Natural law is often regarded with suspicion by social scientists because they conceptualize human nature, and increasingly even the nature of animals, as a social construct. In their view there is no essential human nature by reference to which we can decide what is in the best interests of society. They argue that we must instead adopt an aspirational approach, by constructing a better and fairer world for the planet, and by discovering what is best for society through a process of scientific experimentation. From that perspective notions of “right” and “wrong” are nothing more than majority opinions ascertained through democratic debate and agreement, and it would be hopelessly arbitrary and subjective to decide right and wrong by reference to some “higher” law called the law of nature.
In The Ethics of Liberty, Murray Rothbard rejects these perspectives, arguing that the skepticism with which natural law is generally regarded is entirely misguided. Rothbard observes that,
Among intellectuals who consider themselves “scientific,” the phrase “the nature of man” is apt to have the effect of a red flag on a bull. “Man has no nature!” is the modern rallying cry and typical of the sentiment of political philosophers today was the assertion of a distinguished political theorist some years ago before a meeting of the American Political Science Association that “man’s nature” is a purely theological concept that must be dismissed from any scientific discussion.
Legal positivists are particularly keen to extinguish the idea that law is based on moral principles. Similarly, many utilitarians evaluate law based on its consequences for society, not based on morality. The debate in the UK about decriminalizing “assisted suicide” is an example of the desire to avoid theological or moral influences in debating law reform. It is no longer a crime in the UK to commit or attempt to commit suicide, so there is no law to prevent anyone committing suicide should they wish, but anyone assisting another to commit suicide risks being prosecuted for the crime of “encouraging or assisting suicide” under the Suicide Act 1961 or even, in serious cases, the crime of homicide. Thus, decriminalizing assisted suicide would establish that it is not unlawful to assist suicide, and supporters of assisted suicide argue that “moral” considerations should not enter the decriminalization debate.
The biblical edict, “Thou shalt not commit murder,” for centuries sufficed for many people as an explanation of why murder is forbidden. It has therefore long been assumed that any argument that murder is “wrong” in the moral sense must necessarily be a religious principle. This explains why any attempt to introduce “moral” arguments into the assisted suicide debate is then treated as an inappropriate attempt to introduce theology into the law. Religious principles are, of course, only binding on their own followers, therefore, in a secular age, it is deemed preferable to say that murder is illegal and that the reason one must not commit murder is that the law prohibits it.
In this example, reformers in favor of decriminalization dismiss their opponents’ arguments as “moral” arguments, insisting that only arguments that can be justified without stating that assisted suicide would be “wrong” in the moral sense would constitute a valid objection to their proposals. But the strongest arguments against legalizing assisted suicide that are advanced by disability groups and by professional bodies including the World Medical Association are moral arguments, even though they are patently not religious. Moreover, supporters of legalization themselves use moral arguments to support their case, chiefly that we ought to respect an autonomous choice to kill oneself and obtain assistance to do so, and that society has a moral duty to end suffering. Hence, the former Lord Chief Justice, Lord Judge, observed that whether to decriminalize assisted suicide is the “the great moral and legal problem of our times.”
Conflating morality with religion, in an attempt to exclude moral arguments from public debate, is therefore mistaken. The view that something is “morally wrong” is not, in itself, a religious view. The fact that many people are religious and may base their personal moral principles on their religion does not mean that all moral principles are based on religion. Nor does it mean that secular moral principles should be understood as a Dawkinsian-style “cultural religion,” in which religious views are adopted for cultural reasons with the deity conveniently excised. After all, one need not be religious to embrace the Christian edicts, “Thou shalt not steal” or “Thou shalt not commit murder,” and it is this sense that Richard Dawkins could, without contradicting himself, express his admiration for Christian principles despite being an atheist:
“Perhaps to the surprise of many, Richard Dawkins, famed “New Atheist” of yesteryear, in a recent radio interview called himself a “cultural Christian.” He was quick to clarify that he is “not a believer” in the actual teachings of Christianity, but nonetheless told the interviewer “I love hymns and Christmas carols, and I sort of feel at home in the Christian ethos. I feel that we are a Christian country in that sense.”
This leads many wrongly to assume that reference to moral principles is some sort of “cultural theology” in which divine principles are adopted without explicit reference to the divine. They fail to appreciate the clear analytical distinction between moral principles and religious edicts.
Reason and rationality
Against that background, Rothbard’s analysis of natural law may be understood as part of a natural law tradition that attempts to identify principles of natural law based purely on reason, entirely distinct from principles derived from “divine law.” Rothbard rejects the idea that “natural law and theology are inextricably intertwined.” In his view, natural law based on reason is not a set of subjective religious or ideological opinions, but a set of objective principles derived from human nature.
Nor is natural law a set of cultural norms comprising religious principles with the deity conveniently expunged in the Dawkinsian sense. Rothbard rejects the claim that, through the natural law, “God and mysticism are being slipped in by the back door.” He is clear that natural law, in the tradition he draws upon, is “purely rationalistic and non-theological” and he insists on the “absolute independence of natural law from the question of the existence of God.”
The principles of natural law are not derived in any way from theological principles, but by an independent process of “reason and rational inquiry.” Natural law in this tradition emphasizes “the ability of man’s reason to understand and arrive at the laws, physical and ethical, of the natural order.” Rothbard explains that “the instrument by which man apprehends such law is his reason – not faith, or intuition, or grace, revelation, or anything else.”
The natural order, in which human nature must be understood and contended with, is therefore central to Rothbard’s account of the natural law. Natural law is based on reality, including the reality of human nature, and rejects the modern social-scientist notion that reality is a social construct which can be anything people choose it to be. Rothbard quotes Thomas E. Davitt:
If the word “natural” means anything at all, it refers to the nature of a man, and when used with “law,” “natural” must refer to an ordering that is manifested in the inclinations of a man’s nature and to nothing else.
Rothbard emphasizes that nature is by no means a “mystical” or “supernatural” idea, but refers to the attributes of things that can be identified by observing cause and effect: “The observable behavior of each of these entities is the law of their natures, and this law includes what happens as a result of the interactions” – referring here to the interactions that occur “when these various things meet and interact.” In that sense, being manifested in human nature, the principles of natural law are universal and objective.
The fact that natural law is universal matters greatly. It explains why human beings from different tribes and nations can learn from one another and avoid each other’s mistakes. By reference to the principles of natural law, derived through reason and rationality, we can ascertain what is objectively good or objectively bad for society. Natural law principles do not reflect the nature of a particular man, or a particular group, nation, culture, or race of men, nor anybody’s subjective opinions and preferences, but reflect the essential nature of human beings. As Rothbard puts it, “Man’s reason is objective, i.e., it can be employed by all men to yield truths about the world.”
Rothbard’s aim in drawing upon the natural law is to formulate a coherent theory of liberty based on private property. But there is more – he also sheds light on the steps people must take to choose which ends to pursue and how they can achieve good and morally just outcomes. As Rothbard explains, “For the ends themselves are selected by the use of reason; and ‘right reason’ dictates to man his proper ends as well as the means for their attainment.”
