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.
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:
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.
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.
[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 BrainStrauss 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.
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