Natural Law, the Common Good, and Limited Government: Friends, Not Foes

Many conservative intellectuals fear that robust accounts of the political common good rooted in natural law are inimical to freedom and limited government. Kim Holmes’s recent essay in The New Criterion is a case in point. Holmes believes that so-called “common-good conservatives,” including “philosophers who wish to resurrect the moral organizing principles of natural law” are “questioning traditional American conservatism’s commitment to limited government,” and “talking up the virtues of the common good in ways that call into question their commitments to liberty and freedom.” Yet do those committed to principles of limited government (regardless of whether or not they call themselves conservatives) actually have anything to fear from contemporary natural law accounts of the political common good?

The answer depends in part on whose account of natural law and the common good one is talking about. The “integralist” view of the political common good defended by a handful of Catholic authors like Adrian Vermeule and Thomas Pink is indeed a threat to limited government, but that view is an outlier that is difficult to square with the broader natural law tradition and especially with the Catholic Church’s strong stance on religious freedom in Dignitatis Humanae. On the other hand, according to more mainstream natural law accounts of the political common good—accounts like those provided by Ryan Anderson in his response to Holmes—the principles of natural law actually protect limited government, rather than threatening them. Here I offer a deeper explanation of why that is the case, arguing that natural law principles—rooted in the Thomistic tradition, and developed by contemporary scholars like John Finnis and Robert George—provide our best defense of liberty and limited government.

Basic Principles of Natural Law

First, a primer on natural law. Natural law refers to the principles of practical reasoning and morality that can be discovered through rational reflection on human action, human nature, and the human good. Natural law’s first principles direct us to respect and promote human flourishing in its various fundamental dimensions: bodily, psychological, intellectual, moral, social, and spiritual. The basic and intrinsic aspects of our flourishing—or basic human goods—that are identified in natural law’s first principles correspond to these dimensions of our being, and include goods such as life and health, knowledge and appreciation of beauty, work and play, friendship, marriage and family, integrity, and religion. To say that we recognize these things as good means that we grasp them as inherently worthy of pursuit, as providing rational motivations for action. When we see someone reading a book, gazing at the sunrise, playing baseball, or going to church, we find such actions immediately intelligible because of their obvious connection to basic human goods. By contrast, we are puzzled by actions that seem utterly unrelated to the pursuit of basic goods, like spending the afternoon counting blades of grass.

While action for the sake of basic goods is always intelligible, it may not always be moral. For we can pursue one good in ways that unreasonably harm another good or another person’s good, as when a scientist seeks knowledge by conducting experiments that endanger the lives of human research subjects. Acting in a morally upright way, in accordance with natural law, means acting in a way that respects each of the basic goods for all people, both as individuals and in community. Thus natural law forbids intentionally damaging or destroying any of these basic aspects of human well-being, as in the cases of murder, rape, or torture. This norm is the basis of moral absolutes and inviolable human rights.

Many of the ways in which we can fail to respect the basic goods of all people do not involve intentional harm, but rather the unfair prioritization of one person or group over another. Since the basic goods are good for all people, natural law requires acting with fairness—following the Golden Rule—in determining whom to prioritize when the goods of individuals or groups conflict. This norm is reflected in many fundamental legal principles such as those requiring equal protection under the law or forbidding invidious discrimination, as well as principles of representation that help to ensure that the goods of various groups be all taken into account.

Finally (though this list is not exhaustive), because not all of the basic goods can be pursued to the same degree or at the same time, natural law requires establishing and following a reasonable order of priorities among goods in one’s own life and in the lives of one’s communities, based on personal vocation, organizational mission, and other circumstances. This implies that the freedom and authority to order one’s own pursuits and those of the communities under one’s care are crucial for leading a flourishing life. And it is also why a well-ordered political community is obligated to respect the freedom and authority of individuals and smaller groups to direct their own affairs, an obligation that natural law thinkers sometimes refer to as the principle of subsidiarity.

