Leo Strauss and Natural Law: The Hobbesian Path to Avernus

AVOIDANCE OF VIOLENT DEATH or self-preservation becomes the source of Hobbesian morality and the the root of Hobbesian justice. It also is the passion that compels man, who would rather be a solitary atom, to combine himself with others in society through compact. Man has no duties but those which come from the "fundamental and inalienable right of self preservation." Strauss, 181. Duty, for Hobbes, follows right. More precisely, duty is limited by the right to self-preservation, and so self-preservation trumps all duties. All duties become relative to this right:

There are, then, no absolute or unconditional duties; duties are binding only to the extent to which their performance does not endanger our self-preservation. Only the right of self-preservation is unconditional and absolute.

Strauss, 181. What this means is unsettling. Strauss puts the hammer on the nail's head: "By nature, there exists only a perfect right and no perfect duty. The law of nature, which formulates man's natural duties, is not a law, properly speaking." Strauss, 181. Hobbes has redefined natural law out of existence, and all of a sudden, it seems, people start talking of rights and become forgetful of duties. Liberalism raises its ugly head in a world where all there are only rights, where there is no natural law. Hobbes may therefore be called the father of liberalism:

If we may call liberalism that political doctrine which regards the fundamental political fact the rights, as distinguished from the duties, of man and which identifies the function of the state with the protection or the safeguarding of those rights, we must say that the founder of liberalism was Hobbes.

Strauss, 181-82. Similarly, we find in Hobbes the germ for the modern penchant for rights-talk, and its for duties-talk mutism:

The fundamental change from an orientation by natural duties to an orientation by natural rights finds its clearest and most telling expression in the teaching of Hobbes, who squarely made an unconditional natural right [self-preservation] the basis for all natural duties, the duties being therefore conditional. He is the classic and the founder of the specifically modern law doctrine.

Strauss, 182. Ah, with what facility did the Hobbesian passion-derived, natural right theory supplant the Thomistic reason-derived, natural duty theory in a massive social apostasy? Facilis descensus Averno. The descent to Averno is easy. The Gates of Hell are open wide. It is holding the line, nay, even more, it is the ascent to truth that is the labor, that is burdensome and hard.

Facilis descensus Averno;
noctes atque dies patet atri ianua Ditis;
sed revocare gradum superasque evadere ad auras,
hoc opus, hic labor est.

(Virgil, Aeneid, VI.124 ff.) Less classically, perhaps, Strauss quotes the conservative Burke (Thoughts on French Affairs) and not Virgil as I have done:

"The little catechism of the rights of men is soon learned; and the inferences are in the passions." With regard to Hobbes's classic formulation, we add that the premises already are in the passions.

Strauss, 183. So Hobbes initiated a paradigm shift which clearly take mankind downhill: individual rights were now prior to social duty, and thus preceded the common good, whereas in the past individual rights followed social duty, and so came out of or derived from the common good. All of a sudden, people started talking about the "state of nature," and pitting it against the Aristotelian man who, by nature was political, social. More ominously was the shift in the use of the term "state of nature," which had referred to the fallen condition of man prior to grace, to the use of the term "state of nature" to refer to the condition of man prior to the State. Indeed, there may have been more method than madness to the use of the term, for we have through Hobbes the introduction of the secular salvation of man:

Prior to him [Hobbes], the term "state of nature" was at home in Christian theology rather than in political philosophy. The state of nature was distinguished especially from the state of grace, and its was subdivided into the state of pure nature and the state of fallen nature. Hobbes dropped the subdivision and replaced the state of grace by the state of civil society. He thus denied, if not the fact, at any rate the importance of the Fall and accordingly asserted that what was needed for remedying the deficiencies or the "inconveniences" of the state of nature is, not divine grace, but the right kind of human government.

Strauss, 184. Since for Hobbes self-preservation is the ultimate rule and ultimate source of rules, we find an interesting corollary comes with it. Whereas the natural law assumed the judgment of the wise, Hobbesian natural right assumed the judgment of everyman, including, so it seems the fool. Every man, even the most base, has an instinct for self-preservation, and so every man, regardless of wisdom, has the right to judge the right. "We may speak of a natural right of folly." Strauss, 186. Along with the democratization of judgment comes the emphasis on consent and will, rather than reason, as the basis of law.

As we shall see, the building of the natural moral law upon the right of self-preservation was to have important repercussions on the natural moral law.

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Leo Strauss and Natural Law: Hobbesian Natural Law

LOCKE LIKED TO DRESS IN HOOKER'S ROBES, but underneath he wore Hobbes's breeches, or perhaps better his soiled skivvies. Richard Hooker, Strauss notes, was safely within the Thomistic natural law tradition. Thomas Hobbes most definitely was not. And John Locke, more judicious, or perhaps more of a dissembler than the judicious Hooker, quoted Hooker while thinking Hobbes. Locke is the American political philosopher par excellence, and so when it comes to natural law Americans tend, like Locke, to be disguised Hobbesians and not, alas, Hookerian Thomists, much less just simple Thomists.

With this introduction of Hobbes's influence on Locke, Strauss launches into his criticism of Hobbes. Hobbes was notable for having extruded the core of modern science, that is "nonteleological natural science," and applied it to the realm of political philosophy, replacing the classical philosophical basis which he regarded "rather a dream than science," thus ushering in, as self-proclaimed father of political science, "modern natural right." The rejection of a teleological view of nature required a replacement, and Hobbes's mechanistic, atomistic view of random, arbitrary movement supplied no adequate replacement. (How can one know chaos?) So Hobbes replaced nature's teleology with human knowledge. (But is this not, on Hobbes's theory, chaos knowing chaos?)

[Hobbes's] notion of philosophy or science has its root in the conviction that a teleological cosmology is impossible and in the feeling that a mechanistic cosmology fails to satisfy the requirement of intelligibility. His solution is that the end or the ends without which no phenomenon can be understood need not be inherent in the phenomena; the end inherent in the concern with knowledge suffices. Knowledge as the end supplies the indispensable teleological principle. Not the new mechanistic cosmology but what later on came to be called "epistemology" becomes the substitute for teleological cosmology. . . . Of political philosophy thus understood, Hobbes is indeed the founder.

Strauss, 176-77.

But this Hobbesian "modern natural right" is a theory markedly different from that of the past; indeed, it represents a break from all classic natural right. "He presents his novel doctrine as the first truly scientific or philosophic treatment of natural law." Strauss, 168. Hobbes, Strauss tells us, "became the creator of political hedonism, a doctrine which has revolutionized human life everywhere on a scale never yet approached by any other teaching." Strauss, 169. (Strauss ignored Islam, a rival political theory, which is political theology, based upon the teachings of a professed prophet, and presents itself as more revolutionary, and even more dangerous, than anything Hobbes ever dreamed of. I say professed because Muhammad contradicted the natural law in a variety of ways in both his teaching and his life, and a prophet of God would not have violated the natural law. It presents an absolute impediment to a thinking man to the acceptance of Islam. But this topic is for another day.) But Hobbes is more. Hobbes is an advocate of "political atheism." His natural philosophy, mathematical and mechanistic at its core, is that of the materialists, the atomists Democritus and Epicurus, though guised in Platonic ideal form. "His philosophy as a whole," Strauss concludes, "may be said to be the classic example of the typically modern combination of political idealism with a materialistic and atheistic view of the whole." Strauss, 170. Thus Hobbes presents us with a new beast, a synthesis of two opposing world views, the Platonic and the Epicurean.

There are several core features of classic natural right that are rejected by Hobbes and supplanted by foreign concepts. First, Hobbes rejects the Aristotelian notion that man is by nature political or social. Here, Hobbes adopts an Epicurean view of man "that man is by nature or originally an a-political and even an a-social animal," and he draws out the political implications of that view. Strauss, 169. He also adopts the supreme Epicurean moral principle and identifies the good with the pleasant, or at least with self-interest. Hobbes "tries to instil the spirit of political idealism into the hedonistic tradition." Strauss, 169. It is an odd, bizarre and monstrous yin-yang combination of "idealism" and "anti-idealism." Strauss, 178. At heart, Hobbes appears to have accepted the methodological doubt, the fundamental skepticism, of Descartes, rejecting at the same time pre-modern or scholastic nominalism which maintained faith in ability of the mind to grasp accurately the reality of the cosmos. Strauss, 171 n. 7, 174-75. For Hobbes, "[t]here is no natural harmony between the human mind and the universe." Strauss, 175. (Is Hobbes a precursor to Kant? But it was Hume, not Hobbes, that Kant said awoke him from his dogmatic slumbers.) And his mechanistic view of the universe, even of man, likening his heart to a metal spring, is well-known. And with it came a resolute rejection of any notion of a final end, of a teleological view of the world or of nature, where the universe "is nothing but bodies and their aimless motions." Strauss, 172. Hobbes's mixture was explosive, revolutionary; it had all the instability of a barrel of nitroglycerine placed at the foundations of the moenia, the walls, of the City of God and the City of Man which saw the heavenly city as its ideal, so as to undermine them. Hobbes's vision, though "an unsupported hope," was a "vision of the City of Man to be erected on the ruins of the City of God." Strauss, 175.

