Introduction to Natural Law

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This
article is excerpted from the first 5 chapters of The
Ethics of Liberty
. Audiobook versions of these chapters,
read by Jeff Riggenbach, are now available for
podcast or download
.

1.
Natural Law and Reason
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Among intellectuals
who consider themselves "scientific," the phrase "the
nature of man" is apt to have the effect of a red flag on
a bull. "Man has no nature!" is the modern rallying
cry and typical of the sentiment of political philosophers today
was the assertion of a distinguished political theorist some years
ago before a meeting of the American Political Science Association
that "man’s nature" is a purely theological concept
that must be dismissed from any scientific discussion.[1]

In the controversy
over man’s nature, and over the broader and more controversial
concept of "natural law," both sides have repeatedly
proclaimed that natural law and theology are inextricably intertwined.
As a result, many champions of natural law, in scientific or philosophic
circles, have gravely weakened their case by implying that rational,
philosophical methods alone cannot establish such law: that theological
faith is necessary to maintain the concept. On the other hand,
the opponents of natural law have gleefully agreed; since faith
in the supernatural is deemed necessary to belief in natural law,
the latter concept must be tossed out of scientific, secular discourse,
and be consigned to the arcane sphere of the divine studies. In
consequence, the idea of a natural law founded on reason and rational
inquiry has been virtually lost.[2]

The believer
in a rationally established natural law must, then, face the hostility
of both camps: the one group sensing in this position an antagonism
toward religion; and the other group suspecting that God and mysticism
are being slipped in by the back door. To the first group, it
must be said that they are reflecting an extreme Augustinian position
which held that faith rather than reason was the only legitimate
tool for investigating man’s nature and man’s proper ends. In
short, in this fideist tradition, theology had completely displaced
philosophy.[3] The Thomist
tradition, on the contrary, was precisely the opposite: vindicating
the independence of philosophy from theology, and proclaiming
the ability of man’s reason to understand and arrive at the laws,
physical and ethical, of the natural order, if belief in a systematic
order of natural laws open to discovery by man’s reason is per
se anti-religious, then anti-religious also were St. Thomas
and the later Scholastics, as well as the devout Protestant jurist
Hugo Grotius. The statement that there is an order of natural
law, in short, leaves open the problem of whether or not God has
created that order; and the assertion of the viability of man’s
reason to discover the natural order leaves open the question
of whether or not that reason was given to man by God. The assertion
of an order of natural laws discoverable by reason is, by itself,
neither pro- nor anti-religious.[4]

Because this
position is startling to most people today, let us investigate
this Thomistic position a little further. The statement of absolute
independence of natural law from the question of the existence
of God was implicit rather than flatly asserted in St. Thomas
himself; but like so many implications of Thomism, it was brought
forth by Suarez and the other brilliant Spanish Scholastics of
the late sixteenth century. The Jesuit Suarez pointed out that
many Scholastics had taken the position that the natural law of
ethics, the law of what is good and bad for man, does not depend
upon God’s will. Indeed, some of the Scholastics had gone so far
as to say that:

even though
God did not exist, or did not make use of His reason, or did
not judge rightly of things, if there is in man such a dictate
of right reason to guide him, it would have had the same nature
of law as it now has.[5]

Or, as a
modern Thomist philosopher declares:

If the
word "natural" means anything at all, it refers to
the nature of a man, and when used with "law," "natural"
must refer to an ordering that is manifested in the inclinations
of a man’s nature and to nothing else. Hence, taken in itself,
there is nothing religious or theological in the "Natural
Law" of Aquinas.[6]

Dutch Protestant
jurist Hugo Grotius declared, in his De Jure Belli ac Pacis
(1625):

What we
have been saying would have a degree of validity even if we
should concede that which cannot be conceded without the utmost
wickedness, that there is no God.

And again:

Measureless
as is the power of God, nevertheless it can be said that there
are certain things over which that power does not extend …
Just as even God cannot cause that two times two should not
make four, so He cannot cause that which is intrinsically evil
be not evil.[7]

D’Entrèves
concludes that:

[Grotius’s]
definition of natural law has nothing revolutionary. When he
maintains that natural law is that body of rules which Man is
able to discover by the use of his reason, he does nothing but
restate the Scholastic notion of a rational foundation of ethics.
Indeed, his aim is rather to restore that notion which had been
shaken by the extreme Augustinianism of certain Protestant currents
of thought. When he declares that these rules are valid in themselves,
independently of the fact that God willed them, he repeats an
assertion which had already been made by some of the schoolmen.[8]

Grotius’s
aim, d’Entrèves adds, "was to construct a system of
laws which would carry conviction in an age in which theological
controversy was gradually losing the power to do so." Grotius
and his juristic successors – Pufendorf, Burlamaqui, and
Vattel – proceeded to elaborate this independent body of
natural laws in a purely secular context, in accordance with their
own particular interests, which were not, in contrast to the Schoolmen,
primarily theological.[9]
Indeed, even the eighteenth-century rationalists, in many ways
dedicated enemies of the Scholastics, were profoundly influenced
in their very rationalism by the Scholastic tradition.[10]

Thus, let
there be no mistake: in the Thomistic tradition, natural law is
ethical as well as physical law; and the instrument by which man
apprehends such law is his reason – not faith, or
intuition, or grace, revelation, or anything else.[11]
In the contemporary atmosphere of sharp dichotomy between natural
law and reason – and especially amid the irrationalist sentiments
of "conservative" thought – this cannot be underscored
too often. Hence, St. Thomas Aquinas, in the words of the eminent
historian of philosophy Father Copleston, "emphasized the
place and function of reason in moral conduct. He [Aquinas] shared
with Aristotle the view that it is the possession of reason which
distinguished man from the animals" and which "enables
him to act deliberately in view of the consciously apprehended
end and raises him above the level of purely instinctive behavior."[12]

Aquinas,
then, realized that men always act purposively, but also went
beyond this to argue that ends can also be apprehended by reason
as either objectively good or bad for man. For Aquinas, then,
in the words of Copleston, "there is therefore room for the
concept of ‘right reason,’ reason directing man’s acts to the
attainment of the objective good for man." Moral conduct
is therefore conduct in accord with right reason: "If it
is said that moral conduct is rational conduct, what is meant
is that it is conduct in accordance with right reason, reason
apprehending the objective good for man and dictating the means
to its attainment."[13]

In natural-law
philosophy, then, reason is not bound, as it is in modern post-Humean
philosophy, to be a mere slave to the passions, confined to cranking
out the discovery of the means to arbitrarily chosen ends. For
the ends themselves are selected by the use of reason; and "right
reason" dictates to man his proper ends as well as the means
for their attainment. For the Thomist or natural-law theorist,
the general law of morality for man is a special case of the system
of natural law governing all entities of the world, each with
its own nature and its own ends. "For him the moral law …
is a special case of the general principles that all finite things
move toward their ends by the development of their potentialities."[14]
And here we come to a vital difference between inanimate or even
non-human living creatures, and man himself; for the former are
compelled to proceed in accordance with the ends dictated by their
natures, whereas man, "the rational animal," possesses
reason to discover such ends and the free will to choose.[15]

Which
doctrine, natural law or those of its critics, is to be considered
truly rational was answered incisively by the late Leo Strauss,
in the course of a penetrating critique of the value-relativism
in political theory of Professor Arnold Brecht. For, in contrast
to natural law,

positivistic
social science … is characterized by the abandonment
of reason or the flight from reason….

