Natural law, Leo Strauss, and the New Right
“…there was the background of the great political foundation of 1776 and 1789, and of the unfolding of this founding act through a political and legal culture primarily represented by the lawyers' guild and the Supreme Court. There was the strong background of Christianity and Classical culture that was so signally fading out, if not missing, in the methodological debates in which I had grown up as a student. ... The immediate effect was that upon my return to Europe certain phenomena that were of the greatest importance in the intellectual and ideological context of Central Europe, for instance the work of Martin Heidegger, whose famous Sein und Zeit I read in 1928 no longer had any effect on me. It just ran off, because I had been immunized against this whole context of philosophizing through my time in America and especially in Wisconsin.”
What used to be called American common sense philosophy “immunized” Voegelin and the US from the intellectual contagion of anti-Western and anti-rational 20th century continental philosophy. Voegelin was astute to connect this protective force with Christianity and classical philosophy. The idea of common sense is related to natural law, which was strong in the Christian West and in classical times. There are a variety of different overlapping interpretations of natural law, and what might seem “natural” to one society might not to another. For that reason, to our postmodern age the idea of natural law, natural rights, and common sense is outmoded, misunderstood and even embarrassing. But I see this as a critical philosophical and legal concept that has been lost and which I hope will someday be restored. There are also various definitions of natural law, which can be confusing, and the topic has come up a time or two in political discussions over the last two or three decades, probably adding to the confusion. For example, natural law has been proposed as a theoretical framework for conservative Supreme Court judicial activism. That’s not what I am talking about here. In this post I will take us back to the natural law philosophy of John Locke, whose ideas were most influential in the founding of America and the modern West, and who had the best framing of natural law in my view.
Natural law presupposes that there is a purpose in man’s existence on earth. Given a purpose or teleology, it makes sense that there exist some ways of life or ways of organizing society that would tend toward this natural purpose and that some ways of life would not be conducive to man achieving his purpose or fulfilling his potential. The best way for the individual to live and for the society to be organized that will tend toward the best outcomes for man as measured against his purpose can be called the natural law.
Natural law is intertwined with rationalism, which is why it was more strongly developed in the classical period and the West. For Locke,
“Reason does not so much establish and pronounce this law of nature as search for it and discover it as a law enacted by a superior power.”
The natural law is something objective, from God, and we seek rationally to understand it and apply it in our lives as individuals, and in society as citizens. Natural law is not something that we innately know in its entirety. Reason and revelation help us understand it, but we must also understand the limitations in our ability to know the natural law. In his Essays on Natural Law he laid out clearly what he meant by reason. For Locke, if our thought is based on true foundational principles, and we reason from these true principles, we will come to a more complete (though still imperfect) understanding of the natural law.
“By reason, however, I do not think is meant here that faculty of the understanding which forms trains of thought and deduces proofs, but certain definite principles of action from which spring all virtues and whatever is necessary for the proper moulding of morals. For that which is correctly derived from these principles is justly said to be in accordance with right reason.”
John Locke believed that Christian revelation brought us closest to the natural law, and philosophy or reason alone never could give us as complete a natural law. In The Reasonableness of Christianity, Locke writes:
“It is too hard a task for unassisted reason to establish morality in all its parts, upon its true foundation, with a clear and convincing light. … We see how unsuccessful in this the attempts of philosophers were before our Saviour’s time. How short their several systems came of the perfection of a true and complete morality, is very visible. And if, since that, the Christian philosophers have much out-done them: yet we may observe, that the first knowledge of the truths they have added, is owing to revelation. … It is plain, in fact, that human reason unassisted failed men in its great and proper business of morality. It never from unquestionable principles, by clear deductions, made out an entire body of the 'law of nature.' And he that shall collect all the moral rules of the philosophers, and compare them with those contained in the New Testament, will find them to come short of the morality delivered by our Saviour, and taught by his apostles; a college made up, for the most part, of ignorant, but inspired fishermen.”
One doesn’t have to be a believer in the supernatural elements of Christian religion to appreciate the social benefits of Christian natural law. As Locke argued, all the guiding principles of Christian natural law are also in accordance with reason. The principles of a Christian natural law are what we can observe to be the principles that are conducive to a healthy society. We can fairly say that the Christian natural law did in fact create the healthiest, most culturally and technologically advanced, and most prosperous society that there ever was, Western civilization.
