公 法 评 论

et revelabitur quasi aqua iudicium et iustitia quasi torrens fortis


Journal of Libertarian Studies
Volume 15, no. 3 (Summer 2001), pp. 1-36
ó2001 Ludwig von Mises Institute

Frank van Dun*
Classical liberalism arose at a time when Christian orthodoxy
was still vibrant.1 Liberalism and Christian orthodoxy, sharing a
number of fundamental ideas about the nature of man and of interpersonal
relations, presuppose the same moral ontology of natural
law. The high tide of Christian orthodoxy and classical liberalism
belongs to the era when natural law was the fundamental concept
of all serious thought about the human world.
Both classical liberalism and Christianity went into sharp decline
from the later nineteenth century onward, and, by the beginning
of the twentieth century, the concept of natural law was rap-
*Professor of Philosophy of Law at the Universities of Ghent and Maastricht.
An earlier version of this text was presented at the conference "The
World Out of Balance?" (Gummersbach, Germany, November 5-7, 1999),
held at the Theodor Heuss Akademie, and organized in cooperation with
the Von Mises Institute (Ghent), Nova Civitas (Ghent), and The Centre for
a New Europe (Brussels). The author wishes to thank the participants for
their questions and comments.
1By "classical liberalism," I mean the liberalism of those who postulate a
necessary link between liberty and objective law and justice, i.e., respect
for natural persons, their property, and contractual obligations. By "Christian orthodoxy," I mean the interpretation of the Bible that became authoritative within the main churches as a result of the efforts of Saint
Augustine and other early church fathers. However, I shall consider only
its moral ontology. Moreover, I shall discount Augustine's doctrine of hereditary sin (see note 15).
Journal of Libertarian Studies
idly losing its hold on the intellectual imagination. Today, it is no
longer part of the standard intellectual framework. Among intelle ctuals,
the philosophy of natural law has been superseded during the
last century by a progressivist belief in the more or less imminent
approach of a "new age" in a national or global "social Utopia" (or,
more recently, "Ecotopia").
Progressivism is not simply the recognition of the wealth explosion
that began in the nineteenth century, an explosion that has
been and is the basis of very real progress in science, technology,
and the standard of living. Rather, it is a religion that combines millenarian
and gnostic themes and presuppositions to justify the compulsory
sacrifice of the limited natural rights of individuals on the altar
of an unlimited "right to everything"-a right to the total liberation
from the natural and social constraints of the human condition.2
As such, progressivism is a frontal attack on the philosophy of
natural law.
After a few explanatory notes on the relevant concepts of
natural law and religion, I shall discuss three types of religious
moral ontology. The discussion should clarify the very different patterns
of interpersonal relationships implied by these ontological
types. I shall first consider the biblical account of natural law in
Genesis, and then the challenges mounted against it by the millenarian
and gnostic traditions. I shall look at these religions in order to
determine how they represent interpersonal relations between "I"
and "You," or between "I" and "Other."
The discussion also highlights the contrast between the classical
liberal politics of liberty, rooted in natural law, and the progressive
politics of liberation, premised on the denial of natural law. I
shall then mention some currents of thought that are symptomatic
of that denial, and conclude with a short assessment of its impact
on liberal thought in the twentieth century.
Contrary to the common belief that natural law is a metaphysi-
2See Frank van Dun, "Human Dignity: Reason or Desire?" Journal of Libertarian
Studies (forthcoming).
Frank van Dun - Natural Law, Liberalism, and Christianity
cal or even theological concept, the word "natural" in this expression
is to be taken literally. Natural law refers to the natural, physical
world of living human beings. Moreover, "law" should not, in
this connection, be understood in its now-dominant sense of a
command, directive, or rule (cf. the Latin lex3). Instead, it is to be
understood in its much more profound sense of order, especially the
order or bond of conviviality that has its natural foundation in the
plurality and diversity of distinct and separate persons.4 Thus, law
is semantically related to the Latin ius, which refers to a bond arising
out of solemn speech (iurare, to make a personal commitment
to or covenant with another), and which presupposes the separateness
and independence of persons. In that sense, law stands in opposition
to the Old English orlaeg, fate, the inevitable disappearance
of order, as in war.5 Disorder occurs when the natural separateness
of persons is no longer respected, and the distinctions between
one person and another, or between the words, deeds, and
works of one person and another, are not or cannot be heeded.6
Clearly, law (order) can be natural in a straightforward literal
sense.7 However, a rule of law is never natural in such a sense. A
3Lex originally had military connotations, cf. dilectus, the raising of an
army, legio, legion.
4"Law" derives from the Scandinavian l?g, the plural of lag, order, bond.
For reasons of clarity, I prefer to speak of the order of conviviality rather
than the social order, because the English word "society" and its derivatives
("social," "sociable," "socialist," "socialisation," and the like) are
highly ambiguous and tend to evoke the image of an organisation or company
(Dutch maatschappij) with a common purpose toward which all of
its mem-bers are supposed to work, and a common or social income that is
to be distributed according to some organisation-relative criterion of merit.
I use "conviviality" because it is the nearest translation of the Dutch
samenleving that I can find.
5"War" derives from the Germanic werra, confusion, disorder. In Dutch, to
be in de war means to be confused. Orlaeg is obviously related to the
Dutch for war, oorlog.
6See Frank van Dun, "The Lawful and the Legal," Journal des économistes
et des études humaines 4, no. 4 (1995).
7See especially E.A. Havelock, The Liberal Temper in Greek Politics
(London: Jonathan Cape, 1957); also Larry A. Eshelman, "Might versus
Right," Journal of Libertarian Studies 12, no. 1 (Spring 1996), pp. 29-50,
Journal of Libertarian Studies
rule of law is an inferred rule that presupposes the value of maintaining,
strengthening, or restoring the order of conviviality among
natural persons. A rule of law is, thus, not a lex, which presupposes
a hierarchy of command and obedience in a particular organisation
(a societas, e.g., an army, company, state). Hence, it is doubly misleading
to speak of natural laws (leges naturales): it obscures the
distinction between a rule of law and a command (lex), and it assimilates
the nomocratic order of conviviality to the telocratic order
of a so-cial organisation set up to pursue a particular set of goals.8
Human beings have natural rights. Like natural law, a natural
right is not some metaphysical or theological object or quality.
One's right is that which is under one's control.9 A natural right in
the strict sense is that which is naturally under a person's control,
his body with its faculties of movement, feeling, thought, and
speech. By extension, a natural right is what a person brings under
his control without violating any other person's natural rights.
However, not all rights are natural rights. The strong may establish
control over the weak and bring them under their government,
and a thief or robber may take possession of and control over
what by natural right belongs to another. These established rights
may therefore conflict with natural rights.
Hence, the question arises, which of those conflicting rights are
respectable or normatively significant? The common answer in
classical liberal thought is that natural rights are respectable per se,
and that established rights are respectable only if they are established
with full respect for natural rights.10 The same answer is also
who correctly traces the notion of non-metaphysical natural law to the
sophists of the fifth and fourth centuries B.C.
8The distinction between a nomocratic and a telocratic order is explained
in Michael Oakeshott's classic Rationalism in Politics and Other Essays
(Indianapolis, Ind.: Liberty Fund, 1991).
9"Right," from the Latin rectum, the past participle of regere, to rule, control,
or manage.
10The argument that natural rights ought to be respected appears in Frank
van Dun, Het fundamenteel rechtsbeginsel (Antwerpen: Kluwer-
Rechtsweten-schappen, 1983); also, independently, in Hans-Hermann
Hoppe, A Theory of Socialism and Capitalism (Boston: Kluwer Academic
Frank van Dun - Natural Law, Liberalism, and Christianity
presupposed in Christian natural law ethics (see below).
A religion provides a scheme for interpreting events and evaluating
human actions. It is, in Marx's memorable phrase, "the logic
of the world in popular form." As such, in this article, "religion" has
the broad sense of what holds the world together and gives meaning
to human existence, its origin, and its destiny; religion is not
used here as a synonym for either "the service of God"11 or "adherence
to a church."
Religion is a common source of the prejudices from which all
thinking must start, and to which it is likely to return in the face of
doubt or when afflicted by fatigue or stress. Given this understanding
of the term, we should note that there can be not only theistic
but also atheistic religions.
