We live in a time when more good books and essays have been written on natural law than any time in history. I think of Maritain, Simon, Rommen, Veatch, Finnis, Hittinger, Kreeft, Fortin, Benestad, Rice, Budziszewski, Arkes, Kries, George, Sokolowski, d'Entrèves, and a host of others.
Yet in both the public order and in our private lives, we see natural law receding to transform itself into its opposite. We are quite close in many, if not most, areas to establishing “un-natural ‘natural’ law” as the norm of our morality and civil law.
By the term “un-natural ‘natural’ law” I mean the notion that, if every one or most people do this or that, it must be “natural.” Therefore, any notion of a natural law that would forbid, say, abortion, must be wrong according to “natural law” since so many practice it.
But the natural law principles and logic that identify abortion for what it is, the deliberate killing of a human person, are irrefutable – even if few will acknowledge them. The only real alternative to valid natural law, as many clearly see, is to deny any reason or order in things so that we be free to establish whatever we want by will alone.
The primary intellectual tool that has facilitated this transformation is, ironically, the notion of “human rights.” The spiritual father to this transformation is Hobbes, who gave us the “right” to whatever we judge is necessary for our individual preservation and well-being. The state became the final power to define and enforce these natural “rights.”
Much of the recent natural law literature in Catholic circles is, in fact, devoted to an attempt to reconcile natural law and natural rights. However carefully this reconciliation may have been, it has made hardly any dent on the popular notion that “rights” are what we define them to be in positive law. Thus they bear the same voluntary mutability as positive law itself.
We now see divorce, contraception, abortion, in vitro fertilization, homosexuality, fetal experimentation, cloning, euthanasia, and various extensions of these practices to be proposed and established as “rights.”
Moreover, the civil power of many nations vigorously enforces these “rights.” In some countries, including our own, written constitutions were established as positive, fundamental law in an effort to control and limit the vagaries of what human legislators, judges, and politicians can do. Beyond the constitution, stood the natural law, which was the rule of reason that grounded any human law or constitution.
Thus, no civil or constitutional law simply by itself was just without having first been implicitly judged according to reason. This is the universality of natural law that, as it were, hovers over all national cultures and religions as well as our individual acts.
It is perhaps no accident that the ferment in natural law issues in recent times arises over marriage, its meaning and its consequences. However of late, we see a new area rapidly opening up.
The older discussions of property that revolved around socialism and communism seem rather antiquated. We understand that economic growth is caused by innovation, just laws, profit, the market, bankruptcy, and demand. We have learned that wealth needs to be created and to grow.
The poor were not poor because the rich were rich. They were poor mostly because they did not know how to be rich or because they lived in zero-sum economies that maintained that redistribution was the only worthy social philosophy.
The president has recently proposed the notion that everyone produces wealth. Thus, wealth belongs to everyone not just to those who are said to create it. But the present distribution is not “fair.” The rich have too much. That is the reason why the poor are poor.
Therefore, it is “right” for the government to interfere through tax or other policies to take from the rich and give to the poor. The premise of this position seems to be that of a no-growth mentality.
The normal understanding of economics is that everyone can become richer if an economy grows. If it does not, distribution will be politicized. Envy will become a major factor in status. The government becomes the main arbiter of who has a “right” to what.
This view is a vague repetition of natural law discussions that were found in the history of scholastic economics. The earth was created for everyone. Therefore everyone had a “right” to everything.
With experience, often over discussions about Plato’s communal property, Aristotle’s response was more reasonable. Private property was really in most cases a better way to produce and distribute the goods of all to reach each one individually.
As I see it, the president’s proposal is really a revival of Genesis now presented not by God or reason, but by the state as the primary agent of all human affairs.