Defining Characteristics of Natural Law
"Natural
Law" is a name used to refer to one or more of the following
beliefs:
- All individuals are entitled at birth to certain "natural
rights" that guarantee their personal safety and property.
- All human beings are endowed with reason so they are able
to distinguish right from wrong.
- Human beings sometimes enter into a "social contract"
to form an association/ government that will protect the life
and property of the members and promote their welfare.
- When a ruler or legislature acts against the welfare of the
people, the government no longer deserves the submission of
the people.
"Nature" and Law in the Sixteenth and Seventeenth
Centuries
The English Side of the Story
Although the existence of some form of "natural law"
had been accepted through most of Anglo-American civilization,
it was interpreted quite differently in those earlier days. The
particular way in which "natural law" was defined also
usually reflected the concerns of the person or group using the
phrase.
As far back as 1598, we see James I writing a pamphlet promoting
the importance of a strong monarchy and using natural law to support
his claims. In the opening passage, he tells us he will base his
arguments on three things: the idea that "Monarchie is the
trew paterne of Diuinitie"; "the fundamental Lawes of
our owne Kingdome"; and "the law of Nature." The
title alone is enough to tell us how James interpreted natural
law. The
Trew Law of Free Monarchies: or The Reciprock and Mutual Dutie
Betwixt a Free King, and His Naturall Subiects suggests that
it is the the king who is "free", while it is only "natural"
that the rest of the people are "subjects."
In the "Trew Law of Free Monarchies," James insisted
"although I have said a good king will frame all his actions
to be according to the law, yet is he not bound thereto but of
his good will." However, as the years went on there were
recurrent outbursts from writers, printers, theologians, religious
groups, politicians, and others who argued that there was a natural
limit to the authority of the kings, and that the people were
entitled to some fundamental rights. John Milton helped lead the
charge with works such as the one depicted below. Once again,
the title says it all.
 |
The
Tenure of
Kings
AND
Magistrates
Proving
that it is lawful, and has been
held so through all ages, for any,
who have the Power, to call to account a
tyrant, or wicked king, and after
due conviction, to depose, and put
him to death; if the ordinary
magistrate has neglected, or
denied to do it.
And that they, who of late so much blame deposing, are
the men that did it themselves. |
(A
version with notes is available at the Milton
Reading Room) Little wonder that American supporters of liberties
referred so often to Milton in their writing!
The American Side of the Story
Americans did not necessarily start out as proponents of the
kind of natural freedoms that cultivate individualism. Although
the Puritans who came to America sought to escape the religious
strictures of the king and parliament, they saw political and
social hierarchies as an important part of the natural order.
"A
Modell of Christian Charity," was written in 1630 by
John Winthrop on the ship Arabella as he travelled with his fellow
Puritans towards what would be their first settlement in America.
It is interesting, then, that the text opens with the following
pronouncement: "God Almighty, in his most holy and wise providence,
hath so disposed of the condition of mankind, as in all times
some must be rich, some poor, some high and eminent in power and
dignity, others mean and in subjection."
Additionally, while the Puritans regarded it as "natural"
that human beings should seek liberty, this was was a source of
concern for them. rather than celebration. The same John Winthrop
who had attempted to provide leadership on board the Arabella
was later chosen as governor general of Massachusetts, and in
1645 he found himself on trial for exceeding his authority. Winthrop
did believe that the people had a natural right to choose their
own leaders, saying, "The great questions that have troubled
the country are about the authority of the magistrates and the
liberty of the people. It is yourselves who have called us to
this office, and, being called by you, we have our authority from
God "Upon his acquittal, Winthrop made a short speech in
the courtroom (now sometimes published under the title "On
Liberty") warning his fellows of the dangers of unchecked
freedom:.
