Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Sunday, June 14, 2009

Ecstasis and Telos: John Locke: From Natural Law to Natural Right

WALKING A SORT OF VIA MEDIA, a middle way, between the atheist Thomas Hobbes and the Anglican Richard Hooker, John Locke (1632-1704) is a fundamental figure in the history of natural law (lex naturalis) and its subtle transformation, arising from an emphasis on individualism and away from common nature, into the doctrine of natural rights (ius naturale). His influence on Thomas Jefferson and the American founding fathers--even on the phraseology of the American Declaration of Independence--merits him an important place.

In his book Passage to Modernity, Professor Louis Dupré succinctly describes this process:
. . . British philosophers, beginning with John Locke, attempted to restore a normative, moral meaning to the notion of natural law: the "dictates of reason" may conflict with positive laws. But the more they stressed the norms inherent in an individualist concept of nature, the more they emptied their natural law of any concrete social content. Natural law thus becomes to function as a rational basis of prepolitical, individual rights.
Louis Dupré, Passage to Modernity: An Essay in the Hermeneutics of Nature and Culture (New Haven: Yale University Press, 2004), 99.

While for Hobbes, all natural rights ceased upon formation of the overweening State, that "Mortall God," for Locke the opposite was very clearly the case. Natural rights remained after the formation of the State; indeed, the State was obligated not only to recognize those rights, but was formed through a social contract for the very purpose of defending those rights. Levering, 99; see also Rommen, 79.

However, Locke does not "view the law as an objective order of norms out of which individual righs flow by intrinsic necessity," such as one would see in a classic Natural Law doctrine. Compared to the traditional and classic Natural Law doctrines, which viewed human law and human right as participating in, and flowing out of, a greater order designed by God and written in the substance of the created world and in particular man, Locke's notion of inalienable rights is a very thin. It is merely a "nominalistic symbol for a catalogue or bundle of individual rights that stem from individual self-interest." Indeed, in an odd sort of way, in Locke's view, instead of rights arising out of law, law arises out of rights. "The rights to life, liberty, and estate or property make the law; the law does not create them." Rommen, 79.

Though in parting with Hobbes's doctrine, Locke's doctrine is commendable, it is something altogether different from the classic and traditional Natural Law doctrine such as was still to be found in the Anglican Richard Hooker. Levering attributes this shift to a failure on the part of Locke to appreciate the natural disposition of individuals to live in community, an overemphasis on the individual, and an undue focus on man's animalistic needs of self-preservation (the right to life and the procreation of children by means of the family) to the exclusion of other, higher goods both individual and social. In addition, for Locke the individual's need for self-preservation includes the ownership of private ownership of property. Levering thus summarizes:
In short, Locke reduces natural law to the bare bones of self-preservation, inclusive of property. He thereby turns natural law radically inward upon the individual and upon the inclination most shared by human beings with other animals. In so doing, he has turned upside-down the biblical theocentric and ecstatic account of natural law . . . .
Levering, 103.

Informed as they are by a political philosophy and culture so deeply influenced by Locke's individualism, Americans suffer from the effect of Locke's thin, individualistic theory of natural rights revolving around a short list, an ensemble of private rights. When we talk about rights, we are therefore predisposed to focus on self-interest and questions of commutative justice over questions of distributive justice, legal justice, and the common good. We engage only in "Rights Talk," and it impoverishes our political discourse (Mary Ann Glendon). We ignore "Duties Talk." Looking at the world from the traditional or classical doctrine of the Natural Law will therefore broaden our perspective.

We ought to put Locke's Two Treatises aside for a time, and turn to Richard Hooker's Laws of Ecclesiastical Polity, or, better yet, turn to Thomas Aquinas's Treatise on Law. Best yet, we ought to go to John Paul II and his masterly synopsis on the Natural Law, his Encyclical Veritatis Splendor.

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