Duke Responds to Reader: What is the Nature of Law?

A reader recently posted the following response to my article "The Truth on Biden's Abortion Malarkey." 

JasonP wrote:

Very nice discussion, Mr. Duke, but you present a false alternative. It’s subtly implicit in your text here: “So a just law must reflect morality, but what is morality? Who determines it? There are only two possibilities: man or something outside of man does.”

You are implying that all moral law is positive law with the only question being who posits the law: man or God. You leave out the possibility that law is discovered in nature.

Let’s consider the statement “smoking two packs of cigarettes is bad.” This, of course, was discovered. It wasn’t posited by God and told to Moses. Nor was it posited by government. It was discovered. Such excessive smoking harms health and threatens one’s life.

Now let’s assert that the institution of private property is good. This, too, was discovered. Almost all societies (Christian and pagan) realized, to some degree, that production is to be encouraged and long-range projects undertaking (like farming) some respect for private property is required. Locke abstracted this truth and showed it was an absolute right by arguing that reasoned productive activity requires it. Marx argued against it and famine, slaughter, and suffering followed.

Thus, empirical evidence established the importance of private property to human life just as absolutely as medicine discovers the rules to lead a healthy life with respect to physiology.

Now if you want to say nature’s laws (physics, medicine, ethical) are authored by nature’s creator and are therefore His laws, please do so. But in that case they clearly can be discovered by examining his works, i.e. nature, whether one reads His word or not.

Dear Jason P,

First, I think there is some confusion here as to the definition of positive law. Positive law is simply law that has been duly enacted by government, and I never implied that this is all there was; on the contrary, my point was that for our positive laws to have credibility, they must be based on moral law. However, the definition of PL is a minor point here, so now on to the main one.

You wrote:

Let’s consider the statement "smoking two packs of cigarettes is bad." This, of course, was discovered. It wasn’t posited by God and told to Moses. Nor was it posited by government. It was discovered. Such excessive smoking harms health and threatens one’s life.

The problem here is that this statement confuses principles of health (which we sometimes call "laws") with moral law, or morality. And, sure, smoking is deleterious to your health, but who is to say this is "bad" in a moral sense? After all, misanthropes and zero-population-growth types may say that it's a good thing if the human race is reduced as much as possible. And this is no joke; as you know, there is no shortage of leftists who actually believe man is a pox upon the planet.

So, again, who is to say it's wrong? You? Me? The leftist misanthropes will say, "You're only people just like us, and we have our own values. Don't impose your values on me."

You also say, "Now let’s assert that the institution of private property is good."

Whoa there, Nellie! That's quite a leap. Marx could just as easily say, "Now let’s assert that the elimination of private property is good." Of course, both statements are simply suppositions, assertions that those who espouse them may want us to accept as an axiom (a self-evident truth that needs no further proof), but note that something said to be self-evident and that need not be proven is a matter of faith, not fact.

Don't misunderstand me. I agree that your supposition is a truth, but that isn't the discussion here; rather, at issue is the definition of moral truth and what kind of philosophical universe is necessary for the concept of "truth" to make sense. This is an epistemological discussion.

So back to your assertion. In attempting to prove that private property is a "good," you may say that it's necessary for production. But someone could come back with, "Prove that is a good." And you could go around in circles in this debate because no moral principle can be proven scientifically. Again, remember that if someone doesn't appreciate man's existence, he won't agree that something that facilitates that existence is a "good." His perspective is different.

This is why, for morality to be real, there must be more than just "perspective." How, ultimately, do you argue with a Marx when you cannot prove that anything is a transcendent "good"?  All you can really say is that you prefer things to fit your vision for society, and you may even be able to say that the majority of people in this nation also like that vision. But this, as I wrote in my piece, is simply reference to consensus preference. And it makes no more sense to call private property a good based on this than it would be to proclaim vanilla a "good" based on consensus preference. After all, if this is all we can hang our hats on, then we're basically saying that might makes right. We have the votes, so our will be done.

