Monday, April 30, 2018

Integrating Classical Natural Law and Libertarian Theory

From an earlier comment by A Texas Libertarian, one to which I have previously referred:

Maybe we need someone to bridge the gap between politics and culture, to define praxeologically what culture is required to support liberty.

A project for which I am overwhelmingly underqualified, yet – as if a gift from God – I am finding what might be some items well-applicable to this suggestion. 

Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe, edited by Jörg Guido Hülsmann and Stephan Kinsella.

The essay is entitled “Classical Natural Law and Libertarian Theory,” by Carlo Lottieri.  I will admit: I do not fully grasp all of the concepts of which Lottieri writes, but, perhaps, somewhere in the intersection of my writing and your further feedback, I can make progress on this topic.

Writing of Rothbard:

But unfortunately, he does not really grasp the function of the evolution into classic natural law. …Rothbard seems to minimize the contextual and non-theoretical dimension of a large part of legal controversies and especially of positive law.

Lottieri uses the term “positive law” in a manner that is not completely clear to me – perhaps (though I am not certain) in a manner different than it is typically understood.  As best as I can make of this: the non-aggression principle offers us a negative law; moving from this negative law to a functioning, free society requires something more: tradition.  This “something more” might be what Lottieri considers “positive law.”

He hints at this confused meaning of the term “positive law,” when he writes (emphasis added): “… [Bruno] Leoni tried a sort of reconciliation of natural law and legal realism (positive law rightly understood)…”

As if addressing the task suggested by ATL:

Using the Thomist framework, in this essay I will emphasize the importance of the lex naturalis, at the same time highlighting a lex humana deeply rooted in the complexity of different ages and societies, related to the subjectivity and specificity of opinions which cannot be fruitfully examined by a praxeological approach. Many problems, and even some inconsistencies of Rothbardian theory are a consequence of it.

Buried in here, it seems, is my struggle.  To achieve a libertarian society (or a society approaching libertarianism), is something beyond the NAP required – specifically some culture, tradition…a “nationality principle,” as Salerno offers from Mises?

Perhaps the issue raised by ATL is not addressable praxeologically, as Lottieri suggests.  Perhaps it takes a different approach.  Lottieri will address this point shortly.

Referring to Carl Menger’s Investigations into the Method of the Social Sciences, Lottieri offers:

Menger also highlights the individualistic content of evolutionary law with the goal of helping the classical liberal tradition to rediscover its lost roots: “law, like language, is (at least originally) not the product in general of an activity of public authorities aimed at producing it, nor in particular is it the product of positive legislation. It is, instead, the unintended result of a higher wisdom, of the historical development of the nations.” (Emphasis added.)

As I have suggested often, you may take “a higher wisdom” to mean God, or you may take “historical development of the nations” to mean culture and tradition.  Either is OK with me, and neither is the same thing as “positive legislation” produced by “public authorities.”

It is exactly in this sense that we can understand Leoni’s preference for evolutionary law (Anglo-Saxon law and Roman jus civile): a law not oriented to preserve tradition or spontaneous order per se. On the contrary, Leoni thinks that a polycentric and evolutionary order is in a better position to safeguard individual rights.

Why is this?

Rules that emerge from the interpersonal exchange of claims are tools that can effectively protect society from the rulers.

A wonderfully succinct statement of the value of culture and tradition.  Absent a generally accepted culture and tradition, all we are left with is the rulers dictating and enforcing the rules.  Absent other, reasonably voluntary, institutions and governance structures, we are left with one: the all-powerful state.

Now…if such cannot be demonstrated solely praxeologically, what approach does Lottieri suggest?

In Mises’s thought, there is a notion that is extremely useful in helping us grasp the relationship between theory and practice in the law. In fact, in Theory and History, he opposes praxeology to thymology, which is in close relationship with history.


Thymology is a branch of history and “derives its knowledge from historical experience.”

