On Rothbard’s Natural Law vs Positive Law

In my last post on Obscurant Libertarianism and Group Ethics, I made the case that Rothbardian/libertarian/liberal ethics are parasitic in nature. I wanted to take a closer look at Rothbard’s The Ethics of Liberty to make the case more clearly.

Apparently, Hurlock disagreed with my analysis.

As promised, here is a snarky take, followed by some more serious commentary.

[begin snark]

In The Ethics of Liberty, ch. 3, Rothbard writes:

IF, THEN, THE NATURAL law is discovered by reason from “the basic inclinations of human nature . . . absolute, immutable, and of universal validity for all times and places,” it follows that the natural law provides an objective set of ethical norms by which to gauge human actions at any time or place.

Wait a second. I completely agree with this. What’s going on here? I think man has a nature, and that man will act according to that nature as if it is a law. Natural law sounds all right to me.

The natural law is, in essence, a profoundly “radical” ethic, for it holds the existing status quo, which might grossly violate natural law, up to the unsparing and unyielding light of reason. In the realm of politics or State action, the natural law presents man with a set of norms which may well be radically critical of existing positive law imposed by the State. At this point, we need only stress that the very existence of a natural law discoverable by reason is a potentially powerful threat to the status quo and a standing reproach to the reign of blindly traditional custom or the arbitrary will of the State apparatus.

Hmm. Ok. I’m a totally radical dude, so a radical ethic sounds cool. And who doesn’t love freaking Nature?

So natural law is radical, meaning it will not uphold the status quo, because the status quo might grossly violate natural law? Well, violation is like rape: the status quo is raping Nature?! Not on my watch, bro! So status quo = bad and radical natural law = good. Got it.

And positive law, meaning that decreed by the ruler(s), is going to get its ass kicked by reason showing us natural law. Not just positive law but also the reign of blindly traditional custom. So, the tradition and custom are reigning? Who else reigns? Well, kings reign, don’t they? Wait now, this is America! We hate kings! I’m having an emotional response to that word reign which lets me know that traditional custom probably sucks as bad as kings do. Not only is it reigning, but it is reigning blindly. Holy crap! Blind reigning is way worse than just reigning. Uggh, I can tell I’m totally going to hate traditional custom already. Thank God I have Rothbard here to help me figure this out.

In fact, the legal principles of any society can be established in three alternate ways: (a) by following the traditional custom of the tribe or community; (b) by obeying the arbitrary, ad hoc will of those who rule the State apparatus; or (c) by the use of man’s reason in discovering the natural law—in short, by slavish conformity to custom, by arbitrary whim, or by use of man’s reason. These are essentially the only possible ways for establishing positive law. Here we may simply affirm that the latter method is at once the most appropriate for man at his most nobly and fully human, and the most potentially “revolutionary” vis-à-vis any given status quo.

So we have a) traditional custom, b) arbitrary law, or c) reason. Well, I already have a bad feeling about traditional custom, because it is reigning blindly and that sounds really crappy. And arbitrary law means they are just pulling this shit out of their ass, and I know that sucks. Then there is reason which sounds awfully smart, and I’m a smart guy. All the girls who wouldn’t go to prom with me and who copied off my homework thought I was smart. And reason is noble? Well, hell, count me in, Murray! Reason it is.

While natural-law theory has often been used erroneously in defense of the political status quo, its radical and “revolutionary” implications were brilliantly understood by the great Catholic libertarian historian Lord Acton. Acton saw clearly that the deep flaw in the ancient Greek—and their later followers’—conception of natural law political philosophy was to identify politics and morals, and then to place the supreme social moral agent in the State. From Plato and Aristotle, the State’s proclaimed supremacy was founded in their view that “morality was distinguished from religion and politics from morals; and in religion, morality, and politics there was only one legislator and one authority.”

Wow. So some assholes have been using natural law to erroneously defend the status quo? Well, I guess I can shorten that in my mind to defending the status quo is erroneous, right? I learned earlier that the status quo is like raping Nature, and raping Nature is obviously erroneous. So, obviously, natural law will not lead me to defend the status quo, because I’m noble and I’m going to use my reason, dammit

Now, Acton says the Greeks had a deep flaw, not just a flaw, but a deep one because they put the supreme social moral agent (whatever that is) in the State. And the State claimed that there was only one legislator and one authority. Who could this one legislator be? Let’s come back to that.

Next, Rothbard quotes John Wild:

the philosophy of natural law defends the rational dignity of the human individual and his right and duty to criticize by word and deed any existent institution or social structure in terms of those universal moral principles which can be apprehended by the individual intellect alone.

