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, September 12, 2010

Leo Strauss and Natural Law: Hobbesian Alleycat Morals, Natural Public Law, and the Bush Doctrine

HOBBES TINKERED WITH, OR PERHAPS BETTER, SMASHED the classic notion of natural law. Everything was built on self-preservation, the fear of death. This was to have significant effect upon his notion of the moral law. As Strauss observes, the Hobbesian focus on the fear of violent death and the right to self-preservation as the universal tie among all men leads to a simplification of moral doctrine. Instead of the complex interplay of law, equity, and the multiplicity of virtues (all of which demanded equal play, classically, but two of which, magnanimity and justice, were seen as preeminent or most general) which were the accouterments of the old order, the new order was simplistic: one virtue, self-preservation, loomed large and fed all the others. "Self-preservation requires peace. The moral law became, therefore, the sum of rules which have to be obeyed if there is to be peace." Strauss, 187. This requires compact, and so self-preservation's compact becomes the source of justice. For Hobbes, then, "justice becomes identical with the habit of fulfilling one's contracts." Strauss, 187. Justice is thus conventional. Look at the transformation wrought by Hobbes, and how he hobbled Western thought by clapping it in irons, tied down with the dual chains of relativism and legal positivism:

Justice no longer consists in complying with standards that are independent of human will. All material principles of justice--the rules of commutative and distributive justice or of the Second Table of the Decalogue--cease to have intrinsic validity. All material obligations arise from the agreement of the contractors, and therefore in practice from the will of the sovereign. For the contract that makes possible all other contracts is the social contract or the contract of subjection to the sovereign.

Strauss, 187-88. The contract of all contracts, the source of justice, is the State, that mortal God. And vice, it follows, is anything that detracts from peace and detracts from life subordinated to the convention of all conventions, the State. Hobbes, then, advances what Strauss calls "political hedonism," and through modification and adaptation of the Epicurean ethic, it transmogrifies itself into a sort of ethic of the bourgeoisie, an ethic not of wisdom or excellence (arete), but of "commodious living," "the good life." Strauss, 188. Gone are the monks, hermits, and martyrs, and the roseate wounds of Christ, replaced by the pudgy, the soft, the flabby, and roseate-noses of the bourgeoisie. Life becomes governed by a sort of cheapening advertising jingle, a facile slogan.

In the meantime, a curious creature begins to make its appearance: "natural public law," ius publicum universale seu naturale.
Natural public law represents one of the two characteristically modern forms of political philosophy, the other being "politics" in the sense of Machiavellian "reason of state." Both are fundamentally distinguished from classical political philosophy. In spite of their opposition to each other, they are motivated by fundamentally the same spirit.
Strauss, 190. (We have treated the issue of "reason of state" before, see Pedro Calderón de la Barca and the Natural Law, Part 11.) Just like the Hobbesian ethic results in the dumbing down of the moral law, so does the Hobbesian ethic, like the Machiavellian, lead to the dumbing down of the art of governance. The Aristotelian "best regime" was replaced by either Machiavellian ("reason of state" school) "efficient government" or by Hobbesian ("natural public law" school) "legitimate government." Strauss, 191.

This notion of "natural public law" was to have some important consequences, and so it merits some focus.

Natural public law intends to give such a universally valid solution to the political problem as is meant to be universally applicable in practice. In other words . . . the new type of political theory solves, as such, the crucial practical problem: the problem of what order is just here and now. . . . We may call this type of thinking "doctrinairism" . . . . [T]he practical meaning of the doctrine [is] that the only legitimate regime is democracy.*

Strauss, 192-93.

Along with Hobbes comes something else. Power. "It is in Hobbes's political doctrine that power comes for the first time eo nomine a central theme." Strauss, 194. "[O]ne may call Hobbes's whole philosophy the first philosophy of power." Strauss, 194. According to Strauss, the emphasis on power is related to the rejection of the Aristotelian distinction between potentiality and act. The actus suggests an end, the potentia the power. The rejection of the doctrine of ends (the rejection of teleology, of final causality) meant that focus was placed upon the only thing remaining, power, away from act. "Power, as distinguished from the end for which power is used or ought to be used, becomes the central theme of political reflections . . . ." Strauss, 195-96. Without a natural end, power could be used for whatever purpose man saw fit.

