Natural Rights and Natural Law

Abstract

This chapter argues for the continued relevance of the natural law tradition to inquiry into the philosophical foundations of private law. It focuses on the arc in the history of political philosophy that starts in Hugo Grotius and ends in Immanuel Kant. The original community of property on Grotius’s account and throughout the early modern tradition is a conceptual starting point, a representation of how people stand with respect to one another in the world abstracted from the institutions through which people administer the regime of private property. Grotius and others in the natural law tradition cast the moral aspect of that standing in terms of the natural laws that protected the natural rights of equals. The chapter then looks at two debates. Grotius’s and John Locke’s disagreements about the foundations of property rights and Grotius’s and Samuel von Pufendorf’s about the foundations of the right of necessity are, at their core, disagreements about how to render private ownership consistent with equality. The common ground against which these disagreements is framed is the view that, through its doctrines, the institution of private property inevitably expresses some view on this question, and in this way reveals its connection to the rest of people’s moral lives.