Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Saturday, September 18, 2010

Leo Strauss and Natural Law: Rousseau's Doctrine of Natural Right

ROUSSEAU'S UNDISCIPLINED AND WOBBLY GENIUS addressed the "history" of man in his Second Discourse (Discourse on the Origin of the Inequality of Man). It purports to be an exploration of man's "history" using techniques of modern natural and social science, and starts with Cartesian presuppositions. The Second Discourse is "identical with a study of the basis of natural right and therewith of morality." Strauss, 266. Rousseau's aim to reveal for us what political order accords with natural right. In so doing he seems to dethrone God, and certainly to disennoble man.

Rousseau . . . tells us the story of man in order to discovery that political order which is in accordance with natural right. . . . [H]e follows Descartes . . . [and] assumes that animals are machines and that man transcends the general mechanism, or the dimension of (mechanical) necessity, only by virtue of the spirituality of his soul. . . . Rousseau questions not only the creation of matter but likewise the traditional definition of man. Accepting the view that brutes are machines, he suggests that there is only a difference of degree [and not of kind] between men and the brutes in regard to understanding . . . . It is man's power to choose and his consciousness of this freedom . . . which proves the spirituality of his soul.

Strauss, 264-65. The uniqueness in man relative to the brute animals, at least to Rousseau, was not in his reason, but in his freedom of the will. But it was not the freedom of man which was the foundation upon which Rousseau built his theory. Seeking to avoid the arguments that accompanied the notion of human freedom, Rousseau (controversially) sought to build his argument on something less controversial: on the perfectibility of man. This foundational decisions was "mean to be neutral with regard to the conflict between materialism and antimaterialism, or to be 'scientific' in the present-day sense of the term." Strauss, 266.

The general tack that Rousseau takes in his Second Discourse is interesting. Essentially, he accepts the Hobbesian premises, but then forgoes the Hobbesian conclusions, instead extending the Hobbesian premises to more extreme conclusions, thereby undercutting the Hobbesian premises. Strauss identifies two of these Rousseauian extensions of Hobbesian premises. The first such extension has to do with the Hobbesian "state of nature" premise, which Rousseau washes clean of any social nature whatsoever. The second such extension relates to the foundation of natural right on passion, and not reason, Rousseau essentially robs man of any reason in his "state of nature," reason being something acquired as a result of language which is conventional. The result is an entire disassembly of any notion of natural law or natural right. The last remnants of any kind of classical or Christian stain of natural law or natural right remaining in Hobbes were bleached out by Rousseau. Both the baby and the bathwater were now thrown out.

In any event, Rousseau clearly rejects any traditional teaching of natural law, and in exchange adopts the Hobbesian premise that natural law can be found only be going to the "state of nature." "Hobbes," Rousseau says, "has seen very well the defect of all modern traditions of natural right."[1] Hobbes a très bien vu le défaut de toutes les définitions modernes du droit naturel. Rousseau clearly rejects any definition of natural law that placed predominance upon man's use of reason or put man under some natural duty, under some natural law. Likewise, he clearly intended to reject any scriptural influences, being "fully aware of the antibiblical implications of the concept of the state of nature." Strauss, 267 n. 32. Any foundation of natural law must not be based upon reason (or a fortiori must not be based upon scripture), but upon something that is prior and preeminent to reason (or scripture), namely, passion, and most specifically, the impulse to self-preservation, which, of course, is an impulse that is self-regarding, not other-regarding:
[Rousseau] agrees, then, with Hobbes's attack on the traditional natural law teaching: natural law must have its roots in principles which are anterior to reason. i.e., in passions which need not be specifically human. He further agrees with Hobbes in finding the principle of natural law in the right of self-preservation, which implies the right of each to be the sole judgment of what are the proper means for his self-preservation.
Strauss, 266. Such a view of man's nature immediately jettisons the formulations of traditional natural moral law, most notably perhaps, the "Golden Rule." For Rousseau, like Hobbes, the "Golden Rule" is not a principle of natural law.

Rousseau expresses his loyalty to the spirit of Hobbes's reform of the natural law teaching by substituting for "that sublime maxim of reasoned justice 'Do unto others as you would have them to do unto you' . . . this much less perfect, but perhaps more useful maxim 'Do good to yourself with as little evil as possible to others.'"[2]

Strauss, 266-67 (quoting Rousseau's Second Discourse).

