II. Metaphysical Foundations

One example of such confusion is the assumption that any natural law theory must commit the “naturalistic fallacy” by failing to take note of the “fact/value distinction.” For there can only be a “fact/value distinction,” and thus a “fallacy” in deriving normative conclusions from factual premises, given something like a modern mechanistic-cum-nominalistic conception of nature.Footnote ⁴ No such distinction, and thus no such fallacy, exists given a classical essentialist and teleological conception of the world.

Consider, to begin with, a simple example. It is of the essence or nature of a triangle to be a closed plane figure with three straight sides, and anything with this essence must have a number of properties, such as having angles that add up to 180 degrees. These are objective facts that we discover rather than invent; certainly, it is notoriously difficult to make the opposite opinion at all plausible. Nevertheless, there are obviously triangles that fail to live up to this definition. A triangle drawn hastily on the cracked plastic seat of a moving bus might fail to be completely closed or to have perfectly straight sides, and thus its angles will add up to something other than 180 degrees. Indeed, even a triangle drawn slowly and carefully on paper with a Rapidograph pen and a ruler will contain subtle flaws. Still, the latter will far more closely approximate the essence of triangularity than the former will. It will be a better triangle than the former. Indeed, we would quite naturally describe the latter as a good triangle and the former as a bad one. This judgment would be completely objective; it would be silly to suggest that we were merely expressing a personal preference for angles that add up to 180 degrees, say. Such a judgment simply follows from the objective facts about the nature or essence of triangles. This example illustrates how an entity can count as an instance of a certain type of thing even if it fails perfectly to instantiate the essence of that type of thing; a badly drawn triangle is not a non-triangle, but rather a defective triangle. At the same time, the example illustrates how there can be a completely objective, factual standard of goodness and badness, better and worse. To be sure, the standard of goodness in question in this example is not a moral standard. But from the point of view of classical natural law theory, it illustrates a general notion of goodness of which moral goodness is a special case. And while it might be suggested that even this general standard of goodness will lack a foundation if one denies, as nominalists and other antirealists do, the objectivity of geometry and mathematics in general, it is (as I have said) notoriously very difficult to defend such a denial.

Many contemporary philosophers (and not just philosophers) are coming to see how difficult it is plausibly to deny the reality of essences in other domains. Let us look at another simple example, one that brings us closer to the notion of a distinctly moral conception of goodness. Philippa Foot, following Michael Thompson, notes how living things can only adequately be described in terms of what Thompson calls “Aristotelian categoricals” of a form such as S's are F, where S refers to a species and F to something predicated of the species.Footnote ⁵ To cite Foot's examples, “Rabbits are herbivores,” “Cats are four-legged,” and “Human beings have thirty-two teeth” would be instances of this general form. Note that such propositions cannot be adequately represented in terms of either the existential or the universal quantifier. The proposition “Cats are four-legged,” for instance, is obviously not saying, “There is at least one cat that is four-legged.” But neither is it saying, “For everything that is a cat, it is four-legged,” since the occasional cat may be missing a leg due to injury or genetic defect. Aristotelian categoricals convey a norm, much like the description of what counts as a triangle. Any particular living thing can only be described as an instance of a species, and a species itself can only be described in terms of Aristotelian categoricals stating at least its general characteristics.Footnote ⁶ If a particular S happens not to be F—if, for example, a particular cat is missing a leg—that does not show that S's are not F after all, but rather that this particular S is a defective instance of an S.

In living things, the sort of norm in question is, Foot tells us, inextricably tied to the notion of teleology. There are certain ends that any organism must realize in order to flourish as the kind of organism it is, ends concerning activities like development, self-maintenance, reproduction, the rearing of young, and so forth; and these ends entail a standard of goodness. Hence (again to cite Foot's examples), an oak that develops long and deep roots is to that extent a good oak, and one that develops weak roots is to that extent bad and defective; a lioness that nurtures her young is to that extent a good lioness, and one that fails to do so is to that extent bad or defective; and so on. As with our triangle example, it would be silly to pretend that these judgments of goodness and badness are in any way subjective or reflective of human preferences. Rather, they have to do with objective facts about what counts as a flourishing or sickly instance of the biological kind or nature in question, and in particular with an organism's realization of (or failure to realize) the ends set for it by its nature.

It might, of course, be suggested that such teleological language can always be reduced to descriptions couched in nonteleological terms. Widespread though this assumption is, however, there is surprisingly little in the way of actual argumentation in its favor, and much to be said against it. To be sure, Darwinian theory famously suggests a way of accounting for adaptation in a manner that dispenses with anything like goal-directedness or final causality.Footnote ⁷ But the adaptation of organisms to their environments is only one small (albeit important) aspect of the natural world, and the question is whether there is any reason to believe that teleology can be entirely or even mostly dispensed with in our understanding of nature. The answer, I would submit, is that it cannot be. Every attempt to eliminate teleology in one domain seems, at most, merely to relocate it elsewhere, leaving it “grinning residually up at us like the frog at the bottom of the beer mug,” as J. L. Austin famously said of another problematic phenomenon.Footnote ⁸

This is a large topic, which I have addressed at length elsewhere.Footnote ⁹ Some general remarks will suffice for our purposes here. Certain common misconceptions about the nature of final causes form one of the main obstacles to acknowledging their reality. It is often thought, for example, that to attribute a final cause to something is necessarily to attribute to it something like thought or consciousness and/or something like a biological function. It is then concluded that anyone committed to the reality of final causes must believe such absurdities as that asteroids and piles of dirt (or whatever) somehow play a role within the larger universe that is analogous to the role a heart or kidney plays in an organism, and that they are at least dimly conscious of doing so. But this is a complete travesty of the Aristotelian notion of final causality. In fact, the Aristotelian view has always been that most teleology or final causality is not associated with consciousness or thought at all, and that biological functions constitute only one kind of final causality among others.

The heart of the Aristotelian “principle of finality” is, as Aquinas put it, that “Every agent acts for an end.”Footnote ¹⁰ What is meant by this is that anything that serves as what Aristotelians call an efficient cause—that which brings about a certain effect—is directed toward production of that effect as its natural end or goal. The cause “points to” that effect specifically, rather than to some other effect or to no effect at all; or, in other words, when A is the efficient cause of B, that is only because B is the final cause of A. For example, a match “points to” or is “directed at” the generation of flame and heat specifically, rather than frost and cold, or the smell of lilacs, or a nuclear explosion. That is the effect it will naturally bring about when struck, unless prevented in some way, and even if it is never in fact struck, it remains true that it is that specific effect that it always “aimed at.” As Aquinas argued, unless we acknowledge the existence of finality in this sense, we have no way of explaining why efficient causes have exactly the effects they do rather than other effects or no effects at all. In short, efficient causality becomes unintelligible without final causality.Footnote ¹¹

Notice that there is nothing in this line of thought that entails that matches or other efficient causes carry out “functions” in the biological sense. To say that final causality pervades the natural world is not to say that atoms and molecules, rocks and trees, are somehow related to the world as a whole as biological organs are related to the organism whose organs they are. Functions of the sort that biological organs serve exist only where physical systems are organized in such a way that the parts of the system are ordered to the flourishing of the whole, as in living things. Most of the teleology that Aristotelians would attribute to nature is not like this, but involves merely the simple directedness of a cause of a certain type toward the generation of a certain effect or range of effects. Notice also that there is no implication here that the causes in question are typically conscious (as the match of my example obviously is not). Other than human beings and animals, they typically are not conscious at all. The Aristotelian claim is precisely that things can be directed toward certain ends or goals even if they are totally incapable of being conscious of this fact.