—Natural law and political philosophy—
Natural law moral philosophy has an important interaction with political philosophy. John Locke’s influential writings combined a philosophy of government centered on Christian natural law and a liberal government with religious freedom and toleration for all who respect God. Perhaps it would be more accurate to describe liberalism itself as an aspect or derivative of Christian natural law, to paraphrase Larry Siedentop, but for for the sake of my narrative I will discuss them as separate ideas. The genius of Locke’s system is the tension and balance between Christian natural law and liberalism. Locke’s Christian natural law was checked by liberal toleration, and his liberalism was checked by Christian natural law. As an example of the latter, Locke wrote in A Letter Concerning Toleration that “those are not at all to be tolerated who deny the being of a God.” In context, this doesn’t mean summary execution of non-believers, but he does imply limits to freedom of expression. (Locke uses a similar expression “have no right to be tolerated” to describe would-be theocrats and clergy who teach intolerance for other faiths.) Of course, the Overton window has moved since Locke’s day but I share this to illustrate that liberalism and tolerance for him did not mean secularism and nihilism. On the other side of the coin, natural law itself must be balanced by liberalism, including rule of law. Natural law would not give the Supreme Court license to re-interpret or strike down laws that are in contradiction to natural law but not in violation of the Constitution. Rather natural law should be a guide for the legislative and rule-making processes themselves.
Locke’s twin ideas of liberalism and Christian natural law became highly influential, especially in the great American foundation of 1776 and 1789. America was not perfect but thrived like no other, creating great prosperity and casting off its moral baggage like slavery, under the guiding influence of liberalism and natural law moral philosophy. But something happened between 1789 and today that eroded and destroyed the Christian natural law basis for American government and society. As I see it, this first began as increasing secularization of the elites and intellectual classes. Then, no longer “immunized” by Christian natural law common sense, and even actively antagonistic to Christianity (often under the name of “dogmatism”), many intellectuals and artists brought Postmodernist influences from Europe into US academia, culture, education, and the law in the 20th century.
Postmodernism is or was a coordinated attack on the Christian and Western concepts of virtue, beauty, truth, and purpose. With no purpose for man and no discernment of objective good in public administration, the postmodern victory spelled the end for natural law in the West and for the “common sense” political tradition in America. As a somewhat silly example, “The Satanic Temple” has organized “After School Satan” clubs in elementary schools of several cities over the last couple of years, and is seeking to expand into more schools. When applications are rejected, The Satanic Temple files lawsuits in expectation that the law as it exists today will force public schools to accept clubs for kids bearing a name that represents pure personified evil. After School Satan exists (we can hope) just to tweak Christians and not to overtly proselyte kids into Satanism, but either way it serves as a strong case-in-point that the natural law basis for public administration is dead.
No, I can’t write a viewpoint-neutral rule that allows a Good News club and not a Satanist club. But that is exactly the point I am making - in the choice between good and evil, natural law and the old common sense tradition sought to promote the good. In the absence of discernment of the good, there can be no natural law. You don’t have to be a believing Christian to recognize that Jesus would make a better role model for kids than the devil, but the law today has no place for common sense. In its place, since the 1960s, viewpoint neutrality has become the primary standard. In the choice between good and evil, our legal framework chooses… neither? … both?
It is important to reiterate that prior to the 20th century viewpoint neutrality was not the standard. A 19th century Satanist club in a public elementary school is laughably unthinkable, for better or for worse. (A 21st century government sponsored satanist club for kids is no less absurd, but here we are.) Jud Campbell gives a detailed history of the rise of viewpoint neutrality in US law and the corresponding demise of natural rights in the Yale Law Review. Prior to the 20th century, First Amendment law “did not prevent the government from imposing socially defined boundaries on expressive freedom.” More recently,
“in a liberal era of secularism, individualism, and social fragmentation, what gradually emerged by the early 1970s was a notion of rights as spheres of personal liberty, free from socially prescribed ideas of morality. The very idea of a “right” thus came to embrace a sense of neutrality with respect to values.”
