Tuesday, February 15, 2011

Did Edmund Burke reject natural law?

The NCSE's Rosenau struggles with the issue of natural law. So far, natural law is winning.

In a previous post, I had questioned an assertion by a guest interviewed on NPR, in a discussion on the Egyptian crisis, that Internet access was a "basic human right." Josh Rosenau responded, arguing that all we need do in grounding the ultimate moral foundations of law is to appeal to the United Nations.


When I responded to him, pointing out the intellectual silliness involved in such a claim, and articulating the case for natural law (the idea that there is a metaphysical "law above the law" on the basis of which we can judge all positive, written laws), Rosenau responded again, arguing that a Burkean conservative such as myself who also adheres to natural law was inconsistent, and made the ludicrous claim that Burke, one of the great champions of natural law, actually opposed it.

But first, of course, he had to call me names.

I called in my last post for Rosenau to inject some wit into his vitriol, just to make the reading of his posts a little more bearable. But, alas, my calls went unheeded, and he begins his response with the usual artless invective, charging me with "bigotry" on basically every issue I have addressed, and more, in fact, that I have never even talked about.

I can respect an insult, deftly administered, but these crude attempts at vilification are enough to make you lament the low state of modern discourse. The rhetorical art of vituperation has a noble and storied history, going back to Aristotle's discussion of it in his Rhetoric. But Rosenau clearly is unfamiliar with this.

In fact, let's just consider this an official call for the NCSE to get him some remedial instruction in invective. I'll even help pay for it. The least we should expect of a man is that he be able to competently hurl an insult.

Edmund Burke, he says, was opposed to natural law. In saying this, he simply bulldozes right through several key distinctions that anyone with any knowledge in this area must take for granted:
Of course, the entire objective of Burke's Reflections on the Revolution in France was to argue that a written law can only be critiqued from within the history and structure of the existing laws. It is on this basis that he concludes the French are wrong to cast off their existing laws and customs and start a government rooted in a natural rights.
He then quotes this passage in Burke to justify this claim:
... it has been the uniform policy of our constitution to claim and assert our liberties as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity — as an estate specially belonging to the people of this kingdom, without any reference whatever to any other more general or prior right. By this means our constitution preserves a unity in so great a diversity of its parts. [emphasis mine]
That isolated quote will certainly sound, to someone unfamiliar with the rest of Burke's writings--or for that matter the rest of Reflections on the Revolution in France from which this is taken--as if Burke rejects natural law. But let's pay attention to the italicized parts as we listen to Rosenau summarizing what he thinks Burke is saying:
Thus, for Burke the external fulcrum is not some metaphysic (which he derides as speculation and abstract theory), but the hard facts of custom and tradition. It hardly bears mentioning that Burke's aversion to rights-based revolution would surely make him (not me, as Cothran would have it) Hosni Mubarak's favorite human rights theorist. [again, emphasis mine]
Rosenau jumps from Burke's assertions that liberties can only be claimed and asserted through tradition and custom to the fact that the fulcrum is not metaphysical. Rosenau completely ignores the distinction between how we know what our rights are and how they may be justified.

Peter Stanlis has pointed out, in his book Edmund Burke and the Natural Law, that Burke not only didn't reject natural law, but was "one of the most eloquent and profound defenders of Natural Law morality and politics in Western civilization.":
In every important political problem he encountered, in American, Irish, Indian, and domestic affairs, in his economic principles, and in the great crisis of the French Revolution, Burke consistently appealed to the Natural Law and made it the basis of his political philosophy ... [A]s an exponent of Natural Law or traditional "natural rights" Burke was in the great classical tradition of Aristotle and Cicero and the Scholastic tradition of St. Thomas Aquinas, Bracton, and Hooker.
Rosenau seems very confused on this point. Will Herberg has noted how easily this question comes up when reading Burke, and he states the perceived problem nicely:
How can a man be an advocate of expediency and an apostle of principle at one and the same time? How can he, for example, excoriate the French Declaration of the Rights of Man as “abstract” and “metaphysical” in almost the same breath that he denounces the French revolutionaries for their crimes against the “eternal immutable law”?
The problem is in the failure to distinguish two very different Natural Law traditions, one of which Burke holds, and the other which he doesn't. What Rosenau does is conflate two, and misunderstand his rejection of one as a rejection of both.

