1 Strauss, Leo, Natural Right and History (Chicago: University of Chicago Press, 1953), 248.
2 There is a wide-ranging controversy surrounding the issue of when so-called “modern,” as opposed to “classic,” natural right first appears on the intellectual or conceptual landscape. For the most part, we shall be avoiding this historical debate, but the following distinctions are important to keep in mind. According to Strauss and others, there are two types of “natural right.” On the one hand, there is “classic” natural right or natural duty (also called “objective” right), which focuses on what is right (or obligatory) as determined by a living thing's nature. This is regarded as an exclusively ancient or medieval concept. On the other hand, there is “modern” natural right or natural rights (also called “subjective” or individual rights), which focuses on the importance of the individual qua individual. This concept is considered a unique product of modernity. These historical claims have been challenged most recently in two different works: Tierney, Brian, The Idea of Natural Rights (Atlanta, GA: Scholars Press, 1997); and Miller, Fred D. Jr., Nature, Justice, and Rights in Aristotle's “Politics” (Oxford: Clarendon Press, 1995).
3 Putting this second set of questions a little differently, does ethical individualism require that one accept nominalism, mechanism, hedonism, or some other doctrine traditionally opposed to the idea of a human telos? Alternatively, do essentialism, teleology, and eudaimonism each require the rejection of individualism? That is to say, does accepting essentialism, teleology, or eudaimonism require one to accept a Platonistic interpretation of the human telos and banish individuating considerations from one's moral deliberations? See also notes 5 and 6.
4 We have argued that there is a place for natural teleology in the modern world, if an account of natural ends is limited and if science is not held to be militantly reductionistic. See Rasmussen, Douglas B. and Uyl, Douglas J. Den, Liberty and Nature (La Salle, IL: Open Court, 1991); and Rasmussen, Douglas B., “Human Flourishing and the Appeal to Human Nature,” Social Philosophy and Policy 16, no. 1 (Winter 1999): 1–43. See also note 6.
5 Moderate realism is one of three basic positions taken in regard to “the problem of universals”; the other two positions are realism and nominalism. The problem may be expressed by considering two interrelated questions. First, can our concepts be grounded in reality if it is the case that universals do not exist in some manner in cognition-independent reality? Second, can the nature of the entities in cognition-independent reality be thoroughly individualized if it is true that our conceptual classifications reflect something real? Realism says “no” to the first question; nominalism says “no” to the second. Moderate realism, in contrast, answers both questions affirmatively.
Moderate realism holds that universals only exist through our mode of cognition—reality is always and necessarily individualized—but that we can, through our cognition (via a type of mental focus usually called “abstraction without precision”), discern a basis for our predications. There is, for example, a basis in reality for assigning the predicate “man” to Socrates, but not to Fido. Yet the universal under consideration here, the abstraction “man,” does not exist in cognition-independent reality. Thus, for the moderate realist, individuals are natured, and natures are individualized.
Accordingly, there is no problem in speaking of right that results from considerations of an individual's nature and from considerations of individuality. To speak in Strauss's terms, “classic” natural right (or natural duties) can be based on considerations of human nature, and “modern” natural right can be based on considerations of human individuality; they do not necessarily conflict with each other. Rather, they can, as we will argue in this essay, complement each other. Indeed, Brian Tierney has recently observed that “the metaphysical ‘moderate realism’ of Aristotle and Aquinas affirmed the primary existence of individual entities in the external world, in opposition to the Platonic theory of ideal forms. There is no reason why such a metaphysics should be incongruous with an emphasis on individual rights.” Tierney, , The Idea of Natural Rights, 34.
6 Teleological eudaimonism holds that human flourishing is the natural end or telos of human life, that it is the moral standard by which human conduct is evaluated. Humans may choose not to hold flourishing as their moral standard, but they cannot choose not to be human or not to have the overall potentiality for human flourishing. Accordingly, human choice or self-direction is not radically free; it functions for the sake of the human good. Self-direction does not create its own potentiality for human flourishing. Yet self-direction is the central, necessary element in the actualization of this potentiality—that is, in the discovery, implementation, integration, and enjoyment of the goods that constitute human flourishing. A contemporary account of this view is explained in Rasmussen, Douglas B., “Perfectionism,” in Chadwick, Ruth, ed., Encyclopedia of Applied Ethics (San Diego, CA: Academic Press, 1997), 3:473–80. See also the sources in note 7.
