What Is Natural Law?

As with negative rights, there’s a lot of confusion regarding natural law. People use the term without much explanation of what it means, and those of us who are not trained lawyers or legal historians don’t want to reveal our ignorance by asking for clarifications. This is my attempt as a non-specialist to explain what it means. Legal minds will object. It’s in their nature to do so.

In the modern context, natural law restricts authority and often seeks to remove it from specific spheres of life. Nostalgia for a time when it was acceptable to espouse a philosophy that limited the ability of government to interfere in the lives of individuals explains why Friedrich Hayek claimed to be a classical liberal—in the spirit of Mill, Tocqueville, and Jefferson—and not a modern-day conservative. I’m not familiar enough with the history of this concept to make any serious claims regarding the relative radicality or divinity of ancient or medieval notions of natural law. I sense only that, much like the modern writers I have listed here, men like Cicero and Aquinas were also offended by the arbitrary imposition of a prince’s will.

As in the case of the defensive, “negative” rights that it champions, a useful way to understand natural law is by way of contrasts between American and European minds.

The U.S. Constitution and the legal traditions it underwrites are the ones more associated with natural law. Until recently, Americans viewed authorities as the potential violators of their rights, whereas Europeans looked to authorities as either the guarantors or granters of their rights. This makes sense historically. Americans established their nation by rebelling against a distant European monarchy, and Europeans, living in a more crowded part of the world marked by ethnic and linguistic differences, have learned to rely on governments as salvific bulwarks against their more proximate enemies.

Similarly, natural law comes into view by contrasting it with positive law. Positive law derives from an authority, usually priestly or princely, which presumes to list our rights for us. Natural law presupposes the existence of our rights and sees authority as nothing more than a final arbiter of conflicts between citizens or, at most, the provider of some modicum of security against criminals or foreign invaders. And even in the latter, more dire situations, natural law restricts or puts a time limit on an authority’s powers. An authority cannot be allowed to use the excuses of fighting crime or waging war to violate our natural rights. Where would it stop?

As far as I can figure out, there are five ways to approach the meaning of natural law: theoretically, empirically, spatially, historically, and consequentially. Each of these represents a layer or step which adds another dimension of understanding. Here are the five components of my explanation of natural law, accompanied by brief comments.

Theory

Natural law is based on a dialogical coordinating principle. This is the theoretical foundation of natural law elucidated by John Locke and then played out to varying degrees by theorists as diverse as James Madison and Georg Wilhelm Friedrich Hegel. A primordial legal arrangement arises naturally, as it were, because in any community of more than one person, the risk of tyranny always exists. Therefore, we agree to limit the power of whoever is in charge.

A first-order conclusion is that in a non-cooperative state of nature, war, or interpersonal estrangement—i.e., in cases of non-recognition and non-community—a simple dictum applies: “might makes right.” But the moment we agree to an arrangement that depends on something besides force, we concede power to the smaller, weaker, or minority position.

The classic American formulation of this idea appears in Madison’s Federalist 51 where two powerful entities agree to respect a third party, what we might today call a “swing-voter,” because they recognize that they will themselves someday be that weaker third party. Neither wants the other two parties ganging up on them. This is slightly more complicated than the “golden rule,” which says we treat others as we wish to be treated. In this case, we agree to limit the power of any authority we may constitute because this is the only way to guarantee that we’ll be treated fairly in the future. Natural law, then, implies a triad. Two strong parties agree that a third weaker party, an absolute minority, will be respected and consulted, not coerced.

The problem with the purely theoretical explanation of natural law is that it’s overly abstract. It only makes sense to most people when considering international relations or reviewing founding compromises like those at the heart of the U.S. Constitution of 1789. Otherwise, it’s hard to imagine wandering through a primordial forest, encountering an unknowable rival, and agreeing with him to respect the rights of some other person who might come along. Theoretical natural law might work as a general model for interpersonal relations, but it’s too epic and theological for daily use. For understanding recent history or contemporary politics it’s probably not useful at all.

On the other hand, when we dig beneath the surface of those legal or policy decisions that seem to signal major shifts in society, we often find a natural compromise at work.

