The Founding of the American Republic 5; C. Carson

On the contrary, the natural law philosophy, or its underpinnings, is nearly as old as Western civili zation; it had been greatly re vived in English political dis course in the seventeenth century; and American thinkers were Dr. Carson is Chairman, Social Science De partment, Okaloosa-Walton College. He is a noted lecturer and author, his latest book en· titled Throttling the Railroads. 731 732 THE FREEMAN December widely familiar with it long be fore the break from England. But it had got new impetus behind it in the past century and a half, and the doctrines out of it were being brought to a fruition at just the time that Americans turned to it to justify their ac tions and undergird· their institu tions. If James Madison had been aware of intellectual history in this way, he might have remarked about the occurrence of this frui tion of the natural law philosophy at just this juncture of history in the same vein he did about an other matter in these words: "It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolu tion."

The Natural Law Philosophy Documents, writings, and ad dresses of the revolutionary pe riod are replete with references to the natural law philosophy and ideas derived from it. Jefferson based his argument in the Dec laration of Independence on "Na ture's laws." Thomas Paine ar gued both that independence was called for as a natural right and that the resulting country should be founded on underlying law. State constitutions frequently listed a number of rights which were "natural." The United States Con stitution was implicitly framed from an order explicit in the natu ral law philosophy. As Clinton Rossiter has said: "The principles in which they placed their special trust were . . . those of . . . the school of natural law." They "sought limits [on political pow erJ more uni versal than those staked out in laws, charters, and constitutions. The great philoso phy that preached the reality of moral restraints on power had al ways been a part of their Anglo Christian heritage. Now, in their time of trial, the colonists sum moned it to their defense."!

The natural law philosophy is grounded in metaphysics. That is, it is grounded in something be yond the physical ; it is not acces sible to the senses directly. No one can see, hear, taste, feel (tac tilely), or smell natural laws. If they are real, their reality is vouchsafed in some fashion other than through direct sensual con tact. Their reality should not be understood as a becoming, either, as made up of ideals which may be fulfilled in the course of time. The founders of these United States were not idealists in this 1 Clinton Rossiter, The Political Thought of the American Revolution (New York: Harcourt, Brace and World, 1963) , p. 78.

1971 THE ENLIGHTENMENT IMPETUS 733 sense; they did not conceive of natural laws as something it would be desirable to see estab lished. On the contrary, they were understood as being already every where established, inviolable, and finished. Self-evident Truths Intellectual developments since the eighteenth century have made it increasingly difficult to under stand the natural law philosophy, and the meaning of this is that it has become increasingly difficult to understand that on which these United States were founded. The difficulty can be exposed by ex amining a familiar phrase from the Declaration of tndependence, the one which reads: "We hold these truths to be self-evident, that all men are created equal. ..." The phrase has been so often heard and seen that it has at tained that status for us of an idea which is so familiar that it nei ther shocks nor calls forth any examination of it. Probably, in our day, most people hear not the words but a translation of· them which would go something like this: We hold it as an ideal that all men should be made equal. Yet, that is not what the words say, nor is it reasonable to render them in this fashion.

In the first place, what does it mean that "these truths" are "self-evident"? Today, the phrase "self-evident" is often used as if it were a synonym of "obvious" or "apparent." This is probably a way, unconsciously adopted, of avoiding the difficulty for us of the term. "Self-evident" means that the statement contains its own evidence. To turn it around, it means that there is no external evidence for the truth of the state ment, or that none is being ad duced. It can be made clear that in the instant case no evidence either is or can be adduced for the validity of the statement. All the evidence that I know of indi cates that all men are not created equal. Each person is different from every other at birth, dif ferent in appearance, different in capacities, different in circum stance, and different in what he inherits. Jefferson's statement is one which, if true, must be "self evident."

