The Ethics Of Liberty - Natural Law versus Positive Law

 


The Ethics Of Liberty by Murray Rothbard

As the title suggests the whole chapter is about these two types of law.  There are several distinctions between natural law and positive law, even though there can be some overlap.  To start, positive law is any law that has been written down and enacted by a government.  It is man made.  Natural law is not man made.  It is not always written down or enacted by government.  It exists even when there is no government in existence as it is a part of God's created order.

Positive laws can be just or unjust because they have no basis other than the whims of rulers.  Natural law is never unjust because it is based on human nature, logic, and objective, absolute values.  Therefore, natural law is able to critique positive laws and those rulers who enact them.

                "the very existence of natural law ... is a potentially powerful threat to the 
                status quo and a standing reproach to the reign of ... the State apparatus."

Digging deeper, a society can set up its legal system on one of only three foundations:  tribal traditional custom, State will, or natural law.  The problem with tribal custom is that it is justified simply by the existence of that custom in the past.  People are then directed towards "slavish conformity."  The problem with legal systems based on State will is that they are arbitrary.  They are random, irrational, and based on impulse.

Also, State will means the desires or interests of a small group of people are forced onto everyone in society.  There is no consideration for the fact that different people have different needs.  The more diversity you have in society the more diverse the needs of the people in it.  These diverse needs simply aren't considered when laws are based on State will.  They aren't considered in traditional custom systems either.  The main difference being which small group of people get to decide, those in power today or those in power years ago and long dead.  Laws and ordinances concerning the prevention of covid infections are obvious examples of how this can lead to bad outcomes, not just in terms of political freedom but also in health and economics.

In contrast, natural law is based on man's reason and God's revealed order.  I see no reason why it shouldn't be considered clearly superior.

               "Here we may simply affirm that the latter method [natural law] is at once the
                most appropriate for man at his most nobly and fully human, and the most
                potentially "revolutionary" vis-a-vis any given status quo."

Today's politicians don't even consider natural law, which means our laws are based on a mixture of the other two sources.  This is also true for many libertarians, some of whom advocate for traditional custom in the form of common law.  It is true common law can be tested by time and its demonstrated historical performance.  This is what those libertarians appeal to.  However, the point is that good common law agrees with natural law.

Even more surprising, a libertarian as prominent as Henry Hazlitt supported laws based on unlimited State will if they won a democratic majority.  Theoretically that allows everyone in society to have a say.  It does transfer the decision to a larger group of people.  However, that would still produce arbitrary law that does not include the legitimate interests of political minorities which can equate to 50% of a population minus 1.

At its inception with Plato and Aristotle, the concept of natural law theory still allowed for legal systems to be built by State will.  Even though they and their followers taught that human nature existed and a society's laws should conform with it, they also saw the State as "the supreme social moral agent."

                "in religion, morality, and politics there was only one legislator and one authority"

Later, the Stoics corrected this mistake.  Even later,  Grotius in the 17th century and Lord Acton in 19th century carried the idea forward.  Natural law was now independent from the State.

                "from that time it became possible to make politics a matter of principle and
                of conscience"

This can be a dangerous view point for those in power enacting custom or positive law systems.

                "all persons who had learned that political science is an affair of conscience
                rather than of might and expediency, must regard their adversaries as men
                without principle."

Therefore, to Lord Acton, natural law encourages individuals to call for radical action against the modern state.  The classical liberal's or libertarian's weapons in this campaign are reason and objective moral values.  While custom and positive law should be opposed, there is found in this fervor for change the same immoral actions seen in the leftist revolutions of the socialist, fascist, and the woke Critical Theorist or SJW.

                "the past was allowed no authority except as it happened to conform to morality.
                To take seriously this Liberal theory of history, to give precedence to "what
                ought to be" over "what is" was, he admitted, virtually to install a "revolution
                in permanence."

