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.

Saturday, October 16, 2010

Jacques Maritain and Natural Law: Historical Excursus on Human Rights

HUMAN RIGHTS HAVE A FOUNDATION, a foundation that their most rabid advocates, or perhaps better, those ideologues who have captured the concept of human rights so as to exploit it, seem to want to hide, forget, or suppress. The ideologues--advocates of abortion rights, homosexual rights, to name but two of such groups--want to take the notion of human rights, put a chain around its neck, and treat it as a beast of burden, goading it to do things it has no business doing, parading it around in a cage, like Tamerlane did to the captured Sultan Bajazet. But to a philosopher such as Jacques Maritain, the philosophical or rational foundation of human rights is of great interest. It is of great interest because it is what explains the importance, even immutability of human rights. At the same time, it delineates their limits. Were the foundations of human rights properly understood, the liberals, the libertines, the radical progressives, the positivists would find themselves without warrant to be spouting their "rights talk." Why? Because, "[t]he philosophical foundation of the Rights of man is Natural Law." Maritain, 53. Not, however, the "natural law" of the Jacobins and French philosophes or of Kant and Hegel, but the "natural law" of Cicero, of St. Paul, of St. Augustine, and of St. Thomas Aquinas.

Like the term "human rights," the term "natural law" was captured and misused by ideologues, ideologues of both conservative and revolutionary leanings, so much so that Maritain exclaims in frustration: "Sorry that we cannot find another word!" Maritain, 53. But we ought not to yield the word, just like we ought not to yield on the word Madonna because of its capture and exploitation by the aging, yet ever-confused, Madonna Louise Ciccone.* We ought to recapture it from those who seek to appropriate it, and learn what it is and what it is not. We must learn to distinguish between the doctrine and theories of the natural law--some of which are truer than others, and some of which may be plain false--and the natural law itself which is immutable.

As we discussed in earlier postings on Maritain, there was a change in the concept of natural law beginning in the 17th century, though it had earlier roots, wherein God and the eternal law were separated from the natural law, except perhaps being a sort of distant, Deistic guarantor of last resort. The natural law, thus, appeared shorn from its moorings, the nature of man and his reason, bobbed up and down on the waves to look fallible, fickle indeed. Ironically, the notion of nature and of human reason became to be thought of as "Nature with a capital N and Reason with a capital R," as if they were "abstract divinities sitting in a Platonic heaven." Maritain, 55. The result of putting Nature and Reason in an independent, idealistic throne, in raising them to the Pantheon as if they were gods, was an unrealistic, untenable, doctrine:

As a result the consonance of a human act with reason was to mean that that act was traced from a ready-made, pre-existing pattern which infallible Reason had instructed to lay down by infallible Nature, and which, consequently, should be immutably and universally recognized in all placed of the earth and at all moments of time.

Maritain, 55. Worse, these wannabe Euclids of morality believed that moral calculation could be done with mathematical or geometric precision. Calculating morality was no different that calculating the circumference of a circle given its radius. Read the fantasies of Condorcet in his Observations de Condorcet sur le vingt-neuvième livre de l'Esprit de Lois:
Since truth, reason, justice, the rights of men, and the interests of property, liberty, and security are the same everywhere, it is difficult to understand why all provinces of a state, and for that matter all states, should not have the same criminal laws, the same civil laws, the same laws regulating trade, etc. A good law must be good for all men, in the same way that a true proposition is correct for everybody.

Comme la vérité, la raison, la justice, les droits des hommes, l’intérêt de la propriété, de la liberté, de la sûreté, sont les mêmes partout, on ne voit pas pourquoi toutes les provinces d’un État, ou même tous les États, n’auraient pas les mêmes lois criminelles, les mêmes lois civiles, les mêmes lois de commerce, etc. Une bonne loi doit être bonne pour tous, comme une proposition vraie est vraie pour tous.
Cf. Maritain, 55 (who quotes Condorcet partially without reference). It is quite apparent that Condorcet forgot the fundamental Aristotelian principle so trenchantly express by William Blake in his "Marriage of Heaven and Hell": "One Law for the Lion & Ox is Oppression". It is inconceivable, and an untenable principle, that law should be the same "for man of the age of cave-dwellers as well as for man of the age of the steam engine, for nomadic tribes as well as for agricultural peoples." Maritain, 55. This sort of Procrustean view of law is, in a word, stupid.

What was the "fatal mistake" of these thinkers in Maritain's view?
Natural law--which is within the being of things as their very essence is, and which precedes all formulation, and is even known to human reason not in terms of conceptual and rational knowledge . . . [was improperly] conceived after the pattern of a written code, applicable to all, of which any just law should be a transcription, and which would determine a priori and in all its aspects the norms of human behaviour through ordinances supposedly prescribed by Nature and Reason, but in reality arbitrarily and artificially formulated.
Maritain, 56.

