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