by Hans-Martien ten Napel: Hans-Martien ten Napel (@hmtennapel) is Associate Professor of Constitutional and Administrative Law at Leiden University in the Netherlands. He is the author of Constitutionalism, Democracy, and Religious Freedom: To Be Fully Human (Routledge 2017).
This essay is the first in a series of pieces exploring the relationship between Natural Law and Human Rights in light of the State Department’s recently convened Commission on Unalienable Rights.
Attempts by the United States State Department’s Commission on Unalienable Rights to identify a subset of proper “unalienable rights” within the broader category of human rights are sometimes perceived as an almost reactionary effort. The adoption of a historical-philosophical perspective reveals that, on the contrary, even if applied within a natural law framework, natural rights are a fundamentally modern idea. Today, it is sometimes feared that this modern constitutionalism has, from the beginning, been little more than an experiment that was doomed to fail. Given such concerns, the U.S. State Department “unalienable rights” debate represents a reasonable inquiry into how the ideal of human rights can be carried on into the twenty-first century.
Sometime around the middle of the twentieth century, the German-American philosopher and classicist Leo Strauss (1899-1973) gave a lecture series that he later wrote into a book, entitled Natural Right and History (1953). I recently gained some insights from reading and discussing Strauss and his work and from watching a lecture given by a colleague on the contemporary significance of Strauss’ political thinking with a group of talented graduate students of law.
As a German Jew who had fled his home country well before the Second World War broke out, Strauss was concerned about the possible relationship between modernity and totalitarianism in a way that shaped his understanding of natural rights. The mainstream view was, and is, that the Second World War constituted an aberration, that Enlightenment thinking was generally excellent and wholesome, and that the rise of Nazism in the 1930s was something that needed explanation. More or less the same holds for Communism, the ideology that was perhaps even more in Strauss’s mind, when writing in the early 1950s.