The most prominent theistic religions are the "religions of the
Book" (Christianity, Judaism, and Islam). They postulate the concurrent
existence of a personal being with supernatural or incomparable
powers. Among the atheistic religions, various forms of gnosticism
stand out. They postulate the existence of a process that is
bound to "unleash the infinite potential of man" by breaking through
the limitations of the finite world of history and nature.
Many intellectuals regard theistic religions-Christianity in particular
-as restrictive because such religions deny that human beings
are or can be gods. They are inclined to regard atheistic religions
as liberating because of their promise of a release from the
natural and historical constraints under which humans have laboured
since time immemorial. With God out of the way, what (according
to theistic religions) belongs to God and to God only-including
omniscience and omnipotence-becomes available for human appropriation.
Publishers, 1987). See also N. Stephan Kinsella, "New Rationalist Directions
in Libertarian Rights Theory," Journal of Libertarian Studies 12, no.
2 (Fall 1996), pp. 313-26. Van Dun's book went virtually unnoticed, but
Hoppe's very similar argument was severely attacked (e.g., in the September
1988 issue of Liberty). A possible reason for the attacks is given in
this paper. See the text to which note 46 is appended.
11Cf. the German Gottesdienst with the Dutch godsdienst.
Journal of Libertarian Studies
Theistic religions tend to be adaptive. Typically, though not invariably,
they postulate an unbridgeable gap between the natural
world and the sphere of God. The natural world is, accordingly, the
only place where human beings as they are can ever hope to exist.
Therefore, theistic religions tend to focus the mind on the problems
of surviving and thriving in this world, and on developing practices
and institutions that are well adapted to the conditions of the natural
world.12 The world, or nature, is what is given, and human beings
must adapt to it, using all the resources, skills, and experience at
their disposal.
Atheistic religions, on the other hand, do not have a high regard
for the world as it is. It will either wither away or be overthrown
when men become conscious of their own divine nature. The objective
distinctions, separations, and consequent limitations, constraints,
and scarcities that characterise the natural law are either
unreal or only temporary conditions-in any case, devoid of normative
significance. Accordingly, such religions tend to imply that
rules of conduct, legislation, and policies should not seek to improve
the human condition within the set framework of natural law.
Rather, they should seek to achieve liberation from natural law's
constraints. The leading motive is not adaptation to the world, but
liberation from it. In the form of escape from or destruction or subjugation
of the natural world, it defines the direction of progress.
Some theistic religions-for example, various forms of Christian
millenarianism-resemble gnostic atheism in that they also look
forward to a condition of liberation from the natural and historical
constraints of life. However, they typically expect that sort of liberation
either from a victorious struggle of the true "servants of
God" against his enemies or from a direct divine intervention.
12As Alfred North Whitehead remarked, it is probably no coincidence that
science and technology became integral parts of civilisation only in the
Christian West-or that the "heathen philosophers" were actively studied
there, even with respect to such sensitive domains as ethics, politics, and
metaphy-sics. Alfred North Whitehead, Science and the Modern World,
Lowell Lectures 1925 (New York: Macmillan, 1925), p. 15.
Frank van Dun - Natural Law, Liberalism, and Christianity
Christian orthodoxy is based on the religion of the Bible. The
first chapters of Genesis give an account of how things came to be
ordered as they are, according to a scheme that fixes for all time
what is possible and what is impossible. As we shall see, the
themes of law and justice are central parts of the biblical myth of
The story is familiar. It is a magnificent story about growing up,
about the innocence of childhood and the responsibilities of being
an adult, about the rise from a condition of unquestioning obedience
and blind acceptance of authority to a condition of seeing for oneself,
of questioning things with one's likes, and especially of making
choices whose consequences one has to bear oneself.13
Before the Fall, Adam was just an innocent child residing in a
garden. To be sure, he was able to hear and understand what the
Lord of the Garden said to him and instructed him to do, but he was
not able to act on his own. He had no care in the world and no responsibilities.
The fruits of the Tree of Life were freely available,
ensuring him a carefree existence. However, Adam was also told,
without his understanding it, that his situation was conditional on his
personal immaturity. It would continue as long as he did not eat
from the Tree of Knowledge of Good and Evil, that is to say, as
long as he was not aware of the difference between good and evil.
That knowledge is implied in any act of choosing, but in the Garden
of Eden, only the Lord made choices and decisions.14 He took care
of everything. Consequently, Adam, in his childlike innocence, had
no need for choosing-so he had no need for that kind of knowledge,
just as he had no need to be self-conscious.
When Eve was introduced into the simple hierarchy of the Gar-
13This theme is reflected in God's role in the biblical stories. At first, he is
the principal dramatis persona, commanding and in charge. Then, he recedes
into the background, still issuing stern warnings and direct advice,
until his presence is no more than a "still small voice" (I Kings 19:12). In
the end, he can only be invoked and prayed to. Yet, he is always there,
burning with-out consuming.
14In Hebrew, it seems, the word translated as "the Lord" suggests the
quality of alertness or readiness-the Lord is "the alert one," "the one
who is ready," the doer or the entrepreneur. See M. Reisel, Genesis, Transcriptie,
Verklaring, Vertaling (Den Haag: Kruseman, 1972), p. 22.
Journal of Libertarian Studies
Garden of Eden, Adam discovered that things were not as selfevident
as they had seemed. Eve was like him, an equal-not a superior,
and not an unquestionable authority. She was a partner who
could ask questions without already knowing the answers, and who
could answer his questions without at the same time obliterating the
doubts that had inspired them in the first place. All of a sudden,
Adam and Eve had entered a world in which choices had to be
made. They discovered that making choices entails costs, and that
they therefore needed to know the difference between good and
In acquiring that knowledge, they inadvertently destroyed the
very possibility of maintaining the arrangement of the paradise in
which they had been living. Until then, the Lord's rule over them
had been justified because they had lacked the knowledge to rule
themselves. However, once they knew the difference between
good and evil, they could no longer claim the protection of innocence;
they had made the transition to adulthood.15
As the story goes, the Lord realised that they had become "as
one of us" (Genesis 3:22). Therefore, there could no longer be any
justice in his rule over them. Here we have the axiom of justice in
the biblical religion: One does not rule one's likes, not even if they
are inferior in all dimensions of moral excellence-and one does
not ask to be ruled by one's likes, even if they are superior in all
15I take it that this-and not Augustine's gloomy doctrine of hereditary
sin- is the proper interpretation of their "fall," i.e., their coming into being
as independent agents. The English "sin" is related to the Latin sons
(literally "being," though usually translated as "guilty") and to the Ge rman
sein and the Dutch zijn, both meaning "to be" (with no moralistic
connotation whatsoever). That human being ("sin") is contingent and imperfect,
and therefore different from God's being (Yhwh, often translated
as "I am myself"), does not imply that a human being is morally bad.
Augustine's moralis ation of the difference may be an indication of the influence
of the gnostic (manichean) idea that good and evil are not inseparable
aspects of choice, but radically different and separable things or
forces. See Th. Sinnige, "Gnostic Influences in the Early Works of Plotinus
and in Augustine," in Plotinus amid Gnostics and Christians: Papers
Presented at the Plotinus Symposium Held at the Free University,
Amsterdam, on 25 January 1984, ed. David T. Runia (Amsterdam : VU
Uitgeverij/Free University Press, 1984).
Frank van Dun - Natural Law, Liberalism, and Christianity
relevant respects.16
The expulsion from paradise was, therefore, a requirement of
justice. After all, the justice of God's direct rule had depended on
the inequality of the moral alertness of the Lord of the Garden and
the unself-consciousness of the children who dwelled in it. To have
continued the arrangement after the inequality had disappeared
would have been the height of injustice. The expulsion was not so
much a punishment for the sin of disobedience as the necessary
and just price of coming of age and acquiring the power of moral
discrimination. That expulsion, however painful and loaded with irrevocable
consequences it may have been, was an act of justice
and love comparable to that dramatic moment when parents tell
their children for the first time that they should stand on their own
feet, that love implies neither unconditional dependency nor unconditional
If, among likes, one's rule over others is out of the question,
their relations can only be based on respect for one another's freedom
-that is to say, on mutual independence and agreement-
even if one is God and the other a mere mortal. Not surprisingly,
the biblical religion is the religion of the covenant, of faith and trust
rather than belief or knowledge. It implies the clear distinction between
two separate spheres, one belonging to God, the other to
human beings-between heaven and earth, the supernatural and
the natural, eternal being and mortal life-each of them with its
own reality, integrity, autonomy, and respectability.
