and Asian diets to American practices is or should be accepted as a signpost not only to physical but also to moral health. Beginning with such universal needs provides the psychological grounding in reality that moral systems require while considering their satisfaction as moral duty elevates our preferential freedom beyond simple and private preference (see “The Problem of Moral Pragmatism”).
A third problem for the moral theorist seeking to ground ideals in observation of experience involves not variations between cultures but rather variations within them. Cultural arrangements are adapted to the natural differences of the individuals who enter into them, introducing further variability into practical moral reasoning. Aristotle regarded normalcy as a term of statistical rather than moral judgment, as his famous observations on left-handedness demonstrate (his judgment has been adapted in the current climate to champion equality for the LBGT community). His astute comment that anyone living outside of society must be either god or beast acknowledges the range of social engagement his observations revealed. But even acknowledging for a spectrum rather than a precise prescription of good practices, we still face a counter-intuitive boundary in cultures now wide open to individual preference. Just as we might see a range of healthy foods within a much wider range of habits of consumption, Morality must limit consumption to the healthy rather than the cultural range, the dividing line at the point where cultural practice adversely impacts health or other needs. Obsessive concern with diet, nonstop working out at the gym, running through injuries: these practices are as unhealthy as those of the workaholic. They take a good thing too far, interfering with other goods and violating the incommensurability of needs, satisfying some at the expense of others. That is a moral error. It seems self-evidently wrong to tell a person who is perfectly content living a solitary life that she lacks an essential component of happiness, yet this is what virtue ethics will tell her. This counterintuitive judgment is based on the totum bonum conception of human flourishing that refuses to define the goal of human existence in terms of contentment. Extreme introverts know they need to make themselves uncomfortable by engaging social encounters despite their awkwardness. The reason is obvious. On the other hand, virtue ethics also recognizes the myriad ways individuals can satisfy their needs, which opens possibilities for cultural diversity in the application of FNL theory denied to other theories of law. Cultural practice that satisfies needs should be privileged by law or custom over those that frustrate them and also over neutral practices whose perhaps unintended consequence involves denying some the satisfaction of their needs so that others might obtain the satisfaction of their desires. This subject also involves the distinction between positive law and custom, limiting legal prescription to those common goods that persons are unable to obtain by their own efforts as a reasonable person might define them, though cultural mores might dictate more or less charitable efforts to ameliorate the condition of strangers without employing the coercive force of law.
The three issues mentioned above– universality, cultural difference, and individual difference– all require a fine-tuned examination of needs and the many ways they can be met. This examination poses a final, macroscopic problem. As the failures of the human sciences of psychology and sociology have more recently revealed, we could hardly consider even Aristotle’s careful observations of human society to rise to the level of scientific validity (see “The Calamity of the Human Sciences”). For all its valuation of reason as the defining characteristic of human beings, FNL theory can make no appeal to our culture’s most esteemed warrant for truth claims. It is not scientific. No moral theory can be, for morality concerns itself with questions of goodness that no empirical methodology can answer. Without recourse to scientific verification, any moral theory is hobbled in this age of science worship, but even leaving status issues out of it, natural law theory can at best appeal to a competent inspection of ultimate human concerns to warrant its claims, and Aristotle’s errors on that count should caution us to consider it warranted at best by only a preponderance of the evidence. Surely, its three competitors could claim no more and, as mentioned, can offer no integral defense of civil disobedience.
These difficulties for natural law theory were compounded by historical developments that modified their rational warrant. Fleshed out by the Epicureans and the Stoics in the classical age, the theory shed some of Aristotle’s caste worship as it explicitly tied itself to universal human reason, inclining toward history’s first intrinsically democratic moral structure. The great Stoic Epictetus was a freed slave who saw reason as an inescapable basis for moral and political participation. Unlike Christianity, which saw acceptance of morality as a conscious choice leading to damnation or salvation, Stoicism regarded rational moral valuation as something all persons must participate in, either well or badly. It is unsurprising that Christianity embraced elements of Stoicism into its dogma, but in doing so the warrant for moral choosing devolved from reason to authority. Late medieval theorists sought to reconcile authority and reason, but without success, for their modes of warrant are incompatible (see “Religion and Truth”). It still seems jarring to read Aquinas’s towering logical arguments built on the shaky foundations of the authority of Church fathers. Thus divine command swept away the Stoic’s attachment to reasoned experience as a foundation for ethics and law. More’s the pity.
