Thursday, May 20, 2010

Sensus Communis and Natural Law

As requested by several, here is a copy of the presentation that I delivered in Princeton. Half is a critique of the view that the "Natural Rights" founding of America was as central as is often believed, and is as praiseworthy as most at the conference held; the second half was a recommendation to consider the "Natural Law" critique of "Natural Rights" thinking that does not resort to the very kind of Cartesian/Kantian rationalist abstraction (often stripped bare of sociological and strongly prudential consideration), of the sort that one tends to find in the "New Natural Law" thinking. For that part of the lecture, I rehearsed some of the arguments of Giambattista Vico - a name not often associated with Natural Law thinking.

In sum, I sought to offend all parties in attendance, and based upon the response, that I somewhat succeeded.

“Sensus Communis and Nature’s Law: Why Communities Know Natural Law Better Than Philosophers”

Patrick J. Deneen
Georgetown University

As could be expected, there has been much discussion at this conference about the Founding and its significance. And, as could be expected, there has been spirited debate and even disagreement about the particulars and even the more fundamental nature of that Founding. Yet,- also as expected - there has been no disagreement about what our Founding was or who our Founders were.

So, never being one content to toe the line, let me inject discord into this fair assembly, and allow me base my departure from this unanimity by appeal to “the best book ever written about democracy and the best book ever written about America,” in the inimitable words of Harvey Mansfield and Delba Winthrop, Tocqueville’s Democracy in America. For, Tocqueville discusses the Founding, but of course it has always been something of a scandal that he does not once in his enormous tome mention the Declaration of Independence, and can devote only one chapter to the Constitution itself. As for his discussion of our true Founding – which he states reveals to us our fundamental nature as a nation, as sure as “the man is, so to speak, a whole in the swaddling clothes of his cradle” – he insists therein one can find the “key to almost my whole work.” That key lies in his recognition that the American Founding was rightly to be identified with the Puritan settlement in New England and, in particular, the distinctive combination of the “spirit of liberty” and the “spirit of religion” that it introduces to and that shapes the character of the new nation.

The idea of liberty at the heart of the Puritan tradition is at considerable odds with that of the Lockean Natural Rights tradition. Jeffry Morrison made mention yesterday of Wilson Carey McWilliams’s lifelong study of the “two voices” in American political thought, the one deriving from Lockean sources, and the other, less “official” voice from the Biblical tradition. Yet, those two voices – which Jeffry at least intimated could be made consonant with one another – McWilliams wrote was an “unresolved argument” and was the source of a deeper incoherence of the American political culture. The deepest source of that incoherence was profound disagreement over the definition of liberty, one which – deriving from our Natural Rights tradition – defines liberty to be based most fundamentally in the rights of individuals, and the other – deriving from our Puritan Founding – understands human liberty as fundamentally communal, and insists rather upon the learned capacity of humans to moderate and even sacrifice their own interests for the good of the whole.

There is no better explication of this orientation than that of the first governor of the Massachusetts Bay Colony, John Winthrop, whose speech, “A Model of Christian Charity,” has become a justly famous expression of Puritan social and political views. Aboard the Arbella, Winthrop explicates to his fellow pilgrims the kind of society they should aspire to build upon their arrival in the New World.

Winthrop begins by acknowledging that humans are always placed in positions of inequality. But, rather than lamenting (or celebrating) our respective conditions as individuals, he argues, we need to understand our differences as gifts of God, in particular as manifestations of our insufficiency and partiality, of our mutual reliance, of the fact that we might recognize that we have need of each other. God creates humans differently, he writes, “so that every man might have need of others, and from hence they might be knit more nearly together in the bond of brotherly affection. From hence it appears plainly that no man is made more honorable than another or more wealthy, etc., out of any particular and singular respect to himself, but for the glory of his creator and the common good of the creature, man.”