God is the archetypal Other in orthodox Christianity, whence
16The Old Testament does not leave that axiom's political implication in
the dark: "Pray for thy servants unto the Lord thy God, that we die not:
For we have added unto all our sins this evil, to ask us a king" (I Samuel
12:19). The same book (I Samuel 8:10-18) gives an account of what the
rule of a king amounts to. It also reminds us that while human political
ambitions may be blind repudiations of divine judgment, God cannot in
justice step in to take command himself. His "reign" is based on the covenant,
and hence on advice: "Hearken unto the voice of the people in all
that they say unto thee, for they have not rejected thee, but they have rejected
me, that I should not reign over them. . . . [H]owbeit yet protest solemnly
unto them, and shew them the manner of the king that shall reign
over them" (I Samuel 8:7, 8:9).
Journal of Libertarian Studies
comes the fundamental ontological axiom of the biblical religion:
man and God are not only distinct but also separate beings, yet are
alike in that they both have a moral sense. Their relationship must
be that of one independent being to another. This is even more true
for relationships among human beings. If a human being is "like
God," he is even more like any other human being.
The Ten Commandments stand as forceful reminders of the
central importance of this axiom. They command men to respect
the fact that they are not gods, the children of gods, or the makers
of gods. The place of God is already occupied; no human need apply.
The divinity of God's judgment is to be neither questioned nor
appropriated by man. The commandments tell men to respect the
fact that they are human beings brought into the world by human
beings, their parents without whom they could not survive, and to
respect the fact that they are all like one another, none of them
having any prior right or claim to another or to what belongs to another.
Thus, men are taught to respect the natural conditions of
their existence, and to accept its limitations and constraints as well
as their own fallibility. As such, frustration is no injustice.
The covenant is the only possible form that does justice to the
separate existence and the likeness of all persons involved in the
biblical story. They are all moral or rational agents, though not of
the same quality or excellence. That fact defines the world's basic
order (or law). It is an order that can be maintained only by mutual
respect, not only between God and men but also among men themselves,
regardless of their individual differences. As far as relations
among men are concerned, it is the order of the natural world, the
natural order or natural law. Respect for this order or law is justice,
and, therefore, as the saying goes, justice shall be done lest the
world perish. Thus, justice emerges as the fundamental virtue in
dealing with others, because justice is simply respect for the natural
order or law of the human world. If the analysis of that relationship
is made in terms of the relationship between "I" and "Other," it is
seen to be completely symmetrical. Every person, in his dealings
with others, is at once "I" and "Other"-the words are fully interchangeable.
Each person is to be taken seriously for what he is.
However, justice is not an easy virtue-not for men and not for
God. Abraham had to prove his loyalty to the covenant by showing
Frank van Dun - Natural Law, Liberalism, and Christianity
his willingness to sacrifice his son: the obligation of justice outweighs
even parental affection (Genesis 22:12). In his turn, Abraham
had to remind the Lord (Genesis 18:23) that there is no justice
in treating the inhabitants of Sodom as if they were indistinguishable
parts of an undivided whole: "Wilt thou also destroy the righteous
with the wicked?" Looking at the world of human beings from
his distant seat, God may be inclined to think that "they are all the
same"; they are not. No one is to be judged merely for belonging to
a city, class, or group. The principle of solidarity is contrary to justice.
Solidarity does not even count as a virtue, for virtue is directed
toward other persons as such, not toward statistical artefacts.
It is, therefore, no coincidence that in the orthodox interpretation
of Christianity, natural law is the basis for all speculations
about human relations in this world. Justice, that is to say respect
for natural law, implies respect for the freedom of one's likes, and
for their propriety and property, as well as for their iura or covenants.
Within this natural order, each person must bear his own responsibility,
discharging it with love and care for himself and others,
especially his children and parents. Love and justice are the foundations
of Christian ethics, but it is justice that takes precedence;
love is no excuse for injustice. All rules of conduct are to be evaluated
in the light of justice, that is to say, for the contribution they
make toward the maintenance, reinforcement, and, if need be, restoration
of the natural order or law. However, only such rules as
are fully attuned to that purpose are to be considered rules of law
in the strict sense. An unjust rule imposes no lawful obligation.
To the central themes of natural law and justice, the orthodox
interpretation adds another: Until the end of time, the separation of
God and man will remain intact. Its message is sobering: The initial
condition of the Garden of Eden is irrevocably lost. In their old age,
individuals may return to a childlike condition of innocence, but senility
is not a phase in the history of the species. There will be no
return to paradise, no "kingdom of God on earth" in a literal
sense-no new Messiah, no third testament.17 Human beings have
knowledge of the difference between good and evil, which is the
17This is crucially important to Christian orthodoxy. Jesus Christ is the one
and only Messiah; he is not to be outdone by any newcomer.
Journal of Libertarian Studies
presupposition of every act of choice, of which good and evil, or
better and worse, are distinguishable but inseparable aspects.
Therefore, human beings cannot in justice be subjects, not even of
God or the Jesus of a Second Coming. There is no substitute for
the natural human condition.
It is precisely this theme of irrevocable separation of God and
man and its cognate theme of the inseparability of good and evil
that are denied by millenarian or chiliastic versions of Christianity.
Taking literally the vision of the Book of Revelation, they look forward
to a return to paradise, a restoration of a condition of life in
which frustration is not to be feared because all burdens of choice
will be borne again by God himself. The Tree of Life dominates the
landscape (Revelation 22:2) of that "paradise regained," but the
Tree of Knowledge of Good and Evil is conspicuous only by its absence.
With the expectation of a Second Coming that will not signal
the end of time, but only the end of the bad times and the beginning
of the good times, the millenarian imagination is driven to reject the
permanent value of the natural law of human existence. Human life
is viewed only as a transitory condition, and one that cannot pass
too quickly. Rather than concentrate on the problems of survival in
this world, men should eagerly await or even help to usher in the
new era of bliss. In whatever form, withdrawal from the world,
antinomian excess, or revolutionary violence, the proper conduct
aims to undermine the basic institutions of the world as it is.
The promise of an infinitely better future, not respect for the
natural law of this world, guides the behaviour of true believers
during their earthly pilgrimage. To be rejected are established
churches, along with the institutions of science, property, trade, art,
money, and even the family. Because they are the pillars that sustain
the natural order, they have no place in the New Jerusalem,
where all men will be brothers enjoying life without death, in blissful
community without care or need, under "the Throne of God and the
Millenarians not only hold out the promise that the separation
Frank van Dun - Natural Law, Liberalism, and Christianity
between God and men will eventually be undone, at least for the
righteous, but some also hold the view that the separation was
never complete. The divine spark glows within the heart and soul
of those who, because an "inner light" guides them, can do without
the conventions of this world. Any one of these could be the next
Messiah, the author of a third and final Testament.18
From the perspective of moral philosophy, millenarianism differs
from orthodox Christianity in that it rejects the latter's basic
presupposition of the separateness of persons, and with it the idea
that the true religion-what holds the world together-is the covenant.
Instead, it assumes a mereological account of human existence,
i.e., an account in terms of a whole and its parts. Just as the
original Adam had no separate existence, but was merely a subordinate
part of the divine household, so, too, will the righteous regain
that original condition in the New Jerusalem of the Millennium. The
loss of their temporary status as independent but cursed persons is
the necessary condition for their liberation from all evils and miseries
of their sojourn outside God's kingdom.
God is still the archetypal significant Other, just as he is for ortho-
dox Christianity-a distinct entity. In the final analysis, however,
he is no longer a separate being; rather, he is the whole of
which every righteous person is to be an inseparable part. Religious
ethics are governed here by the desire to lose one's personal identity
in submitting to God. The human being is nothing; God is all.
Similarly, the social ethic of millenarianism is one of extreme altruism.
The relationship between one person and another is no longer
conceived of in terms of the meeting of two free and equal persons,
but of the submission and service of the I to the Other. As
Wynstan H. Auden caustically remarked, "We are all here on
earth to help others; what on earth the others are here for, I don't
18This view would eventually define the other side of "the Enlightenment,"
the side that was not content to celebrate the progress of science,
technology, and the rational appraisal of human affairs, but that claimed
instead to be the foreboding of that final stage of world history in which
everything would be made new and true to its ultimate destiny. See, e.g.,
Frances Amelia Yates, The Rosicrucian Enlightenment (London:
Routledge and Kegan Paul, 1972).
