The Uniqueness of Western Law

by Richard Storey

  Nevertheless, Rothbard was trapped in the same sort of modernist thinking which lends itself more to an incremental individualism rather than, say, the personalism of the Middle Ages. In his article, ‘Left and Right: The Prospects for Liberty’, Rothbard more or less equated the ‘old order’ with oriental despotism and implicitly accepted the Constitutional Republicanism of the US as a monumental milestone of liberty — a false assumption all too common among Americans. Rather, it fell to Prof. Hans-Hermann Hoppe to specifically identify and tackle the ‘standard libertarian model of a community’, i.e. ‘neighbors living on adjacent…pieces of land owned in severalty’, as ‘too simplistic.’ He instead presented the superiority of the natural order of kings and the hierarchical, aristocratic old order in his book, Democracy — The God That Failed, and in a brilliant essay, ‘From Aristocracy To Monarchy To Democracy: A Tale of Moral and Economic Folly and Decay’:

  [N]eighborhoods have typically been proprietary or covenantal communities, founded and owned by a single proprietor who would ‘lease’ separate parts of the land under specified conditions to selected individuals. Originally, such covenants were based on kinship relations, with the role of the proprietor performed by the head of a family or clan… In modern times, characterized by massive population growth and a significant loss in the importance of kinship relations, this original libertarian model of a proprietary community has been replaced by new and familiar developments such as shopping malls and gated communities.50

  This was an important step away from the ‘purely contractual’ relationships which comprise the individualism of the modern West and not just modern, liberal democratic states but also modern (contractarian and propertarian) libertarian thought. And it was on this more personalistic foundation that Deist could say,

  it remains true that civil society should be celebrated by libertarians at every turn. To believe otherwise is to ignore what humans actually want and actually do, which is create communities. There is a word for people who believe in nothing: not government, family, God, society, morality, or civilisation. And that word is nihilist, not libertarian.

  I wonder whether, as well as adopting traditionalist views regarding the family, community and the natural rulership of kings and lords, many right-libertarians will likewise accept the important role of the Church in the development of Western civilisation, especially in developing and preserving natural law. Personally, I think it is inevitable.

  Natural Law Libertarianism

  What is libertarianism? Lew Rockwell, among others, has correctly identified it as a set of legal theories: ‘Libertarianism is concerned with the use of violence in society. That is all. It is not anything else.’51 In this cruel world of competition for scarce resources, we can only resolve disputes through violence, agreement or adjudication — the latter two being the prudent avoidance or conscientious use of violence. So we must go on to define what lawful violence is, i.e. what justice is.

  We humans are social creatures who reciprocate and seek out prudent means to balance the achievement of our individual aims with group expectations. Thus, a natural order is established, minimising conflict over scarce resources in the achievement of said aims, within or even between groups. Needless to say, reckless violence is disorderly and disrupts this natural balance, and, indeed, customary systems of law always tend towards natural law so understood. However, many right-libertarians hesitate to refer to natural justice/law/order, regardless of how definitively the debate between Rawls and Nozick was won in favour of Nozick’s natural rights. Yet, leftists of all shades continue to develop ideas regarding ‘social justice’, civil rights — all positively legislated by the state.

  Libertarians fail to stand firm on the immovable rock of natural law, but they might refer to the negative ‘right’ of being left unmolested in one’s person or property. It is, of course, true that this is the only universal and unconditional right we can identify, and one that is shamelessly negated by the torrent of positive legal rights imposed by states. Rothbard gives a humorous example of this:

  If I am sick unto death, and the only thing that will save my life is the touch of Henry Fonda’s cool hand on my fevered brow, then all the same, I have no right to be given the touch of Henry Fonda’s cool hand on my fevered brow. It would be frightfully nice of him to fly in from the West Coast to provide it. It would be less nice, though no doubt well meant, if my friends flew out to the West coast and brought Henry Fonda back with them. But I have no right at all against anybody that he should do this for me.52

  But, simply identifying a ‘right’ isn’t sufficient to challenge the self-legitimising Leviathan of the modern state. ‘ “Right,” according to whom?’ it is asked. So, the fundamental question is whether we understand law as something imposed or found. Is it primarily a matter of legislation or primarily a matter of jurisprudence? Is it a matter of ‘applying’ one or other theory of law/rights or a matter of preventing, solving or managing conflicts as well as one can? Sadly, many libertarians today would rather choose the former and, at most, adopt Rothbard’s self-identification as a ‘natural rightser’. For example, I believe most would declare something ‘right’ because it was signed as a deed, regardless of how a judge might be able to interpret the past and current behaviour of the parties.

  Prof. Frank van Dun rebukes this modern, contractarian view: ‘[A]narchocapitalism, in its Rothbardian form, stands or falls with its supposition that there is a natural order — a natural law — of the human world and that each human person has a place in that order that is delimited by his or her natural rights.’53 Jurisprudence and equity must trump legalism, as they once did, when the Church defended a plurality of jurisdictions across medieval Europe under a voluntarily shared moral and cultural framework. Yet laymen and scholars, libertarian or not, recoil at the mention of natural law. Why?

