Natural Law: Voegelin and The End of [Legal] Philosophy

• Author: Patrick H. Martin
• Position: Campanile Professor of Law,
• Pages: 879-896

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Patrick H. Martin, Campanile Professor of Law, Paul M. Hebert Law Center, Louisiana State University.

I Introduction

What is a natural law philosophy? Having edited (with George Christie) a Jurisprudence casebook that contains several examples of natural law writings,¹ I was confident that I knew the answer to this. Indeed, I thought that there was general agreement as to what would be counted as a natural law philosophy. The reaction to a paper on Eric Voegelin I prepared for a session at the 2001 meeting of the American Political Science Association made clear to me that labeling a scholar as part of the natural law tradition is more controversial than I had thought. The message to me seemed to be that friends do not call friends natural law lawyers, validating Ronald Dworkin's observation that "one label is particularly dreaded: no one wants to be called a natural lawyer."² Several who knew him have told me that Voegelin himself rejected the classification for his writing, although he spoke of circumstances in which "natural law has theoretical justification." In revising that paper on Voegelin for publication, I have thought it best to begin with what I mean by a natural law philosophy. If others disagree that Voegelin is a natural law philosopher, they may similarly take up the general concept of a natural law philosophy.

Writers who locate themselves in, or who are sympathetic to, natural law theory treat natural law as correlated with human nature and a manifestation of order in the world, and as consisting of standards, principles or precepts that will attain goods or ends that are essential to or may facilitate human happiness. John M. Finnis has described natural law as "moral standards which . . . can justify and guide political authority, make legal rules rationally binding, and shape concept formation in even descriptive social theory."³ He Page 880 treats the phrase "natural law" as referring to "true and valid standards of right conduct," and notes that this way of speaking about such standards can be traced back to Plato.⁴ In natural law theory's seventeenth and eighteenth century appearance, "morality and the law's basic principles are a matter of 'conformity to rational nature.'"⁵ A more valid understanding, according to Finnis, is to be found in the classic theories of natural law, which understands the correlation between natural law and human nature as running in both directions: human nature can only be adequately understood by understanding human capacities, which in turn can be understood adequately only by understanding the acts that actualize them, which in turn can only be understood adequately by reference to their "objects"-the goods the acting person intends to attain by means of such acts.

The attainment of ends through rational principles of conduct is found also in Randy Barnett's Law Professor's Guide to Natural Law and Natural Rights.⁶ Barnett analogizes natural law to an end or "given" achieved through "if-then" propositions in relation to physical laws, such as the law of gravity: because of the force of gravity, "if we want a building that will enable persons to live or work inside it, then we need to provide a foundation, walls, and roof of a certain strength."⁷ To illustrate further, he says, "[i]f we want persons to be able to pursue happiness while living in society with each other, then they had best adopt and respect a social structure that reflects these principles."⁸ He summarizes the matter by stating:

Natural law refers to the given-if-then method of analysis where the "given" is the nature of human beings and the world in which they live. This method can be applied to a number of distinct problems, the "if." When discussing moral virtues and vices, or the problem of distinguishing good from bad behavior, the imperative for which is supposedly based on human nature, natural-law ethics is the appropriate term (though such principles are sometimes referred to simply as natural law).⁹

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Ronald Dworkin gives what he calls a "crude description" of natural law: "Natural law insists that what the law is depends in some way on what the law should be."¹⁰

In the earlier instances of natural law theory, God tended to be at the forefront of the theory, either acting by His command or through the fact that He was co-extensive with Reason. Human nature derived its character from the fact it was created by God with purpose. Many natural law theorists have felt that logic compels the belief that order does not establish itself, that it must be established. Aristotle, who is often considered in the natural law tradition, admits the logical necessity of a First Mover.¹¹ In more recent versions, God's presence is more likely to be less visible or unseen though perhaps felt, and human nature closer to the front. Jean Dabin, for example, maintained it is possible to regard the natural order as flowing from human nature: "As human nature is identical in all men and does not vary, its precepts have universal and immutable validity, notwithstanding the diversity of individual conditions, historical and geographical environments, civilizations and cultures."¹²