Thus Postmodernism was written into the very legal codes of the US and Western nations, and natural law was written out. I am not a legal scholar, so it is still a little unclear to me exactly how natural law interacted with written law in the early days of the nation. I’ll have to read more on this. But in any case the switch to viewpoint neutrality in law is clear, and now we quite literally have Satan in our elementary schools. John Locke didn’t know that he was being prophetic when he stated the following in Essays on the Law of Nature:
“without natural law there would be neither virtue nor vice, neither the reward of goodness nor the punishment of evil: there is no fault, no guilt, where there is no law. Everything would have to depend on human will, and, since there would be nothing to demand dutiful action, it seems that man would not be bound to do anything but what utility or pleasure might recommend, or what a blind and lawless impulse might happen perchance to fasten on. The terms 'upright and 'virtuous' would disappear as meaningless or be nothing at all but empty names. Man would not be able to act wrongfully, since there was no law issuing commands or prohibitions, and he would be the completely free and sovereign arbiter of his actions.”
I don’t want to say the viewpoint neutral revolution was wholly bad. Natural law can be problematic. For example, in classical times, the Greeks and Romans had a hierarchical conception of nature that they used to justify slavery. Before Christianity, it was believed that some people were just by nature born to be slaves or born to be rulers. Enslavers in the West and in the American south also tapped into this old classical idea of natural law to justify their slavery. The Christian conception of natural law, on the other hand, uniquely contains a common-humanity egalitarianism that gave rise to the abolition movement and the eventual abolition of slavery. But even Christian natural law can be misused. “Socially-defined boundaries on expressive freedom” can be lead to oppression of minority groups, including for example my own minority faith tradition, the Church of Jesus Christ of Latter-day Saints, which faced intense persecution through government and the law in 19th century America. The combination of liberalism and natural law gains its effectiveness in the balance and tension between the two principles. Because we don't understand the true natural law in its fullness we can often err in its implementation and differ in its interpretation. A natural law society needs liberalism to balance out our human imperfections and allow for differences of opinion. It was only the combination of the two, however imperfectly applied, that could have brought out the best in the West.
Despite the challenges and uncertainties inherent in natural law, this 20th century rejection of Christian natural law from public administration in the US is very frustrating for Christians and Conservatives. It is clear that our country is fundamentally no longer what it used to be (again, for better or for worse) and that government and the law have changed against conservative and Christian interests and against their notions of common sense - but it is hard to piece together exactly what has changed and how or when. Legal decisions and social trends (despite a few gains from the recent conservative Supreme Court) in many cases actively promote immorality and evil or discourage strong families and child-raising.
Conservatives can’t help but see the outcome as a moral and societal decline — a society and government now directionless, purposeless, and valueless. On top of it all, because much of this shift happened through non-democratic top-down legal opinions and interpretations, Conservatives are left with a sense that we have been cheated and deliberately left out of the new system. Conservatives yearn for a return to a common sense Christian natural law framework for law and society - though they might not know to frame it in these terms - but feel powerless to do anything about it within the system.
In this context the eventual conservative backlash is not surprising, only a matter of time. The New Right seems to be in the early stages of gathering now, but fragmented and without any coherent understanding of what it is they are fighting against other than the “elites” of the current system, or what principles they are fighting for other than pure political power. If the New Right uprising misses the point, they risk igniting chaos for no gain. The danger is that the New Right tends to have lost hope in the current system, and focuses on “burn it all down” sorts of solutions, often including some kind of conservatively-enlightened monarchy or dictatorship to enact by force of will some new system that will be better only by virtue of not being the same as what we have now.
Unfortunately, most “post-liberal” conservatives misdiagnose the problem, and therefore threaten to make things worse. What they really want, as I see it, is a return to the old “common sense” Christian natural law political philosophy. Instead, their rhetoric rejects classical liberalism under the mistaken idea that the valuelessness and secularism of our age are due to John Locke and his liberal ideas of freedom and toleration. As I mentioned before, the success of the modern West and especially the US came from the combination of liberalism and Christian natural law, which tend to check and balance the extremes of the other. In the absence of Christian natural law beginning in the 20th century, liberalism has been distorted into something new and grotesque that was never intended by Locke or the Founding Fathers. The answer is not the complete elimination of liberalism by replacing it with authoritarianism, it is to correct the imbalance by restoring natural law to its rightful place where it can check the extremes and distortions of liberalism.
