Natural Rights, Natural Law, and a Conservative Renewal Update 2

More insightful commentary from Hans-Martien ten Napel here ("A Natural Law Basis for Human Rights?"). In it ten Napel expresses belief that the Straussian argument is true: that the American Founding retained a substantive connection between the historic natural law tradition and the Enlightenment's anti-tradition of natural rights. Whatever may have been the case in 1791, I'm not sanguine now.
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Thomas K. Johnson elaborates here (“Unalienable Rights and Religious Freedom”) on one of the themes of my original post below. Johnson takes the creation of the State Department Commission on Unalienable Rights and the question of public meaning of "unalienable rights" back a step to the Virginia Declaration of Rights, published three weeks before 4 July 1776. Quoting from Johnson's pots

The famous words in the Declaration of Independence about unalienable rights are a shorter, more quotable version of the same ideas in the Virginia Declaration. But the Virginians explained unalienable rights more clearly. They are the rights that are inherent in a person and which cannot be given by a society nor taken away by a society. In this sense, they are natural rights, since they are given by nature, not given by society or government. These rights include the rights of life and liberty, to pursue property, happiness, and safety.

One point in which the Virginia Declaration differs from its famous younger sibling is how God is mentioned; this difference in the longer version should still the fears of those who ask if a new concern for unalienable rights endangers the separation of church and state. Whereas the theology of the Declaration of Independence describes God as the source of rights (people are “endowed by their Creator with certain unalienable Rights”), the Virginia text mentions God only in the paragraph regarding freedom of religion ... . (Emphasis added.)

Johnson believes this de-centering of God should assuage the fears of contemporary hard-core secularists. I won't hold my breath. A bit more plausible is Johnson's explanation that this understanding of natural rights protects freedom of religion and entails disestablishment. Of course, I'm afraid that even consideration of this nuanced historical claim will find short shrift in today's political climate.

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It is not regularly the case that a writer/blogger on whom I comment returns the favor. This is, however, one of those cases. Hans-Martien ten Napel read the post below and graciously responded. I turns out that ten Napel has already taken up the cause with which I ended (“perhaps liberalism is the best of all plausible contemporary alternative political systems, but such is a conclusion for which argument and not simple assertion is required”) and is writing a book on the very subject. You can read his responsive post here. And be on the lookout for his book.

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Let's compare and contrast. We can start with Hans-Martien ten Napel's piece The Natural Law and the Natural Rights Tradition: A Foundation for Religious Freedom (here). The burden of Ten Napel's piece is to show that religious freedom has long stood as a "natural right" in the liberal tradition:

The history of modern human rights, such as the right to religious freedom, goes back approximately 250 years to the idea of constitutional government securing natural rights. In so far as this notion has faded over time, with a view to the future of rights like religious freedom it might be worthwhile bringing it back into focus.

Following the sort of argument I made nearly ten years ago in Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (here), Ten Napel observes that the growing plethora of rights threatens to swamp the entire enterprise. As the human rights "industry" continues to create additional rights seemingly without limit, long-standing natural rights become ever-less important: "There are clear indications that religious freedom has increasingly come under pressure around the globe in recent years, the right to freedom of religion or belief remains very much on the margins within the international human rights system as a whole." In other words, if humans enjoy only a few natural rights like, say, life, liberty, and pursuit of happiness (within which freedom of religion was cabined), then each is a BIG DEAL. If, as is now the case, however, scores of human rights have been identified in various international conventions (and hundreds more have been put forth in a never-ending stream), then freedom of religion is only a small fish in a very big pond.

Enter the State Department of the United States that in May established a Commission on Unalienable Rights. According to the notice posted in the Federal Register,

The Commission will provide the Secretary of State advice and recommendations concerning international human rights matters. The Commission will provide fresh thinking about human rights discourse where such discourse has departed from our nation's founding principles of natural law and natural rights. (Emphasis added.)

Such a Commission has the human-rights industry in a tizzy. References to "founding principles" and--God forbid!-- natural law threatens to expose the sexualization of rights as nonsense on stilts. At this point Ten Napel tries to cover his bases with a rhetorical sleight of hand:

It is not quite as self-evident as it may seem that a return to the roots of human rights poses a risk to, for example, LBGTI rights. Much depends on whether natural rights are seen in isolation or within a natural law context.

Now is not the time to discuss the historical relationship between natural law and natural rights. Yet, as long as the adjective "natural" is understood in an ontological way, LBTQ rights fail the test. They may, of course, qualify for legislatively sanctioned political and civil rights in a particular polity but not as natural rights. Ten Napel is unwilling to grasp the nettle and fuzzes over this conundrum because of his commitment to the current liberal order ("a system in which citizens are free to pursue the good life they have chosen for themselves"). What if that order called into question?

Next we can turn to Brad LIttlejohn's piece A National Conservative Awakening (here). A stirring riff on the themes of the recent National Conservatism Conference, Littlejohn covered many speakers and topics including one on the place of natural law in the American liberal tradition:

[T]he core issue in American society and politics today was the rejection of natural constraint, the “revolt against reality.” From this standpoint, national conservatism can critique both the out-of-control anti-natural sexual politics of the Left, the unmoored individualism of the Right’s homo economicus, and the imperialistic globalist consensus of many of our political elites. It is no coincidence that free-traders, LGBTQ activists, and pro-immigration crusaders all react viscerally against the idea of boundaries as sources of evil.

The natural law tradition, grounded in ontological and moral realism, is about recognizing limits for the sake of creating the framework for a flourishing human life. In other words, there is no natural warrant for a regime of either unlimited economic or sexual autonomy (or both).

Ten Napel recognizes the problem of rights running amok. He also recognizes that rights invented at the whim of this, that, other other special interest group threaten to attenuate all rights including natural rights. He seems unwilling, however, to take a critical look at the liberal system that makes such a rights-creation industry possible. Perhaps liberalism is the best of all plausible contemporary alternative political systems but such is a conclusion for which argument and not simple assertion is required.