Leo Strauss and Natural Right: The Seesaw of Justice and Law

JUSTICE AND LAW SEEM TO BE both easy and tense bedfellows. It is just to obey the law, to apply it equally, to govern in accord with the rule of law. This is generally conceded regardless of the law in question. Yet no one reasonably equates law with justice. We talk of unjust laws and just laws. It is just this sort of seesaw or teeter-totter between justice and law that Strauss sees evidentiary of a distinction between convention and nature. When law and justice teeter or "see" as one, doesn't that imply "that there is a measure of universal agreement in regard to justice" and "reflect[] natural right dimly"? When law and justice totter or "saw" as distinct, does that not also "point to the workings of nature"? Strauss, 101. In both corroboration and contradiction, the easy and uneasy relationship between justice and law are suggestive of natural right, natural justice, a natural law.

The Seesaw of Justice and Law

The reason for this tension between law and justice is that human law shows itself to be something self-contradictory:

One the one hand, [human] law claims to be something essentially good or noble: it is the law that saves the cities and everything else. On the other hand, the law presents itself as the common opinion or decision of the city, i.e., of the multitude of citizens. As such, it is by no means essentially good or noble. It may very well be the work of folly or baseness.

Strauss, 101. It is easy enough to see the negative side of law: its folly and baseness. We can all see the truth in the remark often (but wrongly) attributed to Otto von Bismark that laws are like sausages--it is best not to see them being made. The humor in Mortimer Zuckerman's quip that law is the opposite of sex in that even when it's good, it's lousy is easily grasped precisely because we all have experienced the seedy side of law. The harder question is whether the law's claim to noble pedigree is something that can be justified: is it entirely unfounded--are we really dealing with just sausage or the opposite of sex--or is there something real, something true in the claim that law is a noble enterprise?

Heraclitus sees the law as important as the city walls, and so it is in that Heraclitean spirit that the "law claims that it saves the cities and everything else." Strauss, 101. Here is its warrant to nobility: "It claims to secure the common good," and "the common good is exactly what we mean by 'the just.'" Strauss, 101-02. If the law's goodness is thus linked with the common good, then it cannot be merely conventional. It is easy to envision laws that are not conducive to the common good a city. What if a law was passed mandating all married couples to have but one child? What about the laws against Jews passed by the Nazi? What about the laws that institutionalized human chattel slavery? Here one stumbles upon a great truth:

[T]he conventions of a city cannot make good for the city what is, in fact, fatal for it and vice versa. The nature of things and not convention then determines in each case what is just. This implies that what is just may very well differ from city to city and from period to period: the variety of just things is not only compatible with, but a consequence of, the principle of justice, namely that the just is identical with the common good. Knowledge of what is the just here and now, which is knowledge of what is by nature, or intrinsically, good for this city now, cannot be scientific knowledge. Still less can it be the knowledge of the type of sense perception. To establish what is just in each case is the function of the political art or skill.

Strauss, 102 (emphasis added). So it would seem, then, that the law's effort to promote the common good is the natural justice which the law seeks to implement, and is what informs the law, fills the law with the nobility it claims. So the advocates of natural right appear to have clinched the definitive argument against the conventionalist.

Have they? Conventionalism does not die that easily. The advocate of the theory that law is nothing but convention, and that there is no such thing as natural right and justice persists in his contrarian attitude. Conventionalism argues further that there is no such thing, in truth, as the common good. And even if there were such a thing as the "common good," it would be nothing but the product of convention. Since the "common good," if it exists, relates to an artificial or conventional body (the city is established by convention), then it follows that the "common good" is, at heart, conventional, and all law is similarly conventional.

Is the notion of "common good" just a guise for those who are in power to justify the binding nature of the law that they have passed for the ruling power's interests? Is law necessarily partisan? If law can really be nonpartisan, that is, for the common good, then is not the common good defined by the political society in question? And aren't the bounds of that political society, whether they are defined by geographic boundaries, by language or custom, or the laws that define who is a citizen and who is a foreigner, conventional? Doesn't this mean, at bottom, that the common good of the citizens of a city is defined arbitrarily, by convention? Is there any way to escape this conventionalism?

These are issues explored by Strauss as he address the sophisticated counterarguments of the conventionalists to the proponents of natural right, and expose their hidden flaws.

Leo Strauss and Natural Right: Skeptical of Skeptics

THE DISTINCTION BETWEEN NATURE and convention was an important philosophical discovery. It allowed scrutiny of the institutions or actions of man and claimed an extra-human standard by which to judge such institutions or actions. It is axiomatic that one ought not to be a judge (or legislator) of his own cause--his bias makes him a bad judge and his self-interest makes him a compromised legislator. In a similar manner, perhaps, man would be biased in his own judgments did he not have "inside" him the judgment of a greater judge "outside" of him, and a standard or law "outside" of him that was at the same time "inside" of him. For the philosopher, this standard, this judge was nature.

[N]o one can say that all distinctions between good and bad which me make or all preferences are merely conventional. We must therefore distinguish between those human desires and inclinations which are natural and those which originate in conventions. Furthermore, we must distinguish between those human desires and inclinations which are in accordance with human nature and therefore good for man, and those which are destructive of his nature or his humanity and therefore bad. We are thus led to the notion of a life, a human life, that is good because it is in accordance with nature.

Strauss, 94-95. "This notion," Strauss tells us, "was accepted by 'almost all' classical philosophers," though it "was rejected, above all, by the Skeptics." Strauss, 95 n. 19.

A huge point of contention between those who accepted the notion that life ought to be lived in accordance with nature, and that convention ought to be judged by the standard of nature, was the issue of whether justice was a matter of convention or a matter of nature. Was the just good by nature, or was justice merely a matter of human convention? In an effort to determine the answer to that question, philosophers were led to reflect upon the origins of civil society and, even further back, to the origins of man himself, and man's original condition. What was man's original state ante civilis societatis institutionem, before the institution of civil society? Perfect or imperfect? Savage or gentle? If man's original condition was flawed, was man culpable of such flaws, or was he blameless for such flaws?

Those intent on magnifying the power of the modern state and rejecting the role of nature in determining right and wrong, good and bad, would reject such inquiries into man's origins before the advent of the state. They refuse to talk of Adam and Eve. They want to hold the conversation to Caesar and Subject. For them, the State is a fait accompli, an overwhelming reality, in fact the only lasting reality. And so Hegel, drunk with the libations of the offerings to the divine (read idolatrous) State he worshiped, insisted that historical origins of the State were not important; what was important was the idea of the state. Strauss, 96 (citing Hegel's Philosophy of Right § 258). Civil society had supplanted man's nature, if man's nature even existed.

But the classical philosophers thought otherwise:

From the point of view of the ancients, however, the question of the origins is of decisive importance because the correct answer to it clarifies the status, the dignity, of civil society and of right. One inquires into the origins or the genesis of civil society, or of right or wrong, in order to find out whether civil society and right or wrong are based on nature or merely on convention.

Strauss, 96.

Those that rejected the notion that justice was based upon nature--the Skeptics--then as now argue that there cannot be such a thing as natural right or natural justice because different societies have differing views on what is right and what is just. There would not be this cacophony of rights and justice if there were such a thing as natural right and justice. Rather, we would hear a euphony, a single song, of right and justice. Ergo, the argument goes, there is no such thing as natural right and justice.