Journal of Libertarian Studies
In the chiliastic view, the normative validity of a rule of conduct
is not a consequence of its relation to natural law. It derives instead
from its relation to something that does not but should and will exist
-not from its relation to the natural order but from its relation to
an ideal order. The concept of law itself is then imbued with normative
meaning. It no longer describes the objective reality to
which all sane men have access by the ordinary powers of the
senses and of human reason. It projects instead a vision that derives
its normative significance from its distance from the natural
law. The natural world is reduced to being just one among many
possible worlds-and one of the least attractive. From the perspective
of the philosophy of law, this is a fateful turn. It marks the shift
from the idea that jurisprudence and legislation are the art of inducing
respect for one's likes, their being, deeds, words, and works, to
the idea that they are tools for reconstructing society according to
some grand notion.
Gnosticism also denies the separateness of persons, but in a far
more radical way than does millenarianism. Gnostic religions typically
assert the identity of Man and God, or at least the divine nature
of Man, who is then represented as an aspect of the divine.
What gives meaning to human existence is the divinity of Man, of
his origin and his destiny. The material, historical world obscures
that fundamental truth, but cannot destroy it. Gnosticism is a religion
of liberation from this world-a liberation that is the common
purpose of all men who have knowledge (gnosis) of the truth.
Therefore, gnosticism is radically opposed to the religion of the
covenant, which holds that every moral being has his own rightful
place and sphere of life and freedom in this world.
In the original gnostic myths, the God of the Old Testament,
code-named the Demiurge, is placed far below Man in the hierarchy
of the divine, far below the true God who, being all and nothing
19W.H.Auden, The Dyer's Hand, and Other Essays (New York: Vintage
Books, 1968), p. 14.
Frank van Dun - Natural Law, Liberalism, and Christianity
simultaneously, transcends all dimensions of thought, existence, and
personhood.20 The God of Moses is the villain of the piece, an evilminded
or at best clumsy imitator of the true God. His crime is to
have captured the divine spirit of Man in the material world. Thus,
the "true Man" lives in captivity in the earthly realm created by
that false God of matter. There, Man can live only the life of a finite,
mortal, particular individual, whereas his true nature is that of
an infinite, immortal, universal being. Human procreation and
worldly institutions such as the family and private property further
serve to scatter the divine element among its material containers,
thus exacerbating men's alienation from their true nature and forcing
them into ceaseless conflict.
However, some men still have communion with their original
divinity. They are the "pneumatikoi," conscious of their divine origin
and intent on awakening their fellows from their dogmatic
slumber. For it is part of the gnostic belief that, once men regain
consciousness of their true self, they can recapture the infinite potential
that is their divine right. The basic motto of gnosticism is "To
know oneself is to know all."21 In the final analysis, the divine self
is the only true reality: it is Man himself, the universal ego. This
Man with a capital M is, of course, not the same as human beings
who crawl around on this earth. He is truly real, while they have at
best only an illusory sort of being.
The gnostic denounces as bad and wrong whatever the Old
Testament pronounces good and right. The world of nature and his-
20See, e.g., F. Wisse, trans., Apocryphon of John, Nag Hammadi & Manichean
Studies 33 (Leiden, 1995); also, J.M. Robinson, ed., The Nag Hammadi
Library in English (San Francisco: Harper, 1990). The true god is referred
to as the "shape of light," but defined only negatively: without beginning,
without need, without life, without name, beyond perfection,
unlimited, beyond differentiation, immeasurable, invisible, ineffable, neither
embodied nor unembodied, without quantity or quality. See G. van
Groningen, First Century Gnosticism: Its Origins and Motifs (Leiden: E.J.
Brill, 1967). For a recent discussion, see Peter Koslowski, Gnosis und
Theodicee: über der Leitenden Gott des Gnostizismus (Wien: Passagen
Verlag, 1993).
21See J.-P. Mahé, ed., Hermès en Haute-Egypte (Québec: Peeters, 1982),
vol. 2, p. 393.
Journal of Libertarian Studies
tory has to be destroyed or overcome because it is an illusory form
of existence-a lie. It is the creation of a false god whose powers
are far inferior to those of Man himself. The God of the Bible is no
more than an arrogant fool, an insignificant part of Man that believes
itself to be the whole. Worse fools still are those who worship
that false God, because they project the divine outside themselves
while it is hidden in their souls. They live in a state of selfinflicted
The proper attitude for Man is to destroy the illusion that there
is anything significant outside himself, e.g., a God who is a significant
Other, or any person who could claim to be separate and distinct.
To destroy that illusion, it is necessary to see that every person
who, on the surface, seems to be another, is really only a part
of oneself. That is the attitude of universal egoism: I, the universal
Man, am everything; nothing is apart from me. Its necessary mirror
image is the unconditional altruism of any other, who must per
force be an insignificant other. He can have no raison d'être except
to serve the exalted ego of the universal Man. In that sense,
the gnostic tradition of the universal ego is complementary to the
millenarian tradition of submission and service. However, the millenarian
"I serve you" is compatible with voluntarism. If it smacks of
the morality of slaves, it is still voluntary slavery. On the other
hand, the gnostic "You serve me" leaves no room for voluntarism
at all. That Christianity, to the gnostic, is a morality of slaves or
Untermenschen is an inevitable implication of his egomania. It is
not so much a comment on Christianity as on himself. Indeed, the
religious logic of gnosticism starts from the assumption that there is,
in the final analysis, nothing else to comment on.
The basic themes of the previous section-alienation and
awareness of self, inversion of the categories of reality and illusion
and of life and death, opposition between the particular and the universal
man-are brought together in the gnostic text best known to
students of political philosophy: Marx's indictment of religion in his
"Toward the Critique of Hegel's Philosophy of Law." The text
teems with gnostic themes and keywords:
Frank van Dun - Natural Law, Liberalism, and Christianity
And indeed, religion is the self-awareness and selfregard
of man who either has not yet found or has already
lost himself again. But [this] man is not an abstract
being, crouching outside the world. Man is the
world of men, the state, society. This state, this society,
produce religion, which is an inverted world consciousness,
because they are an inverted world. Religion is the
general theory of that world, its encyclopaedic compendium,
its logic in popular form, its spiritual point of honour,
its enthusiasm, its moral sanction, its solemn complement,
its general ground of consolidation and justification.
It is the realisation in fantasy of the human being
because the human being possesses no true reality. The
struggle against religion is therefore indirectly the
struggle against that world whose spiritual aroma is religion.
Religious misery is in one way the expression of
real misery, and in another a protest against real misery.
Religion is the sigh of the afflicted creature, the soul of
a heartless world, as it is also the spirit of spiritless
conditions. It is the opium of the people. The abolition
of religion as the illusory happiness of the people is the
demand for their real happiness. The demand to abandon
the illusions about their conditions is the demand
to give up a condition that requires illusions. Hence
criticism of religion is in embryo a criticism of this vale
of tears whose halo is religion.22
In a sense, Marx is the ultimate gnostic in that he turns not only
the Bible on its head, but also the hierarchy of the spiritual and the
material, a hierarchy common to both the Judaeo-Christian and the
original gnostic traditions. For him, the universal Man is no longer a
mystic vision but the human species itself. As the universal Man,
the species will come into its own when all men and women, upon
discovering that they are one with the species as a whole, divest
themselves of their own particular individuality.23 That is the religious
essence of his communism. It stands for the end of the world
of history and nature as we know it-the world in which the spe-
22Quoted in Saul K. Padover, Karl Marx on Religion (New York: McGraw-
Hill, 1974), p. 35, emphasis in original.
23This is the sense of Marx's "humanism" that made him so appealing to a
peculiar sort of humanist.
Journal of Libertarian Studies
cies is still scattered among many different particular individuals
and therefore divided against itself.
Marx's life-long diatribe against the division of labour and the
institutions of family and property in which it is realised is further
testimony to his gnosticism. In the final stage of communism, Man
will have complete control of all the social and natural conditions of
his existence. He will be the author of Man and of Nature as
well-he will become the self-sufficient, self-creating God that it
was his destiny to be, conscious of his omnipotence, liberated from
anyone and anything that might oppose him.
The gnostic has no use whatsoever for an ethic of genuine love
and justice. For him, love can only be self-love.24 Natural law is not
something to be cherished and respected. On the contrary, it is the
bête noire of gnosticism, because natural law stands precisely for
that condition of separation and alienation from the divine in which
mankind is nothing but a seething mass of particular indivi-duals.
