I have been enjoying a series of videos by Dr. J. Budziszewski on the natural law. He teaches on this subject at the University of Texas, Austin. How he gets away with this I have no idea. The following comments are based on his presentation at the Franciscan University of Steubenville, Natural Law and the American Founding: Were the Founders Confused? However, any of his talks on the subject shed valuable insight.
First, something which many seem to be confused about: Natural law is not the same as the laws of nature:
“That’s like Mowgli.” The law of the jungle, or the survival of the fittest, or maybe something like gravity.
I was listening to a podcast where it was said that Jesus’s Sermon on the Mount had nothing to do with natural law, and doesn’t sound like natural law at all. I almost fell over. As the speaker went on, it was clear that he was mixing up the laws of nature (as commonly understood) with natural law.
It is a terrible confusion. That sermon might be the best exposition of the purpose of man, man’s telos – an understanding of which is foundational to developing natural law ethics.
Returning to Budziszewski (look, it’s either repeating his last name or referring to him as Dr. J – which really would be rather confusing), there is a further confusion by the more sophisticated:
At most, and if they have taken some political philosophy, they might think it has something to do with the social contract.
Which is what we are often told. We live under a social contract. The American founders were dealing with a thinned idea of the natural law – thinned by thinkers in the Enlightenment. Sure, they said they believed in the idea of natural law, but they discarded or denied some of the most important ideas behind it. Budziszewski will expand on this later in this talk.
Understanding this thinning is important for at least a couple of reasons: fully understanding and realizing natural law requires Christ and God; second, there was a confusion in the founders between natural law and natural rights.
They would talk about natural law, but they said much more about natural rights. This focus on “rights-talk” disconnected from natural law ultimately resulted in a world where one’s subjective will determining one’s rights. Why is that? Budziszewski doesn’t expand on this, but it seems clear that absent something outside and above man describing and determining man’s purpose, man is free to create his own. When thus freed, well, you get today’s societal mess (see Carl Trueman).
Returning to Budziszewski:
What is the natural law? The foundational principles of right and wrong that are built into how we are made that are both right for everyone and, at some level, known to everyone.
How is it know to everyone, at least at some level? I have previously offered the possibility that it was when Adam and Eve ate from the tree of the knowledge of good and evil when man was made aware of the natural law.
Genesis 3: 5 For God knows that when you eat of it your eyes will be opened, and you will be like God, knowing good and evil.”
They took the fruit before they were ready, so God sent them out.
What’s in the natural law? Its content is well summarized by the Decalogue.
God later gave the Ten Commandments, because man had forgotten the natural law. This describes man’s proper relationship to God and man’s proper relationship to his fellow man. It describes man’s expected ethical behavior. And it is an ethic, not law as we understand that term today.
How is the natural law…law? It has the qualities of all authentic law: every genuine law is an ordinance of reason for the common good made by competent authority and promulgated or made known.
This describes why it is labeled “law.” It is law, but the punishments for many of the non-violent violations need not be enacted by a court and result in prison. As Aquinas has offered, the only areas where such civil action should be taken is against aggression of life and property:
Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like. (Emphasis added)
But has it been promulgated, or made known? Yes, per Adam and Eve and the tree. Also, the apostle Paul notes:
Romans 2: 15 They show that the work of the law is written on their hearts, while their conscience also bears witness, and their conflicting thoughts accuse or even excuse them
Returning to Budziszewski:
How is the natural law…natural? The testimonies to this fundamental right and wrong are woven into how we are made. There are four natural pointers to what is right and wrong:
· Deep conscience. There are certain basic moral truths that we can’t not know.
· Our shared designed-ness. We experience ourselves as a meaningful living order. The recognition points us to a designer, that we have duties to Him just as we have to each other as well.
· The details of our design. The features of our design. Everything in us is for something, means something.
· Actions have natural consequences. The witness of last resort, the one that kicks in when all the others have been ignored.
As to the natural consequences, not all are immediate, some not even in one lifetime. But the consequences are evident. We are living in a time of these evident consequences.
The hallmark of the classical natural law and the classical authors is that all four of these are woven together. But the early modern theories (including those leaned on by the American founders) didn’t do this – they were thinned, flattened. Some were ignored, some were changed.
For example, we are told that we cannot understand the purpose of things. God designed this; you would have to read God’s mind to know the true purpose. One could not deduce the purpose from the thing. But this just isn’t so. We see in Scripture our purpose (one reason that without Christ and God, those in search of natural law will fall short). We see in our biology, physiology, and anatomy our purpose. We see in our reason our purpose.
Thomas Hobbes threw out three of the four witnesses, only keeping the witness of natural consequences – and this, only the consequence of violent death. John Locke, whom Jefferson and others of the time leaned on, was thicker than Hobbes but thinner than the classical tradition.