Now it is by no means only Neo-Scholastics and other old-fashioned Aristotelians who would defend essences and teleology today. One finds a hint of final causality even in the work of the materialist philosopher David Armstrong, who suggests that in order to explain intentionality—the human mind's capacity to represent the world beyond itself—his fellow materialists ought to consider the dispositions physical objects possess (such as the disposition glass has to break, even if it never in fact shatters) as instances of a kind of “proto-intentionality” or “pointing beyond themselves” toward certain specific outcomes.Footnote ¹² Similarly, the late George Molnar defended the idea that the causal powers inherent in physical objects manifest a kind of “physical intentionality” insofar as, like thoughts and other mental states, they point to something beyond themselves, even though they are unlike thoughts in being unconscious.Footnote ¹³ Molnar was representative of a movement within the philosophy of science toward what Brian Ellis has called a “new essentialism,” the view that the standard mechanistic and empiricist interpretation of physical science simply does not hold up in light of the actual discoveries of modern science or the facts of scientific practice.Footnote ¹⁴ Ellis and Nancy Cartwright, another prominent “new essentialist,” are forthright about the neo-Aristotelian character of their position.Footnote ¹⁵ Actual experimental practice, Cartwright argues, shows that the hard sciences are in the business of discovering, not mere Humean regularities, but the hidden natures or essences universal to, and the causal powers inherent in, things of a certain type. “The empiricists of the scientific revolution wanted to oust Aristotle entirely from the new learning,” but, Cartwright judges, “they did no such thing.”Footnote ¹⁶

As the work of Foot and Thompson indicates, many contemporary thinkers are prepared to acknowledge the continuing applicability of Aristotelian concepts in biology no less than in physics. To take another example, the philosopher of biology André Ariew has noted that even given that Darwinian evolution undermines William Paley's famous design argument, “it does not follow that Darwin has debunked natural teleology altogether,” for “Aristotelian teleology is an entirely different sort.”Footnote ¹⁷ Though natural selection might suffice to explain the adaptation of an organism to its environment, there is also the question of the internal development of an organism, and in particular of what accounts for the fact that certain growth patterns count as aberrations and others as normal. Here Aristotle would say that there is no way to make this distinction apart from the notion of an end toward which the growth pattern naturally points: normal growth patterns are those that reach this end; aberrations (clubfoot, polydactyly, and other birth defects, for example) are failures to reach it. Ariew seems to allow that there is nothing in Darwinism that undermines this sort of argument for final causes within biology. The biologist J. Scott Turner is even more explicit that accounting for the phenomena in question requires attributing an unconscious “intentionality” to biological processes.Footnote ¹⁸

The persistence of teleological thinking within biology is perhaps most clearly evident from the way in which biologists describe DNA. Accounts of the function of this famous molecule regularly make use of such concepts as “information,” “code,” “instructions,” “data,” “blueprint,” “software,” “program,” and the like, and there is no way to convey what DNA does without something like them. But every one of these concepts is suffused with intentionality, that is to say, with the notion of a thing's pointing to something beyond itself in the way our thoughts do—in this case, to an organism's physiological and behavioral traits, including those determining the species or kind it belongs to. Of course, no one would claim that DNA molecules literally can be said to think. But the notion of something which points to some end or goal beyond itself despite being totally unconscious just is the Aristotelian notion of final causality. As the biophysicist and Nobel laureate Max Delbrück once wrote, if the Nobel Prize could be awarded posthumously, “I think they should consider Aristotle for the discovery of the principle implied in DNA,” and “the reason for the lack of appreciation, among scientists, of Aristotle's scheme lies in our having been blinded for 300 years by the Newtonian [i.e., mechanistic or nonteleological] view of the world.”Footnote ¹⁹ More recently, the physicist Paul Davies has complained of the contradiction implicit in biologists' use of informational concepts that entail meaning or purpose while purporting at the same time to be committed to a completely mechanistic picture of the world. Recognizing that such concepts are indispensible, his solution appears to be at least tentatively to suggest giving up mechanism, asking: “Might purpose be a genuine property of nature right down to the cellular or even the subcellular level?”Footnote ²⁰

It should go without saying that human action is perhaps the most obvious example of a phenomenon that it appears in principle impossible to account for in nonteleological terms.Footnote ²¹ (As Alfred North Whitehead once said, “Those who devote themselves to the purpose of proving that there is no purpose constitute an interesting subject for study.”)Footnote ²² Then there is human thought, which, even apart from the actions it sometimes gives rise to, manifests intentionality or “directedness” toward something beyond itself and is thus as problematic for a mechanistic picture of the natural world as teleology is.Footnote ²³

Much more could be said in support of the classical teleological and essentialist picture of the natural world; and, again, I have in fact said much more in support of it elsewhere. To forestall irrelevant objections, I should perhaps also emphasize that the view in question has nothing whatsoever to do with “intelligent design” theory, creationism, or other such bogeymen. It is not William Paley, but Aristotle, who I would suggest stands vindicated by the philosophical and scientific trends I have been describing.Footnote ²⁴ Given those trends, there is at the very least a powerful case to be made for the view that ends or goals toward which things are directed by virtue of their essences pervade the natural order from top to bottom, from the level of human thought down to that of basic physical particles. It follows that defectiveness, “missing the mark,” or failure to realize a natural end or goal also pervade the natural order—as does the opposite of this circumstance, namely, that feature of things which Foot has aptly labeled their “natural goodness.”

III. Natural Law

It is but a few short steps from natural goodness to natural law, as classically understood; and the other steps are very easily taken. Aquinas famously held that the fundamental principle of natural law is that “good is to be done and pursued, and evil is to be avoided,” such that “all other precepts of the natural law are based upon this.”Footnote ²⁵ That “good is to be done, etc.” might at first glance seem to be a frightfully difficult claim to justify, and it certainly does not seem to be a very promising candidate for an axiom on which to rest an entire moral theory. For isn't the question “Why should I be good?” precisely (part of) what any moral theory ought to answer in the first place? And isn't this question notoriously hard to answer to the satisfaction of moral skeptics? Hasn't Aquinas therefore simply begged the most important question at the very start of the inquiry?

