Tuesday, September 4, 2012

Natural Law and the Moral Instinct

"If you will follow my advice, there still may be hopes of your reformation. Apply yourself, without delay, to the study of the law of nature. I would recommend to your perusal, Grotius, Puffendorf, Locke, Montesquieu, and Burlemaqui. I might mention other excellent writers on this subject; but if you attend diligently to these, you will not require any others."--Alexander Hamilton, The Farmer Refuted [1774]

Jean-Jacques Burlamaqui [1747]:
“Moral instinct I call that natural bent or inclination which prompts us to approve of certain things as good and commendable, and to condemn others as bad and blameable, independent of reflexion. Or if any one has a mind to distinguish this instinct by the name of moral sense, as Mr. Hutchinson has done, I shall then say, that it is a faculty of the mind, which instantly discerns, in certain cases, moral good and evil, by a kind of sensation and taste, independent of reason and reflexion.

Examples.II. Thus at the sight of a man in misery or pain, we feel immediately a sense of compassion, which prompts us to relieve him. The first emotion that strikes us, after receiving a benefit, is to acknowledge the favour, and to thank our benefactor. The first disposition of one man towards another, abstracting from any particular reason he may have of hatred or fear, is a sense of benevolence, as towards his fellow-creature, with whom he finds himself connected by a conformity of nature and wants. We likewise observe, that without any great thought or reasoning, a child, or untutored peasant, is sensible that ingratitude is a vice, and exclaims against perfidy, as a black and unjust action, which highly shocks him, and is absolutely repugnant to his nature. On the contrary, to keep one’s word, to be grateful for a benefit, to pay every body their due, to honour our parents, to comfort those who are in distress or misery, are all so many actions which we cannot but approve and esteem as just, good, honest, beneficent, and useful to mankind. Hence the mind is pleased to see or hear such acts of equity, sincerity, humanity, and beneficence; the heart is touched and moved; and reading them in history we are seized with admiration, and extol the happiness of the age, nation, or family, distinguished by such noble examples. As for criminal instances, we cannot see or hear them mentioned, without contempt or indignation.”

This is what separates man from the mere beasts.  Man knows what is good and what is not-good when he sees it. “Natural law” is rooted in man’s nature, not the Bible, nor in arbitrary positive law.

More here.


jimmiraybob said...

Almost immediately I was reminded of the opening line of Adam Smith's The Theory of Moral Sentiments:

“How selfish soever man may be supposed, there are evidently some principles in his nature, which interest him in the fortune of others, and render their happiness necessary to him, though he derives nothing from it except the pleasure of seeing it.”

Tom Van Dyke said...

Makes sense. "Hutchinson" in the Burlamaqui excerpt is I believe Francis Hutcheson, a seminal Scottish Common Sense Enlightenment figure who influenced Hume, Adam Smith, and Rev. John Witherspoon, the "teacher of presidents" at the College of New Jersey, now Princeton.

Jonathan Rowe said...

Great stuff. We need to do more in depth discussion of every single one of the "named names" in the Farmer Refuted.

jimmiraybob said...

One thing that I don’t fully understand about the natural law is who is the final arbiter? Who decides what is acceptable as natural and the law? Most of the early modern theorists speak in sweeping generalizations about man and man’s soul (of course this also applies to most if not all of philosophy and theology since ever), but it is readily apparent that there is no single blueprint. The following from Tom’s link seems to be very problematic. Again, whose understanding?

“VII. We must therefore set out with acknowledging as a fixt and uncontestable principle, that the human understanding is naturally right, and has within itself a strength sufficient to arrive at the knowledge of truth, and to distinguish it from error; especially in things wherein our respective duties are concerned, and which are requisite to form man for a virtuous, honourable, and quiet life; provided, however, he employs all the care and attention that lies in his power.

“True it is, that a bad education, vicious habits, and irregular passions, may offuscate the mind; and that neglect, levity, and prejudices, precipitate men frequently into the grossest errors in point of religion and morals. But this proves only that men may make a bad use of their reason, and not that the natural rectitude of the faculties is subverted. What we have still to say, concerning this point, will help to set it in a clearer light.”

It seems in this last sentence that Burlamaqui anticipates my question but I, unfortunately, don’t have the time to chase down any possible responses he may give. At least at this time. Any easy answers?

As an illustration, I’m currently reading a new work on Ayn Rand and I find her and the moral and ethical portions of her Objectivism to be appalling. I, like Rand, am not a theist but my moral sense is antithetical to hers which strips away the sympathetic or empathetic sense that I believe is at the heart of Adam Smith’s take on he moral sentiment (and I’m guessing Burlamaqui). What is the natural law argument that she is wrong or right or that I am wrong or right? Whose mind is obfuscated?

Maybe part of Burlamaqui’s answer is illustrated in the introduction by Petter Korkman:

“The best political regime, Burlamaqui argues, is the one that most safely helps men achieve the happiness they naturally aspire to, and such a regime is government by the ablest, the elite. Burlamaqui’s defense of aristo-democracy supports the authority of Geneva’s small council, which explains why Rousseau, who defended the rights of the general council and upheld the political rights of the bourgeoisie, adopted such a hostile attitude to Burlamaqui’s writings and even to natural law theory in general.”

This (I’m from the elite and I’m here to help you), I’m going to guess, would sound odd and grating to the modern American anti-intellectual and anti-elite reader and seems to run counter to the anti-aristocratic rhetoric of the founding. (However, of course, the successful revolution and America’s framing, as a nation, was largely powered by the best educated elite at the top of government.)

What happens to natural law if a society decides not to be run by the best and the brightest?

Jonathan Rowe said...


That's a great question. When the Farmer Refuted was written, there was no Constitution and arguably, the highest source of "positive law" was Parliament or the way in which the crown & Parliament split power according to English law. Hence without natural law what the colonies DID was an illegal act.

The Continental Congress took it upon themselves to be the arbiters of natural law when they chose to rebel.

Today the issue would be whether SCOTUS has the power to invoke the natural law of the DOI in its judicial review power. This is the major difference between Justices Scalia & Thomas: BOTH believe in natural law as a matter of personal conviction. Justice Thomas thinks it's justiciable and Scalia does not.

Tom Van Dyke said...

Natural law doesn't require an aristo-democracy. That's just Burlamaqui's opinion.

In fact, an argument in support of constitutions and the rule of law is that philosopher-kings don't come along often enough for us to depend on having them to rule. Most of the time we get evil clowns.

Therefore we're better off taking our chances on a body of law developed over the centuries by the handful of good men who pop up from time to time.

[I got this from Algernon Sidney somewheres. The Platonic ideal of the philosopher-king just doesn't hold up in reality because there just aren't enough of them.]

Tom Van Dyke said...

Yes, Jon, I stumbled across the Burlamaqui researching else and had to grab some and park it here at AC because I remembered Alexander Hamilton citing him!

Next up Puffendorf. Also Vattel, whom I read Franklin kept a copy of closeby while they were framing the Constitution!