Another source for the now common misconception that Lockean liberalism is synonymous with viewpoint neutral secularism is political philosopher Leo Strauss.
—Leo Strauss—
Leo Strauss advances my narrative in two distinct ways. First, Strauss was a witness on the ground during the 20th century usurpation of Christian natural law and called attention to it as it was happening. 11 years after Voegelin arrived in the US, Leo Strauss gave the 1949 Walgreen Lecture. Strauss noted that just in the last generation the situation had changed from the Christian common sense that Voegelin had soaked up. Continental philosophy and postmodernism had by now taken over secularized academia. The first influences were already felt in the law, and the more complete judicial overhaul of the 1960s was soon to follow. Here is Strauss at the opening of his Walgreen Lecture which became Natural Right and History (apologies for the long excerpt):
“It is proper for more reasons than the most obvious one that I should open this series of Charles R. Walgreen Lectures by quoting a passage from the Declaration of Independence. ... 'We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.' The nation dedicated to this proposition has now become, no doubt partly as a consequence of this dedication, the most powerful and prosperous of the nations of the earth. Does this nation in its maturity still cherish the faith in which it was conceived and raised? Does it still hold those 'truths to be self-evident’? About a generation ago, an American diplomat could still say that ‘the natural and the divine foundation of the rights of man... is self-evident to all Americans.’ At about the same time a German scholar could still describe the difference between German thought and that of Western Europe and the United States by saying that the West still attached decisive importance to natural right, while in Germany the very terms 'natural right' and 'humanity' ‘have now become almost incomprehensible . . . and have lost altogether their original life and color.’ While abandoning the idea of natural right and through abandoning it, he continued, German thought has ‘created the historical sense,’ and thus was led eventually to unqualified relativism. What was a tolerably accurate description of German thought twenty-seven years ago would now appear to be true of Western thought in general. … Whatever might be true of the thought of the American people, certainly American social science has adopted the very attitude toward natural right which, a generation ago, could still be described, with some plausibility, as characteristic of German thought.”
The “historical sense” refers to historicism, the idea that there can be no objective and universal truth or morality, but that all understanding and morality are dependent on the historical conditions in which they were contemplated. This relativism is incompatible with natural law theory, which presupposes an objective truth, morality, and purpose that can be discerned, though imperfectly, and worked toward. It is very interesting to note that Strauss opens his lecture series with a nostalgic appeal to natural right and even faith, contrasted against “German thought” and historicism, given that as one reads further into Natural Right and History it becomes clear that Strauss’s own views and aims are fully secular and in fact largely aligned with “German thought” and historicism.
But before I get further into my second thought on Leo Strauss, let me first introduce Strauss better by indulging in a comparison with Eric Voegelin, who seems to me a mirror-world versions of Leo Strauss. Both were born in Germany around the turn of the century and were educated in Germany, though Voegelin then went to the University of Vienna. Both studied political philosophy. Both read and were influenced by Martin Heidegger, though Strauss also took classes from Heidegger and the influence was more lasting. Both fled the Nazis and came to America (Voegelin in 1938, Strauss in 1937). Both spent the rest of their careers in American universities as philosophers with a heavy emphasis on classics. In fact they both spent their careers trying separately to create a new foundation for philosophy rooted in the classics.
The mirror world flip happened with their exposure to the American Christian natural law way of life. Voegelin was converted to the American way, and cast off his Heideggerian influence. Voegelin emphatically rejected secularism. His version of philosophy combined religious ideas and reason freely (as does John Locke, though in a very different style). Strauss, on the other hand, retained his Heideggerian orientation and sought to convert America to this more continental way of thinking. Strauss was a secularist who believed that revelation and reason are wholly different and immiscible categories of thought.
Leo Strauss was also famously interested in esoteric writing, the idea that one can write a message that will be read in one way that will be acceptable to mainstream outsiders who don’t dig too deeply (the exoteric reading), but with a completely different message for insiders (the esoteric reading) that would likely be considered subversive to the mainstream. I see Strauss’s opening appeal to nostalgia for a Christian natural law as the exoteric message of Natural Right and History, while those who read deeper find Strauss’s aim to be very much the opposite, in fact to replace Christian natural law with a secular and relativistic alternative.
