Reasoning on the Nature of Things; C. Carson

My friend was aware, of course, that there was hardly a shortage of Dr. Carson has written and taught extensively, spe cializing in American intellectual history. He is the author of several books and a frequent contributor to The Freeman and other scholarly journals. 94 talk about rights. Just about every sort of thing imaginable was, and is, being asserted and claimed as a right, ranging from the alleged right of women to abort unwanted pregnan cies to the right of prisoners to a pre cise number of cubic feet of space. Every session of the Supreme Court seems to bring forth a new crop of rights, if in no other way than by its refusal to entertain appeals from de cisions of lower courts which have elaborated some new set of rights. Even. acts of Congress sometimes contain provisions which take on the color of rights. He was not speaking of this new crop of rights, however, for he understood, I think, that however august the bodies which proclaim them they are but assertions of the will and power of men. These al leged rights have no more substan tial backing in right than do Federal Reserve notes now have in silver and gold. They are fiat rights much REASONING ON THE NATURE OF TH[NGS 95 in the same fashion as our money is fiat money.

Natural Rights The rights my friend had in mind were of much more ancient vintage and claimed something much more substantial for their authority. They were rights said to subsist in the na ture of things and to antedate gov ernments, courts, and constitutions even. The economic rights he had in mind consist of such things as the right of man to the fruits of his la bor, to exchange his goods freely with ot~r owners, to have, to hold, and to dispose of his property, and to be secure in his possessions without ar bitrary interference from any per son or governmental authority. The importance of his point has become much clearer to me in recent months. The election of Reagan to the presidency, the gaining of a Re publican majority in the Senate, and the increase of conservatives in the House, have been interpreted as a major change in the thrust of gov ernment. Also, Reagan has been most vigorous in promoting his economic program during the first six months or so in his term of office. There has been considerable talk of economic freedom, of freeing enterprise, of re moving government controls, and the like. But the justifications of these, so far as I am aware, have been made almost solely in utilitarian and pragmatic terms.

The justification for lowering taxes was not that! people have a right to the fruits of their labors but that it could result in more saving, capital formation, ltiore jobs, and increased production. Ip. short, the emphasis is wholly on tll-e social benefits to be obtained, not the vindication of the rights of individuals. Some of the weaknesses ~f this approach are al ready becom~ng apparent. It hinges everything pn good economic re sults, whicn mayor may not be forthcomingjshortly. Moreover, it is readily interpreted in the frame work of econ.omic planning, though different fro~ some that has pre ceded it. It makes it appear, too, that government 'is responsible for mak ing the ecop.omy perform well, a conception ~hat underlay the in creasing government intervention over the years. It is not my purpose, however, to make a criti1que of the Reagan pro grams. Rattier, I call attention to them only to make clear that there is something missing from the jus tifications bbing offered. Nor is it merely something incidental to them; it is critical" even essential to their justification land direction. The gap in the thin~ing of the Reagan peo ple, the omitted justification on the basis of righ~s, is not something pe culiar to tht)m, however. It is char acteristic Qfi our times. There is a gaping hole in modern thought.

Thinking In terms of the nature of 96 THE FREEMAN February things, which is essential to the dis covery and ascertainment of rights, while it occurs, is not in keeping with generally approved modes of thought. It is no less valid today than it ever was, but for many years now it has not been in keeping with intellectual fashion. It will be help ful, then, to examine how that came about and what was involved before giving some examples of how it works. The Natural Law Philosophy Reasoning on the nature of things was part and parcel of a complex of ideas which are sometimes referred to as the natural law philosophy. It needs, then, to be examined within that context. The natural law philosophy was largely abandoned in the course of the nineteenth century. Its aban donment signified a major shift in thought. Natural law doctrines had been a staple of Western thought since the time of the Roman Stoics, and its antecedents go back even further than that. Interest in it was not constant, of course; it waxed and waned over the centuries. But every revival of learning and renaissance (harking back to and rediscovering aspects of Ancient thought) brought renewed interest in natural law, up to and including the classical re vival of the seventeenth and eigh~ teenth centuries. Indeed, Otto Gierke declared that "The development of natural-law ideas ... attained its culmination at the end of the eigh teenth century. After that time," he continued, "we can begin to trace a process of collapse and disintegra tion in the natural-law system of thought. "1 I referred to it as a philosophy above, yet it was never quite that in an all-embracing sense. It did attain to the rank of a philosophy of law in ancient Rome, was revived as part of a more comprehensive scheme of law by Thomas Aquinas, and under girded the development of modern law from the Renaissance down through the eighteenth century.

