Natural Law Jurisprudence: A Skeptical Perspective

By Kozinski, Alex | Harvard Journal of Law & Public Policy, Summer 2013 | Go to article overview
Save to active project

Natural Law Jurisprudence: A Skeptical Perspective


Kozinski, Alex, Harvard Journal of Law & Public Policy


I am a textualist, and the text of the Ninth Amendment says that the enumeration of certain rights does not indicate that no other rights exist. (1) Being primarily a textualist, I am also a bit knowledgeable about history. Many of the Founding Fathers were believers in natural law. (2) I am tempted by and interested in the subject of this debate regarding natural law and constitutional law, and I think the work that Professor Arkes is doing in trying to explore the limits of natural law and its contours is very important. The Constitution aside, there is something fundamentally right about the idea that we have rights that inure to us because of who and what we are as human beings.

I am tempted. But my mission is to raise a little skepticism about the contours of natural law and perhaps to suggest some caution. Although I don't oppose the approach, I think it's important to be careful what you wish for. You might actually get more than you want.

There are a few problems I want to identify at the outset. First, one prominent natural rights regime is based on a theory that we came out of the state of nature, brought with us certain rights, and never gave up those rights upon entering society,

except to the extent society could better effectuate them. (3) The reality, of course, is that there never was a state of nature. Human beings have always lived in society, so the idea is really more philosophical than historical.

Because the state of nature is a construct, we don't have any real history of what the state of nature was. We therefore need to start with some sort of agreement as to what rights we had in that theoretical state that never existed, which leaves a lot of room for play. Having been around judges for a long time, I must say that when you give judges room for play, you are taking your life in your hands.

We also must realize that the idea of what those natural rights are has changed, and will continue to change, over time. Let me give two simple examples. Cast your mind back to the time when the Constitution and the Bill of Rights were adopted. At that time the right to vote, which today everyone would say is the right of every law-abiding adult, (4) was limited to white men. Women were not allowed to participate, nor were people of color or Indians. But it wasn't only minorities who weren't allowed to participate; not even all white men could vote. In many places, you had to own property to vote, and the idea that people who didn't have a house would participate in the political process was heresy. (5)

Few people today would suggest that it is not a natural right of citizenship to be able to vote and participate in the political process. Never mind what the Constitution says. Never mind what the courts have said. Regardless of all those things, we all agree that being an adult human being, regardless of sex or race, entitles you to participate in the political process if you are a citizen. Our view of what is natural has changed in this regard.

Think about the Internet. Most of the Founding Fathers would have thought the right to speak freely--the right to stand on a street corner on a soapbox and speak--was a natural right. But what if someone had asked, "Well, George or James, what do you think of the Internet? Do you think there's a right to blog?" They would have said, "Huh?" Obviously, these things evolve, and it's not just a question of technology. Technology changes the way we relate to one another, the way we communicate, and the way we participate in the community and in the political process. The idea that there is not some fixed notion of natural rights that existed then and that we apply today is an important one. Our conception of natural rights evolves over time, just as our constitutional interpretation does.

Finally, there is the question of what happens when natural rights clash with statements in the Constitution.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Natural Law Jurisprudence: A Skeptical Perspective
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?