The doctrine of natural law and natural rights was the set of limitations that had to be imposed on the institutions of future government to protect a new nation from tyranny and its utopias.
In the 1770s Americans were denouncing the British government, the Parliament and king, as corrupt and tyrannical. Founders applied themselves to what the authors of The Federalist called a new “science of politics”, a concept intended to create a republic de novo.
We have in power to begin the world over again, Thomas Pain joyously stated in 1776. John Jay had a more cautious approach, The Americans are the first people whom Heavens has favoured with an opportunity of deliberating upon, and choosing, the forms of government under which they shall live.
Unlike French, American founders did not want to destroy society to create a new order. Their revolution did not return the people to the civil society neither to nature or religion but to a political society - less centralised, and less organised, especially in the first months of public debate.
But stronger than the natural division of opinions and views among the founders was the shared conviction of fundamental beliefs. A doctrine of natural law and natural rights with basic laws of man’s constitution and principles which should be established if justice is to prevail was prominent. The natural law and natural rights indicated laws and rights of man and his environment that are existing independently of any human legislature or which were taken from him and should be restored. The doctrine was the set of limitations that had to be imposed on the institutions of future government to protect a new nation from tyranny and its utopias.
Human laws and human institutions should be so constructed and their order would at least approximate the teachings of nature. Although the ancient interpretations of natural law vary in some respects, the general point of view is clearly stated in Cicero’s discussion of natural law in De Legibus:
“There is indeed a true law, right reason, agreeing with nature and diffused among all, unchanging, everlasting which calls to duty by commanding, deters from wrong by forbidding. (…) It is not allowable to alter this law nor to deviate from it. Nor can it abrogated. Nor is it one law at Rome, and another in Athens, one law today and another thereafter; but the same law, everlasting and unchangeable, will bind all nations and all times, and there will be one common lord and ruler of all, even God, the framer and proposer of this law.”
Founders treated the interpretation of natural law by ancient Roman jurists only as a general point of view, which required further interpretation. The believers, among them, pursued a view of a higher law, a product of God’s will. The precepts were to be ascertained from the study of His Word, the Bible. The modern state was a product of Reformation, which stemmed from the movements for the renewal of the Jewish Bible and Jewish scriptures.
The idea of natural law that individuals hold as against the state and its government was the product of this renewal. Emphasis on the individual conscience informed by the Word of God characterised a new wave of Christian thinkers and politicians in America. The Americans related to both Bible and reason constantly emphasising liberty of every human person as sacred. To protect it the barriers to tyrannies, which also quoted, although selectively, God’s Word to justify its utopias, needed to be instituted.
During the first century of American colonies, the interpretation of natural law was derived directly from the diligent studies of Jewish Scriptures, and the Continental and English jurists and philosophers of the seventeen and eighteen centuries, among them German lawyer Samuel von Pufendorf and Swiss political theorist Jean-Jacques Burlamagui. Both writers were children of Reformation that is the fluent readers in Hebrew, as one historian observed.
Pufendorf and Burlamagui emphasised that the source of authority of any government are the people who limited themselves for a certain time. The people must always be able to take back their freedom from governments when it fails to achieve their goals and form another one. The political institutions must be constructed on this logic that the sovereign is the people.
In Principes du droit naturel, Burlamagui, inspired by Jewish Scriptures, concluded that the successful political system required checks and balances which diffuse the power and raise the level of accountability for the members of the government. These authors agree that the men do not make the most important law but discover through the use of their reason and their moral sense. Pufendorf emphasises that in accordance with these laws every human person is called to live in society.
It is a choice of the free human person, Pufendorf appears to repeat after Aquinas, who uncoerced chooses the good.
The importance of the fundamental value of liberty that cannot be taken from any person can be seen in the founders' conviction Of the Dissolution of Government, the right of the citizens to appeal from the rules of tyrannical government to the judgment of God. In the event of the necessity of making such an appeal, every person must be his or her own judge. The design of new institutions, however, would stop any utopia at its roots and definitely bar it from the influence of the national government.
The seeds of utopias are the equality intolerant of diversity, uniqueness, and debate as well as a worship of the state. As one classical philosopher and economist August Friedrich von Hayek observed, "Equality of the general rules of law and conduct… is the only kind of equality conducive to liberty and the only equality which we can secure without destroying liberty".
By exploiting human frailties, frustrations, jealousies, and inequities, a sense of meaning and self-worth is created in the malcontent’s otherwise unhappy life. A writer in the socialist country wrote that the people lived in the equality of misery and poverty when the government was focused on creating equality of the results. For utopians, the liberty of a human person is inherently immoral, except where it avails to equality.
Equality is usually confused or disguised with popular sovereignty - that is the conflation of “the people’s will” with egalitarian campaigns, such as “social justice”, “environmental justice”, “workers rights” or recently so-called “black lives matters” which excludes Asians from the class of blacks since they are too wealthy and educated.
Utopians have always asserted that true democracy cannot be achieved unless society is reorganised around the disparate and endless demands of disparate and endless claimants. It does not take long for such a society to fall into chaos and become balkanised. At that stage, the government is free to escalate coercion and repression.
The utopian regime’s authority has no limits, and the legislature degenerates passing the laws not because they are understandable and moral but because they can be passed. The law is being acted upon to destroy its own objective. It becomes an instrument of the annihilation of the justice it was supposed to maintain. At that stage, thanks to such law, the few plunder the many, and soon everyone plunders everyone depriving the people of development, peace, and prosperity.
US President Thomas Jefferson, who as minister to France observed the consequences of utopia, warned of that danger: “All of the powers of government, legislative, and judiciary, result to the legislative body. The concentrating of these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one… A little will it avail us that they are chosen by ourselves. As elective despotism was not the government we fought for. "
It is to protect the liberty of the people against such a threat the founders designed the new institutions that were limited according to the provisions of the doctrine of natural rights and natural law.
The third article from the series The Secrets of American Prosperity will be published on November 10.