The Contribution of Natural Law

by Rachel Douchant

Philosophically speaking, there are lots of different ways to approach being a libertarian.  On the one hand, I could follow in the footsteps of Murray Rothbard and allow that the law can only address natural rights derived from natural law.  Natural rights can be best described as comprising the fact that I do not have a right to use physical force on anyone else unless I am doing so in defense of myself or my property (although I could also assist someone else who was being attacked, if I felt like being benevolent).

Natural law deals with the ability of humans to apply their reason to their observations of the world.  Through reason, we can discover that some ways of doing things work better than others in that they help us to fulfill our nature.  Some ways of doing things help us to be happy and other ways hinder that.  It’s true that different people have different ideas of happiness.  But because we’re humans, only certain things actually will make us truly happy.  Even though we discover the Natural Law through its effects, it isn’t right because it has good consequences.  It’s good consequences merely reveal to us its absolute and objective truth.

On the other hand, I might not believe that any ethical standard is really ‘true’.  Rather, I am libertarian because I like the free society and all its benefits.  I think that if everyone really understood these benefits, they would like it too.  Rather than arguing that others, including the State, have no right to take my property, I will simply point out all the wonderful things that come from less State power, and all the horrible things that come from more.

Now the natural rights approach leads only to anarchist conclusions.  By ‘anarchist’, I do not mean lawless.  Rather, ‘anarchy’ in Rothbard’s sense means life without a State.  Courts would still exist, but they would be competing ones that I could choose between.  I would not be forced to pay taxes to support anything.

But the second approach isn’t so strict.  In the second approach, the existence of the State is not categorically immoral.  It might be better to call it inconvenient.

All libertarians, though, agree with the second approach in that more State power has bad consequences for everyone, and less state power has good consequences.  So it would seem that the first, natural rights approach is the more specific, and therefore more difficult one to defend.  Indeed, at first glance, some odd ethical dilemmas seem to be generated by it.

For instance, let’s say I’m sitting in my living room smoking marijuana.  A police officer walks by and sees me, and comes into my house to arrest me.  Since I have more marijuana on the table, I know I will be put in prison for a few years at least.  There in prison I might be anally raped and contract AIDS.  According to pure natural rights, the cop is trespassing on my property and attempting to enslave me, which might eventually lead to my death.  This sounds awfully bad.  Shouldn’t I shoot the police officer?  Now someone might say to me, “That wouldn’t be a very good idea, since inevitably you will be run down and caught, and then you will be put in prison for life”.  But even if my shooting the police officer is not prudent, still it seems that it is at least within my rights to do so.  Perhaps I’m willing to give up my freedom to prove a point.  Is it okay for me to shoot the cop?  This seems morally ambiguous, at best.

Of course, if it’s within my rights to shoot the cop, it is also within my rights to kill abortion doctors, IRS men, and to raise up a voluntary army to wage war against Janet Reno and Madelaine Albright (don’t let the feminists tell you we’d live in a nicer world if women ruled.  We are equal to men – give us the power and we’ll oppress you too!).  It’s odd then, that most libertarians pay their taxes, comply when a cop pulls them over, etc.  Why don’t libertarians praise the French Revolution, while simply distancing themselves from the ‘bad turn’ it took?  Isn’t it a good thing for people to free themselves from oppression?

I hope you begin to see the problem of applying the ethics of the ideal libertarian world in the very un-ideal situation of the modern world.

Still, there are other, similar cases in which it actually seems undoubtedly morally praiseworthy to take the action against the State.  For instance, we would praise a German in WWII who made a surprise attack on a concentration camp to free prisoners, even though he killed the guards.  How come we’re not so sure about the pot-smoker killing the cop but we’re very sure about the German killing the camp guards?  In both cases, the victims were invading someone’s rights.

It seems to me that this is where the context of natural rights in natural law plays a big role.  Murray Rothbard said: "The responsibility of philosophy to deal with strategy – with the problem of how to move from the present mixed state of affairs to the goal of consistent liberty – is particularly important for a libertarian grounded in natural law" (Ethics of Liberty, p. 257). The theory of natural rights alone is very simplistic, and also very hard to defend philosophically.  But if embedded in its natural law context, the theory becomes more subtle and more capable of addressing the bizarre ethical situations mentioned above.  Allow me to mention just a few of doctrines of Thomas Aquinas.

First, you never judge an action by the mere act alone.  If I am told that you 'made a deceptive statement', I don’t immediately condemn you as a bad person.  First I have to ask why you decieved , and also ascertain what circumstances you were in.  Perhaps you are Rahab, who decieved to protect the Hebrew spies from being killed.  She went down in ‘The Book’ as a righteous woman.

Also, in any ethical decision I make, I am responsible for the foreseeable consequences.  Let’s say I am walking along a border between two hostile countries that have guards pointing their guns at each other.  I shoot in the air, causing a shoot-out.  I can’t simply say, “But all I did was shoot in the air, I didn’t shoot anybody”.  Unless you were completely clueless, you knew exactly what was going to happen.

Lastly, Aquinas is famous for saying, “An unjust law is no law at all”.  But that doesn’t mean we can disobey it.  There is something we must consider first.  Will disobeying this law cause more harm than good?  Aquinas gives the example that you should continue to obey an unjust law if disobeying it would start a bloody revolution.  And there are other ways to appeal the law.  They might take longer, but they do less damage.

Of course, these natural law considerations are also more complicated than a pure natural rights conception.  But the fact that a system is complicated doesn’t mean it’s not true.  Acknowledging these important factors in making decisions about what route to take at the present, un-ideal moment allows us to argue that the anarchist position is indeed the correct conclusion without justifying destructive behavior that might seem acceptable under a pure, natural rights approach.  As responsible libertarians, we have to take into account where our society is at culturally.  People don’t have the ability to change all their institutions in one day.  Therefore, we need to altruistically fight the good fight of IDEAS, rather than one against ‘flesh and blood’, even if it is within our rights.