Until quite recent times, most people accepted the idea that some of the main rules of human life were the object of a kind of universal assent. Of course, within variable limits, human beings could deliberate and freely decide the best way to organize life in common as we are encouraged to do in a democratic regime. But such laws as were determined by the legislator presupposed the prior acceptance of principles held to be obvious, so obvious that there was no need to specify them. For example, it was clear to all that the institution of marriage brought together persons of different sexes. This customary obviousness might be supported by a reference to the law of God, but in any case, it was explicitly tied to “nature,” or the natural order of things. A full range of philosophers, jurists, and theologians spoke more specifically of the natural law.

Today, however, this notion has become unintelligible; it is most often mentioned only to be dismissed in the same breath. How could a notion, held for so long to be indispensable for the understanding and organization of the human world, largely disappear from our moral landscape? Here I would like to propose not a doctrinal presentation of the content of the natural law, but rather an effort to remove the obstacles that prevent well-educated minds from taking this notion seriously.

Human Nature and Freedom

The civic life of modern societies rests largely on declarations and constitutions that sum up a long intellectual development for which we are indebted mainly to philosophers. If we no longer pay due respect to the notion of natural law, this is first of all because it has been declared inadmissible by what I would call the reigning philosophical opinion. And it is said to be inadmissible theoretically and practically (or morally) because it is deemed to be contrary to human freedom.

In the eyes of this reigning opinion that increasingly defines modern consciousness, in speaking of natural law I am proposing something like a square circle. It is objected that if our nature, “human nature,” provided us with a law, then what would remain of our freedom? More fundamentally, to what “nature” could the supposed “natural law” appeal, since mankind is said to be not “nature” but, on the contrary, “freedom,” and pure freedom at that? The freedom in question here is not free will, the capacity for “reflective choice” that belongs to human nature according to the Christian understanding (which on this point took up and developed the views of Greek philosophy, especially those of Aristotle on proairesis). In contrast, freedom for the moderns is the specific power to wrest the human being from any and all determinations by anything given by nature or history (or tradition), and thus to project and to produce acts, and more generally effects, that result from this freedom, and only from this freedom. It is thus the power to bring about a world exclusively man-made, where nothing, as it were, has been given to man either by God or by nature, where everything has been “created” by man. This is essentially what we mean when we state: “Man is not a natural but a cultural being,” a locution beloved by European sophisticates.

Already in the late 17th century, the philosopher John Locke formulated this idea quite suggestively when he explained that 99% of the value of the things we use is the product of human labor. Ninety-nine percent! For Locke, almost the whole value of useful things is “value added,” that is, added by human labor. As we transpose this economic notion to the human world in all its aspects, we begin to grasp the specifically modern idea, today’s reigning idea: everything that constitutes the human world is value added, value added by human beings. Jean-Paul Sartre once exhorted us quite emphatically to reject resolutely, in one fell swoop, God and human nature, because there is no human nature that is not by and for God, nature’s supposed Creator. These, for Sartre, are the two products of the imagination under whose weight man abdicates his freedom, which is not freedom unless it is absolutely untethered and unhindered. For Sartre, the human being must be understood as freedom, pure and unconditioned freedom. This “existentialist” teaching has reverberated throughout all educational institutions for several generations: what makes us human is our autonomy, our capacity to give ourselves the law, and, more generally, to make ourselves. The human being is thus defined by self-creation and freedom from all limits and constraints.

It was important to recall the features of this “freedom” that forms the axis and horizon of modern societies in order to assess just how incomprehensible the notion of natural law has become for us—incomprehensible and, for many, even repulsive. The idea of an unconditional freedom of self-determination has in effect ground to dust the political, social, and moral landscape in which natural law once played a central (if most often implicit) role. Let us nevertheless try to reconstitute this once familiar landscape by briefly sketching what we mean by “natural law.”

