In a previous post, I had questioned an assertion by a guest interviewed on NPR, in a discussion on the Egyptian crisis, that Internet access was a "basic human right." Josh Rosenau responded, arguing that all we need do in grounding the ultimate moral foundations of law is to appeal to the United Nations.
When I responded to him, pointing out the intellectual silliness involved in such a claim, and articulating the case for natural law (the idea that there is a metaphysical "law above the law" on the basis of which we can judge all positive, written laws), Rosenau responded again, arguing that a Burkean conservative such as myself who also adheres to natural law was inconsistent, and made the ludicrous claim that Burke, one of the great champions of natural law, actually opposed it.
But first, of course, he had to call me names.
I called in my last post for Rosenau to inject some wit into his vitriol, just to make the reading of his posts a little more bearable. But, alas, my calls went unheeded, and he begins his response with the usual artless invective, charging me with "bigotry" on basically every issue I have addressed, and more, in fact, that I have never even talked about.
I can respect an insult, deftly administered, but these crude attempts at vilification are enough to make you lament the low state of modern discourse. The rhetorical art of vituperation has a noble and storied history, going back to Aristotle's discussion of it in his Rhetoric. But Rosenau clearly is unfamiliar with this.
In fact, let's just consider this an official call for the NCSE to get him some remedial instruction in invective. I'll even help pay for it. The least we should expect of a man is that he be able to competently hurl an insult.
Edmund Burke, he says, was opposed to natural law. In saying this, he simply bulldozes right through several key distinctions that anyone with any knowledge in this area must take for granted:
Of course, the entire objective of Burke's Reflections on the Revolution in France was to argue that a written law can only be critiqued from within the history and structure of the existing laws. It is on this basis that he concludes the French are wrong to cast off their existing laws and customs and start a government rooted in a natural rights.He then quotes this passage in Burke to justify this claim:
... it has been the uniform policy of our constitution to claim and assert our liberties as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity — as an estate specially belonging to the people of this kingdom, without any reference whatever to any other more general or prior right. By this means our constitution preserves a unity in so great a diversity of its parts. [emphasis mine]That isolated quote will certainly sound, to someone unfamiliar with the rest of Burke's writings--or for that matter the rest of Reflections on the Revolution in France from which this is taken--as if Burke rejects natural law. But let's pay attention to the italicized parts as we listen to Rosenau summarizing what he thinks Burke is saying:
Thus, for Burke the external fulcrum is not some metaphysic (which he derides as speculation and abstract theory), but the hard facts of custom and tradition. It hardly bears mentioning that Burke's aversion to rights-based revolution would surely make him (not me, as Cothran would have it) Hosni Mubarak's favorite human rights theorist. [again, emphasis mine]Rosenau jumps from Burke's assertions that liberties can only be claimed and asserted through tradition and custom to the fact that the fulcrum is not metaphysical. Rosenau completely ignores the distinction between how we know what our rights are and how they may be justified.
Peter Stanlis has pointed out, in his book Edmund Burke and the Natural Law, that Burke not only didn't reject natural law, but was "one of the most eloquent and profound defenders of Natural Law morality and politics in Western civilization.":
In every important political problem he encountered, in American, Irish, Indian, and domestic affairs, in his economic principles, and in the great crisis of the French Revolution, Burke consistently appealed to the Natural Law and made it the basis of his political philosophy ... [A]s an exponent of Natural Law or traditional "natural rights" Burke was in the great classical tradition of Aristotle and Cicero and the Scholastic tradition of St. Thomas Aquinas, Bracton, and Hooker.Rosenau seems very confused on this point. Will Herberg has noted how easily this question comes up when reading Burke, and he states the perceived problem nicely:
How can a man be an advocate of expediency and an apostle of principle at one and the same time? How can he, for example, excoriate the French Declaration of the Rights of Man as “abstract” and “metaphysical” in almost the same breath that he denounces the French revolutionaries for their crimes against the “eternal immutable law”?The problem is in the failure to distinguish two very different Natural Law traditions, one of which Burke holds, and the other which he doesn't. What Rosenau does is conflate two, and misunderstand his rejection of one as a rejection of both.
