The Implicit Teaching of Utopian Speculations: Rousseau's Contribution to the Natural Law Tradition

• Publication year: 1979
• Citation: Vol. 3 No. 01

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 3, No.1FALL 1979

The Implicit Teaching Of Utopian Speculations: Rousseau's Contribution To The Natural Law Tradition

Thomas E. Carbonneau(fn*)

I. Introduction

Legal philosophers, especially of the positivist variety, traditionally have assumed that the proponents of natural law theory present too facile an answer to the vexed question of whether an unjust law can be said to exist when it is duly sanctioned by legal and political authority. If not disappointed by the answer itself, they have been most unhappy with the explanation that accompanies it and, indeed, are prepared to challenge the very foundations of a theory of law which pays so little heed-either empirically or in terms of pure logic-to the actual operations of existing legal systems. Kant initiated the rebellion against the law-morality equation by distinguishing them as two separate spheres of activity.(fn1) Subsequent philosophers, thanks to the analogy between legal rules and the rules of a game, inaugurated the movement towards the purely systemic analysis of law.(fn2)

The critical reaction to natural law, however, misconstrues its essential purpose. Natural law theory is not meant to provide insight into scientific or quasi-scientific phenomena, but rather it is aimed at and actually is a product of man's humanity and speaks most eloquently of it. As Jacques Maritain has defined it, it isan order or a disposition which human reason can discover and according to which the human will must act in order to attune itself to the necessary ends of the human being.(fn3) To its proponents, natural law is law and imposes obligations on man "from the simple fact that man is man."(fn4) It is not attached to the particular features of any real legal system; indeed, the primary and, possibly, the sole bond between natural law and positive, manmade laws consists in a relationship of general guidance. As Professor d'Entreves has stated:[W]e should turn to natural law for an "illumination of problems" rather than for a "blueprint of detailed solutions. . . ." [The] natural law can shed light on a number of problems. The nature of law, the relationship between legal and moral obligation, the necessity of referring positive law to some ideal standard: on each of these problems . . . [the] natural law has a word to say, that, indeed, natural law is perhaps nothing other than a name for the right answer.(fn5)

In a word, rather than representing a finely wrought logical appraisal of the elements of law, natural law theory symbolizes an attitude about law and, more importantly, about man himself-a conviction about the place of law in human society and a judgment about its content in terms of man's intrinsic nature. It perhaps can be best described as a quest to instill meaningfulness in existence, as an enterprise which minimizes human limitations and which is anchored in a deeply rooted, intuitively perceived belief about a "common ground where we can begin to draw all men, everywhere, together in a unity that reflects what is common to human beings as human beings."(fn6)

It is the purpose of this article to examine the evolution of natural law theory and Jean-Jacques Rousseau's contribution to it. The thesis that emerges from that examination asserts that the tension between law in its natural and positive forms is endemic to the human condition. If any common ground is to be found between theories of positive and natural law, it lies in the realization that natural law doctrine is not gratuitous and subjective optimism nor idealism pure and simple. The fact that natural law doctrine can serve but a role of general guidance, that it is alien to the concrete, positive manifestations of law, constitutes an implicit statement of man's metaphysical dilemma-his inability to fuse the ideal and the real. Rousseau's contribution to natural law speculation lies precisely at this juncture. Unlike his mentors who provided him with the classical natural rights framework in which to build his political theory, Rousseau, as a literary writer and artist, had a particularly acute sense of the dichotomy between the real and the ideal and of the corrosive effects that the intransigent character of reality could have upon the intrinsic aspirations of the individual. His shifting of the classical political discourse to a literary modality reveals in a unique way the ultimate significance of natural law as a theory about law and man.

II. The Quest Defined: The Triumph of a Meaningful Universal Pattern over Skeptical Inquiry

Although the contours of natural law theory have been modified to meet the intellectual preoccupations of different historical periods,(fn7) a basic doctrinal core, premised upon an irreducible idealism, has remained constant throughout its evolution.(fn8) Simply stated, this basic content of the theory consists in a set of general teleological assumptions about man and the universe-more specifically, about the interrelation between what is perceived to be an atemporal order and the legal conventions man has established to govern his conduct in society.

Skeptical inquiry always has been a singularly alien methodology to the proponents of natural law theory. For example, the Pascalian conception of law-law as a purely human contrivance divorced from the truth of divine revelation-would have been antithetical to their most fundamental convictions, despite their recognition of the contingency of human affairs. According to Pascal,(fn9) human life without faith amounted to a participation in an existential void; without divine grace, man's reason was corrupt, unable to recognize, let alone identify with, transcending truths.(fn10) His activity was random and inconsistent; in ultimate terms, it was absolutely meaningless.(fn11) Despite the concession that natural laws "undoubtedly" exist,(fn12) Pascal declared that man was incapable of distinguishing between the natural laws and his own artificial rules.(fn13) The frailty of the human condition was such that human laws bore no affinity to either Truth or Justice and varied with the whims of rulers, geographical location, and history.(fn14) Customs and mores provided the only source of stability for legal institutions and were authoritative simply because they were accepted.(fn15) Pascal reached the disparaging conclusion that human justice was no more than a fashionable empty social appearance-a process by which force subtly manipulated the minds of the many into believing in the illusion that laws were just and must be obeyed.(fn16)

In general, rather than confront the Pascalian dilemma on its own terms, natural law theorists disregarded it and espoused a more optimistic a priori vision of man's place in the universe, a belief in a benevolent and meaningful universe containing valid guiding principles to which men should conform their temporal conduct and their institutions.(fn17) Whether pagans, Christian theologians, or secular rationalists, all natural law thinkers shared the goal of highlighting the immutable backdrop which they believed should underpin human activity. Rather than focus upon the scientific or logical operation of the material components of empirical reality, they built their perception of law around their innate sense of the meaningfulness of man's existence which was supported not only by conceptual constructs, but also by their deep-seated beliefs and convictions.

All of them laid claim to the existence of some sort of transcending and meaningful universal order which embodied fixed and absolute principles, including a definition of right conduct and a program for man's full development. They also posited that all men shared an intrinsic nature by which they, with the help of their reason, could identify with and participate in the universal order. The statement of a necessary concordance between the dictates of the transcending morality and the conventional legality is the crux of traditional natural law theory. When laws ceased to conform to the natural order of things, they lost their source of legitimacy and functioned only in terms of the contingent, thereby sacrificing man's sense of eternal identity and his quest to develop to his full potential to the material demands of order and security.

III. The Genesis of a Natural Law Standard

As the history of various legal systems demonstrates, the proper place of natural law precepts in a system of positive laws is at the very top or at its periphery-providing it with the fundamental thrust or enveloping it with the flesh that it needs to sustain its life-in any case, it is not located inside it either explicitly or formally. For example, legal treatises written by natural law scholars set the stage for the first wave of European codification in the nineteenth century.(fn18) Moreover, natural rights theory imbued the provisions of the French Declaration of the Rights of Man, the American Declaration of Independence, and the American Constitution.(fn19) In other words, the natural law heritage was vital to laying the foundations for the Western democratic tradition.

Serving as a mold for nascent ideologies and systems, the natural law tradition makes the case for the "oughtness" of law. Its historical role corroborates the view that it always has endeavored to express man's highest potential. The idealism which it embodies-its uncompromising insistence upon the imperative of moral...