Hobbes's intellectual effort may be viewed as his attempt to explore the continent discovered by Machiavelli, "that greater Columbus" of political philosophy, in whom we also see a combination of idealism and anti-idealism (his "realistic" revolt against "tradition," or "moral virtue" and the value of a "contemplative life," supplanting it by "patriotism or merely political virtue.") Strauss, 177-78. As Strauss views it, Hobbes's efforts were intended to fill a gap left by Machiavelli's corrosive theories:

It was the difficulty implied in the substitution of merely political virtue for moral virtue or the difficulty implied in Machiavelli's admiration for the lupine policies of republican Rome that induced Hobbes to attempt the restoration of the moral principles of politics, i.e., of natural law, on the plane of Machiavelli's "realism." . . . . The predominant tradition had defined natural law with a view to the end or the perfection of man as a rational and social animal. What Hobbes attempted to do on the basis of Machiavelli's fundamental objection to the utopian teaching of tradition, although in opposition to Machiavelli's own solution, was to maintain the idea of natural law but to divorce it from the idea of man's perfection . . . . This complete basis of natural aw must be sought, not in the end of man, but in his beginnings, in the prima natura or, rather, in the primum naturae.

Strauss, 180. For Hobbes, the most fundamental nature of man was passion, not reason. (Hume was to take this thought, and run with it.) "Natural law will not be effectual if its principles are distrusted by passion or are not agreeable to passion," thought Hobbes. "Natural law must," therefore, "be deduced from the most powerful of all passions." Strauss, 180. Accordingly, not justice, not right, but fear of death, especially violent death, becomes the source of all right. In a sort of morbid irony, death, or perhaps more accurately, the desire for self-preservation, becomes the source of political life. But it is not excessive an exaggeration to state, as Strauss does, that in Hobbes: "Death takes the place of the telos." Strauss, 181. Satan, we may remember as an important (though "unscientific") aside, is the Angel of Death.

(continued)

Leo Strauss and Natural Law: Thomistic Natural Right

THE THOMISTIC DOCTRINE OF NATURAL RIGHT is the last general type of classic natural right theory identified by Leo Strauss in his Natural Right and History. In many ways the Thomistic theory of natural right cleans up the ambiguities and irresolute character of its pagan predecessors, but Strauss does not find this an improvement. Reading between the lines of Strauss's work, I find it a bit disdainful, a bit impatient of Thomistic natural right. "In definiteness and noble simplicity," St. Thomas Aquinas's teaching on natural law, "surpasses the mitigated Stoic natural law teaching." Strauss, 163. Informed by the light of the Gospel and the lodestar of revealed knowledge of man, of nature, and of God, the Thomistic natural law doctrine appears to have synthesized all tensions, polished all rough spots, in some way to have woven a seamless theory:

No doubt is left, not only regarded the basic harmony between natural right and civil society, but likewise regarding the immutable character of the fundamental propositions of natural law; the principles of the moral law, especially as formulated in the Second Table of the Decalogue, suffer no exception, unless possibly by divine intervention. The doctrine of synderisis or of the conscience explains why the natural law can always be duly promulgated to all men and hence be universally obligatory.

Strauss, 163. One has a hunch, in reading Strauss's short treatment of Thomistic natural law, whether the "lack of doubt" encomium heaped upon the Thomistic doctrine by Strauss is not a back handed complement, sort of like Anthony gives to Brutus in his funeral oration in Shakespeare's Julius Caesar. His treatment of it certainly gives it short shrift. And he mentions it in his Natural Right and History only to ignore it. Strauss, of course, was famous for writing in esoteric ways, leaving hidden messages between the lines. Strauss wonders whether the Thomistic formulation, which is intertwined with Scriptural and Patristic doctrine, is a pure, reason-based natural law doctrine. Is the natural law doctrine, as proposed by St. Thomas, graspable by reason alone? Or does it already presuppose faith in divine revelation? He asks the question already knowing how he intends to answer it.

For Strauss, the question of whether Thomistic natural law is truly natural is made even more urgent as a result of the Thomistic understanding of man's supernatural end and its belief in God. It is obvious that this understanding of man's supernatural end transcends the end that reason would assign to man, which would be limited to intellectual and moral perfection. St. Thomas, however, would see enough of a hint of man's supernatural end even in his natural end, as the natural end of man is reasonably seen as insufficient or lacking. (Clearly all men, regarless of faith, can testify to the plaint of Ecclesiastes: "Vanity of vanities, said Ecclesiastes vanity of vanities, and all is vanity." Vanitas vanitatum dixit Ecclesiastes vanitas vanitatum omnia vanitas. (Eccl. 1:2)) St. Thomas would also believe that the existence of God could be established by reason alone. There is therefore reason's hint that there is more to man than his natural perfection. As Strauss explains:

Thomas . . . virtually contend[s] that, according to natural reason, the natural end of man is insufficient, or points beyond itself or, more precisely, that the end of man cannot consist in philosophic investigation, to say nothing of political activity. Thus natural reason itself creates a presumption in favor of the divine law, which completes or perfects the natural law.

Strauss, 164.

For Strauss, the Thomistic doctrine of natural law, then, would require more than merely a natural theology. It would require the acceptance of a biblical revelation. Strauss, therefore, sees it as being a case of "the absorption of natural law by theology." Strauss, 164. The doctrine of modern natural right, advanced by Hobbes and Locke among others, which Strauss is about to treat in his book, was a reaction to this absorption, this tying-together. As it would have been unknown to the pagan, classical treatment of natural law, it would again be wanted to be unknown by the moderns. Not only would the scriptural influences upon the natural law be rejected, but so likewise would the requirements of natural theology (i.e., that God can be known by reason). The modern natural law theories are based upon the belief that the evidence of the existence of natural moral principles are greater than the evidence of the existence of God. Thus, the argument goes, the basis for moral philosophy is greater than the basis of natural theology. So it is that efforts were made to jettison not only scriptural theology, but even natural theology, from the theory of natural law. In his soft, underhanded, dismissive way of addressing Thomistic natural law, one thinks one sees Strauss's atheism showing.

Strauss hints at the real motive behind this desire to wrest the natural law from natural theology and to separate the two. The State appears to have coveted certain areas of human action (indissolubility of marriage, contraception, he mentions: there are others, health care and education) which, under the Thomistic view, had been within the competency of the Church. How would the State take them back? Thus, for example, Montesquieu in his Spirit of Laws, opposes himself to the Thomistic doctrine of natural law. Why? Strauss suggests that "Montesquieu tried to recover for statesmanship a latitude which had been considerably restricted by the Thomistic teaching." Strauss, 165 (emphasis added). So for Strauss, Montesquieu is "nearer in spirit to the classics than to Thomas." Strauss, 164.

Yes. Perhaps. But perhaps that is just a scholarly way of saying that Montesquieu was unfaithful, was a dismantler. One might recall that Montesquieu De l'Esprit des Lois was placed on the Index of Prohibited Books, and the ecclesiastical censors, though moderns may spurn them, at least had their reasons. Perhaps what is involved is an overweening Caesar absorbing things that are, or at least once were, God's? When one has traveled down this road of separating Caesar from Christ, and made substantial gains in de-divinizing, de-sacralizing the State, why turn back? Food once swallowed and digested, why should it be vomited back out? What sort of recovery is that? One should recall, a dog returns to his own vomit. Sicut canis qui revertitur ad vomitum suum sic inprudens qui iterat stultitiam suam. (Proverbs 26:11). So maybe the rejection of natural theology and the hint of a supernatural end for man from natural law is a step backward. But Strauss the atheist did not mention that possibility.

Leo Strauss and Natural Right: Aristotelian Natural Right

ARISTOTLE'S NOTION OF NATURAL RIGHT is not fully fleshed out in any of the sources we have of his teaching. As Strauss points out, Aristotle's treatment of natural right covers but a small part of his Nicomachean Ethics. One thing, however, is certain and distinguishes Aristotelian natural right doctrine from the Socratic-Platonic-Stoic doctrine. Natural right is fitted for man, and need not be dumbed down.

"[A]ccording to Aristotle, there is no fundamental disproportion between natural right and the requirements of political society, or there is no essential need for the dilution of natural right.

Strauss, 156. Aristotle brings the Socratic-Platonic notion of natural law from the ideal sphere into the practical, real sphere. He also serves to wrest the Stoic doctrine of natural right from its spirited cosmological speculations and plants it firmly in heart of the city of man. Here is natural law in all of its reality, in all of its humanity. It is a notion of natural law that is not limited to the wise, to the philosophers, but to the entire corpus of men.

Plato . . . defines natural right with direct reference to the fact that the only life which is imply just is the life of the philosopher. Aristotle, on the other hand, treats each of the various levels of beings, and hence especially every level of human life, on its own terms. When he discusses justice, he discusses justice as everyone knows it and as it is understood in political life, and he refuses to be drawn into the dialectical whirlpool that carries us far beyond justice in the ordinary sense of the term toward the philosophical life.