Strauss vehemently rejects the validity of such an argument against the position of natural right and natural justice. It includes an unstated assumption. The unstated assumption is that if there is such a thing as natural right and natural justice, then man would be compelled to know it, to regard it, and to do nothing else but follow it. In other words, it confuses the immutability or unchanging nature of natural right and natural justice, with determinism. But proponents of natural right and justice have never insisted that unchanging principles of natural right and justice, if they exist, are compulsory upon men and that man has no freedom to reject them. The opponents of natural right and justice completely disregard the possibility that man, both singly and aggregately, because of his imperfection in intellect or will, or because of his conventions, can, and frequently does, make himself deaf and blind to natural right and justice. The argument is analogous to one who would argue that there is no such thing as a universe because men have had different renditions or notions of what the universe is. The latter argument, is, palpably nonsense. The fact that men have had varied notions of the universe does not establish that the universe does not exist. Equally, the fact that men have had varied notions of justice and right does not establish that natural right and natural justice do not exist. There is absolutely no inconsistency between the existence of natural right and natural justice and the fact that man has had a variety of opinions on right and justice.

The variety of notions of justice [among men] can be understood as the variety of errors, which variety does not contradict, but presupposes the existence of the one truth regarding justice. . . . The evidence adduced by conventionalism [the variety of notions of right and justice among men and societies] is perfectly compatible with the possibility that natural right exists and, as it were, solicits the indefinite variety of notions of justice or the indefinite variety of laws, or is at the bottom of all laws.

Strauss, 98, 101. If there is such a thing as natural right or natural justice, the Skeptics insist, then shouldn't it be knowable? If it is not knowable by man, then it is as good as non-existent. If it is is knowable, then how can a proponent of natural right and justice explain the fact that these immutable rights and justice seems to be unknown in so many instances?

This argument against natural right presupposes that all knowledge which men need in order to live well is natural in the sense in which the perception of sensible qualities and other kinds of effortless perception are natural. It loses its force, therefore, once one assumes that knowledge of natural right must be acquired by human effort or that knowledge of natural right has the character of science.

Strauss, 99. The fact that men, say some current-day aborigine, or say many societies in the past, are or were ignorant of the principles of modern science does not disprove those principles. Likewise, the fact that men have not known, or even yet do not know, the principles of natural right and justice does not disprove the existence of those principles. It merely proves their lack of knowledge of them.

Justice in the Brain

Strauss suggests that one of the best proofs of the existence of natural right or justice may be found in the universal attitude toward law.

Everywhere it is said that it is just to do what the law commands or that the just is identical with the legal, i.e., what human beings establish as legal or agree to regard as legal. Yet does this not imply that there is a measure of universal agreement in regard to justice? It is true that, on reflection, people deny that the just is simply identical with the legal, for the speak of "unjust" laws. But does not the unreflective universal agreement point to the workings of nature? And does not the untenable character of the universal belief in the identity of the just with the legal indicate that the legal, while not being identical with the just, reflects natural right more or less dimly?

Strauss, 101. In other words, Strauss finds the ultimate source of natural right and natural justice in human law and the interplay of that "law" with "right" and with "justice." Human law, and human understanding of human law, is the springboard from which the philosopher is able to gain access to the notions of something altogether outside of human law but which is presupposed by it: natural right and natural justice. Therefore, Strauss launches into an analysis of human law, an analysis which we will address in subsequent postings.

Leo Strauss and Natural Right: Hidden Nature, Hidden God

PHILOSOPHY DISCOVERS BOTH NATURE AND ITS MAKER, the contingent and the necessary, permanent, eternal First Cause--God. Nothing comes from nothing. De nihilo nihil. Nature--the first things or the right way--comes from the necessary, permanent, eternal. Philosophy thus leads us from phenomena to nature and unto God.

Nature would not have to be discovered were it obvious, were it not hidden. God is Deus absconditus. Nature is likewise recondite, hidden: natura abscondita. In part, nature is hidden by convention, by human custom, by human law--nomos.

Man cannot live without having thoughts about the first things, and, it was presumed, he cannot live well without being united with his fellows by identical thoughts about the first things, i.e., without being subject to authoritative decisions concerning the first things: it is the law [nomos] that claims to make manifest the first things or "what is." the law, in its turn, appeared to be a rule that derives its binding force from the agreement or the convention of the members of the group.

Strauss, 91.

Here, perhaps, is the germ of animosity between politics, especially arbitrary power, and philosophy and the natural law. Both philosophy in general, and the natural law in particular, challenge the artifice, the convention that man seeks to impose, perhaps first as an expression of the first things and the right way, but later, often in a sort of creeping challenge or perhaps a slow ossification or sclerosis, in substitution of, or in contradiction to, nature. So philosophy in general and the natural law in the area of morals in particular, seek to go beyond or behind convention to the mother of all customs, the custom of all customs, the tradition of all traditions:

Nature is the ancestor of all ancestors or the mother of all mothers. Nature is older than any tradition; hence it is more venerable than any tradition. . . . By uprooting the authority of the ancestral [and a fortiori the conventional], philosophy recognizes that nature is the authority.

Strauss, 92. It is an authority, but Strauss clarifies, perhaps better referred to as the standard, as it is reason or understanding that discovers nature through abstraction of reason from sense perception, and so nature is never known except through reason. It is the latter that may be said to be the authority that both discovers and then applies the standard.

As Strauss observes the discovery of nature, which means also the distinction between nature and convention, is a necessary but not sufficient condition for the discovery of natural right. The reason why the discovery of nature is not enough to inform us of natural right is that it may be that all right is conventional, and there is no such thing as natural right. Nature may be bereft of right. It may be beyond good and evil, a sort of premoral given, like the nominalists or voluntarists would liken God. It is still possible--even after having discovered nature--that God, for example, simply does not care about justice. He is far above us, an Olympian. He is far away from us, a Deistic self-regarding not communicating, not a Providential God.

God [it may be] is not concerned with justice in any sense that is relevant to human life as such: God does not reward justice and punish injustice. Justice has no superhuman support. The justice is good and injustice is bad is due exclusively to human agencies and ultimately to human decisions.

Strauss, 94. Indeed, it is precisely the rejection of "particular providence" that is father of such a thought. That thought comes into the mind of man when he stumbles upon the scandal of particular providence, a scandalous providence that states that God regards the number of hairs on our head, or that he concerns itself with the fall of the sparrow. (Cf. Luke 12:6-7) If so, we doubt, where is the proof of it? The vast cosmos seems indifferent to our plight. It appears, for example, not to have answered the prayer of the Jew caught within killing camps, the Vernichtungslagers and the Todeslagers of the Nazi. It appears sublimely unconcerned in the main. It is possible to get stuck in the apparent disconnect between Providence posited and Providence realized. So, for example, Simone Weil could not jump the gap, and separated the world of nature from the world of God. But Strauss thinks that there is an Aristotelian--etiamsi daremus non esse Deum--way around the problem, that "the example of Aristotle alone would suffice to show that it is possible to admit natural right without believing in particular providence or in divine justice proper." Strauss, 94. So technically, the light of the Gospel, or even belief in a providential God, is not required to believe in natural law or natural right. This, at least, is Strauss's view. He would expand the tent of the natural law and natural right to bring in those who harbor doubt, perhaps even disbelieve, in the God of revelation, and even in the God of natural theology.* For Strauss, natural right and natural law exist, etiamsi daremus non esse Deum.

