Thursday, February 21, 2019

Libertarianism and Natural Law

The first part of Storey’s book is entitled Natural Law.  He finds in natural law the roots of libertarian law, the non-aggression principle.  Libertarianism is nothing more or nothing less than this – the non-aggression principle.  Many – both in and out of the so-called libertarian community – confuse the issue, adding various open borders and egalitarian social norms; others confuse the issue by insisting that the non-aggression principle is for all – universal.  It is none of these things.

Libertarian law has its roots in the Indo-Europeans from whom all European civilizations are descended.  It is a law that came from these roots and only these roots; it is a law to be found in no other civilization or tradition – certainly not in any meaningfully sustained way or outside of a small handful of philosophers.

There is a uniqueness in the Western law, “making the law the king of kings.”  The social norm that was necessary to ensure this position for the law was the norm to be left alone in life and property.

…the king could not violate the private property rights of another free man for fear of retribution from other powerful lords on the one hand, and the loss of honour, glory and respect from one’s kinsmen on the other.

It was this law that was studied and refined in the west.  Storey cites Augustine, who identifies evil as that which corrupts the measure, form or order that belongs to nature.  It seems a sentiment that has its thread connected to the natural law as developed by Aristotle and Aquinas.  The study of this Western tradition has been decimated, lost; Story finds that this loss is no accident, with a view that has prevailed in the universities in the 1960s and 1970s.

Libertarians might consider the consequences of evil that corrupts nature’s order; if ignoring some portion of natural law results in such evil, does liberty stand any chance of success? 

This natural law has its roots in the Indo-European environment of ancient Greece, with the desire to live for one’s own sake ushering in the emergence of individualism.  The Romans confused this natural law, with a mix of private and public law: private law defending property, and public law encroaching it.  This continued to the point where the citizens preferred life under the barbarians as opposed to imperial rule.

Citing the early fifth century priest, Salvian: Rome collapsed in the west because it denied the first premise of good government – justice to the people.  The wish of the people, once captured by the barbarians, was to never again return under imperial rule; the barbarians were the liberators.  The root cause of this wish was the loss of natural law.

The Christianity of Northern Europe worked to clean up the mess made by the Romans: law by custom, conforming to nature.  Excommunication worked to both discipline the king and to allow the people to consider the king invalid.  Where the emperor attempted to select the pope, Pope Gregory VII established the College of Cardinals as the only legitimate means of selection – keeping very separate the Church and king.

This self-determination for the Church was mirrored in other institutions: universities, guilds, free-cities, etc.  No authority had complete political, religious or intellectual authority.  This mosaic of institutional authorities made room for individuals to find freedom.  The Renaissance unleashed the forces that would eventually destroy this balance.

The roots were in Christianity and the Greek tradition of the environment in which it was nurtured.  Jerusalem was a Greek city; Paul was educated in the Greek tradition; Christ is identified as the logos, the Word, the ordering principle of the universe.  It was in this tradition where the individualism that libertarians claim was to be found; absent this tradition, we get the individualism of social justice and Cultural Marxism.

Storey reminds us that Lady Justice – depicted often as a solitary figure – has a sister: Prudence.  Justice without prudence is truly blind, lacking any guidance toward any rationally observable order.  One could consider that the non-aggression principle – with the characteristics of purely objective justice – is incomplete without prudence if one wants the fruits of natural law made possible by the two sisters working in concert: jurisprudence.

Libertarianism without the natural law as its foundation is lost.  Justice requires that the natural order is maintained and defended; this is prudent.  It is for this reason that libertarians such as Hoppe and Deist speak of community; this common grounding in a natural law tradition is necessary if one is to enjoy the fruits of libertarianism.


Can this Western natural law tradition of liberty survive a community that does not uphold Western natural law?  To ask the question is to answer it.  Yet it is on this point that libertarians – and also the wider community – split.  One can find the split in reactions to pretty much anything Hoppe writes and in reaction to Deist’s blood and soil comments. 

Yet we might as well throw out the libertarian project without recognizing this tradition. 


  1. BM: "He finds in natural law the roots of libertarian law, the non-aggression principle."

    Ah, yes... but... the NAP is not natural law. Its the other way around. Which is a point that seems lost to many libertarians. The key is this (as you quoted): "…the king could not violate the private property rights of another free man for fear of retribution..."

    Retribution of other free men.

    NAP flows from this retribution. If you want to avoid retribution, then NAP. Not the other way around.

    Therefore NAP is a principle, not natural law. Natural states: "If you violate a free man, he and other free men _will_ respond in kind."

    I.e. natural law = reciprocity. The NAP is downstream from reciprocity.

    Btw: I believe that the above is described in propertarianism.

  2. I have to say that the relationship between church and state in late antiquity and early middle ages isn't completely as straightforward as depicting in these books.

    I think it reasonable to say that there was some rivalry between the two at times. However, I would also say that in many other instances they worked together, that fact is partly why French liberals were anti-Catholic Church. It wasn't just for atheist libertinism though that was part of it.

    Two examples come to my mind. The first is Constantine. He used Christianity as a unifying movement for his empire. They didn't work together hand in hand, but he was friendly to church elders and persecuted heretics on their behalf at times while they formalized and unified creed and canon. He didn't control how that happened but he did ask them to convene councils which they did.

    The second is King Clovis of the Franks. He was used by the Church to Christianize his kingdom. The whole thing went from pagan to Christian at least nominally under his rule. Both parties gained in power as a result.

    These examples don't discount the points made by Storey but they are counter points so that we understand the full picture. The full picture is always complicated.

  3. The Xeer of Somalia is an instance of natural law which arose exterior to the West underscoring the fact that natural law is not so much contrived as discovered, as it spontaneously arises as all language has. I think one can say that by the time of Medieval Europe the king had merely taken over administration of this natural law, usurping that right from its prior private arbiters. With the emergence / invention of the nation state both the production and administration of law was seized by the judiciary. Law devolved to the armature of power by which states dominated their own subjects and mobilized for war against competitive states. In the modern state, law has been reworked to deliberately incite conflict so that the tactics of a brutal surveillance / police state can be deployed to manage it. Governing is by way of inciting conflict which can then be managed. It is against this dangerous, oppressive, and very malicious history of the judiciary against which libertarianism militates in my view.

    1. Victor, in the Middle Ages one might point to Britain and France as the first consolidating nations - toward the latter part of what is known as the Middle Ages. The 100-years War was between these two consolidated powers.

      The nation-state as we know it did not come to form until post-Reformation, when the various kings / princes / nobles were able to use the division brought on by Protestantism to consolidate their own monopoly power. This also worked in Catholic lands, as the Pope was weakened.

  4. BM, great post.

    I see in your post the fact that free men will always have to defend their culture, each other's freedom, and the natural laws. Man can not "let the government do it" or "let someone else do it".

    The State is the most evil creation in history.

    1. Mark, your comment reminds me of the following:

      Questions that must be faced by libertarians if liberty is the objective.

    2. Thanks BM. That is a great essay and food for thought. I hope you will revisit that topic someday.

      By the way, IMHO you are the most readable libertarian writer since Rothbard passed on. Many thanks for all you do.