Strauss, 156. For all his realism and down-to-earth character, Aristotle does not disdain the life of a philosopher, he simply distinguishes, in a manner that Plato did not, the life of the city with the life of the philosopher. Man, and his life in community, operates in the "twilight," and not in the full face of the sunlight of divinity. It is wrong, it is foolish to wrest man from this life in the "twilight," and force him into the full light of the sun. Man is man, living on earth, not a god or a beast. "In the twilight which is essential to human life as merely human, the justice which may be available in the cities appears to be perfect justice and unquestionably good; there is no need for the dilution of natural right." Strauss, 157.

As Aristotle withdraws from the Platonic idealism and brings us back to earth, he also injects the notion of variability in natural right. "[A]ll natural right," Aristotle says, "is changeable."* Strauss, 157. Steering between a Thomistic interpretation and an Averroistic interpretation of this statement, Strauss suggests the following as a plausible expression of what Aristotle intended to mean by saying that natural law or right was changeable. Strauss distinguishes between "general propositions" and "concrete decisions." When confronting a contingent, concrete situation, the general natural law is expressed, individuated as it were, in concrete fashion. "Hence justice and natural right," at least for men confronting a concrete situation, "reside, as it were, in concrete decisions rather than general rules." Strauss, 159. For Aristotle, in Strauss's view, the natural right is just this concrete decision, the law of the particular case, as it were. It is therefore particular to circumstances and "obviously mutable." Strauss, 159.

For all the mutability in particular applications of the general rules (what Aristotle describes as natural right), the general principles are not "implied and presupposed." That is, they remain as they are unchanging and untouched by the day-to-day affairs of men. Aristotle recognizes general principles, such as those relating to commutative or distributive justice, slavery, and character of the city, which he regards as immutable. "These principles," in distinction with the particular application of them (which Aristotle calls natural right), "would seem to be universally valid or unchangeable." Strauss, 159.

Why, then, Strauss asks, does Aristotle call these particular applications "natural right," and why does he find them changeable? Strauss suggests that Aristotle is in a way reserving exceptions which apply in extreme situations. For example, in extreme situations, such as when the city's self-preservation is at stake, and when it confronts unscrupulous external or internal enemies, there may be conflict between principles of commutative and distributive justice and self-preservation. In such cases alone, cases of "sad exigencies" that ought to remain "covered with the veil with which they are justly covered," the "normally valid rules of natural right are justly changed, or changed in accordance with natural right; the exceptions are as just as the rules." Even the grand rules appear thus mutable. And, confronting such "sad exigencies," "Aristotle seems to suggest that there is not a single rule, however basic, which is not subject to exception." Strauss, 160. Such an exceptional situation is not subject to definition because wickedness is not constrained, but is infinitely innovative:

By saying that in extreme situations the public safety is the highest law, one implies that the public safety is not the highest law in normal situations; in normal situations the highest laws are the common rules of justice. Justice has two different principles or sets of principles: the requirements of public safety, or what is necessary in extreme situations to preserve the mere existence or independence of society, on the one hand, and the rules of justice in the more precise sense, on the other. And there is no principle which defines clearly in what type of cases the public safety, and in what type of cases the precise rules of justice, have priority. For it is not possible to define precisely what constitutes an extreme situation in contradistinction to a normal situation. Every dangerous external or internal enemy is inventive to the extent that he is capable of transforming what, on the basis of previous experience, could reasonably be regarded as a normal situation into an extreme situation. Natural right must be mutable in order to be able to cope with the inventiveness of wickedness. . . . [T]he objective discrimination between extreme actions which were just and extreme actions which were unjust is one of the noblest duties of the historian.

Strauss, 161.

These, of course, are terrible words, and they would seem to run extremely and temerariously close if not afoul of the Pauline injunction that one may not do evil so that good may come. At the same time, it is a truth as certain as any truth that exists that evil battles against good with all the wiles of high intelligence, and that it it calls from us responses that are unpleasant, distasteful, even morally marginal, yet proportionally necessary. What is morality like before the gates of Hell? Among such distasteful things we may mention such things as espionage (a form of stealing), feeding an enemy false information (a form of lying), "enhanced" interrogative techniques (a form of assault), sniping (the intentional killing of another, and not clearly in self-defense), and other acts that, outside the context of war and self-preservation, we would not countenance and indeed find abhorrent. Which of these things, and to what extent and when are these things, consonant with natural law? These are difficult questions, and they are not for the moral Pollyanna. Perhaps it was these sorts of things, in their primitive Greek forms, that Aristotle had in mind. At least this is Strauss's take on it.

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*Nicomachean Ethics, Book V, chp. 7. 1134b. As Strauss observes, St. Thomas Aquinas, informed by the Patristic notion that the law is a habitus which is called synderisis or (less properly) conscience, will qualify this unqualified statement of Aristotle, and will limit it--not to the universal, basic, or fundamental principles of natural law, which are unchangeable and immutable--but to the determinations or rules that are derived from those fundamental principles. Strauss, 157-58. Strauss also discusses the "Averroist" interpretation of Aristotle, which interprets the "natural right" as "natural legal right," in other words, a sort of halfway-house law, one affected by human institution and convention, but more universal than mere positive law in that it is based upon "ubiquitous convention." This construction of Aristotle's natural law makes natural law more (in the words of Marsilius of Padua) a "quasi-natural" law. This construction was advanced by the Islamic and Jewish Aristotelians and by the Latin Averroists such as Marsilius of Padua. The "quasi-natural" law was largely equated (at least by the Christian Averroists) as the Second Table of the Decalogue, though it also included a general injunction of divine worship. In this view, all law, including the natural law, is subject to exceptions; only the exceptions, for pedagogical reasons, remain frequently unmentioned. These unqualified laws are therefore "conventional," and not "natural." Strauss observes that while the Averroist interpretation aligns itself with Aristotle on the issue of mutability of natural law, it essentially denies the existence of natural law, something which is inconsistent with Aristotle's express words that recognizes its existence.

Leo Strauss and Natural Right: Socratic-Platonic-Stoic Natural Right

JERUSALEM INJECTED ITSELF INTO ATHENS largely as a result of Christianity's agency, and neither Athens nor Jerusalem was ever to be the same. Perhaps the most significant effect of Christ's encounter with Socrates was the diminution of the role of the polis (or Caesar) in the advancement of moral order. "The best regime as the classics understood it," when confronted by Christ and His Church, "ceases to be identical with the perfect moral order." Strauss, 144. The best regime was the City of God, the Kingdom of Heaven, an eschatalogical and not secular reality, one however found in germ in the Church of the Lord on earth and in the fullness of reality in heaven or the end times, the parousia. The end of man was revealed to be transcendent, requiring of Grace, and reliant on God's supernatural largess, though not without the cooperation of man. So as a result of this new vantage point, the end of civil society was viewed to comprehend only a "certain segment of the virtuous life," and not covering the "virtuous life as such," since the theological virtues were outside the competence of, indeed were unknown by, either by the polis or by the empire. There was, moreover, a marked definition of the natural law not found in times past informed, as it was, by the light of the Decalogue:

The notion of God as lawgiver takes on a certainty and definiteness which it never possessed in classical philosophy. Therefore natural right or, rather, natural law becomes independent of the best regime and takes precedence over it. The Second Table of the Decalogue and the principles embodied in it are of infinitely higher dignity than the best regime.

Strauss, 144. The modification of the classic natural right theory by Christian revelation was to be the influential theory that guided Western political thought.

It is classic natural right in this profoundly modified form that has exercised the most powerful influence on Western thought almost since the beginnings of the Christian Era.

Strauss, 144-45.

Strauss divides the patrimony of classic natural right teachings into three general categories or types: (i) Socratic-Platonic (into which he also places the Stoics by virtue of shared cynicism, and subsequently calls Socratic-Platonic-Stoic), (ii) Aristotelian, and (iii) Thomistic. In this posting we shall discuss the Socratic-Platonic-Stoic type.

According to Strauss, the Socratic-Platonic-Stoic teaching on natural right may be described by focusing upon the two most common views of justice. Justice may be defined as simply "good," or it may be defined by reference to law, as "giving to everyone what is due to him." Since the "law" by which justice is defined (if human) may be bad, such justice, which relies upon human law, may be bad. Accordingly, under the theory of natural right, the "law" to which justice as giving to each his due must refer must be the law according to nature. Under this view, justice will then be regarded as the habit of benefiting others by giving them their due in accordance with nature. Only the wise man can discern what is good by nature, and thus for justice to exist it must be the wise man that controls the reins of the polity and the distribution of its benefits and its burdens. Confronted with a small boy with a large coat, and a large boy with a little coat, the state will intervene and force a transfer between the boys since, a natural justice would find such a transfer consonant with giving to each what nature would indicate right. There is no "invisible hand"; rather, there would be the "visible hand" of the wise directing justice be done by enforcing an exchange willy nilly. "Justice," understood thus, "is then incompatible with what is generally understood by private ownership." Strauss, 147. Men would be fitted to do jobs, not by their desire, but in accordance to the talents with which nature has endowed them. "Justice exists, then, only in a society in which everyone does what he can do well and in which everyone has what he can use well." Strauss, 148. There is therefore an eerily communistic Marxist or liberal-progressive Rawlsian vein to this Socratic-Platonic-Stoic notion of natural right. One could define justice to consist of the principle "'from everyone according to his capacity and to everyone according to his merits,'" or perhaps "'equality of opportunity.'" Strauss, 148. Ultimately, such accidental additions such as gender, beauty, even citizenship become irrelevant in the distribution of goods and the imposition of burdens. There is a rejection of "citizen-morality," and marked tendency towards a cosmopolis, a "'world-state.'" Strauss, 149.