Our differences are actually signs of our deeper equality, and standing calls to consider the ways that our different gifts are to be employed for the benefit of the community. Neither are the wealthy to feel self-satisfied for their fortune, nor are the poor to harbor resentment and envy; rather, all distinctions are ultimately to be understood as distinct parts of a larger whole, a part of the created order and for God’s glory alone. Every person, however situated, is called to contribute their share to the common weal. While justice is a necessary aspiration, it is insufficient – our primary duty is to emulate the love of Christ, that gratuitous form of charity that is freely given for the benefit of others. Winthrop writes that the people must be governed “under a due form of government” in which “the care of the public must oversway all private respects by which not only conscience but mere civil policy doth bind us; for it is a true rule that particular estates cannot subsist in the ruin of the public.” The entire orientation of Puritan society was to be toward the good of community, a lived experience that was ultimately to reflect and emulate the love of God for the people. Thus, where Locke treats equal rights as a means to differentiation, Winthrop makes difference a means to equality; whereas Natural Rights begins with the idea of the naturally autonomous individual who consents to political order, Puritanism hearkens back to an Aristotelian conception in which one can only truly become an individual by and through the context of human community.

As acknowledged by many people who have spoken at this conference, the inheritors of the Puritan tradition understood that they had at least an “overlapping consensus” with the more secular vanguard on the eve of the Revolution, but we should not confuse a prudential “strange bedfellowship” with full-throated agreement or any sort of easy synthesis. In various representative works at the time, there is clear articulation of a more fundamental disagreement with their Lockean political partners, a recognition that a momentary political alliance could not and ought not to be confused as a common worldview. There is no better expression to be found of this wariness, and bold articulation of the differences between these “two voices,” than in several sermons delivered in 1774 by the Calvinist revolutionary (and eventual Anti-federalist), Nathaniel Niles. Niles acknowledged that he sought to make common cause with anyone supporting separation of the Colonies from Britain, but also used the occasion of especially his first sermon to articulate a fundamental and decisive disagreement with those who were advancing a Natural Rights republic. In that sermon – a shrewd and crafty piece of rhetoric, which included footnotes that even more forcefully and radically stated his disagreements with Lockeans, in case his first listeners missed the point – early in the sermon he stated that “originally, there were no private interests.” Rather, what we regard as our private rights are actually the consequence of community – he writes that our private rights and interests are “distributed among … individuals according as they appear in the eyes of the body politic, to be qualified to use them for the good of the whole.” This follows from Niles explicit rejection of Lockean understanding of property in his first lengthy footnote, in which he argues that our “ownership” of things is really only a temporary loan from God, that humans in fact are given creation to be “managed for the grand company” of angels and God.

According to Niles, humans are given nothing that they can truly call their own, not even their own bodies – all of which is understood to belong ultimately to God, and which humans must offer for the benefit of fellow citizens and the greater glory of God. Thus, it follows – as elucidated in this same footnote – that regimes based upon appeal to private right are illegitimate. So, (in an original form of “equivalency thesis”) he compares the illegitimacy of a single tyrant – such as that of George the Third – to an illegitimate regime based upon contract or consent whose aim is to secure the private interests of individuals. Thus, he writes, “It matters not whether men who build their notions of government on self-interest, call themselves whigs or tories, friends to prerogative, or to the liberties of the people.” Being based on the private interests of either the one or the many, both are illegitimate.

For Winthrop and Niles, the community is an embodied education in proper liberty, the locus where private interest is moderated and even subordinated to the good of the whole. Politics is not simply the negotiation of interests, but the learned capacity for self-government, both of individual and collective. Embedded in this conception of the community as the locus for common weal is a conception of the human good and human flourishing, a particular end or orientation that the well-formed community is obligated to foster and encourage. It is in these arguments that one sees evidence of a more classical conception of human flourishing, the learned capacity for human virtue, namely the exercise of self-rule over passions and interests. It was for this reason that Tocqueville came to see a deeper connection between the babe in the cradle and the grown man that he was witnessing especially in the New-England townships, those places where the “arts of association” were practiced, where “the heart is enlarged,” where civic life constitutes a kind of education in virtue and self-governance.