Particular men and women are of no account except to the extent
that they are swept along in the process of Man's increasing consciousness
of his ultimate destiny.
It is not surprising, therefore, that Marx, in his famous essay
"On the Jewish Question,"25 heaped nothing but scorn on the notion
of natural rights, i.e., the rights of natural particular individuals
that we know through direct empirical and historical observation.
To these natural rights, he opposed Rousseau's "rights of the citizen,"
which belong to a person only insofar as he is a citizen, i.e., a
part of a larger whole, the state. According to Rousseau's social
contract, every man unreservedly unites himself, his rights, and his
possessions with every other, holding back nothing from the community
that is to be their common ego (their moi commun).26 By
24G.K. Chesterton, Orthodoxy (New York: John Lane, 1908), p. 242, gives
an amusing comment on the doctrine of love implied by the notion of the
Universal Ego as defended by the ubiquitous and indefatigable Annie Besant
(atheist, Fabian, and finally head of the Theosophical Society until
her death in 1933).
25See Padover, Karl Marx on Religion, pp. 169-92.
26Jean-Jacques Rousseau, Du Contrat social (Amsterdam: M.M. Rey,
1762), book I, chap. 6.
Frank van Dun - Natural Law, Liberalism, and Christianity
doing so, every man abjures his natural humanity and commits himself
to be a citizen, a communal being- a Gemeinwesen, to use
Marx's term. The true citizen is the state, partaking in the exercise
of its sovereign legislative power, governing not just himself but all
other citizens as well-and doing so without threatening their liberty.
Indeed, in making laws, the true citizen only gives expression
to the general will, which is, by definition, the same for all citizens.
Obviously, then, as Rousseau never tired of insisting, citizenship is
the legal form of the final solution to the problem of interpersonal
relations in politics. Indeed, for the citizen as such, there are no
such relations because the whole of politics is to be internalised
within the single person of the state, which is the common ego of
all citizens. Of course, as long as citizenship remains no more than
a game people play, a mere legal form, the real problem of politics
subsists. To solve it, it is necessary to "change human nature" so
that citizenship becomes the real nature of man.27
From Marx's point of view, the most attractive feature of the
rights of the citizen was that they presented a pure form of communist
unity, even if Rousseau had meant them to apply only to the
political activities of men. Thus, unless Rousseau's rights of the
citizen were extended to cover all aspects of human life, they could
be no more than a halfway house of political emancipation, not the
ultimate destiny of total liberation. Therefore Marx's true communist
Man could be no less than the whole of humanity, a speciesbeing
or Gattungswesen. Marx's communism stands for the complete
obliteration of the particular individual in the all-encompassing
universal individual whose interests and will are one with the interests
and will of the species as a whole. Such obliteration and unity
are necessary to make Man whole again, after having been separated
from and divided against himself for so long in the natural and
historical world.
27 Rousseau, Du Contrat social, book II, chap. 6. As Shaw put it: "The
only fundamental and possible Socialism is the socialisation of the selective
breeding of Man: in other terms, of human evolution. We must eliminate
the Yahoo, or his vote will wreck the commonwealth." See George
Bernard Shaw, "The Revolutionist's Handbook," appendix to Man and
Superman: A Comedy and a Philosophy (Middlesex, England: Penguin,
1977), p. 245.
Journal of Libertarian Studies
The political tendency of gnosticism should by now be clear.
On one level, it may be no more than a promise of individual spiritual
liberation, but in its most potent form it is a religion of collective
unity. This aspect of gnosticism is hidden by its ubiquitous references
to the human person, his ego, and his liberty, which give it an
air of liberal individualism.28 However, the references are to the
universal individual, the species-being, not the partic ular individual
like you or me. In this sense, "the liberation of the individual" is not
the same thing as individual liberty in the classical liberal sense. It is
not the freedom of any individual to dispose of his property without
being subject to coercive or aggressive interference by others and
without subjecting others to such interference. It stands instead for
the liberation of the universal individual from all limitations and constraints
of this world of scarcity, plurality, and diversity.
Again, it was the young Marx who most clearly stated the essence
of the philosophy of liberation (and, by implication, its difference
from the liberal philosophy of individual freedom). In German
Ideology, Part I, he wrote that, under communism, "I can do what
I want . . . while society takes care of general production." Marx
did not specify how society will take care of general production and
who will actually do the work, but it is safe to say that society here
is the Insignificant Other: the organised mass of nameless others
that is to be made subordinate to the universal individual so that he
can enjoy his life without care or worry. The liberated individual,
after all, has full control of the social and natural conditions of his
existence. He is the master, society is his servant; he exists for his
own sake, it exists only for the sake of satisfying his needs and
wants.29 The full socialisation of all others is the precondition of his
28My teacher, the late Dr. Leo Apostel, always wondered why I, as a libertarian,
could not see Marx as a "kindred spirit" as much concerned with
human liberty as any philosopher.
29Marx and Engels wrote that those who entered through the gate of a factory
should renounce all autonomy. As producers and workers, men partake
in "the realm of necessity" where they can have only a heteronomous
Frank van Dun - Natural Law, Liberalism, and Christianity
autonomy. We are very close here to the modern "welfare individualism"
of he who assumes that the world owes him a living,
and that he is entitled to do what he wants at the expense of the
anonymous masses that must be mobilised and controlled for the
sake of his "dignity."
There are echoes of such a liberationist philosophy and its social
implications in John Stuart Mill's distinction between production
and distribution.30 Production is supposed to be a more or less automatic
process governed by fixed laws of nature; distribution is a
free moral activity with no other purpose than to give individuals
access to what is socially produced. The same distinction between
"the autonomous individual" and society as an anonymous force
pervades his On Liberty, although, in that grossly overrated booklet,
Mill typically tries to embrace both sides of the issue. On the
one hand, "the individual is not accountable to society for his actions
insofar as these concern the interests of no person but himself."
On the other, "for such actions as are prejudicial to the interests
of others, the individual is accountable and may be subjected
either to social or to legal punishment if society is of the opinion
that the one or the other is requisite for its protection."31 Apart
from the hypostatisation of "society," note here Mill's acceptance
of the irremedia bly vague, subjective, and relativistic notion of "an
interest" as the criterion for the legal use of violence and coercion.
There is little here to remind us of the natural-law philosophy of
classical liberalism, which finds expression in the precise categories
of law: person, property, contract, liability. Those categories are
rooted in the physical or natural aspects of human beings, but Mill
has no use for them.
If a person's sphere of individual liberty comprises only those
actions not "prejudicial to the interests of others," its extent is not
existence. This remains true in the early stages of communism, before the
advent of total liberation in "the realm of freedom." See Karl Marx and
Friedrich Engels, "On Authority," in The Marx-Engels Reader, 2nd ed.,
ed. Robert C. Tucker (New York: W.W. Norton, 1978), pp. 730-33.
30John Stuart Mill, Principles of Political Economy, 7th ed. (London: J.W.
Parker, 1870), book 4, chap. 6, section 7.
31John Stuart Mill, On Liberty, 4th ed. (London: Longman, Roberts, &
Green, 1869), chap. 5.
Journal of Libertarian Studies
determined by any objective fact about that person in his relation to
others, but by whatever it is that others claim as their interest.
Clearly, an individual's liberty cannot be part of his social existence.
To the extent that he is free, a human being is not part of
society. Conversely, the autonomous individual as such has no social
obligations toward others, yet the coercive power of the state
should hold them to respect his other-worldly autonomy.
The basic message of Mill's On Liberty is liberationist, not liberal
or libertarian. However, it had enormous impact, changing the
style and substance of liberal discourse. It enthroned the antagonistic
dualism of "the individual versus society" which classical liberalism
had always been at pains to deny. According to Mill, society,
that mass of anonymous others, rests on a mere conventional morality
that requires nothing but an "ape-like faculty of imitation,"
whereas the autonomous individual "employs all his faculties."32
The basic symmetry between the "I" and "the Other," which is the
solid foundation of natural law, is replaced by an uncompromising
hierarchy. Whatever Mill's intentions may have been, there can be
little doubt that he helped usher in the "progressive" attitude that
would soon dominate "enlightened opinion." If the confrontation
between Man and apes is really the central issue of political philosophy,
then perhaps the state should control or even replace society
to make the world safe for true "individuality." In that case, social
control and the regimentation of society-not law and justice-
should be the primary concern of politics.33
As the comments on Marx and Mill illustrate, gnosticism is not
merely a phenomenon of the first centuries of the Christian era.