Contrary to modern secular man who believes himself wise and able to rule justly a world state without any help from the divine, the advocates of the Socratic-Platonic-Stoic theory doubted, both practically and theoretically, man's ability to rule justly a world state without being informed by the divine. They thus transcended the notion of the human cosmopolis to see the cosmos that was ruled by God as the only true city, "or that city that is simply according to nature because it is the only city which is simply just." Strauss, 150. The city was the cosmos writ small. And so a distinction was made between the law that was eternal and providentially drove the cosmos, on the one hand, and the law that was natural and governed, or should govern, the cities of men, on the other hand.

Men are citizens of this [heavenly] city, or freemen in it, only if they are wise; their obedience to the law which orders the natural city, to the natural law, is the same thing as prudence.

Strauss, 150.

Thus justice was something that transcended the rough and tumble of political life, a life that the wise, the lovers of wisdom, were not predisposed to pursue. To descend back into the cave of shadows, when they have seen the sun and ideal shapes outside, suggests that the life of the city distracts from reality. Justice within the cities of men could only imperfectly reflect the justice of God which governed the cosmos. So natural law and politics suffer a demotion:

If these [practical] requirements [for the city] are identical with natural right or with natural law, natural right or natural law must be diluted in order to become compatible with the requirements of the city. The city requires that wisdom be reconciled with consent. But to admit the necessity of consent, i.e., of the consent of the unwise, amounts to admitting a right of unwisdom, i.e., an irrational, if inevitable, right. Civil life requires a fundamental compromise between wisdom and folly . . . .Civil life requires the dilution of natural right by merely conventional right. Natural right would act as dynamite for civil society.

Strauss, 152.

This dilution of natural right as it descended from the heavens into the chambers of the elders or of the senate, "is the philosophic root of the later distinction between primeval natural right and the secondary natural right."* Strauss, 153. The former, which belonged to man in a state of innocence, did not provide for certain features now practically required in post-lapsarian civil society (e.g., private property). What may have been practicable in a state of innocence was not in a state of corruption. Thus, in man's current state, secondary natural right governed.

There is, however, a distinction between secondary natural right (which contains divine warrant) and the dilution of natural right. As Strauss explains:

This distinction [between primary and secondary natural right] was linked with the view that the primeval natural right, which excludes private property and other characteristic features of civil society, belonged to man's original state of innocence, whereas the secondary natural right is needed after man has become corrupted, as a remedy for his corruption.

Strauss, 153.

Importantly, there is a distinction between the primary/secondary natural right distinction and the principle that natural right becomes diluted. The dignity that is maintained by natural right suffers in its dilution from the throne of heaven to the thrones of earth. The diluted natural law is insipid, and to the extent it is cut or weakened by convention or consent it loses its divine warrant. It falls short of perfection. So the natural law in its perfection retains its explosive tendency. On the other hand, secondary natural law retains the full vigor of divine warrant. Secondary natural law is the law of God adapted to changed circumstances, namely, to the state of fallen man. The notion of secondary natural law, then, allows "justice, as it is commonly understood," to be "unquestionably good," and "primary natural right" ceases to be "dynamite for civil society." Strauss, 153.

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*Strauss cites to Hooker, Laws of Ecclesiastical Polity, I.x.13, which addresses the distinction between primary and secondary laws of nations. These are briefly addressed in Law, Sit Up Higher: Richard Hooker and the Natural Law, Part 12.

Leo Strauss and Natural Right: The Practical Ideal of Mixed Regime

RESTRAINT IS AS NATURAL TO MAN AS FREEDOM. It is the other side of the coin of liberty. It cannot therefore be said that the forcible imposition of boundaries, both external and internal, that comes with the governance of the city is unnatural. Just as man must exercise force to remain in command of his lower faculties, so must the social body, the city, exercise force to restrain the recalcitrant, the lawless or unvirtuous. "What is true of self-restraint, self-coercion, and power over one's self applies in principle to the restraint and coercion of others and to power over others." Strauss, 133. The city is nothing less than man writ large. "Serious concern for the perfection of a community," therefore, "requires a higher degree of virtue than serious concern for the perfection of an individual." Strauss, 133. It follows that restraint in the city must be done by force.

This is an important principle. Too often, force is seen modernly as incompatible with freedom, as something unnatural, as an evil. In the classical natural law tradition, though there may be tension between freedom and restraint, they are not found to be at mutually exclusive antipodes. Liberty and restraint go hand in hand, and it is incorrect to view liberty as good and restraint as evil. Good is found in the proper balance between liberty and restraint.

Justice and coercion are not mutually exclusive; in fact it is not altogether wrong to describe justice as a kind of benevolent coercion. Justice and virtue in general are necessarily a kind of power.

Strauss, 133.

There is an intimate connection, a connection that modernly has been lost, between virtue and political activity, between virtue and law. Statecraft is no longer seen as involving soulcraft. This is anti-Socratic, anti-classic. "The morality of civil society or of the state is the same as the morality of the individual."
--Leo Strauss
This is against the classic natural law view of things. "Political activity," viewed correctly, "is then properly directed if it is directed toward human perfection or virtue." Strauss, 134. It is this ordering toward virtue, virtue of the individual citizen, that makes the city ultimately have the same morality as the morality of an individual. "The morality of civil society or of the state is the same as the morality of the individual." Strauss, 134. It is this that distinguishes a city from a band of robbers. The robbers do not band together for the purpose of promoting virtue among themselves; rather, it is an exclusive club of vice and selfish self-promotion at the expense of others. Men band themselves together in cities, at least in the ideal or practically ideal city, for another purpose: the promotion of virtue.

Because the city and the citizen shared the same end--the promotion of virtue--it followed that there would be inequality within the city walls. Egalitarianism is not a bed fellow of the classic view of things. Perfection was the goal of man and of the body politic, and this meant that one could expect inequalities among men, despite their essential equality. Necessarily, there are some men that have better natures than others, that have more ordered faculties, that have exercised a greater effort at self-discipline and self-mastery and are more virtuous than others. "Since men are then unequal in regard to human perfection, i.e., in the decisive respect, equal rights for all appeared to the classics as most unjust." Strauss, 134-35. "One Law for the Lion & Ox is Oppression." (Blake) One had to realize that among men there are lions and oxes. There are those that are by nature better formed to be rulers.

It is, however, altogether the reality of things that the ideal city is rarely to be a reality. There are too many contingencies in the life of cities and of men that seem to work against the ideal. But for all that, one ought not to despair, though one may have to lower one's sights. "Whereas the best regime is possible only under the most favorable conditions, legitimate or just regimes are possible and morally necessary at all times and in all places." Strauss, 140. There is, in the classic view of things, therefore, a distinction between the ideal or utopian polity, the just or legitimate polity, and the unjust or illegitimate polity. Perfection is to be expected rarely, and a certain level of imperfection in the administration of a city does not immediately translate into injustice and illegitimacy.

The distinction between the best regime and legitimate regimes has its root in the distinction between the noble and the just. Everything noble is just, but not everything just is noble. . . . A very imperfect regime may supply the only just solution to the problem of a given community; but, since such a regime cannot be effectively directed toward man's full perfection, it can never be noble. . . . The best regime is that in which the best men habitually rule, or aristocracy.

Strauss, 140.

Xanthippe Dousing Socrates by Reyer van Blommendael (1655)

There is, however, a constant factor that works against the maintenance of the ideal or noble city. For the city's rule to work, the few wise cannot use force over the many unwise, and so the few wise have to try to persuade the unwise. However, the wise have limited ability to persuade the unwise because the unwise, wed perhaps to some passion, or limited by some vice or by limited education and culture, are not always able to grasp reasoned argument. Consequently, the wise shall not be able to govern the unwise, just like Socrates was unable to govern his wife, Xanthippe. Generally, what happens is the opposite: one or more of the unwise will more readily able to appeal to the mass of his unwise fellows, and thereby will usher in a tyranny, even through majoritarian consent. Here is a distinction between classic natural right and its egalitarian cousin:

The political problem consists in reconciling the requirement for wisdom with the requirement for consent. But whereas, from the point of view of egalitarian natural right, consent takes precedence over wisdom, from the point of view of classic natural right, wisdom takes precedence over consent.

