The Ethics of Liberty, by Murray N Rothbard. Adnotated. Part III (Natural Law versus Positive Law)

Sunday, 30 July, Year 9 d.Tr. | Author: Mircea Popescu

If, then, the natural law is discovered by reason from "the basic inclinations of human nature . . . absolute, immutable, and of universal validity for all times and places," it follows that the natural law provides an objective set of ethical norms by which to gauge human actions at any time or place.i The natural law is, in essence, a profoundly "radical" ethic, for it holds the existing status quo, which might grossly violate natural law, up to the unsparing and unyielding light of reason. In the realm of politics or State action, the natural law presents man with a set of norms which may well be radically critical of existing positive law imposed by the State. At this point, we need only stress that the very existence of a natural law discoverable by reason is a potentially powerful threat to the status quo and a standing reproach to the reign of blindly traditional custom or the arbitrary will of the State apparatus.ii

In fact, the legal principles of any society can be established in three alternate ways: (a) by following the traditional customiii of the tribe or community; (b) by obeying the arbitrary, ad hoc will of those who rule the State apparatus; or (c) by the use of man's reason in discovering the natural law -- in short, by slavish conformity to custom, by arbitrary whim, or by use of man's reason. These are essentially the onlyiv possible ways for establishing positive law. Here we may simply affirm that the latter method 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.v

In our century, widespread ignorance of and scorn for the very existence of the natural law has limited people's advocacy of legal structures to (a) or (b), or some blend of the two. This even holds for those who try to hew to a policy of individual liberty. Thus, there are those libertarians who would simply and uncritically adopt the common law, despite its many anti-libertarian flaws. Others, like Henry Hazlitt, would scrap all constitutional limitations on government to rely solely on the majority will as expressed by the legislature. Neither group seems to understand the concept of a structure of rational natural law to be used as a guidepost for shaping and reshaping whatever positive law may be in existence.vi

While natural-law theory has often been used erroneously in defense of the political status quo, its radical and "revolutionary" implications were brilliantly understood by the great Catholic libertarian historian Lord Acton. Acton saw clearly that the deep flaw in the ancient Greek -- and their later followers' -- conception of natural law political philosophy was to identify politics and morals, and then to place the supreme social moral agent in the State. From Plato and Aristotle, the State's proclaimed supremacy was founded in their view that "morality was undistinguished from religion and politics from morals, and in religion, morality, and politics there was only one legislator and one authority."vii

Acton added that the Stoics developed the correct, non-State principles of natural law political philosophy, which were then revived in the modern period by Grotius and his followers. "From that time it became possible to make politics a matter of principle and of conscience." The reaction of the State to this theoretical development was horror:

When Cumberland and Pufendorf unfolded the true significance of [Grotius's] doctrine, every settled authority, every triumphant interest recoiled aghast. . . . It was manifest that 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.viii

Acton saw clearly that any set of objective moral principles rooted in the nature of man must inevitably come into conflict with custom and with positive law. To Acton, such an irrepressible conflict was an essential attribute of classical liberalism: "Liberalism wishes for what ought to be, irrespective of what is."ix As Himmelfarb writes of Acton's philosophy:

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."x

And so, for Acton, the individual, armed with natural law moral principles, is then in a firm position from which to criticize existing regimes and institutions, to hold them up to the strong and harsh light of reason. Even the far less politically oriented John Wild has trenchantly described the inherently radical nature of natural-law theory:

the philosophy of natural law defends the rational dignity of the human individual and his right and duty to criticize by word and deed any existent institution or social structure in terms of those universal moral principles which can be apprehended by the individual intellect alone.xi

If the very idea of natural law is essentially "radical" and deeply critical of existing political institutions, then how has natural law become generally classified as "conservative"? Professor Parthemos considers natural law to be "conservative" because its principles are universal, fixed, and immutable, and hence are "absolute" principles of justice.xii Very true -- but how does fixity of principle imply "conservatism"? On the contrary, the fact that natural-law theorists derive from the very nature of man a fixed structure of law independent of time and place, or of habit or authority or group norms, makes that law a mighty force for radical change.xiii The only exception would be the surely rare case where the positive law happens to coincide in every aspect with the natural law as discerned by human reason?xiv

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  1. Edwin W. Patterson, Jurisprudence: Men and ideas of the Law (Brooklyn, N.Y.: Foundation Press, 1953), p. 333.

    ~ * ~

    It further follows that if horses were spherical and inhabited a vacuum...

