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University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1989 The Utilitarian Foundations of Natural Law Richard A. Epstein Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Richard A. Epstein, "The Utilitarian Foundations of Natural Law," 12 Harvard Journal of Law and Public Policy 711 (1989). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. 10 SYMPOSIUM ON THE COMPATIBILITY OF RIGHTS AND CONSEQUENTIALIST ANALYSES HeinOnline -- 12 Harv. J. L. & Pub. Pol'y 711 1989 0Q HeinOnline -- 12 Harv. J. L. & Pub. Pol'y 712 1989 THE UTILITARIAN FOUNDATIONS OF NATURAL LAW RICHARD A. EPSTEIN* Contemporary thinking about rights draws a sharp line be- tween deontological and consequentialist ethical theories. De- ontological theories are associated with the natural law tradition as it has developed in this century, while consequen- tialist theories may be conveniently, if inexactly, grouped as utilitarian. The points of opposition between these approaches have been so often rehearsed that it is only necessary to sum- marize them briefly here. Natural rights theories regard them- selves as theories of individual entitlement, not as theories of social good. Their emphasis on the justice of the individual case, the intimate connection between the doer and the sufferer of harm, makes them overtly anti-instrumental in orientation.' They disavow the idea that the consequences of any legal rule could justify its adoption or rejection. Taken to its logical ex- treme, these natural law theories have-or at least ought to have-as their central maxim, fiatjustitia ruat coelum, let justice be done though the heavens may fall: if consequences never count, then disastrous consequences cannot count either. Natural rights theories employ a terminology that often bor- ders upon the obscure. Some special thing, property, quality or attribute is all too often "immanent" or "inherent" in some- thing else.2 While natural lawyers recognize the difference be- tween analytical and empirical truths, they often strive to identify a grand set of necessary empirical truths about human nature that are not made, but rather are discovered through some combination of introspection, observation, and rational * James Parker Hall Distinguished Service Professor of Law, The University of Chi- cago. Earlier versions of this paper were delivered at the School of Law of The Hebrew University in Jerusalem in March, 1988, and at Vanderbilt University Law School in November, 1988. I thank Randy Barnett, Loren Lomasky, Richard A. Posner, and Lloyd Weinreb for their valuable comments on an earlier draft of this article. 1. "In the common-law world generally, tort law treats the two litigants as connected one with the other through an immediate personal interaction as doer and sufferer of the same harm." Weinrib, The InsuranceJustiflcation and Private Law, 14 J. LEGAL STUmD. 681, 683 (1985); see also Weinrib, Legal Formalism- On the Immanent Rationality of Law, 97 YALE Li. 949 (1988). 2. "From the first, the idea of a normative order immanent in nature was a funda- mental element of classical Greek speculation." L. WEINREB, NATuRAL LAW ANDJUSSTCE 15 (1987); see also sources cited supra note 1. HeinOnline -- 12 Harv. J. L. & Pub. Pol'y 713 1989 714 HarvardJournal of Law & Public Policy [Vol. 12 discourse.3 The synthetic a priori of Kant is not, or at least not obviously, an empty category for thinkers in the natural rights tradition. The contingent and variegated elements of human life and experience are subordinated to those elements that are perceived as permanent, general, and inescapable, if not di- vinely revealed.4 The study of differences in culture and laws, first made popular by Montesquieu in his Spirit of the Laws,' is viewed by them with suspicion because of its implicit attack on the universality of the legal order whose basic intellectual sub- strate spans the generations and crosses the seas. A couple of sentences of Leo Strauss sum up the position: By natural law is meant a law which determines what is right and wrong and which has power or is valid by nature, inher- ently, hence everywhere and always.... Natural right is that right which has everywhere the same power and does not owe its validity to human enactment.... Natural right thus understood delineates the minimum conditions of political life ....6 No modesty here. Notwithstanding the breadth of their claims, natural lawyers today are often quite defensive about what they do.7 While they pride themselves in a program that is abstract, ambitious, aus- tere, and rigorous, they recognize that they are the devoted champions of a minority outlook. To them, modem legal and ethical thinking is dominated by a dreaded reliance upon cost- benefit calculations, realism, pragmatism, instrumentalism and social planning. Nonetheless they persevere, stoically confident 3. See, for example, J. FINNIS, NATURAL LAW AND NATURAL RIGHTS 283-84 (1980), which heavily emphasizes the importance of "practical reasonableness." Finnis's posi- tion is criticized for its incompleteness in L. WEINREB, supra note 2. at 112-15. 