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*Strauss cites Aristotle, Nicomachean Ethics, 1178b7-22, Socinus, Praelectiones theologicae, cap. 2, Grotius, De jure belli ac pacis, Prolegomena § 11, Leibniz, Nouveaux essais, Book I, chap. ii, § 2, and III, chap. 16 and II chap. 6 of Rousseau's Social Contract. I am not sure of it. It seems to me that there is a greater connection between the providence of God and the rule of the cosmos (including man)--the eternal law--and natural law or right, which is nothing less than man's participation in the eternal law. While the difficulty of believing in particular providence may be conceded, its existence need not. We must ever realize that our sights are limited. We have no ability to see sub specie aeternitatis, under the light of eternity. And we certainly have no ability to encompass the entirety of the cosmos so as to become privy to the particular plan of God for each of his creatures in particular and the cosmos as a whole. There has to be room for faith, even if intellectual and not supernatural, in a philosophy of natural law or natural right. We have addressed this issue before: see Natural Law: Ecstasis and Telos and Potpourri of Natural Law, though a lot more could be said about it. Moreover, we have to remember that particular Providence may be hidden because of our sin, because of others' sins, because of convention, or a combination of all three. In the maw of Auschwitz, where God's providence was hid, as it were, with the black drapes of institutionalized and personal sin and wicked convention--like our statues draped in purple cloth during Lent--St. Maximilian Kolbe was able to look past all these veils and never disbelieved God's particular providence even in extremis. Indeed, he was a vehicle of particular providence for Franciszek Gajowniczek, the Jewish father and husband whose place he volunteered to take in a starvation cell.

Leo Strauss and Natural Right: From We to I, From Ours to What Is

AUTHORITY IS QUESTIONED BY PHILOSOPHY, and by its adjuncts, natural law and natural right. Confronted with the legion of authoritative "divine codes," divine laws and commandments, even in matters of the "way" and of "first things," how is one to chose? They cannot all be right. And even if they are all conventional, at least one view is not. "The view that the gods were born of the earth cannot be reconciled with the view that the earth was made by the gods." Strauss, 86. Even less can the existence of gods, whether earth-bearing or earth-born, be reconciled with the I AM WHO AM, the Ehyeh asher ehyeh, אהיה אשר אהיה‎, who revealed himself to Moses. Here, then, is the fundamental question whether one be Jew or Greek, Muslim or Hindu, Buddhist or Shinto, Atheist or Agnostic:

[T]he question arises as to which code is the right code and which account of the first things is the true account. The right way is now no longer guaranteed by authority; it becomes a question or the object of a quest. . . . It will prove to be the quest for what is good by nature as distinguished from what is good merely be convention.

Strauss, 86.

So how is this quest for the first things and the right way to be engaged? If authority cannot be relied upon because of the clamor and inconsistency of the number of authorities "The philosophic quest for the first things presupposes . . . that the first things are always and that things which are always or imperishable are more truly being than the things which are not always."
--Leo Straussand no single authority to distinguish among the true and the false, then in our quest for the first things and the right way where are we to turn? If, because the number of authorities making claims, we are not to able simply to rely upon authority, are we to rely on "hearsay," or are we to rely on what we see "with our own eyes." That is, do we rely on indirect evidence or on direct evidence of what is the right way and the first things? Direct evidence is considered superior to indirect evidence, and so the philosopher for the first time was able to oppose the "I" to the "We." The search for first things and the right way became personal.

Judgment on, or assent to, the divine or venerable character of any code or account is suspended until the facts upon which the claims are based have been made manifest or demonstrated. They must be made manifest--manifest to all, in broad daylight. Thus man becomes alive to the crucial difference between what his group considers unquestionable and what he himself observes; it is thus that the I is enabled to oppose itself to the We without any sense of guilt.

Strauss, 87. But this "I" which engages in pursuit of the right way and the first things is not an autonomous I. "But it is not the I as I that acquires that right" to oppose itself against the We. That would be merely to shift the authority from the group to the individual. This is no forward progress at all; indeed, it is arguably a negative progress."The distinction between nature and convention, between physis and nomos, is therefore coeval with the discovery of nature and hence with philosophy."
--Leo Strauss It would be to splinter authority and exacerbate the problem of finding the right way and first things. Instead of social or group answers in the dozens, we have individual answers in the millions. The vision that must govern the "I" is not a private, idiosyncratic world. The I must look for "the one true and common world perceived in waking," and reject "the man untrue and private worlds of dreams and visions." Strauss, at 87. The "I" that separates itself from the "We" is man as man. The things that are looked at as the source of standard are things as things, not things made by man. We are relegated to the only possible source for sifting and parsing through the multiple answers posited by authority and private dreams to find what is true: nature, the natural reality of things, things that are not made by man, but by the Creator:

Thus it appears that neither the We of any particular group nor a unique I, but man as man, is the measure of truth and untruth, of the being or nonbeing of all things.

Strauss, 87. So, ultimately, objective reason, both speculative and practical, must be retained to help us select among rival versions of ultimate reality. The natural law is what helps us determine which rival versions of reality are false (a religion whose moral teachings violate the natural law is to be rejected). Natural philosophy likewise helps us determine which rival versions of reality are false (a religion that teaches contradictory things, or whose doctrines are against reason is to be rejected). The nature of things, then, was the judge of the false oracle from the true. But this philosophical quest had also to distinguish between things of man and things that are of nature prior to man, things that are permanent and things that are not:

Nature was discovered when man embarked on the quest for the first things in the light of the fundamental distinctions between hearsay [indirect evidence] and seeing with one's own eyes [direct evidence], on the one hand, and between things made by man and things not made by man, on the other. . . . In brief, then, it can be said that the discovery of nature is identical with the actualization of a human possibility which, at least according to its own interpretation, is trans-historical, trans-social, trans-moral, and trans-religious.
. . . .
The philosophic quest for the first things presupposes not merely that there are first things but that the first things are always and that things which are always or are imperishable are more truly beings than the things which are not always . These presuppositions follow from the fundamental premise that no being emerges without a cause or that it is impossible that "at first Chaos came to be," i.e., that the first things jumped into being out of nothing and through nothing. In other words, the manifest changes would be impossible if there did not exist something permanent or eternal, or the manifest contingent beings require the existence of something necessary and therefore eternal.
. . . .
Once nature is discovered, it becomes impossible to understand equally as customs or ways the characteristic or normal behavior of natural groups and of the different tribes; the "customs" of natural beings are recognized as their natures, and the "customs" of the different human tribes are recognized as their conventions. The primeval notion of "custom" or "way" is split up into the notions of "nature," on the one hand, and "convention," on the other. The distinction between nature and convention, between physis and nomos, is therefore coeval with the discovery of nature and hence with philosophy.

Strauss, 88-90.