Properly understood, however, Aquinas's principle is not only not difficult to justify, but is so obviously correct that it might seem barely worth asserting. Aquinas is not saying that it is self-evident that we ought to be morally good. He is saying, rather, that it is self-evident that whenever we act we pursue something that we take to be good in some way and/or avoid what we take to be evil or bad in some way. And he is clearly right. Even someone who does what he believes to be morally bad does so only because he is seeking something he takes to be good in the sense of worth pursuing. Hence, the mugger who admits that robbery is evil nevertheless takes his victim's wallet because he thinks it would be good to have money to pay for his drugs; hence, the drug addict who knows that his habit is wrong and degrading nevertheless thinks it would be good to satisfy the craving and bad to suffer the unpleasantness of not satisfying it; and so forth. Of course, these claims are obviously true only on a very thin sense of “good” and “bad,” but that is exactly the sense Aquinas has in mind.

Now you don't need the metaphysics of natural goodness described in the previous section to tell you that Aquinas's principle is correct. Again, it is just obviously correct, as everyone knows from his own experience. But that metaphysics does help us to understand why it is correct. Like every other natural phenomenon, practical reason has a natural end or goal toward which it is ordered, and that end or goal is just whatever it is that the intellect perceives to be good or worth pursuing. This claim too is obvious, at least if one accepts the metaphysical view in question. And now we are on the threshold of a further conclusion that does have real moral bite. For if the metaphysical view described earlier is correct, then like everything else in the world, human beings have various capacities whose realization is good for them and whose frustration is bad, as a matter of objective fact. A rational intellect apprised of the facts will therefore perceive that it is good to realize these capacities and bad to frustrate them. It follows, then, that a rational person will pursue the realization of these capacities and avoid their frustration. In short, practical reason is directed by nature toward the pursuit of what the intellect perceives to be good; what is in fact good is the realization or fulfillment of the various capacities and potentials definitive of human nature; and, thus, a rational person will perceive this and, accordingly, direct his actions toward the realization or fulfillment of those capacities and potentials. This, in essence, is what the moral life consists in. Natural law ethics as a body of substantive moral theory is just the formulation of general moral principles on the basis of an analysis of the various human capacities in question and the systematic working out of the implications of those principles. So, for example, if we consider that human beings have intellects and that the natural end or function of the intellect is to grasp the truth about things, it follows that it is good for us—it fulfills our nature—to pursue truth and avoid error. Consequently, a rational person apprised of the facts about human nature will see that this is what is good for us and thus will strive to attain truth and to avoid error. And so on for other natural human capacities.

Things are more complicated than this summary perhaps lets on. Various qualifications and complications will need to be spelled out as we examine the various natural human capacities in detail, and not every principle of morality that follows from this analysis will necessarily be as simple and straightforward as “Pursue truth and avoid error.” But this much is enough to give us at least a general idea of how natural law theory determines the specific content of our moral obligations. It also suffices to give us a sense of the grounds of moral obligation, that which makes it the case that moral imperatives have categorical rather than merely hypothetical force. The hypothetical imperative (1) “If I want what is good for me, then I ought to pursue what fulfills my natural capacities and avoid what frustrates them” is something whose truth is revealed by the metaphysical analysis sketched in the previous section. By itself, it does not give us a categorical imperative, because the consequent will have force only for someone who accepts the antecedent. But the proposition (2) “I do want what is good for me” is something that is true of everyone by virtue of his nature as a human being, and is in any case self-evident, since it is just a variation on Aquinas's fundamental principle of natural law. Thus, the conclusion (3) “I ought to pursue what fulfills my natural capacities and avoid what frustrates them” is unavoidable. It does have categorical force because (2) has categorical force, and (2) has categorical force because it cannot be otherwise given our nature. Thus, both the content of our moral obligations and their obligatory force are determined by natural teleology.Footnote ²⁶ As the natural law theorist Michael Cronin has written, “In the fullest sense of the word, then, moral duty is natural. For not only are certain objects natural means to man's final end, but our desire of that end is natural also, and, therefore, the necessity of the means is natural.”Footnote ²⁷

IV. Natural Rights

We are rationally obliged, then, to pursue what is good for us and avoid what is bad, where “good” and “bad” have, again, the senses described in our discussion of the metaphysical foundations of classical natural law theory. Hence, we are obliged (for example) to pursue the truth and to avoid error, to sustain our lives and our health and to avoid what is damaging to them, and so on (ignoring, as irrelevant to our present purposes, the various complications and qualifications that a fully developed natural law theory would have to spell out). The force and content of these obligations derive from our nature as human beings.

It is part of that nature that we are social animals, as Aristotle famously noted. That is to say, we naturally live in communities with other human beings and depend on them for our well-being in various ways, both negative (such as our need not to be harmed by others) and positive (such as our need for various kinds of assistance from them). Most obviously, we are related to others by virtue of being either parents or children, siblings, grandparents and grandchildren, cousins, and so forth. Within the larger societies that collections of families give rise to, other kinds of relationships form, such as that of being a friend, an employee or an employer, a citizen, and so forth. To the extent that some of these relationships are natural to us, their flourishing is part of what is naturally good for us.

For example, as Foot writes, “like lionesses, human parents are defective if they do not teach their young the skills that they need to survive.”Footnote ²⁸ It is part of our nature to become parents, and part of our nature that while we are children we depend on our own parents.Footnote ²⁹ Accordingly, it is simply an objective fact that it is good for us to be good parents to our children and bad for us to be bad parents, just as it is (even more obviously) an objective fact that it is good for children to be taken care of by their parents. The satisfaction good parents often feel and the sense of failure and frustration bad parents feel obviously give us confirmation of this judgment, but it is important to emphasize that classical natural law theory does not regard the often fluctuating subjective feelings and desires of individuals to be what is most fundamental to an analysis of what is good for them. To be sure, there is at least a rough and general correlation between what is good for us and what we want or find pleasant, and on a classical natural law analysis, our tendency to find some things pleasurable and other things unpleasant is one of nature's ways of getting us to do what is good for us and avoid what is bad. Still, feelings and desires are not infallible. It is good for us to eat, which is why we like to do it, but obviously this does not entail that it is good for us to follow every impulse we have to eat; the heroin addict finds it pleasurable to take drugs, but it does not follow that it is good for him to give in to his desire to take them; and so forth. For a variety of reasons—ignorance, stubbornness, irrationality, peer pressure, addiction, habituated vice, genetic defect, mental illness, and so on—people sometimes do not want what is in fact good for them, and even want what is not in fact good for them, their natural desire for the good being oriented away from its proper object. The fact remains that what really is good for them is defined by their nature as human beings, and thus by the sorts of biological and metaphysical considerations summarized earlier. Subjective feelings that would incline us to act contrary to our nature must themselves be judged defective, and must be regarded as something we have a moral duty to strive against and try to overcome. Hence, the existence of sadistic parents or the occasional “deadbeat dad” who has no regrets does nothing to undermine the truth of the judgment that their behavior is contrary to their nature and thus bad for them, just as the existence of a sickly squirrel who has been conditioned to prefer sitting in a cage eating toothpaste on Ritz crackers to scampering about the woods looking for acorns does not undermine the judgment that the squirrel's behavior is contrary to its nature and thus bad for it.