Natural law refers to the principal rules of human action, rules derived from human nature, which are in principle valid for all human beings. To say that they are “derived from human nature” is to suggest first and foremost that the human being is prompted by his nature to form certain associations or institutions. These include, most especially, private property, the family, and the political community—associations or institutions that it is precisely the work of the natural law to inform and to regulate. But a caution is in order: human nature does not produce social and moral things in the way an apple tree produces apples, or as the moon drives the tides. What we mean here by human nature is the set of tendencies shared by human beings, more or less powerful tendencies depending on the individuals and groups in question. These tendencies can lead to very diverse results. They can even take an aberrant form that might be called “unnatural.” This is what the modern mind has difficulty understanding: these natural tendencies do not produce effects that are predetermined or infallible; the outcomes are by no means always and everywhere the same. Instead, they open up possibilities or potentialities that we are called upon to determine and make concrete, in order to bring about what is most satisfactory given the specific circumstances we confront.

This, then, is the natural law rightly understood: it is the rule according to which we lead the natural tendency toward its best concrete expression. If human beings are naturally moved by a very powerful tendency to associate together, this can take on quite different forms. In its elaboration, human reason plays a greater or lesser part. Natural law can thus be more or less finely conceived, and more or less judiciously followed and applied. In any case, in order to make the natural law effective, it must be specified and concretized by positive law and, more generally, by a positive legal order. Saint Thomas Aquinas aptly describes it as a vis directiva, a force that gives us direction but does not suffice for arriving at the goal. Once the direction is given by the natural tendency or inclination, there is a good deal left for human intelligence and prudence to do.

We can now see more clearly why so many of our contemporaries have so completely rejected the notion of natural law. Imbued with the idea that the rule of our actions can be produced by our sovereign and unhindered reason and freedom as human beings, we imagine that natural law implies our subjection to nature such as we have received it at birth without any participation by our reason and freedom in the determination of the rule. But in the moral framework ordered by natural law, the role of human reason and reflective choice is indispensable and in truth quite considerable. But it is true that this reason depends upon a direction given by nature—and first of all by the urge to associate. It draws upon manifestations of this nature, for example, the different observable kinds of associations, for the information necessary for the elaboration of a good law. On the basis of the same impulse or inclination that leads, for example, to the union of the sexes, practical or political reason can regulate the association of the sexes either by a polygamous or by a monogamous code. The law of monogamous marriage results both from the natural inclination toward the union of the sexes and from sustained reflection on the higher needs of human nature. We will never encounter human nature completely naked, so to speak, but always given a form by a rule; nor will we encounter law entirely “pure” or operating on its own. Law necessarily makes use of information discovered by reason in the various experiences that our natural faculties are capable of harboring or producing.

It is precisely this mixture of nature and law, of nature as both received and active, and of law as chosen, that we today refuse; it is this mixture that so annoys and repels us. We tolerate only “clear and distinct” ideas; the modern mind has decided rigorously to separate pure nature on the one hand, under the philosophical category of the state of nature, and, on the other hand, free human initiative understood as reason (or in other iterations as will, freedom, or law). This founding gesture of political modernity contains a portion of mystery. Here I will attend only to its most visible consequences.

Why the Social Contract?

In the 16th century, for reasons that will not concern us here, the idea of human nature as understood by the Greeks and the Christians lost its power to illuminate human things. It was no longer able to contain—to truly hold together—the diversity of forms of humanity within the shared universality of this common nature. It is diversity that comes to fascinate, and diversity that carries the day. It particularly fascinated Michel de Montaigne, for whom human beings associate and diversify according to collective forms that, to be sure, all have their reasons, but none of which can be said with confidence to be more in conformity with reason or with nature than the others. Seen impartially, Montaigne shockingly asserts, the customs of cannibals are neither less rational nor more cruel than those of Europeans. This indefinite variability of customs—today we would say “cultures”—proves the indefinite plasticity of human association. Thus, according to Montaigne, the observation of human life in no way gives us access to the vis directiva that Thomas had discerned. What then is to be done? What lesson or what rule can be drawn from this diverse human spectacle in constant motion? For Montaigne, only one lesson can be drawn, and it is an essentially negative one: since the impartial observation of human history and geography cannot indicate any practical direction that is clearly the best or most desirable, the book of customs must be closed, and positive indications of the good direction to be taken can no longer be sought in collective experience. We must start over from ground zero. Montaigne did not take on the risk of this new beginning—indeed, he denied himself this venture. But this was precisely the choice, the project, and the passion of the 17th century.

