This chapter explores some philosophical quandaries facing the natural law outlook, with particular emphasis on the prospects for a natural law account of human rights. The chapter begins by considering challenges to natural law’s reliance on the notion of human nature. It then examines the role of time in natural law theories, focusing on the question of whether natural law changes. Next, the chapter looks at the place of rights in the natural law tradition, critically discussing the suggestion that the notion of rights is at odds with the core themes of the natural law outlook, before considering what natural law has to offer to human rights theory. Finally, I turn to the place of God within natural law theories, raising the issue of whether natural law assumes a theistic worldview. I argue throughout the chapter that a hermeneutic and historicised view of natural law, which sees it as shaped by and discovered through human social practices, holds important advantages in responding to each of these challenges.

The concluding chapter sets out some of the key themes to emerge from the book. It recalls the influence of the various groups of actors who gave meaning to the Abortion Act, emphasising how the Act was shaped over time in a complex process of negotiation, dispute, revision and consolidation. We locate the Act within the shifting contours of a country undergoing a demographic revolution, exploring how it shaped and was shaped by processes of secularisation, the decline of discursive Christianity and an enhanced role for science in ordering understandings of the world, changing norms of gender, family and disability, shifting ideas of medical authority and changing technologies.

Chapter 3 explores a series of attempts to restrict the Abortion Act fought between 1974 and 1990. The early attacks were led by men, most of them Tories, and framed in terms of defending family values, personal responsibility and moral standards. We show how the Women’s Movement now claimed and defended the Act, itself being importantly shaped in the process. We describe how, over the course of two decades, the centre ground for debate would gradually shift, with attacks coming to be framed in a language of social justice, civil liberties and scientific advance. The chapter ends when Parliament is finally given the opportunity for a meaningful vote on theAct and uses it to endorse the Act’s broad framework.

This essay demonstrates the relationship between rights, natural law, and civic friendship by showing how the latter, the aim of law according to classic natural law theory, cultivates a culture of care for the other for one’s own sake, which is the basis of rights protections. It considers these connections in the teachings of key contributors to the classic natural law tradition, Aristotle and Aquinas, and engages their ideas with how rights are understood in modern liberal theory. The focus on the good regime of civic friendship responds to some contemporary concerns over the abstractness of human rights. While rights protections exist because the virtue of human beings cannot be depended upon, they still depend upon a standard of civic friendship that habituates citizens into regarding others as having absolute worth which finds its experiential origins in friendship.

Pufendorf was a political humanist, that is, an intellectual who engaged with political and religious thought through an erudite philological and analytical scrutiny of classical and modern texts in these fields. Born into a Saxon Lutheran clerical household in the middle of the Thirty Years’ War, he had first-hand experience of religious and political conflict during his childhood. His mastery of Latinate humanistic erudition was formed through his rhetorical education at the Grimma grammar school and then through his studies in history, philology and politics at the University of Leipzig. Pufendorf used his humanistic erudition as a key resource in his fundamental reconstruction of the discipline of natural law in his Law of Nature and Nations of 1672. In this work he sought to provide a model of political authority suited to governing divided religious communities, in part to defend the Protestant religion against the threat of political Catholicism, but primarily to achieve peaceful co-existence among different religions under the umbrella of a secular sovereign state. His work as an historian and political adviser to the Swedish and Brandenburg courts reflects the engaged nature of his humanistic learning.

Pufendorf is mainly remembered as a natural law philosopher but he was also an influential historian and a public intellectual. Apart from an early phase where his historical interests followed a conventional antiquarian course he focused on recent or contemporary history as evidenced by his popular and much translated, adapted and imitated European History (1680), his acerbic pamphlet History of Popedom (1679), and the monumental ex officio treatments of recent history of Sweden and Brandenburg: History of Gustavus Adolphus and Christina (1686), History of Charles Gustavus (1696) and History of Frederick William (1695). Pufendorf's historical works are informed by a clear and simple vision of states as unified agents acting within a framework of real (moderate) and imaginary (unrealistic), permanent (geopolitical) and temporary (contingent) interests. He combined this vision, informed by his natural law theory, with an abiding interest in diplomacy and decision making and a corresponding disregard for the concrete political players and the action on the battlefield. As royal Swedish and later electoral Brandenburg historiographer he had privileged access to archival sources. He used this to bolster his authority but also to present a firmly streamlined and occasionally biased account in harmony with his religious and political loyalties.