Overall, though, it was more of a way of perceiving reality than a con sciously elaborated philosophy. As such, it was an offshoot of meta physics, from which it entered deci sively into the development of sci ence in the seventeenth century. Those who view it simply as a legal theory, or even more broadly, as a theory of society and the state, un derstate its claims and impact. In its varied applications it suffused thought in the eighteenth century, ranging from music and poetry to politics and science. The impact of the natural law idea is suggested in this summary by· a contemporary scholar: "It was a the ory which culminated in the Ameri can Declaration of Independence in 1776 and the French Revolution in 1789. It was a theory adorned by 1982 REASONING ON THE NATURE OF THINGS 97 many illustrious names-Hooker and Suarez; Althusius, Grotius and Pu fendorf; Milton and Sidney; Hobbes, Locke and Rousseau; Spinoza and Leibnitz; Thomasius and Wolff ...

Vico and Beccaria; Fichte and Kant."2 But if we examine the extended im pact of the concept, many more fa mous names should be included in the roll: Newton, Galileo, and Franklin; Haydn, Mozart, and Vi valdi; Jefferson, Adams, and Paine; Blackstone; Hume, Smith, Turgot, and Ricardo; Pope, Addison and Steele. Perhaps, the natural law theory can be best understood in terms of certain doctrines developed out of it. Underlying these doctrines was the belief that this is an orderly uni verse, that there is an underlying natural order that makes it so, that there is a law for man and a law for things,· that everything has its own nature imbedded in it, that these things account for perceived regu larities, and that there is a remark able harmony pervading all of Cre ation. The following are some of the natural law doctrines: state of na ture, the laws of nations, social con tract, and natural rights.

Natural Law Doctrines The key to the natural law doc trines is that they come into view when we focus our attention on the enduring features of reality. They are discovered by an act of the mind in stripping away all that changes, that is ephemeral, that is cultural, that is a result pf history, that is pe culiar to each ihdividual thing. It is in this fashion that we discover the nature of things, the laws that gov ern or pertain to them, the way they are and can bef For example, if we would know the nature of man, we must remove everything that is ac cidental to any particular man (or woman) in any particular time or age: dress, language, size, girth, how hairy he is, color, and what have you. Then, we.ask what the distinc tive features of his kind are. What are the potentinlities of his being? By such methods and with such questions we may come to a grasp of the nature of man. Much was lost, as I say, by the abandonment of the natural law concept by so many thinkers in the nineteenth century. I do not mean to suggest, of course, that it has been entirely aband9ned or that relics from it are notstill around. The nat ural law theories have been kept alive by some Catholic scholars, particularly Thomists. Such think ers as Joseph Wood Krutch, Leo Strauss, and Erlc Voegelin have kept some of the basic concepts alive in our time. And, so long as the United States Constitution or classical eco nomics, to take two examples, re main, something of the natural law natural rights' doctrines will re main.

98 THE FREEMAN February But from the early nineteenth century onward there was a decided shift away from the mode of think ing that nurtured the natural law concepts. Romantics continued to admire nature, indeed, many of them venerated it, but they concentrated on nature in the concrete rather than the abstract. They emphasized the particular and the unique rather than the general, the abstract, and the universal. One of the offshoots of romanticism was historicism, a movement to locate reality within the uniqueness of·.particular historical events. G. W. F. Hegel provided the philosophical ballast for locating reality within historical develop ment. The evolutionary theories of the nineteenth century had residues of natural law, but they were changed into laws of historical de velopment, and natural law became driving force rather than underly ing order. The outlook had shifted from a focus on the enduring to the placing of the whole attention on the changing. History had largely re placed philosophy.

