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The Sneaky Politics of “Natural Law”

The State Department wants to present its new human rights project as empirical and historical. But "natural law" is as political as anything else.

Secretary of State Mike Pompeo (Andrew Caballero-Reynolds/AFP/Getty Images)

On May 30, the State Department announced that it was setting up a Commission on Unalienable Rights to advise the Secretary of State, and “provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights.” Immediately, the reference to natural law and natural rightsand talk of the international rights discourse having departed from those principlesalarmed liberals and secularists about the committee’s potential to undermine women’s rights, immigrants’ rights, as well as those of the LGBTQ community. “Is State Department’s ‘Natural Law’ Effort Code for Homophobia?” Louisiana daily The Advocate asked.

Natural law is a complicated concept with a lengthy history. It doesn’t have to be anti-minority. But the concepts of natural law and rights, precisely because of their implied universality, do tend to obscure the political agendas of those invoking them. 

What gives a law its authority? Those adhering to legal positivism would say a law’s authority comes from the socially recognised institutions and processes that shape it. Natural law theory, however, says that the law’s authority is derived from the moral principles it is founded on. If a law is in conflict with morality, that law has no real authority, natural law theory claims.  

But given that people disagree about what is morally permissible, who is to decide which moral principles the law should follow? Traditionally, those who espouse the natural law theory of jurisprudence also espouse a natural law theory of morality, which argues that there exist objective moral laws that can be derived by analyzing the universal nature of human beings. By knowing the nature of human beings, we can know what’s good for them; knowing what’s good for them can tell us the morally right way for them to behave. The central question, then, is, “What is human nature?”

One obvious drawback to natural law theory is that it requires legislators to fully comprehend human nature, a topic of considerable philosophical—not to mention  sociological, psychological, and medical—disagreement, with many scholars doubting the very existence of a universal human nature. Another, however, lies in the historical origins of natural law theory, which are theological. The medieval Christian theologian Thomas Aquinas believed that the nature of things is revealed by their purpose. The nature of a pen is to write, because that’s its purpose. But what is the purpose of the human being? According to Aquinas, humans could discover their purpose simply by applying their reason. But the answer they would find, he argued, happened to coincide with what God intended that purpose to be. In practice, that meant that Aquinas believed the purpose of humans included procreation, and that sexual acts that did not take place within a context geared towards reproduction were immoral. Natural law is still used today by its proponents as a justification of the view that gay sex is morally wrong, as well as for banning abortion, and even contraception.

The concept of natural rights as a check to state power evolved in the seventeenth century out of natural law theory. As citizens, the idea went, we tacitly enter into a social contract with the state: We agree to obey its laws in exchange for security, social order, etc. But there are limits to what those laws can dictatecertain things the state cannot, without legitimate reason, take away from us, and, in fact, has a responsibility to protect: our natural rights, integral to our human nature and granted to us by God.  According to English political theorist John Locke, these rights included life, liberty, and property.

The American Declaration of Independence drew on these theories when declaring that, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” So, in turn, did the Bill of Rights. 

The idea that God guarantees our basic rights may seem like a relic, having little to do with the recent announcements at the State Department. Yet in his speech at the Buckingham Palace banquet hosted by Queen Elizabeth II only days after the State Department announcement, Trump made reference to “the common values that will unite us into the future: freedom, sovereignty, self-determination, the rule of law, and reverence for the rights given to us by almighty God.” And at least two justices of the Supreme Court, Clarence Thomas and Neil Gorsuch, believe in a version of natural law theory. This is especially significant given the recent introduction of early-abortion bans by a number of states, and the complete ban of abortion by Alabama, which are all direct challenges to Roe v. Wade that may yet be adjudicated by the Supreme Court. It is also important given the Trump administration’s proposals to roll back civil-rights safeguards that prevent discrimination against transgender individuals by health professionals and insurers.

The wording in the State Department’s announcement of this new Commission on Unalienable Rights implies the premise that international human rights have expanded over the years to include rights that would not be recognized under the tradition of natural law and of natural rights embodied in the U.S.’s eighteenth-century founding documents. The Universal Declaration of Human Rights, of which the U.S. is a cosignatory, includes, for example, the right to enjoy asylum from persecution, something that the Trump administration’s immigration policy has not always respected. The implicit aim of restricting the scope of human rights might also have another, more domestic target, for example, 2020 presidential hopeful Senator Bernie Sanders’ claim that healthcare is a human right.

Natural law and natural rights don’t necessarily have to be used to promote a conservative, religious moral agenda. Sanders himself has said that the right to healthcare comes from “being a human being”—a claim echoing natural rights language. There are also scholars who have argued that abortion rights are in fact natural rights.

Some debate on natural rights is to be expected, given that human nature and its moral implications are hardly consensus-generating topics. But this also suggests appeals to natural law might not be a good guide to drafting legislation: The defense and interpretation of human rights is ultimately a political project, and should be treated as such.

The Universal Declaration of Human Rights came in the aftermath of a brutal war, its political aim being to offer a benchmark for governments around the world for the protection of human life and dignity and the prevention of extreme suffering. The question we should be asking of a commission set up to rethink human rights is: What are your political aims?