Leo Strauss and Natural Right: Origins

NATURAL LAW OR RIGHT BEGINS WITH a "natural" understanding, not a "scientific" one. Wearing "scientific" blinders does what blinders do: it blinds the wearer to the 360 degrees of the world around him so that he may better concentrate on the narrow view before him. While there is some benefit to such tunnel vision--one is not distracted by the greater world around him--it remains what it is: tunnel vision. One will not see natural law or natural right if one has scientific tunnel vision. One must begin with human vision in its entirety. This is what Strauss calls "natural" understanding, a broad, "macro" look into reality, into nature, in particular when it comes to natural right, the nature of political life.

Natural right (which for Strauss appears to be a narrow subset of a broader natural law) is implicit in political life, which means it is not manifest and unavoidably present. It must be "discovered," sought and learned from the nature of things, in particular, political life. Natural right is learned, abstracted as it were, from political life. It was learned through philosophy, a philosophy which challenged the ways of the ancients and the way of the authorities. Like all philosophy, it began with a sense of wonder about political life, the nature of political life.

A prerequisite for understanding natural right is therefore an understanding of nature. "The idea of natural right must be unknown as long as the idea of nature is unknown." Strauss, 81. The process involved in the discovery of natural right is therefore philosophical, not fideistic. Strauss distinguishes rather brutally between divine positive law and natural right. The latter is a product of human thought, human endeavor, human inquisitiveness and wonder. It is apparent that the Old Testament is not a product of philosophy. The message comes to man manifestly in a different way: through revelation.

The Old Testament, whose basic premise may be said to the the implicit rejection of philosophy, does not know "nature": the Hebrew term for "nature" is unknown to the Bible . . . . There is, then, no knowledge of natural right as such in the Old Testament.

Strauss, 81. (Personally, I think Strauss paints too sharply. He ignores the Psalter and the Books of Wisdom, which suggest a sort of philosophical approach to reality, and appreciation of God's creation. Moreover, if the Old Testament were that explicit in rejecting philosophy, it would be hard to explain the amenability of the Old Testament to Greek philosophy engaged in, for example, by Philo of Alexandria or much later by Moses Maimonides. Nevertheless, it is unquestionable that the means involved in learning of man and God in the Old Testament is not in the main through intellectual wonder and application of reason, but revelation. There is a difference between Jerusalem and Athens. Later on, he ameliorates his position somewhat. See below.)

What is nature? Nature is not merely an aggregation of all phenomena. If so, one could sum up the separate positive sciences and know nature. But this is not what nature is. Nature is not a sum of phenomena. It divides phenomena. Nature is a solvent, or perhaps better, a filter that is applied to all phenomena. That is, the concept of nature divides some phenomena from other phenomena. "'Nature' is a term of distinction." Strauss, 82. It allows us to remove accretions that are not natural, that are conventional. It allows us, further, to remove habits or customs that are wrong, that are bad, and so distinguish from the customs or ways of men, those that are good and right.

"Nature" is the philosophical concept used to divide or distinguish particular, localized custom or ways from "paramount" customs or ways. "Paramount" customs or ways are both general or common and right. These customs or ways traverse all local groups and tribes, are general to humans as humans. Further, "nature" divides out the "paramount" customs or ways (those which are right), from customs or ways that are not right. "The discovery of nature consists precisely in the splitting-up of that totality into phenomena which are natural and phenomena which are not natural: 'nature' is a term of distinction."
--Leo Strauss
Because the ways or customs of people are so central to their life in common, their political life, it follows that these customs or ways were affected by two features: history (the tradition of the ancients) and authority. The former was a source of custom. The latter was a means for resolving dispute as to customs among a group. Thus, before the notion of philosophy could develop the notion of natural right, it had to break the hold, the monopoly as it were, of the ancients and of authority on political life. In other words, philosophy sought to appeal above and beyond mere tradition and authority. Ultimately, this appeal was to the reason in things, the nature of things.

Even now, the concept of "nature" has a predilection for what is old, for what is old is generally, but not necessarily, paramount or right custom. Men, in the main, are sound over time and in numbers. But it was prephilosophic life that equated or identified the good with the ancestral, and attributed to the ancestral a notion of supereminence, even an access to divinity that was denied their successors. Though philosophy broke this link as being a necessary link, there is still a strong, albeit not necessary correlation between what is old and what is good and right. Nevertheless, after philosophy came on the scene and advanced the notion of nature, particularly in regard to common life (natural right), there is no identity between the ancient and the right. This identity was broken, and man was freed from the weight of tradition, and, to the extent traditions did not accord with what was good and right, was offered a means to overcome these.

The primeval identification of the good with the ancestral is replaced by the fundamental distinction between the good and the ancestral; the quest for the right way or for the first things is the quest for the good as distinguished from the ancestral. It will prove to be the quest for what is good by nature as distinguished from what is good merely be convention.

Strauss, 86.

Similarly, philosophy questioned the role of authority in defining "The emergence of natural right presupposes, therefore, the doubt of authority."
--Leo Straussthe paramount way based upon the nature of things. "The emergence of natural right presupposes, therefore, the doubt of authority." Strauss, 84. This is not say, that all authority is immediately suspect. Quite the opposite, there is frequently accommodation between philosophy and authority, especially that special authority that is derived from revelation.

This is not to deny that, once the idea of natural right has emerged and become a matter of course, it can easily be adjusted to the belief in the existence of divinely revealed law. We merely contend that the predominance of that belief prevents the emergence of the idea of natural right or makes the quest for natural right infinitely unimportant: if man knows by divine revelation what the right path is, he does not have to discover that path by his unassisted efforts.

Strauss, 85. This overwhelming predominance of revelation is the position taken, for example, by those Protestants who reject the natural law thinking (e.g., Calvin, Barth) and, especially in traditional Ash'arite Islam which rejects any notion of natural law, for all to them is divine positive law. There is no such thing as a "Shari'a" of nature, all is Shari'a of Allah as found in revealed sources.

In a footnote, Strauss elaborates on two parallel and complementary substrates of the notion of "nature." It is worth pausing to look at this. The first notion of nature, the Platonic, looks at nature as "the first things," τά πρῶτα, those things that are first, fundamental, foundational (nature as fire, earth, air, water). The second, Aristotelian and Stoic, looks at nature as the "way" or "custom," ἡ ὁδὸς. Strauss sees the notion of the "right way" or "paramount way" as being a link between these two concepts of nature as "first things" and nature as "way" or "custom." It is the fundamental, basic path which something should take as it progresses towards its end or fulfills its purpose.

Nature as "the first things" is therefore a fundamental aspect of nature. In Plato's dialogue between Megillus and the Athenian (the Laws), discussion is had about the fundamental Urstoff or "first things." It is these "first things," the fundamental Urstoff, ta prota, which Plato seems to equate with nature (physis). Laws 891c1-4; 892c2-7. So nature is the fundamental substrate, as it were, of all things. That which exists before the artificial accretions of convention or authority, which may either detract or complement from the "first thing" or nature.