Now if it is good for a parent to provide for his children, then given that we are obliged to do what is good for us, it follows that a parent has an obligation to provide for them. Similarly, since given their need for instruction, discipline, and the like, it is good for children to obey and respect their parents, it follows that they have an obligation to obey and respect them. But an obligation on the part of a person A toward another person B entails a right on the part of B against A. Footnote ³⁰ It follows in turn, then, that children have a right to be provided for by their parents, and parents have a right to be obeyed and respected by their children. And since the obligations that generate the rights in question are obligations under natural law (rather than positive law), it follows that they are natural rights, grounded not in human convention but in human nature. Other obligations we have under natural law toward various other human beings will similarly generate various other natural rights. At the most general level, we are all obliged to refrain from interfering with others' attempts to fulfill the various moral obligations placed on them by the natural law. For as Austin Fagothey puts it, “man cannot have such obligations unless he has a right to fulfill them, and a consequent right to prevent others from interfering with his fulfillment of them.”Footnote ³¹ The most basic natural right is the right to do what we are obligated to do by the natural law. Hence, everyone necessarily has a natural right not to be coerced into doing evil. There are also many things that are naturally good for us even if we are not strictly obligated to pursue them, such as having children. This particular example is, according to classical natural law theory, the foundation for the natural right to marry.Footnote ³² And, of course, we cannot pursue any good or fulfill any obligation at all if our very lives could be taken from us by others as they saw fit; thus, the natural law entails that every human being (or at least every innocent human being) has a right not to be killed.Footnote ³³

If classical natural law theory entails the existence of natural rights, it also entails that there are very definite limits on those rights. To be sure, a right to a significant measure of personal liberty is clearly implied by the natural law, given that the natural differences between individuals in terms of their interests, talents, upbringing, and other personal circumstances, and in general the complexities inherent in the human condition, entail that there are myriad ways in which human beings might concretely realize the capacities and potentials inherent in their common nature, and each person will need to be free to discover for himself which way is best for him. Nonetheless, this freedom cannot possibly be absolute, for while there is much that the natural law allows, there is also much that it forbids as absolutely contrary to the human good, and rights only exist to allow us to fulfill the human good. Thus, as one classical natural law theorist has put it, “the rights of all men are limited by the end for which the rights were given”;Footnote ³⁴ and, therefore, to cite another, “there can never be a right to that which is immoral. For the moral law cannot grant that which is destructive of itself.”Footnote ³⁵ Natural rights have a teleological foundation, and cannot exist except where they further the purposes they serve.

It is important to emphasize that this does not entail the institution of a totalitarian “morality police.” As Aquinas famously emphasized, the fact that the natural law morally prohibits something does not suffice to show that governments should legally prohibit it.Footnote ³⁶ The point is, rather, that no one can coherently justify his indulgence of some vice on the grounds that he has a natural right to indulge in it, or that it would be intrinsically unjust to prevent him from doing so. The idea of a “natural right to do wrong” is an oxymoron. But there still might be many reasons of a prudential or even moral sort for government to tolerate certain vices; for instance, enforcing laws against them may be practically impossible, or may inadvertently do more harm than good.

Both the existence of natural rights and their limitations derive from their teleological foundation, and neither can be made sense of apart from it. From a classical natural law point of view, this is precisely why the very notion of natural rights has been so problematic in modern philosophy, given its mechanistic or anti-teleological metaphysical orientation. For example, John Locke, famously critical of Aristotelian Scholasticism, cannot give natural rights an essentialist-cum-teleological foundation, and so must appeal directly to God's will for us. Locke's famous thesis of self-ownership turns out to be a kind of shorthand for talk about the leasehold rights over ourselves that God has granted us, with God ultimately being our true “owner.” The result is that Locke's “defense” of natural rights is really a denial of them: strictly speaking, for Locke it is God who has all the rights, not us, and our obligation not to harm others derives not from any rights they have, but rather from our duty not to damage what belongs to God. As we will see (in Section V), Locke's rejection of final causes poses particular problems for his theory of property.Footnote ³⁷

Contemporary Lockeans, who eschew Locke's theology, are even more hard-pressed to find a way to justify the claim that we have rights that are in some interesting sense “natural.” For instance, Robert Nozick's notion of self-ownership, though more robust than Locke's, is also (and notoriously) even less well-grounded.Footnote ³⁸ Certainly, self-ownership cannot by itself serve as the foundation of a theory of natural rights, since the concept of ownership presupposes the notion of rights. Nozick's appeal to Immanuel Kant's principle of respect for persons only raises the question of why we should respect persons as such, and while the classical natural law theorist can answer this question in terms of a robust metaphysics of human nature, those who reject that metaphysics (as Nozick, and indeed Kant himself, would) have no clear answer—at least, again, if their intention is to show that our basic rights are truly natural rights.

If the existence of natural rights becomes problematic for Locke and Lockeans, it is in the work of Thomas Hobbes and his successors that we see most clearly how the limitations the classical natural law theorist would put on our rights are undermined when a teleological metaphysics is abandoned. In the Hobbesian state of nature, everyone has a right to do anything he wants, without any limitations whatsoever. Of course, that is precisely because Hobbesians do not see us as naturally having “rights” in the moral sense at all, morality being the result of a kind of contract between rationally self-interested individuals. Even when the contract is made, though, the rights that result seem inevitably to have very little in the way of restrictions upon them, at least in the thinking of contemporary contractarians inspired by Hobbes.Footnote ³⁹ The reason is that it is not any objective natural end that our rights are meant to further on a contractarian account, but rather whatever subjective desires or preferences we happen to have, whether or not these desires or preferences are in line with any purported natural ends. The contract that rationally self-interested individuals would agree to, then, is essentially a nonaggression pact, each party granting the others the “right” to be left alone to do whatever they want to, so long as they are willing to reciprocate. If such a right has very little in the way of restrictions on it, however, that is, again, precisely because it is not natural but (in the relevant sense) conventional.

Of course, contractarians themselves would not regard either the conventional status of rights or the lack of restrictions as a problem for their theory. But contractarian theories also famously face the problems of explaining (1) why we should attribute even conventional rights to the weakest members of society (who have nothing to offer the stronger parties to the proposed “contract” in return for being left alone) and (2) why we should suppose that even every rationally self-interested individual would sincerely agree to such a contract in the first place (since some might prefer to take their chances in a Hobbesian war of all against all, or opt for the life of a free-rider who benefits from others' abiding by the contract while he secretly violates it whenever he knows he can get away with doing so). Contractarians have offered various responses to these difficulties, which typically involve inventive appeals to various less obvious ways in which the strong might benefit from leaving the weak alone, or in which even a rational misanthrope might benefit from sincerely abiding by the terms of the contract. At the end of the day, however, the contractarian can give no rational criticism of someone who fully understands the benefits that would accrue to him by agreeing to the social contract and treating others as if they had rights, but nevertheless refuses to do so. The most the contractarian can say is, “Better keep an eye on that guy, then,” for he might do the rest of us harm. He does not do himself harm, though, on a contractarian analysis; and in denying others their rights, he does not deny them anything they really had objectively in the first place.