When ATL challenged this mosquito to tackle this issue praxeologically, I suggested my extreme lack of qualifications – without any real evidence on this point.  Now…if Mises says it is not so easy, well…that’s pretty good evidence.

Continuing with Mises:

This “literary psychology” is the condition of a rational behavior: “for lack of any better tool, we must take recourse to thymology if we want to anticipate other people’s future attitudes and actions.”

Leoni does suggest a praxeological dimension to this, for the most theoretical part, “coinciding with the analysis of the individual claims and their interactions.”   But there is also the thymological dimension, “depending on experience, common opinions and traditions.”

His idea is that positive law has a strong relationship with customs. As practical activity, law must reduce uncertainty…. Our behavior is led very often by the rationality of our past experiences and by our prejudices.

Lottieri integrates Aristotle and Aquinas in his analysis.  From Aristotle, there is a law of nature – law that is just by nature.  Citing Aquinas:

…“custom has the force of law, abolishes law, and is the interpreter of law.” [Aquinas] accepts customary law because it has the approval of individuals: “because, by the very fact that they tolerate it, they seem to approve of that which is introduced by custom.”

And therefore, the role and necessity of custom and tradition if one is to find some form of libertarian society:

For all these reasons, the Thomist distinction between natural law and human law is fundamental, especially if by lex humana we do not conceive of the state law, but our ever-imperfect translation, into norms, of our aspiration to live in a just society.

Because the choice is one or the other: state law or (naturally evolving) custom and tradition.

As Paul Sigmund correctly remarked, “human law is the application to specific circumstances of the precepts of reason contained in the natural law.”

There is reason in tradition.

This mediation is always unsatisfying, but at the same time necessary.

There is much in this concept and presentation that might be unsatisfying, especially for those who believe that all social interactions can be resolved via ever-increasing purification of the NAP applied.  But, humans being…human…we might accept that perfection in neither theory nor law is possible. 

Leoni perceives the importance of the positive law, also in a libertarian and anti-statist perspective.

…the intellectual heritage of Leoni can be useful in the attempt to develop a libertarian legal theory aiming to protect the dignity and freedom of the individual.


In spite of his positivism, Leoni can help us grasp the true nature of classical natural law, because he does not prospect for a “libertarian code” like the one envisioned by Rothbard, somewhat conceived on the model of the state legal systems. On the contrary, Freedom and the Law can be the starting-point for a more “classical” understanding of libertarian natural law actually rooted in the Aristotelian-Thomistic tradition.

A more “classical” understanding might be helpful; an “understanding” of the necessity of a generally accepted culture and tradition is mandatory, I believe, if we are to find liberty.

Thomist rationalism moves from the awareness of reason’s limits…. Rothbard himself is not far from this when he points out that a rational approach needs an understanding of the structural imperfection of our minds….

Which might suggest some humility when considering the “reason” to be found in the countless generations that passed before us.

But this observation has to have significant consequences for legal theory.

Perhaps one of the “significant consequences” being an identification of the substance that gives meaning and certainty in the gaps found when one considers application, in isolation, of the non-aggression principle.

And the realization that there must be, in fact, just such a “substance.”


  1. It may be impossible to find that "substance" by logical means from first principles. (I very much believe that to be the case)

    However I do agree that the substance must be there. It's what I refer to as a 'peg' that keeps us from sliding into the abyss of either collectivism or individualism.

    It must be there, but it also impossible to define. In fact, I also believe that there are multiple solutions. Not all produce an equal outcome though, some are clearly better than others.

    On my own blog I wrote today about a voluntary return to christian principles, even for atheists. Not enforced, but simply driven by the recognition that we need a 'peg' (or substance) and that christianity has a proven record as being the best.

  2. "Many problems, and even some inconsistencies of Rothbardian theory are a consequence of it"

    I'd be interested to read his thoughts on this further.

    "Rules that emerge from the interpersonal exchange of claims are tools that can effectively protect society from the rulers."