According
to the positivistic interpretation of relativism which prevails
in present-day social science … reason can tell us which
means are conducive to which ends; it cannot tell us which attainable
ends are to be preferred to other attainable ends. Reason cannot
tell us that we ought to choose attainable ends; if someone
‘loves him who desires the impossible’ reason may tell him that
he acts irrationally, but it cannot tell him that he ought to
act rationally, or that acting irrationally is acting badly
or basely. If rational conduct consists in choosing the right
means for the right end, relativism teaches in effect that rational
conduct is impossible.[16]

Finally,
the unique place of reason in natural-law philosophy has been
affirmed by the modern Thomistic philosopher, the late Father
John Toohey. Toohey defined sound philosophy as follows: "Philosophy,
in the sense in which the word is used when scholasticism is contrasted
with other philosophies, is an attempt on the part of man’s unaided
reason to give a fundamental explanation of the nature of things."[17]

2.
Natural Law as "Science"
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It is indeed
puzzling that so many modern philosophers should sniff at the
very term "nature" as an injection of mysticism and
the supernatural. An apple, let fall, will drop to the ground;
this we all observe and acknowledge to be in the nature
of the apple (as well as the world in general). Two atoms of hydrogen
combined with one of oxygen will yield one molecule of water –
behavior that is uniquely in the nature of hydrogen, oxygen,
and water. There is nothing arcane or mystical about such observations.
Why then cavil at the concept of "nature"? The world,
in fact, consists of a myriad number of observable things,
or entities. This is surely an observable fact. Since the
world does not consist of one homogenous thing or entity alone,
it follows that each one of these different things possesses differing
attributes; otherwise they would all be the same thing. But if
A, B, C, etc., have different attributes, it follows immediately
that they have different natures.[18][19]
It also follows that when these various things meet and interact,
a specifically delimitable and definable result will occur.
In short, specific, delimitable causes will have specific
delimitable effects.[20]

The observable
behavior of each of these entities is the law of their natures,
and this law includes what happens as a result of the interactions.
The complex that we may build up of these laws may be termed the
structure of natural law. What is "mystical"
about that?[21]

In the field
of purely physical laws, this concept will usually differ from
modern positivistic terminology only on high philosophical levels;
applied to man, however, the concept is far more controversial.
And yet, if apples and stones and roses each have their specific
natures, is man the only entity, the only being, that cannot have
one? And if man does have a nature, why cannot it too be open
to rational observation and reflection? If all things have natures,
then surely man’s nature is open to inspection; the current brusque
rejection of the concept of the nature of man is therefore arbitrary
and a priori.

One common,
flip criticism by opponents of natural law is: who is to
establish the alleged truths about man? The answer is not who
but what: man’s reason. Man’s reason is objective,
i.e., it can be employed by all men to yield truths about the
world. To ask what is man’s nature is to invite the answer.
Go thou and study and find out! It is as if one man were to assert
that the nature of copper were open to rational investigation
and a critic were to challenge him to "prove" this immediately
by setting forth on the spot all the laws that have been discovered
about copper.

Another common
charge is that natural-law theorists differ among themselves,
and that therefore all natural-law theories must be discarded.
This charge comes with peculiar ill grace when it comes, as it
often does, from utilitarian economists. For economics has been
a notoriously contentious science – and yet few people advocate
tossing all economics therefore into the discard. Furthermore,
difference of opinion is no excuse for discarding all sides to
a dispute; the responsible person is the one who uses his reason
to examine the various contentions and make up his own mind.[22]
He does not simply say a priori, "a plague
on all your houses!" The fact of man’s reason does not mean
that error is impossible. Even such "hard" sciences
as physics and chemistry have had their errors and their fervent
disputes.[23] No man is
omniscient or infallible – a law, by the way, of man’s nature.

The natural
law ethic decrees that for all living things, "goodness"
is the fulfillment of what is best for that type of creature;
"goodness" is therefore relative to the nature of the
creature concerned. Thus, Professor Cropsey writes:

The classical
[natural law] doctrine is that each thing is excellent in the
degree to which it can do the things for which its species is
naturally equipped … Why is the natural good? …
[Because] there is neither a way nor a reason to prevent ourselves
from distinguishing between useless and serviceable beasts,
for example; and … the most empirical and … rational
standard of the serviceable, or the limit of the thing’s activity
is set by its nature. We do not judge elephants to be good because
they are natural; or because nature is morally good –
whatever that would mean. We judge a particular elephant to
be good by the light of what elephant nature makes it possible
for elephants to do and to be.[24]

In the case
of man, the natural-law ethic states that goodness or badness
can be determined by what fulfills or thwarts what is best for
man’s nature.[25]

The natural
law, then, elucidates what is best for man – what ends man
should pursue that are most harmonious with, and best tend to
fulfill, his nature. In a significant sense, then, natural law
provides man with a "science of happiness," with the
paths which will lead to his real happiness. In contrast praxeology
or economics as well as the utilitarian philosophy with which
this science has been closely allied, treat "happiness"
in the purely formal sense as the fulfillment of those ends which
people happen – for whatever reason – to place high
on their scales of value. Satisfaction of those ends yields to
man his "utility" or "satisfaction" or "happiness."[26]
Value in the sense of valuation or utility is purely subjective,
and decided by each individual. This procedure is perfectly proper
for the formal science of praxeology, or economic theory, but
not necessarily elsewhere. For in natural-law ethics, ends are
demonstrated to be good or bad for man in varying degrees; value
here is objective – determined by the natural law
of man’s being, and here "happiness" for man is considered
in the commonsensical, contentual sense. As Father Kenealy
put it:

This philosophy
maintains that there is in fact an objective moral order
within the range of human intelligence, to which human societies
are bound in conscience to conform and upon which the peace
and happiness of personal, national and international life depend.[27]

And the eminent
English jurist, Sir William Blackstone, summed up the natural
law and its relation to human happiness as follows:

This is
the foundation of what we call ethics, or natural law …
demonstrating that this or that action tends to man’s real happiness,
and therefore very justly concluding that the performance of
it is a part of the law of nature; or, on the other hand, that
this or that action is destruction of man’s real happiness,
and therefore that the law of nature forbids it.[28]