The Utilitarians The abandonment of the natural law doctrines was not simply a mat ter ofa shift in outlook. Some think ers repudiated, denounced, and den igrated the very idea of natural laws. The utilitarians were among the more outspoken of these. Jeremy Bentham said of those who believed in natural law that they "take for their subject the pretended law of nature; an obscure phantom, which in the imaginations of those who go in chase of it, points sometimes to manners, sometimes to laws; some times to what law is, and sometimes to what it ought to be."3 John Stuart Mill attacked the very notion of a benevolent and orderly nature (attacking nature andcharg ing it with cruelties much in the manner that some attack or ques tion God). He said, "Nature impales men, breaks them as if on the wheel, casts them to be devoured by wild beasts, burns them to death, crushes them with stones ... , starves them with hunger, freezes them with cold, poisons them ... , and has hundreds of other hideous deaths in re serve .... " Moreover, "Even the love of 'order' which is thought to be a following of the ways of Nature, is in fact a contradiction of them. All which people are accustomed to dep recate as 'disorder' and its conse quences, is precisely a counterpart of Nature's ways. Anarchy and the Reign of Terror are overmatched in injustice, ruin, and death, by a hur ricane and a pestilence .... "4 Mill was, of course, dealing with nature in the concrete, as many ro mantics did, but without their ad miration of it. Bentham, too, was misconstruing the natural law the ory, to some extent anyway. All this is the more strange because none 1982 REASONING ON THE NATURE OF THINGS 99 were more devoted to the principles of economics than were the utilitar ians, and they surely did not believe that these were of man's devising.

My suspicion is that they both mis construed natural law and found it a nuisance in some of their endeav ors. In his efforts at legal reforms, Bentham encountered natural law exponents as an obstacle and simply repudiated the theory. Mill became a socialist, at the last, which was a logical culmination of his utilitarian premises unrestrained by a counter vailing belief in a natural order which made socialism impossible. This brings us to the crux of the matter. For socialism even to have a chance at being intellectually re spectable, .it was necessary for the belief in a natural order (and a re vealed Divine order), in a metaphy sical realm in which it subsists, and in natural law, to lose its sway. There must be a belief that men can devise a system unhindered by any under lying order. That is not to say that those who do not believe in natural law inevitably become socialists. It is rather to suggest that socialism arose in the wake of the decline in the belief in a natural order (ofwhich natural laws were believed to be the most precise evidence) and that the removal of this formidable obstacle prepared the way for it.

The economic rights to which my friend referred were natural rights in origin. The concept of natural rights was one of the natural law doctrines, andiwith the fall of natu rallaw went natural rights as well. Men continued to speak of rights, of course, but such support as they had now was only ~n positive law. That meant that they could be extended or withdrawn at the will of the rul ers, and only expedient arguments could be raised for or against them. But before looldng further at natu ral rights there' is a related point that needs to be made. Classical Economics Classical economics was born out of the belief in an ordered universe and the prevailing natural law doc trines. That is! another way of say ing that the idea of economic free dom was first given theoretical formulation out of this complex of ideas. Adam Smith's Wealth of Na tions, publish~d in 1776, was the landmark publication for the devel opment of classical economics. Smith maintained that the industrious in dividual in th~ pursuit of his own interest contributes to the well-being of others when he buys and sells goods in the lJlarket. He is bent to the pursuit of,his own interest by nature, and hiis condition in this world is such t~at if he pursues it in a productive w~y he must contribute to the general stock of goods.In doing this, "he intends only his own gain, and he is in this, as in many other cases," Smith said, "led by an invis100 THE FREEMAN February ible hand to promote an end which was not part of his intention."5 There is a natural order of things, so to speak, which makes it so.

