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, August 15, 2010

Leo Strauss and Natural Right, Part 2: Does Natural Law Contradict History

BY "HISTORY" LEO STRAUSS means something a different from the connotations we would ordinarily associate with that word. He uses "history" short-hand to mean a specific school of philosophical thought, something he calls broadly "historicism," "the historical sense" or the "historical consciousness." Strauss, 10. This sort of jurisprudential and politico-philosophical thought was advanced by the likes of Gustav Hugo (1764-1844) or, more famously, by Friedrich Carl von Savigny (1779-1861). Their banner was carried forward in Germany by the likes of G. F. Puchta (1798-1846), Karl Friedrich Eichhorn (1781-1854), Rudolf von Sohm (1841–1917), Otto von Gierke (1841-1921), and, in England, by the likes of James Bryce (1838–1922), Frederic W. Maitland (1850–1906), Frederick Pollock (1845–1937), and Paul Vinogradoff (1854–1925). Frequently, one hears from such authors words such as the "spirit" of a people, or the "genius" of their law.* It advanced tenuously from theoretical roots to a full-fledged radical or existential historicism.

Strauss distinguishes this sort of thinking from "conventionalism," and, of course, from the philosophy of natural law. Conventionalism is the philosophical view, "as old as political philosophy itself," that all right or justice is conventional, that is, that it is the result of agreement, tacit or otherwise, of a society. Strauss, 10. As a consequence, conventionalism holds that justice and right have no basis in nature. Since right and justice are a matter of convention or agreement, it follows that right and justice are relative, since an "agreement may produce peace but it cannot produce truth." Strauss, 11. But conventionalism in its original form did not reject nature entirely. In fact, it presupposed its existence because it opposed convention to nature, holding that the distinction between nature and convention was one of the most basic of philosophical distinctions relating to political and legal life. Importantly, it also recognized nature as having some sort of real, moral authority, and, in fact, frequently opposed the conventions of man to the truths of nature. In other words, conventionalism was limited to an explanation of human law, it was not intended to be a philosophical expression of the reality of the world at large. Conventionalism never suggested that nature was non-existent, unknowable, or false.

Those who advanced historicism beginning in the 19th century, however, departed rather starkly from the ordinary conventionalist view. They outright rejected nature as a normative restriction upon man's freedom. Either that or they defined nature, at least for man, to be freedom, thereby essentially erasing nature as any normative standard. For them, the view that there is a nature "out there" that somehow binds us is myth. According to those with a historicist view, nature is not of higher authority than man's own works derived from his own choice. The historicist rejects any distinction between convention and nature (because in man both are freedom), and so the distinction between nature and freedom collapses. In other words, man's free nature, not some nature of which freedom is but a part, is the norm of man's acting. It is man's nature to be free, and so freedom, whether as part of nature or opposed to it, is the determinant of right and wrong, which, of course, means there is no standard.
[T]hey conceive of man and his works, his varying notions of justice included, as equally natural as all other real things, or else they assert a basic dualism between the realm of nature and the realm of freedom or history.
Strauss, 11. For the historicist, the source of right and wrong, justice and injustice, is found in man's freedom. By erasing the distinction between nature and convention, the historical view essentially abandons the philosophical enterprise. They would force us back into Plato's cave to look at shadows. In a vivid image, borrowed from Plato, Strauss expresses it this way:
Philosophizing means to ascend from the cave to the light of the sun, that is, to the truth. . . . The fundamental premise of conventionalism is, then, nothing other than the idea of philosophy as the attempt to grasp the eternal. The modern opponents of natural right reject precisely this idea. According to them, all human thought is historical and hence unable to ever grasp anything eternal. Whereas, according to the ancients, philosophizing means to leave the cave, according to our contemporaries, all philosophizing essentially belongs to a "historical world," "culture," "civilization," "Weltanschaung," that is, to what Plato had called the cave.
Strauss, 11, 12. At the heart of the modern rejection of natural right is the "philosophic critique," a "critique of human thought as such," which provides that the knowability of natural right and certainly anything that could be characterized as a transcendent or eternal truth is impossible, a fool's errand at best. Though shrouded in the mists that generally hamper those who trace the genesis of ideas, historicism appears to arise in the 19th century as a reaction to the destructive French Revolution and the "natural right" doctrines that had animated it. At its heart, therefore, the historicists were, in a sense, conservative, even in a way traditionalists. They sought to preserve the traditions of their fathers, the ancien régime, from the radical threats of the French révolutionnaires, who predicated their break from tradition and the established order by invoking universal, rational principles of "natural right." But in rejecting the doctrines of the revolutionaries and in their haste to preserve what they could of the old order, the historicists were like a foolish man dashing into his burning house to save the oil portrait of his wife hanging in his study from the flames, forgetting all the while to save his wife who sleeps in the bedroom. They abandoned the more important to save the less important.

