The Natural Law: A Study in Legal and Social History and Philosophy, by Heinrich A. Rommen
Rommen continues with an analysis of the thinkers that transformed the old natural law into something more modern – more individualistic.
Samuel von Pufendorf
I briefly introduced him earlier. As a reminder, he was a seventeenth century German jurist, political philosopher, economist and historian; he was influential to the founding generation of Americans.
Pufendorf did not view man as teleologically a social creature; instead, he saw man as developing socially only because it proved advantageous to him – a “mere capability, mere impulse.” In a state of nature, man was an isolated being – having the choice to develop socially…or not.
From this isolated starting point, all positive laws could be defended as natural law. Everything from property, the family and inheritance – all in tremendous detail. This as opposed to the earlier understanding of natural law which, via the Decalogue, conceded only a few basic norms.
A late seventeenth / early eighteenth-century German jurist and philosopher. Temporal happiness should be the aim of ethics:
“Whatever renders the life of men long and happy is to be done, but whatever makes life unhappy and hastens death is to be avoided.”
The happiness of the individual is the purpose of natural law. I think it depends on just what is meant by “happy.”
The eighteenth-century German philosopher. Rommen describes Kant’s philosophy as the individualist natural law in its final, highest form.
Liberty or autonomy is the sole right that belongs originally to every man in virtue of his humanity.
Kant would be known for his achievement of separating ethics and law. Rommen disapproves of this, yet I find it necessary if one is to secure liberty. Law and physical punishment are blunt instruments for perfecting man – God gave the Israelites hundreds of statutes and also did His share of punishing, and look what good it did. If it didn’t work for God, well…
Rommen’s summary of these views of these philosophers? Rommen describes this era of the individualist natural law, based on the imaginary starting point of man in a state of nature, as having birthed dozens of natural law systems. Every year, eight or more new systems of natural law would appear at the Leipzig book fair.
Anselm Desing, an eighteenth-century Catholic philosopher and historian, would describe these new natural law systems not as dictates of reason, but, instead, as rationalizations of the positive laws of the period. The new natural law would find not only a right to liberty and equality, but could also teach feudalism; alongside the French constitution of the revolution, it would find for the constitution of the Holy Roman Empire; the postal system was shown to be a natural law institution.
Whoever was desirous of representing something as good and worth while had now to make of it a requirement of the natural law, and to show that it is a conclusion of reason and that it existed in the state of nature.
Reason divorced from man’s social nature could be used to defend any and every construct of natural law. Those who would battle against this during the scientific nineteenth century would be the ones identified as fighting against natural law. But it was just in that scientific nineteenth century when some of the most destructive political philosophies would be born.
After Adam, man was born into a family and community. For however many generations that have passed since then, this has been true. It would seem, therefore, reasonable to use this social condition – as opposed to man in the purely hypothetical state of nature – as a starting point to discover natural law.
Many issues that libertarians struggle with could be dealt with much more easily if this is taken as the starting point. Libertarians, for example, have no idea what to do about children; answers come much more easily if natural law is built on the social foundation.
Of course, easy doesn’t make it right. But for this, I suggest and have long suggested that liberty cannot be found on a basis that denies man’s nature.
Anselm Desing is an interesting character. He planned the Observatory of Kremsmünster, in Austria (pictured here). Already a thousand years since the founding of the monastery, Desing would plan a new structure for the purpose of scientific and theological study:
Planned by Friar Anselm Desing, the building was to be a reflection of all of nature in a nine-story building. The height and design of the building was a feat in and of itself and is said to be one of the first examples of modern high-rise architecture.
Known as “The Mathematical Tower, “ it was designed by Desing, and construction was completed in a period of ten years from 1749 – 1758:
This nine-story structure was meant to house a universal museum in which the visitor would be led from inanimate nature (minerals and fossils on the second floor) over to lower living nature (plants and animals), on to the human sciences and arts (art chamber and picture gallery on the third and fourth floors), then on to the cosmos (the observatory on the sixth floor) and finally to the reflection of God (the chapel on the seventh floor).
Somehow, I can’t square the nine-story structure with the seven-floor description – even if counting the ground floor as zero. But this is a triviality.