The concept of nature also comprehends the concept of "way," and derivatively, "custom" in general, that is, nature as the "essential character of a thing or a group of things," the way things usually go. Strauss, 83, n. 3. This notion of nature as "the way," the Greek ὁδός (hodos), or the Latin via, is one especially advocated by Aristotle and the Stoics. Aristotle uses the notion of "the way" in his definition of nature in his Physics, as, for example, in 193b13-19. (ἔτι δ' ἡ φύσις ἡ λεγομένη ὡς γένεσις ὁδός ἐστιν εἰς φύσιν) ("We also speak of a thing's nature (physis) as being exhibited in the process of growth (hodos) by which its nature is attained). See also 194a27-30 and 199a9-10 (which Strauss cites) and Cicero's De natura deorum (On the Nature of the Gods), ii.57, 81 (nature as via progredientem). The word hodos or via means a path, way, road, even the course of things, the way they regularly go, such as the path of a river or the course of stars and planets. It evokes the notion of a journey, a voyage, a movement from a terminus a quo to a terminus ad quem, a beginning and an end, a final cause. Interestingly, it is the term adopted by the Christians, nay even Christ himself, to signify the path they ought to take: Christ is hē hodos, via, the way (John 14:6). For the Christian, then, Christ is the personification of nature, he is the nature of man become flesh as much as he is God become flesh, for he is truly man and truly God. He is therefore both the fulfillment of the law of nature and the law of Moses.

Citing to Moses Maimonides Guide of the Perplexed, i.71, 73, and Pascal's Pensées (Nos. 222, 233, 92), Strauss states cryptically: "When 'nature' is denied, 'custom' is restored to its original place." Strauss, 83 n. 3. It is not clear to me what he means except that if "nature" is denied, we are relegated from God as a God of reason to God as a God of arbitrary will. We fall from reason to raw will. Everything, then, would be based upon the convention of the Creator, and nothing is its own. And all thinking is worthless, because any effort to find a "way" or a "first thing" in what is nothing but arbitrary, capricious, disordered, irrational will, even if it is God's will, is in vain. It is more than vain. It is utterly foolish exercise. Philosophy disappears, and all we can do is unthinkingly be still and suffer God's inscrutable decrees, like a Russian serf the Czar's ukases, or the miserable Muslims whose only response is an unreasonable, irrational servile submission to the inscrutable, arbitrary Allah the questioning of whose will is not to be brooked. For a Christian, a thousand questions do not make one doubt (Newman). For the traditional Muslim any question is a doubt. All is authority. All is revealed custom. Philosophy and nature have been elbowed out. Man shrivels up from son to slave.

Leo Strauss and Natural Right, Part 3-C: Max Weber

STRAUSS IT WOULD APPEAR tries to save Weber from inconsistency, or tries to understand his theory and practice as an aggregate to establish some synthesis. Strauss concludes that Weber's rejection of value judgments is limited to so-called "ultimate values" only. Strauss, 64. Accordingly, Weber would recognized that sociology necessarily refers to judgment, and that a sociologist must be sensitive to, and appreciate, such a thing as values. The social scientist is, moreover, authorized to make limited value judgments, and so is able to distinguish

between the genuine and the spurious and between the higher and the lower . . . between knowledge and mere lore or sophistry, between virtue and vice, between moral sensitivity and moral obtuseness, between art and trash, between vitality and degeneracy, etc.

Strauss, 63-64. These sorts of subordinate value judgments are allowed to the social scientist (Weber himself engaged in them).

However, the story is different for "ultimate values." It is in the realm of "ultimate values" that the social scientist (if he follows Weberian orthodoxy) refuses to choose. At the heart of Weberian dogma is the supposition that it is impossible through the use of reason to resolve value judgments when it comes to "ultimate values," and so the social scientist must be indifferent or neutral with respect to these. The social scientist may therefore opine that it is better to be a Gretchen than a prostitute, but cannot opine that it is better to follow God than the Devil. Reason serves to help adjudge the former value judgment, but is helpless in resolving the second value judgment because it is "ultimate." It deals with other-worldly realities.

Is the Weberian premise that "ultimate values" are not subject to the scrutiny of reason valid? If so, how does Weber prove it or justify it? In an effort to glean Weber's justification, what Strauss finds among the entirety of the published Weberian corpus is shockingly thin.

. . . Weber, who wrote thousands of pages, devoted hardly more than thirty of them to a thematic discussion of the basis of his whole position [that reason cannot determine ultimate values].

Strauss, 64. It appears that Weber thought this premise so self-evident, so much a "given," as to require virtually no proof or discussion. In Strauss's view, the Weberian assumption was nothing less than an extenuation of the earlier (Machiavellian) doctrine that posited an insoluble tension, perhaps even conflict, between politics and ethics. This influence is supported by Weber's notable Heraclitean view that conflict is what is real, that, in fact, peace is not. The essence of life being conflict, then, it follows that life is more governed by "power politics," which is how conflict is handled, than by ethics, which is how good is handled.

Weber put tremendous worth in power. Indeed, it was of easy or expedient measure, and that's why many are tempted to or attracted to power as a substitute for right. There is great objectivity in determining who is on top in the course of a war, a battle, or a fight. It is usually easy to determine which boxer won the fight: it is the guy on the mat after the count of ten. Contrariwise, moral victories are more subtle, perhaps more ambiguous. We can actually suffer more by being loyal to moral principles than by being disloyal, falling into the temptation of power, and lapsing into war, and even immoral war. (Consider how much more carnage we would have incurred had President Truman done the right thing and refused to bomb innocent civilians in Hiroshima and Nagasaki. Do the ends justify the means? Hardly in traditional morality.) Certainly, in Weber's eyes such thing as ultimate values were impossible to rank, which means, of course, it is hard to tell who's the winner when it comes to ultimate things. The moral winner, may, in this world, be the loser in conflict. Whether it is good that a reprobate beats a saint in a fight is one thing; whether the reprobate wins and the saint loses is another. The latter is much easier to judge using objective standards, and for Weber for that reason the only judgment that could be based upon reason.

Regardless of Weber's Machiavellian tendencies, however, he does engage in a limited effort at proving his premise that reason is not competent to judge between ultimate values, to arbitrate, adjudge a conflict between ultimate values. Strauss selects two samples from Weber's efforts.

Weber's first example selected by Strauss invokes the concept of justice. Social policy, it is agreed by most, has justice as its aim. But what is justice? Here we fall into what Weber would see as irresolvable conflict. Some say that we ought to give to each according to his ability. Others say that we ought to take from each according to his ability. Who is to say whether the Capitalist model of justice or the Marxist model of justice is right? According to Weber, reason is incompetent to determine this in any objective manner. If we rely on reason, the two views are equally defensible. If both are equally defensible, then the only indefensible thing is for someone to say that only one view is acceptable with justice. For Weber, the supposed unanswerability of such a question points to ultimate values such as justice simply being outside the realm of reason.

The other example selected by Strauss involves the famous Weberian distinction between "ethics of responsibility" and "ethics of intention."

According to the former, man's responsibility extends to the foreseeable consequences of his actions, whereas, according to the latter, man's responsibility is limited to the intrinsic rightness of his actions.

Strauss, 69. Which of the two incompatible ethical positions, at least where the ethics of intention was construed to include other-worldly considerations, was superior could never, in Weber's view, be determined through the use of reason. That is, other-worldly considerations were not to be settled, could not be settled, by reason. This is at the heart of the Weberian formula, and it is what precludes, at the very outset, any notion of natural law being part of the social science enterprise:

Weber was convinced that, on the basis of a strictly this-worldly orientation, no objective norms are possible: there cannot be "absolutely valid" and, at the same time, specific norms except on the basis of revelation.