Strauss, 141.

The best way of reconciling wisdom and consent is through law and a mixed regime, a regime that floats halfway between aristocracy and democracy. The wise legislator ought to frame a code of laws, an embodiment of wisdom, that the body politic adopts. The law, then, should curb the advent of tyranny, as "the rule of law is to take the place of the rule of men, however wise." Strauss, 141. The law can then achieve, sort of as a proxy, what the rule of the wise man could achieve. The law requires that it be administered by someone in equity, by the "gentleman," a man distinct from the "wise man." The "gentleman" is a middling creature between the common man and the wise man. So it all comes down to this:

To summarize, one may say that it is characteristic of the classic natural right teaching to culminate in a twofold answer to the question of the best regime: the simply best regime would be the absolute rule of thew wise; the practically best regime is the rule, under law, of gentlemen, or the mixed regime.

Strauss, 142-43.

St. Augustine and the City of God

In the classic tradition, natural right was therefore inextricably and intimately linked with political right. The notion of natural right distinct from and in opposition to the polis was simply unthought. Natural right was found within the City of Man.

For the classic Greek and the Roman imitator, there was no City of God. The classic thinking of natural right was significantly modified by the intrusion, as it were, of the biblical faith. That occurred in the encounter between the City of God and the City of Man, when the Law of Moses and the Law of Christ confronted the classic notions of natural right as had been discovered and developed by Socrates, Plato, Aristotle, and Cicero.

Leo Strauss and Natural Right: The Socratic Dethronement of Hedonism

SOCRATES MAY BE REGARDED THE FOUNDER of political philosophy and therefore the "originator of the whole tradition of natural right teachings." Strauss, 120. It is the teaching flowing from Socrates and developed and amplified by Plato, Aristotle, the Stoics, the Church Fathers and Christian thinkers, most especially Thomas Aquinas, that may be known as the "classic" natural right doctrine. It ought to be distinguished from the "modern" natural right doctrine that hales from the 17th Century, and apes its classic predecessor.*

It is difficult to apprehend the huge revolution in thought initiated by Socrates since we cannot easily put ourselves in the frame of mind of the pre-Socratics who looked not so much on human things as on natural things. One part of the pre-Socratic doctrine, however, Socrates maintained. That was the distinction between law as convention and nature. That distinction was maintained even while the advocates of classic natural right insisted that positive law and conventional morality ought nevertheless to reflect the order of nature.

Quid est? What is it? That is the thrust of the Socratic inquiry. With respect to any subject, the Socratic thinker asks What is it? What is law? What is justice? What is right? What is it to be man? Socrates sought to find the eidos or idea of a things, the shape, the form, the character of a thing that distinguish its being from the entirety of being as a whole. The Socratic inquiry sought to determine the reason behind things, particularly behind things human as distinguished from things natural and things divine. It sought the ratio rerum humanarum, the reason behind human things, without thereby deprecating or slighting the things of nature or of the gods. With great confidence in "common sense," and without any of the epistemological scruples that haunt the moderns since Descartes, Socrates endeavored to climb or ascend from opinions to truth. There was, he believed, sufficient truth in the opinions of men, even in their tension, contradiction, or variety, from which truth could be distilled by the process of dialectics, which Strauss defines as the "art of conversation or of friendly dispute." Strauss, 124. Opinions were the must from which the wine of truth could be pressed. The wine was in the grape if only one had the desire to educe it out through dialectic.

The opinions are thus seen to be fragments of the truth, soiled fragments of the pure truth. In other words, the opinions prove to be solicited by the self-subsisting truth, and the ascent to the truth proves to be guided by the self-subsistent truth which all men always divine.

Strauss, 124. This Socratic characteristic distinguishes them from the conventionalists. Conventionalism, distrustful of human accretions and traditions, disregarded the "understanding embodied in opinion," and appealed "from opinion to nature." Strauss, 126. Unfortunately, it then lost sight of nature, or at least that part of nature that was typically human.

More fundamentally, Socrates rejected the basic premise of conventionalism. As we have seen, conventionalism was hedonistic or materialistic at heart. Conventionalism identified the good with the pleasant. At the heart of the Socratic revolution was therefore the rejection of hedonism as the basis for determining what was good and what was right:

The basic premise of conventionalism appeared to be the identification of the good with the pleasant. Accordingly, the basic part of the classic natural right teaching is the criticism of hedonism. The thesis of the classics is that the good is essentially different from the pleasant, that the good is more fundamental than the pleasant.

Strauss, 126. For Socrates it was not pleasure but want and the desire to satisfy want that was the center of inquiry of reality. It was especially important to identify such wants, and not to view them as a disordered bundle of wants, but to recognize the natural order in them. "The order of the wants of a being points back to the natural constitution, to the What, of the being concerned; it is that constitution which determines the order, the hierarchy, of the various wants or of the various inclinations of a being." Strauss, 126-27. The proper hierarchization of the wants of man is what supplies the fodder, the substrate of natural right. Once viewed within the context of their natural ordering, what one identifies as preeminent takes one outside the hedonistic camp. Pleasure is not the ruling principle. Reason is the ruling principle. The natural order is what identifies reason, and not pleasure, as the keystone of man's moral nature.

It is the hierarchic order of man's natural constitution which supplies the basis for natural right as the classics understood it. In one way or another everyone distinguishes between the body and soul . . . . [and that] the soul stands higher than the body. . . . That which distinguishes the human soul from the souls of the brutes . . . is speech or reason or understanding. Therefore, the proper work of man consists in living thoughtfully, in understanding, and in thoughtful action. . . . The good life is the perfection of man's nature. It is the life according to nature. One may therefore call the rules circumscribing the general character of the good life "the natural law."

Strauss, 127. Pleasure, which had wrongly occupied the throne on the dais of morality, was dethroned. Human excellence, virtue, was put in the usurper pleasure's place. Human virtue bears the crown of reason. Reason was no longer to be a handmaid of pleasure; rather, reason was to the the handmaid of virtue. If pleasure walked with virtue, then pleasure was welcomed as a boon. But if pleasure and virtue departed, then the path of virtue had to be trod alone. This is what makes a man a man.

But a man did not, could not do this alone. For man was by nature also a social being. Speech or reason is what distinguishes man from the brutes, and speech or reason is what allows communion between one man and another. Man is therefore "social in a more radical sense than any other social animals: humanity itself is sociality." Strauss, 129.

Because man is by nature social, the perfection of his nature includes the social virtue par excellence, justice; justice and right are natural.

Strauss, 129.

Cecrops, First Athenian King

There is yet another Socratic addition to the moral equation. Though free, man knows that there are limits to his freedom. "There is no relation of man to man in which man is absolutely free to act as he pleases or act as it suits him." Strauss, 129. Even when he oversteps these boundaries and thus produces a sort of social trauma, man constructs, as it were, scar tissue that shows the original injury. When man oversteps his freedom, society displays indicia of neuroses. Thus the Greeks had their doctrine of autochthony** to justify their seizure of land, the Hindus their karma to justify their caste system. Even in its breach, the rule is apparent:

Man's freedom is accompanied by a sacred awe, by a kind of divination that not everything is permitted. We may call this aw-inspired fear "man's natural conscience." Restraint is therefore as natural or as primeval as freedom. As long as man has not cultivated his reason properly, he will have all sorts of fantastic notions as to the limits set to his freedom; he will elaborate absurd taboos. But what prompts the savages in their savage doings is not savagery but the divination of right.

Strauss, 130.

This is a lost truth: that restraint is as primeval as freedom. Rule is as fundamental as liberty. Fences are as fundamental as the field. We are bound by our nature, and outside its sacred pale, we queer ourselves and wander, as nomads or brigands do from law, at our peril to our certain misery.

___________________________________,
*The "classic" natural right doctrine should also be distinguished from the "new" or "integral" theories of natural right such as those advanced by Grisez, Finis, and George.
**The Athenians of 5th and 4th century B.C. claimed to be an autochthonous nation, that is, a nation that had never changed their place of habitation, indeed, they were sons of the very soil, and so had never dispossessed any prior peoples of the land which they occupied. Cecrops (Kekrops or Κέκροψ), the mythical first king of Athens, virtually sprung from the ground.

Leo Strauss and Natural Right: Kingdoms and Robber Bands

IF THE NATION-STATE OR OTHER SOCIETY is conventional, then the common good, which is defined by the conventional boundaries of that nation-state or political society, is conventional. So, at least argue the conventionalists. "[T]he city would seem to be a conventional or fictitious [in the sense of a "legal fiction] unity." Strauss, 103. The border between the United States and Canada, or between Mexico and the United States: are not these things fixed by treaty, by convention? The boundaries of nation-state are seen to be unnatural in that they require for their maintenance vigilance, force, violence, compulsion. Things existing by nature do not require this sort of external imposition or governance. Similarly, the difference between illegitimate and legitimate children, the difference between natural born and naturalized citizens . . . these things are matters of convention. Why should a child born on the southern bank of the Rio Grande be a "Mexican," and one born on the northern bank of the Rio Grande be an "American"? Convention. Nothing but convention.

