by Heinrich A. Rommen,
translated by Thomas R. Hanley, Liberty Fund,
Indianapolis, 1998
ΑΝΤΙΓΟΝΗ
οὐ γάρ τί μοι Ζεὺς ἦν ὁ κηρύξας τάδε,
οὐδ᾽ ἡ ξύνοικος τῶν κάτω θεῶν Δίκη
τοιούσδ᾽ ἐ ν ἀνθρώποισιν ὥρισεν νόμους·
οὐδὲ σθένειν τοσοῦτον ᾠόμην τὰ σὰ
κηρύγμαθ᾽, ὥστ᾽ ἄγραπτα κἀσφαλῆ θεῶν
νόμιμα δύνασθαι θνητὸν ὄνθ᾽ ὑπερδραμεῖν.
οὐ γάρ τι νῦν γε καχθές, ἀλλ᾽ ἀεί ποτε
ζῇ ταῦτα, κοὐδεὶς οἶδεν ἐξ ὅτου ᾽φάνη.Antigone
For me it was not Zeus who made that order.
Nor did that Justice who lives with the gods below
mark out such laws to hold among mankind.
Nor did I think your orders were so strong
that you, a mortal man, could overturn
the gods' unwritten and unfailing laws.
Not now, nor yesterday's, they always live,
and no one knows their origin in time.Sophocles, Antigone, Lines 450-457, Antigone speaking to King Creon of Thebes, who will execute her for performing rites for her dead, rebel brother; translated by Elizabeth Wyckoff, Sophocles I, edited by David Grene and Richmond Lattimore, The Modern Library, 1942, 1954, p.202; Greek text, Sophocles, Oedipus the King, Oedipus at Colonus, Antigone, translated by F. Storr, Loeb Classical Library, Harvard University Press, 1912, 1981, p.348; color added; translation modified.
An unjust law is no law at all... To put it in the terms of Saint Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law.
Martin Luther King, Jr., "Letter from a Birmingham Jail," 1963.
[Romans 2:14] For when gentiles [ἔθνη] who have not the law [τὰ μὴ νόμον ἔχοντα] do [ποιῶσιν] by nature [φύσει] what is of the law [τὰ τοῦ νόμου], even though they do not have the law, they are a law to themselves. [2:15] They show that the work of the law [τὸ ἔργον τοῦ νόμου -- Sanskrit
, karmadharmasya] is written [γραπτόν] in their hearts [ἐν ταῖς καρδίαις αὐτῶν].
The Liberty Fund is a foundation that publishes books, mostly classics, 
in inexpensive editions, that are important for the cause of freedom. Thus, the complete works of Adam Smith are available. This is a very valuable project, and even the paperback editions are very handsome productions, with the artistic use of the Fund's logo: the Sumerian cuneiform character for "liberty" at right (see discussion of the origin, pronunciation, and meaning of these signs).
The Fund therefore has published Heinrich Rommen's The Natural Law on the very sound principle that, historically and logically, natural law theories of law and justice are important for the cause of freedom. Rommen, an active lawyer who had to flee Nazi Germany in 1938, does present to us sympathetic political credentials. His book was originally published in Germany in 1936 as Die ewige Wiederkehr des Naturrrechts (The Continual Reappearance of Natural Law). After Rommen's move to the United States, this was translated and published in English as The Natural Law in 1947. This translation is then reprinted by the Fund.
Unfortunately, there are natural law theories and there are natural law theories, and the views of a conservative German Catholic are not necessarily going to be those of the supporter of a liberal society as we might prefer it. Rommen is a Thomist. This gives him impeckable Aristotelain credentials, and many people these days (e.g. Barry Smith) are under the impression (perhaps thanks to Ayn Rand) that what is good for Aristotle is good for freedom. This is not true, and we can very clearly see why from Rommen's treatment. Thus, although Rommen is a nice critic of Hobbes, Rousseau, judicial positivism, etc. (and also of mediaeval Nominalism), he has little more sympathy for John Locke, who is foundational for a modern understanding of natural law. Instead, Scholasticism gets all the credit, with the high point at, not surprisingly, St. Thomas Aquinas (pp. 39-51). An examination of the treatment of St. Thomas alone exposes the frightening implications of Rommen's approach.