    There are no "basic inclinations" of a supposed "human nature" that are universal. There are inclinations of human nature understood as the nature of the best humans, but those are not universal, even should they be absolute and immutable. There are also inclinations of human nature understood as the nature of the shittiest humans*, but those are pretty much indolent laziness, stubborn stupidity, a propensity for gout and tone deafness. And besides, they're shared with sloths, maggots and all sorts of typically non-human lifeforms.

    ----

    * Contrary to what you might imagine, I don't mean "criminals, pedophiles, scumbags and assholes". I mean you. I mean helicopter moms, I mean employees of the month, I mean consumers, I mean the general public. I mean you. You, and only you, represent the intension of "shittiest humans". There's more true representatives of humanity among any defined class, from faggots to pedos, from writers to assholes, from bankers to scumbags and from politicians to criminals, than there are in this saddest class of all, "the people themselves", average taxpayer Joe Q Dropdeadalready.
    []

  2. In general, any reasoned approach, however it may be called and whichever way it may proceed is a powerful threat to any "state", and this is readily apparent from the definition : states are organised towards function, whereas reason is organised towards meaning. There can not be such thing as a "powerful" reason, even if the meaningless construct is used rhetorically ; similarily there can not be such a thing as a meaningful state, which is precisely why the behaviour known as propaganda appears in all states, and why it spends most of its times and resources inventing putative meanings to clothe the fundamentally meaningless form with.

    This allows then understanding the nature of the threat in question, by the following model : courtship is a powerful threat to copulation.

    Copulation is a given in all extant sexuate species : either they do it as a matter of course, or else they're not here to tell any stories. There isn't a third option.

    Courtship is present in most species, including species as simple and ancient as insects. It serves no specific purpose (other than safely burning off some useless energy, exactly like sleep), but it is generally given as "the reason" for copulation, both generally and in individual cases, by the sort of minds that also propose "Newton discovered" in the active* diatesis. This is evidently tempting nonsense, but it is nonsense nevertheless.

    What happens in fact is that over the course of time, courtship as a behaviour may become an option. Entirely unrelatedly to this, copulation may also become an option, over the course of the same time. Sometimes these occur in one order ; but some other times these occur in the reverse order. However if only one of the two were to occur, entirely excepting the other, it is significantly more likely for the occurent to be courtship rather than copulation. This is because courtship is significantly cheaper than copulation, and for no other reason!

    Courtship can be done to any degree at any point that suits the doer, which makes its opportunity cost zero even if some other computation of its cost may exceed the origin. Copulation meanwhile requires specific items that are biologically expensive and relatively rare**, and specific performance which takes time and effort. Consequently courtship is the fill-in activty for the incapable, for the impotent, for the anxious and generally speaking : those who can't, think about it.

    Which takes us right back to the threat reason poses to state. A state, any state, no matter when or where or how organised, is a statement of those who can, and do, against all others -- or more properly said, in the hide of all others. This is the fundamental reason all state can ever be organised for is the oppression of losers : those who can and do, make a state. If they're a minority, and others could better and do better, the state will move to them. If they're not, the lame will groan and whine and generally speaking "think" and "reason". Much like yawning, and much like puking, and much like crying among females, this "reason" thing is infectious. Should too many of those involved in the state switch to reasoning instead, the whole thing will topple in a ditch, or in other words revert to a different group, less inclined to think and more inclined to do. I suppose I needn't explicitly revisit history to vindicate this point ?

    And, while we're on it : the reason Europe needs the marginal, unwanted-at-home because they're definitionally useless there young Arab adults is simply that the courtship contagion has so spread over that ancient land, someone's gotta come and do some of the undone fucking piling up over the decades by now. There's cunts there slipping themselves roofies in desperation, cobwebs uniting labia to labia, are you kidding me ? What "immigration reform". There's a reason the Moors moved into Hispania, and that reason ain't what your teachers told you, "so-and-so sitting down to discover". The Moors were sucked into a hole, as they are sucked into a hole today ; to be expelled again by the tide if, or when, it returns. It's how this copulation thing works, after all, isn't it ?

    ----

    * Newton didn't "discovered". Newton inquired. Newton thought about things, if you will. Newton did many things, including reprimanding his household slaves, starving them for educational purposes and so forth. The discovery, however, is not something that can be done in this sense, and so unsurprisingly he didn't do it. The notion that one sits down to discover like he'd sit down to sharpen a bushel of pencils is how you end up with misfortunate weavers sitting down to "compose poems" like they'd weave a length of cloth and thereby produce matter in the vein of

    Good people of Dundee, your voices raise,
    And to Miss Baxter give great praise;
    Rejoice and sing and dance with glee,
    Because she has founded a College in Bonnie Dundee.