What then did this most audacious century of European history accomplish? Something extraordinary, the violence of which is hidden from us by the language in which the project was formulated. This was the language of geometry, that is, of the order that is the most immediately satisfying for the mind, because it is the most evidently indifferent to human passions. Given the indefinitely diversified collective forms that the inexhaustible human imagination has produced, why not reduce all of them to their constituent elements, in order then, on the basis of these elements, to construct the collective order that conforms best to the wishes of most human beings? Rather than considering the infinite variety of the human spectacle with a bitter irony, as Montaigne had done, why not consider the human association as if it had been dissolved, then reshape or reconstruct it from its elements, namely individual human beings, with these elements no longer acting according to a particular collective imagination, but according to a way of reasoning that every individual can understand? In other words, why not found the new order on a contract among individuals, the so-called “social contract”?

We have of course seen many versions of this doctrine of the social contract, notably those of Hobbes, Locke, and Rousseau, and this idea has been put to work again and again down to the present day (one thinks of John Rawls closer to home). The social contract, whatever its version, presupposes or postulates that human beings are naturally independent, “free and equal.” It implicitly denies that sociability is natural. (If one believes, along with the Greeks and the Christians, that man is a social and political being by nature, then human beings are never simply “free and equal,” but always already under the law and in unequal positions, some governing and others governed, even if free political life also requires citizens to “rule and be ruled in turn.”) In any case, in the new perspective, it is no longer a question, as it was in the framework of the natural law, of discerning and guiding a natural tendency to association, of making good use of a vis directiva. Instead, one aims to project and to construct a society without precedent on the basis of the absence of society, or, more radically, even on a natural tendency to dissociation.

Thus, we witness the emergence of the decisive role of the will. Whereas in the ancient scheme the will appears as united with reason in the reflective choice that guides the natural tendency of the person, in the contractual scheme, the will is the creator of an entirely new order, an entirely artificial order, a product of will through and through. This is what will soon be known as the State, the modern state. This artificial order still includes one and only one natural or material element, the human individual—not the human individual with all his tendencies or capacities, but the human individual defined by his desire of self-preservation, since this desire only is considered to be truly natural by the moderns who, precisely for the purpose of self-preservation, will construct the unprecedented architecture of the State. Such is the modern statist order: it accepts as natural, as received from nature, only the sheer biological life of the individual human being, the fact of living and of desiring to live, of preserving oneself and persevering in being. Everything else in the human order, all the productions of associated human beings—all this is considered as willed, produced, and constructed, as an effect of human will or of human freedom.

This very abstract and simple, let us say geometrical, scheme is not only the blueprint constructed by bold and ingenious philosophers at a particular moment in our past; it contains a whole history; a political, social, and moral history; the history of modern politics that is still our own; a history that has not reached its end. Indeed, between the 17th-century blueprint and the recent developments in our political and moral life, there is a sort of “short circuit” that illuminates the most constant and intimate motive of Europe’s modern history. The line of progress that guides us and the goal toward which we most often are heading without knowing it (while still willing it) consist in returning to this beginning, to the original blueprint, that is, to the rigorous separation between, on the one hand, what can effectively and incontestably be called “natural”—the sheer life of each individual human being, more precisely his own body and the needs that are immediately attached to it—and, on the other hand, all the rest of human life, of which one must constantly bring to light and highlight the willed and socially constructed character, the non-natural character of our humanity. Everything in human life besides the immediately individual and bodily, that is, all the laws, rules and customs that always seem more or less “natural” to man as a social being, must constantly be “denaturalized,” and thus “deconstructed.” They must be made once more to appear as products of human will, which human will can deconstruct, since it is the will that constructed them in the first place. Thus the vector of the modern movement consists in constantly extending the domain of what in social life is explicitly willed and thus ceaselessly reducing the domain of that which is implicitly received. For that which is received or inherited is always susceptible of being considered as a gift of nature or of God. Let me repeat this decisive point: in the perspective of modern “progress,” whatever transcends the body itself and its immediate needs derives from what is willed or constructed and is neither guided nor legitimated by any natural tendency or inclination. To be sure, many conservative-minded liberals adopted the idiom of the “social contract” to support a crucial role for “the consent of the governed” in free political life, without severing the links between natural rights and natural law.

