Taking Natural Law Seriously Within the Liberal Tradition
This essay analyzes the relationship between rights and the rule of law through the investigation of the jurisprudence of three significant figures in the liberal tradition: Ronald Dworkin, Michael Oakeshott, and John Finnis. Dworkin’s approach, which attempts to defend natural rights and to contribute to improving the general communal welfare, is shown to result in a strong role for judges (with their presumptively better faculties of moral judgment) to navigate between protecting rights and the common good where the rule of law is put in the service of social evolution. Oakeshott’s ideal of civil association is explored as an example of a non-instrumental practice. Here the rule of law and political authority contribute to a mode of association that does not coerce or subordinate individuals’ self-chosen purposes to a communal one. Attempting to navigate between normative concerns and the proceduralism of a rule of law, Finnis’ natural law approach is shown to respect the universal human desire to flourish and the individual nature of that search embodied in our modern political vocabulary of rights. Law provides the necessary conditions for human flourishing and thus is both the symbolic and the real realm where we ceaselessly attempt to reconcile individual demands and collective needs in light of our limitations and views of the human good.