This is not to say that there is no evidence for the reality of natural laws ; it is rather to affirm that such evidence as there is is indirect. Thomas Jefferson was working out of a long-established philosophical tradition when he wrote the Declaration of Inde pendence. This tradition was du alistic, holding .that there are two realms of being. They can most directly be described as the realms of the physical and the metaphy734 THE FREEMAN December sical. The physical realm may al so be described as the realm of the existential, the changing, the historical, and of appearances. The metaphysical may be· called the realm of forms, of essences, of fixities, and of the real. It is, of course, the realm of natural law. It is that underlying order which gives shape, form, predictability, and their character to things. Greek and Roman Influences The philosophical roots of the natural law philosophy reach down deeply into Western thought from its early beginnings. The Greek thinkers of classical an tiquity were early taken up with the difference between appear ance and reality. To appearance, all things seemed to change; in deed, all physical objects undergo alteration and corruption with the passage of time. This led some men to conclude, such as Heracli tus, that all is flux, that there is only change. Others held, how ever, that the changing is only an appearance, that underlying it is fixity and order.

Philosophy, as we understand it, had its beginnings with efforts to find the primal stuff from which all else comes. It was commonly believed for a long time that there were four elements - earth, .air, fire, and water - from which all else is made. This search begot yet another one, the search for that which gives form and order to things, to that which causes them to assume the shapes that they do, to follow the· course that they do in their development, and to behave as they do when im pinged upon by something else. Men have, for as long as they have had settled modes of living at the least, been aware of numerous regularities and ·predictabilities in the world about them. Philosophy - by which is meant here its most abstruse branch - has been con cerned with trying to make a co herent explanation of these. Metaphysical thought reached a plateau with a line of Greeks which commences with Socrates, goes through Plato, and culmin ates with Aristotle, a plateau which it has ever since been diffi cult to reach or to rise above. New reaches in philosophy was only one of the achievements in the ancient world, of course, though these may have been the keystone.

The Greek achievements were spread about the Mediterranean in what has since been known as the Hellenistic Age, and were taken up by the Romans who ex panded and developed that por tion of Greek culture which ap pealed to them. Roman thinkers were the first to set forth the natural law philosophy exten1971 THE ENLIGHTENMENT IMPETUS 735 sively. They did so both to under gird the edifice of Roman law and to justify the spread of that law over a· vast empire. Their ac quaintance with a multiplicity of peoples of diverse cultures led some of them to seek for common features underlying the differ ences which would be of the order of law everywhere applicable. Revivals of the Natural Law Philosophy during Middle Ages So impressive were the varied achievements of the Ancients that men refused to forget them even after the empires fell and Europe broke up once again. There were many revivals and renascences over the years. Two major efforts to revive the learn ingof the Greeks and Romans oc curred in the Middle Ages: the first is known as the Carolingian Renais sance, and the second took place in the twelfth and thirteenth cen turies. There was an almost con tin uous renaissance in the Modern era from the fifteenth into the eighteenth century. There was a neoclassical revival in literature in the seventeenth century, and the music of the eighteenth cen tury is frequently described as classical. If what is meant by classical is an emphasis upon order, harmony, balance, .modera tion, reason, and form, then the eighteenth century was the preeminent neoclassical age of our era.

The natural law philosophy was revived in Europe in the seven teenth century. On the continent exponents of it in the political and legal realm included Hugo Grotius, Jean Bodin, and Samuel Pufen dorf. English writers in this stream would include Thomas Hooker, Harry Vane, Richard Hooker, James Harrington, Al gernon Sidney, and John Locke. Much of the English thought was produced during the constitutional struggles of the seventeenth cen tury, struggles which culminated in the Glorious Revolution. This body of thought was most useful to Americans when they came to revolt, because they were able to hinge much of their case on Eng lish thinkers. The natural law philosophy in general got a great boost in the seventeenth century from what we call scientific developments. These developments which are as socia ted with the names of Francis Bacon, Rene Descartes, Galileo, J0 hannes Kepler, Leibniz, Spinoza, and Isaac Newton were both spawned by the revived natural law philosophy and gave new im petus to it. The central features of this development were the empha sis upon the rationality of the uni verse, the rationality of man, and mathematically expressible laws 736 THE FREEMAN December governing the behavior of objects.