Amid the religious crises and divisions of the later Middle Ages and
32Mill, On Liberty, chap. 3.
33It is a tragedy that, at the time, no one rose to criticise Mill's romantic
individualism from the perspective of classical liberalism. Almost all of his
contemporary critics were social and religious conservatives who could
not have been happier with any other target. If his liberationism was the
essence of liberalism, they could feel free to regard liberalism as an enemy.
Frank van Dun - Natural Law, Liberalism, and Christianity
the Renaissance, gnosticism made a remarkable comeback, especially
among intellectuals-ordinary folk were more easily attracted
to millenarianism, which also resurfaced with a vengeance in those
critical times.34
Archetypal Renaissance intellectual Giovanni Pico della Mirandola,
who considered that "mankind contains all things in itself as
their centre," wrote, "To [man] it is given to have what he wishes,
to be what he wants."35 Moreover, "the intellective soul in all people
is one."36 Jakob B?hme (1575-1624), perhaps the most influential
gnostic of early modern times, announced the themes that
would receive rigorous elaboration in Hegel's dialectic of the
Gnostic influences have been identified in many great systembuilding
philosophies from Spinoza to Hegel and beyond, and in
other attempts to spell out the gnosis systematically in logical and
rational terms. By the beginning of the nineteenth century, gnosticism
had already established itself as "the third component of the
European cultural tradition"38-and its fortunes were rising.
The ambiguity of the Ego, at once the universal force of humanity
and the secret resource of the divine in the individual soul,
proved to be a fruitful asset in the competition for intellectual dominance.
Its manner of dispensing with a personal God-the Great
Magician, as he was sometimes called-made gnosticism appealing
to those who looked with amazement and hopeful expectation at
34Violent outbursts of millenarianism had occurred in the fifteenth century
among the so-called Taborites in Bohemia, and a century later in Münster
in Germany. See Norman Cohn's classical study, The Pursuit of the Millennium:
Revolutionary Millenarians and Mystical Anarchists of the
Middle Ages, rev. ed. (London: Pimlico, 1993).
35E. Garin, ed., Giovanni Pico della Mirandola: De Hominis Dignitate
(Florence, 1942), p. 106.
36B. Kieskowski, ed., Giovanni Pico della Mirandola: Conlusiones Sive
Theses (Geneva, 1973), p. 34.
37See David Walsh, The Mysticism of Innerworldly Fulfillment: A Study of
Jacob B?hme (Gainesville: University Presses of Florida, 1983).
38G. Quispel, Gnosis: De Derde Component van de Europese
Cultuurtraditie (Utrecht: HES, 1988).
Journal of Libertarian Studies
the man-made miracles of scientific progress and the awesome
powers of the secular state. Surely, here was proof that "Man is
the Temple of the Holy Ghost."39 On the other hand, gnostic
themes of liberation from the constraints of nature and society
would resonate in a plethora of romantic and existentialist notions
of individuality and autonomy.
Having survived as an esoteric religion in the most diverse circumstances,
gnosticism was adept at presenting its basic teachings
in the most varied forms. Marx could and did with equal ease
clothe his version of it in the garbs of Hegelian dialectic, French
revolutionary socialism, and British political economy. He might
well have tried to adapt Darwinism to his purposes if he had not
lost the energy to continue his theoretical enterprise.40 Gnosticism
could exist and thrive as a sectarian conspiracy of the cognoscenti,
and, when the time was ripe, as "an open conspiracy."41 Without
the hoopla of church rituals and reliance on canonised dogma, it
could easily provide a religion that would appeal to sophisticated intellectuals.
It had absorbed elements from the evolutionary or progressive
versions of Christian millenarianism that had come into
vogue in the seventeenth century after the earlier disastrous episodes
of revolutionary or apocalyptic millenarianism.42 Above all, it
had skillfully blended the contemporary experience of undeniable
39 Shaw, "Revolutionist's Handbook," p. 217.
40Darwin's Origin of the Species appeared in 1859, and his The Descent of
Man in 1871. By the publication of the first volume of Capital (1867), before
he turned fifty, Marx had apparently stopped working on his "system,"
never producing the answers he had always claimed he had to any
critical question about it. See W.O. Henderson, The Life of Friedrich
Engels (London: Frank Cass, 1976).
41H.G. Wells coined the phrase in The Open Conspiracy: Blueprints for a
World Revolution (London: V. Gollancz, 1928). Wells was a prominent
member of the Fabian Society and a Labour Party M.P. as well as the author
of many popular books, among them the ultimate gnostic utopian
novel Men like Gods (New York: Macmillan, 1923).
42Daniel Whitby's evolutionary interpretation, Paraphrases and Comments
on the New Testament, appeared in 1703. On Whitby's work, see,
e.g., Augustus Hopkins Strong, Systematic Theology, 7th ed. (Philadelphia:
A.C. Armstrong & Son, 1902), p. 1014.
Frank van Dun - Natural Law, Liberalism, and Christianity
material progress with its own vision of the inevitable and now imminent
end of the natural order and the particular individuals that
constitute it.
In the late nineteenth century, religious views fundamentally
opposed to the notion of natural law came to dominate the intellectual
scene. In the United States, millenarianism, with its stress on
voluntary service, may have been the dominant force.43 In Europe,
gnosticism, with its cruel or at best condescending attitude toward
others, became for many intellectuals an almost self-evident religion.
It was supported by various esoteric currents of thought-
theo-sophy, anthroposophy-and what Sir Karl Popper would call
pseudo-sciences44-psychoanalysis and, of course, Marxism. It
was also, perhaps less self-consciously, supported by that curious
mixture of hard determinism and ethical relativism that was then
about to become the ruling paradigm of a scientific and rational outlook
for many intellectuals. By the dawn of the twentieth century,
gnosticism had become the main ingredient of the secular religion
of the European version of the Progressive Era. Within the space
of a few decades after Nietzsche's announcement of God's death,
gnosticism would claim to be the universal religion of Man and the
definitive form of scientific evolutionism.45 Among Western intel-
43See, e.g., Hans F.M. Crombag and Frank van Dun, De Utopische Verleiding
(Amsterdam: Contact, 1997); Paul T. Philips, A Kingdom on Earth:
Anglo-American Social Christianity 1880-1940 (University Park: Pennsylvania
State University Press, 1996); E.L. Tuveson, Redeemer Nation:
The Idea of America's Millennial Role (Chicago: University of Chicago
Press, 1968); and G.M. Marsden, Fundamentalism and American Culture
(Oxford: Oxford Universty Press, 1980). Utopian socialist Edward Bellamy,
one of the most successful and popular critics of the "American system,"
attributed the coming of the next revolution of American society-in fact,
the restoration of God's kingdom on earth-to another Great Awakening.
He did so in his Equality (New York: D. Appleton and Company, 1897),
the less successful sequel to his immensely popular Looking Backward,
2000-1887 (New York: Houghton, Mifflin, 1887).
44Karl Popper, Conjectures and Refutations, 4th ed. (London: Routledge
& Kegan Paul, 1972), pp. 37-39.
45Most notably in Gnosis als Weltreligion (Zürich: Ortigo Verlag, 1951) by
Gilles Quispel, the doyen of students of gnosticism; and in Pierre Teilhard
de Chardin's Le Phénomène Humain (Paris: Editions Seuil, 1957). Teilhard's
work was praised as "an act of spiritual liberation" and "a vision of
Journal of Libertarian Studies
lectuals, "the logic of the world in popular form" would never be
the same.
Instead of the symmetry of "I" and the "Other" of the natural
order, the moral ontology of gnosticism postulates a fundamental
asymmetry. The individual is either denigrated as an insignificant
other, a nameless part of the grand whole of society, or exalted as
the fully autonomous universal ego for whose sake everything else
is supposed to exist. Taken together, such mutually inconsistent
views offer a golden opportunity for the demagogic use of moral
language. That opportunity was not lost either, a fact that the history
of the last century amply illustrates.