Some of it perhaps came from confusing theories of natural law or natural right. The "natural right" theories of the French revolutionary were not the same as the traditional theories of natural right or natural law. "Certainly, pre-modern natural right did not sanction reckless appeal from the established order, or from what was actual here and now, to the natural or rational order."** Strauss, 13. Of course, the revolutionary spirit of natural right, the droits de l'homme, was nothing but a reckless and sanguinary attack against the established order. The natural right advanced by the revolutionary, in fact, was novel, a grotesque mutation of the classical notions of natural law. It grew out of an effort "directed against all otherworldliness and transcendence," yet it ended up modifying or transforming, even replacing the classical transcendence associated with natural law with a sort of transcendent notion of "progress." Strauss, 15. Basically, it transferred the question from what was "best" (which is a referent to some transcendent value) or what was in accord with "nature" of man, to a question of what constituted the greatest "progress" in liberty and equality. It took the natural to be the individual, and the unnatural to be what was uniform or conventional. To be free, a human had to shed himself of any enforced order, and "pursue not just his happiness but his own version of happiness." Strauss, 14. But any appeal to universal, rational, transcendent, or ideal principles, whether conservative or revolutionary, responsible or irresponsible, right or wrong, even one that is ultimately based upon some sort of universal individualism or social "progress," unsettles the established social order.

The historicist school, then, constituted a conservative reaction against the abuse of natural law by the revolutionary elements then unsettling French, and indeed, European society. Distrustful of any appeal to universal principles which were obviously being abused by the revolutionists to justify their rebellion to the established order, these sought to find some sort of principle to overcome the hyper-individualism of the revolutionary ethos. In order to keep some semblance of order, check the potential unbridled individualism, keep the potential anarchy of the French revolutionary's political philosophy at bay, and (later) prevent the codification of their countries' laws a la code Napoleon, the historicist school "asserted that the local and temporal have a higher value than the universal." Strauss, 14-15. Accordingly, they focused on history and sought therein some sort of standard, rejecting the Vernunftsrecht (law of reason) of the revolutionary and replacing it with the Volksgeist (mind of the peoples). They emphasized historical study of such things as a people's particular genius for order (the Volksgeist) or the general laws of historical evolution. Howevere, this reliance on history, whether static or dynamic, as norm created a significant problem:
By denying the significance, if not the existence, of universal norms, the historical school destroyed the only solid basis of all efforts to transcend the actual. . . . [I]t depreciated universal principles in favor of historical principles. . . . History--history divorced from all dubious or metaphysical assumptions--became the highest authority.
Strauss, 15-16, 17. Ultimately, therefore, historicism became a form of positivism, rejecting metaphysical or theological knowledge, and relying on the knowledge of positive science or the empirical sciences. When all was said and done, the honest historicist would realize his "inability to derive any norms from history," leaving him without any objective norm. Strauss, 17.
Thus all standards suggested by history as such proved to be fundamentally ambiguous . . . . the meaningless web spun by what men did, produced, and thought, no more than by unmitigated chance--a tale told by an idiot. . . . Historicism culminated in nihilism. The attempt to make man absolutely at home in this world ended in man's becoming absolutely homeless.
Strauss, 17-18. Confronted with this obvious failure of historicism, one would have thought perhaps there would have been a return to classical thinking, and a search for universals. Instead of such intellectual repentance, however, the intellectual progeny of the first historicists engaged in a further act of intellectual recklessness. Despondent with the historical method's inability to provide norms, they simply assumed that the lack of norms was something that was part of man's predicament, that "all human thought depend[ed] ultimately on fickle and dark fate and not on evident principles accessible to man as man." Strauss, 19. This historicism smells less like skepticism, since its empirical analysis really does tell us what a particular culture or peoples believed to be right. Strauss, 20. It is perhaps a partial skepticism, carefully holding all other theories but its own as unknowable. In this sense, historicism "goes beyond skepticism. It assumes that philosophy, in the full and original sense of the term, namely, the attempt to replace opinions about the whole by knowledge of the whole, is not only incapable of reaching its goal, but absurd." Strauss, 30. However, historicism is not so absurd, as it escapes being devoured by the maws of skepticism.