Without using
the terminology of natural law, psychologist Leonard Carmichael
has indicated how an objective, absolute ethic can be established
for man on scientific methods, based upon biological and psychological
inquiry:

because
man has an unchanging and an age-old, genetically determined
anatomical, physiological, and psychological make-up, there
is reason to believe that at least some of the "values"
that he recognized as good or bad have been discovered or have
emerged as human individuals have lived together for thousands
of years in many societies. Is there any reason to suggest that
these values, once identified and tested, may not be thought
of as essentially fixed and unchanging? For example, the wanton
murder of one adult by another for the purely personal amusement
of the person committing the murder, once it is recognized as
a general wrong, is likely always to be so recognized. Such
a murder has disadvantageous individual and social effects.
Or to take a milder example from esthetics, man is always likely
to recognize in a special way the balance of two complementary
colors because he is born with specially constituted human eyes.[29]

One common
philosophic objection to natural law ethics is that it confuses,
or identifies, the realism of fact and value. For
purposes of our brief discussion, John Wild’s reply will suffice:

In answer
we may point out that their [natural law] view identifies value
not with existence but rather with the fulfillment of tendencies
determined by the structure of the existent entity. Furthermore,
it identifies evil not with non-existence but rather with a
mode of existence in which natural tendencies are thwarted and
deprived of realization…. The young plant whose leaves
are withering for lack of light is not nonexistent. It exists,
but in an unhealthy or privative mode. The lame man is not nonexistent.
He exists, but with a natural power partially unrealized. …
This metaphysical objection is based upon the common assumption
that existence is fully finished or complete. … [But]
what is good is the fulfillment of being.[30]

After stating
that ethics, for man as for any other entity, are determined by
investigating verifiable existing tendencies of that entity, Wild
asks a question crucial to all non-theological ethics: "why
are such principles felt to be binding on me?" How do such
universal tendencies of human nature become incorporated into
a person’s subjective value scale? Because

the factual
needs which underlie the whole procedure are common to man.
The values founded on them are universal. Hence, if I made no
mistake in my tendential analysis of human nature, and if I
understand myself, I must exemplify the tendency and must feel
it subjectively as an imperative urge to action.[31]

David Hume
is the philosopher supposed by modern philosophers to have effectively
demolished the theory of natural law. Hume’s "demolition"
was two-pronged: the raising of the alleged "fact-value"
dichotomy, thus debarring the inference of value from fact,[32]
and his view that reason is and can only be a slave to the passions.

In short, in
contrast to the natural-law view that man’s reason can discover
the proper ends for man to follow, Hume held that only the emotions
can ultimately set man’s ends, and that reason’s place is as the
technician and handmaiden to the emotions. (Here Hume has been followed
by modern social scientists since Max Weber.) According to this
view, people’s emotions are assumed to be primary and unanalyzable
givens.

Professor
Hesselberg has shown, however, that Hume, in the course of his
own discussions, was compelled to reintroduce a natural-law conception
into his social philosophy and particularly into his theory of
justice, thus illustrating the gibe of tienne Gilson: "The
natural law always buries its undertakers." For Hume, in
Hesselberg’s words, "recognized and accepted that the social
… order is an indispensable prerequisite to man’s well-being
and happiness: and that this is a statement of fact." The
social order, therefore, must be maintained by man. Hesselberg
continues:

But a social
order is not possible unless man is able to conceive what it
is, and what its advantages are, and also conceive those norms
of conduct which are necessary to its establishment and preservation,
namely, respect for another’s person and for his rightful possessions,
which is the substance of justice … But justice is the
product of reason, not the passions. And justice is the necessary
support of the social order; and the social order is necessary
to man’s well-being and happiness. If this is so, the norms
of justice must control and regulate the passions, and not vice
versa.[33]

Hesselberg
concludes that "thus Hume’s original ‘primacy of the passions’
thesis is seen to be utterly untenable for his social and political
theory, and … he is compelled to reintroduce reason as
a cognitive-normative factor in human social relations."[34]

Indeed, in
discussing justice and the importance of the rights of private
property, Hume was compelled to write that reason can establish
such a social ethic: "nature provides a remedy in the judgment
and understanding for what is irregular and uncommodious in the
affections" – in short, reason can be superior to the
passions.[35]

We have seen
from our discussion that the doctrine of natural law – the
view that an objective ethics can be established through reason
– has had to face two powerful groups of enemies in the
modern world: both anxious to denigrate the power of man’s reason
to decide upon his destiny. These are the fideists who believe
that ethics can only be given to man by supernatural revelation,
and the skeptics who believe that man must take his ethics from
arbitrary whim or emotion. We may sum up with Professor Grant’s
harsh but penetrating view of

the strange
contemporary alliance between those who doubt the capacity of
human reason in the name of scepticism (probably scientific
in origin) and those who denigrate its capacity in the name
of revealed religion. It is only necessary to study the thought
of Ockham to see how ancient this strange alliance is. For in
Ockham can be seen how philosophic nominalism, unable to face
the question of practical certainty, solves it by the arbitrary
hypothesis of revelation. The will detached from the intellect
(as it must be in a nominalism) can seek certainty only through
such arbitrary hypotheses.

The interesting
fact historically is that these two anti-rationalist traditions
– that of the liberal skeptic and the Protestant revelationist
– should originally have come from two … opposite
views of man. The Protestant dependence upon revelation arose
from a great pessimism about human nature … The immediately
apprehended values of the liberal originate in a great optimism.
Yet … after all, is not the dominating tradition in North
America a Protestantism which has been transformed by pragmatic
technology and liberal aspirations?[36]

3.
Natural Law versus Positive Law
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If, then,
the natural law is discovered by reason from "the basic inclinations
of human nature … absolute, immutable, and of universal
validity for all times and places," it follows that the natural
law provides an objective set of ethical norms by which to gauge
human actions at any time or place.[37]
The natural law is, in essence, a profoundly "radical"
ethic, for it holds the existing status quo, which might grossly
violate natural law, up to the unsparing and unyielding light
of reason. In the realm of politics or State action, the natural
law presents man with a set of norms which may well be radically
critical of existing positive law imposed by the State.
At this point, we need only stress that the very existence of
a natural law discoverable by reason is a potentially powerful
threat to the status quo and a standing reproach to the reign
of blindly traditional custom or the arbitrary will of the State
apparatus.

In fact,
the legal principles of any society can be established in three
alternate ways: (a) by following the traditional custom of the
tribe or community; (b) by obeying the arbitrary, ad hoc
will of those who rule the State apparatus; or (c) by the use
of man’s reason in discovering the natural law – in short,
by slavish conformity to custom, by arbitrary whim, or by use
of man’s reason. These are essentially the only possible ways
for establishing positive law. Here we may simply affirm that
the latter method is at once the most appropriate for man at his
most nobly and fully human, and the most potentially "revolutionary"
vis-à-vis any given status quo.