Ways were worked out for dis covering the laws, and these and other men experienced phenom enal success in the work of ex posing them. Alexander Pope wrote: Nature, and nature's laws lay hid in night, God said, Let Newton be, and all was light. So impressive was the natural order revealed by scientists that renewed efforts were made to dis cover more precisely the natural order as it applied to man and his affairs. The effort 'to do this in the political, social, economic, reli gious, and artistic realm has come generally to be .called the En lightenment of the eighteenth century. The title contains a con siderable measure of presumption in it: it suggests that men were coming to be enlightened while those who had gone before had been in the dark. This is pointed up, too, by the conscious slough ing off of the reliance on the an cient thinkers and attempts to discredit them. A case can be made that the thought of the En lightenment was deeply influenced by classical antiquity even as that age was no longer venerated. An equally strong case can be made that there was in the Enlighten ment a potentially fundamental break with tradition which would cut men off from their past. Both these things are true.

New Emphasis on Reason It was with some trepidation that I used the term Enlighten ment in the title of this install ment. There is no doubt that Americans at the time of their revolt were under the sway of the natural law philosophy, but there is reason to doubt that they were under the sway of the En lightenment. This doubt is occa sioned, I think, because of the course of developments in France. Many historians of the Enlighten ment have focused on French thinkers, on Voltaire, Diderot, Quesnay, Montesquieu, d'Alem bert, Rousseau, and so forth. The French were the most dramatic proponents of the Enlightenment, the most daring and iconoclastic of thinkers, the ones who broke most emphatically with the past. In France, too, centuries-old anticlericalism shifted toward op position to all the formal religions and became, for some, outright atheism. The repute of the En lightenment has been tarnished, too, because in its wake came the French Revolution with all that entailed.

Now some Americans were in fluenced by French thinkers. Probably all Americans who knew 1971 THE ENLIGHTENMENT IMPETUS 737 of it were favorably influenced by Montesquieu's arguments for a separation and balance of pow ers in The Spirit of the Laws. The affinities between the French and Benj amin Franklin, Thomas Jef ferson' and Thomas Paine, as ma jor examples, are well enough es tablished. But the Enlightenment was not an exclusively French af fair, nor the directions in which some of the French took it an in evitable one. The Enlightenment can be considered a much broader development encompassing the em phasis on reason, natural law, and balanced with a thrust toward liberty. In this sense, Americans shared in its fruits, and used the ideas associated with it. The bulk of Americans did not accept the more radical breaks with the past nor become antireligious as a re sult of their thinking . Americans tended to counterbalance abstract ideas with reference to experience and by the use of common sense.

II A State of Nature" There are several concepts basic to the natural law philosophy. The most basic concept is that of a state of nature. Thinkers in the seventeenth and eighteenth cen turies were given to beginning some statement with the phrase, "Man, in a state of nature .... " Anthropologists of the nineteenth and twentieth centuries have pointed out that man is nowhere discoverable· in a state of nature, that, on the contrary, he always exists in a social state. As is fre quently the case when men of one era take on those of another in controversy, those of a later date have misunderstood the position, whether intentionally or not we do not know. The thinkers of an earlier day did not mean that man had ever existed in a state of na ture historically, or that he could somewhere be found in that .state at any time. The concept is essen tial, hypothetical, and imaginary. To know the nature of anything, it is necessary to strip away all that is peculiar and particular to that thing, all that has been acci dentally added, and view it in terms of the common features it shares with all others of its kind.

To know the nature of man, then, is to know him in a state of nature, that is, to know him stripped of all cultural accretions. Stripped of his culture, a creature is only potentially a man, of course. It is a work of the imagin ation to discover man in a state of nature. It is an hypothesis from which to reason to other conclusions. It is man reduced to his essence that is discovered in this fashion. It is, as understood by the men about whom we have been talking, man as he really is. Thus, it can be affirmed that man is a 738 THE FREEMAN December rational animal - i. e., that he is capable of reason, that his poten tiality for reason separates him from other creatures. If reason were something acquired from the culture, then all other creatures in the culture could acquire it. The state of nature concept, then, is used to discover the na ture of things. Everything has its nature, men of the Enlighten ment held, has its form, shape, and potentialities. This could be affirmed of government, of so ciety, of economy, and so on. Nor was the state of nature a neutral concept in the Enlightenment. The nature of a thing was believed to be implanted there by God, and it behooved man and all institutions to conform to their natures. On this view, everything is either natural or artificial. Herein lies the most revolutionary side of the natural law philosophy. One can follow a line of reasoning that all culture and all artifice violates na ture and must be destroyed. (This was the tendency of Rousseau's thought.) Or, this line of thinking may be followed in a more dis criminating fashion and lead to conclusions that some cultural de velopments run athwart the na ture of the thing - such as mer cantile regulations, for example, while others do not, as, for ex ample, the institution of mar riage. The founders of these United States tended to be quite conserv ative in their interpretation of the relation of their institutions to the nature of things.