For the classical natural law theorist, by contrast, such a sociopath does do himself harm, and also fails to perceive the objective facts about others. As Foot puts it, “free-riding individuals of a species whose members work together are just as defective as those who have defective hearing, sight, or powers of locomotion.”Footnote ⁴⁰ If we look at the evident facts of human experience through the lens of an essentialist metaphysics, we can see that a certain measure of fellow-feeling is, like bipedalism or language, natural to human beings and, thus, objectively good for every human being simply by virtue of being human, whether or not certain specific individuals fail, for whatever reason, to realize this.

V. Property Rights

Much more could be said about the classical natural law theory of natural rights, but our interest here is in the right to private property in particular, so let us turn at last to that. The best-known defenses of private property in contemporary philosophy, those of Locke and Nozick, start with some version of the thesis of self-ownership and work from it to a defense of private property in general, their strategy being to show that if as self-owners we own our own labor, then we must also have a right to the fruits of our labor. Does classical natural law theory recognize anything like the thesis of self-ownership?

Yes and no. On the one hand, if the thesis of self-ownership is taken (as it seems to be by Nozick) to entail the virtually unlimited right to do with ourselves just anything we want, then classical natural law theory obviously cannot endorse the thesis. For if, as classical natural law theorists would typically hold, illicit drug use, prostitution, suicide, and other so-called “victimless crimes” are inherently immoral, then for reasons stated already there can be no natural right to do such things. Moreover, as Fagothey has argued, “since in the exercise of any right the subject always subordinates the matter [i.e., that which the right is a right to] to himself and uses it as a means to his own end, it follows that the matter of a right can never be a person.”Footnote ⁴¹ Fagothey's point is that since every human being already has certain ends set for him by nature, he cannot possibly be entirely subordinated to the ends of another, which he would be if he were owned by another; and Fagothey's immediate aim is to argue against the legitimacy of chattel slavery.Footnote ⁴² But this argument might seem to rule out self-ownership as well, since if each human being has certain ends set for him by nature, he not only could not legitimately use another person, but also could not use himself, for just any ends he happens to have—as it seems he could do if he could be said to be his own property.

On the other hand, it is hardly unusual to speak of someone as owning something even if it is also said that he cannot do just whatever he likes with it. Though I have no right to stab you with my knife, it does not follow that the knife is not my property. Though I have no right to conduct dangerous experiments on radioactive materials in my garage, lest I accidentally blow up the neighborhood, it does not follow that I do not own my garage. Similarly, even if there are limits on what I can legitimately do with myself, it would not follow from that fact alone that there is no sense in which I own myself.Footnote ⁴³ Ownership involves the possession of various rights over a thing—the right to use it, the right to sell it, the right to exclude others from using it, and so forth—and even if someone does not have every possible right one could have over a thing, it will still be plausible to say that he owns it as long as he possesses a sufficient number of these rights. Of course, as it stands, that is somewhat vague. But it suffices to make the point that as long as natural law theory allows that an individual has, over himself and his faculties, certain key rights, such as the right to decide how to employ his labor, the right to life and to bodily integrity, and the right to a significant measure of personal liberty—and the theory would indeed affirm rights of this sort—then perhaps this will suffice to show that natural law theory entails that individuals are, in some significant sense, self-owners.

However, given the qualifications which, as we have seen, would have to be put on self-ownership from a natural law point of view, it is also probably true that the idea of self-ownership ceases to be very interesting. For that idea is, of course, most commonly employed by libertarians seeking to undermine every form of paternalistic morals legislation and redistributive taxation in one fell swoop, as violations of the right of self-ownership; and such a strategy obviously becomes impossible on classical natural law theory. The point is not that natural law theory entails that all or even any redistributive taxation is legitimate—we have yet to address that issue—nor, as I have already noted, is it to say that the theory necessarily entails that there should be laws against vices indulged in privately. The point is, rather, that given the qualifications the theory would place on self-ownership, the concept of self-ownership can no longer serve as a “magic bullet” that automatically takes down everything the libertarian wants to rule out. If self-ownership is far from absolute in the first place, then in order to know whether I either have a moral right to do this or that, or ought at least to be allowed legally to do it whether or not it is immoral, it will not suffice to shout, “I own myself!” One will have to investigate, on a case-by-case basis, how the act in question either helps, hinders, or is neutral vis-à-vis the realization of what natural law entails is good for me; whether a law against it would, even if it is bad for me, do more harm than good, all things considered; and so forth. That I own my home does not by itself settle whether I can sink a well in my back yard, tear my house down and build a skyscraper on the lot, put up a guard tower manned with sentries carrying grenades and machine guns, and so on. Private property rights are simply more complicated than that. Similarly, even if there is some sense in which I can be said to own myself, that does not by itself show that I can inject myself with heroin, become a prostitute, sell my bodily organs for profit, or whatever.

Thus, from a natural law point of view, self-ownership per se would not seem to be a promising basis on which to build a political philosophy, including a theory of private property rights. Still, like Locke and Nozick, many classical natural law theorists have argued that a right to private property follows from a consideration of (among other things) our natural powers, and labor specifically. Indeed, to a large extent, the classical natural law case for private property overlaps with the case made by classical liberal and libertarian property theorists. The difference—and it is a significant one—is in the way this case is informed by a classical essentialist-cum-teleological metaphysics and by the moral implications we have already seen to follow from that metaphysics.

By nature, human beings obviously need natural resources in order to survive. But acknowledging that fact is consistent with holding the view that they ought to be allowed only the use of natural resources rather than ownership of them, or the view that natural resources ought to be collectively owned. Of course, there are very serious and well-known practical problems both with a situation where natural resources are left in the commons and with any system of collective ownership à la socialism and communism. But that would by itself show only that private property has certain practical advantages, not that there is a natural right to it. So how does classical natural law theory show that such a right does in fact exist?

The case begins by noting that the institution of private property is something toward which we are naturally suited and which we even require for our well-being.Footnote ⁴⁴ With respect to the former point, we can note, first, that an individual human being's intellect and will make it possible for him (unlike the lower animals) to take permanent occupation and control of a resource and to use it for his personal benefit; and such occupation, control, and use is precisely what private property consists in.Footnote ⁴⁵ Furthermore, in doing so the individual inevitably imparts something of his own personality to the resources he transforms, insofar as the particular properties a resource takes on as a result of his use and transformation of it reflect his personal intentions, knowledge, talents, and efforts. As Michael Cronin colorfully puts it, considered just as such, “a machine is very little more than crystallized human thought and energy.”Footnote ⁴⁶ In our very use of external resources, then, we tend unavoidably to put into them something that is already ours (which is, of course, something Locke also emphasizes in his talk of “mixing our labor” with external resources).

Thus, our inherent faculties naturally orient us toward private ownership. But such ownership is also necessary for us. It is necessary for us, first of all, as individuals. An individual's personal capacities and potentials cannot be exercised and realized, respectively, without at least some stable body of resources on which to bring his efforts to bear; the freedom of action required in order to do this cannot exist unless he has permanent access to at least some of those resources; and as the experience of individuals in even the most egalitarian societies attests, human beings have a natural desire for at least something to call their own, and cannot be happy if this desire is frustrated.