Unlike Voegelin who lost his taste for “German thought,” Leo Strauss was overtly influenced by Heidegger, whose philosophical project was to roll back the West to a time before Christianity and before introspective philosophy, a time supposedly of “Dasein” or authentic pure being, whatever that means. Strauss’s project was similarly to roll back the West and Christianity with the deviation that his telos was a secular version of classical Greek rationalism, rather than a pre-Socratic way of being.
Strauss positioned himself as a proponent of natural law, astutely recognizing “the requirements for wisdom on the one hand, and the requirements of consent or freedom on the other,” but the purpose to which his concept of natural law pointed was antithetical to Lockean or Christian natural law. For Strauss, the “nature” of natural law is based not on searching for divine law and the divine nature and potential of man, but on Heidegger’s principle of authentic natural or primal desires untainted by religion. Religion for Strauss means external control in contradiction to nature. In fact Strauss rejected both the Christian natural law and the classical liberalism of John Locke. For him, the ideal was not freedom and equality of opportunity but a progressive philosopher king with a mandate to ensure social justice or equality of outcome. As Strauss put it in Natural Right and History, “there cannot be justice, i.e., giving to everyone what is by nature good for him, except in a society in which wise men are in absolute control." Strauss’s objectives for government are secular and collectivist, and incompatible with conservatism and Lockean liberalism.
One of the means Strauss used to undermine Christian natural law was “discovering” an esoteric reading of Christian natural law in John Locke’s writings that erased the Christian foundation and made Locke into a secularist and Hobbesian hedonist. This is quite astonishing given that Locke’s writings are filled with Christian references, themes, and foundational theological assumptions. For example, in his Essays on the Law of Nature he gives a straightforward explanation for the Christian teleology of his natural law philosophy:
“Since God shows Himself to us as present everywhere and, as it were, forces Himself upon the eyes of men as much in the fixed course of nature now as by the frequent evidence of miracles in time past, I assume there will be no one to deny the existence of God, provided he recognizes either the necessity for some rational account of life, or that there is a thing that deserves to be called virtue or vice. This then being taken for granted, and it would be wrong to doubt it, namely, that some divine being presides over the world…it seems just therefore to inquire whether man alone has come into the world altogether exempt from any law applicable to himself, without a plan, rule, or any pattern of his life. No one will easily believe this, who has reflected upon Almighty God, or the unvarying consensus of the whole of mankind at every time and in every place, or even upon himself or his conscience.”
Here Locke makes it explicit that man has a divine purpose, which purpose forms the basis of Locke’s natural law theory. He also describes his Christian assumptions as being in accordance with reason, because he believes in the reasonableness of Christianity (the title of another of his works). How does Strauss deal with this obvious contradiction to his secular Locke theory? In a 1958 lecture at the University of Chicago, Strauss focuses on the “provided” clause of the first sentence to suggest that Locke isn’t really assuming a belief in God. He calls out the last clause in the excerpt above to suggest that Locke thinks the natural law can be derived from reason alone and doesn’t depend on theological assumptions, concluding in the end that Locke is in fact pushing a secular and godless natural law. Strauss’s rhetorical trickery flips the whole clear meaning of Locke’s natural law theory on its head. His lectures continue the textual analysis in that style, turning upside down the clear meaning or extrapolating from a small phrase an idea that contradicts the entire thrust of his writing elsewhere.
It is possible that Locke could have open his Essays on the Law of Nature with an appeal to theology as an exoteric message but then switched to an opposite esoteric message as one reads on, much as Strauss himself does in Natural Right and History. But first of all, Essays on the Law of Nature was written almost 30 years before Locke ever published anything, long before he achieved his fame. The essays were only to be found in his personal notebooks until first published in 1954. The idea that he would have composed these unpublished notes with esoteric and exoteric messages at that stage of his life is far-fetched. And more importantly, the switch to a private meaning never happens in Locke. Locke references theology as a constant theme and basic assumption throughout his writings. He never gives the inside scoop that turns it all upside down. Strauss’s esoteric reading relies entirely on supposed subtle clues, as in the example above, but never a clear statement from Locke (unlike Strauss himself, who makes his secularism, Heidegger influence, and relativism clear to the perseverant reader).
