Natural Law and the Will of Men

To speak of nature is inevitably to speak of the natural law, perhaps the west’s greatest contribution to political thought. Yet, we only discussed it in passing during the conference. I regret that omission, though of course we only had two and one half days.

In the Preface to Common Truths: New Perspectives on Natural Law, Edward McLean writes,

Each chapter [of this book] is predicated on the desirability of replacing the dominant school of positive law and its majoritarian legitimating principle with a  commitment to natural law doctrines, which alone are capable of providing the informing principles necessary for a vital, free, and virtuous society.

As is so often the case, even in my own writing, this sentence could be clearer if it contained fewer prepositions and nominalizations. But what it says carries the weight of an age, so we must read it closely.

Modern legal theory roots its legitimacy in majority rule, which effects its rule through something called positive law. We should, McLean suggests, replace positive law with natural law. Only then can we have a “vital, free, and virtuous society.” In other words, modern lawyers, judges, politicians, and rulers look to positive law to maintain order and their own authority, but if we are going to be free and virtuous we need to look to natural law.

Natural law can provide the principles we need to build a society that matters, that moves and lives, that is free, and that is virtuous. There is, McLean suggests, no other source for those principles.

Perhaps you have read the first book of Plato’s Republic. If so, you might remember Thrasymachus, the Sophist who wanted to recruit Glaucon and Adeimantus for his school and to corrupt them into sophistry. When he and Plato argued about the meaning of justice, he posited that it was “the interest of the stronger.” His point was that laws were made by people in power and they made the laws so they could hold onto their power or whatever else was in their interest.

This argument continues today. The sophistic argument now calls itself “Legal Positivism.” There is no “natural law,” they insist. There is simply the law that people make. We turn to the majority for law in our society because the majority has the power to make laws.

Socrates and any other lover of mankind and therefore of freedom finds this notion horrifying. If the positive law (i.e. laws that have been posited) is subordinate to no higher law, then it is only a matter of time before the rulers become tyrants and the people are enslaved.

Furthermore, while human consciousness is always inclined toward freedom, recognizing that freedom is the condition of its realization, the human appetites are always inclined toward immediate satisfaction, which is the sure-footed path to slavery.

Liberty, therefore, arises from natural law and nowhere else.

That being the case, I hereby seek to rectify the failure to adequately present the natural law with a list of books and materials that you can read or study to become reacquainted with what it means to be a free person.

  • Common Truths: New Perspectives on Natural Law, edited by Edward B. McLean and including essays by Ralph McInerny, J. Rufus Fears, Alasdair MacIntyre, Russell Hittinger and others. Highly recommended, published by ISI books.
  • Natural Law. Heinrich Rommen. Maybe the best book on the historical development of the idea of natural law. I think Liberty Fund publishes this book. Somewhere close to essential.
  • The First Grace: Rediscovering the Natural Law in a Post-Christian World, by Russell Hittinger. ISI books. Stimulating and insightful.
  • Natural Law and Human Nature, a lecture series by Father Joseph Poterski of Fordham University from The Teaching Company.
  • Sophocles: Antigone. You can’t be an educated person without reflecting on the matter of this play.
  • Cicero: The Laws.
  • A very fine article from Villanova posted on their website  (great first read – nice and brief).

In summary, let me urge you to make a recovery of freedom possible again by reminding yourself what “the law of nature,” upon which our fathers built this country, is by figuring out how to live it yourself and to see it restored in your communities.

Because remember, the only alternative to the law of nature is the will of men.

And they aren’t known for setting people free.

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