4. "[C]lassical doctrinal legal science required a deontological theory of morality, and... the deontological foundation of natural law was provided by the idea of the divine will ...." N. SIMMONDs, THE DECLINE OF JURIDICAL REASON: DoCTRINE AND THEORY IN THE LE6AL ORDER 57 (1984). 5. See C. MoNTsE.UIEu, THE SPIRIT OF THE LAWS (A. Cohler, B. Miller & H. Stone trans. 1989) (1748). 6. L STRAUSS, On Natural Law, in STUDIES IN PLATONIC POLITICAL PHILOSOPHY 137, 140 (1983). Although Strauss is a unique philosopher, his position is widespread in the natural law tradition. Thus Blackstone writes: This law of nature being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over the globe in all countries, and at all times; no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or intermediately, from this original. 1 W. BLACKSTONE, COMMENTARIES *41. See also the passage from Gaius, at infra note 41. 7. See, e.g., J. FINNIS, supra note 3, at 120. HeinOnline -- 12 Harv. J. L. & Pub. Pol'y 714 1989 No. 3] Utilitarian.Foundations of Natural Law 715 that with suitable explication their necessary truths about human and legal relations may perhaps in time become our conventional truths as well. Utilitarianism for its part makes light of what it regards as the exaggerated pretensions of natural law theories. Jeremy Ben- tham, for example, regarded himself as the mortal adversary of the lawyer Blackstone,s so much so that natural law was in his view not only "nonsense, but nonsense on stilts"-so as to cap- ture the ungainliness of natural law in a derisive phrase. The hostility towards natural law begins with the obvious point that it is odd to "find" law "out there" like a rock or a stone, or even as a necessary constituent of a human relationship. Laws are something made by men for the governance of mankind. There is a need to escape what Laurence Becker has aptly called "the rigidity and ultimate mystery of seventeenth-cen- tury natural rights theory."' While all utilitarians may not agree with John Austin that law is the command of the sovereign, -they do regard the dominant mark of law as power, not reason. Be that as it may, there is a second truth as well. The survival of past societies has depended heavily upon their choice of laws, just as our survival and prosperity is heavily dependent upon the choices, often conscious and deliberate, that are made to- day. Utilitarianism is thus concerned not only with general principles of right and wrong, but also with historical context and institutional arrangements. Law is more than what is writ- ten on the statute books. Utilitarianism also rejects the intuitionism to which natural lawyers gravitate. In examining this complex of legal and social institutions that surrounds the law as such, modern consequen- tialist theories place heavy emphasis upon the maximization of some social good. The choice of happiness, utility, or wealth raise important controversies within the consequentialist school, but these divisions pale in comparison to the starker opposition with classical theories of natural law and natural right. If the classical philosophy of Plato, Aristotle, Aquinas and Locke lies at the root of natural law, then utilitarianism de- 8. On the rivalry, see Posner, Blackstone and Bentham, 19 J.L. & ECON. 569 (1976). 9. L BECKER, PROPERTY RIGms: PHILOSOPHICAL FOUNDATIONS 4 (1977). Becker is willing to spread the criticism around, for the sentence continues, "as well as of the ruthlessly forward-looking concerns of utilitarian and socialist theories." Id Most so- cialist theories do invoke some utilitarian standard, and fail because the set of institu- tions that they envision fares poorly by any utilitarian criterion. HeinOnline -- 12 Harv. J. L. & Pub. Pol'y 715 1989 716 HarvardJournal of Law & Public Policy [Vol. 12 pends upon the skepticism of David Hume, the economics of Adam Smith, the indefatigable curiosity of Bentham, and the social cost calculations of Ronald Coase. This brief thumbnail sketch deliberately ignores or down- plays important differences within both the natural law and util- itarian camps. Although for some purposes those tensions might be important, in this context they are not. Enough has been said to indicate that apparently there is fundamental con- flict between these two schools of Western thought that cannot be ignored or papered over.
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