What a Natural Rights Regime Requires

There is a unique satisfaction in seeing a colleague’s work mature into a worthy contribution to the understanding of liberty. Randy Barnett’s articles on contract, the Second Amendment, and the Ninth Amendment have been all important statements. Now, his thinking on liberty flowers into a thoughtful, humble, and frank declaration.

Barnett’s professional life would have drawn an approving nod from Aristotle. As he brings into perfection the potentialities of his thinking, as he achieves excellence in his life’s work, Barnett exemplifies–intellectually at least–the well-lived life. I only wish that Aristotle (and his disciple Aquinas) had figured more largely in the substance of the work. Without them, Barnett’s theory remains unsatisfactorily grounded in sentiment.

A Frank and Honest Examination

Barnett does acknowledge natural law, but, for him, it is a contingent set of norms left to the area of morals and left out of the area of rights and law. Similarly, Barnett structures his notion of liberty around a telos–the “pursuit of happiness.” His pursuit of happiness, however, is without content and is not derived from the natural law. It is not the telos of the well-lived life of virtue of Aristotle nor the notion of human “flourishing” of John Finnis nor that of “individual flourishing” of Douglas Rasmussen and Douglas Den Uyl, with whom Barnett mistakenly allies his idea of the pursuit of happiness.

With his theory in fact ungrounded in natural law, Barnett’s individual liberty comes dangerously close to an exercise in amoral autonomy, not the moral autonomy of Kant nor the implicit rights/responsibility complementarity of Aquinas.

Nonetheless, putting aside his misapplication of natural law and turning to the meat of his work, we find that Barnett has examined frankly and honestly what a regime of natural rights would require. By acknowledging the practical limits of a regime of liberty, Barnett advances the credibility of classical liberal theory.

At this level, Barnett’s volume is a wonderful piece of political theory. It is clearly structured and argued, filled with turns of analysis that startle and enlighten. Its strength is that much of its argument is based on common sense, on the experience of living in a complex society, and on understanding that in human terms one cannot make a perfect circle encompassing all the right answers to every situation. His writing is not of the irrelevant and dangerous theorist scribbling in the reading room of the British Museum (or in the Harvard Law School library) but of the master teacher, explaining principles by reasonable examples and applications, repeating points from different perspectives, and knowing when a definition cannot be pushed into absurdity.

Barnett modestly begins by basing liberal theory not on some abstract Kantian, Cartesian, or Gewerthian notion of the ego, the self, or the lonely actor, but on practical consequentialist reasoning by the “if-then” formula. If we think that human nature impels people to seek the pursuit of happiness, prosperity, and security, then certain things must occur for those objectives to be realized. In particular, it is Barnett’s insight into the practical limitations of knowledge that gives his theory a grounding other liberal theories have often lacked (excepting, most notably, F. A. Hayek). Barnett does not have to be a relativist or a postmodernist to notice that knowledge is intensely personal and, when shared within the scope of the people with whom one deals, very local. Barnett’s book does not deny that there may be objective truth. It only emphasizes the individual and localized situation in which each person finds himself when dealing with choices in an environment of scarce resources.

An Exegesis of Federalist No. 10

With those purposes and within the limits of knowledge and resources, the question comes down to how one can order relations to best accomplish the ends he posits of human nature: pursuit of happiness, prosperity, and security.

Barnett spins his theory through what is essentially a sophisticated exegesis of Federalist No. 10. He rejects, as did Madison, the option of changing people’s preferences to obtain order, instead turning to methods of regulating people’s actions. He easily shows the intractable problems in obtaining knowledge present in most centralized planning schemes and opts instead for a decentralized order with local, individualized, or small-group “personal” jurisdictions. Each personal jurisdiction possesses several elements of property, and, between personal jurisdictions, there are consensual transfers and mechanisms of coordination. Here Barnett shows the practicality of his project when he relies on custom and convention to define the several kinds of property that exist within one’s personal jurisdiction. Similarly, convention establishes the limits on what constitutes a harm and defines the mechanisms of coordination.

The amalgam of rules, definitions, methods of consensual transfer, requital of harms, and types of several forms of property is the law. Barnett pays homage to Lon Fuller’s analysis of what truly is the nature of law as law: Laws must be promulgated, general, consistent, stable, and so on, but Barnett adds the fact that neither human experience nor rights are static but are subject to cultural evolution. Hence arises the salutary method of the common law and its devising of rules for human action, the corrective element of electoral-made law (though I believe he underestimates the ultimate effect of such a corrective on evolutionary legal forms). He deals with the problems of partiality in the administration of the law through the rule of law (law must have an objective personality), the Madisonian device of local personal jurisdiction, the role of lawyers, and the mechanism of consent–devices Americans have traditionally used to limit partiality.

Natural Law’s Perspective

The thoroughly practical exegesis of liberal theory will make this book a standard for many years to come. His sophisticated defense of the rule of law convincingly demonstrates the necessity of exercising individual liberty among variably ignorant and often self-interested persons. There are, however, three places in which natural law norms might have provided a salutary perspective to Barnett’s theory. They arise from norms that are external to his scheme, transitive through his theory, and internal within his theory.

First, Barnett argues that the nature of man is to pursue happiness. On the other hand, what if the end of man is to attain happiness? To a traditional natural law theorist, happiness is participation in the good. That participation may–indeed, must–in the nature of things, be very individual and local, but it is still participation in the good. It tells us what the pursuit of happiness is for.

Second, at critical junctures Barnett relies on conventions to keep the legal and political process from becoming rigid. This is one of the attractive aspects of his theory. This process is not frozen but maintains its integrity through time. His beloved common law–the evolutionary legal system–is a form of rationally guided convention. And he relies on socialization (which needs conventional devices) to help achieve a level of compliance with the rules of the system. Such conventions fill in his structure with normative rules: What is a nuisance and why? To what extent are my words my property? When is something truly libelous? Thus his theory provides a window to a Burkean natural law: those conventional norms that have developed through the moral experience of a free people.

Third, Barnett spends many useful pages on the costs of choice in a personal and local world of limited knowledge. By this insight, he brings in the fact of our moral responsibility for our acts. We bear the costs of our decisions, and those costs are not always, perhaps not even usually, material. We are therefore always vulnerable. There is no perfect security in our choices, yet we make them nonetheless as best we can. And we make them with other people. We freely connect, as vulnerable, relatively ignorant persons, with other persons similarly situated. The connection of vulnerable persons one to another in reliance and trust is what creates community. These localized communities are, in fact, the most effective moral and socializing agents. Consensual transactions between people make present the reality of intersubjectivity. It is the phenomenological, if you will, apprehension that the other person is a self. In Barnett’s real world, we come to comprehend that human beings do possess a common nature and that nature contains its own imperatives.