The Search for Liberty; Chapter Twelve: Libertarian Natural Law

NB: All previous chapters can be found here.

From an earlier chapter:

Many libertarians claim natural law as the basis for libertarianism, yet do not embrace the entirety of Natural Law – they do not ascribe to the fullness of man’s purpose, but only ascribe to purposes which are in conformance with non-aggression.  In other words, the philosophy drives the purposes and not the other way around.

This journey finally has come to this point – where natural law meets the non-aggression principle.  This will be examined through the work of the libertarian that did the most thorough work in basing libertarian theory on a foundation of Natural Law, Murray Rothbard: Introduction to Natural Law.

The aspect of Rothbard’s view on natural law that I will address in this chapter is the idea that the discovery and maintenance of an ethical value system based on natural law can be based on man’s pure reason; that the judged can also be the judge.  In the next chapter, I will review Rothbard’s comments on the applicability of natural law to political philosophy and morality.

Rothbard begins by describing the challenge for the “believer in a rationally established natural law”: on the one hand, he is confronted with those who offer that natural law can only come through faith and revelation; on the other hand, he is confronted by philosophical “scientists” who gleefully agree, thereby dismissing the entire concept.

He offers that those such as “St. Thomas and the later Scholastics, as well as the devout Protestant jurist Hugo Grotius” have demonstrated natural law via “the independence of philosophy from theology.”  Setting aside what seems to me to be the case that philosophy and theology are inherently intertwined – even for those who disclaim theology, despite their protestations – it is a path that C.S. Lewis also walked…to a point, as it can only be walked to a point.

I cannot escape the reality that this natural law ethic reached its fully developed form among scholars who inherently were religious – Christian.  Given that philosophy and theology are inherently intertwined, it is difficult to imagine that scholars such as Thomas, the later scholastics, and Grotius, could so effectively compartmentalize their thought.  No one starts such a journey with a blank slate.

It also is telling that even though versions of the Golden Rule are to be found in many cultures and traditions, no other culture or tradition so developed natural law.  It is difficult to avoid the “Christian” behind natural law – at least natural law that stood behind the freedoms enjoyed in the West.

Of course, we found the beginnings of natural law in Plato and Aristotle: The Form of the Good, the Good embodied in the being, and every being having a purpose or an end.  If one walks this path, one can discover natural law without necessarily incorporating “theology,” albeit questions remained unanswered regarding who, or what, created Plato’s Form, and in who, or what, do we find Aristotle’s embodied Form.  Christianity answers both of these questions – the first in God, the second in His Son.

Rothbard offers that this idea of natural law independent of religion was implicit in Thomas’s work, and not explicitly stated.  He offers direct statements from later Scholastics, Hugo Grotius, and other scholars to this same effect.

Thus, let there be no mistake: in the Thomistic tradition, natural law is ethical as well as physical law; and the instrument by which man apprehends such law is his reason — not faith, or intuition, or grace, revelation, or anything else.

Yet Jesus was identified as “reason,” the logos:

Logos, (Greek: “word,” “reason,” or “plan”) plural logoi, in Greek philosophy and theology, the divine reason implicit in the cosmos, ordering it and giving it form and meaning.

In the beginning was the logos.  I don’t believe this would have been lost to Thomas. 

Returning to Rothbard, citing John Wild:

Realistic [natural law] ethics is now often dismissed as theological and authoritarian in character. But this is a misunderstanding. Its ablest representatives, from Plato and Aristotle to Grotius, have defended it on the basis of empirical evidence alone without any appeal to supernatural authority.

Rothbard sees in Thomas that reason has the premier place in moral conduct, and that it is reason that distinguishes man from the other animals.  Citing Father Copleston, reason “enables him to act deliberately in view of the consciously apprehended end and raises him above the level of purely instinctive behavior.”

This is not consistent with my previous reading, for example, from Atkinson:

Aquinas…believed that God was leading human beings to a rational, moral life, while Aristotle believed that being moral was naturally inherent in human beings.