Especially revealing is one passage:
Good is to be done: such is the supreme commandment of the natural moral law. The highest and basic norm of the natural law in the narrow sense, then, may be stated thus: Justice is to be done. Yet this principle is altogether general. It needs still to be determined to what extent the object striven for by means of a concrete action is a true good. ...Good is that which corresponds to the essential nature. The being of a thing reveals its purpose in the order of creation, and in its perfect fulfillment it is likewise the end or goal of its growth and development. The essential nature is thus the measure. What corresponds to it is good; what is contrary to it is bad. The measure of goodness, consequently, is the essential idea of a thing and the proportionateness thereto of actions and of other things. That is, "Good is to be done" means the same as "Realize your essential nature." Morever, since this essential nature issued from God's creative will and wisdom in both its existence and its quiddity, the principle continues: "You thereby realize the will of God, which is truly manifested to you in the knowledge of your essential nature." [p.43, boldface added]
The fallacy in this can be traced to the very first statement: "Good is to be done." As Aristotle, St. Thomas, and Rommen evidently mean it, this statement is absolutely false. All by itself, it embodies the fallacy of moralism, expanding moral judgment into non-moral matters, rendering the entire subsequent system moralistic. Thus, the phrase, "to be done" conceals important ambiguities.
First, the "commandment" can be a true Kantian imperative (the real moral law), or only a hortative (or weaker). The polynomic theory of value allows for ethical exhortations as well as strict commands. Even if it were an imperative, it could be a categorical or only a hypothetical. Thus, a "good hit," in a certain sense, is "good" only in relation to the purpose of contract killings ("hits"). Contract killings, however, are moral wrongs. What "goods" are to be done, therefore, depends on what goods we are talking about.
"Justice is to be done," although presented as equivalent to the initial statement, is a much different proposition. Justice is a moral good. Justice is therefore "to be done" in an imperative and categorical sense. But it has nothing to do with justice to "realize your essential nature." Essences as final causes (purposes) are part of a metaphysical theory of the good, not part of a moral theory of justice. "Good is that which corresponds to the essential nature." This simply erases the differences between imperatives and hortatives, categorical and hypotheticals (not to mention "is" and "ought"). The effect of this becomes contrary to justice, for it cashes out to an authoritarian society. Thus, Rommen says;
...it is precisely the object of positive law to render the citizen virtuous. It is not merely a question of maintaining order, or external peace; the law should rather act as a medium of popular education to transform those who live under common legal institutions into perfect citizens. [p. 49]
Nothing could contrast more starkly with the principles of freedom and liberal government. Rommen's statement can be simply and dramatically contrasted with the famous passage from Thomas Jefferson's First Inaugural Address in 1801:
...a wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.
For Jefferson, it is not the business of government to "render the citizen virtuous." Indeed, a government with such power, whether or not it was effective with the citizens, would certainly itself, like our present government, become drunk and vicious with power and fall into corruption and tyranny. As Jefferson also said, in a letter from Paris in 1787:
If once they ["our people"] become inattentive to the public affairs, you and I, and Congress and Assemblies, Judges and Governors, shall all become wolves.
The wolves that we truly now have legislate not our virtue but, as is now thoroughly examined by Public Choice economics, their own interest.
The Aristotelian theory requires that the "essence" of being human is an "entelechy" ("end within"), a purpose, indeed a commanding one, as well as an identity. As Rommen also says:
Man must (i.e. ought to) thus both will and achieve the perfecting or fulfillment of the potentialities of his being which God has put into his nature... [p. 41]
This theory of the "essence" of man positing a moral obligation is a characteristic of Aristotle's theory of universals, but it is in no way something that any person need accept. Such an "essence" is then both the same for everyone and knowable to those in public authority, who are then morally charged with legislating and enforcing the virtue of all citizens. Thus, an Aristotelian/Thomist theory of natural law logically implies an authoritarian, paternalistic government, in which the law engineers the virtue and the self-realization of all citizens. This is not surprising in a book by a conservative Catholic German lawyer, but it does not suit the purpose of American advocates of freedom like the Liberty Fund. Nor is it really suitable for Ayn Rand, who echoes the notion that the ideal of Man should be Man; but Rand rejects the existence of Aristotelain essences, freeing her theory into a more open-ended, Existentialist view of value (although then really vulnerable to Nietzschean nihilism).
