Positive Liberty

The real problem that natural law theory always presented to the liberal mind (and I use “liberal” in its older sense) was that locating the source of a moral or political rule in an unchanging nature—a source out of the reach of human manipulation—too easily gave a rationalistic disguise to existing inequalities or iniquities; it made it too easy to justify unfairness as “simply the way of things.”

We find the different sides of this issue best expressed in the words of Alexander Pope and Voltaire. Pope declared in the Essay on Man that

All nature is but art, unknown to thee;
All chance, direction, which thou canst not see;
All discord, harmony not understood;
All partial evil, universal good:
And, spite of pride in erring reason’s spite,
One truth is clear, whatever is, is right.

The liberal laughed darkly at this excuse for slavery and exploitation, and Voltaire then parodied it in Candide, in which the devotee of Pope’s notions, Pangloss, never ceases to rationalize the brutal injustices around him, no matter how severe. Fast forward a few centuries and we find Oliver Wendell Holmes denouncing natural law theory on the grounds that it is only an attempt to put the stamp of immortality and Ultimate Right on some preconceived, emotionalistic preference for some state of affairs over another: nothing more than “a demand for the superlative.” Oliver Wendell Holmes, Natural Law, 32 Harv. L. Rev 40 (1918), reprinted in The Essential Holmes 180 (R. Posner ed. 1992). “Deep-seated preferences” such as a preference for freedom over slavery, for equality instead of arbitrariness, for stability over chaos, for reasoning over force, “cannot be argued about—you cannot argue a man into liking a glass of beer—and therefore, when differences are sufficiently far reaching, we try to kill the other man rather than let him have his way,” Holmes continues. Id. at 181. There is absolutely nothing deeper on which ethical or political rules rest, he says; every attempt to fix a preference in a deeper foundation of pre-political rightness is just so much fantasy or fraud. There are no natural categories (for want of a better word; no classes, no rules, no inherent differences), the Progressive intellectuals proclaimed. The more extreme exponents of this view—Dewey, for example, and Jane Addams—proclaimed with a firm foundation in Hegel, that even the differences between “us” and “them,” between “good” and “bad,” between “right” and “wrong” were just prejudices. “The antagonism of institutions is always unreal,” Addams wrote to Dewey. Louis Menand, The Metaphysical Club 313 (2001) (Dewey responded to this note by saying “I can see that I have always been interpreting the dialectic wrong end up,” id., a line peculiarly reminiscent of Marx’s comment on Hegel.). The differences between people and things was all merely cultural in origin. This explains what to many libertarians seems a paradox: that Marxism and similar ideologies have called themselves ideologies of freedom. They do so because in this view, there is no inherent limit on what collective action can accomplish.

Obviously there is a lot to commend this view. Telling oppressed groups that they are oppressed because that is The Will of God has long been a trick of masters and kings, and we have found through experience that many of the limitations that people once thought natural—that women could not naturally function in the business world, for example—dissolve when they are given the chance to prove themselves. But the problem is that there are some things that really are natural—some “categories” (as I’ve called them) that are real, and do pre-exist society and the state. The reductio ad absurdum of the modern rejection of natural categories was probably the work of Trofim Lysenko, who argued that there were no biological differences between organisms, such as wheat, that could not be overcome by suitably changing the environment. Of course, the result of his experiments was catastrophic, as were the results of attempts by other interventionists to make changes in some things that we have good reason to call natural about human beings, including private property. Despite the “experiments” (if organized mass slaughter can be called that) of the twentieth century, there has never been a society without property. (As some libertarian put it a while back, we’ve broken plenty of eggs; yet intellectuals have yet to make a single omelet.) And there are other characteristics of human behavior that are consistent wherever we find human beings, and regardless of their social differences. Laughter, for example, appears to be universal. Experiments in communistic kibbutzim in Israel failed to eradicate what appear to be inherent differences between the way males and females think about body modesty, and about babies. There appears to be no culture in which women generally propose marriage to men.