And also DeMarco:

The difference between the ethics of Aristotle and Aquinas has to do with how virtue comes about. … Perhaps Aristotle overestimated our capacity to be reasonable and under-estimated the importance of love. Whereas Aristotle links virtue to reason, Aquinas links it more properly to love.

As we examine this connection of libertarianism and liberty with natural law, the issue of “the consciously apprehended end” must be kept in mind, as must the point of rising above “the level of purely instinctive behavior,” as Lewis demonstrated in the previous chapter.  If we are to base liberty on natural law, picking and choosing among ends that suit our instinct (or via some other means) will destroy the entire foundation.

Pure reason, of course, can come to many conclusions.  “Right reason” is offered as “reason directing man's acts to the attainment of the objective good for man.”  Moral conduct, if it is to be considered rational, must be in accord with right reason: “reason apprehending the objective good for man and dictating the means to its attainment.”  For this, the phrase “practical reason” has been used by others, and I have reflected this in previous chapters.

Reason, therefore, is not to be considered a slave to the passions or to pure instinct.  It is intended to move man toward the objective good.

For the Thomist or natural-law theorist, the general law of morality for man is a special case of the system of natural law governing all entities of the world, each with its own nature and its own ends.

But there is a vital difference in human beings – different than for every other entity in creation:

And here we come to a vital difference between inanimate or even non-human living creatures, and man himself; for the former are compelled to proceed in accordance with the ends dictated by their natures, whereas man, "the rational animal," possesses reason to discover such ends and the free will to choose.

It is right that Rothbard uses the term “discover” when it comes to human ends.  These ends exist, inherent in humans – not for humans to decide, but to discover.  Rothbard also offers that there is an objective good; therefore this, also, must be discovered – not decided or chosen.  In other words, we have free will to act in accord with these good ends or not, but we do not have free will in deciding these good ends.

If there is an objective good, then yes – it is discoverable by reason, but it cannot be true that natural law is a system that leaves each human being free to choose his ends by using his own reason.  If something is an objective good, can my choosing make it otherwise or put something else in its place? 

Rothbard notes that “science” scoffs at the idea of nature when it comes to man.  But he asks:

…if apples and stones and roses each have their specific natures, is man the only entity, the only being, that cannot have one? And if man does have a nature, why cannot it too be open to rational observation and reflection?

And if man has a nature (as do apples, stones and roses), does he not also have an end (as these also do) – one inherent, discoverable by reason but not open to individual choice?

One common, flip criticism by opponents of natural law is: who is to establish the alleged truths about man? The answer is not who but what: man's reason. Man's reason is objective, i.e., it can be employed by all men to yield truths about the world. To ask what is man's nature is to invite the answer. Go thou and study and find out!

And here is where Lewis and Rothbard will butt heads; as Lewis offered:

…the judge cannot be one of the parties judged; or, if he is, the decision is worthless and there is no ground for placing the preservation of the species above self-preservation or sexual appetite.

Returning to Rothbard:

The natural law ethic decrees that for all living things, "goodness" is the fulfillment of what is best for that type of creature; "goodness" is therefore relative to the nature of the creature concerned.

When we consider ends for all other beings, we do not individualize these: one lion has the same ends as every other lion; one rock the same ends as every other rock.  Why would this be different for humans?

The natural law, then, elucidates what is best for man — what ends man should pursue that are most harmonious with, and best tend to fulfill, his nature. In a significant sense, then, natural law provides man with a "science of happiness," with the paths which will lead to his real happiness.

We will come to the idea of “happiness” shortly.  First, an important point: Rothbard makes clear that on this topic, value is not subjective:

Value in the sense of valuation or utility is purely subjective, and decided by each individual. This procedure is perfectly proper for the formal science of praxeology, or economic theory, but not necessarily elsewhere. For in natural-law ethics, ends are demonstrated to be good or bad for man in varying degrees; value here is objective — determined by the natural law of man's being, and here "happiness" for man is considered in the commonsensical, contentual sense.

“Contentual” is defined as relating to content, different than contextual.  It isn’t completely clear to me how to understand this in the context of Rothbard’s statement.  I do, however, understand the word preceding it: commonsensical.  And in this case, “happiness” cannot be properly understood in a way that would be commonsensical today.