    For all the pretense and aferation of "progress" and "modernity" and generally speaking superiority of today's herd over yesterday's identical herd, it nevertheless stands to the most cursory examination that the average idiot of today is more of an idiot than the average idiot of twenty centuries prior. At least those had some antiquated, mystical notion of "muses", which is a damn sight better than the shit dried in betwixt your ears.

    And no, you can't discover yourself. That's the one fucking point in all this : discovering is not for you. Back to work, whore.

    ** This strictly means the erect penis, and nothing else. []

  3. The notion that there's some sort of "tradition" which is somehow accessible to the inquiring mind is so much laughable nonsense. Other than matter already covered when discussing the previous incarnation of this god-in-a-hat, back when it was called "traditional values" instead of "traditional custom", there's of course the older discussion of "traditional marriage". []
  4. You know he's lying the moment he's saying "essentially the only possible". What does this sort of construct even mean, "here's an absolute summary". A summary can never be absolute ; an absolute must cover all cases. Absolutes that cover most cases are called something else!

    But let us inquire into the matter positively. Suppose there's a state S, composed of members M1...Mm grouped in groups G1...n. Suppose group Gi composed of a subset of M is currently ruling the state, making laws to oppress some of the Ms not included in Gi. The proposition before us is that there are three options : either 1) all M agree that there's a L somewhere which they all follow ; or else 2) everyone does what Gi says they should ; or else 3) Gj takes over S from Gi and... ?

    It should by now be evident that the "alternatives" given are no such thing. The L as followed by "everybody" isn't some sort of transcendent, given from outside. It is a narration of "ancient customs" that are,

    absolute, immutable, and of universal validity for all times and places,

    to quote a certain nigger, entirely indistinguishable from all the other niggers. L is therefore a story "based" on inexistent facts, or in other words L is really a F. How is that F then to be distinguished from the F' of the supposed second case, where everyone just does what Gi says ? What, because they didn't think to pretend "F is really L" ? For all you know they did, and you didn't understand it. This happens.

    But, to the more interesting case : suppose indeed there is such a thing as reason, R, which is totally different from L and not the same thing all over again. If we are to believe Rothbard's proposition, that the difference between R and L is that R "actually works", in the sense of "the followers of R gain an advantage over time before all followers of all other symbols", then a) how do we debunk the claim of Gi that their L aka F is really a R ? and b) how do we distinguish between the R of Gi and the R' of Gj ? Moreover, were it actually the case that R' is superior to R, what is the explanation of Gi's superiority over Gj ?

    The three "cases" are manufactured nonsense. Everyone at all times follows R (aka F, aka L) as they best understand it, which is neither definite nor definable (and which leads us directly into the communication problem of socialism). Whenever there's an R' available, and the difference meaningful, a power struggle either occurs or doesn't occur. If it occurs, it is established whether R - R' > R' - R ; if it doesn't occur it can be presumed as stated. Throughout the courtship process, of course, all the intricate nonsense of puff and smoke that make the delight of the retori da letto is going to be on display, including the supposed choice between R(=F) and R(=L) where F=L ; and the supposed absence of R because R', and on and on.

    None of this is thinking, for the record, but just repeated, circular rubbing of a little nubbin in the hopes something may happen.
    []

  5. This unexpected turn of events doth indeed surprise me to shock.

    To help my agonizingly raised eyebrows (due to the disbelief of revolutionary unexpectedness), let me recount a folk story.

    Once upon a time there was an old woman, who lived in an old hut and had as her sole income a small patch of garden and an old cow. The old cow gave less and less milk each year, and was more stubborn and less pleasant every passing year too. We could go as far as to say that for her sins, the old woman had a wife.

    One day, gathering her Rs (and Fs and Ls) about her, the old woman took the cow to the market, to be rid of the pain in the ass and maybe make a little money. At the market people would close now and again, inspect the cow briefly, then ask the old woman, does it give a lot of milk ? Is it well behaved ?

    The old woman answered truthfully, that it's a miserable ass of a cow, gives almost no milk and is entirely as insufferable as a herd of barren sows. So the hours passed, and long after noon the old woman sat in a ditch, and undid her wrapped leek stalks or whatever it is poor old women modestly eat in this story. A merchant, who had been watching the whole scene in between selling dozens of heads of cattle, for he was indeed an expert such as only a few others could match him in his environs, took pity on the poor old woman, and went over to her, and took her cow to sell it for her.