Critics of natural law theory (or theories) tend to characterize natural law in ways that make natural law distinctly unattractive and inconsistent. A persistent approach treats natural theory as a sort of statute book or tablet. The entry by Richard Wollheim for "Natural Law" in the Encyclopedia of Philosophy begins by asserting that it seems an "intrinsic part" of natural law "doctrine" that,

the criterion by reference to which positive laws are to be judged should itself possess some of the characteristics of a legal code. In particular, it should exhibit some complexity or be capable of formulation as a comparatively extended set of rules or precepts, against which existing codes can then be matched item by item.¹³

Such a natural code, naturally, would be static-written in stone, as it were, and incapable of adapting to new human conditions. Can one find a single well-regarded writer in a natural law tradition who actually posits such a set of rules (as opposed to standards aimed at Page 882 the attainment of human ends or goods)?¹⁴ A concept of "natural law with variable content" seems hopelessly incoherent to a critic who sees law simply as sets of rules-commands.

The stone-tablet model has persisted as a supposed theory of natural law, albeit lacking a principal exponent, and it is this model from which Voegelin sought to distance himself. In the outline and supplementary notes for the Jurisprudence course he taught at LSU, Voegelin made clear that one theory of natural law system was defensible, but the more rigid versions were not. He wrote:

Natural law has theoretical justification insofar as it translates the insights gained by a theory of the nature of man into the language of obligatory purposes . . . Natural law becomes dubious if it erects theoretically justified, paradigmatic rules of order into postulates of revolutionary reform . . . Natural law is worthless if it contains no more than partisan preferences without a basis in a critical theory of the nature of man.¹⁵Separating natural law theory from its caricatures, we should then regard Voegelin's theory of law as falling in the natural law tradition if it posits the existence of a natural order (perhaps established by God), that can be known to men and that can be a measure for assessing human or positive law. Voegelin himself would have accepted this criterion while resisting the label.

II Voegelin's Manuscript

Eric Voegelin taught a course in Jurisprudence at the LSU Law Center for several years while he was a member of the Political Page 883 Science Faculty of the University. He completed a manuscript on The Nature of the Law in 1957. Edited by Robert Pascal, James Lee Babin, and John William Corrington, the manuscript was published, along with several other Voegelin writings, in 1991 as Volume 27 of The Collected Works of Eric Voegelin.¹⁶ Voegelin deserves close study by any student of the subject of natural law and by any person interested in Voegelin's thought. The book is little but weighty, and its value lies in its critique of a century or more of legal positivism as well as its explicit premises that point the way for a more fully realized development of natural law theory, such as we find in John Finnis's 1980 Natural Law and Natural Rights.¹⁷

With this title I hope to reflect several themes in Voegelin's approach to law and Twentieth Century thought. The word "end" signifies the notion of purpose or goal which also equates to Aristotle's belief in "final cause," telos or finis. Aristotle's four causes are familiar: the material, efficient, formal, and final cause. A failing of the reigning approach in contemporary legal philosophy, positivist, normative jurisprudence was, in Voegelin's opinion, to equate "law" with the process of law making. Using Kelsen's "Pure Theory" as a representative case of normative jurisprudence, Voegelin said: "the lawmaking process acquires the monopoly of the title 'law.'"¹⁸ In the view which he criticizes, the sole criteria for legal analysis is the process for making law: "whatever power establishes itself effectively in a society is the lawmaking power, and whatever rules it makes are the law."¹⁹

The final end, purpose or cause of a thing is its reason for being. Voegelin's Nature of Law is concerned not with mere analysis of law as to form or content but purpose in the life of man. Law's nature is not verbal construction, i.e., command of a sovereign backed by sanction, nor a substantive collection of rules of contract or property. Rather, its nature is associated with the philosophy of man's being.

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