Ownership is also necessary for us as families. We are naturally ordered toward the having of children; and, as we have seen, for classical natural law theory this entails an obligation to provide for whatever children we have, not only materially but spiritually, that is, with respect to their moral upbringing, education, and the like. Furthermore, as is well known, classical natural law theory entails that large families will inevitably tend to be the norm, given what the natural law tells us with respect to sexual morality (though this is, again, not something there is space to get into here). As children grow to adulthood and have families of their own, they tend to need assistance from their parents in starting out; there are other relatives (aunts and uncles, cousins, and the like) to whom, in some circumstances, we might also owe some assistance under natural law, even if our obligations here are not as strong as our obligations to our own children; and there are always emergencies that need to be planned for as far as possible. As the fundamental social arrangement, for the sake of which others (such as states) exist, it is also crucial that the family maintains a significant measure of independence. These considerations entail that heads of families need to be able to amass large amounts of wealth to which they have permanent rights of use and transfer.Footnote ⁴⁷

Finally, private ownership is necessary for the good of the larger societies that tend naturally to form out of groups of families. Here the sorts of considerations favoring private property famously adduced by Aristotle and Aquinas become particularly relevant. The incentives to labor are massively reduced where the laborer is not allowed to reap its fruits, which drastically limits the amount of wealth available for the use of society at large; economic and social planning are far more efficient when individuals are able to look after their own property than when things are held in common (a point Ludwig von Mises and F. A. Hayek have developed in illuminating detail); and social peace is more likely when individuals each have their own property than when they must debate over how best to use what is held in common.Footnote ⁴⁸

If our natural capacities are ordered toward private ownership, and if the fulfillment of those capacities and of our moral obligations under natural law requires such ownership, then it follows, given the justification of natural rights outlined above, that the natural law entails a natural right to private property. So far, though, this establishes only the general institution of private property. We need to say something more to determine how a title to this or that particular resource can come to be acquired by this or that particular individual. That is to say, we need a theory of “original appropriation” or “initial acquisition.”

The tendency of classical natural law theorists of property is to find the origin of such appropriation in first occupation. Taking occupation of a previously unowned resource is necessary for ownership because unless one first takes hold of a resource, nothing else can be done with it at all, including the carrying out of any other procedure that might be claimed to be necessary for appropriation. In particular, one cannot “mix one's labor” with a resource until one has first taken hold of or occupied it, for which reason classical natural law theorists tend to reject Locke's theory of appropriation at least as an account of the fundamental means by which ownership gets started. Taking occupation is also (apart from a qualification to be noted presently) sufficient for ownership because it suffices to enable one to fulfill the ends for which natural law theory tells us the right to property exists in the first place.Footnote ⁴⁹

Though not as fundamental as first occupation, labor nevertheless also has a crucial role to play in the story of how property comes into being. As I noted above, for classical natural law theory, to labor over a resource is, as it were, to put into it an impress of one's own personality, and thus something one already has a right to. Furthermore, most of the value that comes to exist in a transformed resource derives not from the resource per se but from the labor put into transforming it. As Cronin puts it, “with the exception of a mere fraction of our present wealth, the riches of the world are entirely a result of human labour” (where he is clear that what he has in mind is “labour in its broad sense—not mere manual labour”).Footnote ⁵⁰ Hence, the more one has put one's labor into a previously unowned resource of which one takes first occupation, the stronger or more complete is one's property right to that resource.

This naturally brings us to the question of the limits on the right to private property, which are implied by the suggestion that a property right can be more or less strong or complete. As with natural rights in general, the right to private property has a teleological basis, namely, the role it plays in enabling us to realize our natural capacities and fulfill our obligations under natural law; and, as with natural rights in general, this right is limited by the very teleological considerations that ground it. As what has already been said clearly implies, the right to private property, like our other natural rights, cannot possibly be so strong that it would justify us in doing what is contrary to the natural law. Hence, there can be no natural right to use our property for intrinsically immoral purposes. As before, this does not by itself entail that government must or even should regulate our private exercise of our rights so that it conforms to the standards of natural law. But it does entail that there can be no natural law basis for libertarian arguments to the effect that outlawing strip clubs and drug dens (or whatever) is necessarily a violation of the natural right to private property.

There is, however, another limitation on the right to private property, one that is more directly related to its specific teleological grounding. As we have seen, for classical natural law theory, property exists in the first place in order to allow individuals to realize their natural capacities and satisfy their moral obligations by bringing their powers to bear on external resources. Hence, if property rights were so strong that they would justify some people in using their property in a way that undermined the possibility for others to fulfill their natural ends and moral obligations, then the very point of the institution of private property would be undermined. To take an extreme but clear example, if some one person or group of persons acquired a monopoly over some crucial resource (such as land or water) and refused access to those who did not have this resource, or allowed them access only under onerous conditions, then it is obvious that the institution of private property would allow some individuals to fulfill their natural ends at the expense of the ability of others to fulfill theirs. Clearly, then, the right to private property cannot be so strong as to justify such a circumstance.

What does this limitation imply in practice? The most obvious implication is that individuals in circumstances of what Cronin calls “absolute distress” have a right to the use of the resources of others, where the paradigm examples would be the starving man in the woods who takes food from a cabin, or a window washer who grabs a flagpole to break his fall from a building, or someone fleeing robbers who can only escape by running through someone else's back yard.Footnote ⁵¹ Someone in circumstances like these is not guilty of theft or the like, because for actions like the ones in question to count as theft, etc., the cabin owner or flagpole owner or homeowner would have to have such an absolute right to his property that he could justly refuse to allow others to use it even in the circumstances in question; and, according to natural law theory, no one could possibly have so absolute a property right. For the same reason, if some resource (say, the only remaining source of water in an area stricken by drought) became “absolutely necessary … to save the community or part of it from extinction,” then any individual who had heretofore privately owned that resource would have an obligation in justice to relinquish it.Footnote ⁵²

Here classical natural law theory is committed to something analogous to what the libertarian philosopher Eric Mack calls the “self-ownership proviso” on the use of resources, which “requires that persons not deploy their legitimate holdings, i.e., their extra-personal property, in ways that severely, albeit noninvasively, disable any person's world-interactive powers.”Footnote ⁵³ I say “analogous” rather than “identical” because, for reasons already stated, classical natural law theory is probably not best thought of as basing its theory of property rights on self-ownership per se, and because it is not clear that Mack would allow for a case where an owner would have to relinquish his property, as opposed to merely allowing others to use it (though the distinction between taking and merely using blurs in the case of something like a source of water, which people use precisely by taking some of it). Like Mack, though, natural law theory is less concerned with the initial appropriation of resources (the focus of Locke's famous provisos) than with how they are used after they are acquired.Footnote ⁵⁴ Moreover, as it is for Mack, the key to the issue for classical natural law theory is the possibility of bringing what Mack calls our “world-interactive powers” to bear on the world, since the point of the institution of private property is precisely to allow us to fulfill the natural end of these powers.