    Praxeology has navigated interpersonal exchange pretty well both in the economic and political realms.

    I think evolutionary law is not necessarily such a good thing. Look where the law has evolved at the present. Customary law devolved into state-made-law thanks to human weakness (or concupiscience?) and now our 'customary law' for several hundred years at least is state-made-law. In other words, customary law or lex humana is all fine and good while it approaches lex naturalis, but when it begins to substantially fall away from the ideal, it degrades and the culture degrades with it.

    Lex humana is simply too formless a notion. You can point to a particular lex humana in history (like the decentralized European middle ages) as something desireable, and that is helpful.

    I think anything above negative (libertarian) law which concerns the application of force in society must be consented to on an individual basis. Anything above this and you set in motion the forces that will bring you back to legislative law, democracy, and dictatorship.

  3. I've been following this concept along with your little community for awhile now and I have to say this one really hits the nail on the head. I wholeheartedly agree with the nomrs and traditional law concept as they relate to liberty and it seems to kind of touch on J. Peterson's lectures from his biblical series. Great stuff here Bionic keep peeling the onion there's a lot more here me thinks.

  4. "Leoni can help us grasp the true nature of classical natural law, because he does not prospect for a “libertarian code” like the one envisioned by Rothbard, somewhat conceived on the model of the state legal systems. On the contrary, Freedom and the Law can be the starting-point for a more “classical” understanding of libertarian natural law actually rooted in the Aristotelian-Thomistic tradition."

    Is the author suggesting that Rothbard's "libertarian code" was not rooted in Aristotle and Aquinas? In the "Ethics of Liberty" Rothbard repeatedly draws inspiration from both. Rothbard, in conceiving his libertarian ethics, does not simply make up a theory divorced from history. He makes it a point to draw parallels with the ideas of history (which informed or reflected contemporary customary law) back as far as the ancient Greeks.

    This was a great article Bionic. I really want to encourage you to pursue this line of thought. But I do get a bit frustrated when scholarly libertarians launch unfounded attacks on Rothbard to try to make a name for themselves. This is what I feel Lottieri has done. Rothbard is the mountain. It is better to climb to the top than to get stuck half way and begin pointlessly chipping away at rocks.

    I don't see that Rothbard failed to make a connection between classic natural law (prior to Locke) and the modern natural law through Locke, Spooner, Spencer and himself; a quick read through the first 5 chapters of The Ethics of Liberty should be enough to disabuse any thinking person of this notion.

    Also his libertarian code was in no way conceived on the model of a state based legal system, except as far as he was advocating real world reforms toward the ideal given the starting point of our state based legal system (specific circumstances). Customary law devolved into state legislation, I believe in part, because it was not explicitly recognized what was good in it. That is the task of political philosophy: to determine what worked and why, to find the reason in tradition. Evolutionary law, without a libertarian or a Christian code of ethics to stand on, will eventually turn into legislative or dictatorial law due to our nature to fall into the paths of least resistance when a guide is absent. Our task as liberty advocates is to find ways to get our lex humana (our custom at the moment) closer towards the ideal of lex naturalis.

    1. ATL, I was careful to present the position as that of the author and not mine, and I appreciate that you took it this way. I think the author could have made all of the same (very valuable) arguments without the Rothbard stuff - maybe I should have done the same.

      But then, I would not have received some great feedback from one of the giants in our community, pointing me to a couple of Rothbard pieces that set the record straight, if you will.

      I intend to write about this in the coming days, as I feel I owe it to Murray!

    2. Again, it was very good work and a good find. Reading back over it, I was probably a bit too antagonistic in my comments (bad day I suppose).

      I'm glad you kept in the Rothbard material. It is important to objectively analyze the work of even the best among us. But I feel that if we are going to criticize them, we had better make extra sure we have at least read the relevant material we are criticizing. I think Lottieri did not, though I share his enthusiasm with classical natural law (as did Murray Rothbard!) and I look forward to more work from you in this area.