But what historicism really turns out to be is a form of moral relativism, and a dogmatic one at that. To some degree, it appears to avoid the sin of dogmatism, and therefore historicism may be regarded as "an ally in our fight against dogmatism." Strauss, 22. But if it is an ally, it is a dangerous ally, because historicism itself may be nothing but dogmatism clothed in historicism's rags. "We are forced to suspect," says Strauss, "that historicism is the guise in which dogmatism likes to appear in our age." Strauss, 22. This is another way of saying that the relativism of historicism is the dogmatism of our age.

Historicism, however, contains the seeds of its own destruction because it is, at heart, built upon a contradiction. As Strauss explains it:
Historicism asserts that all human thoughts or beliefs are historical, and hence deservedly destined to perish; but historicism itself is a human thought; hence historicism can be of only temporary validity, or it cannot be simply true. To assert the historicist thesis means [in a sort of massive contradiction] to doubt it and thus to transcend it. . . . Historicism thrives on the fact that it inconsistently exempts itself from its own verdict about all human thought. The historicist thesis [is thus] self-contradictory or absurd.
Strauss, 25.

Confronted with this massive inconsistency, historicists either have to carve out a massive exception for their doctrine and regard historicism as the one "trans-historical" idea that has ever crossed the thought of man, or they must live with the absurdity of claiming that all is relative including their own theory. The historicist that refuses to grant an exception even to his own historicist thought is labeled by Strauss as the "radical historicist," one who adopts an "existentialist historicism." Strauss, 26, 32. The "radical historicist" therefore confronts a Nietzschean dilemma. If he denies the possibility of any comprehensive view, he is faced with a situation that would make human life impossible because human life requires some acceptance of a comprehensive view. "The theoretical analysis of life is noncommittal and fatal to commitment, but life means commitment." Strauss, 26. Burdened with a commitment to a noncommittal theory, and presumably a desire to keep on living (instead of committing suicide), what is the committed noncommittal man to do?

The first thing he can do is lose himself "in illusory security or in despair." Strauss, 27. To find illusory security, he can stuff his theory into the cask of esotericism, lock it up in some private place away from the masses sort of like one buries nuclear waste, and engage publicly in some sort of Platonic noble delusion, a magnificent myth, a noble lie so that life may go on under a commitment that the gnostic minority know is false. He will force a wan public intellectual smile of a man inwardly in despair.

If he chooses to face his despair with honesty, he must accept the fact that there is nothing that has any meaning, that all is flux and flux is all, and see himself as a pawn of life or bound to a fate that has no meaning, where choice is arbitrary, and no fundamental view of reality can ever be known. He will thus be like a pennant and simply wafts and waves in the winds that blow, and know not why or where there are winds, and why or where they blow, or even if they blow. Truth becomes as elusive, as ephemeral, as unable to be grasped as youthful beauty.