Thomas Aquinas and Us

The author who undoubtedly elaborated most carefully the notion of natural law, Thomas Aquinas, distinguishes four main tendencies or inclinations in our nature: 1) the human being tends to persevere in his being; 2) he tends to unite with the other sex and reproduce; 3) he tends to associate with his fellow beings and to form political bodies; and 4) he tends finally to “know the truth about God.” Now, if we were to judge the matter on the basis of the broad movement of modern societies and the present condition of our social and moral order, our contemporaries would find themselves in agreement with Saint Thomas only on the first point. We late moderns agree that the human being, or in any case the human being taken as an individual, tends naturally to persevere in his or her being. But this is all that we concede to human nature. Nothing more! We do not recognize the other tendencies as truly natural tendencies that carry authority concerning the organization of the common world. We may well admit the facts that Thomas has in mind—the union of the sexes and the human tendency to associate. But we resist the conclusion that these facts indicate tendencies of human nature that hold authority for guiding the organization of the body politic.

Accordingly, the rules by which we will order actions relating to the second and third tendencies—sexual and social life—must be deduced from rules that derive from the first tendency, the only natural tendency for the late moderns, the tendency of the individual human being to preserve himself in existence. Thus, contrary to what the adepts of the new order claim, human nature holds authority for us no less than for the ancients or the Christians. The difference lies in the fact that, for us, only one thing bears nature’s authority because only one thing is truly natural, that is, the individual human being, or, more precisely, the individual human being reduced to mere life. For us, it must be possible to deduce all of society’s rules from the individual’s relation to himself. This self-relation refuses the introduction of any human law that might inform, regulate, or elevate it. Because the individual alone possesses the authority of nature, it is the sovereign self who rules over the law.

Let us consider some of the consequences of this understanding of the human being.

The Laws of Marriage

Let us consider, for example, the second tendency identified by Saint Thomas, the tendency of human beings to unite with the other sex and to reproduce. The dominant opinion of our day does not deny this tendency per se. But it claims that it does not exist to a sufficient degree to justify the assumption that is the basis of what is now dismissively called “traditional marriage,” namely, that marriage unites a man and a woman. This view is the source of the 2013 French law that made marriage available to same-sex couples. The human inclination toward the opposite sex no longer carries more authority for grounding the institution of marriage than does the tendency toward the same sex. If some people are naturally attracted to people of the same sex, while others are naturally attracted to people of the opposite sex, there is no reason for the law to distinguish one group from the other. Those dismissed as “conservatives” are told: if you want to base the law on a natural tendency, you cannot exclude same-sex couples from the benefit of the same law. Once again, the argument is based exclusively on the natural inclinations of individuals as individuals. Moreover, this is the source of the affirmation posited as an indisputable scientific and moral truth, that homosexuality is a fact of nature, of individual nature, which has nothing to do with the person’s free choice.

Critics of the 2013 law (or the 2015 Obergefell v. Hodges decision in the United States) will object that the political community must distinguish between naturally fertile couples and those that are necessarily infertile. How can the “rule” of society, the law about what is held “in common,” fail to distinguish between couples whose capacity to reproduce is essential to the community, and those whose contribution in this area is necessarily minimal? But public opinion, as well as lawmakers themselves, who have preeminent civic responsibilities, have remained deaf to this objection. Why? The simple reason is that, according to the principle of modern politics that I have already highlighted, one that more and more dominates our thinking, society is in no way natural for humanity. If society is not natural, then its conservation or reproduction cannot by themselves justify or motivate the foundational law of human communities. In sum, for us, the common good does not exist in such a way as to justify the law’s positive concern for its preservation or continuation. Only the individual’s self-preservation (or his “will” or “autonomy”) can be the source of what is right by law because only the bare individual is truly natural.