Strauss, 70. Social science limits itself to a this-worldly point of view, and rejects as outside of reason, and therefore outside of its realm of study, any other-worldly, or "ultimate-value" considerations. Implied, clearly, is that an unreasonable, or perhaps better, irrational faith was involved in the grasp of ultimate objective values. Faith was for Weber a Kierkegaardian "leap of faith," a Tertullianesque jump into absurdity. These were not things that could be measured, weighed, and judged by positive science. Only this-worldly considerations were governed by reason and the subject of science, and those considerations did not involve those ultimate values. And here's the rub in Weber's thought, for Strauss:

[W]eber never proved that the unassisted human mind is incapable of arriving at objective norms or that the conflict between different other-worldly ethical doctrines is insoluble by human reason. He merely proved that otherworldly ethics, or rather a certain type of otherworldly ethics, is incompatible with those standards of human excellence or human dignity which the unassisted human mind discerns.

Strauss, 70-71. So Weber fell into the old reason/faith dualism, where reason and faith were at odds. If "genuine insights of social science," Weber felt, could be "questioned on the basis of revelation, revelation" would be "not merely above reason but against reason." Strauss, 71.

Here, poor old Weber, perhaps influenced by his Protestant heritage, had painted himself in a corner. On the one hand, he believed that faith was ultimately irrational, or absurd. On the other hand, his first premise--that ultimate values were outside the decision-making capacity of reason and therefore outside the purview of social science--was ultimately built upon faith. "He contended," Strauss concludes, "that science or philosophy rests, in the last analysis, not on evident premises that are at the disposal of man as man but on faith." Strauss, 71. Weber's fundamental formula would, if Weber's formula is used, result in an irrational or absurd base. Weber says that faith is built upon sand, and reason upon rock, but his theory that faith is built upon sand and reason on rock, is built upon sand. Why is his sand any better than my sand?

It's not. So this leads to the more ominous conclusion. More ominously, since what was ultimately "good" was outside the realm of reason, it was outside the realm of social science. So the very goodness of social science, its very merit as a human enterprises, was unprovable. And, the use of science was ungoverned by any sort of "ultimate value." Science could run amok of any moral constraint and there was nothing we could do to stop it. There simply was no governor, no speed limit, no policing standard. "Just because we can, doesn't mean we should" has no role in Weber's world. There are no "shoulds" or "oughts" in science. We just do things "because we can." There is no punishment for Prometheus. There are no Pandora's boxes. There are no prohibited Trees of Knowledge. There are no moral constraints to science. This is Weber's world. These legends, these myths, these narratives have no meaning. By refusing myths, legends, biblical narratives, we end up with harrowing nightmares like the World Wars, nuclear bombs, mustard gas, torture, experimentation on blacks, the murder of infants in their mother's wombs, concentration camps, genocide. What other wonders, harvests of science, will we be given? These are the fruits of untrammeled, efficient, valueless science. Welcome to Weber's world.

Rather than admit error, Weber concluded that being painted in metaphysical epistemological and moral corner was just simply something modern man had to face. Modern man had "eaten of the fruit of the tree of knowledge," he had been freed from the "delusions which blinded all earlier men," he was "disenchanted." Strauss, 73. It was just the price one had to pay for being a modern man. But, if one thought about it long enough, being painted in a metaphysical and moral corner was perhaps but a bad dream, a will o' the wisp, and ignis fatuus. Since the ultimate could not be known, and all knowledge was this-worldly and relative, that is, historical, then this era of disenchantment and removed delusions was no more objectively superior to any prior era or era to come.

Hence what originally appeared as freedom from delusions presented itself eventually as hardly more than the questionable premise of our age or as an attitude that will be superseded, in due time, by an attitude that will be in conformity with the next epoch.

Strauss, 73.

Oops. This is quite clearly an intellectual, existential crisis. Science is to be the way of life and of knowledge, even though we know it is only a way? (We certainly know it is not the Way. Only the Man-God had the basis for saying Ego sum via, "I am the way.")

This just does not work. But this was the world into which Weber was born and to which he adapted. It was Faith or Reason. It was believed that

Man cannot live without light, guidance, knowledge; only through knowledge of the good can he find the good that he needs. The fundamental question, therefore, [was] whether men [could] acquire that knowledge of the good without which they [could not] guide their lives individually or collectively by the unaided efforts of their natural powers, or whether they [were] dependent for that knowledge on Divine Revelation. No alternative [was] more fundamental than this: human guidance or [only] divine guidance. The first possibility is characteristic of philosophy or science in the original [that is, not Weberian or Baconian] sense of the term, the second is presented in the Bible.

Strauss, 74. In Weber's day, the question of the good was like a path that divided into two roads. One either had to go the way of reason or go the way of faith. The sign said "Fides" on one side, and "Ratio" on the other. Weber, who grew up with Protestant blood, did not believe in a reconciliation of faith and reason. He refused to believe that there was a "narrow road," a tertia via or third way, perhaps one less-traveled though certainly trumpeted as existing by the Catholic Church, between the main fork where one could deftly walk using both reason and faith.

It was the [perceived] conflict between revelation and philosophy or science in the full sense of the term and the implications of that conflict that led Weber to assert that the idea of science or philosophy suffers from a fatal weakness. He tried to remain faithful to the cause of autonomous insight, but he despaired when he felt that the sacrifice of the intellect, which is abhorred by science or philosophy, is at the bottom of science of science or philosophy [which admitted of the possibility of reasonable revelation].

Strauss, 75.

It is symptomatic of one who despairs of reaching substantive truth or good to lapse into methodology. So those who despair of defining social good or social justice talk of the methodology or procedure of democracy. Similarly, those, like Weber, who despair of reaching substantive truth through reason, lapse into the methodology of experimental or positive science. Those who despair of religious truth fall into the methodology of dialogue or a cuius regio eius religio.

"[M]ethodology is reflection on the limitations of humanity or the situation of man as man." Strauss, 76. It is the cover for which we yearn when we find ourselves naked as a result of having yielded to disbelief, or, what is saying the same thing, that belief is not rational. This is what happens when we taste of the tree of knowledge of good and evil. There is no real difference between believing that belief is irrational and believing that it is irrational to believe. Methodology is the shade-tree under which, or perhaps better the Platonic "cave" in which, we will find those who have lost the Augustinian and Anselmian formulae that faith seeks understanding (fides quaerens intellectum) and that we believe so that we may understand (credo ut intelligam). It is where we find those who have rejected the Thomistic, nay Catholic, doctrine that it is not either reason or faith, but both faith and reason, fides et ratio by which we must abide. It is where we find those little white, pasty intellects that fear the sun and hard work, those who refuse the labor sub sole. Methodology is the recourse, the haven of unbelief. It is the fig leaf we use to cover up our pudenda, which is what we always see when we try to make ourselves god.