Political Community and the Political Common Good

These principles have many implications for politics. Most fundamentally, they explain the underlying nature and purpose of political community. After all, human beings cannot flourish in isolation: we need families, businesses, religious communities, and other associations in order to meet our diverse needs and to participate in the full range of genuine human goods. While these families and associations should direct their own internal affairs in the service of their own goods, their ability to achieve their own goods will require society-wide coordination on a wide range of fronts, from the reliable provision of utilities and common defense, to the enforcement of contracts, provision of assistance to dependents and their caregivers, and even the promotion of public morality.

To meet these social needs, an overarching community—typically referred to as the political community—is required. The political community is distinct because its purpose is not to promote some particular good or set of goods for some particular subset of people, but instead to promote the political common good, which consists in the set of conditions that facilitate the pursuit of flourishing by the individuals and smaller communities that make it up. Political authority exists to serve the political common good, in large part by resolving the sorts of coordination problems mentioned above, facilitating social harmony, and doing so in a just manner (in accord with the principles of natural law), both substantively and procedurally.

Limited Government, Liberty, and Subsidiarity

In this natural law account, the political common good, and the political authority that is justified only insofar as it serves that good, are inherently instrumental and limited, for they aim to promote the good of the individuals and communities that make up society indirectly, by creating the conditions within which they can freely pursue their own goods. In other words, political society is a society of societies, which must respect the integrity and authority of the smaller societies (families, churches, businesses, civic associations) that compose it. Political authority is also inherently limited because many human goods such as friendship, integrity, and religion can only be achieved by freely directing oneself toward them, and because this freedom is itself a crucial condition for human flourishing. For this reason, the natural law account recognizes that liberty is an essential instrumental good that governments must respect precisely because the political common good—which includes the goods of the individuals and smaller communities that make up the political community—cannot be achieved without it.

On the other hand, natural law recognizes that liberty’s goodness depends on how it is used, and so uses of liberty that seriously damage the good of others must be restricted. At the same time, the common good requires that broad latitude be given for uses of liberty that are not fully in accord with natural law, and this range will depend on the particularities of any given political community. For example, what may be reasonable in a small, relatively homogeneous community may not be reasonable in a large pluralistic society. This requires prudential judgment informed by the principles of natural law, including a recognition of the need for a certain degree of freedom for the pursuit of individual and communal flourishing. Deliberation about these matters is, in Anderson’s words, “what political debate is all about.”

The above reference to respect for the “good of others” as a limit on freedom could have been replaced by an appeal to the “rights of others.” In the natural law view, rights protect goods, and the language of rights articulates the requirements of justice from the perspective of the beneficiary. As such, to think of the common good as inimical to individual rights is to fundamentally misunderstand the relevant concepts, for the protection of genuine rights is itself a constitutive element of the political common good. The natural law view also enables us to distinguish between true and false rights claims—something extremely important in a society marked by the constant invention of new “rights”—by grounding rights in objective human goods and principles of justice.

Why is there a right to life? Because life is a basic human good, and intentional killing of innocent human beings is therefore always unjust (contrary to natural law). Why do we have a right to liberty? Because liberty, though not itself an intrinsic good (its goodness depends on how it is used), is a crucial precondition for the pursuit of human flourishing. Yet as all recognize, the right to liberty—unlike the right not to be murdered—is not absolute, because liberty can be used unjustly, in ways that violate the good or rights of others, or otherwise seriously undermine the common good. For example, a pregnant woman’s liberty is limited by her unborn child’s right to life. All laws limit liberty to some extent; the question is whether or not those limits on liberty are truly justified, and those questions can only be answered by returning to the basic principles of natural law and the requirements of justice that flow from them.