In our century,
widespread ignorance of and scorn for the very existence of the
natural law has limited people’s advocacy of legal structures
to (a) or (b), or some blend of the two. This even holds for those
who try to hew to a policy of individual liberty. Thus, there
are those libertarians who would simply and uncritically adopt
the common law, despite its many anti-libertarian flaws. Others,
like Henry Hazlitt, would scrap all constitutional limitations
on government to rely solely on the majority will as expressed
by the legislature. Neither group seems to understand the concept
of a structure of rational natural law to be used as a guidepost
for shaping and reshaping whatever positive law may be in existence.[38]

While natural-law
theory has often been used erroneously in defense of the political
status quo, its radical and "revolutionary" implications
were brilliantly understood by the great Catholic libertarian
historian Lord Acton. Acton saw clearly that the deep flaw in
the ancient Greek – and their later followers’ – conception
of natural law political philosophy was to identify politics and
morals, and then to place the supreme social moral agent in the
State. From Plato and Aristotle, the State’s proclaimed supremacy
was founded in their view that "morality was undistinguished
from religion and politics from morals; and in religion, morality,
and politics there was only one legislator and one authority."[39]

Acton added
that the Stoics developed the correct, non-State principles of
natural law political philosophy, which were then revived in the
modern period by Grotius and his followers. "From that time
it became possible to make politics a matter of principle and
of conscience." The reaction of the State to this theoretical
development was horror:

When Cumberland
and Pufendorf unfolded the true significance of [Grotius’s]
doctrine, every settled authority, every triumphant interest
recoiled aghast … It was manifest that all persons who
had learned that political science is an affair of conscience
rather than of might and expediency, must regard their adversaries
as men without principle.[40]

Acton saw
clearly that any set of objective moral principles rooted in the
nature of man must inevitably come into conflict with custom and
with positive law. To Acton, such an irrepressible conflict was
an essential attribute of classical liberalism: "Liberalism
wishes for what ought to be, irrespective of what is."[41]
As Himmelfarb writes of Acton’s philosophy:

the past
was allowed no authority except as it happened to conform to
morality. To take seriously this Liberal theory of history,
to give precedence to "what ought to be" over "what
is" was, he admitted, virtually to install a "revolution
in permanence."[42]

And so, for
Acton, the individual, armed with natural law moral principles,
is then in a firm position from which to criticize existing regimes
and institutions, to hold them up to the strong and harsh light
of reason. Even the far less politically oriented John Wild has
trenchantly described the inherently radical nature of natural-law
theory:

the philosophy
of natural law defends the rational dignity of the human individual
and his right and duty to criticize by word and deed any existent
institution or social structure in terms of those universal
moral principles which can be apprehended by the individual
intellect alone.[43]

If the very
idea of natural law is essentially "radical" and deeply
critical of existing political institutions, then how has natural
law become generally classified as "conservative"? Professor
Parthemos considers natural law to be "conservative"
because its principles are universal, fixed, and immutable, and
hence are "absolute" principles of justice.[44]
Very true – but how does fixity of principle imply "conservatism"?
On the contrary, the fact that natural-law theorists derive from
the very nature of man a fixed structure of law independent of
time and place, or of habit or authority or group norms, makes
that law a mighty force for radical change. The only exception
would be the surely rare case where the positive law happens to
coincide in every aspect with the natural law as discerned by
human reason.[45]

4.
Natural Law and Natural Rights
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to MP3
)

As we have
indicated, the great failing of natural-law theory – from
Plato and Aristotle to the Thomists and down to Leo Strauss and
his followers in the present day – is to have been profoundly
statist rather than individualist. This "classical"
natural-law theory placed the locus of the good and of virtuous
action in the State, with individuals strictly subordinated to
State action. Thus, from Aristotle’s correct dictum that man is
a "social animal," that his nature is best fitted for
social cooperation, the classicists leaped illegitimately to a
virtual identification of "society" and "the State,"
and thence to the State as the major locus of virtuous action.[46]
It was, in contrast, the Levellers and particularly John Locke
in seventeenth-century England who transformed classical natural
law into a theory grounded on methodological and hence political
individualism. From the Lockean emphasis on the individual as
the unit of action, as the entity who thinks, feels, chooses,
and acts, stemmed his conception of natural law in politics as
establishing the natural rights of each individual. It was the
Lockean individualist tradition that profoundly influenced the
later American revolutionaries and the dominant tradition of libertarian
political thought in the revolutionary new nation. It is this
tradition of natural-rights libertarianism upon which the present
volume attempts to build.

Locke’s celebrated
"Second Treatise on Government" was certainly one of
the first systematic elaborations of libertarian, individualistic,
natural-rights theory. Indeed, the similarity between Locke’ s
view and the theory set forth below will become evident from the
following passage:

[E]very
man has a property in his own person. This nobody
has any right to but himself. The labour of his body and the
work of his hands, we may say, are properly his. Whatsoever
then he removes out of the state that nature hath provided,
and left it in, he hath mixed his labour with, and joined to
it something that is his own, and thereby makes it his property.
It being by him removed from the common state nature placed
it in, it hath by this labour something annexed to it
that excludes the common right of other men. For this labour
being the unquestionable property of the labourer; no man but
he can have a right to what that is once joined to….

He that
is nourished by the acorns he picked up under an oak, or the
apples he gathered from the trees in the wood, has certainly
appropriated them to himself. Nobody can deny but the nourishment
is his. I ask then when did they begin to be his? And ’tis plain,
if the first gathering made them not his, nothing else could.
That labour put a distinction between them and common.
That added something to them more than nature, the common mother
of all, had done: and so they become his private right. And
will any one say he had no right to those acorns or apples he
thus appropriated, because he had not the consent of all mankind
to make them his? … If such a consent as that was necessary
man had starved, notwithstanding the plenty God had given him.
We see in commons, which remain so by compact, that ’tis
the taking part of what is common, and removing it out of the
state Nature leaves it in, which begins the property;
without which the common is of no use.[47]

It should
not be surprising that Locke’s natural-rights theory, as historians
of political thought have shown, was riddled with contradictions
and inconsistencies After all, the pioneers of any discipline,
any science, are bound to suffer from inconsistencies and lacunae
that will be corrected by those that come after them. Divergences
from Locke in the present work are only surprising to those steeped
in the unfortunate modern fashion that has virtually abolished
constructive political philosophy in favor of a mere antiquarian
interest in older texts. In fact, libertarian natural-rights theory
continued to be expanded and purified after Locke, reaching its
culmination in the nineteenth century works of Herbert Spencer
and Lysander Spooner.[48]

The myriad
of post-Locke and post-Leveller natural-rights theorists made
clear their view that these rights stem from the nature of man
and of the world around him. A few strikingly worded examples:
nineteenth-century German-American theorist Francis Lieber, in
his earlier and more libertarian treatise, wrote: "The law
of nature or natural law … is the law, the body of rights,
which we deduce from the essential nature of man." And the
prominent nineteenth-century American Unitarian minister, William
Ellery Channing: "All men have the same rational nature and
the same power of conscience, and all are equally made for indefinite
improvement of these divine faculties and for the happiness to
be found in their virtuous use." And Theodore Woolsey, one
of the last of the systematic natural rights theorists in nineteenth-century
America: natural rights are those "which, by fair deduction
from the present physical, moral, social, religious characteristics
of man, he must be invested with … in order to fulfill
the ends to which his nature calls him."[49]

