The Foundations for Liberty

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….

Conclusion

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.

Is-Ought and Hume’s Guillotine

David Hume writes:

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.

Conclusion

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.

Epilogue

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.