So it would seem that the entirety of law, which necessarily refers to this conventionally-defined civil society, must needs be conventional. Here, then, in a nutshell is the crux of the common good problem:

[T]he city is a multitude of human beings who are united not by nature but solely by convention. They have united or banded together in order to take care of their common interest--over against other human beings who are not by nature distinguished from them . . . Hence what claims to be the common good is, in fact, the interest of a party which claims to be a whole, or a part which forms a unity only by virtue of this claim, this pretense, this convention. If the city is conventional, the common good is conventional, and therewith it is proved that right or justice is conventional. . . . The nerve of the conventionalist argument, then, is this: right is conventional because right belongs essentially to the city and the city is conventional.

Strauss, 104-05, 107-08. The argument seems almost insurmountable, and its advocates, whether philosophical, vulgar, or sophistical have indeed their share of followers. But their persuasiveness is based ultimately upon a notion of good that is materialistic. The good is equated with the "pleasant." There is an underlying hedonism, a calculus of maximizing pleasure and minimizing pain, that underlies the conventionalist view. It is this that overcomes the taboo of ancestral prohibitions, and tags the desires that were frowned by such taboos as natural over and against the prohibitions of the ancestors or the gods and their priests. "Orientation by pleasure becomes the first substitute for the orientation by the ancestral." Strauss, 109.

Epicurus

Strauss looks at two forms of this materialistic hedonism that express the conventionalist theory of right: a philosophical form (advanced by the likes of Epicurus or Lucretius) and a vulgar form (advanced by the Sophists, best exemplified by the characters of Plato's dialogues Thrasymachus, Glaucon, and Adeimantus) which is a "corruption of philosophic conventionalism" traceable to the Sophists. Strauss, 115.

Epicureanism starts with materialistic presuppositions. Casting aside any good that may be defined by convention, the Epicurean finds good in the preconventional urge for pleasure, bodily pleasure. Since we do not feel other's bodily pleasures it follows for the Epicurean that good is highly individualistic. The Epicurean divides the world into the pleasurable, the useful, and the noble. It rejects the last as built upon convention. It emasculates the virtues, at least those other than justice (as justice is a conventional, not natural virtue in the Epicurean view), by making them means, and not ends. And it further corrupts the eunuch virtues by making them slaves to pleasure. For the Epicurean, to act in accordance with justice is to act in accord with convention. It is a pleasure that is conventionally defined. It requires the Other to be of any good:

The other virtues have a salutary effect regardless of whether or not other people know of one's being prudent, temperate, or courageous. But one's justice has a salutory effect only if one is thought to be just.

Strauss, 111.

The same is true looked upon it from the other pole. As a vice, injustice differs from the other vices, because it requires detection by the Other or it is meaningless. One cannot be unjust if the Other does not know:

The other vices are evils independently of whether they are detected or detectable by others or not. But injustice is an evil only with a view to the hardly avoidable danger of detection.

Strauss, 111. Justice it would seem depends only upon whether one is wearing the ring of Gyges. It is this sort of notion that underlies the materialistic ethos of the Roman disciple of Epicurus, Lucretius. Lucretius, distant atavus to Hobbes and Rousseau, saw justice as a construct of convention, a convention arising out of the life of the polis, foisted upon man by the strictures of religion and law. The philosopher, who lives in accordance to nature, must live on the "fringes of civil society," because a life that would be "devoted to civil society and to the service of others," partakes of the artificial, the conventional, and "is not the life according to nature." Strauss, 113.

The vulgar form of materialistic conventionalism is that vaunted by the Sophists. It is not the pursuit of philosophy on the fringes of society that is sought, but raw power: might versus right. The greatest good in the Thrasymachian world, the natural good, "is to have more than the others or to rule the others." Strauss, 114. The city's artificial and conventional laws seek to suppress the natural desire to lord it over others. But even so, the natural urge to dominance seeks to circumvent, or perhaps better, co-opt or exploit in an expedient spirit the conventional laws so as to obtain the power that is at the heart of all natural urges. Here is the germ of the ethos of the Machiavellian:

[L]ife according to nature [when within the political construct] consists in cleverly exploiting the opportunities created by convention or in taking advantage of the good-natured trust which the many put in convention. Such exploitation requires that one not be hampered by sincere respect for city and right.

Strauss, 114. Therefore, the "summit of happiness is the life of the tyrant, of the man who has successfully committed the greatest crime by subordinating the city as a whole to his private good and who can afford to drop the appearance of justice and legality." Strauss, 115.

There is an apparent problem with this view. If the basis of law is the common good, and the common good is defined by convention alone, then what is to distinguish the city-state from a gang of robbers? What essential difference is there between the rules by which a gang is governed and the rules by which a political society is governed? There must, it would seem, be something to distinguish these two forms of human gathering.

Strauss has here invoked that distinction between the "band of robbers" and kingdoms of St. Augustine's De Civitate Dei, one which insists that there is a difference between a gang of robbers and a kingdom, and that distinction is justice, a non-conventional concept:

Justice being taken away, then, what are kingdoms but great robberies? For what are robberies themselves, but little kingdoms?

Remota itaque iustitia quid sunt regna nisi magna latrocinia? quia et latrocinia quid sunt nisi parva regna?

St. Augustine, De civ. Dei, IV.4 (English, trans. Dods).

How, then, are we to escape the argument of the conventionalist, be they philosophical or be they vulgar?

Socrates

The way out was first intimated by the sharp brain of the pug-nosed Socrates.

Leo Strauss and Natural Right: The Seesaw of Justice and Law

JUSTICE AND LAW SEEM TO BE both easy and tense bedfellows. It is just to obey the law, to apply it equally, to govern in accord with the rule of law. This is generally conceded regardless of the law in question. Yet no one reasonably equates law with justice. We talk of unjust laws and just laws. It is just this sort of seesaw or teeter-totter between justice and law that Strauss sees evidentiary of a distinction between convention and nature. When law and justice teeter or "see" as one, doesn't that imply "that there is a measure of universal agreement in regard to justice" and "reflect[] natural right dimly"? When law and justice totter or "saw" as distinct, does that not also "point to the workings of nature"? Strauss, 101. In both corroboration and contradiction, the easy and uneasy relationship between justice and law are suggestive of natural right, natural justice, a natural law.

The Seesaw of Justice and Law

The reason for this tension between law and justice is that human law shows itself to be something self-contradictory:

One the one hand, [human] law claims to be something essentially good or noble: it is the law that saves the cities and everything else. On the other hand, the law presents itself as the common opinion or decision of the city, i.e., of the multitude of citizens. As such, it is by no means essentially good or noble. It may very well be the work of folly or baseness.

Strauss, 101. It is easy enough to see the negative side of law: its folly and baseness. We can all see the truth in the remark often (but wrongly) attributed to Otto von Bismark that laws are like sausages--it is best not to see them being made. The humor in Mortimer Zuckerman's quip that law is the opposite of sex in that even when it's good, it's lousy is easily grasped precisely because we all have experienced the seedy side of law. The harder question is whether the law's claim to noble pedigree is something that can be justified: is it entirely unfounded--are we really dealing with just sausage or the opposite of sex--or is there something real, something true in the claim that law is a noble enterprise?

Heraclitus sees the law as important as the city walls, and so it is in that Heraclitean spirit that the "law claims that it saves the cities and everything else." Strauss, 101. Here is its warrant to nobility: "It claims to secure the common good," and "the common good is exactly what we mean by 'the just.'" Strauss, 101-02. If the law's goodness is thus linked with the common good, then it cannot be merely conventional. It is easy to envision laws that are not conducive to the common good a city. What if a law was passed mandating all married couples to have but one child? What about the laws against Jews passed by the Nazi? What about the laws that institutionalized human chattel slavery? Here one stumbles upon a great truth:

[T]he conventions of a city cannot make good for the city what is, in fact, fatal for it and vice versa. The nature of things and not convention then determines in each case what is just. This implies that what is just may very well differ from city to city and from period to period: the variety of just things is not only compatible with, but a consequence of, the principle of justice, namely that the just is identical with the common good. Knowledge of what is the just here and now, which is knowledge of what is by nature, or intrinsically, good for this city now, cannot be scientific knowledge. Still less can it be the knowledge of the type of sense perception. To establish what is just in each case is the function of the political art or skill.

Strauss, 102 (emphasis added). So it would seem, then, that the law's effort to promote the common good is the natural justice which the law seeks to implement, and is what informs the law, fills the law with the nobility it claims. So the advocates of natural right appear to have clinched the definitive argument against the conventionalist.

Have they? Conventionalism does not die that easily. The advocate of the theory that law is nothing but convention, and that there is no such thing as natural right and justice persists in his contrarian attitude. Conventionalism argues further that there is no such thing, in truth, as the common good. And even if there were such a thing as the "common good," it would be nothing but the product of convention. Since the "common good," if it exists, relates to an artificial or conventional body (the city is established by convention), then it follows that the "common good" is, at heart, conventional, and all law is similarly conventional.