But then, of course, Marx could say that if he could get a majority of people to agree with him, then his collectivism idea would be considered a "good." And, as you know, Jason, what people have preferred at various times in history has varied widely. For most of man's history, in most places, human sacrifice was considered a good, and slavery was even more common. So I will ask you, were these things truly good? Was it merely a matter of preference (taste)? Or is it that they weren't really good, even though most people agreed with their practice?

If the last thing, what follows from that? Well, if something can be a good or a bad thing despite man's feelings on it, then what makes it a good or bad thing must reside outside of man. And what would this be? You may say it's nature, but nature is inanimate and has no will. Nature certainly operates in a certain way (e.g., if people smoke, they tend to harm their bodies), but it renders no judgments about right and wrong. In nature, animals steal from, kill and rape each other all the time, and people do the same when left to their natural instincts; this is why stealing, killing and rape were common for most of our history. Just look at the Vikings.

At the end of the day, reason leaves us with only one logical conclusion: Either God exists and has authored morality — and this is why we can say certain things are actually "good" — or "good" simply doesn't exist. It then would be the case that what we call good is simply a matter of taste, either man's consensus taste or a man's individual one.

And, now to conclude, the idea that God exists, Absolute Truth exists, moral principles exist, is a matter of faith. But human nature isn't a matter of faith; it's a matter of fact. And the fact is this: In the aggregate, man will abide by moral principles that he considers handed down by the Creator of the Universe, by the Author of all, by He who can grant eternal life or damn with eternal punishment. This is largely because, as I have illustrated, His authorship of moral principles is necessary to even rightly call them "moral principles," as opposed to mere tastes. People do not, however, generally feel compelled to abide by things that we call "values" and that are simply a function of consensus preference or that are said to be dictated by "nature." "After all," says an individual responding to this functional relativism, "I'm a person, too, so why should I subordinate my tastes to those of other mere mortals? As for nature, heck, it has no will, and we subdue it all the time." This is simply how people operate, like it or not. 

So I would encourage you to ponder this deeply, Jason, bearing in mind that rejection of Absolute Truth (or moral absolutes) — and even the untenable idea that it can somehow exist apart from God — is, to put it simply, the handiwork of liberalism. And a civilization that entertains this functional relativism is not long for this world.

"We call a man a bigot or a slave of dogma because he is a thinker who has thought thoroughly and to a definite end." — G.K. Chesterton

     © 2012 Selwyn Duke — All Rights Reserved

Comments

[JasonP]

Let’s explore and describe our differences to see if we understand each other. You are correct that man’s positive law is embodied in the institution of government. However, your alternative seems to be God’s positive law. I talk about the distinction between God’s positive law (revelation) and natural law in the context of our founding fathers here. In that essay I argue that Grotius explains the distinction clearly. Your concept of moral law seems to be God’s positive law--i.e. his commandments and covenants asserted and willed by Him. X is good if He so wills it.

Reading your exposition I’m struck by symmetry between your thesis and the antithesis. You note that I can’t argue with a Marxist if they don’t hold my summum bonum of human life as the standard of value. Quite true. But you can’t argue with a Mohammadan if they don’t hold your source of revelation to the the true one. They will continue to demand that you submit or face death just as much as the Marxist will demand that I submit and serve. The inability in either case to convince our foes doesn’t prove our position is epistemologically and morally weak.

However, if you hold that life is the standard of value (let’s hold off on the “why” for now) than I think you and I would have substantial agreement on medicine, economics, political science, and (I suspect) fundamental political principles. My position (which I’m not defending at this moment) is that the “good” is by definition that which furthers human life. Good always raises the question "good for what?" I'd argue "good" means "good for life." Your position, as I understand it, is that such a definition is arbitrary; and, I think, you imply that a rights-respecting order that underwrites human prosperity would be unlikely without His commandment to make life a supreme value.

Thus, a doctor can’t label smoking “bad” unless God tells him that life is good. We can’t know that the 150 million killed by communism is bad unless God tell us. Nor can we be horrified and morally outraged at the jihadi attacks on 9/11 unless we ascertain which religious texts are the true word of God. There is no “good” until we ask God what is “the good” and correctly hear his response. Do I understand your position?

[Dave]

Selwyn Duke is awesome!!