Positive Liberty

Commenting on Rowe’s superb post below, Ruidh writes,

Because of all of the nonsense paraded forth as an example of “natural law”, I have a great deal of scepticism of its ultimate value. It seems to be an argument from prejudice and unthought as all one’s unexamined and unsupported assumptions become axioms in a logical house of cards. I’m certain that, with little effort, I could construct a natural law argument which concludes that men should all wear white shirts and ties when out in public. The key is to make your weakest argements irrefutable “observations from nature”.

There are ways to reason about ethics without resorting to much of the nonsense that passes under the Natural Law gateway.

He does have a point.

Consider, for instance, the Natural Law Party:

The Natural Law Party is a trans-national political party with national branches in over 80 countries. The party is the political arm of Maharishi Mahesh Yogi’s Transcendental Meditation movement.

The party bases its platform on the Transcendental Meditation view that natural law is the supreme organizing principle that governs the universe. All the problems of humanity are caused by people acting against the natural law. The Natural Law Party claims that it can realign humanity with this organizing principle through the practice of Transcendental Meditation, and all problems would disappear.

Even better,

[Stage magician Doug Henning] abandoned his performance art in favour of studying transcendental meditation which, he claimed, enabled him to levitate. He also ran in the 1993 federal election in Canada as a candidate for the Natural Law Party of Canada, which proposed yogic flying as a solution to the problems of the nation…

It’s only natural, you see.

And yet not all of natural law is quite so ridiculous as the above. There seem to be two definitions of “natural” at work here, and I’d like to untangle them if I could.

The first definition may be stated as follows: “Natural” is that which appeals to one’s unexamined sense of right and wrong. It is moralism as a reflex, not as a process of reasoning. Thus it is simply and unproblematically unnatural to be homosexual; it is unnatural to use birth control; it is unnatural to use anaesthetics; it is unnatural to eat with a fork. Because these things have all shocked the conscience at one time or another, they are to be considered immoral.

Meanwhile, it is natural to wear clothes, to “truck, barter, and exchange” and, if certain Medieval prejudices are to be credited, it is natural to speak the Hebrew language. It is natural to do that which we think is most natural, and the whole thing dissolves into a vast and messy tautology.

It is clear, I think, that this definition gives us virtually nothing about which we can argue. Without further embellishment — such as providing reasons for one’s reflexive moral feelings — this first idea of natural law is an intellectual dead end: To me, religious skepticism is natural; to the Natural Law Party, yogic flying is natural, and between us there is no room for debate.

But there is another way of talking about nature, and I think that this one is more productive. In this second definition, a “natural” explanation, be it in science, or ethics, or law, is an argument about causality or consequence that rejects supernatural interventions, divine revelation, divine command, internal inconsistencies, radical subjectivism, and radical nihilism.

Everything else — faute de mieux — is natural, or at any rate, it aims at giving a natural account of the phenomenon.

Now, I submit that this is precisely what John Adams meant when he wrote that the U.S. Constitution was the first that rejected “artifice, imposture, hypocrisy, and superstition,” and that in doing so, it represented a natural law. The U.S. Constitution made a fully natural-law argument because it avoided those things that are avowedly supernatural — and because it did its best to conform to natural reason as the founders saw it.

In this second sense of the word “natural,” one may easily argue that the U.S. Constitution was indeed the first “natural” form of government ever devised. The Constitution effectively conceded that it did not come from God, or from the Beyond, or from a sacred, immutable tradition. On the contrary, “the people” had enacted it, that these same people or their descendants could modify or abolish it. By its own admission, the Constitution’s continued vigor rested not with an outside Authority, but in the hands of the people. People being natural creatures, a more natural explanation could scarcely be found.

Yet here the argument begins. Do you disagree with some or all of the provisions of the Constitution, or with the “self-evident” truths found in the Declaration of Independence? Then the way lies open for you to debate them, to offer alternatives, and even to refute them. Natural law isn’t a narrow set of prescriptions, but a rubric for understanding how to conduct politics that declares only a few things off-limits. Most others are subject to change, and we have already done plenty of this in our history, with each amendment to the original Constitution and arguably with each new interpretation as well.

All of our substantive debates aside, it is worth noting that only a natural-law system can make such changes within a consistent logical framework; only a natural system — or rather, only an agreement that natural solely explanations will be entertained — allows for a gradual change without confounding the principles on which the system itself was built.

A polity that declares itself eternal and ordained of God looks silly indeed when it modifies its own laws, ousts its rulers, or otherwise changes direction. This is not the case of the United States, which may forever be mistaken, but which is always trying to improve. Thus, the transition of power from John Adams to Thomas Jefferson — or even the attempted secession that became the U.S. Civil War — did not destroy the underlying rationale of the government. A natural system has the advantage that it can explain its own changes, and even its own failures.

Meanwhile, a divine-right theory has a difficult time explaining when God seems to change his mind, as arguably happened when King Charles I — by grace of God — was executed, when a fractious Parliament ruled alone, again by grace of God, or when Oliver Cromwell ultimately declared himself sovereign, once more by the grace of God. And even those who could wrap their minds around these difficult but divinely ordained changes were confounded when Oliver’s successor, his son Richard Cromwell, Lord Protector by the grace of God, at last gave way to a representative of the other divinely appointed line, King Charles II, who also ruled by the grace of God.

In just twelve short years, all these non-natural explanations doubtless wore quite thin. Arguably, the difficult intellectual leaps from one immutable and divinely ordained system to another, to another, in the space of a mere few years, predisposed the English nation toward the natural law arguments that Locke would later espouse. And the rest, as they say, is history.

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