Natural Law: A Few Comments

When I gave an overview of the epistemological starting point of the economics and ethics in the thought of Mises, Rothbard, and Hoppe, I mentioned that I was unconvinced by Rothbard’s empirical foundation and therefore his use of Natural Law.  However, it should be now noted that Natural Law itself is a phrase that has been used in different ways and different contexts. Even Calvin uses the phrase, and truly he was no Thomist.  We ought to be sympathetic to its different uses.

In a forthcoming republication of Gordon H. Clark’s essay on Natural Law, it will be noted that he considers a quote by Ernest Barker to be a decent enough summary of what is meant by natural law generally.  Barker, quoted by Clark, writes:

The fundamental idea of Natural Law… is the idea that there is a natural justice, based on the reason of man, which lies behind all positive law.

The importance of natural law, and what it seeks to offer to the political philosopher, is a category of norms that are distinct from, and form the foundation of, positive laws, which are often laws created by men for the context of a given jurisdiction.  Positive laws may be said to be based upon the whims of the ruler, or they may be attempted to be grounded on something more transcendent, which is what natural law attempts to be.

Excluding for a moment the phrase “based on the reason of man,” it would seem that Barker’s understanding of a natural law can coincide with the Christian idea of a moral law written on the heart.  This moral law stands eternally and independently of all positivist expressions, most importantly the expression found in the Mosaic law code in the Pentateuch. To be clear then, the judicial laws in Israel were positive laws, but were based on the transcendent moral law.  The positive laws in Israel, while temporary for the national setting, were founded on the perfect and eternal moral law.  It is for this reason, that Brandon Adams made the key point that the general equity clause of the Confessions is intended to express the use of Israel’s positive laws in furthering our understanding of eternal moral laws, rather than simply applying Israel’s judicial laws to various present day political settings.

Sometimes then, the phrase “natural law” is used as a substitute for moral law, but in any case the Moral Law is categorically a type of natural law.

Therefore, in considering Murray Rothbard’s natural law foundation for a libertarian political theory, our complaint per se is not against his opinion that there is a transcendent set of norms which binds the actions of all men.  Natural Law, broadly understood, and historically utilized by the likes of Calvin, is not to be opposed.  Calvin:

It is a fact that the law of God which we call the moral law is nothing else than a testimony of natural law and of that conscience which God has engraved upon the minds of men.

The problem and objection to Rothbard occurs when we consider how the natural law is to be known.  The idea that there exists something natural, apart from the positive laws of man, is agreeable. But how do we know what this natural law actually is?  It is here that we distance ourselves from Rothbard.  For Rothbard, natural law was to be discovered via the means of reason alone; that is, reason apart from Scripture. But for the Christian, natural law is to be discovered via the propositional revelation provided to us in the Word of God. There is a Natural Law, and this natural law is synonomous with the moral law of God written on the heart and summarized in the decalogue.

In search of a foundation for liberty, Murray Rothbard is to be praised for objecting to the conclusions of his mentor, Ludwig von Mises.  Rothbard writes, as published in Roberta A. Modugno’s volume entitled “Rothbard vs. The Philosophers,”

What I have been trying to say is that Mises’s utilitarian, relativist approach to ethics is not nearly enough to establish a full case for liberty. It must be supplemented by an absolutist ethics—an ethics of liberty, as well as of other values needed for the health and development of the individual—grounded on natural law, i.e., discovery of the laws of man’s nature. Failure to recognize this is the greatest flaw in Mises’s philosophical worldview.

It is precisely this aspect of Rothbard’s theory of the ethics of liberty –his leaning on natural law which transcends cultures and societies– that sets him apart from both the rationalistic relativism of Mises and the irrationalist and empirical relativism of F.A. Hayek. Against those eminent Austrian economists, Rothbard dissents by declaring that norms cannot be dependent on context and evolution, but must rather, in order to justify their use in society, apply equally in all settings and at all times.  While Mises was much more of a limited government proponent compared to Hayek (see Hoppe here), Rothbard pointed out that unless there was a transcendent ethic, there was no means to make a moral case for liberty.  Hence Rothbard’s courageous defense of natural law.

Now again, Rothbard represents a type of libertarianism that is sadly opposed by the Progressivist trend that has seeped into libertarianism in the last decade.  This new type of libertarianism is relativism gone wild. It is anti-authority, disrespectful toward any traditional values, and despises religion.  Rothbard’s insistence on an absolute ethic is a breath of fresh air.  That there exists an ethical standard independent of the man himself is an idea that is lost among most people these days.  And yet, despite our delight that Rothbard stubbornly clung to a deontological ethic in an age of rank consequentialism in the libertarian movement, we do differ from him on the means by which natural laws are known or discovered.

The proper rules of human conduct cannot be found in nature, nor can they be found by engaging in self-reflection.  Natural laws, by which we mean ethics, may exist independent of the human mind, but they cannot exist independent of a mind generally speaking.  A law must originate in a rational mind.  Right and wrong can neither be derived propositionally from investigating the world nor can they originate in a non-thinking entity.  The rational mind in which all laws originate is the mind of God.  And the mind of God, which thinks propositionally as we humans do (because we are created in the image of God), cannot be known by looking at the natural world. Nature does not communicate propositions.  Thus, in order to know right and wrong, we need revelation in propositional form.  And this we have graciously been given in the Scriptures.  Indeed, as John W. Robbins quotes Austrian economist and student of Ludwig von Mises, the under-appreciated (see Joe Salerno here) Hans Sennholz:

The market order or capitalism finds its answers in the Judeo-Christian code of morality. Private ownership in production is squarely based on the Ten Commandments. It obviously rests on the Eighth Commandment: Thou shalt not steal. The private-ownership system also builds on the solid foundation of the Sixth Commandment: Thou shalt not kill, which includes every form of coercion and violence…. To freely exchange goods and services, the contracting parties must not deceive each other. They must not bear false witness, which is the Ninth Commandment of the Decalogue.

Natural law, inasmuch as we are referring to the Moral Law as expressed in the Word of God and summarized in the Ten Commandments, is agreeable.  But the only way to discover these laws, given the reality of sin following Adam’s disobedience, is by turning to God’s propositional revelation.  It is true that before the fall, by reason one could know these moral laws, but because of the bondage of our souls and the effect that this has on our reason, we rely solely on Word of God which we have access to in our Bibles.

From the forthcoming Clark essay:

The Natural Law concept is more than a tool for lawyers.  It is an indispensable concept for the proponent of liberty…, and as liberty comes to seem more precious and popular disillusionment with political panaceas becomes more acute, we may expect to see increasing reliance on the Natural Law philosophy as an indispensable means for achieving a sounder society, one more in harmony with the eternal verities and accumulated wisdom of the [human] race.

The question then confronts those desirous of holding to a Natural Law: will you make propositional revelation or empiricism the means by which the eternal ethic is known.  Natural law, if we are to use this phrase at all, can either be known via “natural theology” or “propositional revelation.” As for Clark and I, we reject the former and endorse the latter.  For Natural Law can only have use as a phrase if by it we mean Moral Law.

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