October 22, 2014

Natural Law: A Few Comments

By In Blogs, C.Jay Engel

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.

Written by C.Jay Engel

Editor and creator of The Reformed Libertarian. Living in Northern California with his wife, he writes on everything from politics to theology and from culture to economic theory. You can send an email to reformedlibertarian@gmail.com
  • Thanks C.Jay. This helps put Clark’s essay in context. Great stuff

  • MikeD

    I noticed in the quote by Sennholz none of the commandments from, what we typically call, the first table were mentioned. Any thoughts on how, for example, the fourth commandment would be a factor in positive law? Thanks for the fine article.

    • For the sake of clarity, we might designate it “civil authority positive law” in this context, since positive law has many different contexts (Mosaic positive law, New Covenant positive law, creation positive law, etc)

      • reformedlibertarian

        We should, but the Mosaic positive law was also a civil authority positive law correct?

        • nitpicker “Non-Mosaic civil authority positive law” 😛

          • reformedlibertarian

            lol sorry, just making sure I understood you.

    • reformedlibertarian

      So you’re asking how we might, assuming we should, make the fourth commandment moral law into a positive law today? Historically, the first table wasn’t used as a basis for civil law by Reformed Baptists. But it is true that, even in the twentieth century, there existed Blue Laws which prevented businesses from operating on Sundays. While there are ways to make this work in a private property society, the reality of the matter is that we have to consider how to make these laws work in our current “public government” settings.

      The blue law issue, the application of the 4th commandment in positive law, is difficult. The Bible in Romans 13 does not give government the authority to make criminals out of people who do not recognize the sabbath. That’s what a law is: making a criminal out of someone who acts in a certain way. And criminals are to responded to with coercion. I have written before on this: “I think that many Christians do not understand what it means for something to be “illegal.” And thus they do not understand what it means when the Christian libertarian says something immoral should be “legal.” All we are referring to, once we honestly consider the situation, is that “illegal” means that the use of aggression is justified against a given activity and “legal” means that the use of aggression is not justified to prevent it.”

      So we need to be very careful about advocating laws which allow the State to use coercion against people who haven’t first aggressed against a victim. I would categorize the issue of the sabbath as needing to be addressed with “spiritual weaponry” to use Isaac Backus’ phrase from my summary of the Baines essay on RBs in Gods Two Kingdoms.

      • MikeD

        I feel the same way as you’ve outlined but the reason I mentioned the fourth commandment is that in the article, “moral law” was referred to without explicit qualification. I see now, I think, that you speaking of the whole for the part…for the most part 🙂

  • MikeD

    A quick follow up, I’ve always thought it interesting that in Rom. 13, after Paul’s words about the civil magistrate in vv.1-7, he expounds on the law, but only mentions the 2nd table. Perhaps an indication that as far as the “ministers of wrath” are concerned the 1st table is not relevant? Of course, the Lord is relevant but I mean that the first four commandments do not find expression in positive law no matter how important they are as a rational foundation for authority.

    • reformedlibertarian

      Thanks for the two sets of great questions! I’ll make sure and get to them tomorrow. Later!

    • Mike, that was precisely Calvin’s interpretation (at least in the limited context of Romans 13).

      Calvin on Rom 13:5 notes:

      This whole discourse is concerning civil government; it is therefore to no purpose that they who would exercise dominion over consciences do hence attempt to establish their sacrilegious tyranny

      And on v8-10

      But some are here impeded, and they cannot well extricate themselves from this difficulty, — that Paul teaches us that the law is fulfilled when we love our neighbor, for no mention is here made of what is due to God, which ought not by any means to have been omitted. But Paul refers not to the whole law, but speaks only of what the law requires from us as to our neighbor. And it is doubtless true, that the whole law is fulfilled when we love our neighbors; for true love towards man does not flow except from the love of God, and it is its evidence, and as it were its effects. But Paul records here only the precepts of the second table, and of these only he speaks, as though he had said, — “He who loves his neighbor as himself, performs his duty towards the whole world.”…

      Love doeth no evil to a neighbor, etc. He demonstrates by the effect, that under the word love are contained those things which are taught us in all the commandments; for he who is endued with true love will never entertain the thought of injuring others. What else does the whole law forbid, but that we do no harm to our neighbor? This, however, ought to be applied to the present subject; for since magistrates are the guardians of peace and justice, he who desires that his own right should be secured to every one, and that all may live free from wrong, ought to defend, as far as he can, the power of magistrates. But the enemies of government show a disposition to do harm. And when he repeats that the fulfilling of the law is love, understand this, as before, of that part of the law which refers to mankind; for the first table of the law, which contains what we owe to God, is not here referred to at all.

      Roger Williams used this quote in his “The Bloody Tenent” arguing for liberty of conscience

      • MikeD

        Thanks for the great extended Calvin quote, Brandon. If Romans 13 is outlining, broadly of course, the magistrate’s concerns then it would appear that adultery, and thus, marriage should be a concern of the government. No?