liThe Social Contract" Another basic concept of the natural law philosophy could form a counterbalance to the revolu tionary tendency of the state of nature concept. This is the con cept of the social contract or com pact. It will be useful here to dis tinguish between the essential and the existential social contract, even though such a distinction was not usually carefully em ployed in the eighteenth century. The essential social contract is timeless and universal; it is that contract which must exist if men are to live at peace in society. It is an enduring contract which one perforce enters at birth and quits only when he leaves society. As I have noted elsewhere, the social contract "is that tacit, essential, and necessary agreement which binds man to man, members of a family to one another, members of communities together, binds gen eration to generation, binds peo ple to government and govern ment to people. It is everyman's tacit agreement not to use vio lence to get his way, to leave others to the enjoyment of the fruits of their labor, not to trespass upon the property of others, to fulfill 1971 THE ENLIGHTENMENT IMPETUS 739 the terms of his individually en tered into agreements, to honor his parents, to succor his chil dren, to keep his word, to meet his obligations - to family, to community, to country -, to keep all treaties, and to observe the amenities of his culture."2 It should be clear that the accept ance of such a social contract would mean that drastic changes would not be made in the social fabric, for to do so would be to violate the social contract. Ameri cans accepted some such concep tion, as most peoples at most times do, whether they are aware of it or not.

The existential social contract is the particular one which pre vails in a given society. When men referred to it they had in mind usually the compact between the governed and the governors. Any constitution would be such a contract, whether it had been written out or not, and whether or not both parties had formally ratified it. Americans in 1775 had a considerable history of dealing with such compacts. There was the British constitution, the co lonial charters, the Mayflower Compact, the Fundamental Orders of Connecticut. In the natural law philosophy, if the rulers vio2 The Flight from Reality (Irvington: Foundation for Economic Educatiorl, 1969), p. 498. lated the existing social compact basically and consistently, a peo ple could revert to their condition prior to their rulers and work out some new agreement. This is what Jefferson argued in the Declaration of Independence. "Natural Rights"

Probably the most potent con cept derived from natural law theory for the American colonists was the doctrine of natural rights. This is the doctrine that men have by nature, and as a gift of God, certain rights. They have been most commonly categorized as the right to ·life, liberty, and property. John Adams described the position this way: All men are born free and independ ent, and have certain natural, essen tial, and unalienable rights, among which may. be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, pos sessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.3 It was in their claim to rights that Jefferson was saying all men are created equal in the Declaration of Independence. He followed his famous phrase about equality with this one: "that they are endowed by their Creator 3 George A. Peek, Jr., ed., The Political Writings of John Adams (New York: Liberal Arts Press, 1954), p. 96.

740 THE FREEMAN December with certain unalienable rights. " It should be clear that this statement cannot be validated by an appeal to historical evidence. History is replete with instances of violations of the rights of indi viduals to their life, liberty, and property. Murder, suppression, and trespass have been all too common throughout history, nor would sur veys anywhere at any time have been likely to turn up the fact that all were equally protected in the enjoyment of their rights. But Jefferson did not appeal to historical evidence; he said that the truth of the position is "self evident." The effective meaning of this is that the truth of the statement follows from the na ture of man and of conditions on earth. What does it mean that one is entitled to life? It means that no one has a prior claim to it, that no one may take it without provo cation, that it is his to whom it has been given. In the nature of things it is clear that no one could have established a claim on . the life of another at birth or thereafter.