It was this "fatal mistake" that caused this absurd doctrine as espoused by Condorcet and his ilk, and caused every man's reason and every man's nature to be promulgated as law. Thus:

As Warnkoenig has shown, eight or more new systems of natural law made their appearance at every Leipzig booksellers' fair since 1780. Thus Jean Paul Richter's ironical remark contained no exaggeration: Every fair and every war brings forth a new natural law.

Maritain, 56 (quoting Heinrich A. Rommen's The Natural Law).

These doctrines of natural law--and, like the Gerasenes demon, their name is legion--so attacked by positivists are but straw men. No wonder they burned up in a conflagration once the flames of Hume's skepticism and Austin's positivism touched them.

But the problem got even worse. Instead of re-attaching this emancipated-and-then-divinized human reason and human nature to their eternal source to remedy the problem wrought by the thinkers of the earlier century, thinkers such as Leibniz and Kant tried to solve the problem by emancipating and then divinizing the human will. Typical of liberal thinking: to liberalize still further as a solution to the problems that their initial liberalization caused. "So that finally the human Will or human Freedom" was "also raised to Platonic self-subsistence in that intelligible, though unreachable, empyreal world . . . which was to replace God in actual fact as supreme source and origin of Natural Law." Maritain, 56-57. After these thinkers, "Natural Law was to be deduced from the so-called autonomy of the Will." Maritain, 57. So we have such inanities spouted by even such thinkers as Kant and Rousseau:

"A person," Kant wrote, "is subject to no other laws than those which he (either alone or jointly with others) gives to himself." In other words, man must "obey only himself," as Jean-Jacques Rousseau put it, because every measure or regulation springing from the world of nature (and finally from creative wisdom) would destroy at one and the same time his autonomy and his supreme dignity.

Maritain, 57.**

Such a doctrine is fatal to law, and is fatal to the notion of right. "The rights of the human person," under these notions, "were to be based on the claim that man is subject to no law other than that of his own will and freedom." Maritain, 57. This is self-law, which is no law at all. And so, Maritain appropriately ends his quick historical analysis with this conclusion, which, though lengthy, merits being quoted in full:
This philosophy built no solid foundations for the rights of the human person, because nothing can be founded on illusion: it compromised and squandered these rights, because it led men to conceive them as rights in themselves divine, hence infinite, escaping every objective measure, denying every limitation imposed upon the claim of the ego, and ultimately expressing the absolute independence of the human subject and a so-called absolute right--which supposedly pertains to everything in the human subject by the mere fact that it is in him--to unfold one's cherished possibilities at the expense of all other beings. When men thus instructed clashed on all sides with the impossible, they came to believe in the bankruptcy of the rights of the human person. Some have turned against these rights with an enslaver's fury; some have continued to invoke them, while in their inmost conscience they are weighed down to scepticism which is one of the most alarming symptoms of the crisis of our civilization.
Maritain, 57-58.

To which I can only say, "Amen, Brother Maritain!"

*Google "Madonna," especially under an image search, and see when you first get a hit on Our Lady, and not the notorious pop singer.
*Maritain quotes Kant's Introduction to the Metaphysicas of Morals, IV.24 and Rousseau's The Social Contract, I.6. The entirety of Kant's quote is:
A person is a subject whose actions can be imputed to him. Moral personality is therefore nothing other than the freedom of a rational being under moral laws (whereas psychological personality is merely the ability to be conscious of one's identity in different conditions of one's existence). From this it follows that a person is subject to no other laws than those he gives to himself (either alone or at least along with others). (Mary J. Gregor, trans.)

Person ist dasjenige Subject, dessen Handlungen einer Zurechnung fähig sind. Die moralische Persönlichkeit ist also nichts anders, als die Freiheit eines vernünftigen Wesens unter moralischen Gesetzen (die psychologische aber bloß das Vermögen, sich der Identität seiner selbst in den verschiedenen Zuständen seines Daseins bewußt zu werden), woraus dann folgt, daß eine Person keinen anderen Gesetzen als denen, die sie (entweder allein, oder wenigstens zugleich mit anderen) sich selbst giebt, unterworfen ist.
The full cite to Rousseau is:
"The problem is to find a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before." This is the fundamental problem of which the Social Contract provides the solution. (G.D.H. Cole, trans.)

Cette difficulté ramenée à mon sujet peut s'énoncer en ces termes: "Trouver une forme d'association qui défende et protège de toute la force commune la personne et les biens de chaque associé, et par laquelle chacun s'unissant à tous n'obéisse pourtant qu'à lui-même et reste aussi libre qu'auparavant." Tel est le problème fondamental dont le contrat social donne la solution.

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