If, as we
have seen, natural law is essentially a revolutionary theory,
then so a fortiori is its individualist, natural-rights
branch. As the nineteenth-century American natural-rights theorist
Elisha P. Hurlbut put it:

The laws
shall be merely declaratory of natural rights and natural wrongs,
and … whatever is indifferent to the laws of nature shall
be left unnoticed by human legislation … and legal tyranny
arises whenever there is a departure from this simple principle.[50]

A notable
example of the revolutionary use of natural rights is, of course,
the American Revolution, which was grounded in a radically revolutionary
development of Lockean theory during the eighteenth century.[51]
The famous words of the Declaration of Independence, as Jefferson
himself made clear, were enunciating nothing new, but were simply
a brilliantly written distillation of the views held by the Americans
of the day:

We hold
these truths to be self-evident, that all men are created equal,
that they are endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty and the pursuit of
Happiness [the more common
triad at the lime was "Life, Liberty and Property"]
.
That to secure these rights, Governments are instituted among
Men, deriving their just powers from the consent of the governed.
That whenever any form of Government becomes destructive of
these ends, it is the Right of the people to alter or to abolish
it.

Particularly
striking is the flaming prose of the great abolitionist William
Lloyd Garrison, applying natural-rights theory in a revolutionary
way to the question of slavery:

The right
to enjoy liberty is inalienable. … Every man has a right
to his own body – to the products of his own labor –
to the protection of law. … That all these laws which
are now in force, admitting the right of slavery are, therefore,
before God, utterly null and void … and therefore they
ought instantly to be abrogated.[52]

We shall
be speaking throughout this work of "rights," in particular
the rights of individuals to property in their persons and in
material objects. But how do we define "rights"? "Right"
has cogently and trenchantly been defined by Professor Sadowsky:

When we
say that one has the right to do certain things we mean this
and only this, that it would be immoral for another, alone or
in combination, to stop him from doing this by the use of physical
force or the threat thereof. We do not mean that any
use a man makes of his property within the limits set forth
is necessarily a moral use.[53]

Sadowsky’s
definition highlights the crucial distinction we shall make throughout
this work between a man’s right and the morality or immorality
of his exercise of that right. We will contend that it is a man’s
right to do whatever he wishes with his person; it is his right
not to be molested or interfered with by violence from exercising
that right. But what may be the moral or immoral ways of exercising
that right is a question of personal ethics rather than of political
philosophy – which is concerned solely with matters of right,
and of the proper or improper exercise of physical violence in
human relations. The importance of this crucial distinction cannot
be overemphasized. Or, as Elisha Hurlbut concisely put it: "The
exercise of a faculty [by an individual] is its only use. The
manner of its exercise is one thing; that involves
a question of morals. The right to its exercise is another
thing."[54]

5.
The Task of Political Philosophy
(Listen
to MP3
)

It is not
the intention of this book to expound or defend at length the
philosophy of natural law, or to elaborate a natural-law ethic
for the personal morality of man. The intention is to set forth
a social ethic of liberty, i.e., to elaborate that subset of the
natural law that develops the concept of natural rights, and that
deals with the proper sphere of "politics," i.e., with
violence and non-violence as modes of interpersonal relations.
In short, to set forth a political philosophy of liberty.

In our view
the major task of "political science" or better, "political
philosophy" is to construct the edifice of natural law pertinent
to the political scene. That this task has been almost completely
neglected in this century by political scientists is all too clear.
Political science has either pursued a positivistic and scientistic
"model building," in vain imitation of the methodology
and content of the physical sciences, or it has engaged in purely
empirical fact-grubbing. The contemporary political scientist
believes that he can avoid the necessity of moral judgments, and
that he can help frame public policy without committing himself
to any ethical position. And yet as soon as anyone makes any
policy suggestion, however narrow or limited, an ethical judgment
– sound or unsound – has willy-nilly been made.[55]

The difference
between the political scientist and the political philosopher is
that the "scientist’s" moral judgments are covert and
implicit, and therefore not subject to detailed scrutiny, and hence
more likely to be unsound. Moreover, the avoidance of explicit ethical
judgments leads political scientists to one overriding implicit
value judgment – that in favor of the political status quo
as it happens to prevail in any given society. At the very least,
his lack of a systematic political ethics precludes the political
scientist from persuading anyone of the value of any change from
the status quo.

In the meanwhile,
furthermore, present-day political philosophers generally confine
themselves, also in a Wertfrei manner, to antiquarian descriptions
and exegeses of the views of other, long-gone political
philosophers. In so doing, they are evading the major task of
political philosophy, in the words of Thomas Thorson, "the
philosophic justification of value positions relevant to politics."[56]

In order
to advocate public policy, therefore, a system of social or political
ethics must be constructed. In former centuries this was the crucial
task of political philosophy. But in the contemporary world, political
theory, in the name of a spurious "science," has cast
out ethical philosophy, and has itself become barren as a guide
to the inquiring citizen. The same course has been taken in each
of the disciplines of the social sciences and of philosophy by
abandoning the procedures of natural law. Let us then cast out
the hobgoblins of Wertfreiheit, of positivism, of scientism.
Ignoring the imperious demands of an arbitrary status quo,
let us hammer out – hackneyed cliché though it may
be – a natural-law and natural-rights standard to which
the wise and honest may repair. Specifically, let us seek to establish
the political philosophy of liberty and of the proper sphere of
law, property rights, and the State.

Notes

[1]
The political theorist was the late Hannah Arendt. For a typical
criticism of natural law by a legal Positivist, see Hans Icelsen,
General Theory of Law and State (New York: Russell
and Russell, 1961), pp. 8ff.

[2]
And yet, Black’s Law Dictionary defines the natural law
in a purely rationalistic and non-theological manner:

Jus
Naturale, the natural law, or law of nature; law, or legal
principles, supposed to be discoverable by the light of nature
or abstract reasoning, or to be taught by nature to all nations
and men alike, or law supposed to govern men and peoples in
a state of nature, i.e., in advance of organized governments
or enacted laws (3rd ed., p. 1044).

Professor
Patterson, in Jurisprudence: Men and Ideas of the Law (Brooklyn:
Foundation Press, 1953), p. 333, defines the natural law cogently
and concisely as:

Principles
of human conduct that are discoverable by "reason"
from the basic inclinations of human nature, and that are absolute,
immutable and of universal validity for all times and places.
This is the basic conception of scholastic natural law …
and most natural law philosophers.

[3]
Supporters of theological ethics nowadays typically strongly oppose
the concept of natural law. See the discussion of casuistry by
the neo-orthodox Protestant theologian Karl Barth, Church Dogmatics
3, 4 (Edinburgh: 11 and T. Clark, 1961), pp. 7ff.