    People again approached, and inspected the animal with eyes somewhat dulled by cider and beer. They asked the same questions, but the merchant assured them it gives so much milk he had to get a larger pail, and is so well behaved his own wife bears the poor beast a burning jealousy.

    Upon hearing such tale, the old woman stood up straight from her ditch, ran over to her old cow, and plucked the rope from the merchant's hands.

    "If it's such a good cow, I do not want to sell it anymore, devil! Trying to trick poor old women as myself into parting with their only chattel property in this world! The only soul I have!"

    And with that, the old woman started back on the long road towards the patch of dirt she called home, leaving behind a rather befuddled if certainly expert merchant.

    As you can see, dear reader, it helps to now and again simply affirm the cow's at once the most appropriate for man at his most nobly and fully human, and the most potentially "revolutionary". Lest it be forgotten, or something.
    []

  6. Hazlitt's reaction to my own brief discussion of the legal norms essential to any freemarket economy [in Man, Economy, and State: A Treatise on Economic Principles (Princeton, N.J.: D. Van Nostrand, 1962] was a curious one. While critical of blind adherence to common law in other writers, Hazlitt could only react in puzzlement to my approach; calling it "abstract doctrinaire logic" and "extreme a priorism," he chided me for "trying to substitute his own instant jurisprudence for the common law principles built up through generations of human experience." It is curious that Hazlitt feels common law to be inferior to arbitrary majority will, and yet to be superior to human reason! Henry Hazlitt, "The Economics of Freedom," National Review (September 25, 1962): 232. []
  7. John Edward Emerich Dalberg-Acton, Essays on Freedom and Power (Glencoe, III.: Free Press, 1948), p. 45. Also see Gertrude Himmelfarb, Lord Acton: A Study in Conscience and Politics (Chicago: University of Chicago Press. 1962), p. 135. []
  8. Acton, Essays, p. 74. Himmelfarb correctly noted that "for Acton, politics was a science, the application of the principles of morality." Gertrude Himmelfarb, "Introduction," ibid., p. xxxvii. []
  9. Himmelfarb, Lord Acton, p. 204. Contrast the exclamation of bewilderment and horror by the leading nineteenth-century German Conservative, Adam Muller: "A natural law which differs from the positive law!" See Robert W. Lougee, "German Romanticism and Political Thought," Review of Politics (October 1959): 637. []
  10. Himmelfarb, Lorri Acton. p. 205. []
  11. John Wild, Plato‘s Modern Enemies and the Theory of Natural Law (Chicago: University of Chicago Press, 1953), p. 176. Note the similar assessment by the conservative Otto Gierke, in Natural Law and the Theory of Society, 1500 to 1800 (Boston: Beacon Press, 1957), pp. 35-36, who was for that reason hostile to natural law:

    In opposition to positive jurisprudence, which still continued to show a Conservative trend, the natural-law theory of the State was Radical to the very core of its being. . . . It was also directed . . . not to the purpose of scientific explanation of the past, but to . . . the exposition and justification of a new future which was to be called into existence.

    []

  12. George S. Parthemos, "Contemporary Juristic Theory, Civil Rights, and American Politics," Annals of the American Academy of Political and Social Science (November 1962): 101-2. []
  13. This claim, false as it necessarily is, nevertheless constitutes the substance of all G-challenge. This (and not the subiacent socialism found in "all men are man" nonsense) is the actual cause of Rothbard sounding so Lenin-esque : all niggers sound the same, because they have to sound the same, because their niggardly nature is also their only substance. []
  14. The conservative political scientist Samuel Huntington recognizes the rarity of this event:

    No ideational theory can be used to defend existing institutions satisfactorily, even when those institutions in general reflect the values of that ideology. The perfect nature of the ideology's ideal and the imperfect nature and inevitable mutation of the institutions create a gap between the two. The ideal becomes a standard by which to criticize the institutions, much to the embarrassment of those who believe in the ideal and yet still wish to defend the institutions.

    Huntington then adds the foot-note: "Hence any theory of natural law as a set of transcendent and universal moral principles is inherently non-conservative. . . . Opposition to natural law [is] . . . a distinguishing characteristic of conservatism." Samuel P. Huntington "Conservatism as an Ideology," American Political Science Review Gone 1957): 458 -- 59. See also Murray N. Rothbard, "Huntington on Conservatism: A Comment," American Political Science Review (September 1957): 784-87. []

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