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Ordered Liberty and Natural Law
Balancing order and liberty is only possible through a deliberative process of grounding our politics and personal lives to shared historical experiences, norms, and institutions.
Josh Lewis (@svngelephants) is a CPA and former treasurer of the Tulsa County Republican Party. A diligent student of the conservative movement, he operates the Saving Elephants Blog and Podcast in an effort to reignite conservativism and return the Republican Party to its intellectual and principled roots.
What Dr. Martin Luther King called “God’s law” and Russell Kirk referred to as “an enduring moral order,” others have simply called Natural Law.
While no unified definition or consensus exists on what, precisely, Natural law is, I’m using the term to mean the philosophy that we can argue for the existence of certain duties, morals, and rights on the basis they are inherent to human nature. And when I say “argue for” I mean that proponents of Natural Law have often insisted that all one has to do is employ their reason to see for themselves that these duties, morals, and rights exist because of our nature.
“We hold these truths to be self-evident”—the Declaration of Independence boldly declares—“that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” How do we know these things to be true? For the same reason you know that you exist: because these truths are “self-evident”. And, while the word “Creator” is stubbornly embedded in the text, the proponents of Natural Law may argue that what imbues humanity with rights is our nature, and not necessarily the act of a Creator creating those rights.
There are times and circumstances where both the religious and the “natural” pathways lead us to the same idea of order. For, while I have argued a belief in God—let alone the Christian God—is not required to hold a conservative worldview, a conservative is not a strict materialist. As such, a conservative’s worldview must incorporate some notion of supernatural order. And while the supernatural is not incompatible with Natural Law theory, there are certainly worldviews that have no place for the supernatural. Political science professor Stanley Parry explains why these two paths may sometimes take us to rather different places:
“The conservative appeal to reason within the natural-law tradition fails to cope with the problem in its existential form. Its basic error is to appeal to nature as the source of order, precisely when ill minds perceive nature as the source of disorder, as the dilemma from which they must save themselves. A simple counter-assertion cannot work the therapy needed. The real problem is to move to a perception of nature as ordered by a transcendent purpose, whose intention can be learned only by a revelation from on high. The real solution is to move from the threat of disordered nature to the perception of the right order that has been determined by divine intention.”
Disordered Nature and State Imposed Order
The twin paths of religion and nature only get you to the same place if we presume Nature itself to be ordained, created, and ordered. Simply put, the path of nature only gets you to order if nature is ordered in the first place. In a world of chaos, there is but one path that leads to order: the collectivist State. The disciples of French philosopher Jean-Jacques Rousseau trudged down the pathway of nature and twisted Natural Law theory to insist that this business about self-evident truths and the rights of man justified pulling down society and erecting in its place a State that had the power to enforce order. Historian Garry Wills shows how Rousseau’s path leads us astray:
“Those things which have been criticized as inconsistencies in Rousseau—his union of extreme individualism with collective tyranny—are actually the result of his penetrating logic. He saw that Locke’s doctrine of natural rights surrendered by agreement leads to a state that is either absolutely just, or—when the state fails in some particular, and tries to prevent dissolution of the agreement by force—absolutely unjust. Society and the state are coextensive terms. Prior to the social contract, each man is a world apart; and the absolute autonomy of this condition can only be surrendered to a custodian that discerns and demands absolute right. That is why the eighteenth-century reformers had to believe that Nature’s intent was clear, everywhere ‘self-evident,’ in order to embark on their experiments.”
The classical Lockean liberal may argue Natural Law teaches humans have certain rights and that a just government is a government that does not trample on those rights. That may be so, says the conservative, but Natural Law untethered from transcendent notions of order leads not to liberty but to statism. The State, far from being limited so as not to trample on our rights, may be viewed as the only entity powerful enough to give us our rights in a world of chaos.
Natural Law theorists insisted their idea was self-evident. And they used this self-evident idea as justification for a variety of what Wills referred to as “experiments”. The two most famous were the American and French experiments of self-government and liberty. But the two experiments employed a radically different understanding of order. The American experiment borrowed a Burkean understanding of order grounded in tradition, history, and religious norms all under a backdrop of God’s Providence. The French experiment used Rousseau’s understanding of order grounded in the general will: that is, the collective will of the people. And, since no one can speak for “the people” but the State, the State reigns supreme.
Burke scoffed at this Rousseauian approach—what he decried as abstract, metaphysical arguments for rights that were not ground in any sense of actual, transcendent order. Rights developed not in the sterilized universe of materialism, nor are they discerned by reason alone. To suggest rights could be poked and prodded in such a calculated, scientific manner was like saying we’d found a way to measure the weight and height and width of the human soul.
