¹ He treats with indifference the distinction between natural right and natural law. I do not think it is always necessary to draw this distinction, provided one is aware when it does, and when it does not, make an important difference to the subject under discussion. For example, Oppenheim has a section on “Natural Law Based on Divine Revelation.” I think that analysis would have shown that this expression is self-contradictory: a law based on revelation is by definition divine law; and divine law, by definition, is a different kind of law from natural law. The fact that some who call themselves natural law teachers base their doctrine upon revelation may be convenient for Oppenheim's argument, but that is no reason for accepting their self-characterization at face value. On this question see ch. VIII, “Natural Right and Natural Law,” in my Thomism and Aristotelianism (Chicago, 1952)Google Scholar.

² Oppenheim's war upon the interlocking deceptions of conventional grammar and natural right theory begins, appropriately enough, with the Declaration of Independence. The statement that “All men are endowed with certain unalienable rights” is, according to him, grossly misleading, if it is held to mean the same kind of thing as “all men are endowed with two eyes,” or “all persons in the United States are endowed with the right of free speech.” “Surely,” he says, “the framers … did not intend to make the obviously false assertion that all men do in fact have the same legal rights.” Now I think it morally certain that the framers did intend to make the assertion, which is not obviously false, that all men do have some legal rights which are the same. These are their rights under natural law, not under positive law.

Let us examine some of these rights, held by the framers to be universal rights of man, to see whether their assertion is an obvious falsehood. We must first understand these rights as the framers understood them, not as Oppenheim understands them, if we are to judge of their truth or falsehood. I cannot here prove my interpretation to be that actually held by the framers, but the interpretation I offer will show that they need not have been either deceptive in their language, nor false in the inferences that they intended to be drawn from it. Let us assume that by the right to life and liberty, the framers meant the right of self-preservation, and all the means necessary thereto. Let us assume that they regarded self-preservation as a right, because they regarded it as the strongest human passion, and all other human passions, including the passion for truth, as weak and ineffective when opposed to it. Suppose that, for this reason, they regarded the true morality an enlightened self-preservation, and that they regarded all other moralities as false, because they were, inadvertently or otherwise, at war with human nature itself, which universally sought preservation above all else. To say that some men commit suicide is no more an objection to the empirical validity of the Declaration than to say that some men do not have two eyes is an objection to the second statement, or that some men are in jail is an objection to the third. The second statement means, that all men would have two eyes, if there were no damage to their natural physical development, and the former means, that all men would prefer self-preservation to any conflicting, alleged good, if they were not maimed in their intellectual development.

When the framers thought of some men as maimed in their intellects, they thought of the grounds alleged by divine right monarchy, and feudalism, as the basis for political obligation. These grounds they thought gross superstition, which no one with the knowledge of natural causes provided by modern science could believe in. The strength of the passion of self-preservation throughout all nature was a fact attested to by science. Hence governments constructed to satisfy this passion they thought in accordance with nature, and in this sense in accordance with natural right. It seems to me that one can argue against this view, by arguing against the analysis of the passions it presupposes, and the conception of man's relation to nature. But if the analysis and the conception are correct, the empirical validity of the statement follows.

³ Oppenheim attempts to repudiate this characterization and insists that non-cognitivism does lead to what he calls rational choice; it is, however, confined exclusively to the choice of appropriate means. But I do not believe it is possible to deny rationality to the ends without denying it to the means as well. Our author himself places limits upon the choice of ends, in the name of rationality: “Someone who chooses incompatible goals in the mistaken belief that they can both be realized … makes an irrational decision ….” Why? If reason cannot help him choose between these goals, if it cannot point to a compromise or synthesis which transcends them, perhaps the pain of relinquishing either of the goals would be greater than the satisfaction of gaining one without the other.

The categorical imperative of non-cognitivism is to act so “that the state of affairs you will help to bring about will be valued by you as the best of all possible worlds.” I think this is a valid goal for all political and moral action, but I do not see how it can be realized on the value non-cognitivist's premises. Without an idea of human happiness which is conceived as having cognitive status, inter-subjective communicability, and hence universality, I believe there is no rational way of predicting what course of action might bring about such a desirable state of affairs. The value non-cognitivist, it seems to me, assumes that if I bring about the state of affairs that I now think would be best, I will bring about the one that I would then also think best. But this assumption is clearly erroneous. If there is any brute fact of human experience, it is that success, no less than failure, is a cause of men's changing their goals. This is a special case of the more general fact that men, no less than circumstances, are constantly changing. The goals of youth are not those of age, etc. The man who is to evaluate the results of his own actions is not the same man as he who initiated them. Non-cognitivism takes no account of the dynamic of human life.

Specifically, however, the comparative estimate of consequences, which non-cognitivism holds to be the peculiar province of rationality, is, apart from an objective idea of happiness, impossible, for it leads theoretically to an infinite regress. Consider: I might estimate that course of action A is desirable, because it leads to state of affairs A′, which I now consider most desirable. However, the achievement of A′ will cause me to value, not A′, but B′, and my present degree of dissatisfaction will be reduplicated. Unfortunately, I cannot solve this dilemma by choosing B, since not B but A leads to the preference for B′. And so forth. It is no answer to this to say that such examples are by no means necessary. Of course they are not. Neither are any other examples. But the possibilities are demonstrably unlimited, and this fact provest hat predictability is a delusion. If there is no basis for predicting the degree of human satisfaction that will result from perfect rationality on non-cognitivist premises, there is no reason whatever for obeying the injunction, “Be rational.” The only premise that makes the non-cognitivist's imperative intelligible is the proposition that non-cognitivism explicitly rejects: that there must be some grounds for continuing the same set of goals, the same state of character, through the shifting scenes of human life. But if such grounds exist, they must be susceptible of cognition.

⁴ Oppenheim says that non-cognitivism “does not maintain that value-words, even in the intrinsic sense, are meaningless, but only that they have normative, evaluative, directive, rather than cognitive meaning.” I will try to prove in what follows that they could not have the other meanings if they did not have cognitive meaning.

⁵ See Antony's speech over the body of the dead Brutus:

His life was gentle, and the elements

So mixed in him that Nature might stand up

And say to all the world, “This was a man.”

Julius Caesar, Act V, Scene v, 73–75.