The American founders mixed and didn’t differentiate the classical thinkers from the early modern thin ones – thereby demonstrating that they didn’t fully understand natural law.
Locke attempted to connect natural rights to natural duties, but he made the connection in such a weak way that most people don’t even notice this. For the classical thinkers, rights are what make it possible for us to fulfill our duties. Think about that sentence. We have rights in order to do our duty. Today, we see rights as the means by which we can neglect our duties.
Leaving us in a time and place where everything is permitted – at least everything that is a violation of natural law:
Any king who tells you “Everything is permitted,” will then follow with, “but I get to tell you what ‘everything’ includes.”
This reminds me of a talk given by Tim Cook to the ADL, where he was clear that everything is included, but if you disagree you will be the one excluded.
In other words, as wide a liberty as the king allows, which is what makes this liberty thin. And this is exactly the space in which we live today. Our liberty is very wide but not at all deep. It is a surface liberty, not conducive to a life of meaning, not conducive toward liberty.
Violating natural law leads us here – living meaningless lives while bathing in a shallow liberty. Restoring the natural law ethic offers the solution to both the meaning crisis and our loss of liberty.
In a different talk, Budziszewski is asked why so many Protestants cringe at the words ‘natural law.’ He replies that one reason is that they claim that they don’t see it in Scripture. I have heard such a charge before, and have written a post outlining natural law solely using Scripture in the arguments and deduction: Natural Law, Sola Scriptura.
The difference between natural law and the law of the jungle is stark. I think this too stems from an anti-Christian point of view, which sees humans as merely evolved animals. Christianity, however, sees men and women as completely distinct from animals. It is clear we are made in similar ways and with similar materials, and yet the gulf between us, every scientist must admit, is truly profound. To live like animals, where 'might makes right,' is an insult to our sophisticated and beautiful nature and its Author.
Big fish eats the little fish. This is in accord with the nature of fish. But humans are bound by a different natural law due to our complex social capacities and responsibilities as well as our close connection to the Creator.
"To tamper with man's freedom is not only to injure him, to degrade him; it is to change his nature, to render him, in so far as such oppression is exercised, incapable of improvement; it is to strip him of his resemblance to the Creator, to stifle within him the noble breath of life with which he was endowed at his creation." - Frederic Bastiat
ATL, so nice to hear from you.Delete
"The difference between natural law and the law of the jungle is stark. I think this too stems from an anti-Christian point of view..."
This is very reasonable. Yet I hear this confusion from Christians - well-educated and well-read Christians. Perhaps it just shows how much of modernity has crept into everyone's thinking.
You are definitely right about your last statement. We have forgotten our heritage, though not personally - the 'forgetting' took place long before we were born as you pointed out. But we are still responsible for re-discovering and restoring it.Delete
I thought I would test the waters of liberty Twitter for a while (what a chaotic mess!), and also my job has gotten a lot more demanding of my time. Sorry if I haven't been around much. I still absolutely treasure this blog. I recently went through your bibliography again. So many great books and so many great posts about them. Too little time to properly digest it all. I didn't realize you had read and posted about Kern's 'Kingship and Law' way back in 2012. I didn't even know who Ron Paul was in 2012, to my great shame. Lol
It may be of interest to note how Hobbes understands "natural law." Hobbes uses the classical term, perhaps to gain some rhetorical advantage in connecting his novel theory with established tradition. Yet, this is a case of very new wine being put into old wine skins. In Leviathan, chapter 14, Hobbes distinguishes "natural right" from "natural law". Natural right ( not to be mistaken for what is right or just by nature) is an absolute: your bodily fear of physical danger entails that you may, and will, do whatever is necessary for "staying alive." Natural law, however, is conditional: seek peace, and therefore justice, when it is reasonable to seek such. So, natural law, as Hobbes understands it, is not a law at all, only becoming such when it is enforced by the Sovereign as an instance of his established positive law. Only then does it become "reasonable" to accept the precepts of natural law. As for the "laws of nature", invariable laws of the cosmos, such as the speed of light, it would be interesting to establish when this use of "natural law" came in historically. Aristotle, I believe, would be comfortable discussing natural regularities, but would never call such "nomoi", i.e., laws. Maybe the Stoics are responsible for this use, summed up in Mr McCoy's regular lament, "Captain, I cannot violate the laws of physics."ReplyDelete
Very helpful. Thank you, DPDelete
Was gonna write a response but scratched it after re reading it. Well enough to say that was super helpful.!ReplyDelete
Natural law is a very misunderstood idea. Just today I came across two examples.ReplyDelete
First one was listening to Pete Quinones talk with Owen Benjamin. Both expressed faith and devotion to Jesus is some way. But somewhere in the conversation Owen says that nature can't tell us what is right and wrong. He goes on to describe the awful ways ducks mistreat each other. He didn't say natural law. But his comment is the same as many who reject natural law based on the idea that natural law is found in nature. But nature has fallen into sin even for ducks. So what exists is not what should be.
