The coronavirus pandemic provided governments around the world with new excuses to consolidate their power to the detriment of citizens. According to research by Freedom House, a reputable NGO that examines democracy and the rule of law internationally, the protection of human rights and the health of democracy weakened in 80 countries throughout 2020. Some states, such as Singapore, passed laws stifling civil dissent under the pretext of curbing cases. Others, like China, exploited the situation to arrest prominent democracy advocates, knowing the public’s response would be tamed by fears of spreading the virus. In these trying times for democracy, it is worthwhile to examine the fundamental ideas that underpin liberal political thought: namely, the notion of natural law and natural nights.

Natural law theory stipulates that humanity has a morality anterior to written and divine law (i.e., religion). From this natural law extends the implication of natural rights; written law cannot go against certain fundamental rights embedded in human nature. Therefore, the government must protect mankind’s natural rights in order to conform to the natural law. Indeed, for some theorists such as John Locke, the government’s sole role is to protect the individual’s natural rights with the coercive power of the law.

But the very existence of natural law is a subject of intense debate. Indeed, it rests on the notion that there is morality expressed in a “law” distinct from positive or divine law. The notion of an embedded natural morality presupposes that humans are different than other creatures of nature in possessing the capacity to interpret this morality; most natural law theorists would be reluctant to consider all creatures as equal in this regard since it would entail accepting natural rights for non-human beings. Nevertheless, the assumption requires the presence of an entity to differentiate humans from other animals—i.e., a God. The recourse to God, however, is troublesome, given philosophy may not take anything for granted—including the existence of a deity. So there must be a natural distinction between Man and other creatures if we are to be special in possessing the ability to discern the natural law. Such a distinction is the presence of reason. Therefore, reason must be the root of natural law. 

Reason allows one to differentiate between the good and the bad; it is the source of the morality of natural law. Natural law is consequently not impressed by God as a special part of our nature but stems from Man’s use of reason. Is it not, therefore, merely an extension of positive law, written and legislated by individual reason? Not quite. One does not need always need reason to distinguish good from bad; some acts are obvious to us. For example, charity will always be viewed as good, murder always as bad—reason does not show this, but it looks obvious by “nature.”

Yet, as we have seen, it is reason that illuminates the “good” and “bad” in nature and thereby forms what we consider natural law. We might conjecture a naturalistic explanation of how the use of reason led to a seemingly innate sense of morality. In the earliest communities, humans were like beasts—nothing was considered good “in of itself.” However, through reason, humans managed to distinguish good from bad, understanding that arbitrary murder, for example, is not conducive to the collective good. What was abstract over generations became concrete—internalized, to use the sociological term—to the point where the “bad” is obvious and the “good” explicit in the most basic of matters. 

So natural law does seem to exist, though not in the way some previous interpreters suggested (i.e., the presence of God as the ultimate source of our morality). But what about natural rights? That humans possess these natural rights outside of the scope of the sovereign is more of a new idea, a product of the struggle against absolute monarchy in the late 17th and 18th centuries. It arose out of the notion of the “state of nature”—a time marked by the absence of a State. In this framework, Man was free for there was no coercive power to subdue his liberty. Yet the arbitrary character of the state of nature—there were no limitations on liberty, meaning one’s liberty could override another’s—gave way to the presence of the State, established by an intangible social contract between the people and the sovereign, which offered protection and the implementation of law and order. 

But there are several difficulties with this notion. For one thing, how do we know these rights truly existed in nature? The state of nature appears, in reality, to be closer to Hobbes’s view of a ‘’state of war’’ than a Rousseauian paradise where people live in harmony. Perhaps the very notion of “rights” and “liberties” stems from the State—we are not free until we enter the polis and form a legal community. But ascribing fundamental, natural rights such as the freedom of speech, the right of association, freedom of conscience, and even private property to the State is a dangerous task, for it supposes that since the State provides these rights, it also has the authority to strip individuals of them at its will. Thus, the concept of natural rights arising from the state of nature serves more of a theoretical, rather than historical, purpose: we must imagine a theoretical sphere where humans were free from the constraints of any authority, and that this sphere is the natural sphere, and that government cannot infringe upon it except by the due process of law. In this sense, a country’s constitution is not Man conquering the state of nature—the establishment of a government. While the creation of a government is certainly part of the constitution, its recognition of natural rights, expressed in a ‘’Bill of Rights,’’ becomes the formal extension into a legal community of the freedom Man enjoys in nature.

It seems natural law, albeit problematic in some aspects, does provide a solid foundation for contemporary concerns about human rights and the extent of government authority. The humanist and liberal concern for the self-fulfillment of the individual can only be realized through the recognition of natural rights; it is only when we are free that we can choose our destiny and live in harmony. The liberal concern for individual fulfillment merges with the natural law tradition in the creation of a constitution, which provides the formal extension of natural rights into the sphere of government as established by the social contract between individuals and the State.