7 See Rasmussen, , “Human Flourishing and the Appeal to Human Nature”; and Uyl, Douglas J. Den, The Virtue of Prudence (New York: Peter Lang, 1991).
8 Uyl, Douglas J. Den and Rasmussen, Douglas B., “‘Rights’ as MetaNormative Principles,” in Machan, Tibor R. and Rasmussen, Douglas B., eds., Liberty for the Twenty-First Century (Lanham, MD: Rowman and Littlefield, 1995), 59–75; Rasmussen, Douglas B. and Uyl, Douglas J. Den, Liberalism Defended: The Challenge of Post-Modernity (Cheltenham, UK: Edward Elgar, 1997); and Rasmussen, and Uyl, Den, Liberty and Nature.
9 In Section V we call this liberalism's problem and explain how it results from the individualized, agent-relative, and social character of human flourishing.
10 Even the individuality is in doubt here. Heinrich Rommen speaks of the importance of “personality” in natural law, but personality is itself a kind of generic category of ends to which individuals must adhere. There is little that is genuinely individual about it. Rommen, Heinrich A., The Natural Law, trans. Hanley, Thomas R. (Indianapolis, IN: Liberty Fund, 1998), 206.
12 Neill, Thomas P., Weapons for Peace (Milwaukee, WI: Bruce Publishing Co., 1945), 155, quoted in Rommen, , The Natural Law, 216.
13 Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 205 ff.
15 Veatch, Henry B., Human Rights: Fact or Fancy? (Baton Rouge: Louisiana State University Press, 1985), 160–96. The following paragraphs criticizing Veatch's theory are from material in Rasmussen, and Uyl, Den, Liberty and Nature, chap. 3; and Uyl, Den, The Virtue of Prudence, chap. 9.
16 A deontological theory is any theory in normative ethics that holds “duty” and “right” to be basic and defines the morally good in terms of them. Such theories attempt to determine obligations apart from a consideration of what promotes or expresses the good. For Kantians, this is accomplished primarily by a universalizability test.
17 Veatch, , Human Rights, 160–66.
19 Veatch, , Human Rights, 205.
21 Miller, , Nature, Justice, and Rights in Aristotle's “Politics”;Tierney, , The Idea of Natural Rights.
22 Tierney, , The Idea of Natural Rights, 286.
23 Ibid., 51; Wolff, Christian, Institutiones Juris Naturae et Gentium, ed. M. Thommann, in Wolfe, Gesammelte Werke, ed. Ecole, Jean (Hildesheim, Germany: Olms, 1968–1983), 26: 1.1.46, 24.
24 We mean that these could be alternative meanings in general, not within Christian Wolff's doctrine.
25 d'Entrèves, A. P., Natural Law: An Introduction to Legal Philosophy (London: Hutchinson University Library, 1970), esp. chap. 4.
27 Taylor, Charles, Sources of the Self (Cambridge, MA: Harvard University Press, 1989); Taylor, Charles, Philosophy and the Human Sciences (Cambridge: Cambridge University Press, 1985); Taylor, Charles, The Ethics of Authenticity (Cambridge, MA: Harvard University Press, 1991); MacIntyre, Alasdair, After Virtue, 2d ed. (Notre Dame, IN: Notre Dame University Press, 1984); MacIntyre, Alasdair, Whose Justice? Which Rationality? (Notre Dame, IN: Notre Dame University Press, 1988); MacIntyre, Alasdair, Three Rival Versions of Moral Enquiry (Notre Dame, IN: Notre Dame University Press, 1990); Sandel, Michael J., Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982); Sandel, Michael J., ed., Liberalism and Its Critics (Oxford: Blackwell, 1984); Walzer, Michael, Spheres of Justice (New York: Basic Books, 1983).
28 Aspects of their position are examined in Section III of this essay.
29 This again depends on how one looks at the individual. There is some question as to whether the social criticism of the new natural law theorists is done in the name of individual freedom as classical natural rights criticism was.
30 Wild, John, Plato's Modern Enemies and the Theory of Natural Law (Chicago: University of Chicago Press, 1953), 172, quoted in d'Entrèves, , Natural Law, 152.