[4]
For a discussion of the role of reason in the philosophy of Aquinas,
see Etienne Gilson, The Christian Philosophy of St. Thomas
Aquinas (New York: Random House, 1956). An important analysis
of Thomistic natural law theory is Germain Grisez, "The First
Principle of Practical Reason," in Anthony Kenny, ed., Aquinas:
A Collection of Critical Essays (New York: Anchor Books, 1969),
pp. 340–82. For a history of medieval natural law, see Odon
Lottin, Psychologie et morale aux xiie et xiiie siècles,
6 vols. (Louvain, 1942–1960).

[5]
From Franciscus Suarez, De Legibus ac Deo Legislatore (1619),
lib. II, Cap. vi. Suarez also noted that many Scholastics "seem
therefore logically to admit that natural law does not proceed
from God as a lawgiver, for it is not dependent on God’s will."
Quoted in A.P. d’Enfreves, Natural Law (London: Hutchinson
University Library, 1951), p. 71.

[6]
Thomas E Davitt, S.J., "St. Thomas Aquinas and the Natural
Law," in Arthur L. Harding, ed., Origins of the Natural
Law Tradition (Dallas, Tex.: Southern Methodist University
Press, 1954), p. 39. Also see Brendan F. Brown, ed., The Natural
Law Reader (New York: Oceana Pubs., 1960), pp. 101–4.

[7]
Quoted in d’Entrèves, Natural Law, pp. 52–53.
See also Otto Gierke, Natural Law and the Theory of Society,
1500 to 1800 (Boston: Beacon Press, 1957), pp. 98–99.

[8]
D’Entrèves, Natural Law, pp. 51–52. Also see
A.H. Chroust, "Hugo Grotius and the Scholastic Natural Law
Tradition," The New Scholasticism (1943), and Frederick
C. Copleston, S.J., A History of Philosophy (Westminster,
Md.: Newman Press, 1959), 2, pp. 330f. On the neglected influence
of the Spanish Scholastic Suarez on modern philosophers, see Jose
Ferrater Mora, "Suarez and Modern Philosophy," Journal
of the History of Ideas (October 1953): 528–47.

[9]
See Gierke, Natural Law and the Theory of Society, p. 289.
Also see Herbert Spencer, An Autobiography (New York: D.
Appleton, 1904), vol. 1, p. 415.

[10]
Thus, see Carl L. Becker, The Heavenly City of the Eighteenth-century
Philosophers (New Haven, Conn.: Yale University Press, 1957),
p. 8.

[11]
The late realist philosopher John Wild, in his important article,
"Natural Law and Modern Ethical Theory," Ethics
(October 1952), states:

Realistic
[natural law] ethics is now often dismissed as theological and
authoritarian in character. But this is a misunderstanding.
Its ablest representatives, from Plato and Aristotle to Grotius,
have defended it on the basis of empirical evidence alone without
any appeal to supernatural authority (p. 2, and pp. 1–13).

Also see
the denial of the existence of such a thing as "Christian
philosophy" any more than "Christian hats and shoes"
by the Catholic social philosopher Orestes Brownson. Thomas T.
McAvoy, C.S.C., "Orestes A. Brownson and Archbishop John
Hughes in 1860," Review of Politics (January 1962):
29.

[12]
Frederick C. Copleston, S.J., Aquinas (London: Penguin
Books, 1955), p. 204.

[13]
Ibid., pp. 204–05.

[14]
Ibid., p. 212.

[15]
Thus Copleston:

Inanimate
bodies act in certain ways precisely because they are what they
are, and they cannot act otherwise; they cannot perform actions
which are contrary to their nature. And animals are governed
by instinct. In fine, all creatures below man participate unconsciously
in the eternal law, which is reflected in their natural tendencies,
and they do not possess the freedom which is required in order
to be able to act in a manner incompatible with this law. It
is therefore essential that he [man] should know the eternal
law in so far as it concerns himself. Yet, how can he know it?
He cannot read, as it were, the mind of God… [but] he
can discern the fundamental tendencies and needs of his nature,
and by reflecting on them he can come to a knowledge of the
natural moral law…. Every man possesses … the
light of reason whereby he can reflect … and promulgate
to himself the natural law, which is the totality of the universal
precepts or dictates of right reason concerning the good which
is to be pursued and the evil which is to be shunned (Ibid.,
pp. 213–14).

[16]
Leo Strauss, "Relativism," in H. Schoeck and J. W. Wiggins,
eds., Relativism and the Study of Man (Princeton, NJ.:
D. Van Nostrand, 1961), pp. 144–45. For a devastating critique
of an attempt by a relativistic political scientist to present
a "value-free" case for freedom and the self-development
of the person, see Walter Berns, "The Behavioral Sciences
and the Study of Political Things: The Case of Christian Bay’s
The Structure of Freedom," American Political Science
Review (September 1961): 550–59.

[17]
Toohey adds that "scholastic philosophy is the philosophy
which teaches the certitude of human knowledge acquired by means
of sense experience, testimony, reflection, and reasoning."
John J. Toohey, S.J., Notes on Epistemology (Washington,
D.C.: Georgetown University, 1952), pp. 111–12.

[18]
Henry B. Veatch, in his For an Ontology of Morals: A Critique
of Contemporary Ethical Theory (Evanston, Ill.: Northwestern
University Press, 1971), p. 7, states:

Recourse
must be had to an older notion than that which has now come
to be in fashion among contemporary scientists and philosophers
of science…. Surely, in that everyday world of common-sense
existence in which, as human beings, and for all of our scientific
sophistication, we can hardly cease to live and move and have
our being, we do indeed find ourselves constantly invoking an
older and even a decidedly common sense notion of "nature"
and "natural law." For don’t we all recognize that
a rose is different from an eggplant, and a man from a mouse,
and hydrogen from manganese? To recognize such differences in
things is surely to recognize that they behave differently:
one doesn’t expect of a man quite the same things that one does
of a mouse, and vice versa. Moreover, the reason our
expectations thus differ as to what various types of things
or entities will do, or how they will act and react, is simply
that they just are different kinds of things. They have different
"natures," as one might say, using the old-fashioned
terminology.

Leo Strauss
(Natural Right and History [Chicago: University of Chicago
Press, 1953]) adds:

Socrates
deviated from his predecessors by identifying the science of
… everything that is, with the understanding of what
each of the beings is. For "to be" means "to
be something" and hence to be different from things which
are "something else": "to be" means therefore
"to be a part" (p. 122).

[19]
For a defense of the concept of nature, see Alvin Plantinga, The
Nature of Necessity (Oxford: Clarendon Press, 1974), pp. 71–81.

[20]
See H.W.B. Joseph, An Introduction to Logic, 2nd
rev. ed. (Oxford: Clarendon Press, 1916), pp. 407–9. For
a hard-hitting defense of the view that causation states a necessary
relation among entities, see R. Harre and E. H. Madden, Causal
Powers: A Theory of Natural Necessity (Totowa, N.J.: Rowman
and Littlefield, 1975).