Strauss completes his chapter on Weber by addressing the historical (17th century) departure of "science" (really, at first physics; the other natural sciences followed physics) from the greater realm of "philosophy." This was the time when a unified subjective/objective "common sense," based upon a "natural understanding," was divided into its two strands, two "understandings," eventually trickling into noumenal subjectivism ("philosophy") and phenomenal objectivism ("science"). Natural understanding was based upon the whole, "the world in which we live." "Scientific" understanding was based upon a subset of that world, the borders of which were defined by the "scientist," the demimonde which we may call "the world of science." Strauss, 78-79. During this three hundred year transformation of thought when the intellectual world shrank, a huge change came over human understanding as man extruded as it were "scientific understanding" from the greater "natural understanding." When it comes to natural law, this was a huge, defining event because it transformed the notion of science and of philosophy, and the natural law is part of that joint, that is, pre-scientific, enterprise. Unfortunately, the extrusion of "scientific" understanding from the greater "natural" understanding caused some intellectual imbalance, really perhaps even intellectual suicide.

[T]he scientific understanding of the world emerge[d] by way of a radical modification, as distinguished from a perfection of the natural understanding. Since the natural understanding is the presupposition of the scientific understanding, the analysis of science of the world of science presupposes the analysis of the natural understanding, the natural world, or the world of common sense. The natural world, the world in which we live and act, is not the object or the product of a theoretical attitude . . . .

Strauss, 79.

Indeed, not. The natural world is reality in its entirety. By making an incision in the the natural world and our natural understanding of it and removing from it a "scientific world" and a "scientific understanding," we have caused massive intellectual and moral trauma. We have killed our natural understanding of the world. It is as if a surgeon had removed the eyes and brain of a patient, set them aside in a bloody heap on a sterile steel tray, and then, removing his surgical gloves and mask, and presenting us with the tray, suggesting with a broad smile that his artful excision would allow the eyes and brain of his patient, removed from their original place, finally to know reality unburdened by the remainder of the body. His patient was finally healthy, finally free, finally emancipated. Who would accept the benefits of such an operation?

We did.

Can we put it back together? We cannot. Perhaps the Providential God can. It is His expertise to bring good out of evil, or to exploit our shortcomings for a greater good. Is there an anti-Bacon, an anti-Descartes, an anti-Kant the Lord can send us like he sent Moses or St. Paul or St. Benedict or St. Thomas? Is there one such as these here now or to come? Would we listen to him or spurn him as a prophet in his own country? Or are we waiting for Godot? Or, without knowing it, a Thief in the Night?

Leo Strauss and Natural Right, Part 3-B: Max Weber

TAKEN TO ITS LOGICAL EXTENT, Max Weber's sociological science would be able to give a marvelous scientific description of a concentration camp and of the practical motivation of its social members, but it would have to abstain from any value judgments that such an institution is intrinsically wicked. Under Weberian strictures, the latter moral characterization would import a value judgment which would constitute a foray into something other than fact.

There is something seriously offensive, inhumane and against common sense in such a view of science. What a cold heart it would require of its adherents. What intellectual dishonesty it would require of its adepts who would be forced to paint in black and white, and act as if there were no color. So clearly deficient would such a description of fact without value judgment be that it would not even be real; it would be a "bitter satire" of reality.

In fact, Weber was not so seriously inhuman as to avoid value judgments, even in areas less extreme than a sociological analysis of a concentration camp. We find his writings riddled with value judgments, blithely inconsistent with a strict application of his own theory. "Weber . . . could not avoid speaking of avarice, greed, unscrupulousness, vanity, devotion, sense of proportion, and similar things, i.e., making value judgments." Strauss, 52. He could tell the difference between "Gretchen" and a prostitute, an authentic charismatic prophet and a "sophisticated type of swindler" such as Joseph Smith, the founder of the Mormons. Strauss, 55. In assessing the behavior of a general or of a statesman, the sociologist has to distinguish between rational considerations and erroneous or emotional factors such as bravery or cowardice, barbarism or humanity. To make these distinctions, the sociologist must evaluate, that is to say, he must judge. The Weberian formula seems flawed.

The rejection of judgments under the guise of relying on fact alone also is objectionable in another regard, though such non-evaluative science may be useful in a limited way if recognized to be so limited. What is the social scientist supposed to do when studying a society different from his own, particularly its morality, religion, art, or culture? Is he to accept uncritically the social group's definition of what is good, beautiful, etc.? This, of course, would translate to falling prey "to every deception and every self-deception of the people one is studying." Strauss, 55. Is the only way we can study the sociology of the Third Reich: to accept uncritically the premises of Hitler. Must we act as if we were Hitlerian to study German society in 1939? This seems to ask too much. "[I]t penalizes every critical attitude; taken by itself, it deprives social science of every possible value." Strauss, 55.

It would also be improper to study other cultures or societies as if what they truly believed were mere fictions. It is apparent that such an attitude would immediately require what a Weberian would find disdainful: a value judgment. It follows: "The sociologist cannot be obliged to abide by the legal fictions which a group never dared to regard as legal fictions." Strauss, 56.

It is perhaps a commonplace that the "social scientist ought not to judge societies other than his own by the standards of his society." Strauss, 56. But as mentioned earlier, it is erroneous to accept uncritically the other society's values--that's blinding. Similarly, it's wrong to view another society's beliefs as fiction--that's deafness. So this seeming factual neutrality appears dubious. Accepting uncritically facts and accepting critically facts seem both to be unsupportable options. Moreover, there is another reason why this much-vaunted neutrality appears dubious: to understand requires some "conceptual framework or a frame of reference." Invariably, these must be the social scientists' own. The result is he will "force these societies onto the Procrustean bed of his own conceptual scheme." Strauss, 56.

He [the social scientist that invokes his own frame of reference] will not understand these societies as they understand themselves. Since the self-interpretation of a society is an essential element of its being, he will not understand these societies as they really are.

Strauss, 56. But the problem is even more severe. "[S]ince one cannot understand one's own society adequately if one does not understand other societies, he will not even be able really to understand his own society." Strauss, 56.

Are social scientists doomed to ignorance? No, but it requires a tremendous tight-rope walk to avoid the extremes of a Scylla of "non-evaluating social science" and a Charybdis of a presentism or parochialism in social science.

[The social scientist] has then to understand various societies of the past and present, or significant "parts" of those societies, exactly as they understand or understood themselves. Within the limits of this purely historical and hence merely preparatory or ancillary work, that kind of objectivity which implies the foregoing of evaluations is legitimate and even indispensable from every point of view.

Strauss, 56-57. In other words, the social scientist must, as a prerequisite to even being able to assume any kind of objectivity, live a sort of ersatz life where he has seen a number of societies of different time and place as they saw themselves, including the assumption that there were such things as objective value judgments. This necessarily requires the use of value judgments. First he must use value judgments (not his own) so as to make "non-evaluative" assessments of societies other than his own. Second, he must use value judgments, and believe that there is some source of objectivity, so as to be critical of all societies, his own, and those other than his own. He must, in Strauss's words, be able to call a spade a spade. Strauss, 61. This latter requires the use of objective value judgments.

Strauss accuses Weber of failing his own ideal of neutral or fact-based objectivity. Weber was altogether all too wed to a parochial conceptual framework of a post-1789 Continental European while the intellectual battalions of the revolutionaries and "reason" still battled it out with the battalions of pining for the ancien régime and who sought to preserve "tradition." Strauss gives a number of examples from Weber's writings where he failed his own ideal, but spends the most amount of time on Weber's famous study on Calvinism and Capitalism: The Protestant Ethic and the Spirit of Capitalism. According to Strauss, Weber's failure in methodology did not allow him to recognize that it was not Calvin's doctrine that led to capitalism, but a corruption in Calvin's doctrine that was the source of the spirit of capitalism.