Strauss’s secular / “reason alone” / “Hobbesian” reading of Locke has had a high degree of cultural influence even today regardless of how little it was based on and how firmly it has been repudiated by more recent scholarship on Locke. It is now common for conservatives (and progressives) to blame (or congratulate) Locke and Lockean liberalism for the valuelessness and secularism of public life today, when in reality these developments in American political philosophy were a 20th century phenomenon.
—The irony of post-liberal conservatism—
“Post-liberal” conservatives today, like the National Conservative movement which has received some publicity of late, don’t typically want to get rid of our egalitarian ideals, the rule of law, a market economy and political freedom - all markers of classical liberalism. In my view, a better way to characterize what these “post-liberal” conservatives really want is not the end of classical liberalism but a return to a Christian natural law political philosophy, wherein the law and government are dedicated to upholding the good, rather than post-1960s viewpoint neutrality. As Strauss himself mentioned, the Lockean twins of Western natural law and liberalism are the reason that America became “the most powerful and prosperous of the nations of the earth.” If we want to “make America great again” what we need is a return to natural law, not the destruction of classical liberalism. It is a sad irony that conservatives have been misled into believing they need to overthrow John Locke, the founder of modern Christian natural law political philosophy, in order to return to Christian natural law.
It may be that some post-liberal conservatives will believe that the only way to get back to a Christian natural law political philosophy is via an authoritarian philosopher king who can tear down the viewpoint-neutral regime and impose common sense solutions by strength of will. But it should be recognized and made clear that the ideal for which we strive is the return of Christian natural law plus classical liberalism, and not authoritarianism per se. Perhaps some conservatives have given up hope that Christian natural law can be restored under the current system, and judge that the risk inherent to authoritarianism would be worth it. But if that is the case, the new conservatism risks becoming a mirror-world Marxism, imposing illiberalism and chaos in the fervent expectation of a common sense utopia that will never come.
To be honest, I am very aligned with much that the post-liberal National Conservative movement has to say. I read Yoram Hazony’s Conservatism: A Rediscovery, and I think he has the basic diagnosis right - that 20th century continental philosophy (whether you call it Marxism, Postmodernism, Critical Theory, etc.) has infected our American culture and politics, and we now need a return to a conservative, family-focused way of life and way of governing. However, my biggest concerns with the book and the movement is that Hazony and others have bought into Strauss’s deceptive misreading of Locke and liberalism. I would support National Conservatism if the movement proposed a way forward that focused on a return to Christian natural law (which I believe is what the author is really hoping for, though he doesn't use those words) while maintaining the protections and checks on natural law provided by classical liberalism in its original Lockean conception (not the more recent invention of radical viewpoint neutrality). Instead, Conservatism: A Rediscovery vilifies Locke and liberalism, proposing a sort of tribal framework in place of the grand vision of liberalism. This is very frustrating and unnecessary.
I suspect that part of the problem is that the 20th century legal transition from natural law to viewpoint neutrality is not well understood. In fact, the very idea that viewpoint neutrality wasn’t until recently the objective of US legal philosophy was kind of mind-blowing to me as I was reading into this. The understanding of how things have changed opens up new possibilities of what government could be - and what, indeed, US government was originally intended to be. It seems like the idea of Lockean Christian natural law and its influence on US government and law is now a great secret, hidden so that even most educated people are completely unaware of it. Scholars who do come across the concept of Lockean Christian natural law generally describe it in a way that makes it feel quaint, outmoded, and medieval. This needs to be turned around.
The conservative movement is at a crossroads, searching for an identity and a vision for the future. My political dream is for a revived conservative movement based on what I am calling the Lockean twins of Christian natural law and classical liberalism. My hope is that the “post-liberal” conservatives and traditional conservatives, whether religious or secular, might recognize that this return to a grounding common sense is in fact what we are all aiming for. There is no denying it is a long road back, but the first step of the journey is to fix the destination. After that, there is always room for optimism in the Christian natural law way of being, because we know that truth will prevail in the end.
Comments
Post a Comment