Is the notion of "common good" just a guise for those who are in power to justify the binding nature of the law that they have passed for the ruling power's interests? Is law necessarily partisan? If law can really be nonpartisan, that is, for the common good, then is not the common good defined by the political society in question? And aren't the bounds of that political society, whether they are defined by geographic boundaries, by language or custom, or the laws that define who is a citizen and who is a foreigner, conventional? Doesn't this mean, at bottom, that the common good of the citizens of a city is defined arbitrarily, by convention? Is there any way to escape this conventionalism?

These are issues explored by Strauss as he address the sophisticated counterarguments of the conventionalists to the proponents of natural right, and expose their hidden flaws.

Leo Strauss and Natural Right: Skeptical of Skeptics

THE DISTINCTION BETWEEN NATURE and convention was an important philosophical discovery. It allowed scrutiny of the institutions or actions of man and claimed an extra-human standard by which to judge such institutions or actions. It is axiomatic that one ought not to be a judge (or legislator) of his own cause--his bias makes him a bad judge and his self-interest makes him a compromised legislator. In a similar manner, perhaps, man would be biased in his own judgments did he not have "inside" him the judgment of a greater judge "outside" of him, and a standard or law "outside" of him that was at the same time "inside" of him. For the philosopher, this standard, this judge was nature.

[N]o one can say that all distinctions between good and bad which me make or all preferences are merely conventional. We must therefore distinguish between those human desires and inclinations which are natural and those which originate in conventions. Furthermore, we must distinguish between those human desires and inclinations which are in accordance with human nature and therefore good for man, and those which are destructive of his nature or his humanity and therefore bad. We are thus led to the notion of a life, a human life, that is good because it is in accordance with nature.

Strauss, 94-95. "This notion," Strauss tells us, "was accepted by 'almost all' classical philosophers," though it "was rejected, above all, by the Skeptics." Strauss, 95 n. 19.

A huge point of contention between those who accepted the notion that life ought to be lived in accordance with nature, and that convention ought to be judged by the standard of nature, was the issue of whether justice was a matter of convention or a matter of nature. Was the just good by nature, or was justice merely a matter of human convention? In an effort to determine the answer to that question, philosophers were led to reflect upon the origins of civil society and, even further back, to the origins of man himself, and man's original condition. What was man's original state ante civilis societatis institutionem, before the institution of civil society? Perfect or imperfect? Savage or gentle? If man's original condition was flawed, was man culpable of such flaws, or was he blameless for such flaws?

Those intent on magnifying the power of the modern state and rejecting the role of nature in determining right and wrong, good and bad, would reject such inquiries into man's origins before the advent of the state. They refuse to talk of Adam and Eve. They want to hold the conversation to Caesar and Subject. For them, the State is a fait accompli, an overwhelming reality, in fact the only lasting reality. And so Hegel, drunk with the libations of the offerings to the divine (read idolatrous) State he worshiped, insisted that historical origins of the State were not important; what was important was the idea of the state. Strauss, 96 (citing Hegel's Philosophy of Right § 258). Civil society had supplanted man's nature, if man's nature even existed.

But the classical philosophers thought otherwise:

From the point of view of the ancients, however, the question of the origins is of decisive importance because the correct answer to it clarifies the status, the dignity, of civil society and of right. One inquires into the origins or the genesis of civil society, or of right or wrong, in order to find out whether civil society and right or wrong are based on nature or merely on convention.

Strauss, 96.

Those that rejected the notion that justice was based upon nature--the Skeptics--then as now argue that there cannot be such a thing as natural right or natural justice because different societies have differing views on what is right and what is just. There would not be this cacophony of rights and justice if there were such a thing as natural right and justice. Rather, we would hear a euphony, a single song, of right and justice. Ergo, the argument goes, there is no such thing as natural right and justice.

Strauss vehemently rejects the validity of such an argument against the position of natural right and natural justice. It includes an unstated assumption. The unstated assumption is that if there is such a thing as natural right and natural justice, then man would be compelled to know it, to regard it, and to do nothing else but follow it. In other words, it confuses the immutability or unchanging nature of natural right and natural justice, with determinism. But proponents of natural right and justice have never insisted that unchanging principles of natural right and justice, if they exist, are compulsory upon men and that man has no freedom to reject them. The opponents of natural right and justice completely disregard the possibility that man, both singly and aggregately, because of his imperfection in intellect or will, or because of his conventions, can, and frequently does, make himself deaf and blind to natural right and justice. The argument is analogous to one who would argue that there is no such thing as a universe because men have had different renditions or notions of what the universe is. The latter argument, is, palpably nonsense. The fact that men have had varied notions of the universe does not establish that the universe does not exist. Equally, the fact that men have had varied notions of justice and right does not establish that natural right and natural justice do not exist. There is absolutely no inconsistency between the existence of natural right and natural justice and the fact that man has had a variety of opinions on right and justice.

The variety of notions of justice [among men] can be understood as the variety of errors, which variety does not contradict, but presupposes the existence of the one truth regarding justice. . . . The evidence adduced by conventionalism [the variety of notions of right and justice among men and societies] is perfectly compatible with the possibility that natural right exists and, as it were, solicits the indefinite variety of notions of justice or the indefinite variety of laws, or is at the bottom of all laws.

Strauss, 98, 101. If there is such a thing as natural right or natural justice, the Skeptics insist, then shouldn't it be knowable? If it is not knowable by man, then it is as good as non-existent. If it is is knowable, then how can a proponent of natural right and justice explain the fact that these immutable rights and justice seems to be unknown in so many instances?

This argument against natural right presupposes that all knowledge which men need in order to live well is natural in the sense in which the perception of sensible qualities and other kinds of effortless perception are natural. It loses its force, therefore, once one assumes that knowledge of natural right must be acquired by human effort or that knowledge of natural right has the character of science.

Strauss, 99. The fact that men, say some current-day aborigine, or say many societies in the past, are or were ignorant of the principles of modern science does not disprove those principles. Likewise, the fact that men have not known, or even yet do not know, the principles of natural right and justice does not disprove the existence of those principles. It merely proves their lack of knowledge of them.

Justice in the Brain

Strauss suggests that one of the best proofs of the existence of natural right or justice may be found in the universal attitude toward law.

Everywhere it is said that it is just to do what the law commands or that the just is identical with the legal, i.e., what human beings establish as legal or agree to regard as legal. Yet does this not imply that there is a measure of universal agreement in regard to justice? It is true that, on reflection, people deny that the just is simply identical with the legal, for the speak of "unjust" laws. But does not the unreflective universal agreement point to the workings of nature? And does not the untenable character of the universal belief in the identity of the just with the legal indicate that the legal, while not being identical with the just, reflects natural right more or less dimly?

Strauss, 101. In other words, Strauss finds the ultimate source of natural right and natural justice in human law and the interplay of that "law" with "right" and with "justice." Human law, and human understanding of human law, is the springboard from which the philosopher is able to gain access to the notions of something altogether outside of human law but which is presupposed by it: natural right and natural justice. Therefore, Strauss launches into an analysis of human law, an analysis which we will address in subsequent postings.

Leo Strauss and Natural Right: Hidden Nature, Hidden God

PHILOSOPHY DISCOVERS BOTH NATURE AND ITS MAKER, the contingent and the necessary, permanent, eternal First Cause--God. Nothing comes from nothing. De nihilo nihil. Nature--the first things or the right way--comes from the necessary, permanent, eternal. Philosophy thus leads us from phenomena to nature and unto God.

Nature would not have to be discovered were it obvious, were it not hidden. God is Deus absconditus. Nature is likewise recondite, hidden: natura abscondita. In part, nature is hidden by convention, by human custom, by human law--nomos.

Man cannot live without having thoughts about the first things, and, it was presumed, he cannot live well without being united with his fellows by identical thoughts about the first things, i.e., without being subject to authoritative decisions concerning the first things: it is the law [nomos] that claims to make manifest the first things or "what is." the law, in its turn, appeared to be a rule that derives its binding force from the agreement or the convention of the members of the group.

Strauss, 91.

Here, perhaps, is the germ of animosity between politics, especially arbitrary power, and philosophy and the natural law. Both philosophy in general, and the natural law in particular, challenge the artifice, the convention that man seeks to impose, perhaps first as an expression of the first things and the right way, but later, often in a sort of creeping challenge or perhaps a slow ossification or sclerosis, in substitution of, or in contradiction to, nature. So philosophy in general and the natural law in the area of morals in particular, seek to go beyond or behind convention to the mother of all customs, the custom of all customs, the tradition of all traditions:

Nature is the ancestor of all ancestors or the mother of all mothers. Nature is older than any tradition; hence it is more venerable than any tradition. . . . By uprooting the authority of the ancestral [and a fortiori the conventional], philosophy recognizes that nature is the authority.