Leo Strauss and Natural Right, Part 3-A: Max Weber

NATURAL LAW CANNOT EXIST if philosophy does not exist. The theory of natural law or natural right is, in fact, part of the philosophical enterprise. The possibility of philosophy is a necessary, but not sufficient condition of a theory of natural right. What also must be present is the prospect that the philosophical enterprise yields definitive answers. For this reason, "there cannot be natural right if the fundamental problem of political philosophy cannot be solved in a final manner." Strauss, 35. Political philosophy has to be able to have a basis to select from competing fundamental political schema of reality, and to be able to do this it must be able to fathom ultimate answers of what is good and right, what is wise, what is true. "The whole galaxy of political philosophers from Plato to Hegel, and certainly all adherents of natural right, assumed that the fundamental political problem is susceptible of a final solution." Strauss, 35-36. Reason must not only be able to provide us alternative solutions, reason must be able to resolve the conflict presented by such alternative solutions. It is modern man's despair at choosing definitely between alternatives that, in addition to the historicist thesis we discussed in the last blog posting, blocks him from access to a natural law philosophy:

Natural right is then rejected today not only because all human thought is held to be historical but likewise because it is thought that there is a variety of unchangeable principles of right or of goodness which conflict with one another, and none of which can be proved to be superior to the others.

Strauss, 36.

Portrait of Max Weber

Part of the modern propensity to refuse a definitive answer may be laid at the foot of one of the fathers of the modern social sciences, Max Weber (1864-1920). Strauss therefore spends the entirety of his second chapter in his Natural Right and History on Weber's thought. Weber was affected by historicism, though his attachment to it can be debated. In Strauss's view, however, Weber's "peculiar notion of timeless values," takes him out of the historicist school, but it also takes him out of the natural law school. Strauss, 39. For Weber, facts and values are entirely distinct things, they are "absolutely heterogeneous." Strauss, 39. There is absolutely no overlap, no communication between the world of fact and the world of value. "No conclusion can be drawn from any fact as to its valuable character, nor can we infer the factual character of something from its being valuable or desirable." Strauss, 39. For Weber, the social sciences dealt with facts, and not values. More precisely, the social sciences dealt with facts (which included factual "reference to values," e.g., it could determine that something is valuable in reference to advancing individual freedom), but it avoided "value judgments" (e.g., it could not tell you whether individual freedom was a good). With respect to the crucial value problems, social science considered itself incompetent.

Of course this opposition of fact and value is a sort of relative to the Humean opposition of "is" and of "ought." More subtly, however, Weber believed that social science could determine the linkage between and "is" and an "ought," in the sense that social science could explore and understand causal connections between means and end, and ends were often driven by "oughts" or the values of social groups. However, when it came to deciding what "oughts" are in any objective sense good and what "oughts" are not, Weber disclaimed that the social sciences had any genuine knowledge of that.

[Weber] denied to many any science, empirical or rational, any knowledge, scientific or philosophic, of the true value system: the true value system does not exist [at least our minds are unable to know it or know of it]; there is a variety of values which are of the same rank [empirically, or scientifically], whose demands conflict with one another, and whose conflict cannot be solved by human reason.

Strauss, 41-42. Arbitrary choice, or faith, but certainly not reason, could chose between alternatives. This thought, fundamental to Weber, Strauss insists, is rank nihilism. It may be a "noble nihilism," not a base nihilism, since it demands "intellectual honesty" and and "rational self-determination" once that choice is made, but it is nihilism nevertheless. Strauss, 48. Then again, it may not be "noble nihilism" at all, for under Weber's view, there is nothing that one may use to distinguish noble nihilism from ignoble or base nihilism.

Strauss attempts to trace its source. Weber's thought was fundamentally a neo-Kantian and historicist combination.

From neo-Kantianism he took over his general notion of the character of science, as well as of "individual" ethics. Accordingly, he rejected utilitarianism and every form of eudemonism. From the historical school he took over the view that there is no possible social or cultural order which can be said to be the right or rational order.

Strauss, 43. While Weber distinguished between "moral commands" or "moral imperatives," on the one hand, and "cultural values" on the other, and seemed to hold the former as more fundamental than the latter, ultimately, that distinction was superficial. Weber "really thought . . . that ethical imperatives are as subjective as cultural values." There was parity between "cultural values" and "ethical values," since both were subjective. " "According to [Weber], it is as legitimate to reject ethics in the name of cultural values as it is to reject cultural values in the name of ethics, or to adopt any combination of both types of norm which is not self-contradictory." Strauss, 44. Man's unique dignity was autonomy, the ability to choose the values by which he would run his life. But in terms of discriminating between those values, Weber despaired of reason's ability to choose. Reason was unavailing: it could not answer the question of whether it was more reasonable to follow the Devil as opposed to following God. These two choices were, in Weber's view, equally reasonable or equally unreasonable. They were, simply, indistinguishable options from a scientific point of view. So the only thing left, if reason couldn't help select a comprehensive view, was will. So if you were going to will, then will boldly, with energy and with consistency. This was, it seems, Weber's categorical imperative: "Follow God or the Devil as you will, but whichever choice you make, make it with all your heart, with all your soul, and will all your power." Strauss, 45. Vitalism, not reason, determined virtue. It was not the choice that determined excellence (because all choices of good were ultimately equal, which is to say, they were all equally irrelevant), but the devotion and dedication to that choice is what determined excellence. Strauss, 46-47. Weber's ultimate ethical principle could be formulated to be: "Thou shall have preferences." Strauss, 47.

Once this fundamental selection is made, then reason and integrity came into play. But Strauss finds this belated entry of reason indefensible. If reason is not involved in the decision of the foundation, the selection of the end, why ought it be involved in the decisions relating to the means? Why can't man act on impulse all the time? Why only at the outset?

It would appear that many today have engaged in a sort of Faustian bargain. They have bargained away their judgment of truth and good and right (in other words adopted nihilism), but they have obtained as a result "a truly scientific social science." Strauss, 49. They are very happy Jacks who have traded in the cow for some beans that will eventually grow into the beanstalk of the scientific social science enterprise. Strauss therefore explores whether a truly scientific social science can really be achieved on the Weberian distinction between facts and values.

Strauss finds a certain absurdity in the proposition. If a social scientist is unable to chose between a spiritually-empty life and a spiritually-fulfilling life because such a choice is predicated upon unscientific value, then what good are the social sciences? If the social sciences are to tell us truths about social phenomena, how can they neglect the truth that some ways of living are spiritually stultifying, whereas some are not? If one is blind to such a difference, which is what the social scientist operating under Weberian principles claims to be, then it seems that he is as disqualified from engaging in social science as a blind man is from being an analysis of painting. Strauss, 50. The absurdity is revealed through a reductio ad absurdum:

The prohibition against value judgments in social science would lead to the consequence that we are permitted to give a strictly factual description of the overt acts that can be observed in concentration camps and perhaps an equally factual analysis of the motivation of the actors concerned: we would not permitted to speak of cruelty.

Strauss, 52.

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.
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*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"