[21]
See Murray N. Rothbard, Individualism and the Philosophy of
the Social Sciences (San Francisco: Cato Institute, 1979),
p. 5.

[22]
And there is a further point: the very existence of a difference
of opinion seems to imply that there is something objective about
which disagreement can take place; for otherwise, there would
be no contradictions in the different "opinions" and
no worry about these conflicts. For a similar argument in refutation
of moral subjectivism see G.E. Moore, Ethics (Oxford, 1963
[1912)), pp. 63ff.

[23]
The psychologist Leonard Carmichael, in "Absolutes, Relativism
and the Scientific Psychology of Human Nature," in H. Schoeck
and J. Wiggins, eds., Relativism and the Study of Man (Princeton,
N.J.: 1). Van Nostrand, 1961), p. 16, writes:

We do not
turn aside from what we know about astronomy at any time because
there is a great deal we do not know, or because so much that
we once thought we knew is no longer recognized as true. May
not the same argument be accepted in our thinking about ethical
and esthetic judgments?

[24]
Joseph Cropsey, "A Reply to Rothman," American Political
Science Review (June 1962): 355. As Henry Veatch writes, in
For an Ontology of Morals, pp. 7–8:

Moreover,
it is in virtue of a thing’s nature – i.e., of its being
the kind of thing that it is – that it acts and behaves
the way it does. Is it not also in virtue of a thing’s nature
that we often consider ourselves able to judge what that thing
might or could be, but perhaps isn’t? A plant, for example,
may be seen to be underdeveloped or stunted in its growth. A
bird with an injured wing is quite obviously not able to fly
as well as others of the same species…. And so it is
that a thing’s nature maybe thought of as being not merely that
in virtue of which the thing acts or behaves in the way it does,
but also as a sort of standard in terms of which we judge whether
the thing’s action or behavior is all that it might have been
or could have been.

[25]
For a similar approach to the meaning of goodness, see Peter Geach,
"Good and Evil," in Philippa R. Foot, ed., Theories
of Ethics (London: Oxford University Press, 1967), pp. 74–82.

[26]
Contrast John Wild, in "Natural Law and Modern Ethical Theory,"
Ethics (October 1952): 2, who says:

Realistic
ethics is founded on the basic distinction between human need
and uncriticized individual desire or pleasure, a distinction
not found in modern utilitarianism. The basic concepts of so-called
"naturalistic" theories are psychological whereas
those of realism are existential and ontological.

[27]
William J. Kenealy, S.J., "The Majesty of the Law,"
Loyola Law Review (1949–50): 112–13; reprinted
in Brendan F. Brown, ed., The Natural Law Reader (New York:
Oceana, 1960), p. 123.

[28]
Blackstone, Commentaries on the Laws of England, Book 1:
quoted in Brown, Natural Law Reader, p. 106.

[29]
Carmichael, "Absolutes," p.9.

[30]
Wild, "Natural Law," pp. 4–5. Wild continues on
p.11:

Existence
is … not a property but a structuralized activity. Such activities
are a kind of fact. They can be observed and described by judgments
that are true or false: human life needs material artifacts;
technological endeavors need rational guidance; the child has
cognitive faculties that need education. Value statements are
founded on the directly verifiable fact of tendency or need.
The value or realization is required not merely by us but by
the existent tendency for its completion. From a sound description
and analysis of the given tendency we can infer the value founded
upon it. This is why we do not say that moral principles are
mere statements of fact, but rather that they are "founded"
on facts.

On pp. 2–4,
Wild says:

The ethics
of natural law … recognizes prescriptive moral laws but asserts
that these are founded on tendential facts which may
be described…. Goodness … must … be conceived dynamically
as an existential mode, the realization of natural tendency.
In this view, the world is not made up of determinate structures
alone, but of determinate structures in an act of existing which
they determine toward further appropriate acts of existing….
No determinate structure can be given existence without determining
active tendencies. When such a tendency is fulfilled in accordance
with natural law, the entity is said to be in a stable, healthy,
or sound condition – adjectives of value. When it is obstructed
or distorted, the entity is said to be in an unstable, diseased
or unsound condition – adjectives of disvalue. Goodness
and badness in their ontological sense are not phases of abstract
structure, but rather modes of existence, ways in which the
existential tendencies determined by such structures are either
fulfilled or barely sustained in a deprived, distorted state.

[31]
Ibid., p. 12. For more on a defense of natural law ethics, see
John Wild, Plato’s Modern Enemies and the Theory of Natural
Law (Chicago: University of Chicago Press, 1953); Henry Veatch,
Rational Man: A Modern Interpretation of Aristotelian Ethics
(Bloomington: University of Indiana Press, 1962); and Veatch,
For An Ontology of Morals.

[32]
Hume in fact failed to prove that values cannot be derived from
facts. It is frequently alleged that nothing can be in the conclusion
of an argument which was not in one of the premises; and that
therefore, an "ought" conclusion cannot follow from
descriptive premises. But a conclusion follows from both
premises taken together; the "ought" need not be present
in either one of the premises so long as it has been validly deduced.
To say that it cannot be so deduced simply begs the question.
See Philippa R. Foot, Virtues and Vices (Berkeley: University
of California Press, 1978), pp. 99–105.

[33]
A. Kenneth Hesselberg, "Hume, Natural Law and Justice,"
Duquesne Review (Spring 1961): 46–47.

[34]
Ibid.

[35]
David Hume, A Treatise of Human Nature, quoted in Hesselberg,
"Hume, Natural Law, and Justice," p. 61. Hesselberg
adds perceptively that Hume’s sharp ought-is dichotomy in the
earlier chapters of Hume’s Treatise stemmed from his restricting
the meaning of "reason" to finding pleasure –
pain objects, and determining the means to achieve them. But,
in the later chapters on justice, the very nature of the concept
compelled Hume "to assign a third role to reason, namely
its power to judge actions in terms of their suitability, or conformity
or disconformity, to man’s social nature, and thus paved the way
for the return to a natural law concept of justice." Ibid.,
pp. 61–62.

For some
doubt whether or not Hume himself intended to assert the fact-value
dichotomy, see A.C. MacIntyre, "Hume on ‘Is’ and ‘Ought,"
in W.D. Hudson, ed., The Is-Ought Question (London: Macmillan,
1969), pp. 35–50.

[36]
George P. Grant, "Plato and Popper," The Canadian
Journal of Economics and Political Science (May 1954): 191–92.

[37]
Edwin W. Patterson, Jurisprudence Men and Ideas of the
Law (Brooklyn, N.Y.: Foundation Press, 1953), p. 333.