It is not necessary for government to intervene to bring about these conditions of economy, and it would be presumptive and disruptive, Smith held, for it to do so. Instead, "All systems either of preference or of restraint, therefore, being thus completely taken away, the obvious and simple system of natural liberty establishes itself of its own accord. Every man, as long as he does not violate the laws ofjustice , is left per fectly free to pursue his own interest his own way, and to bring forth both his industry and capital into com petition with those of any other man, or order ofmen."6 Smith arrived at these conclu sions by keeping his attention fo cused on the nature of things: the self-interested nature of man, the nature of production, the nature of society, and the nature of the mar ket. It is easy to be misled, however, by his statement that a "simple sys tem of natural liberty establishes it self of its own accord." This assumes a government which is attending to its proper business, that the "law of justice" prevails, and that individu als and voluntary groups are pro tected in the enjoyment of their rights. In short, it assumes that in dividuals have rights, and, given the intellectual outlook of the time, they were understood as natural rights.

The problem can be stated in this way: Given the existence of govern ment with its monopoly of the use of force, what is to keep it from inter fering in the economic undertakings of individuals? And, in any case, what is the boundary between the business of government and the business of individuals and volun tary groups? That is where rights come in. Like an Auto Without Brakes Government unrestrained by the rights of people under its jurisdic tion is like an automobile without brakes. It would be possible, of course, to build such an automobile, or even to remove the brakes from those already built. Such automo biles would work very well, too, in most respects. They would run as well as those with brakes, acceler ate, go up hills, and they might even get lucky passengers to their desti nations. But I would not want to bet on the safety of the passengers or of anyone else in their vicinity. Auto mobiles without brakes would be a constant threat to the lives and property of all who used them or those around whom they were being used. Pedestrians would be run down at crossings; horrible crashes at in tersections would be the norm; and even houses and buildings would be in perpetual danger.

Governments without brakes sup1982 REASONING ON THE NATURE OF THINGS 101 plied by the rights of their citizens are equally, or even more, danger ous. Property is at peril when gov ernment is unrestrained; trade is precarious; all sorts of interventions may hamper the production and dis tribution of goods.In a broader sense, the lives and liberties of all are in perpetual danger. That such behav ior by government would not be in the best interest of the people may indeed be a valid argument, but those with power in their hands are not likely to want for long justifications of every sort of depredation. Minus individual rights and the conception of a natural order, the arguments of Smith and the classical economists can be stood on their head. It is not necessary to imagine this reversal, of course; it has actually taken place. Adam Smith stressed the social benefits to be derived from economy. The title itself, The Wealth of Nations, suggests that this is the end of economy, though that was hardly the point of the work. None theless, this notion of the purpose of economy was planted, indeed, had already been planted by the mer cantilists, whom Smith devoted his major effort to refuting. Nineteenth century utilitarians added the con cept of "the greatest good for the greatest number" as the touchstone for the justification of an economy.

They repudiated natural law and with it all but remnants of a concep tion of a natural order. Enter, the Historicists The stage w~s set for the histori cists who would conceive of any economy as si~ply a result ofhistor ical developm~nt. The idea of public benefit as the ,goal of economic activ ity remained~ put with only partic ulars to guide it, it was easy enough to show that many people were not apparently benefiting much from a given economic system. Hence, the justification for government inter vention, or ev~n revolution. The so cial benefits ate to be achieved, in this scheme, at whatever intrusion upon the righ~s of individuals may be necessary to achieve them. Now, let us 'set Adam Smith up right once agaih. He did not say that the goal of so¢ial benefit was the cause of the we~lth of peoples and of nations. On the contrary, he de clared that he had "never known much good done by those who af fected to trade for the public good."7 Nor, I should! add, are economic principles thedause of the wealth of peoples and of ,ations. If they were, governments ntight conceivably ap ply them so as to achieve these ends.

The cause of tB.e wealth of nations, Smith said, is tljle application of their industry and c:1lpitalby individuals and groups to eI).richthemselves. The optimum conditions for these en deavors are firIPly established indi vidual rights. !The natural rights doctrine provided a foundation for such establishment.