Recall from an earlier chapter on Aquinas: happiness in the context of natural law comes from the Latin word beatitudo.  This translates:

Beatitudo: (happiness or blessedness). The happiness that comes from seeing the good in others and doing the good for others. It is, in essence, other-regarding action.

It is a definition of happiness far different than what is understood today; it is the definition important to understand Thomistic Natural Law and the ends for which humans are to aim.  Call it the Golden Rule, for simplicity.  For liberty based on natural law, this seems a significant point.

Rothbard offers a strong defense for the objective value that underlies natural law.  He weakens his defense by offering that the judged can also judge.  Rothbard offers Leonard Carmichael, who indicates how “an objective, absolute ethic can be established for man on scientific methods, based upon biological and psychological inquiry” as these values have emerged over thousands of years.  From Carmichael:

Is there any reason to suggest that these values, once identified and tested, may not be thought of as essentially fixed and unchanging? For example, the wanton murder of one adult by another for the purely personal amusement of the person committing the murder, once it is recognized as a general wrong, is likely always to be so recognized.

Is it really so that as man has come to understand certain ethical values that these have remained accepted thereafter?  Thereafter, man is on a never-ending path toward ever-improving ethical behavior?  This, I am afraid, is categorically not true. 

FJP Veale has demonstrated just the opposite in his book Advance to Barbarism.  There was a time, and most certainly in the West, when war was a matter only of the combatants and not the population at large.  By the time of the Civil War in the United States and World War One in Europe, this had completely changed.  Wanton murder went from unacceptable to acceptable – in imagery, best exemplified at Hiroshima and Nagasaki, but in reality offered thousands of times over the last one hundred years and more.  We accept this as normal today, moral and ethical.

Abortion is another example.  While the legal situation has been somewhat fluid and changing, it has significantly changed toward approving of the murder of the unborn child and at an ever-increasing term.  In other words, even though abortions were known throughout history, the legal situation has not moved toward defending against “wanton murder,” but toward legalizing “wanton murder.”  Over 50 million per year, worldwide.  This is also considered moral and ethical; it is, in fact, immoral to consider challenging the mother’s “right to choose” to wantonly murder her child.

Philosophically, this statement from Carmichael suggests that man provides the north star; history has demonstrated that without an independent north star, man’s ethical compass toward objective value is useless.

From his Gifford Lectures, N.T. Wright offers: “To be an image-bearer is more than just behavior; otherwise we put the knowledge of good and evil before the knowledge of God.”

Developing and maintaining a society bound by natural law will only go so far without also recognizing the embodied Form of the Good; it will only go so far as long as the judged are also to be judges.

Conclusion

There must be something unmovable, foundational, and objective at the base of natural law for natural law to play its role in liberty.  Something beyond and outside of man’s authority and man’s reason.  As Lewis offered:

It is no use trying to ‘see through’ first principles.  If you see through everything, then everything is transparent.  But a wholly transparent world is an invisible world.  To ‘see through’ all things is the same as not to see.

There must be something that man cannot see through, hence something beyond man’s ability to modify, change, or re-define; something beyond man’s pure reason.  If not, we are left with a battle of competing “reason,” and, for most of us, this means our reason will lose.

Epilogue

Returning to Rothbard:

Another common charge is that natural-law theorists differ among themselves, and that therefore all natural-law theories must be discarded.

Hence the value of a judge who is not at the same time to be judged.

Furthermore, difference of opinion is no excuse for discarding all sides to a dispute; the responsible person is the one who uses his reason to examine the various contentions and make up his own mind.

But if each of us are free to make up our own minds – especially regarding ends – how will we come to a natural law that is useful toward liberty and peace?  How will justice be determined?  Who will arbitrate our “differences of opinion”?  On what basis?

No man is omniscient or infallible — a law, by the way, of man's nature.

It is fortunate, then, that we have been given the omniscient and infallible embodied Form of the Good.  Of course, I have no complaint regarding those who come to this natural law without the same Christian belief.  I just don’t believe that a society can sustain this natural law without the foundation from which it was formed.