Thus, in this new social and moral dispensation, the difference between the sexes, and the reproduction of human beings that this difference makes possible, are natural only in a very qualified sense because they have no vis directiva, no directive and legitimizing power. The needs and desires of the body itself have equal power and legitimacy independently of sexual orientation, and therefore independently of whether or not they are open to fertility and the propagation of the human species. The fact that certain human embraces engender a new human being, while others are necessarily sterile, is reduced to an empirical observation that has no bearing on the question of justice. Justice has its source and its site, its proper and exclusive home, in the human subject’s relation to itself and its own body, a self-relation that envelops all the desires of the body itself, provided these are really and authentically its own desires. On this view, it is contrary to all justice that the law should distinguish—or “discriminate”—among human desires.

One of the most common arguments, and probably the most persuasive, in favor of the new law has been that, by giving new rights to couples of the same sex, no rights have been taken away from others. This argument is based on the assumption that has been at the center of our analysis: only the individual’s relation to himself must be taken into account or judged to be relevant. Each individual is considered apart from others, each is free and equal, independent and separate, each with his or her own right. We reason as if there were no society, no city, no common concern, as if each person were alone with his desire and right in the state of nature. We give no heed to the goal or the matter of the new right, in this case the institution of marriage. We studiously ignore what an institution is, and how it contributes to the formation of a common world.

The opening up of new rights presupposes, however, a radical change in the definition of marriage, or implies such a change. The “right to marriage” can be “extended” or “opened up” only because marriage has radically changed meanings. Here, we cannot invoke an analogy with the right to vote, for example, which has indeed undergone a progressive extension or opening over the last century. The widening of this right to full universal suffrage in no way implied a change of definition: whether we are speaking of limited suffrage, universal male suffrage, or universal suffrage extended to women, it is always a question of the same right. It is always a question of the same process, that of contributing to the choice of representatives who will deliberate and choose on behalf of all. In the case of marriage, it cannot be said that its “opening up” involves the same right and the same function, for only what is now called “traditional” marriage institutionalizes the sexual union in which society has a vital interest, the union that is the necessary condition of its continuation. Still today, and this will be true as long as there are human beings in the world, the immense majority of them will be the result of the union between a man and a woman. Can one really think that the union upon which the continuation of human life depends should not be explicitly recognized and specifically inscribed in the law we share?

The marriage we now call traditional is not only the agreement between two wills—the exchange of acts of consent—it is also a kind of contract of confidence with nature, in any case an act of confidence in the goodness and fecundity of nature, a confidence, alas, that is too often disappointed. It is this link between human wishes and actions and the powers of nature, between what we master and what we never completely master, between what we wish for or desire and what we receive or welcome—it is this mixture which, in all civilizations, has made marriage the institution par excellence. It is this remarkable mixture that modern freedom now rejects. Our freedom no longer wishes to grant anything to nature, to the goodness and the power of nature. It no longer wants to depend on nature, to depend on the contingency of birth according to sex, to follow nature’s ways in order to obtain nature’s gifts.

In contrast, it wants to command nature absolutely, to make human nature a mere object at its disposition. Rather than cooperating with nature and letting nature be its companion, law separates itself from nature and even actively opposes it: it takes up the distance of command, for nature is henceforth summoned to obey, and law is reconceived in a way where nature can in no way oppose the demand of the willing and desiring human being, the human being who concentrates all right and all justice in his sovereign will. Now that law has become the docile instrument of this absolute individual will, this will that accepts no condition imposed by nature, it is indifferent to the content or the form of human lives. It refuses to receive the slightest information from the lives it is supposed to order.

It has become a kind of leveling instrument that glides over all our lives in order to show that it wants to know nothing about them, and that, as far as it is concerned, it knows and recognizes nothing that cannot be reduced to the individual’s own body. Rather than ordering the institution, the law now signifies and declares the impossibility (or the refusal) of the institution—not only this institution, but by implication every institution. When law no longer finds in humanity anything other than individuals reduced to their own bodies, when each individual is enclosed in its absolute sovereignty (a will bereft of the concrete motives inherent in the human soul), it breaks with every bond. Not only with the inclination to associate upon which the continuation of human life depends, but also with the other bonding inclinations that provide the direction and energy for all the shared possibilities in which the powers of human nature are deployed.