The crisis of justification that changed everything was the Protestant Reformation. It was a kind of nuclear winter of warrant, a societal collapse whose pathology tainted every truth, goodness, and beauty claim previously warranted by the authority of church and God (see “Premodern Authority”). It should be unsurprising that the first revival of rights theory should be tinged with divine command. Members of the Roundhead army led by John Lilburne made claims for natural rights rooted in Biblical authority as early as 1641. But as was so typical during even the last horrific chapter of Reformation history, the tangle of authority and reason as warrant could not as yet be untied, and Lilburne’s appeal to the Levellers subsided into the general chaos of the English interregnum.
It was resurrected, after a fashion, by the social contract theorists who finally succeeded in separating political justification from divine command beginning in the 1660’s (see “Why Invent a Social Contract?”). But in seeking a myth to derive political power from the people, thinkers like Hobbes, Locke, and Rousseau removed their faith from the Bible and placed it in a spurious state of nature in which “rights” were taken to mean “license.” For these contractarians, our natural freedom gave each of us unlimited rights over ourselves and our property, and everyone else’s too. This trampling of definition still confuses contemporary understandings of rights and results in the mistaken notion that rights can be conferred by constitutions and compacts and that they can be both specified and limited by such documents and traditions (see “Natural and Political Rights”). It also introduced the lamentable and erroneous conclusion that the establishment of government of itself requires the surrender of natural rights to secure protection, the degree of surrender to be specified by contract. This notion compares most unfavorably to the FNL justification that sees political organization as a natural means of satisfying needs and so as a guarantor of rather than a threat to our rights. Jefferson only perpetuated the contractarian error. He thought rights derived from our earliest tribal political associations and that their legitimacy stemmed from their traditional and consensual nature. This view was dangerous, for it gives a culture an unlimited capacity to grant or revoke rights dependent on its constituents’ values, a view entirely consistent with the social contract theory Jefferson embraced but far removed from the classical Stoic position of inviolable natural rights rooted in universal and individual reason. In his view of rights, Jefferson seems more than usually confused, for he bemoaned the overthrow of Anglo-Saxon tribal customs by the Normans as a violation of natural rights. Yet the customs that led to the Magna Carta were as much Norman as Saxon, though neither tradition recognized natural rights as universal and, being blended, could hardly have rooted them in tribal custom. It need not be added that the author of the Declaration of Independence and the “inventor” of the only three “rights” most Americans can name did not recognize them as universal either, despite his claim that they applied to “all men,” or at least three-fifths of all men.
Add these historical confusions to the definitional issues implicit in defining rights discussed earlier, and you can easily see why delineating rights may seem a pretty squishy enterprise. Eleanor Roosevelt gave it a go after World War II, and indeed, the United Nations Declaration of Universal Human Rights of 1948 stands as a monument to the articulation and enumeration of human rights. It is far from perfect, as must be all things assembled by a committee, but it succeeds at deriving rights from needs and in seeing the hallmark of needs as universality, perennially present regardless of culture or epoch. Granted, it too often mistakes instrumental goods for the moral goods they are used to satisfy: e. g. the demand for vacation time for the world’s workers is the instrumental need that reflects the moral need for adequate time for recreation as a means to the need for health, better served by limiting working hours for the world’s workers. But I daresay that if persons think about what they are saying when they defend “human rights,” they are probably thinking of this document.
Or maybe they aren’t. Postmodern political theory invokes a conventional source of rights heavily indebted to contractarian framework yet committed to a positivist conception of law as morally neutral and justified only by power. It is not pleasant to watch persons holding this position attempt to square cultural practice with human rights. Should they defend the deeply traditional “mini-narratives” of honor killings and ritual female castration on anti-imperialist grounds or the universal rights of feminism and freedom of religion that challenge cultural tradition? While their distrust of established power relationships might move them to wholesale approval of civil disobedience, postmodernists must also admit that not all flouting of law is equally admirable (see “Postmodernism Is Its Discontents”).
Finally, one more differentiation of terms needs to be added. Natural Rights are the means through which human rights are recognized and chosen. We need life and liberty to exercise the preferential freedom that is the uniquely human prerogative and the source of universal human dignity. Natural rights allow the operation of natural freedom, the inevitable recognition of choice in experience (see “Our Freedom Fetish“). These rights open us to the preferences that fulfill our universal human needs, whose full satisfaction is the human right of every person. Civil rights are those circumstantial freedoms enshrined in law that reflect a positivist specificity peculiar to each jurisdiction. Their connection to human rights is clearly derivative. The best definition of justice is “to each her due.” Since the sole role of government is to deliver justice to its citizens, the determination of what is due is entirely dependent on the human rights of the citizenry; these rights translated into positive law dictating contributive, retributive, and distributive justice. FNL theory holds as foundational the moral principle that such rights cannot be abrogated, and that depriving any citizen of these rights violates justice and thus the purpose of government. This radical respect both defines the grounds for just civil disobedience and legitimizes individuals and minorities in actions to defend or procure their rights.