Natural Law and Rothbardian Liberty
Natural law is often regarded with suspicion by social scientists because they conceptualize human nature, and increasingly even the nature of animals, as a social construct. In their view there is no essential human nature by reference to which we can decide what is in the best interests of society. They argue that we must instead adopt an aspirational approach, by constructing a better and fairer world for the planet, and by discovering what is best for society through a process of scientific experimentation. From that perspective notions of “right” and “wrong” are nothing more than majority opinions ascertained through democratic debate and agreement, and it would be hopelessly arbitrary and subjective to decide right and wrong by reference to some “higher” law called the law of nature.
In The Ethics of Liberty, Murray Rothbard rejects these perspectives, arguing that the skepticism with which natural law is generally regarded is entirely misguided. Rothbard observes that,
Among intellectuals who consider themselves “scientific,” the phrase “the nature of man” is apt to have the effect of a red flag on a bull. “Man has no nature!” is the modern rallying cry and typical of the sentiment of political philosophers today was the assertion of a distinguished political theorist some years ago before a meeting of the American Political Science Association that “man’s nature” is a purely theological concept that must be dismissed from any scientific discussion.
Legal positivists are particularly keen to extinguish the idea that law is based on moral principles. Similarly, many utilitarians evaluate law based on its consequences for society, not based on morality. The debate in the UK about decriminalizing “assisted suicide” is an example of the desire to avoid theological or moral influences in debating law reform. It is no longer a crime in the UK to commit or attempt to commit suicide, so there is no law to prevent anyone committing suicide should they wish, but anyone assisting another to commit suicide risks being prosecuted for the crime of “encouraging or assisting suicide” under the Suicide Act 1961 or even, in serious cases, the crime of homicide. Thus, decriminalizing assisted suicide would establish that it is not unlawful to assist suicide, and supporters of assisted suicide argue that “moral” considerations should not enter the decriminalization debate.
The biblical edict, “Thou shalt not commit murder,” for centuries sufficed for many people as an explanation of why murder is forbidden. It has therefore long been assumed that any argument that murder is “wrong” in the moral sense must necessarily be a religious principle. This explains why any attempt to introduce “moral” arguments into the assisted suicide debate is then treated as an inappropriate attempt to introduce theology into the law. Religious principles are, of course, only binding on their own followers, therefore, in a secular age, it is deemed preferable to say that murder is illegal and that the rea
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