The Erosion of Political Legitimacy

This project that has recently succeeded in imposing the mandatory legal and social erasure of the natural difference between the sexes, and which I have just briefly analyzed, is indeed at work in all the domains of human life. It obviously also concerns the third great tendency or inclination of human nature identified by Saint Thomas, the tendency of the human being to associate with his fellow humans and to form political communities. In fact, for the past two generations, the West (and especially Europe) has been the scene of a remarkable, indeed extraordinary, phenomenon, which could be characterized as the inversion, or in any case the active and systematic subversion, of the human tendency to associate.

To sum things up in political terms: this vast movement results in the delegitimization and progressive hollowing out of representative government, the regime par excellence of modern politics. It is representative government that had made it possible to judiciously unite the principle of modern freedom—human rights—and the natural inclination to association, to make a “whole” of human rights and human nature. As we know, through an apprenticeship that extended from the 17th to the 19th century, the nations of Europe, which until then had been subject to a monarchical form of government—princely, imperial, and especially royal—progressively discovered that the representative regime made it possible to join the power of government with the freedom of the members of society. Europeans (and Americans, see Federalist Nos. 1 and 10) discovered that it was possible to establish a broadly republican regime even in large states that had to that point seemed by their extended dimensions to be condemned to subjection to the power of one.

Political thinkers and actors increasingly saw in representative government the indispensable condition of all good politics in the era of modern liberty. They devoted themselves to perfecting its theory and practice, especially in England, France, and the United States. To be sure, this regime would later be faced with fearsome enemies on the left and right who put its future in doubt. But it finally emerged victorious in the “hyperbolic” wars of the 20th century, as Raymond Aron called them. Shortly after the fall of Communism, representative government seemed to be solidly established in all or almost all European countries. In reality, even as it was spreading, not without missteps, into the newly free countries of Central and Eastern Europe, it was losing its credit and confidence, and growing weaker, in the “old democratic countries” that had long furnished the model for it. The idea of a people who govern themselves through representatives responsible to them, this idea of the “best regime,” was largely abandoned by the governing classes of Western and Southern Europe, in favor of a “governance of rules” in a “democracy of rights,” whose framework was now the European Union on a path to indefinite extension.

It is difficult to disentangle the reasons that led to this repudiation of the political legitimacy that had formed the axis of European life for a couple of centuries. If one stays with only the explicit argument that underlies this repudiation and provides the basis for what has come to be known as “European values,” one might say that with the adoption of human rights as the exclusive moral horizon of democratic societies, the only legitimate agent in our eyes is the individual as member of humanity, as “man in general.” From this perspective, only a rule that is rigorously universal, that is applicable in all places and all times to all human beings, can be called “just.” A people living as a self-governing entity, rather than giving life and force to the idea of political justice, as we had long thought, now is seen on the contrary as the very embodiment of primordial injustice, because it consists in separating oneself from humanity as a whole and preferring oneself. Now that humanity (understood as the totality of living individual human beings) is the sole body of justice, but one incapable of constituting a political body in the proper sense, the work of justice henceforth consists in rendering this totality of living humans ever more visible and effective. One does this by eliminating as much as possible the borders of every kind that divide and fragment this totality known as “humanity.”

In this way, we have been led to see migratory movements as the most significant phenomenon of the present world. As the concrete embodiment of the movement toward a unified humanity, migrants appear as the witnesses and agents of the work of justice par excellence. They represent the movement from the particular to the general, or to the “universal,” as we now prefer to say. Migrants are not a particular population which, confronted with a certain situation, responds to it in a certain way. Migrations are not a political and social phenomenon among other political and social phenomena that we must address. Rather, migrations are thought to be the carriers of the new justice, and migrants, as a distinct human group, symbolize in our eyes the union of force and justice, a privilege that had always been reserved to self-governing peoples organized politically into communities of citizens.