So be beginning, be beginning to despair.
O there's none; no no no there's none:
Be beginning to despair, to despair,
Despair, despair, despair, despair.***

The last choice is to "choose in anguish the world view and the standards imposed [upon him] by fate." Strauss, 27. He can refuse to give in to his despair to ever grasp objective truth, and he will choose, not for any particular reason (for there is no reason to select one comprehensive view over another), but for choice's sake:
It is absolutely necessary to choose one [a comprehensive view]; neutrality or suspension of judgment is impossible. Our choice has no support but itself; it is not supported by any objective theoretical certainty; it is separated from nothingness, the complete absence of meaning, by nothing but our choice of it. Strictly speaking, we cannot choose among different views. a single comprehensive view is imposed on us by fate: the horizon within which all our understanding and orientation take place is produced by the fate of the individual or of his society.
Strauss, 27.

This is where the historical school, and its denial of ontological and teleological ethics, has led us. Where a comprehensive view is defined by will, by choice, by fate, and not by reason or by nature or by truth. In fact, it pretty much requires the rejection of reason, nature, and objective truth.
Historicism . . . stands or falls by the denial of the possibility of theoretical metaphysics and of philosophic ethics or natural right; it stands or falls by the denial of the solubility of fundamental riddles.
Strauss, 29. This, of course, is entirely opposed to doctrines of natural law:
All natural right doctrines claim that the fundamentals of justice are, in principle, accessible to man as man. They presuppose, therefore, that a most important truth can, in principle, be accessible to man as man.
Strauss, 28.

The historicist further puts himself in a highly idiosyncratic position. He insists in an extraordinary historical privilege, accorded him by fate, to have live in a "privileged moment in the historical process" where he recognizes that knowledge is based on fate. "[T]hanks to fate, it has been given to realized the radical dependence of thought on fate." It is a demonic aping of the Biblical "fullness of time," a secular perversion of the Pauline plenitudo temporis (cf. Gal. 4:4). And this "assumption of an absolute moment in history is essential to historicism." This absolute moment is one where the "fundamental delusion of the human mind has been dispelled," and the "insoluble character of the fundamental riddles has become fully manifest," so that "no possible future change of orientation can legitimately make doubtful the decisive insight into the inescapable dependence of thought on fate." Strauss, 29. In short, we are privileged by an extraordinary felicitous boon of fate to live in a time where we have learned that there is no such thing as truth to which our choice must conform; rather, truth is what conforms to our choice.

The delusion of the historicist must be overcome, since if we accept its premises we cannot again accept a philosophy of natural law. By definition, a philosophy of natural law or natural right is nonhistoricist. For this reason, we must think not from current historicist premises, but we must be critical of historicist thought.
We need, in the first place, a nonhistoricist understanding of nonhistoricist philosophy. But we need no less urgently a nonhistoricist understanding of historicism, that is, an understanding of the genesis of historicism that does not take for granted the soundness of historicism.
Strauss, 33. In other words, we have to take off the intellectual glasses that blind us. We have to cut the empiricist, positivistic chains that force us to look at shadows, and attempt to convince us that those shadows are all that exist. We have to be bold enough to leave the cave of human construct and face the blazing sun of the world, of man, of order, as God has made it in all its fullness. We have to pray for intellectual sight and hope that, like St. Paul, scales may fall from our mind's eyes, and we receive once again or perhaps anew that precious gift of being able once again to see things not as we would want, but to see things as they really are.
*Cf. Frederick Pollock, The Genius of the Common Law. Savigny wrote about the Volksgeist or the spirit of the people which animated law.
**For that reason, the fear that a Supreme Court justice who believes in a classical "natural law" will overthrow the Constitution is a false fear.
***From Gerard Manley Hopkins, "The Leaden Echo and the Golden Echo"

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