Since legislators cannot be expected to know the good better than anyone else, and since different people value different things, i.e. have different goods, it is impossible, even logically impossible, that the self-realization of citizens could be legislated. A variety of goods, and a healthy sense of Socratic ignorance, motivates the legal structure of a liberal society, which is founded on individualism. Rommen finds individualism to be one of the evident evils of the age of Rationalism [p. 68]. From it derives the concept of the "state of nature" used by the likes of Hobbes, Locke, and Rousseau. Since the "state of nature" means the absence of government and the state, Rommen must reject it thoroughly. To Rommen, as to Aristotle, "Man is a political animal," which means that the "essence" of man implies political existence, and government. Any kind of social contract theory falsely asserts, as Rommen says of Locke:
The status civilis is thus not the objective result of man's social nature itself: it is not a realization, through man's moral actions, of the natural order in the universe. The state is the utilitarian product of individual self-interest, cloaked in the solemn and venerable language of the traditional philosophy of natural law. [p. 79]
So the "state of nature," individualism, contract theories, and Locke version of "natural law" are dangerous fictions, contrary to the "natural order in the universe," which is to have a state.
Not true. The "state of nature" is an important thought experiment, on the principle that, as individuals alone exist in space and time, the only legitimate purpose of government is to serve the interests of individuals, and on the principle that the proper moral law is to respect the innocent autonomy and dignity of individuals. The Aristotelian focus, however, if it is merely on the essence, will tend to fade out from the individual into a collective notion of human identity -- such as we see in the Hegelian state, which, after all, is very much an Aristotelian conception. This is the root, not of justice, but of modern totalitarianism. Like many conservatives and most leftists, Rommen is basically hostile to the entire modern conception of liberty, based on the modern conception of civil society, the sphere of private action and private purposes free of government action.
One value of the "state of nature" thought experiment is to differentiate the modern views of liberty from each other. Thus, although Hobbes is often credited with introducing the idea of civil society, he believed that the state of nature contained no natural right or wrong. These are entirely artifacts of the state. The creation of the state (the "Leviathan") accompanies a grant of freedom by the sovereign, at his discretion. This makes for a judicial positivism, as abhorent to Rommen as to anyone with a proper sense of justice, in which right and wrong, the just and the unjust, only exist in relation to the practice of an actual state and the will of legislators.
As is all too common in recent political thought, however, Rommen somewhat confuses Locke and Rousseau. The principal difference between the two, indeed, is that Rousseau prefers the state of nature, where there is freedom and beauty, to the existence of the state, which holds virtuous nature in chains. Rommen seems to think that Locke agrees with this:
Although Locke, in opposition to Hobbes and Spinoza, depicts the state of nature as idyllic, as a condition of peace, good will and mutual help, he contends that the state, or rather government, is in practice indispensable. [p. 78]
I do not believe that Locke "depicts" anything of the sort. All he thinks is that the state of nature already contains the same rights, duties, and justice as exist under the state. But the state exists because of the difficulty of enforcing justice in the state of nature, the danger of "Mens being Judges in their own Cases" [1], and, especially, the inability of disorganized societies to create and accumulate wealth. Thus, the natives of America, whom Rousseau and Romanticism (even, to an extent, Thomas Jefferson), saw as happy "noble savages," live in a poverty characterized by Locke in this way:
§41. There cannot be a clearer demonstration of any thing, than several Nations of the Americans are of this, who are rich in Land, and poor in all the Comforts of Life; whom nature having furnished as liberally as any other people, with the materials of Plenty, i.e. a fruitful Soil, apt to produce in abundance, what might serve for food, rayment, and delight; yet for want to improving it by labour, have not one hundreth part of the Conveniences we enjoy: And a King of a large and fruitful Territory there feeds, lodges, and is clad worse than a day Labourer in England. [2]
This striking judgment [3] clearly separates Locke from Rousseau's romanticization of nature and of "underdeveloped" societies. But this certainly cannot elevate the state above the level of utilitarian, prudential, or instrumental value. Its highest value, indeed, is as an instrument of justice; but, failing this, it loses its legitmacy. Thus, Locke says, in a passage whose phrases echo in the Declaration of Independence:
...yet the Legislative being only a Fiduciary Power to act for certain ends, there remains still in the People a Supream Power to remove or alter the Legislative, when they find the Legislative act contrary to the trust reposed in them. For all Power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the Power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security. And thus the Community pertpetually retains a Supream Power of saving themselves from the attempts and designs of any Body, even of their Legislators, whenever they shall be so foolish, or so wicked, as to lay and carry on designs against the Liberties and Properties of the Subject. [4]
The whole contractarian idea of government as a "Fiduciary Power," having only authority "given with trust" for certain ends, is alien to Rommen's sort of organic and natural view of the state -- a direct extension and expression of human nature and therefore valuable in its own right.