102 THE FREEMAN February Natural rights are discovered, as I said, by focusing the attention on the nature of things. The traditional formulation of the position, at least that of the seventeenth and eigh teenth centuries, was that man has a right to life, liberty, and property. We can arrive at the justification of the right to life in this way. Who but a man has the right to his own life? In the very nature of things how could there be a prior claim upon it? In short, a man's own claim upon his life is primary. It is his by right. If it be forfeit, it must be by his own willing act. The Right to Use One's Faculties as One Wills for His Own Ends The right to liberty is most di rectly the right not to be restrained or imprisoned. To put it affirma tively, it is the right to go and come at will, without let or hindrance. In practice, it means the right to do this unless he must be restrained for some good reason, duly attested and proved. In its extended sense, the right to liberty is the right to use one's own faculties as one wills for his own ends. This, too, is founded in the nature of things. Only the in dividual is situated so as to use his faculties for constructive purposes.

He must command their use by his own mind and issue the signals through his own nervous system. Only he can direct his faculties to their highest and best use. The right to the use of one's faculties is an ad junct to the right to life, too, for it is by the employment of them to con structive purposes that life can be maintained. The natural right to property arises in this way. That which a per son has conceived in his own mind, made with his own hands, utilizing his own tools, from his materials, is his by right. It is his right, then, to keep it or dispose of it at will: to save, to sell, or to bequeath to whom he will. The right to private property in land is a corollary to the natural right to property. The right to improve ments on the land belong naturally to him who made them (unless he was otherwise compensated) but the right can only be secured by prop erty in the land itself. To put it an other way, he who owns the land owns the improvements on it as well.

If he does not own the land, he does not own the improvements. That is in the nature of things. There are many other things which can be learned by reasoning on the nature of things. Indeed, it is doubt ful if reason itself could long survive the abandonment of thinking in terms of the nature of things. More over, men have never stopped think ing in terms of the nature of things, though they have not done so nearly so fruitfully for many years because they have not generally openly avowed and accepted the full range of the premise of an enduring order 1982 REASONING ON THE NATURE OF THINGS 103 which is necessary to its validation. But there is only one other use that I would make of this mode of reason ing here. The use is to refer to the social contract, another of the natu rallaw doctrines. I mention the social contract be cause it is necessary to point out that natural rights are not absolute; they are limited. The rights to life, lib erty, and property are limited by the equal rights of others to theirs. When the rights of others are violated, the violator may suffer restrictions upon or loss of his rights. It goes further than that, however, as we can see by reference to the social contract.

The SocialContract The social contract is not a writ ten agreement, nor do we willingly and consciously enter into it. Rather, it is that agreement which is neces sary, in the nature of things, to the existence of society . It is everyman's tacit agreement not to use violence to get his way, to leave others to the enjoyment of the fruits of their la bor, not to trespass upon the prop erty of others, to fulfill the terms of his individually entered into agree ments, to honor his parents, to suc cor his children, to keep his word, to meet his obligations. The social con tract embraces, too, the obligation of the citizen to support the govern ment-with a portion of his means and, if need be, even his life-which protects him and his in the enjoyment of their rights. If these are limits on individual rights, they contain also implicit limits upon government. In conclusion, then, I agree with the friend who $uggested that there needs to be a greater emphasis upon rights rather than upon economic expediency, s~cial benefits, and practical measures by government.

The fount of prosperity, if Adam Smith was right, is in the individual and voluntary employment of indus try and capital. The ground of that is in individual rights. The rights of which I speak are not bestowed upon us bygovernm.ent. Rather, they are secured by restraining government. They are, as Jefferson put it, a gift of "Nature andlNature's God," and cannot be violated with impunity. @ -FoorrNOTESlOtto Gierke, Natu,ral Law and the Theory of Society, Ernest Bark~r, trans. (Boston: Beacon Press, 1957), p. 223. 2Ernest Barker, "Translator's Introduction" in ibid., p. xi. 3Quoted in John BowIe, Politics and Opinion in the Nineteenth Century (New York: Oxford University Press, A y.alaxy Book, 1964), p. 66. 4Quoted in Henry: Hazlitt, The Foundations of Morality (Los AIl:geles: Nash Publishing, 1972), pp. 204-05. 5Adam Smith, Th~ Wealth of Nations Edwin Cannan, ed. (New. :ij.ochelle, N.Y.: Arlington House, n. d.), pp. 29,30.

6Ibid., p. 290. 7Ibid., p. 30.