And, it was for a number of Anti-federalists precisely on these grounds that they opposed in principle the proposed Constitution, fearing that some of its deepest assumptions and ultimate trajectory would undermine just such an inculcation in civic virtue, and replace that ongoing and ceaseless form of civic education instead with an emphasis on private right, avarice, and a weakening, even evisceration of more local civic practices. A particularly articulate defender of community as a school of virtue was Melancton Smith, the great opponent of Alexander Hamilton during the New York Ratification debates. In the midst of more specific arguments about the size of the House of Representatives, Smith offered on several occasions a more comprehensive vision of an alternative understanding to politics than that represented in the Constitution, one that was based firmly in locality, in which an inculcation of virtue was its aim, and in which local knowledge and practice was understood to be a better basis of understanding and familiarity with the Good than that available to distant and abstract experts. The emphasis of Smith’s arguments was that the good human life was the result of a kind of habituation in virtue within local communities.

That is to say, in all of these various iterations and defenses of human community that are consonant with America’s first founding, there is a deeper implicit understanding that only within the context of strong, stable, long-standing, modest, and relatively small and local communities, can a true, intimate and lived experience of the human good be instantiated. While it may seem a stretch to make this suggestion – for this is not the language that is used by any of its defenders – it could be baldly stated that it is only within such communities that the basic precepts of the natural law can be truly instantiated, as a set of practices and kind of civic education in virtue aimed at human flourishing. Indeed, it could be even be argued that the Natural Law derives from the conditions of such a lived existence, not primarily as a set of philosophical precepts, but rather as pre-reflective set of lived experiences instantiated in the life and practices of such properly constituted communities. The philosophers may be able to describe the Natural Law, but its only locus of existence is in such communities.

In making these claims, I have in mind the writings and arguments of a natural law philosopher who is rarely, if ever, mentioned in such gatherings – (indeed, who didn’t make the cut on the forthcoming NEH sponsored website on Natural Law, Natural Rights and the American Constitution) – but who is an invaluable guide in understanding this deeper relationship of the natural law and human community. I refer to the Italian humanist, philosopher, rhetorician, historian, philologist and jurist, Giambattista Vico, whose years are 1668-1744. (not suggesting that Vico inspired the Puritans or Tocqueville, but merely think his thought sheds light on the implied relationship of natural law and its presence in the life of particular communities). Vico explodes the notion that there is a contradiction between the Natural Law and the beliefs and practices of particular communities, but rather – in his remarkable and incomparable book, The New Science, published in its final form in 1744 – argues that the two arise together and at best are mutually reinforcing. Vico argues that the natural law is instantiated and guides human behavior in the lived experience of human beings within human communities. Responding to the philosophical and methodological individualism of the likes of Descartes and Hobbes – and, in particular, rejecting Hobbes’s stark distinction between “nature” and “culture,” portrayed above all in the State of Nature scenario – Vico instead argued that the natural law arises from within human culture, and that culture is itself is the consequence of human nature.

Vico’s answer to the question of the origins of the natural law is perhaps puzzling and counter-intuitive for moderns, accustomed as we are – in the shadow of Descartes – of separating universal truths from contingent particularity. Descartes, after all, begins his Discourse on Method by rejecting the idea that anything universal can be known from the varied evidence of culture, and instead investigates the question of what can be known by shutting himself within a room and even within his own mind. By contrast, Vico argues that the universal can only be truly known through the particular – indeed, that the natural law itself comes into being in the lives of moral human communities, inasmuch as custom itself is natural to human beings. Life lived under the natural law is manifested, as it were, inductively from human practice within cultures, rather than deductively from philosophical principles through reason and reflection.