Thus, Rommen's book, although valuable as a historical document informing us of the foundation of natural law from an Aristotelian and Thomist perspective, is alien and hostile to modern liberal conceptions of freedom and government. Thomist natural law is not liberal; it is statist and authoritarian, as we might expect from an advocate who was a 13th century Roman Catholic Saint -- it was never seen as a threat, for instance, by the Popes -- and it is in the same tradition and direction of thought as the Hegelian foundations of totalitarianism. It is therefore a clear and present danger to liberty and justice. The error, however, from a Friesian point of view, is really simple enough: The moralism of the Aristotelian, essentialist view of human nature. This moralism has as a consequence the misconception of the state as a "teleocracy," i.e. an organization whose purpose is the creation of positive goods (the realization of the human essence). Since non-moral goods are actually different for different people, this is a blank check for oppression, corruption, and tyranny by, in a democracy, the majority and, in any government, by the politically connected. The proper modern, liberal conception is government as a "nomocracy," entrusted "to act for certain ends," as Locke says, those being, as Jefferson says, "to secure these Rights," i.e. the protection of person, property, and contract. Rommen's book does not make a positive contribution to these principles. It is no less than a reactionary attack upon them, from a conservative Catholic point of view.
The Tale of the Eloquent Peasant
"An Essay Concerning the True Original, Extent, and End of Civil Government," Two Treatises of Government, Cambridge University Press, 1960, 1988, §13, p. 276
ibid., pp. 296-297
Even now, many might be loathe to think that a "day Labourer" in 17th century England, well before the industrial revolution, or labor law, would be better clothed, fed, and housed than a native "King" in America. While Locke himself had not inspected the Indians, any more than Rousseau had, an interesting comment from experience is quoted by Thomas Sowell:
[Ethnic America, Basic Books, 1981, p. 18] Here we have the characterization of the "natural" life of native Americans as comparable to that of black slaves in chains, and the impression that things were worse in "unfortunate Ireland," where mediaeval levels of poverty were intensified by the loss of property and property rights by Irish Catholics. Locke would have no difficulty explaining poverty in a country where the protections of property, the principal raison d'être of the state, had been abolished. On the other hand, Locke did not believe in Catholic emancipation, since he regarded Catholics -- a common opinion at the time -- as adherents of the national enemies of Britain, i.e. France and Spain. The national interest of Britain thus seems to trump the natural rights of the Irish, whom Locke may then have regarded as justly defeated in war.
ibid., §149, p. 367. Compare this with the most famous section of the Declaration of Independence:
The Natural Law, by Heinrich A. Rommen, Note 1
The Natural Law, by Heinrich A. Rommen, Note 2
The Natural Law, by Heinrich A. Rommen, Note 3
A French traveler in the early ninettenth century returned from a trip that included America and Ireland and wrote:
I have seen the Indian in his forests and the Negro in his chains, and thought, as I contemplated their pitiable condition, that I saw the very extreme of human wretchedness; but I did not then know the condition of unfortunate Ireland.
The Natural Law, by Heinrich A. Rommen, Note 4
We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness -- That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.