Monday, March 9, 2020

Where Natural Law was Lost

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?



  1. “Even the non-aggression principle cannot stand without this why? There is no other creature on earth that respects it – so, why should man?

    Why?”--Bionic Mosquito

    The short answer is that the non-aggression principle provides, at the very least, a potential limit to the evil that man can do. Natural law probably serves the same purpose. Those who wish to subvert it (atheists, utopians, statists of all stripes, etc.) do so in the vain attempt to exceed that limit. God did not destroy the society of Babel (Genesis 11) because all the people spoke the same language, but because He recognized that there was a distinct danger in the ability of man to accomplish whatever he wanted.

    C.S. Lewis touches on this in a different way (Miracles, Ch. 14, The Grand Miracle). Speaking of the act of dying,

    “It is a safety-device because, once Man has fallen, natural immortality would be the one utterly hopeless destiny for him. Aided to the surrender that he must make by no external necessity of Death, free (if you call it freedom) to rivet faster and faster about himself through unending centuries the chains of his own pride and lust and of the nightmare civilisations which there build up in ever-increasing power and complication, he would progress from being merely a fallen man to being a fiend, possibly beyond all modes of redemption.”

    If I understand this properly, without physical death, fallen Man would just go on and on forever, building on and compounding the evil that he had practiced before. There would be no limit. Far from being ‘just’ a fallen man, he would become a monster without hope. Death itself is a safety valve which, paradoxically, allows and enables human progress. Man, without limits, is something to be very afraid of.

    Why? Why should man? Because man, without limitations on his behavior, will destroy himself.

    1. Roger

      “The short answer is that the non-aggression principle provides, at the very least, a potential limit to the evil that man can do.”

      The NAP does not provide an answer as to why it is wrong for one person to steal from another. Non-human animals do this all the time – it is in their nature. The issue is that there must be something unique about humans, not present in non-human animals. Inherently, it is something that cannot be explained by evolution or survival of the fittest.

      “Natural law probably serves the same purpose.”

      Natural law serves the foundational purpose. Without it there is no reason for us to consider the non-aggression principle.

      “Why? Why should man? Because man, without limitations on his behavior, will destroy himself.”

      The thief is not destroying himself, nor is he necessarily concerned with what happens to society (or to himself) after he dies – even with what happens to society the day after tomorrow. The thief, actually, is better off for having stolen. So, why limit his behavior?

      Why are you trying to keep him from maximizing *his* freedom?


    2. "Why are you trying to keep him from maximizing *his* freedom?"

      One man's "freedom" is another man's loss, especially as concerns thieves. It is not a zero-sum game, where one loses and another makes up the loss. If thieves abound and prosper, as they do in America today, then the economy of society in general trends downward.

  2. “Even the non-aggression principle cannot stand without this why?  There is no other creature on earth that respects it – so, why should man?”

    All animals, not including man, live instinctively. They have nothing else, no other options.

    - Man alone lives rationally and is able to reason.
    - Man alone has developed a sense of ethics & morality.
    - Man alone ponders the meaning of life.
    - Man alone thinks about the future and whether there is life after death.
    - Man alone considers how he can better himself and takes action to do so.
    - Man alone understands that he can choose between positive and negative courses of action.
    - Man alone understands that he must limit his own aggressive behavior toward others.
    - Man alone understands that he is made in the image of God.
    - Man alone understands the concept of sin, rebellion, punishment, repentance, and forgiveness.
    - Man alone understands that he is accountable for the way he lives, rightly or wrongly.
    - Man alone knows, beyond a shadow of doubt, that death waits for him.

    Man cannot be compared to animals in this respect because Man is different. Animals know nothing about the ‘why’, but Man, collectively, MUST learn about it, understand it, respect it, obey it, live with it, surrender to it, because if he doesn’t, Man will die.

    Man’s existence and his future depends on his comprehension of the ‘why’ and its unchallengeable, unquestionable foundation which is the objective Word of God. Without it, he is lost—even if he is trying to maximize his freedom.

    Growing pains. These are all growing pains. Perhaps Man has entered the teenage years.


    1. Yes. Without the reasons you have given, there is no reason to respect the NAP. Of course, the reasons you have given suggest many other "necessities" beyond the NAP if we are to live in liberty.

    2. Patience, my friend. Patience. And perseverance.

      C.S. Lewis presents the other side. Just a few pages past the quote I offered above, he says this. (Miracles, Ch. 15, Miracles of the Old Creation)

      "Whatever may have been the powers of unfallen man, it appears that that those of redeemed Man will be almost unlimited. Christ, reascending from His great dive, is bringing up Human Nature with Him. Where He goes, it goes too. It will be made 'like Him'. If in His miracles He is not acting as the Old Man might have done before his Fall, then He is acting as the New Man, every new man, will do after his redemption. When humanity, borne on His shoulders, passes with Him up from the cold dark water into the green warm water and out at last into the sunlight and the air, it also will be bright and coloured."