While Rousseau accepts the Hobbesian premise that one must go back to the "statute of nature," it does not lead him to where Hobbes ends up. Hobbes, like all others that have resorted to a "state of nature" analysis, "felt the necessity to go back to the statute of nature, but not one of them has arrived there." Les philosophes qui ont examiné les fondements de la société ont tous senti la nécessité de remonter jusqu’à l’état de nature, mais aucun d’eux n’y est arrivé. No, none but our narcissistic Rousseau, with his remarkable genius, foresight, and light was able to "arrive." Like a good Trekkie, Rousseau was the only one who was able "to boldly go where no other man has gone before." (Had Rousseau lived in the era of Star Trek, would he have dressed himself up as Captain Kirk like he dressed himself up like an Armenian?) Rousseau (who was buffeted by passion) alone can figure out which one of men's passions are conventional, arising as they do from man's decision to leave the "state of nature" and bind himself in conventional society, and which are to be found only in a "state of nature." Rousseau found the "method," the "physical" investigation, that could overcome all others' failures:
The method which he uses is a "meditation on the first and most simple operations of the human soul"; those mental acts which presuppose society cannot belong to man's natural constitution, since man is by nature solitary.
Strauss, 269.

Rousseau also erases any role of reason in natural law or right, and he does this, again, on Hobbesian premises. Hobbes is right, Rousseau insists, on founding natural right on passions, but he goes wrong in drawing out of this premise any sort of rules or duties, or even conclusions or theorems, using reason. For Rousseau, if the natural law is going to speak to man, it must be in his "state of nature," and that means it must be "rooted directly in passion," "it must be prerational." Strauss, 269.

The fact that the "state of nature" is presocial and prerational results in Rousseau concluding that "man is by nature good." Strauss, 269. In a "state of nature," there can be no such thing as pride or vanity, because these are social vices, and man, prior to society in his "state of nature" cannot suffer from these vices. The same is true mutatis mutandis for all vices, pride being the basis for all of them. For Rousseau, then, "[n]atural man is therefore free from all viciousness." Strauss, 269-70. Moreover, "natural man is compassionate." Strauss, 270. And it is compassion which is the "passion from which all social virtues derive." Strauss, 270. Similarly, man in a "state of nature" lacks reason. Reason requires language for Rousseau, and language is conventional, presupposing society. "Since language is not natural, reason is not natural." Strauss, 270. This thought process of Rousseau naturally leads to an entirely revolutionary concept of man. Man in his "state of nature" is no longer a "rational animal," nor a "social animal." He is a "stupid animal." Strauss, 276. In the Rousseauian view, therefore, natural law understood in its classical, traditional sense does not exist:
[S]ince natural man is prerational, he is utterly incapable of any knowledge of the law of nature which is the law of reason . . . . Natural man is premoral in every respect: he has no heart. Natural man is subhuman. . . . There is no natural constitution of man to speak of: everything specifically human is acquired or ultimately depends on artifice or convention. . . . Man is by nature almost infinitely malleable. . . . Man's humanity or rationality is acquired
Strauss, 270-71, 272. All this has significant importance in the history of natural law. As Strauss observes:

By thinking through [Hobbes's] teaching, Rousseau was brought face to face with the necessity of abandoning it completely. If the state of nature is subhuman, it is absurd to go back to a state of nature in order to find in its the norm of man. Hobbes had denied that man has a natural end. He had believed that he could fin a natural or nonarbitrary basis of right in man's beginnings. Rousseau showed that man's beginnings lack all human traits. On the basis of Hobbes's premise, therefore, it became necessary to abandon altogether the attempt to find the basis of right in nature, in human nature.

Strauss, 274. All law, all right, all justice then was conventional. This was the upshot of the Hobbesian premises. Humanity had no end to provide guidance. This was Hobbes's marvelous contribution to human thought. Humanity had no beginning that could provide guidance. This was Rousseau's marvelous clarification of Hobbesian thought. There was hence no natural foundation for law, for right, for justice. All of these--law, right, justice--were arbitrary, standardless. The only law is that which the infinite malleable man gives to himself. Rousseau "says that freedom is obedience to the law which one has given to one's self." Strauss, 278.

Accordingly, we shall next look at Rousseau's concept of human "freedom."

[1]By "modern" he means "contemporary," that is to say, "the traditional definitions which still predominated in the academic teaching of his time." Strauss, 266.
"c’est elle qui, au lieu de cette maxime sublime de justice raisonnée : Fais à autrui comme tu veux qu’on te fasse, inspire à tous les hommes cette autre maxime de bonté naturelle bien moins parfaite, mais plus utile peut-être que la précédente : Fais ton bien avec le moindre mal d’autrui qu’il est possible." For a discussion of Hobbes's treatment of the "Golden Rule," see our prior posting, Golden Rule in Thomas Hobbes.

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