  The answer, it would seem, is that the dominant, materialist thinking in academe is suspicious of the historical connection that natural law theory has with the Church. Many are keen to reiterate ‘Hume’s law’ — an ‘is’ doesn’t make an ‘ought’ — i.e. just because humans and human societies are a certain way, doesn’t mean humans must behave a certain way according to an objective system of law. But, echoing Prof. van Dun, Prof. Casey, notes that natural law is not synonymous with any ‘divine command theory’ and that the word ‘natural’ should make the normative function of natural law as obvious as it has been historically.54

  So, in answer to the question, ‘What is justice?’ Prof. van Dun explains it is synonymous with the maintenance of the natural order of the human world:

  [T]he literal meaning of ‘justice’ (Latin: iustitia) is ‘what is conducive to ius’. In other words, justice is what aims at the establishment of the condition in which people interact on the basis of mutual consent. Justice is respect for law in the sense of ‘ius’. Justice does not imply respect for the laws (leges) that might be enforced by the authorities, except in those cases when they are genuine rules of law… [So, if] ‘law’ means order and not command, rule or norm, ‘natural law’ is no longer a mystifying concept. It stands for the natural order of the human world… The question before us is: What is the natural law or order of the human world?55

  Surely, any libertarian familiar with and fond of ‘the NAP’ or Hoppean social theory should readily identify as a natural law libertarian. Nevertheless, Rothbard’s modernism kept him from asserting any particular system of natural law himself, despite defending the more rational principles of Thomistic natural law. It is no wonder then that he so celebrated Prof. Hoppe’s value-free system of argumentation ethics in his article, ‘Beyond Is and Ought’: ‘[Hoppe] has managed to transcend the famous is/ought, fact/value dichotomy that has plagued philosophy since the days of the scholastics, and that had brought modern libertarianism into a tiresome deadlock.’ Yet, argumentation ethics is simply a principle of natural law!

  Prof. Hoppe’s theory assumes a juri
stic, rather than a legalistic, perspective, as it focuses on the presuppositions made when an individual engages in some sort of rational discourse, rather than violence. To continue my truncated description of this theory, such an omission of violence implies that the principles of private property are necessarily acknowledged by the parties involved in rational discourse. This analysis of behaviour prompted Stephan Kinsella to identify argumentation ethics as, in practice, an application of the equitable (and therefore juristic) common law doctrine of estoppel.56 According to Black’s Law Dictionary, this doctrine ‘precludes a man from alleging or from denying a certain fact or state of facts, in consequence of his previous allegation or denial or conduct or admission’ (emphasis mine).

  In this way, judges use jurisprudence to determine whether plaintiffs have acted ‘in bad faith’ with respect to a dispute; that is, ‘those seeking equity must do equity’ or ‘equity must come with clean hands’. And, it should go without saying that the underlying principles of this common law (ius commune or folk-right) were developed by bishops in Anglo-Saxon courts and sustained by later influences of those natural law elements of the Church’s Canon law.

  I have, myself, contributed to this study of what Konrad Graf calls ‘praxeological jurisprudence’, understanding it to be a normative refining of natural law.57 But, upon discussing this subject with Prof. van Dun, who arrived at the same conclusions of argumentation ethics independently in the early 1980s (describing it as ‘dialogue ethics’), he made it clear that the probable function of these doctrines has been to reform natural law away from the modernist, legalist or rights-centred view of today, back to its Medieval intent. Argumentation ethics is still well in the realm of maintaining the natural order of human societies. But, much more significantly, argumentation in the practical context of law (seeking agreements and adjudication), involves appealing to, not simply a shared rationality, but shared values; and it therefore requires a common conscience. In other words, if the rule of law is the absolute rule of justice, a society requires a shared definition of justice.

  Prof. Hoppe, at the 2017 meeting of the Property and Freedom Society, puts essentially the same argument thus: ‘Multiculturalism — cultural heterogeneity — cannot exist in one and the same place and territory without leading to diminishing social trust, increased tension and ultimately the call for a strongman and the destruction of anything resembling a libertarian social order.’

  In medieval Europe, the Church was able to develop the world’s first proper system of law out of the sometimes conflicting, privately developed laws prior — common, customary and Roman etc. This followed the Papal Revolution, when the Church established self-governance for herself and so secured the independent jurisdictions of other small communities, such as universities, setting a solid example for decentralised rulership throughout Europe. Interestingly, the Church also produced the foundations of international law which we still rely on to give order to the anarchy existing between sovereign nation states. But, most importantly, it is the shared morality which spanned Christendom that enabled folks from various kingdoms to expect similar judgments on disputes wherever they travelled, through the multiplicity of jurisdictions.

  Nevertheless, all this talk of groups, communities and of widespread, shared morality strikes a nerve with many libertarians, especially Randians. But, as we have seen, it is these hyper-individualistic tendencies which cause modern libertarianism to recoil at Jeff Deist’s idealisation of the family, churches and Hoppean communities, declaring these to be ‘collectivist’. Perhaps it is the same mentality which thinks of law as a mere set of contracts made between two individuals with separate and perhaps wildly different moral beliefs.

