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In every system of morality, which
I have hitherto met with, I have always remarked, that the author proceeds for
some time in the ordinary way of reasoning, and establishes the being of a God,
or makes observations concerning human affairs; when of a sudden I am surprised
to find, that instead of the usual copulations of propositions, is, and is not,
I meet with no proposition that is not connected with an ought, or an ought
not. This change is imperceptible; but is, however, of the last consequence.
Hume calls for caution against such
inferences in the absence of any explanation of how the ought-statements follow
from the is-statements. …This complete severing of "is" from
"ought" has been given the graphic designation of Hume's Guillotine.
There apparently is some debate surrounding the idea that
Hume intended to completely severe of the “is” from the “ought,” but there you
have it – this split has certainly achieved a firm place in philosophical
thought.
This divide, or split, cannot be easily bridged without
leaning on metaphysics – the idea that man is a being with purpose, an end, a telos,
and that ethics are to be teleologically derived.
If moral philosophy and, in moral
philosophy and with it, legal philosophy are to have a solid foundation, they
must be a continuation of metaphysics.
This as opposed to a positivist legal philosophy which
really needs no foundation at all; it also has no means – or even reason – to
connect is (or being) and ought. It
also can be anything that the legislator desires.
Natural law in the strict sense is
therefore possible only on the basis of a true knowledge of the essences of
things, for therein lies its ontological support.
The essence of things provides the norm – the end or the
purpose; good is the full being – the full is of achieving the ought
of that norm.
…since the good also ought to be,
it follows that in the domain of metaphysics being and oughtness coincide.
This leads to an order of things. “But wait,” you scream, “where is the freedom
in all of this? What happened to my
liberty?” It is an order that conforms
to the nature of things – in our case, to the nature of a human being. We have freedom to conform to our
nature. Do you have a better definition
of freedom than the freedom to conform to our nature? Would you advocate your different definition
as applicable
to a lion?
In other words, man’s basic and
prime duty is to become (in fact, actually fully, completely) what he is (in
idea, potentially, germinally, essentially) through the consistent and
persistent use of his reason and free will in the light and direction of his
natural inclination.
This eternal law is a necessity for non-human animals; for
humans, it is a moral law of freedom.
Conclusion
A rock has no is-ought problem; a lion has no is-ought
problem. Somehow, the only thing on
earth – animal, mineral, or vegetable – that has an is-ought problem is human
beings?
Let’s just say that some philosophers are too smart by half.
Why am I pounding on this?
I understand libertarian theory; I also understand that libertarian
theory applied is insufficient for liberty.
Do you want to sound sophisticated at the cocktail party of your next academic
conference, or do you want liberty?
I prefer liberty. This
is why I am pounding on this.
Epilogue
I must point out, natural law as described by Rommen – and presumably
many natural law thinkers – has in it what I consider fatal flaws. Rommen describes the necessity of a state;
now, if what he means by “state” is something approaching the modern (post-Reformation)
version of government, then he is sorely mistaken. Such a state has proven only to be an enemy
of natural law.
Another fatal flaw: we are to obey unreasonable laws; only
laws “at variance with the natural law” can be disobeyed. Rommen’s point: the individual rarely is
sagacious enough to judge the reasonableness.
I am not sure I can fully form my concern with this line of thinking,
but flags have been raised.
Finally: morality and the law must coincide – no distinction
can be made. Therefore, non-violent
breeches of ethics – of man always acting toward the good of his being and the
being of each of his faculties – is subject to punishment. As I have mentioned often, this is the coward’s
way out – Christians want legislation to do their work for them. It also is, in my opinion, immoral; physical
punishment for non-violent offenses cannot be morally justified.
I may not return to any of these concerns, but I wanted to
make these clearly known.
Anyone who is not broken will instinctively recognize unreasonable. He may not be able to articulate.
ReplyDeleteThen you must define non-violent. Is theft? How much of your life can they steal?
"Thou shalt not steal" came with no qualifiers.
Delete"Finally: morality and the law must coincide – no distinction can be made. Therefore, non-violent breeches of ethics – of man always acting toward the good of his being and the being of each of his faculties – is subject to punishment."
ReplyDeleteYou're in good company opposing this law-morality linkage, Bionic. Both St. Augustine and St. Thomas Aquinas argued, e.g., that the immorality of prostitution did not justify its prohibition by the civil authorities.
"Another fatal flaw: we are to obey unreasonable laws; only laws “at variance with the natural law” can be disobeyed. Rommen’s point: the individual rarely is sagacious enough to judge the reasonableness. I am not sure I can fully form my concern with this line of thinking, but flags have been raised."
ReplyDeleteI have no problem fully forming my concern with this line of thinking. The rulers don't have any better information, and may have less wisdom, than I do.
And, in your previous paragraph, you give all the reason anybody would need to reject that line of thinking.
“Another fatal flaw: we are to obey unreasonable laws; only laws “at variance with the natural law” can be disobeyed. Rommen’s point: the individual rarely is sagacious enough to judge the reasonableness.”--BM
ReplyDeleteIf a law is unreasonable is it at variance with natural law? Can it be anything else?
Put another way: All laws are to be obeyed, reasonable or unreasonable, except those which are “at variance with the natural law”. Those laws can(should, ought to)be disobeyed. Out of the entire mass of humanity, however, only a very few individuals are wise enough to discern the difference, therefore, the vast majority of people will (should, ought to) obey all laws, whether they are reasonable or not.
This is, as you say, fatal. Fatal, not only to the cause of liberty, but also quite often to individuals who run afoul of the law they were supposed to obey.
Martin Luther King, Jr. is purported to have said something to the effect that if a law is unjust, it deserves to be broken. The problem with this is that it relies on subjective judgment to determine if a law is unjust. What makes a law unjust? Who decides? One man’s ‘unjust’ law is another man’s ‘righteous law in action’, as witness the violent punishment of non-violent, victimless crimes. And, with all due respect to MLK, Jr., his sense of ‘justice’ was no better than mine or yours.