        In light of your excellent posts, CJ, on marriage as covenant, and how it relates to Rom 13 above, I thought 1 Cor 7:4 might be relevant. There Paul says, “For the wife does not have authority over her own body, but the husband does. Likewise the husband does not have authority over his own body, but the wife does.” I guess I’d stay away from the word “property” in that context, but perhaps that’s enough strength to put marital infidelity, partly, under the operations rubric of the state? Hmmmm….

        • reformedlibertarian

          Have you read my article on Romans 13?

          I think that 1 Cor 7:4 has a context that should keep it’s application away from any discussion of the State. At any rate, what exactly would the State do?

          • MikeD

            CJ, I have not read it so I’ll browse the site for it. My apologies if all of this has been covered already. As for, “What would they do?” I don’t know. I was toying with the idea, certainly not convinced of it, but in a deductive manner. That is, if the state is concerned with adultery, then this presupposes a concern with marriage… an official one. I’ll be sure to peep your other article. Looking forward to it.

            I suppose I could be off on this, but I thought the conversation had not made it to the punitive aspects of “sword” yet. For example, I don’t know exactly what the State should do in the case of theft either. Sure, apprehend the criminal, prosecute him, and work his tail off until the person wronged is properly compensated and any State costs are offset by the labor. What constitutes “properly compensated” I’m not sure.

          • reformedlibertarian

            http://reformedlibertarian.com/articles/theology/romans-13/

            Firstly, I don’t think that the State should punish adultery either. This is one of the more controversial stances of mine I suppose. I recognize that. But if a wife is unfaithful to her husband, I do not see the justification for having the government fine her or imprison her or any of the other things government might do to criminals. In fact, I think that this is the precise opposite of what needs to be done. I realize that personal experiences are no arguments, but in reflecting upon an actual scenario in a church my family went to when I was younger, government prosecution of a husband who was unfaithful would have prevented the couple from coming to the church in need of prayer, forgiveness, and spiritual healing. While this is a statement about my past, the more rationalistic argument is that the husband did not aggress against the body or property of his wife, and therefore the State doesn’t have a role in rendering justice. For the justice between the two is purely spiritual/intellectual and dependent of the wife’s decision to forgive or divorce. (Assuming that unfaithfulness is a good reason for divorce, which is a separate issue).

            As for theft, libertarian literature speaks much about restitution and prosecution and what that might look like.

            By the way, nice to meet you! Brandon tells me you are a fellow Clark fan and proponent of Austrian economics!

          • MikeD

            Honestly, to me, your position on adultery doesn’t seem controversial. Not knowing the wide swath of takes on that, though, I can’t say. Something about the State punishing adultery strikes me as off too, mainly for the anecdotal notions you expressed. Restoration and forgiveness are mostly needed. Yet these are not always at odds with punishment for the state and maybe that’s where the scriptures take us, but I’m not sure. I don’t have as much of a problem, in my gut, punishing, in your example, the other guy who slept with another man’s wife. Alas, feelings don’t count here.

            Ok, I’m off to read your take on Rom 13. I still think there may be room in the discussion for a violation of property rights, for “He who loves his wife loves himself,” and this truth is rooted in a pre-Fall economy. Man! So much work to be done.

            Nice to meet you too. I’ve enjoyed your drawing out of Scripturalist convictions.

          • MikeD

            Just finished your article on Rom 13 Analyzed. Appreciate that. I would love to see you get into v.8-10 also. You said in that article, “The governing institution has zero authorization to be a terror to human activity unless that activity consists of physically aggressing another. None” Maybe this places me outside the camp, but I don’t agree with this. Broken contracts are not physical aggression, nor is fraud. What Romans says is that those ministers of God are to punish evildoers, as you rightly noted, but then it goes on to define some evils with the second table of the law, or “horizontal” natural law. Doesn’t it just seem to continue the thought of v.1-7? Perhaps not.

            I can anticipate “do not covet” as a counter example. No I don’t think they should punish all sin, like mere coveting or adultery of the heart, but I do think that, for example, theft out of proven covetousness is different from theft that isn’t born out of envy and a desire to tear somebody else down. But I digress. I guess I’m driven by a desire to take the whole category of the second table as the natural/moral law the gub’mint should concern itself with rather than truncating it to only those commands that deal with unwarranted acts of coercion. For instance, I do not agree with Walter Block that slander should be no concern of those that govern properly (of course, he thinks no governing is proper!) This would comport with Biblical minarchism as I see it.

          • reformedlibertarian

            I shouldn’t have said “physically” aggressing. Nice catch. But broken contracts and fraud are both considered a breach of property rights in libertarianism. If you are interested, I’ll give you some sources. But the fact is that breaking a contract and committing fraud are both punishable under the law for the libertarian and therefore you are still in the camp.

            I agree with Block on that issue, but you have to be careful with Block generally. He’s a little lazy with his terminology sometimes.