Strauss completes his treatment of Hobbes by pointing out some difficulties associated with the Hobbesian claim of universality, a claim which is predicated upon the assumption that the fear of violent death, the desire for self-preservation, is universally the central passion, and so a firm foundation of political and social order. Hobbes builds his theory on the extreme case, assuming in the "state of nature" a condition of civil war, or total chaos, of no order. He assumes that if his theory of political order works in the extreme case, then it will work in the ordinary case (when there is no state of war). Hobbes encounters some problems, however, in his assumption that the "fear of violent death" is universal. There are other motives that man has other than the fear of violent physical death. For example, there is the "fear of hell fire or the fear of God" that may prove stronger than the fear of violent death. Strauss, 198. The Hobbesian overcomes this by the notion of "popular enlightenment," of "the disenchantment of the world," of ridding the world of "invisible powers." Paulatim eruditur vulgus. The ignorant, the vulgar, will gradually be enlightened, by those without faith, who built their sky-castles on the sands of the philosophy of man, scientific and mathematical, without recourse to God. Hobbes would not countenance the lessons of Psalm 126:
Unless the Lord build the house, they labour in vain that build it. Unless the Lord keep the city, he watcheth in vain that keepeth it.

Nisi Dominus aedificaverit domum in vanum laboraverunt qui aedificant eam nisi Dominus custodierit civitatem frustra vigilavit qui custodit.

Psalm 126(127):1. So "Hobbes's is the first doctrine that necessarily and unmistakably points to a thoroughly . . . a-religious or atheistic society as the solution of the social or political problem." Rather than accommodating his theory to faith, faith would be accommodated to his theory.

More importantly, the Hobbesian theory confronts a dual conundrum. If the fear of violent death is the basis for the social contract that gives rise to the State, then why would the social contract allow for capital punishment and recruitment for war? Why would man trade on the fear of violent death and accept as consideration a situation that exposes him to violent death, either as a result of capital punishment or war? Hobbes would argue that a man does not give up the right to self-preservation and one condemned of a capital offense can fight tooth and nail against his custodians, and in self-defense can justifiably slaughter even his executioner, thereby pointing to an inconsistency between the rights of government and the rights of the individual to self-preservation. What a far cry this is from Socrates! Or Christ! Both of whom submitted to the injustice of the duly-constituted powers in recognition of goods far, far better and desirable than self-preservation. The Italian penologist, Beccaria, on the other hand, would take the Hobbesian principle to its logical conclusion, "in spirit, if against the letter of Hobbes," Strauss, 197, and maintain that the State had not right to put a criminal to death because no man would, under a social contract, trade his fear of violent death for a State which would be able to instill in him the fear of violent death. Hobbes also waffled on the issue of national defense, suggesting that most men (including him) run away from war, and therefore do not willingly contract for it. "But by granting this," Strauss notes, "he destroyed the moral basis of national defense." Strauss, 197. The only way out was the outlawing of war or the establishment of a world state., both of which we have come a long way to trying to achieve. One therefore wonders how much of the modern penchant for outlawing capital punishment or war, and the desire for a one world government is based upon Hobbesian presuppositions regarding the fear of violent death (and not the right to life, which is something different) being the most principal passion.

*As an aside, this sort of doctrinairism is what was behind the "Bush doctrine," and its emphasis on "democratic regime change." At the heart of the "Bush doctrine" was this notion of natural public law, that would ascribe to "democracy," which is nothing but a process, the virtue of being an absolute panacea to social and political problems. In this view, democracy is the only legitimate form of government and is the answer to the world's political and social ills. Though "neo-conservative" in origin, the Bush doctrine has its roots in this "natural public law thinking," and is highly unclassical and untraditional. It is rank Hobbesianism. It is, at heart, therefore, deeply anti-Conservative in the classical or traditional sense. "The classics had conceived of regimes (politeiai) not so much in terms of institutions as in terms of the aims actually pursued by the community or its authoritative part. Accordingly, they regarded the best regime as that regime whose aim is virtue, and they held that the right kind of institutions are indeed indispensable for establishing and securing the virtuous . . . . From the point of view of natural public law, on the other hand, what is needed in order to establish the right social order is not so much the formation of character as the devising of the right kind of institutions." Strauss, 193.

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