Heinrich Rommen, in his book The Natural Law: A Study in Legal and Social History and Philosophy, explains the difference between the Enlightenment school of Natural Law inaugurated by Hugo Grotius, and extended through the works of Samuel Pufendorf, Thomas Hobbes, and Jean Jacques Roussaeau on the one hand, and the Christian Natural Law tradition of Augustine, the Church fathers, and Aquinas on the other. Rommen calls the first the rationalist view of natural law, and the second the metaphysical view:
One is the idea of a revolutionary and individualistic natural law essentially bound up with the basic doctrine of the state of nature as well as with the arbitrary and artificial, is determined by utility, and is not metaphysically necessary. The other is the idea of a natural law grounded in metaphysics that does not exist in a mythical state of nature before the "laws," but lives and ought to live in them--a natural law which one would fain, though somewhat ineptly, style conservatism. [emphasis mine]
Rosenau sees Burke attacking the former, and, unaware of the distinction, interprets him as attacking even the latter, when, in fact, he is speaking out of the latter tradition. Although Burke would also disagree with the Protestant view of Natural Law prominent after Ockham that denied that there was any access to the Natural Law outside of revelation, the Catholic view--that it can be known by reason (through tradition and custom, not by the articulated rationality of the Jacobins) as well as revelation was most certainly not Burke's target.

Rosenau needs to read the passages in Russell Kirk's The Conservative Mind: From Burke to Eliot dealing with this issue. Kirk is one of the great modern exponents of Burke and he makes short work of the idea that Burke is anything but a classical Natural Law thinker:
Burke declared that men do not make laws: they merely ratify or distort the laws of God. He said that men have no rights to what they please: their natural rights are only what may be directly deduced from their human nature. The Whig reformer, the advocate of enlightened expediency, told England that there was indeed an immutable law, and there are indeed inalienable rights, but they are of origins and character profoundly different from that philosophes and levelers take them for.
In the book that Rosenau characterizes as having as its "entire objective" to argue against natural law, Burke talks about the "permanent reason" and "the steady maxims of faith, justice, and fixed fundamental policy" which are "perfectly intelligible and perfectly binding upon those who exercise any authority, under any name or under any title, in the state."

He repeatedly refers to "original justice," "eternal justice," "natural equity," the "natural order of things," the "natural course of things," the "principles of natural and legal equity," " justice, the common concern of mankind," the "natural sense of right and wrong," and criticizes the Jacobins for their "usurpations of the prerogatives of nature," and their "contempt of this great fundamental part of natural law."

Burke did not deny the natural law; he championed it. What he attacked is the attempted implementation of the natural law based on the articulated rationality so valued by the French Revolutions who, instead of acknowledging reason in is proper place, instead exalted Reason as a goddess. His problem with Robespierre was the conceit that held that men could behold natural law in the abstract:
But I cannot stand forward and give praise or blame to anything which relates to human actions, and human concerns, on a simple view of the object, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction.
Abstract natural rights "may and do exist in total independence" of human government, but the only means by which to know them, and the only form in which they can be installed is custom and tradition. This is what he means when he says that "their abstract perfection is their practical defect."

As Herberg puts it:
It is in man’s historical experience rather than in any abstract metaphysical scheme that we can hope to catch a glimpse of the underlying Natural Law as well as of the modifications it must undergo if it is to become operative in social life.
You can't approach Burke with the reductionism of scientific abstraction Rosenau seems to want to apply. This is exactly the kind of thing Burke is writing against. Like all great philosophers who are also poets, Burke should be approached with a sense discretion. There are bulls in a china shops more careful and discreet than Rosenau in his attempted analysis of Burke. Not that we were ever under the delusion that Rosenau was a practitioner of discretion.

To say that Burke was opposed to natural law betrays a serious misunderstanding of everything he was about. Rosenau would be better off returning to the subject of the phallic morphology of Philippine rodents, where he actually knows what he's talking about.


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Lee said...

Interesting post. A question, though, about the syntax.

> "Heinrich Rommen, in his book The Natural Law: A Study in Legal and Social History and Philosophy explains the difference between the Enlightenment school of Natural Law inaugurated by Hugo Grotius, and extended through the works of Samuel Pufendorf, Thomas Hobbes, and Jean Jacques Roussaeau, and the Christian Natural Law tradition of Augustine, the Church fathers, and Aquinas on one hand, and the secular."

I can't tell who's on one hand and who's on the other. It could be me, I suppose.

Biblically, I'm fine with the concept of natural law -- it's natural rights I have some bit of consternation about. It's hard for me to deduce that from the scriptures, is all. The things we consider today to be desecrations of human rights, the Bible seems to see as unfortunate circumstances at worst. Herod decides to kill all the newborn babies in Bethlehem, for example -- certainly, it's horrible, and Joseph and Mary take Jesus and flee to Egypt. Never, however, is there any mention of whether Herod had a right to do this.

I suppose at the most basic level that if natural law determines how man ought to treat man, then natural rights is a matter of pressing the claim to be treated in a manner congruent with natural law. Is that a tautology? But it's hard to get much else from the scriptures. Christianity promises us nothing better than what Jesus got -- pain, suffering, death, and humiliation from his fellow man -- and insists that we are entitled to nothing better.

Our Founding Truth said...

