Anthony D'Amato (Northwestern University - School of Law) has posted Natural Law: A Libertarian View on SSRN. Here is the abstract:
What follows from the following two propositions? Legal positivism views law as a command writ large. The commander is the person or group with the most power. Answer: this pernicious mind-set is responsible for our abandonment of personal liberty. For there can be no limit to the imagination and will power of the commander. The plenary jurisdiction of the commander paves the way for Big Government to move in and regulate every aspect of our lives and our privacy. The world wasn't always like this. Prior to the servility that positivism has induced, there was a now-forgotten secular natural law that was inherently limited to the needs of society and had no power beyond the outer edge of a person's zone of privacy.
And from the text:
The line Mill drew between other-regarding and self-regarding acts is the same line that marks the outer boundary of natural law. Acts that are lawful under natural law are acts that connect up with the needs of society. Social needs include the prohibitions just mentioned (“murder, kidnapping, arson, rape, . . ) A rule that reaches beyond societal needs and tries to regulate an individual’s self-regarding acts is not a law at all. It may well be a command, order, decree, dictate, edict, mandate, precept, regulation, ultimatum, or ukase. The king may have issued it personally; and it might be backed by the full force of the state. But it is not worthy of the title of law
A few thoughts:
(1) D'Amato's picture of legal positivism is certainly not an accurate representation of contemporary positivism, which has rejected the Austinian sovereign-command theory for at least fifty years. Moreover, almost all of his conclusions can be accomodated by Raz's theory, which limits legitimate authority to cases in which those subject to the authority would better comply with the reasons that apply to them by accepting the authority (as opposed to rejecting it).
(2) Mill's harm principle has a variety of well-known problems, which D'Amato does not address or acknowledge. Harm assumes a baseline & sophisticated natural rights theories, such as that advanced by Barnett in his The Structure of Liberty move to a theory of rights rather than harms for this reason.
(3) D'Amato's assertion that classical natural law theory is based on the Millian principle is difficult to make out given the classical conception that the function of law was to promote human flourishing. Thus, Aristotle argues that the proper function of law is to create the conditions necessary for the acquisition, maintenance, and exercise of the human virtues (or excellences) and to discourage the human vices (or dysfunctionalities). This makes the end of law essentially connected with human actions that are "self-regarding" in Mill's sense.