      Thanks for the compliment! I'm honored to be a part of this community, and I will certainly continue sharing any relevant material I come across to help further the conversation.

    3. Thanks, ATL. You have been a valuable contributor since you joined.

  5. I do not have the formal education or accumulated knowledge that most of you do but in my studies of “law” and its relationship to the NAP, I have found that using the Latin terms of “mala in se” and “mala prohibita” to separate two distinct types of “law” to be helpful.

    “Mala in se” are those laws that protect each of us equally from each other, such as laws against murder, rape, robbery etc. I consider all of these laws, where there is an actual victim, to be in accordance with the Non Aggression Principle.

    “Mala prohibita” rules, are those that are enacted by government, church or others, where there is no actual victim but whose purpose is the control of a person’s non aggressive actions, such as drug use, Sunday blue laws, carrying a concealed weapon, anti sex or race laws, etc. I consider ALL of these types of controlling rules, whether enacted to protect custom, morals or profit, to be decidedly Anti-NAP.

    Just separating these two concepts has tremendously helped my understanding. The “Rule of Law” is the process which supports prosecuting “mala in se” crimes and are those which support and defend the NAP.

    The “Law of Rules” is the process which supports prosecuting “mala prohibita” rules and are those which violate the NAP, in my humble opinion.

    The modern use of the word "Law" and "The Rule of Law" tends to corrupt and confuse these two distinct concepts.


  6. Think of traffic laws.
    How did roads for automobile came about? How did traffic laws evolved from wagon carts, to models A, to today's average car?
    Traffic laws are so ingrained and change very little over time, like customs/culture, allows for the management and predictive expectations in how we interact when driving.
    Sure, rigid observance of traffic laws will cause chaos as well as total lack thereof.

  7. “'Mala prohibita' rules, are those that are enacted by government, church or others, where there is no actual victim but whose purpose is the control of a person’s non aggressive actions . . . "

    Unless churches kidnap or extort from their members, in which case they're organized crime syndicates, none of their "mala prohibita" rules violate the NAP. Nobody forces you to be a member of a church. You are not detained. You are always free to go.

  8. Tony,

    I was talking about "government laws" initiated by religious organizations and implemented through legislation, such as the common blue laws which prohibit sales of liquor on Sundays, among others. I apologize for my lack of clarity.

    You are quite correct that churches are free to have their own voluntary rules without violating “mala in se”.


    1. Tahn,

      Thank you for the clarification. There are plenty of *government laws* initiated by *irreligious* organizations and implemented through legislation, such as abortion subsidies and anti-Christian healthcare mandates, among others.


  9. As we've said before, Natural Law like language has NO author. From experience alone, by trial and error, that fewest set of rules best serving to prevent and when necessary peacefully resolve conflict can be described as Natural Law. Such laws are the product of 'spontaneous order' NOT the willful creation and deliberate deployment of a ruling political class.

    Positive Law by contrast is well illustrated by the Inclosure Acts in England deployed by the ruling political class in parallel with beginning of the Industrial Revolution. Fledgling industrialists found it difficult to find workers for their factories. People preferred the rural agricultural life to that of the urban factory. Most survived by farming little plots on so called 'commons', land to which there was no officially held title. Industrialists lobbied Parliament to abolish these commons in order to drive the small scale farmer off the land and into the factory. It is in this moment that the 'proletariat' emerged as an object of study for what would soon give rise to Marxism.

    One could say that Marxism was born of the coercion by this embryonic capitalist class. Had industrialization merely been left to develop along natural and voluntarist lines, we might never have heard of Marxism, Socialism, or Communism. There would never have been the conflict between working class and ownership class. The tiny government envisioned by the American framers and founders might still hold sway as opposed to the massive surveillance / police state leviathan that has arisen in response to that first unremarkable positivist intervention of the late 18th century.