[38]
Hazlitt’s reaction to my own brief discussion of the legal norms
essential to any free-market economy [in Man,
Economy, and State: A Treatise on Economic Principles

(Princeton, N.J.: D. Van Nostrand, 1962] was a curious one. While
critical of blind adherence to common law in other writers, Hazlitt
could only react in puzzlement to my approach; calling it "abstract
doctrinaire logic" and "extreme a priorism," he
chided me for "trying to substitute his own instant jurisprudence
for the common law principles built up through generations of
human experience." It is curious that Hazlitt feels common
law to be inferior to arbitrary majority will, and yet to be superior
to human reason! Henry Hazlitt, "The Economics of Freedom,"
National Review (September 25, 1962): 232.

[39]
John Edward Emerich Dalberg-Acton, Essays on Freedom and Power
(Glencoe, Ill.: Free Press, 1948), p. 45. Also see Gertrude Himmelfarb,
Lord Acton: A Study in Conscience and Politics (Chicago:
University of Chicago Press, 1962), p. 135.

[40]
Acton, Essays, p. 74. Himmelfarb correctly noted
that "for Acton, politics was a science, the application
of the principles of morality." Gertrude Himmelfarb, "Introduction,"
ibid., p. xxxvii

[41]
Himmelfarb, Lord Acton, p. 204. Contrast the exclamation
of bewilderment and horror by the leading nineteenth-century German
Conservative, Adam Muller: "A natural law which differs from
the positive law!" See Robert W. Lougee, "German Romanticism
and Political Thought," Review of Politics (October
1959): 637.

[42]
Himmelfarb, Lord Acton, p. 205.

[43]
John Wild, Plato’s Modern Enemies and the Theory of Natural
Law (Chicago: University of Chicago Press, 1953), p. 176.
Note the similar assessment by the conservative Otto Gierke, in
Natural Law and the Theory of Society, 1500 to 1800 (Boston:
Beacon Press, 1957), pp. 35–36, who was for that reason hostile
to natural law:

In opposition
to positive jurisprudence which still continued to show a Conservative
trend, the natural-law theory of the State was Radical to the
very core of its being … It was also directed…
not to the purpose of scientific explanation of the past, but
to… the exposition and justification of a new future
which was to be called into existence.

[44]
George S. Parthemos, "Contemporary Juristic Theory, Civil
Rights, and American Politics,"
Annals of the American Academy of Political and Social
Science (November 1962): 101–2.

[45]
The conservative political scientist Samuel Huntington recognizes
the rarity of this event:

No ideational
theory can be used to defend existing institutions satisfactorily,
even when those institutions in general reflect the values of
that ideology. The perfect nature of the ideology’s ideal and
the imperfect nature and inevitable mutation of the institutions
create a gap between the two. The ideal becomes a standard by
which to criticize the institutions, much to the embarrassment
of those who believe in the ideal and yet still wish to defend
the institutions.

Huntington
then adds the footnote: "Hence any theory of natural law
as a set of transcendent and universal moral principles is inherently
non-conservative…. Opposition to natural law [is] …
a distinguishing characteristic of conservatism." Samuel
P. Huntington "Conservatism as an Ideology," American
Political Science Review (June 1957): 458–59. See also
Murray N. Rothbard, "Huntington on Conservatism: A Comment,"
American Political Science Review (September 1957): 784–87.

[46]
For a critique of such typical confusion by a modern Thomist,
see Murray N. Rothbard, Power and Market, 2nd ed. (Kansas
City: Sheed Andrews and McMeel, 1977), pp. 237–38. Leo Strauss’s
defense of classical natural law and his assault on individualistic
natural-rights theory may be found in his Natural Rights and
History (Chicago: University of Chicago Press, 1953).

[47]
John Locke, An Essay Concerning the True Origin, Extent, and
End of Civil Government, V. pp.27–28, in Two Treatises
of Government, P. Laslett, ed. (Cambridge: Cambridge University
Press, 1960), pp. 305–7.

[48]
Current scholars, ranging from Marxists to Straussians, consider
Thomas Hobbes rather than Locke as the founder of systematic individualist,
natural rights theory. For a refutation of this view and a vindication
of the older view of Hobbes as a statist and a totalitarian see
Williamson M. Evers, "Hobbes and Liberalism," The
Libertarian Forum (May 1975): 4–6 [available in PDF].
Also see Evers, "Social Contract: A Critique," The
Journal of Libertarian Studies 1 (Summer 1977): 187–88
[available in PDF].
For a stress upon Hobbes’s absolutism by a pro-Hobbesian German
political theorist, see Carl Schmitt, Der Leviathan in der
Staatslehre Thomas Hobbes (Hamburg, 1938). Schmitt was for
a time a pro-Nazi theorist.

[49]
Francis Lieber, Manual of Political Ethics (1838); Theodore
Woolsey, Political Science (1877); cited in Benjamin F.
Wright, Jr., American Interpretations of Natural Law (Cambridge,
Mass.: Harvard University Press, 1931), pp. 261ff., 255ff., 276ff.
William Ellery Channing, Works (Boston: American Unitarian
Association, 1895), p. 693.

[50]
Elisha P. Hurlbut, Essays on Human Rights and Their Political
Guarantees (1845), cited in Wright, American Interpretations,
pp. 257 ff.

[51]
See Bernard Bailyn, The Ideological Origins of the American
Revolution (Cambridge, Mass.: Belknap Press of Harvard University
Press, 1967).

[52]
William Lloyd Garrison, "Declaration of Sentiments of the
American Anti-Slavery Convention" (December 1833), cited
in W. and J. Pease, eds., The Antislavery Argument (Indianapolis:
Bobbs-Merrill, 1965).

[53]
James A. Sadowsky, S.J., "Private Property and Collective
Ownership," in Tibor Machan, ed., The Libertarian Alternative
(Chicago: Nelson-Hall, 1974), pp. 120–21.

[54]
Hurlbut, cited in Wright, American Interpretations, pp.
257 ff.

[55]
Cf. W. Zajdlic, "The Limitations of Social Sciences,"
Kyklos 9 (1956): 68–71.

[56]
Hence, as Thorson points out, political philosophy is a subdivision
of the philosophy of ethics, in contrast to "political theory"
as well as positivistic analytic philosophy. See Thomas Landon
Thorson, "Political Values and Analytic Philosophy,"
Journal of Politics (November 1961): 712n. Perhaps Professor
Holton is right that "the decline in political philosophy
is one part of a general decline," not only in philosophy
itself, but also "in the status of rationality and ideas
as such." Holton goes on to add that the two major challenges
to genuine political philosophy in recent decades have come from
historicism – the view that all ideas and truths are relative
to particular historical conditions – and scientism, the
imitation of the physical sciences. James Holton, "Is Political
Philosophy Dead?" Western Political Quarterly (September
1961): 75ff.

Murray
N. Rothbard
(1926–1995) was the author of Man,
Economy, and State
, Conceived
in Liberty
, What
Has Government Done to Our Money
, For
a New Liberty
, The
Case Against the Fed
, and many
other books and articles
. He was
also the editor – with Lew Rockwell – of The
Rothbard-Rockwell Report
.

Murray
Rothbard Archives

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