So, true natural law defends the rational dignity of the individual. Rational. Individual. And these universal moral principles which can be apprehended by the individual intellect alone. Man this is deep. I’m an individual, and I’m smart. Who would be against the rational dignity of the human individual? Only someone stupid, I’m sure, like those old Greek philosophers. Muh Liberty!!!!

[end snark]

Let’s look at some trickery here. Rothbard uses overloaded words and negatively cast phrases such as blindly reigning and slavish conformity. He uses unsubstantiated aspersions against the Greek philosophers, claiming a deep flaw, with no real analysis of that deep flaw except to associate it with the State, which he has thoroughly maligned by this point in the book. He has used words like noble and dignity when speaking of reason and rationality, painting them with an emotional context.

Rothbard has given the reader a false choice between tradition/custom, positive law, and reason. By creating this false choice, the reader is led to believe that the first two are not reasonable. A smart human, and libertarians tend to be smart, will be drawn to this argument of individual reason.

Rothbard also associated a negatively contextualized organization, the State, with tradition/custom and positive law. What is the State? Up until very recently, the State would have been an ethno-state of high-trust corporate-minded Europeans. It would have been an organization of genetically related humans who have banded together for survival in a barbarous world. In short, it would have been a group of human whose relationship is very much informed by a group ethos, genetic similarity, and of responsibility to one another. But Rothbard continually paints this group organizational structure negatively, as a parasite on the individual.

Here is the essential legerdemain: Rothbard asserts that the individual intellect alone upholds natural law, and that the forms of group reason, custom/tradition and positive law, do not uphold natural law. That’s right, group reason, reason which has been contextualized within a group relationship. He makes the assertion about individual reason and neglects the existence of group reason. He makes the individualistic argument here, and if you’re not paying attention then you won’t even know that the group ethic argument even exists. Pretty sneaky, Rothbard. In the preceding post, I assert that the group relationship is fundamental to human existence, as almost no individuals can exist without a host group. How much can one human brain ascertain? Is it truly reasonable to assert that a single human can be wiser than a multiplicity of humans reasoning through timelines of thousands of years?

Rather than viewing tradition/custom as blindly reigning, is it not more reasonable to view them as open source code which has been tested by thousands of run-time executions? If humans are thinking machines, then aren’t our beliefs much like uncompiled code? Each individual then processes the code and acts based on it. Every individual actor is like an object instance interacting with other object instances. As these objects interact, the code can produce beneficial, neutral or negative results. Negative results can be viewed as bugs which need to be identified and removed.

To put it more simply, is it not more reasonable to view tradition/custom as the combined reason of thousands/millions of humans over thousands/millions of lifetimes of interactions? Is Rothbard really making the assertion that a single human brain, over a single lifetime, can asses the complex workings of an entire civilization and calculate the correct workings of interactions? Pure hubris. I call bullshit, dear libertarians. Is it possible that those combined intellects could reach conclusions that a single human mind cannot comprehend? Most assuredly. But in that case it is not the tradition/custom that is blind, it is the individual reason who cannot fathom the depths of the tradition/custom. Yet, Rothbard attributes the blindness not to the individual human mind, but to the opaque inter-generational risk management heuristic. Very nice, Rothbard, exceedingly cunning inversion.

Now, back to the solitary legislator of the Greeks. Who is that? Well, Gnon, of course. Natural law is the only law, that comes from a single source: Nature’s God, or Nature. But Rothbard hides the fact that the Greeks were defending natural law. But why? Because they were defending natural law as it is ascertained through a group of human minds over time, which is not individualistic and therefore not liberal. The Greeks were processing natural law in the correct context: the group context. To place the supreme moral social agent in the State could be rephrased as the survival of the group is paramount. It is the group that matters most, and morality and ethics must be considered within a group context. Rothbard has attempted to obscure the fact that the Greeks were thinking of the group, and to paint that perspective as unreasonable, simply because it cannot be ascertained by an individual intellect alone. He paints the failure of the individual to understand opaque dicta as a failing of the group institution. This exposes the false choice: either tradition/custom or reason; excluding the possibility that tradition/custom is group reason.

By looking solely through the lens of the individual, Rothbard intentionally impugns the reasoning ability of group – reason which is tested through thousands/millions of run-time interactions to produce groups which are obviously capable of surviving or else they would not have survived. This allows for parasitic ethics, childish ethics, where the actions of the group which have created a working system can be criticized through a single tiny mind’s reason. It allows completely untested theory to override proven, working systems. It places individual reason as greater than group reason. That is insanity. That is LibertĂ©. That is libertarianism.