Experience

Natural law also derives from nature; that is, it appears to have a logic that doesn’t depend on any single human’s ability to justify it or apply force to make it real. This vision of natural law is circular and tautological, but it’s no less true for that.

Natural law is, well, natural. As such, it’s independent of its administration. And the reason why a law that functions properly over time always seems sacred, divine, and universal, not foreign, unique, or sui generis, is that it works. This suggests that the reason or the logic for why said law works is somehow previous to its formal codification. We accept rules because otherwise, we’ll be at each other’s throats: Two men agree to respect the right of a woman to choose between them or not to choose at all; a community of families elects a council of elders to make decisions on behalf of everyone else; we respect the space of a household or the objects claimed by each member of a clan or tribe; we recognize that the land worked by an individual or an association belongs to them. Perhaps they should, but such rules don’t instinctively require written justifications.

The tautological sense of this definition of natural law is likely why I’m writing this essay, and it’s probably the most annoying of the five definitions I offer. It’s the one spewed by glassy-eyed, fanatical American nationalists who wave flags and vote in every election. I’ve not always liked it, but I must admit that its simplicity grows attractive with age. If a law doesn’t work, it’s probably not natural. It’s trying to achieve something somebody thought was a good idea, but it doesn’t agree with the way the world works or with the way human beings think and behave.

If you eliminate such a law and people manage to get along without it, you’ve likely embraced a major principle of natural law. Unnecessary laws can be natural, and some natural laws will occasionally fail. But laws that fail always or most of the time are probably unnatural.

Location

Natural law arises at humanity’s interface with nature—i.e., it is recognized, recalled, or required by virtue of living proximate to nature. This is different from the idea that a law works naturally because now we’re specifying that natural law requires a frontier, a real sense that humans live their lives by struggling against the universe and not rooted deep within some overpopulated urban space overflowing with others who are just like us. This vision of natural law requires an external boundary. The recognizable presence of Nature with which citizens interact makes us realize that laws are only good to the extent that they facilitate our interactions with Her and with each other in proximity to Her. In this sense, natural law arises spontaneously at the very site of contact with that which is not already a part of us.

History

Natural law is relatively American because it accords with the historical experience of living beyond the reach of a sovereign power. It’s not redundant to state that Americans came to natural law naturally. This idea isn’t as circular as natural law itself being natural, and it’s not quite the same as merely living proximate to nature. It’s an accumulation of the two in America.

There’s a reason Thomas Jefferson had zero intellectual qualms describing rights as self-evident truths endowed by a creator rather than as gifts won by, or conceded by, a monarch. By 1776, Americans had lived more than 150 years beyond the effective reach of the King of England. Americans, more than Frenchmen, Spaniards, or Englishmen, knew from actual experience that no authority figure needed to be consulted to get on with life. Living on their own for so long, Americans knew which laws were useful and which were not. Moreover—and here is the crux of this explanation—more than mere proximity to nature, what matters are distance from the sovereign and a historical experience of the sovereign’s absence

This approaches the Whig vision of humanity.

This view of natural law attributes its impetus to the Anglo experience of civilization on an island separated from Europe, which included the experience of the weakness of the Roman Empire on that island, as well as the advent of constitutional arrangements among the medieval nobility living on the other side of the English Channel. Add to these historical events: (1) the fact that England separated from Rome during the Protestant Reformation—once again accentuating its constitutional independence—and (2) the fact that the American colonies along the Atlantic seaboard developed yet another separate set of institutions and practices. In other words, living at the edge of formal power is uniquely Anglo, and even if it’s nothing but a series of historical and geographical coincidences, it still confirms natural law more than the historical experiences of any other civilized people.

Effect

Finally, natural law cultivates self-reliance and voluntary cooperation among the citizenry. It’s partly paradoxical, but natural law is designed to promote what would occur naturally without the intervention of a governing authority. Specifically, individual creativity and voluntary associations promote independent actions and local solutions to a society’s problems. So long as we don’t harm others, the effects are assumed to be both natural and good. Once again, the logic is negative. We want to avoid the dependency, sloth, boredom, and social fragility that inevitably result from the uniformity of values, actions, and thoughts imposed by governments. In this lone proactive sense, natural law underwrites independence and personal dignity. Under this type of law, which is more properly a lack of regulation, what we achieve in life is more likely to be our own doing. Therein, we’re more likely to take pride in what we do, more likely to defend what we do, and more likely to want to perfect it and share it.