If there are certain natural propensities of human beings, of course, then there are not only limits on what politics can accomplish, but, more importantly, there are moral rules that are “natural” for man—that is, there are certain basic rules of conduct which are operative necessities for man’s survival and flourishing. Richard Pipes, in his book Property And Freedom (1999), makes a very good argument that among these rules is the basic rule of private property; the rule that taking away something from someone who has earned it is wrong—wrong not in the sense of moral convention, but in the sense that Holmes, Dewey, Addams, and others, so roundly rejected: wrong in a natural sense. Wrong in a universal sense. Pipes concludes

It is imperative to abandon the idea, rooted in the Enlightenment [by which he means Voltaire et al.] and indispensable to the ideal of egalitarianism, that human beings are infinitely malleable creatures who, subjected to proper dressage by education, indoctrination, and legislation, are capable of attaining moral perfection. Anthropology and history alike indicate the persistence of a hard core of human nature immune to external pressure. The legislative frenzy of modern times which derives from the fallacious belief that human nature can be fundamentally and permanently altered runs into the teeth of this knowledge, especially after the collapse of soviet communism, the most determined effort ever undertaken to condition people’s thoughts and behavior…. Common sense dictates that certain aspects of human behavior are immune to change, because they occur everywhere and at all times….. This means that there are limits to what legislation and instruction, even if accompanied by coercion, are capable of achieving.

Id. at 285.

This is the reason why many conservatives and libertarians, find themselves drawn to the conclusions of evolutionary psychology, and this, I think, is the answer to Kuznicki’s penguins post. The reason that people are interested in the sexual behavior of penguins is because they think that by examining their behavior we can extrapolate basic natural rules by which we can judge human behaviors. I agree with Kuznicki, however, that such an attempt is misguided in this context, but the purpose of it is comprehensible.

The reason that it’s misguided here is because we cannot judge the rightness of human sexuality on biological data alone. Humans have a unique faculty of consciousness that makes their behaviors quite different. The argument—very common from conservatives—that the natural purpose of sex is procreation, partakes of the “nudist fallacy,” because human beings use their natural faculties in very different ways, ways that are none the less natural-for-man. It is natural, obviously, for an animal to eat to survive—natural in the biological sense. But it is natural-for-man to eat for celebration, or for worship, as in communion. There is nothing unnatural, in any relevant moral sense, for man to do this. Likewise, it is natural for man to have sex, not for procreation, but to express love (or for less noble reasons), and it would be naive to call this unnatural, I think. When we talk about natural moral rules, the word “nature” is being used in a special sense, to refer to man’s nature as a rational being—that is, to refer to the rules of conduct which naturally result in man’s survival and flourishing. Those rules are dictated to him by the nature of the thing—just as the law of inflation is dictated to us by the nature of money—and cannot be evaded, only ignored at a serious cost. This is the point I think Auden was trying to make in his great poem “The Hidden Law.”

And that’s a final, very important point. Natural law enforces itself. If we do things which are naturally wrong for our survival and flourishing, nature will punish us for it. Drinking to excess is unnatural in the relevant sense—it violates the natural moral law, and is immoral. And the hangover is the logical consequence of that. As Nathaniel Branden once put it, every immoral value has a hangover. If, as many conservatives claim, homosexuality is immoral for human beings, and unnatural, then homosexuals will suffer the consequences of that themselves. There is no need for politics to enforce that law. The only time political intervention is necessary is when the violation of a natural law (or any act) interferes with an unconsenting third party. If rape is unnatural in the moral sense (which it is certainly not in the biological sense!; after all, it accomplishes procreation!) the rapist will suffer in some psychological way; he will not accomplish eudaimonia or true happiness. But the victim of the rape has the right to political protection, not so as to enforce the consequences of a violation of natural law on her rapist, but to protect her from being deprived of her right to consent. Is the point clear? To put it in religious terms, there’s a difference between sins and crimes. God will punish the sins; the state must punish only the crimes.