The phenomenon that I have just briefly described makes no sense unless it is linked with the idea that is the leitmotif of my argument, the idea of justice that sees its principle entirely in the self-relation of the individual human being. This idea has recently taken on a particular virulence, since it is no longer either tempered or counterbalanced by any principle of association, or any articulation of the civic common good. If there is no justice but that of the general, of humanity in general, that is, of the individual set in his unassailable self-relation, then the individual who presents himself at the border, or who crosses the border, in the name of his humanity understood as indistinguishable from that of any other, and who thus represents all of humanity—this individual is the carrier of a right that can prevail in opposition to the will of any political body. The political body then appears as a mere particular association, one ultimately lacking moral legitimacy. The puny individual, who in many cases has already crossed so many borders, is seen to represent humanity in toto, while the political body, within the borders it claims to defend, is only a circumscription of humanity, a fraction that separates itself—particularly if it refuses access to the human being who presents himself in the name of human rights.

It is not too difficult to understand the logic of the argument, or how it is that the legitimacy of the general has moved from the democratic political body—from the general will or the common good—to the individual qua individual, as simply a member of humanity in general. But logic is one thing, and politics another thing altogether. What is hard to understand is how and why democratic nations, which for two or three centuries had made such great strides toward the “best regime,” the representative regime in the framework of the nation—and which had derived such pride from this effort—emptied themselves so abruptly of their sense of self and their confidence in their legitimate rights, to the point of seeing in the self-regard of the political community a kind of crime against humanity.

It is common today, and certainly plausible, to invoke in this context the deferred effect of the 20th-century catastrophes—the two world wars and even more the Shoah—on the solidity and legitimacy of the European political order. The nations of Europe, then proudly independent and sovereign, had been shown to be material and spiritual masses that were perhaps too weighty for the hands of their rulers: they pushed them where they would not have wanted to go—the Great War—and they let themselves become the docile instrument of their rulers’ criminal projects—the Shoah in particular. As Europeans, after the reconstruction of the continent, became more vividly and deeply aware of what had happened, they were increasingly inclined to limit or link together the independent and sovereign nations by constructing a “European Union,” one capable of preventing any rebirth of a “murderous nation.” Hence, the repudiation of the “people” as a political body—of the representative regime in the framework of the nation. The argument I just sketched may appear morally or affectively persuasive. It seems plausible that this is the way we have acted and that these are the motives of our action.

As I just said, the argument is essentially moral—Europeans on this view would like to punish their guilty nations by erasing them. But this is an excessively narrow and compressed view, a “view from 30,000 feet,” of the recent history of Europe. Where in truth resides the principal responsibility for the European catastrophe of the first part of the last century? Is it fair to assign it to the representative regime in the framework of the nation? The political bodies engaged in the immense drama were more often empires than nations. As for the criminal or totalitarian regimes, while they invoked, with disgusting grandiloquence, the untrammeled right and the good of a certain “people,” they had violently liquidated the institutions suited to an actual representative government. In the end they hated their own people as much as other nations and peoples.

Moreover, as they rebuilt themselves after the Second World War, the nations of Europe were careful to organize political and social life in a way so as to deprive violent minorities of social support and opportunities. By renouncing their colonies and henceforth staying within their national borders, they renounced the drive for dominance that had been part of their souls in preceding generations. What is strange, then, is that the more the nations of Europe renounced or reduced their ambitions, the more they foreswore even the right to decide things for themselves, the more the urgent obligation to overcome their threatening “nationalism” resounded among them. The more they are withering within, the more the institutions that keep watch on them (rather than govern them) press them to contain their suspected voraciousness. In light of this, the argument that in recent years constitutes the basis of our public life and sustains the project of European political development shows itself to be based on an increasingly inadequate perception of the real condition of our nations, that is, of Europe’s situation as a human and historical whole. It is as if the principle of our actions—those that we take to be just and legitimate—is detached from the social and political matter to which it claims to apply. We are rightly on guard against smug “national narratives.” At the same time, we should be able to perceive the fragility, if not the flimsiness, of the great European narrative that would ignore the fact that combining declining organs can only produce a larger ailing body.