There is a twofold liberty, natural (I mean as our nature is
now corrupt) and civil or federal. The first is common to man
with beasts and other creatures. By this, man, as he stands
in relation to man simply, hath liberty to do what he lists;
it is a liberty to evil as well as to good. This liberty is
incompatible and inconsistent with authority and cannot endure
the least restraint of the most just authority. The exercise
and maintaining of this liberty makes men grow more evil and
in time to be worse than brute beasts: omnes sumus licentia
deteriores. This is that great enemy of truth and peace, that
wild beast, which all of the ordinances of God are bent against,
to restrain and subdue it. The other kind of liberty I call
civil or federal; it may also be termed moral, in reference
to the covenant between God and man, in the moral law, and the
politic covenants and constitutions amongst men themselves.
This liberty is the proper end and object of authority and cannot
subsist without it; and it is a liberty to that only which is
good, just, and honest.
In other words, Puritans often distrusted "natural"
impulses that they regarded as an expression of brutish impulses
and believed in the importance of "civil" liberty to
provide order. However, this way of thinking about nature saw
God as putting his imprimatur not on a king (who would serve as
God's representative) but instead on those chosen by the people.
Early Proponents of Modern or Enlightenment Natural Law Philosophy
When you encounter the names of those who played a major role
in the development of natural law theory, you can be sure that
the text is building an argument based on those principles. Hugo
Grotius (1583-1645) is sometimes described as the founder
of the modern theory of natural law; another major contributor
to the development of modern natural law concepts is Samuel
von Pufendorf (1632-1694). Over the course of the seventeenth
and eighteenth centuries, natural law theory gained respect among
Englightenment thinkers and was often used to defend religious
freedom in England as well as American civic and religious liberties.
Enlightenment Theories of Natural Law
With the rise of the Enlightenment, the Calvinist view that human
beings needed to struggle against their animalistic tendencies
was gradually eclipsed by a more optimistic vision of human beings
as creatures of reason. When we try to understand the role of
natural law philosophy in the debate between England and America
in the revolutionary era, it is probably most useful to consider
the theories of Algernon
Sidney,
J.J. Burlamaqui (1694–1748, Swiss jurist), Thomas
Hobbes, and especially John
Locke.
Algernon
Sidney, in his 1698 Discourses
Concerning Government, offers a standard definition of one
of the first principles of natural law theory when he writes that
"man is naturally free; that he cannot justly be deprived
of that liberty without cause, and that he doth not resign it,
or any part of it, unless it be in consideration of a greater
good, which he proposes to himself." Similarly, Locke states
clearly his Second
Treatise of Civil Government (1690) :
every man has a property in his own person: this no body has
any right to but himself. The labour of his body, and the work
of his hands, we may say, are properly his. Whatsoever then
he removes out of the state that nature hath provided, and left
it in, he hath mixed his labour with, and joined to it something
that is his own, and thereby makes it his property.
According to this way of thinking, when people choose to join
a society or form a government, the purpose of that organization
is to protect and promote the good of the participants. As John
Locke writes his Second
Treatise of Civil Government (1690): The great and chief end
. . .of men's uniting into commonwealths, and putting themselves
under government, is the preservation of their property."
Thus, according to this philosophy, any group has the right to
withdraw from a government if it is failing to look after their
best interests. As Locke explains in Section 222 of Chapter 19:
The reason why men enter into society, is the preservation
of their property [so] whenever the legislators endeavour to
take away, and destroy the property of the people, or to reduce
them to slavery under arbitrary power, they put themselves into
a state of war with the people, who are thereupon absolved from
any farther obedience, and are left to the common refuge, which
God hath provided for all men, against force and violence.
In section 233, Locke goes on to apply the same reasoning to
monarchs, arguing that
If the king shall shew an hatred, not only to some particular
persons, but sets himself against the body of the common-wealth,
whereof he is the head, and shall, with intolerable ill usage,
cruelly tyrannize over the whole, or a considerable part of
the people, in this case the people have a right to resist and
defend themselves from injury . . . .
This reasoning directly contradicts the belief in the absolute
right of kings.
Enlightenment Natural Law and the Founders
The works of Locke, Sidney, and other proponents of natural law
were familiar to many of the founders. In fact, James Otis, John
Hancock, Samuel Adams, Joseph Warren, John Adams and other revolutionaries
who attended Harvard College would have studied the work of Locke
and J.J.
