Saturday, February 28, 2015

The Complicated Story of the Natural Law of the American Founding

That's what I get out of this post by Timothy Gordon. A taste:
America’s Declaration and, to a slightly lesser extent, its Constitution were structured almost exclusively upon the ideas of “Whig theory” from England in the prior century. Whig theory’s mature form, John Locke’s 1689 Second Treatise, was in turn fertilized by the coalescence of two 16th Century movements: the Enlightenment and the Protestant Reformation. Sometimes de dicto and other times de facto, the Reformation (from within Christendom) and the Enlightenment (from without) repudiated all the heftiest parts of Natural Law theory: nature as a forum for freedom, morality, intelligibility, and teleology. Locke well knew that his own empiricist epistemology (and in an opposite/equal way, the Reformation epistemology) laid low these four important attributes formerly ascribed to nature.  Simply, if nature is unintelligible, it can have no discernible law.

And this acknowledgement forced Locke to bifurcate bizarrely. He wanted Natural Law’s conclusion—objective and discernable rights—but none of its premises. So he distinguished. On the one hand, what Michael P. Zuckert has called Locke’s “transcendent natural law,” was not really Natural Law at all, because like all of “Prot-Enlight” Whig theory it denied nature’s freedom, morality, intelligibility, and teleology. It cast the convincing, yet misleading, impression of a nature as simultaneously inscrutable yet still a source of rights. Accordingly, Locke affirmed it. On the other hand, “immanent natural law,” was basically the Aristotelian idea writ large (i.e. true Natural Law theory), which Locke more or less had to reject as a committed Reformer and empiricist. By way of an egregious misnomer, a “shell game” of sorts, Locke became known as history’s ultimate Natural Law theorist. That is to say, he became Natural Law’s godfather only by a heinous convolution of ideas: cherrypicking a conclusion with none of its premises.

In that way, and that way only, could he simultaneously a) plagiarize from the Scholastics of the Catholic Church in order to b) describe, in 1689, the prior year’s Glorious Revolution against Catholicism in England! Whig Theory is intellectual history’s greatest irony: imagine getting into a fight with someone because you insist this person should not carry a knife. In the ensuing struggle, you wrest the knife from him and use it on him…all to force him to acknowledge that he should not use the knife. Of course you prevail, because the knife is indeed effective. This was more or less the Whig stance on Natural Law (i.e. the “knife”) in England in 1689. And the American Founders and Framers imported all this ambivalence into their “American Whiggism” a century later. Thus, 18th Century American Natural Law was no less tortured than 17th Century English Natural Law. Both were fueled exclusively by the Prot-Enlight amalgam of Whiggism, which rebuked but secretly incorporated Scholastic political theory.

But the whole hodgepodge, I acknowledge, also represents history’s best political experiment to date, which, irrespective of its etiological cover-up, got things 90% right or better at the beginning. At the beginning. On account of the idea’s low fidelity, however, it devolved rather quickly, in under two centuries.
Anyone want to quarrel with his understanding?


Jonathan Rowe said...

I do have one quarrel. Some of the East Coast Straussians whose thoughts parallel his (on Locke being too "modern") would note the Constitution is actually not much of a Lockean document as compared to the Declaration, which is.

Tom Van Dyke said...

See also Peter Lawler's "They Built Better Than They Knew" thesis, that they ended up with an "accidental Thomism" anyway, i.e., classical Aristotle/Aquinas natural law.

As I’ve said many times before, we can see that our Declaration was a statesmanlike legislative compromise between Lockeans and Calvinists, and the result was a kind of accidental Thomism. Something similar can be said about the actual language of the religion clauses of the First Amendment, which point in the direction, contrary to Madison’s theoretical anti-ecclesiasticism, of freedom of the church.

"In a superb chapter on John Courtney Murray, Lawler defends the American founders' "implicitly Thomistic" liberalism (from which we've strayed), which, despite its debt to Locke, retained a conception of rights firmly grounded in natural law. Following Murray, he credits a Calvinist influence with tempering the founders' own liberal impulses, allowing them to build "better than they knew." He hopes that perhaps our politics may again experience a similarly fruitful tension between today's evangelicals and secularists."