In a similar manner, man has a natural right to liberty, that is, to the free use of his faculties (with the commonly stated proviso that he do no inj ury to others in his use of them). In the very nature of things, no one may constructively employ the mind, the senses, and the limbs of a person but that person himself. It follows that he to whom they belong does so by prior right which. it is impossible for him to alienate. The right to property is shorthand for the right to the fruits of one's labor. It is self evident that a person who has pro duced something by his own labor with his materials on his own time has a rightful claim to it. The right to property is the better phrase, however, for it encompasses the subtleties of distribution by which the fruits of one's labor may be determined in complex situations which usually prevail. An Ordered Universe The natural law philosophy mightily buttressed a belief in liberty. It also provided methods for discovering liberties and the means for establishing and main taining them. The Enlightenment gave added impetus to making such discoveries and an urgency to acting upon them.

The concept of an ordered uni verse provided the most profound basis for liberty. Seventeenth cen tury scientists had affirmed that the universe was governed by laws capable of precise formulation. Newton's statement of the law of gravity explained how the great bodies in the solar system are 1971 THE ENLIGHTENMENT IMPETUS 741 kept in their orbits by a combina tion of the motion of freely falling bodies and the attraction of the bodies to one another. All sorts of other phenomena were shown to operate according to law. These laws were believed to be the crea tion of God and to be immutable. As thinkers extended their ac tivities into the social realm they discovered a natural order there as well. It is an order modified, however, by the free will of man. Man not only can reason but he can will as well, and he can will to do wrong to others. Hence, gov ernment is necessary, and certain prohibitions by it are essential to enable men to live fruitfully in society. But the existence of an order prior to government means that the role of government can be limited and restrained. It is not to be expected that everything will come apart if some human agency does not control and direct it; on the contrary, things will operate as they are supposed to ordinarily without some compulsive force.

Separation and Balance 0' Powers To restrain government to its proper role, power must be sep arated into its various functions, and powers must be counterbal anced against one another to pre vent those who govern from ex ceeding their bounds. The sep aration and balance of powers concept was a paradigm of New ton's description of the universe itself. The heavenly bodies are kept from flying off into space by mutual attraction. On the other hand, they are prevented by their own motion from being drawn into the sun and consumed. A basic separation and a delicate balance between thrusts and pulls holds them in their orbit. This is one of the models for the separation of powers in government by which it may be kept to its task. There is not space here to de scribe in detail the arguments for and justifications of liberty that derived from this outlook. Some of them will be described at other points. Suffice it to say that Amer icans were impressed wherever they looked with the felicitous pos sibilities for liberty. The broad lines of the insight went something like this: Compulsion is not necessary to make men sociable; man is a social creature by nature.

He needs the society of others to satisfy his wants and will seek· out the company of others. To have that company, he will be under pressure to behave in ways accept able to others .. There is an eco nomic order which men willingly take part in without being com pelled to do so or without being told what to do. Man is religious by nature. He cannot be compelled to believe what he does not be742 THE FREEMAN December lieve. By nature this is impossible. But he might be expected to wor ship with others of like mind if left to his own devices. By the time the crisis between Britain and America came, Ameri cans were prepared by the natural law philosophy in three most im portant ways. With it they had ready to hand a foundation to sub stitute for the British constitu tion, one which undergirded that institution and transcended it in its universal validity. And they .were impelled toward liberty as a temporal object. The diversity of the colonies had once had the unity of a common British back ground. When they struck off the British connection they kept much of their diversity but thrust to a new unity on the basis of the natural law philosophy. Independ ence, liberty, unity, and diversity found shelter within the broad framework of natural law. t) Next: The Mercantile Impasse Nalure' s Way IDEAS ON LIBERTY EQUILIBRIUM is nature's scheme and she maintains it by the use of power, which is developed from strain, which, in turn, is cre ated by inequality.

Nature has never permitted stability in any form of life. Man will be going against nature if he seeks stability in his own affairs. It is strain that makes life not only worth while but actually possible, because from strain comes the only available power for individual development. From The William Feather Magazine, July, 19'71 CAN HECHARGE t:t\NYTHINGHE WANTS"? JOHN A. SPARKS To THEIR FIRST COURSE in eco nomic principles, college students bring a wide assortment of mis understandings. The "nature of competition," in particular, is a subject where there is almost al ways confusion. During a recent classroom discussion one student, who is representative, said: "This idea of rivalry between producers is fine, but what if there is only one producer of a product, for example, only one dairyman in a town. Then, it seems to me that he would have a monopoly and could successfully charge any price he wanted to charge." The class nodded a general assent.