The Natural Law: A Study in Legal and Social History and Philosophy, by Heinrich A. Rommen
Rommen posits an interesting notion: natural law was lost due to man’s lost trust in reason – and this lost trust in reason occurred during the Age of Reason! He points to skeptics and agnostics, like David Hume; utilitarians like Jeremy Bentham; leaders of the romantic movement like Joseph de Maistre and Louis de Bonald.
Common to [all], however, though for very different reasons, was a pronounced distrust of the power and abilities of human reason in individual men.
Ideas destructive to natural law were already to be found in John Locke and René Descartes, however these forces matured in Hume. Hume’s criticism leaves no method for determining the intrinsically good or bad:
Whatever may be the moral principles that guide our actions, they are not founded on objective truth and on reason.
What had been referred to as natural law was considered nothing more than agreement to convention, not based on reason but sentiment. Moral law is not intrinsic and objective; all that therefore remains is positivism, whatever appears to us as good and useful for the time – Bentham’s utilitarianism.
The destruction of natural law in the Anglo-Saxon world was not immediate; English common law retained many features of natural law, and this common law was a stubborn foe. Sir William Blackstone, eighteenth century jurist and judge, would offer, regarding natural law (hence, expressing the sentiment of the strength of natural law in English common law):
It is binding over all the globe, in all countries, and at all times: no human laws are of any validity if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original.
The romantic movement would also contribute to the destruction of natural law. This movement held an affectionate regard for the past – specifically the past of one’s own people. Law is found not in reason grounded in natural law, but in the general will of the people:
In this way, the historical school acknowledged three sources of law: customary law, statute law duly promulgated, and the science of law which brings the law, so to speak, into conscious.
Law was thus only positive law: what was deemed just today could be deemed unjust tomorrow, and this would be valid law – maintaining binding authority…until it is changed again. One could not rely on the natural law in the face of this positive law. “…that would be the crime of the Revolution.”
I have written much about customary law in the tradition of medieval Germanic law – the old and good law: the older the custom, the more weight; but it must be “good” custom. I guess the issue is: how to identify the “good”?
It would seem that the customary law written about here by Rommen inherently cannot be the same “good” as that which I have seen in the medieval old and good law. If “good” can reverse course based on current sentiments, how can it be “good”?
Rommen notes this same difference: historically, customary law was existing law, not the abstract and untethered law of the modernist revolutionaries.
Just as Occam raised the question of whether God (by willing it) can oblige a person to hate Him, so Stahl declared that a positive law which is contrary to God’s law is nonetheless binding.
Scientific empiricism, lacking any sense of the normative, would lead the charge of positivism against the natural law:
Empiricism, which dismisses metaphysics as epistemologically impossible (agnosticism), believed that, since it had won such great triumphs in the natural sciences, it is also the right method to follow in the so-called cultural sciences.
Those who follow Austrian Economics understand the shortcoming of such thinking when it comes to their discipline; those who consider libertarianism as requiring nothing more than a foundation of the non-aggression principle might consider that they are victim of a similar shortcoming.
Rommen identifies two forms of positivism: first, as the consequence of an empiricist narrowing of reality; second, as a philosophy of life and conception of the universe and man’s place in it. He describes this second form, in its “crudest expression,” as materialism.
The jurisprudence of materialism must boil down to mere positivism. Materialism regards man as nothing more than a highly evolved animal….
Random atoms smashing together randomly. In such a view, there is no such thing as free will, hence there can be no such thing as morality – and, therefore, no basis upon which one can make a moral claim. Not even the claim to the non-aggression principle.
The state – meaning those who claim monopoly power and authority over the rest of us – is therefore the creator of morality and law. Whatever higher goods we possess – “freedom, property, family, personal rights” – we owe to the state. Law is that which is enforced, not that which is enforceable.
Law is consequently no true norm or something pertaining to reason, but mere actual will in the psychological sense.
Law does not depend on the essential nature of human beings, only on that which the state wills. One can describe the condition of philosophy in the nineteenth and early twentieth centuries as “unsettled.” We see this in the wide variety of post-Enlightenment philosophical offspring – ranging from Rousseau to Marx to Jefferson; all brothers, born from the same parents and only varying in degree as to how much or little of the moral (natural) law must be respected.
Rommen concludes: “In real life, this attitude is untenable….” When one acts, in real life as opposed to living in his mind, he acts as if something of objective law exists – as man’s common sense has ordinarily held.
If anyone were to attempt to realize a strict and consistent positivism in the everyday life of society, his sole possible attitude would be an unbearable cynicism.
Why? This is the question that the positivist, ultimately, can never answer – hence, cynicism. At some point, he must offer an unchallengeable, unquestionable foundation – else there is no “why.”
Even the non-aggression principle cannot stand without this why? There is no other creature on earth that respects it – so, why should man?