Man in a State of Nature?

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.

Christian Thomasius

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.”

Immanuel Kant

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.

Conclusion

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.

Epilogue

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.

Wine Fraud

Wine fraud relates to the commercial aspects of wine. The most prevalent type of fraud is one where wines are adulterated, usually with the addition of cheaper products (e.g. juices) and sometimes with harmful chemicals and sweeteners (compensating for colour or flavour).

Counterfeiting and the relabeling of inferior and cheaper wines to more expensive brands is another common type of wine fraud.

The Natural Law: A Study in Legal and Social History and Philosophy, by Heinrich A. Rommen

To understand the meaning of the title and introductory paragraph, see here.

Thomas Hobbes

The entire theory of Thomas Hobbes (1588 – 1679) amounts at bottom to a denial of the natural law.

Rommen describes him as a “gloomy fellow traveler of Epicurus,” picturing the state of nature as chaos – a war of all against all.  Hobbes, following Occam, held that reason is unable to know universals; words describing universals are mere words, assigned arbitrarily, without any grounding in fact. 

Man, in a state of nature, is no more than a wolf – wicked, devoted solely to himself, no natural tendency to live in society.  This brutish individualism would cause in Hobbes an antagonism toward cooperative organizations such as guilds and the like.  Such voluntary organizations could not constrain man’s brutish behavior.

For this reason, Hobbes sees that man is willing to give up many rights in order to achieve the greater good of peace.  (How such a brute would decide such a thing, how he might even come to know that peace is a “good,” is not clear.)  These rights are given up to an absolute sovereign.

Hobbes would argue that agreement among irrational creatures is natural, but among men is artificial – by covenant only.  As it is artificial, a third party must be brought in to make the agreement constant and lasting.

“The only way to erect such a Common Power…is, to conferre all their power and strength upon one Man, or upon one Assembly of Men, that may reduce all their Wills, by plurality of voices, unto one Will….”

Everyone would then submit his will to the judgement of this one Man, this one Will.  Once everyone does so, this one man can use terror to inform the wills of all.  Hobbes natural law is nothing more than a law of subjugation – the older idea of natural law as a moral basis for positive law, as an objective for which law would strive, would lose all of its function.

René Descartes

Cogito, ergo sum – I think, therefore I am.  Man, from the ideas present in his own reasoning, can construct the world according to the lines of mathematical reasoning – the ideal of science.  Individual reason was the measure of itself.

Suarez’ prediction of what would happen should human reason be made the source of the natural law now came true.  Rationalism soon made human reason and its innate ideas the measure of what it is.  Human reason could now indulge in the uncontrolled construction of systems that has ever characterized the natural law of rationalism.

The objective basis of natural law has disappeared. 

John Locke

For Locke, natural law was meant to establish as inalienable the rights of the individual.  These rights do not flow from objective orders of norm; instead, these rights bring about whatever order exists.  Order is induced by voluntary agreement, still, with no objective standard by which to measure such terms.

Civil society is, therefore, not a result of man’s social nature; it is the result of individual self-interest.  Nothing transcendent or overarching – a skepticism of metaphysics, if you will.  Instead of an objective metaphysical reality, natural law would be based on – for Locke – Locke’s worldview of proper law.  Of course, this opened the doors for others to hold to a different worldview.

Jean Jacques Rousseau

Virtually the opposite of Hobbes, Rousseau saw the state of nature as something approaching the biblical Paradise.  Men happily and freely become citizens, a war of all against all does not compel them into some sort of social contract.  They enter because it is their will – and as everyone has the same will, the General Will is born. 

Of course, this didn’t end so well for those who, it turns out, had a different General Will.  Rousseau’s passion for liberty and virtue would produce fruit in men like Robespierre and the Reign of Terror. 

The Primary Differences

Rommen would identify three primary differences when considering the original idea of natural law of the Scholastics to the work of thinkers such as these noted here.  First is the individualistic idea that the state of nature is the proper starting point for the discovery of natural law; second, the nominalist attitude of separating eternal law and natural moral law; third, the resultant autonomy of human reason.

I might summarize: each man is an island: nothing above him, nothing below him, nothing before him, nothing after him.

Conclusion

During the Middle Ages, [if] a producer or merchant was found selling fraudulent or "corrupt wine", they were forced to drink all of it. In medieval Germany, the penalty for selling fraudulent wine ranged from branding to beating to death by hanging.

The further development of this fraudulent wine will be examined in a subsequent post.

New Wine, Old Wineskins

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.

Conclusion

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.