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Natural Law - a Libertarian View Anthony D'amato Northwestern University School of Law, [email protected]

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Natural Law - a Libertarian View Anthony D'amato Northwestern University School of Law, A-Damato@Law.Northwestern.Edu Northwestern University School of Law Northwestern University School of Law Scholarly Commons Faculty Working Papers 2008 Natural Law - A Libertarian View Anthony D'Amato Northwestern University School of Law, [email protected] Repository Citation D'Amato, Anthony, "Natural Law - A Libertarian View" (2008). Faculty Working Papers. Paper 148. http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/148 This Working Paper is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Working Papers by an authorized administrator of Northwestern University School of Law Scholarly Commons. NATURAL LAW – A LIBERTARIAN VIEW Anthony D’Amato In the subjugating of humans, attitudes are more powerful than armaments. BEN HECHT, PERFIDY 43 (1961) INTRODUCTION I offer in this essay a radically old way of thinking about the proper limits of law. The theory and practice of natural law were worked out in ancient Greece and Rome before organized religion co-opted it. The attractiveness of that classic system was the public’s attitude that natural law is limited law; it extends only to the edge of society’s needs. Beyond that edge is no-law. The imaginary sphere of privacy around a person’s body may be referred to, under natural law, as a law-free zone. This idea of law running out when it reaches our sphere of privacy is strange to us today because we are thoroughly immersed in the positivist conception of law. Positive 1 law is boundless; it extends to infinity in all directions.1 Law penetrates the sphere of privacy if the commander wants to regulate private acts. Libertarians who abhor the idea of big government elongating its tentacles into the private lives of citizens may overlook the fact that it was positive law that paved the way. Once legal jurisdiction has extended into the private sphere, big government does not lag far behind. Government quickly fills up the formerly private sphere by enacting a dense thicket of regulations. Before continuing with the story of natural law and positive law, let us take up, in a relatively informal way what we mean by law. In a moment of existential clarity I assert that law is nothing other than strangers telling me what to do. They threaten to punish me if I don’t do what they command. How can it be that I, a person who was born free and deserving of no less consideration than any other human being, find myself on a planet where other people are telling me what I must do and are ready and able to seriously harm me if I refuse? . In search of an answer, we must go back to when we first realized that other people were ordering us around. LAW IN THE FAMILY Without knowing words like law and manipulation, you and I began to realize around the age of three that our parents were manipulating the living daylights out of us. Do this; don’t do that. Do not play in the street, do not hit your younger sibling, do not throw food. Rules, regulations, laws, ordinances, and norms all seem to have been 1 Positivism holds that all legal rules are the commands of society’s commander-in-chief; since a commander can command anything, there is no limit to the scope of the command. 2 invented at the drop of a pacifier. And how efficiently did our parents calibrate the punishment that would fit our crimes: no television tonight, no dessert, pick up the toys, bedtime in one hour! We first interpreted what our parents told us to do as “commands” or “orders” even though we did not know those words either. Since our parents’ commands were always interfering with what we felt like doing at that moment, we believed we had every right to disobey their commands when they were not looking. It took us several years to realize that we should obey the commands even when our parents were not watching us because those commands served us well. This is when the idea of “command” in our minds morphed into the idea of “law.” A law was something that lodged itself in the rational part of our brain, blocking our ability to find reasons to disobey it. But we also began to see something very attractive about law. Unlike commands which could be arbitrary and ad hoc, laws carried with them a sense of equality, fairness, and reciprocity. Johnny steals a cookie from the pantry; his mother catches him and cuts off his television for that evening. But Johnny, who has learned something about law, points out that when Freddie stole a cookie, she gave him a second chance. “All right,” says the mother if she is wise, “since this is the first time for you, I’ll give you a second chance. But don’t do it again.” Our parents’ commands became law for us because we trusted them to act in our best interests and to apply the laws equally and without discrimination. We realized that we were getting the free benefit of our parents’ greater knowledge and worldly 3 experience.2 They were training us for a time when we would be on our own. They were on our side against all the evils and dangers of the world. We accepted their dictatorship because we realized that they truly cared for us.3 THE JURISDICTIONAL REACH OF PUBLIC LAW When we left home at some point in our teenage years, we encountered a new set of regulations that replaced the old family law. But there was a striking difference: we quickly learned that public officials enact laws designed to benefit themselves. If some laws also benefit us, it is a mere side-effect. Public legislators and bureaucrats enact rules to help their families, relatives, friends, cronies and campaign contributors. When they are not directly helping themselves and their friends, legislators have a tendency to power-trip their way into broad-ranging paternalism. They enact legislation that does things like criminalizing victimless interactions, banning movies or other forms of entertainment on the Sabbath, banning pornography, forbidding the intake of drugs, placing obstacles in the way of divorce and adoption, listening in on people’s telephone calls, and intruding in many other ways into people’s privacy. Although these statutes have the same look, feel, and enforcement potential as ordinary statutes, you and I have in reserve—though we don’t bring up that reserve—to refuse to dignify them by the name 2 I’ve couched this argument in voluntaristic terms where more extended analysis sows that the entire procedure is Darwinian. Nurturing children is a survival mechanism for the family. Parents have been selected for their proclivity to lay down laws for the family that enhance the family’s fitness for survival. 33 This benign sequence of events presupposes good parents. Matters would be quite different under abusive parents. There the children grow up learning to distrust all parental orders and laws, a distrust they carry with them into the outside world where they may join gangs, engage in theft, and deal in drugs. 4 “law.” Someday perhaps the public will learn to distinguish true law (natural law) from the intrusive rules that wear law’s mask. WHY NATURAL LAW DESERVES RESPECT So far I have argued that society makes many laws that redound to its own benefit—maintaining and securing itself through time. You and I profit from a well- functioning society. We can take advantage of schools, museums, the theatre, films, social clubs, opera, golf courses, sports stadiums, shopping malls, highways, national parks, concert halls and outdoor concerts,. Moreover, economies of scale make it possible for society to provide 24-hour police and firefighter services, taxis, hospitals and emergency rooms, and ambulances. Every member of society benefits from a standing army and navy that protect society from foreign enemies or sudden aggression. Our obligation to obey society’s laws--which as Socrates said occurred at the time when we were free to leave the society but chose to remain—is the flip side of our acceptance of the gains and benefits we derive from society.4 Thus as we step out into the wide world we should draw a distinction between rules that benefit society (and for that reason help you and me indirectly), and those that go beyond society’s need, paternalistically intruding upon our private acts. John Stuart Mill, in the classic manifesto of libertarianism, spelled out that very distinction.5 4 See Anthony D’Amato, Obligation to Obey the Law: A Study of the Death of Socrates, 49 SO. CAL. L.REV. 1079 (1976) (analyzing social obligations accepted when the decision is made not to emigrate).. 5 JOHN STUART MILL, ON LIBERTY (1859). 5 Mill drew a line between self-regarding acts and other-regarding acts. The latter are acts that directly infringe upon the rights or specific interests of others. Natural law prohibits many other-regarding acts by providing punishment for their disobedience. But what is the actual content of natural law? On several occasions I researched this question only to find that authors avoided bringing it up. Eventually I came to the realization that if the general rules of natural law were universally known their its content should not be a mystery. The most general of all the general rules of natural law, I realized, was this: that in every case, the judge tries to figure out, on the basis of the totality of the evidence, which party took unfair advantage over the other party.
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