Does this mean that legislation should aim at the common good, substantively understood? Yes. And perhaps this is what makes critics of “common-good conservatism” nervous. But here it is important to remember that the political common good is the set of conditions that enables individuals and groups within society to pursue their own flourishing. Thus, inherent to this account of the common good is a recognition that the state ought not to coercively impose its view of what is best for individuals, families, religious communities, and civic associations, but rather ought to respect their right and duty to direct themselves freely to their own proper goods as they understand them (within the limits set by the requirements of justice and peace, as noted above). This is simply another way of stating the natural law principle of subsidiarity, which is itself a corollary of the limited and instrumental nature of the political common good.

Respecting subsidiarity means recognizing that promoting the common good is a task to be pursued primarily in and through the institutions of civil society, rather than primarily through coercive government policies. Nonetheless, there are many problems that cannot be resolved without the exercise of political authority at the appropriate level. For example, protecting children from distorted portrayals of human sexuality in the age of internet pornography is not possible without some form of regulation by the political community as a whole. Further, respect for subsidiarity in itself requires appropriate government policies. In particular, the freedom of families and institutions (especially those whose values are at odds with those of the dominant culture) needs to be protected through legislation strengthening religious freedom, parental rights, and school choice.

Critics who worry about legislating with a view toward a substantive vision of the common good should also recognize that, frankly, there is no alternative. Neutrality about the good is simply not possible, for every law implicitly embodies some view of justice and human flourishing. Even appeals to liberty and limited government imply a particular vision of the common good. Hiding that connection will not help promote these values; on the contrary, it will make it harder for citizens to see why they should care about them. The natural law approach supports liberty and limited government by showing why they are important for human flourishing and the common good. As thinkers from Plato to Tocqueville have warned, articulating this connection is crucial because it will always be a temptation for democratic peoples to surrender their liberty for the sake of more tangible goods, or to undermine liberty-protecting institutions and processes in order to more efficiently achieve certain goals.

The Rule of Law

Crucially, natural law can help us to defend the rule of law, including our system of checks and balances, separation of powers, and other constitutional limits on the exercise of government power. It may be tempting to bypass the slow and tedious legislative process with executive orders or bureaucratic agency mandates that can get the job done with the stroke of a pen. Yet it is crucial to recognize, along with the authors of The Federalist Papers, that the “inefficiency” of normal legislative processes is actually a feature of the system, not a bug. It helps to ensure that no one faction can ride roughshod over the legitimate competing interests of others, by forcing legislators to recognize those competing interests and to make compromises. This is in some respects an institutional approximation of the Golden Rule, requiring us to take seriously the claims of others whose needs and interests are different from and sometimes in competition with our own.

While respect for constitutional limits and procedural requirements for the exercise of government power does not guarantee a just outcome, these requirements embody and foster a spirit of reciprocity and fairness that are themselves crucial aspects of the common good, and should not be cast aside lightly in the name of efficiency. The difficulty of enacting legislation also serves to promote legal stability, enabling people to undertake projects in pursuit of various individual and common goods without fear that the relevant laws will change overnight. (This is exemplified in the way constantly shifting pandemic regulations have interfered with the ability to plan everything from family life to business and school operations.)

With this philosophical foundation in mind, a natural law approach explains why we should care about liberty, limited government, separation of powers, and the checks and balances wisely enshrined in our nation’s constitutional order. In particular, we should care about these institutions for three reasons. First, they embody a spirit of fairness and reciprocity among citizens and between the rulers and the ruled. Second, they respect individuals as free and responsible agents with the authority to direct their own lives and to associate with others in the pursuit of individual and common goods. Third, they facilitate the stability and predictability that are crucial for the pursuit of human flourishing. In other words, we should care about these institutions because we care about people and promoting their ability to lead flourishing lives, as natural law directs us to do.

Traditional conservatives and others committed to the principles of limited government therefore have nothing to fear from natural law-based accounts of the political common good. On the contrary, such accounts actually offer the strongest principled basis for defending liberty and limited government by showing how such values are themselves core aspects of the common good.