Moreover, the gnostic asymmetry decisively affected the attitude
of intellectuals in their studies of man and society. Assuming
that they stand in the same relation to their objects of investigation
as natural scientists to their gases and molecules, they create the
gap between themselves as autonomous persons and the anonymous
insignificant others who are merely social matter, without any
real personal being, destiny, or purpose. That gap is the precondition
for their social science and technology. It allows them to study
others by means of statistics and mechanistic models, and to manipulate
them by the careful administration of incentives. In this
way, intellectuals and social scientists can maintain their comforting
belief that the norms and values that constitute their own community
of inquiry, argumentation, and criticism have no application in
the world of others. Because the latter are not on their level of being,
relations with them cannot be personal; with them, no genuine
dialogue is possible. Here is perhaps the fundamental reason why
modern intellectuals and social scientists are all too willing to concede
that they should respect one another as free and equal persons
without having any recourse to violence, theft, or fraud, while
simultaneously refusing to accept that other people's natural rights
are equally respectable. The dialectical validation of the
respectability of the natural rights of others-which can be
achieved only in a real face-to-face discussion-makes no sense to
the modern intellectual because, however much he may argue
unity [that] meets a spiritual need of our time" by Arnold Toynbee, as
quoted in N.M. Wildiers's introduction to Het verschijnsel mens
(Utrecht/Antwerp: Het Spectrum, 1960), D. de Lange's Dutch translation
of Teilhard's controversial work.
Frank van Dun - Natural Law, Liberalism, and Christianity
intellectual because, however much he may argue about them, he
never argues with them.46
Toward the end of the nineteenth century, liberalism was on
the defensive, and, indeed, on its way to defeat in the ideological
arena. Complacency and intellectual laziness on the part of liberal
thinkers certainly played a role in this process, as did an unfortunate
conformist disposition to try to latch on to any intellectual fad
that caught the public's eye. Liberals had a tendency to identify
themselves with the status quo of bourgeois society even while the
status quo became increasingly characterised in terms of the political
doctrines of democratic sovereignty, republicanism, and "political
rights" of the citizen in the nation-state.
The French Declaration of the Rights of Man and Citizen of
1789 had still insisted that the state is only a means for the better
protection of the natural rights of human beings.47 The citizen was
no more than a "legal person," a means designed to that end.
However, a century later, Rousseau's republicanism, with its collectivist
notion of popular sovereignty and its identification of the
state and the citizen, carried the day. In the republican conception,
the rights of the citizen were all; the natural rights of men were
nothing. However, the citizen as such is no more than an empty legal
form. To give it some substance, men and women had to be
educated, trained, indoctrinated, and programmed to unconditional
loyalty to the state, its laws, and its "general will." According to the
46On the dialectical validation of natural rights, see note 10 above. The
modern attitude represents a radical break with the tradition of classical
humanism that held that speech and argumentation are the proper form of
human interaction, not just among the intellectual elite but among all men
and women. See, e.g., Cicero, De Ira, book 2, chap. 31.
47Art. 2: "Le but de toute association politique est la conservation des
droits naturels et imprescriptibles de l'homme. Ces droits sont la liberté, la
propriété, la s?reté et la résistance à l'oppression." ("The end of every p olitical
association is to preserve the natural and life-long rights of man.
These rights are freedom, property, security against arbitrary arrest, and
resistance to oppression.")
Journal of Libertarian Studies
republican philosophy, only the state could and should provide that
kind of education.
But what sort of liberalism was it that shifted the state's role
from one of protecting the natural order of conviviality to one of
shaping men's minds and controlling their political views? By the
end of the century, the rhetoric of natural rights had all but disappeared,
and few liberals were protesting. In its most visible political
manifestation, as the ideology of a party seeking power, liberalism
had surrendered to republicanism. Today, the rhetoric of political
liberalism is much more at ease with "the citizen" than with "the
natural person."48
Utilitarianism, historicism, Darwinism, and other fashionable
currents of thought also made inroads into the natural-law philosophy
of classical liberalism. In the utilitarian scheme, the natural
rights of individual persons were no longer regarded as hard constraints
on political action. Rather than law and justice, which pertain
to what people do to one another, statistics became the touchstone
of policy-but statistics rely on gathering data about people
and then aggregating and organising them into databases that obliterate
the people whose data they are. The utilitarian's concern is
not with persons but with disembodied "needs and wants" that he
can arbitrarily describe as "social needs and social wants." In the
same way, opinions and expressions of preference can be collected,
separated from the people who have them, and transformed
into "public opinion" and "social choices."
Historicism and social-Darwinism provided a spurious philosophical
and scientific respectability for the idea of a law of progressive
evolution according to which conditions are bound to get better
and more perfect. It was easy to link this conception of a superhuman
involuntary process of progressive evolution to a new conception
of rights according to which every human being is as much entitled
to the fruits of that progress as any other. Marx's vision-a
world in which "I can do what I want . . . while society takes care
of general production"-was fast becoming a commonplace. Soon,
the natural rights of human beings were to be replaced by that
ever-multiply-ing mass of "human rights"-rights to everything de-
48E.g., the various "Citizen Manifestoes" produced by Guy Verhofstadt,
leader of the Flemish "liberal party" and now prime minister of Belgium. He
changed the name of that party from "Party for Liberty and Progress" to
"Flemish Liberals and Democrats."
Frank van Dun - Natural Law, Liberalism, and Christianity
sired and assumed to be available somewhere.
On another front, the increasing popularity of various versions
of psychological and sociological determinism began to erode the
notion of the human being as a moral agent. The idea that the human
being was nothing more than a medium through which impersonal
forces exert themselves took its place. Psychologists and
psychiatrists were beginning to sing the praises of a "world beyond
good and evil" in which men would have "liberated themselves
from these moral chains."49 Was it not the knowledge of good and
evil that stood between us and paradise-or between us and
Nietzsche's übermensch?
Epistemological relativism and positivism sealed the fate of the
philosophy of natural law. In the final analysis, the progressive mind
had no use for such notions as "objective truth" and "reality,"
which it was wont to regard as the hallmarks of unsophisticated or
even reactionary thinking. If there is no reality out there, then there
are no real distinctions-all distinctions are artificial, conventional.
Consequently, there can be no natural order or law; all law is artificial,
conventional. Hence, the general formula of positivism: things
are what they are said to be-and the formula of legal positivism in
particular: the law is what is said to be law. However, if in theory
every opinion is as good as any other, in practice the right to define
can only be a prerogative of the ruling opinion, the opinion of the
powerful.50 Only their opinion is "objective"; every other opinion is
merely "subjective"-it might be tolerated, but is not to be taken
The idea that theories and social organisations are human con-
49Most famously B.F. Skinner, Beyond Freedom and Dignity (New York:
Alfred A. Knopf, 1971); but see also G.B. Chisholm, "The Reestablishment
of Peacetime Society," Psychiatry 9 (1946), from which the
quotation is taken. Chisholm was later to head the World Health Organisation.
50In theoretical jurisprudence, this position is particularly associated with
Hans Kelsen's Pure Theory of Law-see his Reine Rechtslehre (Wien:
Mohr, 1960)-but it survived in a modified and milder form in H.L.A.
Hart's The Concept of Law (Oxford: Oxford University Press, 1962), and
even in the writings of Ronald Dworkin. In sociology, it is associated with
the famous Thomas Theorem, which holds that "a situation defined as real
is real in its consequences."
Journal of Libertarian Studies
structs that should therefore be subjected to stringent criticism gave
way to the idea that human individuals are theoretical or social constructs
without any reality of their own. How can the ruling theories
and powerful social organisations be put to the test of reality if
they define what is real and what is not? With progressive intelle ctuals
in charge of producing the ruling opinion in schools, the media,
and public administrations, who would be bold enough to criticise it?
Eventually, philosophy-once the art of dialogue in the critical pursuit
of truth-became mere "conversation,"51 a trivial pursuit of
nothing in particular.
The denial of natural law is not without its consequences. If the
order of the human world is not to be determined by the natural distinctions
in a world of separate persons of the same kind, it must be
determined by the artificial distinctions produced by partisan ideologies.
If order is not to be determined by freedom and equality, it
must be determined by servitude or inequality. If the proper relationship
of the "I" to the "Other" is not the symmetrical, reciprocal,
and horizontal relationship of ius or covenant, it must be the asymmetrical,
hegemonic, and vertical relationship of command and
obedience. If interpersonal relationships are not to be based on respect
for others, that is to say, on justice, then they will be based on
disrespect and injustice.