The orientation of political life, the political, social, and moral agenda of Europe, has not benefited from a serious analysis of our political and spiritual condition; it does not respond in a pertinent way to our situation. We in Europe live under the dominance of a principle of justice that might be described as unhinged, or at least severed from the collective stakes that alone give meaning to human life in its manifold social and political dimensions. If all justice is based on the self-relation of the sovereign human subject, then the whole grammar of practical life is rendered obsolete. Without claiming to grasp clearly by what paths this notion of subjectivity has been able to impose a ban on the great institutions of European life, and effectively to disable them, I maintain that there is at work among us, I am tempted to say, a change in our very soul, a change at the level of our relationship to the good and to human action directed toward the good.

We assume that human goods—the good things that motivate our action—are worthy of being desired and loved, esteemed and preserved, only insofar as they are shared as widely as possible. We also believe that they can be shared without limit even with those who neither love nor desire them, without losing anything of their virtue and goodness. Thus, the notion that can be said to be central to life for all human beings, the very notion of the good as the object or motive of action has been obscured just as the inner meaning of action has faded away. Human goods no longer appear to us as goods, pursued and produced by a certain quality of action, which can only be obtained by some significant effort. Rather we see them as benefits or advantages that must be easily accessible to all those who have a right to them, that is to all human beings by virtue of their equality and likeness to one another.

The passage from the reference to natural law to that of human rights stems from a profound, even radical, transformation in the way we conceive the tendency of human life, the source of its movement and the principle of its justice. The appeal to natural law presupposed that this source is the movement of action in the direction of a good, either a mainly personal good, or a good meant to be shared and to become common, but in any case a good that requires effort, talent, and virtue. All of these contribute to the perfecting of the moral and civic agent, to his or her becoming a better person. The reference to human rights, which for all practical purposes has expelled or discredited every other criterion of judgment, presupposes that the motor of human life is the assertion of human rights. We are thus obliged to bring about a world in which all human goods become rights, in which they are in principle accessible to all human beings, because all have a right to them. These goods then are better understood as benefits (agreeable or commodious benefits) rather than goods in the proper sense, since all human beings in principle can enjoy the same benefits, but cannot participate equally in all goods. Such is in effect the difference between a good and a benefit: we have access to the first only by striving to become better in the direction of the good in question, while the latter leaves us just as we are. It even gives us an additional motive, a very persuasive one, to stay just as we are. It is as myself, just as I am, that I claim the benefit to which I have a right.

It would be wrong, nevertheless, to think that this radical change in the principle of our action has direct and immediate effects on the way that each of us conducts himself, and that the claim to rights has rendered us incapable of any effort toward the good. The ideas concerning what is just that characterize a society do not act on its members in such a mechanical fashion. Given that the basis of human nature is still action toward the good, this action is able to find in human rights a motive for effort and for improvement. No one would claim that our societies now completely ignore action or effort toward the good. Still, what gives rise to a legitimate concern is that, because of the exclusive authority of human rights and of the new definition of humanity as the sole referent of the idea of justice, a primordial condition for the production and conservation of human goods has been radically discredited and subverted.

Those who take part in the production of a human good do so by choosing each other and gathering themselves together; they set themselves apart as separate; they have affection for each other and even prefer each other over other persons, at least for the purposes of this particular association. No human good can be produced without this separation and preference. But the idea of what is just that now rules us, and that I have tried to identify throughout this essay, maintains that in this “separating” movement lies the principle of all injustice. The political, intellectual, and spiritual goods produced by any group whatsoever are now understood to have been stolen from all other human beings. Associations, institutions, the various formations of what is “common” can now survive among us only by eliminating as far as possible all signs of this separation, and then, after the signs, the very reality—the independence and integrity of the association that are the condition of its existence. Be it the family, the university, the nation, the church, or whatever else, the association can survive in the new moral atmosphere only by extending access to its goods (now transformed into advantages or benefits) ever further—that is by “opening itself,” with the verb now taken absolutely. Each day we can take the measure, however, of the risks of erosion, dissipation, and erasure that the family, the university, the nation, and the church run with this indefinite “opening.”

The regime of modern liberty needs natural law to preserve what is most valuable in it. Thus, the task of bringing together human rights and representative politics with natural law and its grammar of action oriented toward the good is still very much with us.