Friday, May 30, 2014

Natural Law "Externalism" v. Law as "Moral Aspiration"

Here is a link to a just revised paper (from 2011): “Natural Law ‘Externalism’ v. Law as Moral Aspiration.” It makes an argument against Thom Brooks characterization of the natural law tradition’s concept of justice as “external” to the law, in contrast with Hegel’s peculiar “internalist” conception of natural law. I’m not so much interested in Brooks’ interpretation of Hegel on this score as his rendering of the concept and conceptions of justice and law as found generally in natural law traditions and formulations. 

“As it turns out, Marx himself, at least in his early years, recognized the relationship between the rule of law and substantive equality. In 1842, Marx criticized the Prussian censorship laws in rule of law terms, claiming that such ‘laws without objective norms are laws of terrorism, such as those created by Robespierre’ and ‘positive sanctions of lawlessness.’ Going on, he criticizes the law as ‘an insult to the honor of the citizen’ and ‘a mockery directed against my existence,’ in virtue of the fact that it is ‘not a law of the state for the citizenry, but a law of a party against another party’ which ‘cancels the equality of citizens before the law.’”

“One law for the lion and for the ox is indeed oppression, if that law requires everyone to eat meat or to grow a mane. And in a world where some people have a lot, and others are destitute, treating people how equals ought to be treated means taking from the former and giving to the latter. As it turns out, this is the correct interpretation not just of the ideal of distributive justice, but of the proposition that all are to be equal under the law. And this is a valuable discovery independent of distributive justice theory.”

“The rule of law is both an unqualified human good and a tool in the fight against social injustice.”—Paul Gowder

These quotes from a recent paper by Paul Gowder, “Equal Law in an Unequal World,” while not about natural law theory proper, suggest if not capture that type of natural law reasoning about the moral ideal of the rule of law and justice found in the natural law tradition and thus help illustrate how notions of justice and morality are not, pace Thom Brooks, extrinsic to the rule of law.  
Please note: The SSRN link I provide to Brooks’ paper in my essay no longer allows its download (only the abstract), apparently because it is now part of a collection of essays in a volume edited by Brooks: Hegel’s Philosophy of Right (Wiley-Blackwell, 2012): 167-179.


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