In this connection, we should note that classical natural law theorists would argue that their metaphysical commitments allow them to make sense of what they and Lockeans (like Mack) have in common in a way that strict Lockeans cannot. For to speak (as Mack does) of our “powers” as “essentially” “world-interactive” is to say something that naturally suggests an Aristotelian essentialist-cum-teleological metaphysics; certainly, it is hard to see how we could literally have “powers” that are, of their essence, oriented or directed toward the external world on a modern mechanistic or anti-teleological metaphysics, and if this talk is not meant literally then its import needs to be explained. Similarly, Jeremy Waldron has noted that it is hard to see why Locke should think that putting one's labor into a resource would give one a property right in that resource, any more than dropping one's diamond into a vat of cement would give one a property right in the cement, unless we think in teleological terms.Footnote ⁵⁵ But how could Locke appeal to the teleology of labor, or of natural resources, when he denies the existence of Aristotelian final causes? Indeed, how can he even ground a natural right to property by appeal to the concepts of labor, natural resources, etc., when for Locke the essences of things (including, if he is to be consistent, the essences of labor, natural resources, and indeed of human beings themselves) are man-made or conventional rather than natural? The mechanistic metaphysical picture of the world to which Locke and his successors tend explicitly, or at least implicitly, to be committed seems to undermine the foundations of their political philosophy. Yet to try to avoid these difficulties by adopting an Aristotelian metaphysics would entail committing oneself to the classical natural law theory that flows from it, and thus ceasing to be a Lockean—or so I would argue.Footnote ⁵⁶

VI. Taxation

The question of the limits that classical natural law theory would put on the right to private property naturally brings us at last to the issue of taxation. There is no way this subject can be treated adequately without discussing the natural law understanding of the nature of the state and the basis of its authority, and that is obviously beyond the scope of this essay. Suffice it to say that classical natural law theory rejects the classical liberal idea that the state is artificial, a product of human convention, and regards it instead as a natural institution to which we owe allegiance whether or not we consent to it. At the same time, natural law theory regards the state as existing only to serve the interests of its citizens, and only with respect to those functions that private citizens cannot carry out on their own. Hence, the natural law theorist is committed to the idea of limited government, though given what was said earlier the limitations in question would no doubt not be severe enough to satisfy contemporary libertarians. In any event, whatever taxes would be required to fund the legitimate functions of government are taxes that the classical natural law theorist would hold us to be obligated in justice to pay.Footnote ⁵⁷

Beyond this, some further general remarks can be made in light of the theory of property rights sketched above. Other than those limits on the use of one's property that are entailed by one's general obligation not to employ what one owns for evil purposes (e.g., as a drug den or brothel or whatever), we saw that the main limitation, and the one that entails the possibility that one might, under certain circumstances, be morally required to relinquish (or at least allow others to use) one's property, had to do with cases where a more absolute right to ownership would undermine the very point of the institution of private property. But how can we be required in justice (not merely in charity) to give up our property rights even in these cases, especially since, as we have seen, it is our talents and energies that are primarily responsible for the existence of the objects owned in the first place, and since in using our talents and energies we have put something of ourselves into the products of our labor? As Cronin argues, the answer to this question must lie in the fact that we are never entirely responsible in the first place for the existence of the things we produce, since we must always make use of natural resources which we did not create and which start out unowned by anyone.Footnote ⁵⁸ For if others have at least some claim over these preexisting resources even before we transform them with our labor, that claim will persist even after we do so—even though the claim is so weak that it will require us to relinquish our property rights only under certain exceptional conditions. That others do have such a claim is entailed by the reason for which property rights exist in the first place, namely, to allow us to bring our capacities to bear on external natural resources so that we might fulfill the ends and obligations set for us by natural law.Footnote ⁵⁹

These various considerations would appear to suggest what we might call a Natural Law Proviso on the use of property, according to which an individual has a natural right to use whatever property he acquires either via first occupation or by trade, gifts, wages, inheritance, etc.,Footnote ⁶⁰ in any way he wishes, provided that (i) he does not use his property in a manner that is directly contrary to the general moral obligations imposed on us by the natural law, and (ii) he allows those who lack resources sufficient even for the possibility of the fulfillment of their own natural capacities and obligations to use or take ownership of his property to the extent and in the manner that their particular circumstances (and his own) dictate.

This is a very rough formulation; a more complete treatment would no doubt require some tightening up, such as the addition of further qualifying phrases. It seems to me, however, that it is a useful first approximation, and that it gives us a basis for determining the grounds and limitations set by natural law for taxation and for governmental regulation of the use of private property. What sort of regulation and taxation might this proviso justify, at least in principle? Much more than libertarians would be happy with, but also, it seems to me (and contrary perhaps to first appearances), much less than egalitarians would be happy with.

The implications of the proviso's first clause should be evident from what has been said already. If there can be no natural right to use one's property for intrinsically immoral purposes, then it seems at least in principle allowable for government to regulate property to prevent this, at least where such use might have a dramatic negative impact on public morality. (Again, whether this is advisable in practice in any particular case is a separate issue.) The qualification that it is uses that are “directly” contrary to natural law that are ruled out by the proviso is added to forestall governmental interventions that are so draconian that they would effectively undermine the institution of private property. Thus, for example, it is reasonable (if one accepts the standard natural law attitude toward illicit drug use and sexual morality) to hold that no one has a natural right to use his property as a public opium den or brothel. And it would be absurd to suggest that a government that forbade such uses was totalitarian, or threatened the very institution of private property. Nonetheless, it is another thing altogether to hold that no one has a natural right to sell a home or rent an apartment to someone he believes will be carrying out this or that immoral activity in it in private, or to suggest that a government could enforce a prohibition on such selling or renting practices without endangering the integrity of the institution of private property.Footnote ⁶¹ Such selling or renting practices would of themselves involve at most indirect cooperation in immorality, which natural law theorists regard as sometimes permissible in light of the principle of double effect.Footnote ⁶²

The second clause of the proposed proviso is what would justify the starving man in the woods taking food from a cabin and similar uses or seizures of another's property in emergency situations. It is also what would justify the taxation required for the necessary functions of government (national defense, courts of law, etc.), since from a classical natural law point of view, the very existence of the community, and thus the possibility of its members' fulfilling the ends set for them by nature, depends on the state's performance of these functions. Again, though, an adequate treatment of this issue would require a detailed exposition of the natural law theory of the state.

