poly: A Modern Conception of "Natural Law"?

From: <GBurch1@aol.com>
Date: Mon Nov 09 1998 - 00:06:21 PST

I've been reading a book about the intellectual roots of the American
Revolution, Bernard Bailyn's "The Ideological Origins of the American
Revolution" (for which he won the Pulitzer Prize in history). Among the many
threads of Enlightenment philosophy and political science he discusses, Bailyn
points out that one of the obvious underpinnings of the Founders' thinking
(and of Enlightenment thought
generally) was the concept of "natural law". As usually expressed in 18th
century writing, natural law was described as law established by god, and
therefore superior to and more fundamental than any law created by humans,
whatever their social, customary or political authority. By the last quarter
of the 18th century, the Founders (who Bailyn repeatedly and unselfconsciously
refers to as "libertarians") explicitly came to rely on natural law as a
rationale for the revolutionary establishment of republican government and
constitutional establishment and protection of individual liberty. In many of
the Founders' minds, natural law was the SOURCE of individual liberty and
"human rights". In keeping with the rationalist tone of the times, a very few
of the people who called on the notion of natural law in the 18th century went
so far as to say that even god's authority was limited by natural law -- that
divine power could not be arbitrarily exercised. But most Enlightenment
figures -- Jefferson among them -- continued to ground their ultimate
evaluation of liberty in a religious foundation (however Unitarian that
religious faith might have eventually become).

Considering the importance of natural law to the libertarian foundations of
modern constitutional theory, I have been thinking about how secular humanism
has, as a matter of history, eroded some of the jurisprudential vigor with
which our era began. With the decline of religious belief, the rationalism of
the Enlightenment has given way to a limp relativism in the humanities,
including jurisprudence. Thus, we saw the kind of absurdities one found in
Soviet legal thinking and practice and, in the AngloAmerican tradition, have
come to the legal "realists" and the "critical" legal theorists, who find no
foundation for law other than political power.

There may be hope, though, for a salvaging of the important function that
natural law played in original libertarian thinking. Might a new grounding
for a rational conception of natural law be in the process of formulation in
our era, I wonder? The "law and economics" theorists may well have opened the
ground for this new foundation. Consider that the fundamental concept behind
a truly scientific approach to economics is the search for "laws" of human
behavior in the same sense that physicists use the term, i.e. descriptions of
natural phenomena not dependant on the subjective values of the observer.
Going further, perhaps some at least rudimentary edifice derived from game
theory and evolutionary psychology has begun to be built on this foundation
laid by economists. In this regard, another book I've recently read, "The
Origins of Virtue" by Matt Ridley seemed to "click" for me: Blending the basic
concepts of evolutionary psychology and memetics from Dawkins with insight
from discussions of the iterated prisoners dilemma, Ridley sketches what I
have called a "natural history of human morals". Ridley suggests that values
of reciprocity and transparency may be irreducibly fundamental to human
society, that it literally makes no sense to talk of human society without
these fundamental values because they are literally in the natures we have

Perhaps we CAN say that a particular legal proposition is invalid as a matter
of natural law, if it is inconsistent with the values of transparency and
reciprocity that can be objectively demonstrated through evolutionary game
simulation, for instance, to be superior guiding principles. The last couple
of chapters of Ridley's book come very close to making this assertion.

         Greg Burch <GBurch1@aol.com>----<burchg@liddellsapp.com>
           Attorney ::: Director, Extropy Institute ::: Wilderness Guide
        http://users.aol.com/gburch1 -or- http://members.aol.com/gburch1
                   "Good ideas are not adopted automatically. They must
                      be driven into practice with courageous impatience."
                                    -- Admiral Hyman Rickover
Received on Mon Nov 9 08:09:29 1998

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