Vico identifies three basic features of human nature that are everywhere manifested in the practices of human cultures, therefore at once universal in their presence, but various in their particular practices. Those three features are 1. Fear and worship of the gods; 2. The solemnization of marriage between man and woman; and 3. The burial of the dead. Vico explains that “in no nation, however savage and crude, are any human actions performed with more elaborate ceremonies and more sacred solemnity than the rights of religion, marriage and burial. For, by the axiom that ‘uniform ideas, born among peoples unknown to each other, must have a common ground of truth,” it must have been dictated to all nations that from these three institutions humanity began among them all, and therefore must be most devoutly guarded by them all, so that the world should not again become a bestial wilderness” (¶ 333).

Vico seeks to elucidate that the natural law derives from the natural sociability of human beings, and moreover, is most fundamentally manifested in the settled practices and customs that arise from that natural sociability. The three universal facets of human nature that give rise to various human cultures – the facts of religion, marriage, and burial – are all particularly noteworthy inasmuch as they point to the requirement of their realization in human community, within settled and ongoing sets of relations among particular people, and within which particular practices and customs are developed that nevertheless reflect these universal facets of human nature. All three of these manifestations of our embedded nature, according to Vico, in a sense make us human – deriving simultaneously from our animal nature and our freedom as humans, providing an ongoing set of practices that lead to settled relationships and form the moral basis for sustained human communities in which the fostering of such practices, customs and traditions allow for generational transmission of norms that derive from the natural law itself.

Vico concludes that the natural law is manifested within these universal, yet varied cultural practices that are to be found, above all, in moral human communities where such practices have come into existence as a consequence of human nature itself. Moreover, such practices are not the result of reflection or philosophizing about the natural law, and do not originate or even in the first instance require appeal to a universal standard of right that is understood to be in distinction to the customs and practices of particular communities. Vico notes that communities precede conscious agreement on their principles – that is, they are pre-philosophic – not vice versa (as Hobbes held), and thus, that the natural law is most fundamentally manifested in the life of communities. He writes, “[Thus], the natural law of the gentiles is coeval with the customs of nations, conforming one with another in virtue of a common human sense, without any reflection and without one nation following the example of another.” His reference to “common human sense” is a translation of sensus communis, “the sense of the community” or even “common sense,” the embedded understandings of human communities that are manifested and reinforced in practices and customs, and which – without arising from reflection or philosophy – nevertheless are guided and informed by the natural law inasmuch as their manifestation arises from the nature of humans themselves. Culture is thus the expression of the sensus communis, and its transmission is itself a community-wide education in natural law, not as an abstraction, but in the communal life and even prejudice of place and custom. The natural law is inherent in culture itself, not a contrast or even contradiction to the particularity of culture. Thus, according to Hans-Georg Gadamer, “For Vico …, the sensus communis is the sense of the right and the general good that is to be found in all men, moreover, a sense that is acquired through living in the community and is determined by its structures and aims. This idea sounds related to the natural law...” - although in a way that Gadamer stresses is directed against "theoretical speculations" about that law (22).

Vico’s argument – initially developed in response to the abstract and universalist methodology of Descartes and the anti-cultural anthropological reductionism of Hobbes – also serves as a corrective today to the tendency to abstract considerations of natural law from communities in which they must necessarily be manifested. For instance, in an essay by Joseph Boyle that appeared in a volume edited by Professor Robert George, Boyle acknowledges that there is at least a version of natural law thinking which disassociates considerations of the natural law from its embeddedness in human communities: “For the natural law account of moral life and thinking includes a set of views according to which much of moral thought is not essentially dependent upon the lived values of a moral community” (11). Vico’s argument, by contrast, argues that the natural law is best known and experienced in the life and practices of community itself, and not as an abstract set of principles developed primarily by philosophers or through more narrow forms legal reasoning and application. Those who would support the natural law – in accordance with Vico’s arguments – need necessarily to attend to the health and vitality of settled and decent human communities, emphasizing a moral culture and a broader understanding of law that is inclusive of culture itself.