Rather, rights were supernaturally ordained and discovered through the shared historical experience of a people and divine revelation. That shared historical experience is going to differ between time and cultures, but this does not dull the force of our rights. That is, rights are not something that become more or less true in one time or place, but the ways in which our rights are understood, enforced, expressed, experienced, and applied will necessarily differ from one time and place to another.
Burke vs. Rousseau’s Disciples
Rousseau’s disciple Thomas Paine vehemently disagreed. To Paine, both the French and American “experiments” were not based on irreconcilable foundations, but they were really brothers in arms fighting the common cause of liberty over tyranny. In his excellent book The Great Debate, Yuval Levin beautifully summarizes Burke and Paine’s disagreement:
“For Burke…nature, history, justice, and order are inextricably connected. In his view, we can know the standard of nature only generally and only through the experience of history, whereas in Paine’s view we can know it precisely but only by liberating ourselves from the burdens of history and seeking for direct rational understanding of natural principles. For Burke the resort to history is the model of nature. For Paine, nature waits for us behind the distractions of history, which is merely a sorry tale of errors, crimes, and misunderstandings. Paine’s model of nature is a model of permanent justice that offers us principles for the proper arrangement of political life; Burke’s model of nature is a model of gradual change that stands a chance of pointing society in the right direction.”
These warring views between the disciples of Burke and Rousseau ultimately formed the basis for what has today become the debate between the Right and the Left.
Burke’s views were foundational to modern conservative thought. Burke rejected the radical notions of Natural Law theory that justified pulling down any government, tradition, institution, or structure that stood in the way of some abstract notion of rights. He refused to walk down the materialistic, secular path to order. But, as we saw last week, he also refused to take the religious path to order if it meant defining the political process as a realization of “Christian” government. Both paths lead to tyranny: one to the atheistic tyranny of Rousseau and the other to the arbitrary power of religious authority over the free will of the people.
Levin explains how Burke manages to chart a course between these paths to secure Natural Law and our rights in much safer bedrock:
“[Burke is] neither a utilitarian proceduralist nor a natural-law philosopher. He does not believe that man-made law is the final authority and that only consequences matter. Nor does he believe that political life is an expression of unchanging Christian truths. The regime, he suggests, does not owe its legitimacy directly to God, and neither is every whim of the sovereign legitimate. He proposes, rather a novel notion of political change that emerges from precisely his model of nature and his (again, rather novel) idea of prescription. And yet over time, this idea points us toward a standard of justice and judgment beyond pure utility.”
The conservative is fond of using the phrase “ordered liberty” to indicate a society in which both order and liberty are mutually reinforcing. If Burke is right—if the conservative view of order comports to reality—then this order becomes more than the basis for moral judgments: it becomes the very bedrock upon which liberty can be built. Burkean order leads us to a free society. It doesn’t stray down the paths of utilitarian leveling in its search for perfect equality, or Rousseau’s general will of the tyrannical state, or the religious path leading to a theocratic state, none of which are conducive to freedom.
The folly of some Natural Law theorists is their assumption that liberty and order can forever be set in some permanent fixture, that the role of the state, the responsibility of the citizens, and the rights of humanity can forever be discerned, written down, and perfectly experienced. As political philosopher Willmoore Kendall put it:
“The issue is not whether men have natural rights or whether those rights should be respected by government; the issue is whether our generation, by contrast with scores of preceding generations that were also deeply committed to the idea of natural rights, has any particular reason for claiming that it can now make a ‘list’ of them and, having done so, seek to impose them, forever and a day, on future generations. The issue is not whether men have natural rights, but whether those rights can at any moment be specified once and for all.”
Order and liberty are never fully reconciled. They are contradictory—or, at least, paradoxical—principles that are held in tension whose natural state is to pull apart. We are in constant threat of order depriving us of liberty just as we are in continuous danger of liberties being used to undermine order. That’s why Burke taught that our greatest hope of balancing the order/liberty equation was through the patient, deliberative process of grounding our politics and personal lives to the shared historical experiences, norms, and institutions. Balancing order and liberty is extremely hard, and it would be wise to use every tool at our disposal—including enlisting the aid of our ancestors through those experiences, norms, and institutions.
“Affirmation of a transcendent order is not only compatible with individual autonomy, but the condition of it,” wrote journalist M. Stanton Evans, “a skeptical view of man’s nature not only permits political liberty but demands it.” The American experiment employed Burkean order and, as a result, has achieved a remarkably successful ordered society which affords more liberty to its citizens than has been realized by almost any other nation at any time in history.
In the conservative view, liberty is the blessing of order and not the ultimate purpose for human existence. For liberty without order is a curse. Order comes first—much like the search for bedrock begins before the house is built. This is where the conservative worldview begins; this is Burke’s “foundation of all good things” upon which the building may commence.
This essay is adapted from the four-part series “Perfect Bedrock” on Josh Lewis’ Saving Elephants Blog.