Heinrich Rommen, in his book The Natural Law: A Study in Legal and Social History and Philosophy, explains the difference between the Enlightenment school of Natural Law inaugurated by Hugo Grotius, and extended through the works of Samuel Pufendorf, Thomas Hobbes, and Jean Jacques Roussaeau on the one hand, and the Christian Natural Law tradition of Augustine, the Church fathers, and Aquinas on the other. Rommen calls the first the rationalist view of natural law, and the second the metaphysical view:
One is the idea of a revolutionary and individualistic natural law essentially bound up with the basic doctrine of the state of nature as well as with the arbitrary and artificial, is determined by utility, and is not metaphysically necessary. The other is the idea of a natural law grounded in metaphysics that does not exist in a mythical state of nature before the "laws," but lives and ought to live in them--a natural law which one would fain, though somewhat ineptly, style conservatism. [emphasis mine]Rosenau sees Burke attacking the former, and, unaware of the distinction, interprets him as attacking even the latter, when, in fact, he is speaking out of the latter tradition. Although Burke would also disagree with the Protestant view of Natural Law prominent after Ockham that denied that there was any access to the Natural Law outside of revelation, the Catholic view--that it can be known by reason (through tradition and custom, not by the articulated rationality of the Jacobins) as well as revelation was most certainly not Burke's target.
Rosenau needs to read the passages in Russell Kirk's The Conservative Mind: From Burke to Eliot dealing with this issue. Kirk is one of the great modern exponents of Burke and he makes short work of the idea that Burke is anything but a classical Natural Law thinker:
Burke declared that men do not make laws: they merely ratify or distort the laws of God. He said that men have no rights to what they please: their natural rights are only what may be directly deduced from their human nature. The Whig reformer, the advocate of enlightened expediency, told England that there was indeed an immutable law, and there are indeed inalienable rights, but they are of origins and character profoundly different from that philosophes and levelers take them for.In the book that Rosenau characterizes as having as its "entire objective" to argue against natural law, Burke talks about the "permanent reason" and "the steady maxims of faith, justice, and fixed fundamental policy" which are "perfectly intelligible and perfectly binding upon those who exercise any authority, under any name or under any title, in the state."
He repeatedly refers to "original justice," "eternal justice," "natural equity," the "natural order of things," the "natural course of things," the "principles of natural and legal equity," " justice, the common concern of mankind," the "natural sense of right and wrong," and criticizes the Jacobins for their "usurpations of the prerogatives of nature," and their "contempt of this great fundamental part of natural law."
Burke did not deny the natural law; he championed it. What he attacked is the attempted implementation of the natural law based on the articulated rationality so valued by the French Revolutions who, instead of acknowledging reason in is proper place, instead exalted Reason as a goddess. His problem with Robespierre was the conceit that held that men could behold natural law in the abstract:
But I cannot stand forward and give praise or blame to anything which relates to human actions, and human concerns, on a simple view of the object, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction.Abstract natural rights "may and do exist in total independence" of human government, but the only means by which to know them, and the only form in which they can be installed is custom and tradition. This is what he means when he says that "their abstract perfection is their practical defect."
As Herberg puts it:
It is in man’s historical experience rather than in any abstract metaphysical scheme that we can hope to catch a glimpse of the underlying Natural Law as well as of the modifications it must undergo if it is to become operative in social life.You can't approach Burke with the reductionism of scientific abstraction Rosenau seems to want to apply. This is exactly the kind of thing Burke is writing against. Like all great philosophers who are also poets, Burke should be approached with a sense discretion. There are bulls in a china shops more careful and discreet than Rosenau in his attempted analysis of Burke. Not that we were ever under the delusion that Rosenau was a practitioner of discretion.
To say that Burke was opposed to natural law betrays a serious misunderstanding of everything he was about. Rosenau would be better off returning to the subject of the phallic morphology of Philippine rodents, where he actually knows what he's talking about.