The chapter analyses Pufendorf’s comprehensive account of the civil condition that arises through the institution of new civil personae that replace those of the natural condition and are governed by sui generis principles and values. The basic principles for civic life are laid down through discussions of civil law (denying Hobbes’s identification of it with natural law), punishment, social value (“esteem”), and public power over property, all of which are treated in terms of the transition from the natural to the civil condition and founded in civic purposes, not in nature. This transition is not considered as a transfer of natural morality into the civil sphere, but rather in terms of the requirements of a civil order grounded in civil sovereignty and the civil state as an imposed status or condition. The same argument applies to “the right of war which accompanies a natural state <but> is taken away from individuals in a state”. Once the right of war is considered a matter for the sovereign alone, it must be part of Pufendorf’s account of civil society, an arrangement that underlines his insistence that there is no law of nations distinct from natural law, as discussed in ch. 10.

The Universal Declaration of Human Rights is often considered to be a part of the “natural law” tradition. This might mean that, whoever drafted the text, they were inspired by the natural law that resides in all of us. Such a claim is not falsifiable using historical methods, and will not be addressed here. It might mean, though, that thinkers and politicians who were demonstrably part of the natural law tradition played a large role in the drafting of the UDHR. This position, which will be contested in this essay, has been defended by numerous historians, most notably Mary Ann Glendon. The evidence shows that the natural law tradition, as it existed between the 1890s and the 1950s, was somewhere between skeptical and antagonistic towards human rights claims. The evidence also shows that natural law thinkers who were in the orbit of the UDHR, most notably Jacques Maritain, were not as influential as Glendon and others have claimed. As a historical matter, therefore, the UDHR is not in any substantive way a part of the natural law tradition. At most, natural law was one among a number of competing traditions that all played a role.

This chapter focuses on Maritain’s analysis of the ontological and epistemological foundations of human rights, and his wider hope for ‘practical agreement’ on the content of those rights. On the ontological front, I argue that such agreement is not forthcoming on the basis of natural teleology or eternal law. Neither of these secures assent across the world’s major religious or philosophical traditions. On the epistemological front, neither rationalism nor naturalism holds great promise. While Maritain upholds the naturalist alternative, his efforts devolve into a performative contradiction. For he hopes to rest agreement about human rights on ‘natural inclinations’, which, at the same time, he confines to the realm of the non-conceptual, non-rational and pre-conscious. This constitutes a markedly weak, even incoherent basis for agreement. The stage is set, therefore, for ‘new’ natural law theory, which proposes a non-ontological, purely rationalist foundation. I conclude that this too is an unpromising basis for agreement on rights. Instead, we need a new approach, one that privileges the deliverances of the social sciences and does not strive for universal consensus.

The Universal Declaration of Human Rights was proclaimed as a ‘common standard of achievement for all peoples and all nations’ and rests on the claim that persons are ‘endowed with reason and conscience’. The drafters were thus aligned with the claims of the natural law tradition that there are timeless principles of morality – true for all people in all places – and that these principles serve as a guide for lawmakers and a standard to evaluate positive law. Catholic philosopher Jacques Maritain argued that the drafters did not need to agree on the philosophical or metaphysical foundations of morality in order to agree on formulations of practical principles in the language of universal rights. This key insight helped to overcome obstacles to the UDHR and to guide key drafters including Charles Malik. Maritain’s account of natural law in The Rights of Man and Natural Law highlights the notion of jus gentium: commonly agreed principles that are intermediate between the first principles of natural law and positive law. The UDHR can be understood as a successful attempt to formulate jus gentium principles in the aftermath of a war that had seen them disregarded and violated.