Natural law is natural in that humans can understand it by their natural rational faculties. It doesn't take special revelation to understand. But it does take revelation to define as you stated. It is also natural because it is about the proper operation of the natural realm.
The second was reading The Ethics Of Liberty by Rothbard. In his chapter about children's rights and abortion, he gets into a nonsensical defense of abortion based on the rights of parents to neglect their children. He then describes child's rights to leave their parents and live their own lives and make their own decisions. Though he appealed to natural law at the beginning of the book, he completely rejects the natural law of parents and natural law of children in his discussion on rights. A parent by natural law takes care of, defends, and trains his child. A child by natural law needs a parent to make decisions for his own well being. A parent who aborts or starves a baby isn't acting within her rights. She is violating natural law and in the process killing another human being.
Bionic, you are much better on natural law than Rothbard, maybe better on it than any libertarian.
Thank you, RMB.Delete
Rothbard does have a couple of troubling chapters in that book. I also seem to recall that he goes from natural law in the first few chapters (very well, as I recall) to expositions (through various examples) of natural rights - without really explaining or expanding on the difference.
Yet, I am forced to say...for someone who wrote perhaps 20 million words, Rothbard has a very solid track record!
Yes, I am still mostly a Rothbardian but with some important caveats. The man wrote some of the most important books that may ever be written, at least on economics, American history, and the history of economics. His books on ethics are mostly great too, but there are some troublesome sections for sure. I've certainly read more from him than any other author. I often wonder how 90s Rothbard would edit some of his earlier works in the 60s, 70s, and early 80s which often identified libertarianism with radicalism or leftism.Delete
I think Rothbard was too focused on keeping the state out of the family, that he neglected to consider appropriately the role of law providers in establishing good societies. In other words, he was too focused on libertarian law under the state, that he neglected to consider what a truly libertarian world (or territory) would look like, given how important culture and religion are to Man.ReplyDelete
For instance, the state is founded upon aggression, and therefore everything it does is illegitimate. But it is rare for a libertarian to argue against the state prosecution of thieves, rapists and murderers. But if everything the state does is tainted by its aggressive extortion and invasion of the population, shouldn't these policing and judicial activities also be rebuked? I've only found one reckless soul willing to go this far in their logic on Twitter.
But this is the problem with this sort of Blockean approach to libertarian theory. I think the proper way to look at libertarian theory is in accordance with Hoppe's private law society. Here you have political groups which offer a variety of positive laws and guidelines with varying enforcement methods with their own members and with varying adjudication agreements between the various law groups. Here the NAP serves as only a legal substrate for and between consensual or familial private (positive) law associations; it is the sea upon which a multitude of islands and archipelagoes of sovereign political communities flourish. And it is no surprise that international law tends to resemble the NAP.
The proper role of the natural law, on the other hand, is to guide positive law within these groups, and it would tend to, absent powerful and coordinated aggression. Since the natural law is accordance with our nature as humans, to adhere to it creates order and prosperity, and to deny it creates disorder and poverty.
ATL I am glad you mentioned Hoppe. It was through Hoppe that I came to understand that libertarian communities would not look libertarian to those on the outside. What those in my voluntarily-formed community might agree to as the rules (no sex orgies on the front lawn, for example) would seem to a libertine libertarian as a violation of their property rights.Delete
I am reminded that it is perfectly libertarian to establish a commune (communist). As long as those within it a chosen this life and, also, are free to leave it (based on whatever the conditions for leaving were when they joined).
I think this idea of libertarian positive law is the cutting edge of libertarian theory, and perhaps it is not even libertarian theory anymore but simply private law theory. I don't have a strong preference one way or the other what we call it. But I think it is the key to getting good conservative folks on board with real liberty. It also provides a theoretically consistent backing for opposing social anarchy while we suffer under the state model of governance. For instance, do we really all need to be Blockean libertarians until the point at which the state dissolves sometime in the distant future? And only then can we form our little conservative covenant groups? Do we have to support/celebrate the legalization of all the social vices while under the state to call ourselves libertarians? Or can we take over local governments and force them to behave like our preferred private law societies? Should the private law society be a transition of existing institutions or should it be a parallel legal system which grows into the widening vacuum of a receding state structure? I'm not sure which is more realistic.Delete
Anyways, I'm done associating with libertarians who might say something like, "you know, technically it is not an NAP violation for a junkie to get your 18 yr old daughter hooked on hard core drugs and become her pimp. Sex work is real work!" I'm not thrilled about the state model of governance, and I still hold to private law undergirded by the NAP as the ideal, but in the meantime, absent good positive law offered by private law providers, I'm fine with harmful drugs and prostitution (and many other social vices) being criminalized or at least heavily discriminated against, especially at the local level, so long as the effort to combat the crime is not worse than the crime itself.