Heinrich Rommen, in his book The Natural Law: A Study in Legal and Social History and Philosophy, explains the difference between the Enlightenment school of Natural Law inaugurated by Hugo Grotius, and extended through the works of Samuel Pufendorf, Thomas Hobbes, and Jean Jacques Roussaeau on the one hand, and the Christian Natural Law tradition of Augustine, the Church fathers, and Aquinas on the other. Rommen calls the first the rationalist view of natural law, and the second the metaphysical view:>

It appears Rommen is off on this one. Grotius and Pufendorf believed in Biblical Inerrancy, which would put them with the Church Fathers, not the Enlightenment.

Martin Cothran said...

You might want to explain how it follows from his belief in Biblical inerrancy (I'm taking your word for it, I haven't checked) that he wasn't a part of the natural law school of Hobbes and Rousseau.

Lee said...

Did Rousseau start with the presumption of Bible inerrancy?

Martin Cothran said...

I'm not sure, but I don't think Rousseau was an inerrantist. But regardless, I don't see any relationship between one's belief in inerrancy and one's belief in natural law. In fact, someone who is an inerrantist who rejects natural reason (a not uncommon view among protestants) would almost certainly reject it.

Natural law (of the the classical stripe) assumes some kind of natural theology, so if you don't accept natural theology but only revealed theology, you are probably going to have a problem with natural law.

This is one of the reasons the natural law tradition is often identified with Catholics: because they have a strong tradition of natural theology.

Martin Cothran said...

I'll point out also that whether Pufendorf was an inerrantist or not is of little importance in regard to how he should be categorized as a natural law thinker compared to whether he was an invidualist and a rationalist.

Here is the relevant section in Rommen on the differences between the Enlightenment view of natural law and the Classical or Scholastic view, particularly as it bears on Pufendorf:

The decisive differences between this newer natural law and that of the Scholastics are three in number. The first is the individualistic trait manifesting itself in the predominance of the doctrine of the state of nature as the proper place in which to find the natural law. The second is the nominalist attitude which found expression in the separation of eternal law and natural moral law, of God’s essence and existence, of morality and law. The third is the resultant doctrine of the autonomy of human reason which, in conjunction with the rationalism of this school, led straight to an extravagance of syllogistic reasoning, of deductively constructed systems that served to regulate all legal institutions down to the minutest detail: the civil law governing debts, property, the family, and inheritances as well as constitutional and international law. And, in contrast with the imperfect historical law, these legal systems possessed the inestimable merit and value of emanating from the pure rational nature of man.

These differences especially characterized the leading figures of the new school of natural law, Pufendorf and Thomasius.

...Samuel von Pufendorf (1632–94), in his concept of man’s nature, did not take man in his teleologically determined totality of human nature. Man is not essentially social, so that, as earlier thinkers had held, the essential forms of community living evolve by inherent necessity out of his natural tendency for society. On the contrary, he should develop sociality because it is of advantage to him. Man is an
animal sociabile, not sociale. What had for earlier thinkers been but a sign of man’s internal and natural tendency, a realization of his nature itself in time, became in the newer natural law mere capability, mere impulse. Accordingly, empirical nature and any impulse or capacity whatever (sociality or, as in the case of Thomasius, felicity) formed the starting point of speculation. The presupposition of such natural-law thinking is the individual as an isolated being in the state of nature, hence abstracting from the essential forms of human nature as such that find expression in the historical forms of state, law, marriage, and family. Wherefore Pufendorf proceeded to set forth how man in the original state of nature, abstracting from the historical status civilis, from positive law and from the legal order, has as an individual to behave toward God, toward himself, and toward his fellow men.

Martin Cothran said...

I should have said in that second to the last post "you are probably going to have a problem with the classical natural law position."

Lee said...

Interesting perspective, Martin. I'll do my best here to play the Biblical inerrantist in the room and see if we can travel in a straight line from here to natural theology...

Let's start with a quote from Romans, which is inerrant if the Bible is inerrant:

> "The wrath of God is being revealed from heaven against all the godlessness and wickedness of people, who suppress the truth by their wickedness, since what may be known about God is plain to them, because God has made it plain to them. For since the creation of the world God’s invisible qualities—his eternal power and divine nature—have been clearly seen, being understood from what has been made, so that people are without excuse."

If this is so, then I'm not sure we can really distinguish between natural theology and revealed theology. God is "plain" to us. His eternal power and divine nature have been "clearly seen."

Are they seen because of reason and ordinary experience? Or are they seen because He has revealed them? Maybe it's both. Maybe our reason and experience work for us because He has revealed Himself.

Francis Beckwith said...

I found this article on Burke and natural law to be very helpful: http://www.mmisi.org/ir/33_01/attarian.pdf

One of the confusions that many people make--especially those not conversant with the distinction between classical natural law and modern natural rights--is that they think that a rejection of natural rights is a rejection of natural law.