Unfortunately, over the past century, only a few liberals rose to
meet the frontal assault on the moral ontology that was once the
foundation of their outlook. Classical liberalism was gradually displaced
by various subjectivist and positivist notions that linked liberty
to, among other things, an opportunity to do what one wants, a
commitment to democracy and constitutional government, a preference
for the market, or even some progressive policy mix favouring
economic growth and personal autonomy from social relations. As
a result, today, liberal thought is mainly reduced to fighting its intellectual
battles with an arsenal of weapons devised by and for its
51See, e.g., American post-modernist and would-be post-philosopher Richard
Rorty, Philosophy and the Mirror of Nature (Princeton, N.J.: Princeton
University Press, 1979).
Frank van Dun - Natural Law, Liberalism, and Christianity
With the exception of some neo-Aristotelians,52 most liberal
writers on ethics appear to have abandoned the agent-relative objectivism,
i.e., the reality of the person, of the natural-law philosophy
for a situation-relative subjectivism that makes the satisfaction
of desire into the one moral absolute. Writers on politics and law
are so fixated on proving their liberalism by their support for "human
rights" that they often fail to see that human rights, unlike
natural rights, are really claims to the service of others-claims
that must be weighed and rationed by a powerful government capable
of mobilising the services and resources of all. "Taking rights
seriously" all too often appears as an excuse for not taking persons
seriously. Whereas natural rights touch politics at the constitutional
level, defining its place and role in the natural order of convivia lity,
human rights operate at the level of policy-making. They provide at
best a basis for critic ising the efficiency and style of the government,
but they do not constrain the scope of its coercive and managerial
actions. In fact, every human right implies a duty of the government
to interfere on its behalf. In that sense, the right to government
intervention is the most fundamental, and, in any case, the
most stable right in the ever-expanding catalogue of human rights.
Most liberal economists, with the exception of certain adherents
of the Austrian school, seem quite happy engaging in the game
of ingenious model-building in which human relations are reduced
to impersonal mechanisms for the satisfaction of disembodied
wants and needs. The mythical and perennially shifting concept of
efficiency is everywhere; justice-once the defining characteristic
of economic (as opposed to criminal or political) action-is no-
52E.g., Tibor Machan, Human Rights and Human Liberties (Chicago: Nelson
Hall, 1975); Tibor Machan, Private Rights and Public Illusions (New
Brunswick, N.J.: Transaction Publishers, 1995); D.B. Rasmussen and D.J.
Den Uyl, Liberty and Nature: An Aristotelian Defense of Liberal Order
(LaSalle, Ill.: Open Court, 1991); D.B. Rasmussen and D.J. Den Uyl, Liberalism
Defended: The Challenge of Post-Modernity (Cheltenham, U.K.:
Edward Elgar, 1997); Eric Mack, "Moral Individualism and Libertarian
Theory," in Liberty for the Twenty-First Century, ed. Tibor Machan and
D.B. Rasmussen (London: Rowan and Littlefield, 1995); and Van Dun, Het
fundamenteel rechtsbeginsel.
Journal of Libertarian Studies
where to be found.53
The lack of a clear conception of natural law is most evident in
the present fascination with "efficiency" and "efficient organisation"
as end-all arguments that seem to prevail in the rhetoric of
economic liberalism and free-market economics. It takes a supine
view of such basic institutions of modern capitalism as fiat money,
fractional reserve banking, and the large corporation-even if the
suspicion re-mains that such institutions are the privileged creatures
of political legislation, not of law.54 They have, indeed, turned out to
be effective and flexible tools for socialising capital and the work-
53It seems that the primary meaning of the word "justice" is now that of
"distributive justice," which lacks any definite meaning because the problem
of distribution is one thing in one organisation and another thing in
another. Social justice, which Roscoe Pound defined as "the equal satisfaction
of everybody's wants," is even less concerned with natural persons.
See Pound, "The Need for a Sociological Jurisprudence," The Green
Bag (1907).
54The late Murray Rothbard and other Austrian-school economists associated
with the Ludwig von Mises Institute (among them Hans-Hermann
Hoppe, Joseph Salerno, Guido Hülsmann, Walter Block, and Jesús Huerta
de Soto) have been among the most persistent critics of fiat money and
fractional-reserve banking from the natural law point of view. However,
most liberal writers exhibit rather mechanical "free-market reflexes." They
strongly favour "deregulating" banks without giving much thought to the
privileges that banks enjoy under the basic banking laws of Western society
-laws which they do not see as constituting regulatory interventions
in the free market. With respect to large, publicly traded corporations,
the common liberal opinion seems to be the one propagated by
Robert Hessen, In De-fense of the Corporation (Stanford, Calif.: Hoover
Institution, 1979), and by Armen Alchian, Henry Manne, and Brian Barry,
Business Ethics (London: Macmillan, 1998): large corporations are merely
the outcome of efficiency-seeking behavior in a regime of freedom of contract,
and are, in any case, effectively disciplined by "the market," especially
"the market for corporate control"-hence, presumably, corporate
power is nothing liberals should worry about. Leaving aside the ahis
torical nature of the argument and its complete disregard for the legal,
political, and sociological factors of corporate development (on this, see,
e.g., W.G. Roy, Socializing Capital [Princeton, N.J.: Princeton University
Press, 1997]), it is far from clear that large corporations can be seen as
conforming to the requirements of natural law.
Frank van Dun - Natural Law, Liberalism, and Christianity
force, providing political and corporate policy-making elites with
firm handles to "manage society" by "piecemeal engineering."55
It is perhaps no wonder that, after the Soviet Union's collapse,
socialists in the West and elsewhere have been able to embrace
the market without apparently giving up their commitment to socialist
values. This should give us reason to reconsider the comforting
pro-position (to which both Mises and Hayek,56 among others, subscribed)
that the debate between socialists and liberals is not about
ends, but only means. That proposition abstracts entirely from the
moral onto-logy of the partic ipants to the debate, and may well lead
one to con-clude that pre-1990 socialists were merely unenlightened
liberals. Perhaps they were, but then again, the liberalism of
the twentieth century may have been little more than economically
enlightened socialism, as much opposed to the classical liberals'
moral ontology of natural law as to socialism.
From the classical liberal point of view, the institutionalisation
of human life in modern capitalist societies57 for the greater glory
of the sovereign consumer is too reminiscent of the Marxian vision
of communist society to give much comfort. It is also far too
remini-scent of the related political myth of citizenship. The sovereign
voter is supposed to want the high and complex levels of bureaucracy,
regulation, and taxation he is getting. Likewise, the sovereign
con-sumer is supposed to put his stamp of approval on whatever
the big players in the financial and corporate economy are doing.
Both are ideological constructs that provide a spurious
justification of existing institutions. The one conveys the message
that, in the state, citi-zens are only taxing and regulating themselves
55Karl Popper, The Open Society and its Enemies, 5th ed. (London: Routledge
& Kegan Paul, 1974), vol. 1, p. 158.
56E.g., Hayek's statement in "Socialism and Science," in his New Studies
in Philosophy, Politics, Economics, and the History of Ideas (Chicago:
University of Chicago Press, 1978), p. 296: '[M]y concrete differences with
socialist fellow-economists on particular issues of social policy turn inevitably,
not on differences of value, but on differences as to the effects particular
measures will have."
57See, e.g., Butler D. Shaffer's cri de c?ur in his Calculated Chaos: Institutional
Threats to Peace and Human Survival (San Francisco: Alchemy
Books, 1985).
Journal of Libertarian Studies
by expressing them-selves politically. The other conveys the similar
message that, in the marketplace, people are only organising their
own lives by expressing their consumption preferences. Of course,
what people do to themselves cannot be unjust. However, the political
institutions and some of the most important economic institutions
in modern society are convenient means to obscure what
people do to one anoth-er-to externalise costs and exploit the
commons created by these institutions.
Does classical liberalism have a future to match its past? With
"the logic of the world in popular form" in the shape it is in today,
classical liberal arguments are not likely to be very effective-if
they are understood at all. Nevertheless, in their daily lives and private
discussions, people appear to remain generally committed to
the common-sense moral ontology of natural law. If, and as long
as, that is true, there is a basis from which to attack the high moral
and theoretical grounds upon which public and academic speech
have erected so many illiberal institutions of mobilisation, control,
and manipulation. However, without the support of a popular religion
of law and justice, classical liberals will not find it easy to
recapture the terrain lost in the past century. And it will be to no
avail if they do, if they themselves neglect the moral ontology of the
natural order of free and equal persons.
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