The Tenth Amendment to the U.S. Constitution exemplifies this type of natural law to the degree that it promotes experimentation. Laws will be enacted but competitive governance exists, and people are allowed to choose different jurisdictions depending on their tastes and experiences. This view of natural law emerges from an overarching legal philosophy that wants to delegate responsibilities and wants to trust individuals and small communities to decide for themselves. Finally, since natural law promotes trial and error, a natural aspect of human behavior, the result favors adaptability and reduces the need for interventions by officious people who can’t possibly know what works best in a particular time and place.

Jorge Luis Borges had natural law in mind when he said that he believed that “over time we will deserve not to be governed.” If we’re prepared to debate our differences, pay attention to what works in life, explore the universe, expand our boundaries, and allow others the freedom to try different solutions, then all our laws will be natural rather than authorized or imposed on us.

Let me conclude with an example of a problematic law that readers will recognize. When small businesses go bankrupt in the U.S., they often experience a problem that gets their owners fined or else lands them in jail. The moment an enterprise that produces a service or product starts to experience difficulties generating a profit, the natural tendency on the part of its owners is to stop setting aside the taxes they’re required to withhold on the part of employees. These taxes—called payroll taxes—are intended to cover the costs of government-run programs like retirement, health care, and unemployment insurance. They’re calculated per paycheck, but they’re paid quarterly. Thus, a natural temptation exists to use them to save a struggling business.

When businesses fail, owners often end up fined or jailed because they’ve skipped paying payroll taxes. They ought to have fired their most inefficient employees and adjusted their business models to make them more profitable. Instead, they hoped for better results and used the payroll taxes to prop up a lost cause. But is it natural for an employer to be held responsible for the well-being of his employees to this degree? And is this mandated paternalism good? It’s not natural to be a parent to people who aren’t your offspring. On the other hand, it’s natural for us to want to protect our fellow human beings from being fired, from retiring without money to sustain their lives, or from getting sick without the ability to pay for medicine. It’s further natural for individuals to avoid the responsibility of setting aside money for a future in which they’ll need it. Finally, it’s natural for business owners to try to resolve a crisis affecting their livelihoods by accessing money set aside for another purpose.

I don’t have the answer to this conflict between natural human desires and behaviors, but a law that creates a situation where people often do the wrong thing strikes me as unnatural. This is the downside of the tendency of governments to regulate the hiring practices of businesses. Unfortunately, the more governments interfere on behalf of employees, the more difficult it is for their employers to exist. This makes people less likely to start businesses in the first place, and it also means that employees are less likely to take responsibility for their own actions by saving, learning, adapting, and planning for their futures, perhaps even opening their own businesses.

Understanding natural law can help when founding or dissolving a nation, and it can help when considering the advisability of local ordinances. It can even help when deciding what actions to take in our own lives. The alternatives—which include letting foreign nations, self-interested politicians, and puritanical neighbors make decisions on our behalf—are not designed to promote our personal development, cultivate our dignity, or fulfill our desires. In fact, they’ll probably make us dependent, cautious, and inept across the board. Would that be natural? I think not.

Author’s Note: For anyone still inclined to read great works of jurisprudence, my thinking about this topic derives from lumbering through John Stuart Mill’s On Liberty (1859), Alexis de Tocqueville’s Democracy in America (1835/40), Wilhelm von Humboldt’s The Sphere and Duties of Government (1792), Alexander Hamilton, James Madison, and John Jay’s essays in The Federalist Papers (1787–88), and Thomas Jefferson’s Notes on the State of Virginia (1785). Clearly, we’re dealing with a concept that reached the zenith of its popularity in the eighteenth and nineteenth centuries and has been declining ever since.

Photo by Jared Gould — Adobe — Text-to-Image