This is where and why I have disagreed with Rothbard on the subject.  If reason is the only guide for determining morals, history shows the disastrous consequences in the French and Bolshevik revolutions.  Both of those movements were based on unconstrained human reason and science.  They followed the play book described in this chapter to a tee .  No.  Despite Rothbard's protestations there must be a conservative element in order to discover a benevolent natural law theory.  By conservative I don't mean simply "universal, fixed, and immutable, and hence... "absolute"."  The conservative element I am appealing to is historically orthodox Christianity.  Reforming our legal system with a combination of general and special revelation is the correct mixture for increasing individual freedom while avoiding history's pitfalls.


Comments

  1. AnonymousMay 23, 2022 at 5:34 PM

    And who decides which God(s)‘s law(s) are the “real” God’s law(s) v

    ReplyDelete
  2. RMBMay 23, 2022 at 7:01 PM

    This whole discussion is in the context of Western culture. The ideas come from Christian theology and should remain there.

    ReplyDelete
  3. A Texas LibertarianMarch 2, 2023 at 2:35 PM

    "While custom and positive law should be opposed"

    I guess I am not so opposed to custom and positive law, but surely it depends on the particular custom and jurisdiction. I think positive law, so long as it is guided explicitly by natural law or otherwise Christian tenets, is a good thing in the context of private law associations or private sovereignties. And custom has a way of defining things that reason alone cannot, such as: what are the boundaries of aggression? what is the particular punishment for each crime? what is the age of adulthood? and many others.

    ReplyDelete
    Replies
    1. RMBMarch 2, 2023 at 3:23 PM

      Custom and positive law are defined very specifically by Rothbard in this chapter. As defined I would agree with him. But you raise good points about law in general. I would say I am more skeptical of positive law than custom. Custom can show what has worked well for a people over time. It has been proven beneficial so to speak. But the problem is if custom has calcified. Then no new learnings or experiences can be addressed. Think of Jesus accusing Pharisees violating God's will by following Jewish traditions. Positive law is much more dangerous because it can be enacted at any time for any reason as long as it goes through a process. Think of every unjust law in the US today that never the less is legal. What makes it positive law is that it isn't based on natural law but the arbitrary will of rulers. Still, if those in power enact laws that conform to natural law that itself could be an acceptable positive law.

      Delete
    2. A Texas LibertarianMarch 2, 2023 at 8:21 PM

      Custom can certainly err, and there should be a standard above man to hold any custom or positive law to. Thankfully God has provided that, both in the form of Divine revelation and disciplined reason. But I think the essentially correct form of establishing law would be a combination of all three of Rothbard's ways of establishing positive law.

      A. Laws without the backing of tradition or custom will not last or simply will not be adopted by a population, except perhaps by overwhelming force. For those of us who are Christian, we see our Christian heritage as important and worthy of influencing the positive laws we live under. And custom has a way of solidifying things in the real world that no amount of arm-chair theorizing can.
      B. Every prospective sovereign in a private law society will generate a system of laws based on their own ideas of a good and just society. Some of this will be arbitrary, but the market for order will govern which association/company wins members/customers and who loses them. For instance, what is the punishment for a man's rape of a woman? One law provider says death, another says the man is raped in return, and another says a period of confinement and large sums of restitution. Which is correct?
      C. Disciplined reason is capable of arriving at most of the correct answers regarding a just political order (Mises, Hoppe, Rothbard, et al), but more often than not (as you mentioned) reason is undisciplined and extremely dangerous (Hitler, Lenin, Mao, Pot, Castro, et al), much more so than entrenched, wrongheaded customs. But reason can be an effective check on tyranny, and it can be used to steer custom and ad hoc legal traditions toward the universal and immutable natural law.

      Any system or covenant of laws provided by private law associations in an order of liberty would be considered positive law, and so I don't think the idea of positive law should be disparaged per se as it so often is by many prominent libertarian thinkers.

      Delete

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