To return to America: Tocqueville, like Vico, worried about the destruction of local communities due to philosophies that promoted individualism. Tocqueville was profoundly aware of the “two voices” in American political life, that older if threatened voice that echoed from the Puritans and which hearkened back to the older philosophies of Augustine and antiquity, and the more fashionable, newer voice of rights and individualism from the natural rights philosophy. Even while Tocqueville admired the “local freedoms” of Americans, the practical expression of “the arts of association” within those townships whose origins could be traced back to Puritan forbears and which he viewed as “the great schools” of democracy, he worried about the transformation that America’s official philosophy would eventually have upon its character.

Tocqueville was not uncongnizant of the reality of America’s official philosophical doctrine, the more individualistic and self-interested claims of its official Lockeanism. He noted a strange fact about Americans – every action they undertake, even those that are clearly motivated by fellow-feeling and self-sacrifice, tended to be justified in terms of self-interest. He writes almost with a kind of perplexity over this American propensity, writing that “they do not do themselves justice; for one sometimes sees citizens in the United States as elsewhere abandoning themselves to the disinterested and unreflective sparks that are natural to man; but the Americans scarcely avow that they yield to movements of this kind. They would rather do more honor to their philosophy than to themselves.” (502). What Tocqueville identifies is a gap or lacuna between the official language of Americans and their actions. What he saw was the practical legacy of Puritanism – the active engagement of self-governing individuals toward the achievement of the common good in conformity with the Good – but what he heard was philosophical Lockeanism, that stated claim which the philosophy is more honored than the actions. He identified a puzzling disjuncture between word and deed, and worried whether over time word would begin to shape deed, whether our actions would increasingly conform to our claims. In worried tones he wrote, “one must expect that individual interest will become more than ever the principle and unique motive of men’s actions; but it remains to know how each man will understand his individual interest.”

Yesterday, Jim Ceaser suggested that one test of the fitness – even naturalness – of the Natural Rights Republic was its success of the past 200+ years, one that has provided a stable political settlement and widespread prosperity for many Americans. To his at-least half-glass full analysis, let me conclude by adding my own at-least half-empty portion of the glass. By Vico’s estimatation, we are entering into what he predicted was a new barbarism – the “barbarism of reflection” when philosophies of abstraction would lead to the evisceration of culture and the demise of civilization itself. Vico would emphasize the evidence of declining measures of religious observance, of lasting marriages, and even worrisome trends in the burial of the dead (there is the rising phenomenon of “anonymous burial” which are accompanied by no funeral and no grave marker), which Vico doubtless would have concluded suggests that basic constitutive elements of culture are evaporating before our eyes. Vico’s analysis finally suggests the discomfiting notion that America is at least an inhospitable place for community and the lived experience within the natural law, and may even be designed to eviscerate its lived existence, inasmuch as much of its official philosophy was grounded in the abstract natural rights reasoning that can trace its lineage back to Descartes, Hobbes and Locke.

Moreover, Tocqueville’s observation that Americans will be likely over time to conform their actions to their “official philosophy” suggests that it may be too soon to judge the success of this project. It may well be that the apparent success of the American experiment may more fundamentally derive from its first founding – its first voice – an inheritance upon which the “second voice” of the Natural Rights tradition has been parasitic without the capacity to replenish what it has drawn down. Relying on the self-sacrifice of families, religion, communities and citizens, the official philosophy at the same time empties those institutions and roles of their vitality and officially sanctions a view of human anthropology that undermines their legitimacy. Gathering evidence all around us – the destruction of the family, the depletion of communities as the meritocracy siphons off the most talented young people for bit parts on Wall Street, the depravity of our schools, the debasement of our universities, to the emptying of our Churches, the degradation of our public servants, the corruption of our economy, and the destruction of the natural world on which we rely for our lives – all this and more prevents me from sharing Jim’s confidence that we can declare “mission accomplished.”

1 comment:

Jeffery Nicholas said...

A very interesting analysis of natural law and natural rights, one with which I agree in principle. The use of Vico gave me some room to think and I see I must go back and read him sooner rather than later. I'm afraid, though, that Tocqueville was right and that Americans, for the most part, have turned voice to deed. The debate over health care shows this, as do most debates in this country. Thanks for posting your paper.