Strauss, 92. It is an authority, but Strauss clarifies, perhaps better referred to as the standard, as it is reason or understanding that discovers nature through abstraction of reason from sense perception, and so nature is never known except through reason. It is the latter that may be said to be the authority that both discovers and then applies the standard.

As Strauss observes the discovery of nature, which means also the distinction between nature and convention, is a necessary but not sufficient condition for the discovery of natural right. The reason why the discovery of nature is not enough to inform us of natural right is that it may be that all right is conventional, and there is no such thing as natural right. Nature may be bereft of right. It may be beyond good and evil, a sort of premoral given, like the nominalists or voluntarists would liken God. It is still possible--even after having discovered nature--that God, for example, simply does not care about justice. He is far above us, an Olympian. He is far away from us, a Deistic self-regarding not communicating, not a Providential God.

God [it may be] is not concerned with justice in any sense that is relevant to human life as such: God does not reward justice and punish injustice. Justice has no superhuman support. The justice is good and injustice is bad is due exclusively to human agencies and ultimately to human decisions.

Strauss, 94. Indeed, it is precisely the rejection of "particular providence" that is father of such a thought. That thought comes into the mind of man when he stumbles upon the scandal of particular providence, a scandalous providence that states that God regards the number of hairs on our head, or that he concerns itself with the fall of the sparrow. (Cf. Luke 12:6-7) If so, we doubt, where is the proof of it? The vast cosmos seems indifferent to our plight. It appears, for example, not to have answered the prayer of the Jew caught within killing camps, the Vernichtungslagers and the Todeslagers of the Nazi. It appears sublimely unconcerned in the main. It is possible to get stuck in the apparent disconnect between Providence posited and Providence realized. So, for example, Simone Weil could not jump the gap, and separated the world of nature from the world of God. But Strauss thinks that there is an Aristotelian--etiamsi daremus non esse Deum--way around the problem, that "the example of Aristotle alone would suffice to show that it is possible to admit natural right without believing in particular providence or in divine justice proper." Strauss, 94. So technically, the light of the Gospel, or even belief in a providential God, is not required to believe in natural law or natural right. This, at least, is Strauss's view. He would expand the tent of the natural law and natural right to bring in those who harbor doubt, perhaps even disbelieve, in the God of revelation, and even in the God of natural theology.* For Strauss, natural right and natural law exist, etiamsi daremus non esse Deum.

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*Strauss cites Aristotle, Nicomachean Ethics, 1178b7-22, Socinus, Praelectiones theologicae, cap. 2, Grotius, De jure belli ac pacis, Prolegomena § 11, Leibniz, Nouveaux essais, Book I, chap. ii, § 2, and III, chap. 16 and II chap. 6 of Rousseau's Social Contract. I am not sure of it. It seems to me that there is a greater connection between the providence of God and the rule of the cosmos (including man)--the eternal law--and natural law or right, which is nothing less than man's participation in the eternal law. While the difficulty of believing in particular providence may be conceded, its existence need not. We must ever realize that our sights are limited. We have no ability to see sub specie aeternitatis, under the light of eternity. And we certainly have no ability to encompass the entirety of the cosmos so as to become privy to the particular plan of God for each of his creatures in particular and the cosmos as a whole. There has to be room for faith, even if intellectual and not supernatural, in a philosophy of natural law or natural right. We have addressed this issue before: see Natural Law: Ecstasis and Telos and Potpourri of Natural Law, though a lot more could be said about it. Moreover, we have to remember that particular Providence may be hidden because of our sin, because of others' sins, because of convention, or a combination of all three. In the maw of Auschwitz, where God's providence was hid, as it were, with the black drapes of institutionalized and personal sin and wicked convention--like our statues draped in purple cloth during Lent--St. Maximilian Kolbe was able to look past all these veils and never disbelieved God's particular providence even in extremis. Indeed, he was a vehicle of particular providence for Franciszek Gajowniczek, the Jewish father and husband whose place he volunteered to take in a starvation cell.

Leo Strauss and Natural Right: From We to I, From Ours to What Is

AUTHORITY IS QUESTIONED BY PHILOSOPHY, and by its adjuncts, natural law and natural right. Confronted with the legion of authoritative "divine codes," divine laws and commandments, even in matters of the "way" and of "first things," how is one to chose? They cannot all be right. And even if they are all conventional, at least one view is not. "The view that the gods were born of the earth cannot be reconciled with the view that the earth was made by the gods." Strauss, 86. Even less can the existence of gods, whether earth-bearing or earth-born, be reconciled with the I AM WHO AM, the Ehyeh asher ehyeh, אהיה אשר אהיה‎, who revealed himself to Moses. Here, then, is the fundamental question whether one be Jew or Greek, Muslim or Hindu, Buddhist or Shinto, Atheist or Agnostic:

[T]he question arises as to which code is the right code and which account of the first things is the true account. The right way is now no longer guaranteed by authority; it becomes a question or the object of a quest. . . . It will prove to be the quest for what is good by nature as distinguished from what is good merely be convention.

Strauss, 86.

So how is this quest for the first things and the right way to be engaged? If authority cannot be relied upon because of the clamor and inconsistency of the number of authorities "The philosophic quest for the first things presupposes . . . that the first things are always and that things which are always or imperishable are more truly being than the things which are not always."
--Leo Straussand no single authority to distinguish among the true and the false, then in our quest for the first things and the right way where are we to turn? If, because the number of authorities making claims, we are not to able simply to rely upon authority, are we to rely on "hearsay," or are we to rely on what we see "with our own eyes." That is, do we rely on indirect evidence or on direct evidence of what is the right way and the first things? Direct evidence is considered superior to indirect evidence, and so the philosopher for the first time was able to oppose the "I" to the "We." The search for first things and the right way became personal.

Judgment on, or assent to, the divine or venerable character of any code or account is suspended until the facts upon which the claims are based have been made manifest or demonstrated. They must be made manifest--manifest to all, in broad daylight. Thus man becomes alive to the crucial difference between what his group considers unquestionable and what he himself observes; it is thus that the I is enabled to oppose itself to the We without any sense of guilt.

Strauss, 87. But this "I" which engages in pursuit of the right way and the first things is not an autonomous I. "But it is not the I as I that acquires that right" to oppose itself against the We. That would be merely to shift the authority from the group to the individual. This is no forward progress at all; indeed, it is arguably a negative progress."The distinction between nature and convention, between physis and nomos, is therefore coeval with the discovery of nature and hence with philosophy."
--Leo Strauss It would be to splinter authority and exacerbate the problem of finding the right way and first things. Instead of social or group answers in the dozens, we have individual answers in the millions. The vision that must govern the "I" is not a private, idiosyncratic world. The I must look for "the one true and common world perceived in waking," and reject "the man untrue and private worlds of dreams and visions." Strauss, at 87. The "I" that separates itself from the "We" is man as man. The things that are looked at as the source of standard are things as things, not things made by man. We are relegated to the only possible source for sifting and parsing through the multiple answers posited by authority and private dreams to find what is true: nature, the natural reality of things, things that are not made by man, but by the Creator:

Thus it appears that neither the We of any particular group nor a unique I, but man as man, is the measure of truth and untruth, of the being or nonbeing of all things.

Strauss, 87. So, ultimately, objective reason, both speculative and practical, must be retained to help us select among rival versions of ultimate reality. The natural law is what helps us determine which rival versions of reality are false (a religion whose moral teachings violate the natural law is to be rejected). Natural philosophy likewise helps us determine which rival versions of reality are false (a religion that teaches contradictory things, or whose doctrines are against reason is to be rejected). The nature of things, then, was the judge of the false oracle from the true. But this philosophical quest had also to distinguish between things of man and things that are of nature prior to man, things that are permanent and things that are not:

Nature was discovered when man embarked on the quest for the first things in the light of the fundamental distinctions between hearsay [indirect evidence] and seeing with one's own eyes [direct evidence], on the one hand, and between things made by man and things not made by man, on the other. . . . In brief, then, it can be said that the discovery of nature is identical with the actualization of a human possibility which, at least according to its own interpretation, is trans-historical, trans-social, trans-moral, and trans-religious.
. . . .
The philosophic quest for the first things presupposes not merely that there are first things but that the first things are always and that things which are always or are imperishable are more truly beings than the things which are not always . These presuppositions follow from the fundamental premise that no being emerges without a cause or that it is impossible that "at first Chaos came to be," i.e., that the first things jumped into being out of nothing and through nothing. In other words, the manifest changes would be impossible if there did not exist something permanent or eternal, or the manifest contingent beings require the existence of something necessary and therefore eternal.
. . . .
Once nature is discovered, it becomes impossible to understand equally as customs or ways the characteristic or normal behavior of natural groups and of the different tribes; the "customs" of natural beings are recognized as their natures, and the "customs" of the different human tribes are recognized as their conventions. The primeval notion of "custom" or "way" is split up into the notions of "nature," on the one hand, and "convention," on the other. The distinction between nature and convention, between physis and nomos, is therefore coeval with the discovery of nature and hence with philosophy.

Strauss, 88-90.