Against Natural Law

The “Law of Nature” is a Dead-End

If you prefer the audio of this article, click here.

There cannot, I conceive, be any question that to the assumption of the Law Natural we owe the doctrine of the fundamental equality of human beings. — Maine, Ancient Law

Introduction

Last week we investigated Henry Sumner Maine’s work Ancient Law and made some startling discoveries. We discovered that even the ancient world was riddled with progressivism. We discovered that it had what we now call equity. We discovered that the ancient world’s idea of equity was based on what we now call international law. And we discovered that the philosophical justification for this equity was what is now called—and what was called then—natural law.

This week we are going to do a number on natural law, first by way of a genealogical method. We are going to show you where natural law came from originally. Then we are going to confront it on its own terms—we will show what it led to necessarily. It always leads in one direction.

Natural law is considered something based today. It has an austere ring to it. It frames itself as unopposable. What could be less opposable than the awesome majesty of nature? As the Daodejing so often says, “all this is against Dao.” We could say, against nature. “And what is against Dao is not long for this world.” What is very odd though is that peoples in their youth and strength have no concept of natural law. It is always a late discovery. And by the time it is discovered, that people is old and sick.

Natural law is not simply “what happens in the world”. It is something very specific. It has a history and a birthdate. And that history shows it to be the tool of progressivism, and the enemy of tradition.

The Genealogy

Justinian, the emperor who presided over the Eastern Roman Empire after the collapse, published his monumental Corpus Juris Civilis in the 530s, a collective work of jurisprudence that crystallized Roman law in a stage of decadence. In one portion called the Institutes, it was written:

The law of nature is that which she has taught all animals; a law not peculiar to the human race, but shared by all living creatures, whether denizens of the air, the dry land, or the sea. Hence comes the union of male and female, which we call marriage; hence the procreation and rearing of children, for this is a law by the knowledge of which we see even the lower animals are distinguished. The civil law of Rome, and the law of all nations, differ from each other thus. The laws of every people governed by statutes and customs are partly peculiar to itself, partly common to all mankind. Those rules which a state enacts for its own members are peculiar to itself, and are called civil law: those rules prescribed by natural reason for all men are observed by all peoples alike, and are called the law of nations.¹

This law of nations was the Roman equivalent of international law. Originally Rome knew nothing of the laws and customs of outsiders, only of its own. As it came into more prolonged contact with these outsiders, Rome discovered that they had their own laws, their own customs, their own traditions. This made relations between them difficult, so a sort of go-between law was developed strictly for the purposes of concluding agreements, alliances, trade, etc.

It is clear that in the beginning, the law of nations was something ad hoc and makeshift. It had no austere majesty about it any more than Nigerian Pidgin English does, but with the arrival of Greek ideas in Rome, this began to change. Rooted in the presocratic concern with physis—the material world seen as generated by a singular primordial element void of divinity²—the idea of one law governing all of reality began to impress itself upon the unphilosophical Roman. With the presocratic love of reductionism married to the Socratic emphasis on the moral, man’s ultimate end was seen as a life in accordance with physis, or as the Roman called it, natura.

Rather than the disorderly jumble of one-off laws, prescriptions and taboos that the Roman natively loved, he came to be impressed with ideas of order, simplicity, and convenience. This trend toward simplicity made the law of nations the model for all law. Its simplification of a rich complex of laws came to be seen not as provisional and crude, but elegant and symmetrical.

As Rome progressed through its structural conflict—the breakdown of the Republic, the birth and consolidation of the Empire, the inevitable breakdown of the Empire—it went through the stages of degeneration in the law that we discussed last time.

In brief, the story runs as follows. The inflexible austerity of the primitive law first turned to legal fictions to reform itself without admitting to what was happening. Then when the fictional element had built up to an absurdity, Roman judges simply overruled the law by the Praetor’s Edict. This naked disregard of law had to be justified somehow, and Roman jurists turned to the law of nations. The apparent simplicity of the law of nations was seen as evidence that it was the lost code of nature herself. Henceforth all men were to be placed on equal footing before the law, before the grim and unyielding sovereignty of the very cosmos. There was no part of the old civil law that could not and should not be annulled by the Edict, in order to revive as far as possible the primitive institutions of nature.

Illiberal students of history will find all this eerily familiar. We could have been discussing the French Revolution and the “state of nature” of Locke or Rousseau, or the “veil of ignorance” of Rawls. And Maine’s account of the birth of the law of nature out of politics demolishes any Rousseauvian ideas of a primitive natural state. First we get the primordial Roman law which is customary and folkish. Next we get the law of nations as a mere political expediency, which then becomes the natural law. Maine undermines the “social contract” of liberalism by pointing out that the natural law can be no older than the law of nations, which is not known to Rome (nor to any people) until very late.³ Natural law has more often than not been put to use in demolishing the native and traditional folkways of a people. The Spanish scholastics Francisco Suarez and Francisco de Vitoria put it to use in justifying consent of the governed as against kingship. Grotius used it to undermine the very sovereignty of nations themselves and justify limited government. Locke enshrined the “right to rebellion” by it, and it continues today under the slightly modified guise of “human rights”.

The sordid genealogy of natural law would be enough to condemn it. At every turn, natural law is taken up by the worst people of the age. It leads us directly us toward modern liberalism, and in the ancient world it was the principal instrument with which classical civilization was dismantled. But this historical sketch may fall on deaf ears. After all, natural law itself sees no value in the historical. It only recognizes the ahistorical and universal, what is true of all times and places. So let us look at how it functions in the abstract.