It seems clear that the second clause of the proviso would also justify taxation for the purposes of funding some measure of public assistance for those in absolute distress who are incapable of either finding work or getting help from family members and friends. For these circumstances would seem to be relevantly similar to those in which the starving man in the woods finds himself. Bureaucratic inefficiency, fraud, and welfare dependency are potential problems here, but they are problems of practical implementation rather than moral principle. Governmental regulation to prevent monopolies on natural resources crucial to the existence of the community (such as water) would also seem obviously justifiable, and though there are, here as elsewhere, practical problems whose solution requires a sound understanding of economics, they do not entail that such regulation would be unjust per se.Footnote ⁶³

Would the second clause of the Natural Law Proviso require a more extensive system of “welfare rights,” such as governmental provision of health care, education, and the like? It does not seem to me that it would, at least not by itself. Property as we know it is the result of two factors, natural resources on the one hand (such as land, water, plants, animals, minerals, etc.) and the labor and ingenuity of specific individuals on the other. Following Cronin, I have suggested that it is the fact that everyone has at least a general claim to the former that justifies putting some limitation on the right to private property. But there is no general claim to the latter; that is to say, no one has a claim in justice to the labor, ingenuity, etc. of a particular individual except that particular individual himself (as well as those to whom he has certain specific obligations under natural law, such as his children). The things a human being needs in order to stay alive and thus to have the possibility of fulfilling his natural capacities and obligations—namely, food, water, basic shelter, clothing, and the like—are included among natural resources, or at least require only the most rudimentary effort to produce. As a Lockean might say, these things exist even in a state of nature, before property rights have been established and even before anyone has exerted much or any labor or ingenuity at all. Hence, it is plausible to hold that those with no access to these basic resources have a right to public assistance to the extent needed to feed, clothe, and shelter themselves until they can once again become economically self-sufficient. However, education and health care are not naturally existing resources like food, water, etc. They exist only because of the highly specialized labor and ingenuity of particular individuals. But in that case they are not among the natural resources to which everyone has a general claim under natural law, and thus they are not the sort of thing access to which could plausibly be guaranteed as a matter of justice by the Natural Law Proviso.Footnote ⁶⁴

There is, to be sure, a weaker right to these things under natural law, just as there is a right to economic and other assistance more generally. Given that we are social animals by nature, we have various obligations to one another that derive not only from family ties, but also from being friends, fellow citizens, or even just fellow human beings. Hence, just as others have a right to be treated by us with courtesy, respect, and the like in our everyday dealings with them, so too do they have a right to our assistance when they are in distress, simply by virtue of being friends, fellow citizens, and fellow human beings (with the strength of these rights varying according to how close our relationship is to the people in question). But it does not follow from this that our obligations here are the sort that ought to be met through taxation for the purposes of funding extensive social programs, any more than the fact that everyone has a right to be treated courteously entails that government has a duty to throw me in jail if I am rude to someone. There is a distinction traditionally drawn in rights theory between perfect rights—those which uphold the very possibility of morality, entail absolute obligations, and are paradigmatically the sorts of rights governments ought to enforce—and imperfect rights, which tend merely to support morality and entail only some lesser degree of obligation, and which governments need not enforce. The right of an innocent person not be killed is obviously a perfect right, while the right to be treated courteously is obviously only an imperfect right. And while there is obviously a strong case to be made for the claim that we have an imperfect right to be aided by others when in distress vis-à-vis health care, education, and the like, the Natural Law Proviso does not seem to entail that we have a perfect right to such assistance.Footnote ⁶⁵

It is also important to keep in mind that in a society whose ethos is deeply influenced by the principles of classical natural law, families will tend to be much larger and more stable, religious and other social institutions intermediate between the family and government will be stronger and have a greater role in people's everyday lives, and in general the “individualist” mentality of modern liberal societies will be absent. The circumstances in which individuals would be unable to find assistance from sources other than the government would, accordingly, be extremely rare. But this raises another possible justification of a right to at least minimal assistance when in distress vis-à-vis health care and the like. I have argued that the Natural Law Proviso does not imply an obligation in justice for government to provide such assistance; our rights against others to assistance in obtaining these specific things are at most imperfect. But suppose the ethos of a society is informed by natural law principles in the way I have just described. Suppose, in particular, that the individuals who make up such a society are in general so united in their basic values that the majority of them are willing to accept taxation for the purposes of aiding those relatively rare individuals who have no recourse to family, friends, etc., in obtaining decent health care, education, and the like. Again, they are not obligated in justice to accept such taxation. But may they do so? It seems to me that they may, even if there is a minority of individuals who would not agree to such taxation, but who are “outvoted.” For even this minority has an imperfect obligation to provide assistance; and while the usual reason for not enforcing imperfect obligations is that doing so would be impractical or draconian, that consideration does not seem to apply in this case. For the policy in question would not be like a policy of punishing rude people through force of law, which, far from making ordinary life more pleasant, would make it intolerable. The policy in question would simply be one of collecting a relatively small amount of extra tax money to aid a relatively small group of people in unusually difficult circumstances. That is surely workable.

A further possible justification of a right to assistance when in distress vis-à-vis health care and education would be to hold that such assistance falls under the “public good” that the state is obliged to provide for under natural law. The operative principle here is that of subsidiarity, according to which the more central authorities within a society should not carry out any functions that can be performed by the less central ones, though the more central authorities should carry out those that cannot be performed by the less central ones. To the extent that those in distress vis-à-vis health care and education simply have no other recourse, a right to assistance would arguably follow, if not from the Natural Law Proviso by itself, then at least from that proviso together with the classical natural law theory's conception of the state and its proper functions.

The extent of governmental assistance such a right would justify is another question, and here I will end with three points. First, what classical natural law theory strictly requires and strictly rules out in the way of practical policy is much less than many partisans of various political persuasions would like. What it strictly requires is a system of private property rights that are robust but not absolute. What it strictly rules out, accordingly, are socialism at one extreme and laissez-faire libertarianism at the other. Between these extremes, though, there is wide latitude for reasonable disagreement among classical natural law theorists about how best to apply their principles, and these disagreements can largely be settled only by appeal to prudential matters of economics, sociology, and practical politics rather than fundamental moral principle.

Second, it would be a mistake to conclude from this that a classical natural law theorist ought always to favor policies that fall exactly midway between these extremes. As any good Aristotelian knows, although any virtue is a mean between opposite extremes, one extreme can sometimes be a more serious deviation from virtue than the other is. Natural law theory takes the family to be the fundamental social unit, which puts it at odds with both the excessive individualism of the libertarian and the collectivism of the socialist. But the family is obviously closer to the level of the individual than it is to the level of the “community” or “society” as the socialist tends to understand those terms, namely, as referring to the entire population of a modern state. Furthermore, while classical natural law theory is concerned both with affirming the right to private property and with meeting the needs of those who lack resources of their own, there is a clear sense in which the former concern is analytically prior, at least where questions of justice (as opposed to charity) are concerned. For the theory starts by affirming the right to property and only afterward addresses the question of how that right might be limited. There is a presumption in favor of a person's having a right to what he owns even if that presumption can sometimes be overridden. In these ways, it seems clear that the classical natural law approach to property rights is at least somewhat closer to the libertarian or individualist end of the contemporary political spectrum than it is to the socialist or collectivist end.Footnote ⁶⁶

Third, it needs to be emphasized that the sort of assistance through taxation that I have countenanced here essentially involves emergency aid to those in distress, not only in cases where the Natural Law Proviso strictly requires such aid (e.g., for someone in danger of death by starvation) but also where it merely allows it or where the “public good” functions of government kick in (e.g., for someone unable to afford education or health care). It does not follow from this that government could legitimately provide education and health care to its citizens in general, either through cash payments funded via taxation or (even less plausibly) by directly providing educational and health services itself. While the issues involved here are complex, it seems clear that given its emphasis on private property, the independence of the family, and subsidiarity, there is at the very least a strong presumption implicit in classical natural law theory against the social democratic approach to these matters and in favor of private enterprise.