Integrating Classical Natural Law and Libertarian Theory

From an earlier comment by A Texas Libertarian, one to which I have previously referred:

Maybe we need someone to bridge the gap between politics and culture, to define praxeologically what culture is required to support liberty.

A project for which I am overwhelmingly underqualified, yet – as if a gift from God – I am finding what might be some items well-applicable to this suggestion. 

Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe, edited by Jörg Guido Hülsmann and Stephan Kinsella.

The essay is entitled “Classical Natural Law and Libertarian Theory,” by Carlo Lottieri.  I will admit: I do not fully grasp all of the concepts of which Lottieri writes, but, perhaps, somewhere in the intersection of my writing and your further feedback, I can make progress on this topic.

Writing of Rothbard:

But unfortunately, he does not really grasp the function of the evolution into classic natural law. …Rothbard seems to minimize the contextual and non-theoretical dimension of a large part of legal controversies and especially of positive law.

Lottieri uses the term “positive law” in a manner that is not completely clear to me – perhaps (though I am not certain) in a manner different than it is typically understood.  As best as I can make of this: the non-aggression principle offers us a negative law; moving from this negative law to a functioning, free society requires something more: tradition.  This “something more” might be what Lottieri considers “positive law.”

He hints at this confused meaning of the term “positive law,” when he writes (emphasis added): “… [Bruno] Leoni tried a sort of reconciliation of natural law and legal realism (positive law rightly understood)…”

As if addressing the task suggested by ATL:

Using the Thomist framework, in this essay I will emphasize the importance of the lex naturalis, at the same time highlighting a lex humana deeply rooted in the complexity of different ages and societies, related to the subjectivity and specificity of opinions which cannot be fruitfully examined by a praxeological approach. Many problems, and even some inconsistencies of Rothbardian theory are a consequence of it.

Buried in here, it seems, is my struggle.  To achieve a libertarian society (or a society approaching libertarianism), is something beyond the NAP required – specifically some culture, tradition…a “nationality principle,” as Salerno offers from Mises?

Perhaps the issue raised by ATL is not addressable praxeologically, as Lottieri suggests.  Perhaps it takes a different approach.  Lottieri will address this point shortly.

Referring to Carl Menger’s Investigations into the Method of the Social Sciences, Lottieri offers:

Menger also highlights the individualistic content of evolutionary law with the goal of helping the classical liberal tradition to rediscover its lost roots: “law, like language, is (at least originally) not the product in general of an activity of public authorities aimed at producing it, nor in particular is it the product of positive legislation. It is, instead, the unintended result of a higher wisdom, of the historical development of the nations.” (Emphasis added.)

As I have suggested often, you may take “a higher wisdom” to mean God, or you may take “historical development of the nations” to mean culture and tradition.  Either is OK with me, and neither is the same thing as “positive legislation” produced by “public authorities.”

It is exactly in this sense that we can understand Leoni’s preference for evolutionary law (Anglo-Saxon law and Roman jus civile): a law not oriented to preserve tradition or spontaneous order per se. On the contrary, Leoni thinks that a polycentric and evolutionary order is in a better position to safeguard individual rights.

Why is this?

Rules that emerge from the interpersonal exchange of claims are tools that can effectively protect society from the rulers.

A wonderfully succinct statement of the value of culture and tradition.  Absent a generally accepted culture and tradition, all we are left with is the rulers dictating and enforcing the rules.  Absent other, reasonably voluntary, institutions and governance structures, we are left with one: the all-powerful state.

Now…if such cannot be demonstrated solely praxeologically, what approach does Lottieri suggest?

In Mises’s thought, there is a notion that is extremely useful in helping us grasp the relationship between theory and practice in the law. In fact, in Theory and History, he opposes praxeology to thymology, which is in close relationship with history.

Thymology?

Thymology is a branch of history and “derives its knowledge from historical experience.”

When ATL challenged this mosquito to tackle this issue praxeologically, I suggested my extreme lack of qualifications – without any real evidence on this point.  Now…if Mises says it is not so easy, well…that’s pretty good evidence.

Continuing with Mises:

This “literary psychology” is the condition of a rational behavior: “for lack of any better tool, we must take recourse to thymology if we want to anticipate other people’s future attitudes and actions.”

Leoni does suggest a praxeological dimension to this, for the most theoretical part, “coinciding with the analysis of the individual claims and their interactions.”   But there is also the thymological dimension, “depending on experience, common opinions and traditions.”

His idea is that positive law has a strong relationship with customs. As practical activity, law must reduce uncertainty…. Our behavior is led very often by the rationality of our past experiences and by our prejudices.

Lottieri integrates Aristotle and Aquinas in his analysis.  From Aristotle, there is a law of nature – law that is just by nature.  Citing Aquinas:

…“custom has the force of law, abolishes law, and is the interpreter of law.” [Aquinas] accepts customary law because it has the approval of individuals: “because, by the very fact that they tolerate it, they seem to approve of that which is introduced by custom.”

And therefore, the role and necessity of custom and tradition if one is to find some form of libertarian society:

For all these reasons, the Thomist distinction between natural law and human law is fundamental, especially if by lex humana we do not conceive of the state law, but our ever-imperfect translation, into norms, of our aspiration to live in a just society.

Because the choice is one or the other: state law or (naturally evolving) custom and tradition.

As Paul Sigmund correctly remarked, “human law is the application to specific circumstances of the precepts of reason contained in the natural law.”

There is reason in tradition.

This mediation is always unsatisfying, but at the same time necessary.

There is much in this concept and presentation that might be unsatisfying, especially for those who believe that all social interactions can be resolved via ever-increasing purification of the NAP applied.  But, humans being…human…we might accept that perfection in neither theory nor law is possible. 

Leoni perceives the importance of the positive law, also in a libertarian and anti-statist perspective.

…the intellectual heritage of Leoni can be useful in the attempt to develop a libertarian legal theory aiming to protect the dignity and freedom of the individual.

Conclusion

In spite of his positivism, Leoni can help us grasp the true nature of classical natural law, because he does not prospect for a “libertarian code” like the one envisioned by Rothbard, somewhat conceived on the model of the state legal systems. On the contrary, Freedom and the Law can be the starting-point for a more “classical” understanding of libertarian natural law actually rooted in the Aristotelian-Thomistic tradition.

A more “classical” understanding might be helpful; an “understanding” of the necessity of a generally accepted culture and tradition is mandatory, I believe, if we are to find liberty.

Thomist rationalism moves from the awareness of reason’s limits…. Rothbard himself is not far from this when he points out that a rational approach needs an understanding of the structural imperfection of our minds….

Which might suggest some humility when considering the “reason” to be found in the countless generations that passed before us.

But this observation has to have significant consequences for legal theory.

Perhaps one of the “significant consequences” being an identification of the substance that gives meaning and certainty in the gaps found when one considers application, in isolation, of the non-aggression principle.

And the realization that there must be, in fact, just such a “substance.”