      Notice that Lewis says that Christ, in His ascension, is also bringing up human nature. As humans, we tend to see everything in terms of 'Time', but we need to understand that Jesus sees everything in terms of 'Eternity', which is timeless. As He rises upward from the Pit, so we also shall rise. As He builds His Church, so we also shall be set free. As He strengthens His rule, so we also shall prosper.

      We, of course, meaning Man, not necessarily individual man. It may take millennia to accomplish. Who cares? What difference does it make? All that matters is the end and we are in partnership with the One Who knows the end from the beginning.

      This is hope to live and to die for.

  3. Re-reading this book, I was struck by this quote from Life at the Bottom (introduction), by Theodore Dalrymple: "In what follows I have tried first to describe underclass reality in an unvarnished fashion, and then to lay bare the origin of that reality, which is the propagation of bad, trivial, and often insincere ideas. Needless to say, a true appreciation of the cause of underclass misery is desirable in order to combat it, and even more to avoid solutions that will only make it worse. And if I paint a picture of a way of life that is wholly without charm or merit, and describe many people who are deeply unattractive, it is important to remember that, if blame is to be apportioned, it is the intellectuals who deserve most of it. They should have known better but always preferred to avert their gaze. They considered the purity of their ideas to be more important than the actual consequences of their ideas. I know of no egotism more profound." from Peg

  4. "The thief is not destroying himself, nor is he necessarily concerned with what happens to society (or to himself) after he dies – even with what happens to society the day after tomorrow. The thief, actually, is better off for having stolen. So, why limit his behavior?"

    One individual thief may be better off for having stolen, but when large numbers of people in any given society decide to become thieves, the society itself suffers and declines.

    If it becomes apparent to the general public that thievery is "good business", then more and more will join in seeking to enrich themselves, eventually destroying any impulse or incentive to be productive. If you know that your hard work is going to be confiscated, you will scale back. After all, why should you work hard and be productive if it's only going to be taken away from you.

    This is reason enough to limit thievish behavior.

    1. Roger, I understand the reason for society to limit such behaviors, but animals hold to no such limits.

      Why do we? If we are the result of blind evolution, survival of the fittest, random atoms smashing, we would also not limit such behaviors.

      We would have no reason to respect the non-aggression principle. We also would not be human, just a different species of ape.

    2. I have considered the possibility that I might have misunderstood your original question and tried to answer it from that perspective. If that is true, forgive me.

      In answer to the question, "Why do we?", I can only say that animals operate from instinct and, therefore, use aggressive behavior only in the search for food, a mate, and a safe place. Man is not content to stop there, but is driven to make a grab for everything possible. Adam & Eve started the ball rolling on this.

      One major difference between animals and Man which I did not list above is the creative/destructive capability. Man has it, animals do not. Man, who is made in God's image, has the ability to either create or destroy. Fallen Man's inclination is to destroy and it is only the balancing power of creativity which keeps that in check.

      The original, pure Adam & Eve would not have found it necessary to formulate anything like the NAP, since it would have been completely foreign and contrary to their nature. They would have, like the animals, lived within their natural limits.

      The current, impure race of Man finds that the requirements and restrictions of the NAP are completely foreign and contrary to his sinful nature. Redeemed Man, under the influence of the Holy Spirit, finds that he it is not strange at all to hold to the Commandments. Do not murder. Do not steal. Do not cheat on your spouse. Etc.

      It might be said that learning to abide by the NAP is similar to learning how to speak, read, and write in a foreign language. It requires hard work, dedication, correcting mistakes, and practice. Eventually, over time, we learn, probably imperfectly, but we learn nevertheless.

      Concerning your statement about blind evolution, you are absolutely correct, but we are not randomly evolved. We are not the result of atoms randomly smashing into other atoms. We are the result of God's initiative and that makes all the difference.

    3. I am currently writing an essay which was inspired by your questions concerning this issue. I am already at 3000+ words and will eventually post it to my blog. The following is an excerpt which I find appropriate to this conversation.

      "Out of all the species which have ever inhabited our planet, Man is the only one which deliberately and consciously wages war on his own kind. Nothing else does. Other animals may kill each other in the search for food, in self-defense, or to win a mate, but none of them make a deliberate choice to go to war. Man alone is unique in this regard.

      If, as the evolutionists say, we once shared a common ancestor with apes, monkeys, and gibbons, then it should be plainly evident that this characteristic must have arrived after we split off from the common trunk. If it was inherent earlier, then other of our “cousins” would have the same attribute. Since they do not, then it is quite certain that the common ancestor did not either. Again, man alone is unique."

  5. The above conversation between Bionic and Roger calls to mind the dissonance between this paper by Levendis, Eckhardt, and Block,, wherein sociobiology plays a leading role, and this comment from Theodore Dalrymple in Life at the Bottom (Goodbye, Cruel World): "Thus suicidology joins the other great intellectual movements of the twentieth century – Freudianism, Marxism, and more recently, sociobiology – in denying consciousness any importance in human conduct. On this view, thought is irrelevant to action; and, dimly apprehending the intellectual currents of their time, ordinary people actually begin to experience themselves as unable to affect their own behavior." One of these different viewpoints must be incorrect. Peg in Oregon