The Natural Law: A Study in Legal and Social History and Philosophy, by Heinrich A. Rommen
The realistic theory of knowledge is the basis both of the unity of knowledge and of the internal coherence and organic structure of the sciences.
Metaphysics is the logical foundation of all science.
Science – whether as the term is narrowly understood today as those disciplines that can be objectively tested, proven, falsified, or as the term has been broadly understood in the past to include what we today call sociology, philosophy, theology and the like – cannot be internally contradictory. Truth of the world around us – both material and being – must come together into a consistent whole. It is metaphysics that stands as the discipline to carry this burden.
Here, I am writing of ethics and liberty. Rommen describes the first principle of ethics: good is to be done and evil is to be avoided. But what makes an action good or evil? On what basis? It is determined, Rommen offers, “from the essential being of the rational, free, and social nature of man.”
Many libertarians will agree on the rational and free part. While they might recognize the social part, they do not find a place for it in their thin theory of libertarianism – taken, by many, to be the complete theory supporting liberty.
Some years ago, while I was well on my way through this journey but still just beginning, I faced just such questions: what of society, what of community? These questions cannot be dealt with from a strict reading of the non-aggression principle, but they must be dealt with if one is after liberty.
Murray Rothbard had no such struggle:
Contemporary libertarians often assume, mistakenly, that individuals are bound to each other only by the nexus of market exchange. They forget that everyone is necessarily born into a family, a language, and a culture.
Before there is any such thing as a market or as an individual (in the narrow sense), there is family, language and culture. Developing a theory of liberty on any other basis – e.g. a state of nature; the abstract individual – ignores the nature into which man is born. Returning to Rommen:
The essential social nature of man means that his mode of being is a social being, and that the idea of man is perfected in the community and its gradations.
One cannot speak of either the primacy of the individual or the primacy of community. Each is fully dependent on the other; neither can exist without the other. As man is a social being, doesn’t it follow that perfect liberty can only be approached if this aspect of man is also respected – certainly by custom, and in certain aspects by law?
The essential nature of man, the idea of man as a rational, free, and social being is, as the normative goal, the principle of social ethics and of the natural law.
This social idea of man was well recognized and understood in Western law and tradition until just the last centuries. Rommen offers that it was the age of individualism that destroyed the idea of a philosophy of law and replaced it with a philosophy of rights. If law properly reflects man’s nature, what need is there for a philosophy of rights?
Yet, once this abstract individual came to the scene – certainly since the Enlightenment – this transition was inevitable. Rommen contrasts the treatises of the sixteenth and seventeenth centuries that were supported by tradition (to include nineteenth century works supportive of the natural law doctrine of philosophia perrennis) against the comprehensive treatises of the individualist and rationalist schools of natural law of the seventeenth and eighteenth centuries:
Following the deductive method, these last regulate all legal spheres down to the minutest detail.
There was nothing like this necessary when law – the old and good law, always kept from extremes via the natural law – was supreme. No need for a 100,000-page federal register, or countless and infinite state and local statutes.
None of this precludes the idea of the individual or of property:
Good ought to be; what is mine ought to belong to me, what is yours, to you; no one may molest me in what is mine.
Yet even here, natural law does not dictate with precision any final forms; more than one form of governance is acceptable to natural law (albeit Rommen will use the terms “state” and “government”). The final form can be found in feudalism (during which, even the serf’s private property was respected) or liberal capitalism. There is, however, one sphere in which proper governance will not be found: any communistic system that rejects, on its face, private property.
Natural law does, however, dictate the principle of subsidiarity: sub-political groups are to be respected in their sphere; all people, therefore, have a share in proper governance. Pius XI would write in 1931:
Just as it is wrong to withdraw from the individual and commit to the community at large what private enterprise and industry can accomplish, so too it is an injustice, a grave evil, and a disturbance of right order for a larger and higher organization to arrogate to itself functions which can be performed efficiently by smaller and lower bodies….
None of this suggests that the application of natural law is simple, or that it is a straight path to a better and more perfect application. The application advances toward true law, interrupted by many wrong paths.
One cannot construct natural law application as one would approach geometry; experience, judgement and reason must carry the day. It is not the natural law content that changes, it is the application of natural law that must be regularly considered.