3. NATURAL LAW VERSUS POSITIVE LAW
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. 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.
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 distinguished from religion and politics from morals; and in religion, morality, and politics there was only one legislator and one authority.”
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.
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.” 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.”
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.
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. 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.
Edwin W. Patterson, Jurisprudence: Men and Ideas of the Law (Brooklyn, N.Y.: Foundation Press, 1953), p. 333.
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, 19621 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.
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.
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.
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.
Himmelfarb, Lord Acton, p. 205.
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.
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.
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.