31 Rommen, , The Natural Law, 141, quoted in d'Entrèves, , Natural Law, 152.
32 D'Entrèves, , Natural Law, 157 ff.
33 See Rasmussen, and Uyl, Den, Liberty and Nature; Rasmussen, and Uyl, Den, Liberalism Defended; and Uyl, Den and Rasmussen, , “‘Rights’ as MetaNormative Principles.”
34 For examples of this position, see Finnis, John, Natural Law and Natural Rights; Grisez, Germain, The Way of the Lord Jesus, vol. 1, Christian Moral Principles (Chicago: Franciscan Herald Press, 1983); and George, Robert P., Making Men Moral (Oxford: Clarendon Press, 1993).
35 Philosophical anthropology, as noted above, asks the question, What is it to be human? Natural philosophy and metaphysics traditionally ask, respectively, What are the fundamental principles of nature? and What is it to be?
36 For examples of this view, see Hittinger, Russell, A Critique of the New Natural Law Theory (Notre Dame, IN: University of Notre Dame Press, 1987); Ashley, Benedict M., “What Is the End of the Human Person? The Vision of God and Integral Human Fulfillment,” in Gormally, Luke, ed., Moral Truth and Moral Tradition (Dublin, Ireland: Four Courts Press, 1994), 68–96; McInerny, Ralph, Ethica Thomistica: The Moral Philosophy of Thomas Aquinas (Washington, DC: Catholic University of America, 1982); Veatch, Henry B., For an Ontology of Morals (Evanston, IL: Northwestern University Press, 1971); and Veatch, , Human Rights.
37 Aquinas, , Summa Theologiae, I–II, q. 94, a. 2.
38 It is argued that in the case of such a basic good as knowledge, any attempt to question seriously its desirability is operationally self-refuting. That knowledge is a good to be pursued is presupposed by all serious assertions, including the assertion that knowledge is not a good. See Finnis, , Natural Law and Natural Rights, 73–75.
40 As George, Robert states at Making Men Moral, 13–14:
Thus, the complete human good—integral human well-being and fullfillment—is intrinsically variegated. There are many irreducible, incommensurable, and thus basic human goods. And the basic goods are fundamental aspects of the well-being and fulfillment of flesh and blood human beings. They are not Platonic forms that somehow transcend, or are in any sense extrinsic to, the persons in whom they are instantiated. Nor are they means to human flourishing considered as a psychological or other state of being independent of the basic human goods that provide reasons for action. Rather, they are constitutive aspects of the persons whom they fulfill.
41 Finnis, adds “reality versus appearance” to this list in his The Fundamentals of Ethics (Washington, DC: Georgetown University Press, 1983), 75.
42 Grisez, , Christian Moral Principles, 121.
44 See Finnis, , Natural Law and Natural Rights, 100a–133, for a fuller examination.
46 Ibid., 107–8. See also Grisez, , Christian Moral Principles, 189.
47 Finnis, , Natural Law and Natural Rights, 93–94.
48 Human flourishing, G, for a person, P, is agent-relative if and only if its distinctive presence in world W1 is a basis for P ranking W1 over some other world W2, even though G may not be the basis for any other persons ranking W1 over W2.
49 An ethical theory is impersonal when all ultimately morally salient values, reasons, and rankings are agent-neutral, and these are agent-neutral when they do not involve as part of their description an essential reference to the person for whom the value or reason exists or for whom the ranking is correct. “For any value, reason or ranking V, if a person P1 is justified in holding V, then so are P2–Pn under appropriately similar conditions.… On an agent-neutral conception it is impossible to weight more heavily or at all, V, simply because it is one's own value.” Uyl, Den, The Virtue of Prudence, 27. Accordingly, under agentneutrality, when it comes to describing a value, reason, or ranking, it does not ethically matter whose value, reason, or ranking it is.
50 Finnis, , Natural Law and Natural Rights, 221.
51 George, , Making Men Moral, 39.
52 These themes are developed in greater detail in Rasmussen, , “Human Flourishing and the Appeal to Human Nature”; and Uyl, Den, The Virtue of Prudence.
53 Finnis, , Natural Law and Natural Rights, 107.
56 Finnis also implies that agent-neutrality is required if one is to follow the demands of justice. However, this claim confuses the virtue of justice, which does not necessarily require impartiality, with the justice that is rendered by a political/legal system, which does. See our discussion of this very issue in Uyl, Den and Rasmussen, , “‘Rights’ as MetaNormative Principles,” 68–71.