  Personalism — Neither Individualism nor Collectivism

  So, we come full circle — there is a natural order which emerges in human societies and a natural law which would preserve that order. Experts can identify the equitable uses of violence in those societies, prudently seeking to balance our individual aims with group expectations. Such judgments assume an order comprised of persons among persons. For instance, as Hoppe put it, ‘Alone on his island, Robinson Crusoe can do whatever he pleases. For him, the question concerning rules of orderly human conduct — social cooperation — simply does not arise. Naturally, this question can only arise once a second person, Friday, arrives on the island.’58 When we speak of law, then, we don’t simply mean the rules set by either Crusoe or Friday but those arrived at through argumentation — what we would call the conscientiousness of the group; the purpose of an independent third party is to secure this process for the parties involved.

  What modern libertarianism assumes is that the market will decide which legal system works best; however, this assumes that there is no market for injustice. I’m reminded of The Simpsons, when Bart tells the mob boss, Fat Tony, that crime doesn’t pay; Fat Tony muses on his words as he leaves court in a convoy of limousines. But, as libertarianism embraces the idea, expressed by Deist, that ‘family has always been the first line of defense against the state,’ they will surely also recognise the role of the Church in creating an environment which fostered a propensity towards justice and so restrained the rise of the state. The argument is quite compelling when we consider that it was the lessening role of the Church and a growing culture of subjective judgment in all matters which birthed the modern state.

  The sort of individualism in question is peculiar to the modern West, derived from the Protestant Reformation and the doctrine of sola scriptura, through which (generally speaking) each Christian was expected to come to their own conclusions regarding the teachings of the Bible. The once common conscience was to be privatised. The Church previously safeguarded traditions, values and institutions, such as natural law, from subjective, idiosyncratic distortions and prejudices, skilful jawboning and demagoguery; and it did so through the juristic process of argumentation. But, in the sixteenth century, Machiavelli’s Prince taught that the Church sapped civic vitality from the masses and that the moralising of the Church kept monarchs from doing their job properly. As though monarchs had not already monopolised so much of the law for revenue purposes (becoming proto-states themselves), that the one institution which kept them from declaring superior rights (even whilst preaching their obligations to their people) would have to shrink.

  The rejection of the natural law/order, during the so-called Enlightenment, led many to reassess how to temper man’s brutish nature. For example, Hobbes, having declared that men are perpetually at war, concluded that a Leviathan state was required to create an artificial order. Compare this with the Medieval concept of the negotium pacis et fides, i.e. the interpersonal business of maintaining the peace and faith of Christendom.’59

  Following the Reformation, a more contractarian approach was required to maintain certainty in the law; constitutions, even Hobbes’ social contract theory, became a matter of necessity for the rising modern state, which was now free to centralise all previously free institutions and instruments — churches, currencies etc. Of course, classical liberals such as Locke imbibed this fundamentally statist thinking. In practice, therefore, states now had the freedom to, as it were, make up their own rules; and so arose legal positivism.

  As the legislating powers of the state have grown, especially in the last century, as well as the demand for the role of the state as a middleman for every conceivable interaction between citizens, responsibility has shifted away from the family, the community and the Church to some central coercive authority with limited liability. We might say, rather, that irresponsibility has swept our civilisation, socially mobilised from top to bottom. In our atomistic/hyper-individualistic Western societies, in which we hardly know our neighbours, the only thing which still binds us is contracts enforced by a coercive and no less self-interested body. With this unnatural system guiding our relationships, where is the incentive for a good reputation in your local community, for heartfelt, voluntary charity, for
keeping a family together when times are tough etc. etc.? Across the social scale, there is only the incentive to be as litigious as is profitable, and to cover your arse against the same.

  To conclude, then, if libertarians are prepared to accept the importance of communities of families as the first line of defence against the state, they should accept both the past and future role of the Church as the army fighting for ever more decentralised authority and natural law (including private property rights), and against the monopolisation of judicial services. This is more than simply accepting more traditionalist ideas, perhaps because one feels more comfortable with conservative values or some such. As Maslow’s hierarchy of needs shows, people have social needs, involving belonging to a community with common values and a shared sense of transcendence; if we are to start accepting the existence of these needs, we have to be consistent and rediscover pre-modern libertarian thought as espoused by great thinkers, such as Erik von Kuehnelt-Leddihn and Prof. Frank van Dun. We may discover our footing is much stronger on this rock.

  Chapter 5

  Libertarianism Needs Nationalism (Not Statism)

  (Why It Pays to Have a National Identity)

  The reason multiculturalism makes my blood boil is, whilst I am a libertarian, I am also strongly nationalistic. Many libertarians confuse nationalism with collectivism, statism, and racism, the implication being that if you have any sentiment for your people-group, you’re no libertarian. They assume you are delusionally taking personal pride in the historical achievements of long-dead, successful European people. That is, you forget your individualistic self and imagine a racial collective which can take credit for the achievements of others who share certain genes. But that’s not why I’m nationalistic at all.