The Natural Law: A Study in Legal and Social History and Philosophy, by Heinrich A. Rommen
Rommen next looks at the Natural Law in the Age of Individualism and Reason. When I came to this chapter, I thought “What is this guy talking about? The Age of Reason killed the Natural Law.” Well, it is a very worthwhile chapter.
Rommen identifies Samuel von Pufendorf, building on Hugo Grotius, as the beginning of the “so-called age of natural law”:
The net result of the age was a disastrous setback, from the opening of the nineteenth century, for the natural-law idea among the modern philosophers and practitioners of law who were unacquainted with the older Christian tradition.
I have written of Grotius before, comparing his ideas unfavorably to the ideas of Johannes Althusius. But who is Pufendorf?
Freiherr Samuel von Pufendorf (8 January 1632 – 13 October 1694) was a German jurist, political philosopher, economist and historian. …Among his achievements are his commentaries and revisions of the natural law theories of Thomas Hobbes and Hugo Grotius.
Pufendorf was familiar to American political writers such as Alexander Hamilton, James Madison, and Thomas Jefferson. His political concepts are part of the cultural background of the American Revolution.
An influential fellow. Rommen attaches him to “so-called,” so you can imagine that Rommen is not favorably disposed toward him.
Deism was the theology of the age – no mystical influence of any transcendent Deity. Reason, not faith, would provide true enlightenment. From the time of Pufendorf, fun began to be poked at the “fancies of the Scholastics.” From here on, an anti-Aristotelian nominalism carried the day as the basis for philosophy.
The thesis of the autonomy of human reason, as well as the view that the existing law constituted unwarranted fetters, was closely bound up with the nascent socio-philosophical individualism of the age.
Fair warning: Rommen will write positively of the state. To the extent he means government or governance, I am generally agreeable to this (agreeable more to the latter, but you get my point). If he means state as the term is known since the Renaissance, I don’t like it. It isn’t clear his meaning, and I am free to ignore his admonishments on this point.
The foundational idea for this modern natural law was to consider man as coming from a state of nature – Defoe’s Robinson Crusoe of 1719. Thinkers of this age did not set out from the social nature of man (to include marriage, family, community, and religion), yet this is, in fact, how man was formed – the world every man was born into. Instead, everything was contract – including the social contract.
Absent the integration of this social reality, each new natural law thinker was free to introduce his own foundation from which to build his natural law framework: for Hobbes, selfishness; for Pufendorf, sociableness; for Thomasius, happiness – a “praiseworthy, pleasant, carefree life.”
Who is Thomasius?
Christian Thomasius (1 January 1655 – 23 September 1728) was a German jurist and philosopher.
His father, a lecturer at Leipzig University, brought him under the influence of Grotius and Pufendorf. Thomasius (the son) was a bit radical, lecturing in German instead of Latin, ridiculed the pedantic weaknesses of the learned, and defended mixed marriages of Lutherans and Calvinists. “He also published a volume on natural law which emphasized natural reason….” For all of this, he was denounced from the pulpits.
Though not a profound philosophical thinker, Thomasius prepared the way for great reforms in philosophy, as well as in law, literature, social life and theology. It was his mission to introduce a rational, common-sense point of view, and to bring the divine and human sciences to bear on the everyday world.
Returning to Rommen, thinkers such as these displayed little understanding or interest of the graduated social order in social life. They would introduce the idea that natural law was in force before there was any social life. This natural law would cover civil laws of contract, marriage, family life, inheritance, and property.
When put in these words, it sure seems a strange notion to me: why have a need for law – natural or otherwise – before social life? Robinson Crusoe needed no laws before Friday arrived.
Whether in revolutionary forms (Rousseau), conservative (Hobbes), or reformist (the enlightened despot), all built on this idea of a state of nature and the Stoic notion of the pre-political state of man. Rousseau would build on his optimistic view of human nature, Hobbes on his pessimistic view, and Pufendorf and Thomasius lived in the shadow of enlightened despotism.
The Enlightenment was first of all an affair of the ruling class, the nobility and the intellectuals of the age, clerics and men of science.
The latter were encouraged by the princes, because they would provide intellectual cover for the princes’ function of governing as a duty. This enlightened natural law, in the hands of enlightened despots, would be used to break down the various intermediating institutions that stood in the way of a uniform administration of the state.
First on the list for many was the Church, or Christianity more broadly. While the revolutionaries would crush it, those like Hobbes and the enlightened despots would work to subsume Christianity and independent ecclesiastical law under the omnipotent state.
There is some depth and background here for the work Robert Nisbet has done in his book, The Quest for Community; I have covered this book with several posts. It also rings true with the work that is being done at Bastion Magazine.
Luke 5: 37 And no one pours new wine into old wineskins. Otherwise, the new wine will burst the skins; the wine will run out and the wineskins will be ruined. 38 No, new wine must be poured into new wineskins. 39 And no one after drinking old wine wants the new, for they say, ‘The old is better.’”
The new wine of enlightened natural law has burst the old wineskin of – call it – metaphysical natural law. We have suffered and continue to suffer under this calamity for more than a hundred years. Many people are starting to notice that the old wine is certainly better.
This chapter of Rommen’s book continues with a more detailed examination of these new natural law thinkers, including Hobbes, Rousseau, Locke and others. I will cover these in a subsequent post.