Burlamaqui's 1748, The Principles of Natural Law as part of
the required curriculum. In addition, many of the founders would
have been familiar with John Trenchard's and Thomas Gordon's:
"Essays on Liberty, Civil and Religious, and Other Important
Subjects" most often referred to as "Cato's
Letters." Certainly, the frequency with which patriot
writers referred to natural rights philosophies and philosophers
suggested that these ideas shaped the way the founders thought
about the world. (Anyone who doubts that natural rights thinkers
had an effect on American thinking may find it intersting to see
this example from one
reader who thinks Jefferson was a little too indebted to Locke.)
We know from the records that survive of town meetings and other
gatherings in the 1770s that the principles of natural law were
widely understood and accepted. So how did "ordinary"
Americans who did not have the benefit of advanced education become
familiar with this Enlightenment political philosophy? Interestingly,
they may have first become acquainted with these principles as
they listened to sermons in their churches that warned of the
threat to religious liberty represented by too powerful legislatures
and kings. Underlying the series of conflicts and agreements that
had gradually expanded English rights beginning with the Magna
Carta was a serious debate over religious rights. Thus, it is
not surprising that ministers played a role in the discussion
of natural rights theory.
The pastor of Boston's West Church, Jonathan Mayhew, for example,
preached a sermon in 1750 entitled “A
Discourse Concerning Unlimited Submission and Non-Resistance to
the Higher Powers (or see the "Discourse"
at the Founders Library) in which he proclaimed:
if the end of all civil government, be the good of society
. . . and if the motive and argument for submission to government,
be taken from the apparent usefulness of civil authority; it
follows, that when no such good end can be answered by submission,
there remains no argument or motive to enforce it.. . . And
therefore, in such cases, a regard to the public welfare, ought
to make us withhold from our rulers, that obedience and subjection
which it would, otherwise, be our duty to render to them.
Another example of this kind of argument can be found in Samuel
West's 1776 sermon, “On the Right to Rebel against Governors."
(For a fuller discussion of the role played by religious leaders
in the revolution, see "Religion
and the Founding of the American Republic: III. Religion and the
American Revolution.")
The colonial press also played a key role in circulating the
principles of natural law in the decades leading to the revolution..
Books by French proponents of natural law, for example, were available
for sale and were also frequently quoted in newspapers. "Before
the close of the [French and Indian] war, we find The Boston
Gazette printing extracts from Montesquieu’s Spirit
of Laws, with an apology and the expressed hope that it may
not be 'political Heresey' to suppose that 'a Frenchman may have
juster Notions of Civil Liberty than some among ourselves.' ("Colonial
Newspapers and Magazines, 1704–1775: 9 The Vogue of French
Radicalism," The Cambridge History of English and
American Literature in 18 Volumes (1907–21). VOLUME
XV. Colonial and Revolutionary Literature; Early National Literature,
Part I available online through Bartleby.com).
Key Terms
If you see any of the following references or terms in a text
from the revolutionary era, consider whether the author is using
this argument: natural law, law of nature, nature's law, reason,
rational, sense or common sense, Grotius, John Locke, Algernon
Sidney.
Proponents of natural law often use the following words when characterizing
the opposition: bias, prejudice, unreasonable, superstition.
A Primary Source Exercise
See Also:
For brief descriptions of the Enlightenment see the entries in
The Encyclopedia
of World History, The
Columbia Encyclopedia, The
Oxford Companion to Philosophy, "Enlightenment"
at www.philosopher.org.uk
and a Study
Guide to the Enlightenment constructed by Professor Paul Brians
of Washington State University.
Summary
of "Natural Rights" in the Declaration of Independence
The
Elements of Law Natural and Politic by Thomas Hobbes, 1640
Summary of
Constitutional Rights, Powers and Duties -- This page from
The Constitution Society makes a clear distinction between the
"natural rights" of the individual and the rights a
person is granted by virtue of being a citizen of the United States.