57 The next two paragraphs are adapted from Rasmussen, , “Human Flourishing and the Appeal to Human Nature,” 10, 22–23.
58 It should also be noted here that the ability of a value to be the basis for universalizable conduct is not sufficient to establish common values or a reason for other-regarding conduct among persons. This is so because the universalization of agent-relative goods does not show P1's good to b e P2's good (or vice versa), nor does it show that the production of P2's good provides Pa with a reason for action (or vice versa). Thus, if P1's good should conflict with P2's, universalizability would not provide a way out of this conflict.
59 Finnis, , Natural Law and Natural Rights, 110.
60 George, , Making Men Moral, 15–16.
61 Grisez, , Christian Moral Principles, 185.
62 Self-evidence here need not involve mere analyticity; it can also refer to that which is evident from reflection on reality.
63 See Hittinger, , A Critique of the New Natural Law Theory; and Ashley, , “What Is the End of the Human Person?”
64 The alternative here need not be friendship or leisure; it could be any other basic good.
65 As noted earlier, a person's nexus is that set of circumstances, talents, endowments, interests, beliefs, and histories that descriptively characterize him.
66 Aquinas called this type of abstraction “abstraction without precision.” See note 5 above and also Rasmussen, , “Human Flourishing and the Appeal to Human Nature,” 22.
67 Finnis, , Natural Law and Natural Rights, 154.
68 See Rasmussen, and Uyl, Den, Liberty and Nature, chap. 4.
69 In our more optimistic moments, we tend to think that a real securing of the conditions for the possibility of flourishing among other individuals would generally have the effect of creating the conditions that encourage flourishing more directly, but our argument does not hang on this connection.
70 Finnis, , Natural Law and Natural Rights, 141–56.
71 Since this is a political issue, it must be “In” in the sense of any individual rather than “I” in the sense of a particular one, because we can imagine C as being invariable for one person but not another and thus not invariably producing F for all.
72 Veatch, , Human Rights, 127.
73 We are well aware of the issues concerning habiruation and the like. Our point here is simply that it does not follow from the fact that X is good for P that P's interest in ~X must be diverted in some way.
74 One might assert here that knowledge of the basic goods could be derived from abstract considerations of flourishing, and that this knowledge might be able to form an ethical basis of the type discussed here. This is incorrect. Basic goods are valueless apart from the virtue of practical wisdom. They become valuable—that is, their proper combination, pattern, or weighting is achieved—only in relation to and because of the efforts of individual human beings.
75 It is important to realize that by “self-directedness” in this context, we do not mean full-blown Millian autonomy or the directedness of the perfected self where one is fully rational. Instead, we mean simply the use of reason and judgment upon the world in an effort to understand one's surroundings and make plans to act within or upon them. The actions of the most self-perfected of individuals are certainly “self-directed” in this sense, but nothing in our description of self-directedness requires or implies any reference to such individuals, or even to successful conduct. The protection of self-direction in this sense does not favor one form of human flourishing over any other, because it is the act of exercising practical reason that is being protected, not the achievement of its object.
76 Before ever addressing questions about what one should think about, or how one should conduct oneself, it is the case that one should think and act for oneself—that is to say, one should be self-directed. See Uyl, Douglas J. Den and Rasmussen, Douglas B., “Reply to Critics,” Reason Papers 18 (Fall 1993): 120–21.
77 The argument in this section is developed more fully in Uyl, Den and Rasmussen, , “‘Rights’ as MetaNormative Principles”; Rasmussen, and Uyl, Den, Liberalism Defended; Rasmussen, and Uyl, Den, Liberty and Nature; and Rasmussen, , “Community versus Liberty?” in Machan, and Rasmussen, , eds., Liberty for the Twenty-First Century, 259–87.
78 Historicism is the view that truth is limited to and determined by particular historical periods. Conventionalism suggests that conventions alone determine what people regard as true; it is like historicism because conventions are found within historical periods. Relativism is the broadest of the three terms and holds generally that there are no truths independent of our perception or understanding of them. Each of these positions is a reaction against the idea that truth can be transpersonal, transcultural, and transhistorical. See Rasmussen, Douglas B., “Ideology, Objectivity, and Political Theory,” in Roth, J. K. and Whittemore, R. C., eds., Ideology and the American Experience (Washington, DC: Washington Institute for Values in Public Policy, 1986), 45–71.