WEBVTT NOTE Rothbard and the Natural Law Tradition in the Works of Grotius, Carmichael, Pufendorf, and Hutcheson 1 00:00:00.000 --> 00:00:05.800 First off, I would like to thank the Mises Institute for the opportunity to address this important conference. 2 00:00:05.800 --> 00:00:09.800 This is actually my seventh conference speaking to all of you. 3 00:00:09.800 --> 00:00:16.800 Since the publication of Murray Rothbard's economic thought before Adam Smith nearly 20 years ago, 4 00:00:16.800 --> 00:00:21.200 numerous works in the natural law tradition have been translated or reissued. 5 00:00:21.200 --> 00:00:27.800 In particular, Liberty Fund and the Mises Institute must be commended for their tireless pursuit 6 00:00:27.800 --> 00:00:35.800 and publishing many important out-of-print pre-classical works for a new generation of scholars and lay readers. 7 00:00:35.800 --> 00:00:40.800 As Rothbard wrote in the introduction to his path-breaking work, 8 00:00:40.800 --> 00:00:46.800 quote, if knowledge buried in paradigms, lost, can disappear and be forgotten over time, 9 00:00:46.800 --> 00:00:51.800 then studying older economists in schools of thought need not be done merely for antiquarian purposes 10 00:00:51.800 --> 00:00:54.800 or to examine how intellectual life proceeded in the past. 11 00:00:54.800 --> 00:00:59.560 Last. Earlier economists can be studied for their important contributions to forgotten 12 00:00:59.560 --> 00:01:04.160 and therefore new knowledge today. Valuable truths can be learned about the content of 13 00:01:04.160 --> 00:01:09.920 economics not only from the latest journals but from the texts of long deceased economic 14 00:01:09.920 --> 00:01:15.400 thinkers. Although Grotius, Puffendorf, Carmichael and Hutchison may be considered quote unquote 15 00:01:15.400 --> 00:01:19.840 long deceased economic thinkers by many in the field of economic history and thought, 16 00:01:19.840 --> 00:01:24.440 their works nevertheless provide a valuable link to the late scholastic tradition of natural 17 00:01:24.440 --> 00:01:34.280 and Natural Law. Up on the screen is just a very simple sort of diagram of the derivation 18 00:01:34.280 --> 00:01:42.720 of natural law from early times down to the period of the Enlightenment. 19 00:01:42.720 --> 00:01:48.120 The doctrine of natural law is as old as philosophy itself, and this tradition essentially began 20 00:01:48.120 --> 00:01:53.680 with the Greeks. According to Heinrich Raman, quote, the idea of a natural law can emerge 21 00:01:53.680 --> 00:01:59.680 can emerge only when men come to perceive that not all law is unalterable and unchanging divine law. 22 00:01:59.680 --> 00:02:11.680 It can emerge only when critical reason looking back over history notes the profound changes that have occurred in the realm of law and mores 23 00:02:11.680 --> 00:02:18.680 and becomes aware of the diversity of the legal and moral institutions of its own people in the course of its history. 24 00:02:18.680 --> 00:02:23.240 Additionally, according to many scholars, the natural law tradition has at least three 25 00:02:23.240 --> 00:02:28.760 distinct features. First, all natural law theories regard morality as a body of specific 26 00:02:28.760 --> 00:02:35.640 precepts, both divine and human. Second, these theories use the assumption of juridical equality 27 00:02:35.640 --> 00:02:40.960 as a fundamental assumption, that is, everyone appears equal before the law. Finally, there's 28 00:02:40.960 --> 00:02:44.720 a certain tension expressed between natural law, that is, the natural rights that emanate 29 00:02:44.720 --> 00:02:50.780 out of the natural law, and positive laws enacted by individuals of a certain age. 30 00:02:50.780 --> 00:02:54.900 This paper, therefore, is a brief attempt to further explore and extend the conversation 31 00:02:54.900 --> 00:02:59.320 begun in Rothbard's economic thought before Adam Smith of the natural law tradition of 32 00:02:59.320 --> 00:03:05.000 the late scholastics to the theories and selected works of these four early modern natural law 33 00:03:05.000 --> 00:03:06.000 thinkers. 34 00:03:06.000 --> 00:03:07.000 First, Hugo Grotius. 35 00:03:07.000 --> 00:03:13.080 According to Rothbard, the Protestant scholastic Hugo Grotius, quote, deeply influenced by 36 00:03:13.080 --> 00:03:18.040 by the late Spanish scholastics developed a natural law theory which he boldly declared 37 00:03:18.040 --> 00:03:23.840 was truly independent of the question of whether God had created them or him. 38 00:03:23.840 --> 00:03:30.560 He was a well respected humanist scholar of his time and yet he was caught up in the tragedy 39 00:03:30.560 --> 00:03:37.760 of the 30 years war and not unlike Erasmus a century earlier was ever hopeful of a cessation 40 00:03:37.760 --> 00:03:42.000 of hostilities between Protestant and Catholic nation states. 41 00:03:42.000 --> 00:03:47.440 Notwithstanding his many other numerous commentaries and studies, his tract, the Latin title, 42 00:03:47.440 --> 00:03:55.020 Mare Librum, or the Free Sea, published in 1609, and Deiure Belli et Pacis, or the Rights 43 00:03:55.020 --> 00:04:00.620 of War and Peace, published in 1625, considers the application of traditional natural law 44 00:04:00.620 --> 00:04:05.880 principles in a new way without a total abandonment of the scholastic framework. 45 00:04:05.880 --> 00:04:10.540 The publication of the Rights of War and Peace, although not profitable and originally published 46 00:04:10.540 --> 00:04:16.100 in Latin, provided him with a worldwide reputation as a brilliant jurist. 47 00:04:16.100 --> 00:04:19.540 Grotius certainly followed in the footsteps of the late scholastics. 48 00:04:19.540 --> 00:04:24.020 As Raman reminds his readers, he was, quote, still closely connected with the teachers 49 00:04:24.020 --> 00:04:25.620 of the preceding centuries. 50 00:04:25.620 --> 00:04:30.700 He stands out more through the first formal inclusion of natural law and positive law 51 00:04:30.700 --> 00:04:36.860 in international law than through any intellectual contribution of his own, end quote. 52 00:04:36.860 --> 00:04:42.100 In a real sense, Grotius' thought and works were a bridge over which Pufendorf, Carmichael, 53 00:04:42.100 --> 00:04:47.260 Hutchison and others would refashion natural law and natural rights for a new age. Although 54 00:04:47.260 --> 00:04:53.260 caught in a transitional age and still linked by many ties to the preceding age, he yet 55 00:04:53.260 --> 00:04:58.780 served to transmit to the natural law theory of the modern period its distinguishing marks, 56 00:04:58.780 --> 00:05:06.580 rationalism, sociality or social relations, and particular political aims. In a minor 57 00:05:06.580 --> 00:05:12.580 In a work taken from on the law of prize and booty titled The Free Sea, Grotius laid the 58 00:05:12.580 --> 00:05:18.100 groundwork for his multi-volume magnus opus, The Rights of War and Peace. Grotius was retained 59 00:05:18.100 --> 00:05:22.700 by the Dutch East India Company as counsel in a dispute with the Portuguese. A Dutch 60 00:05:22.700 --> 00:05:29.180 admiral had captured a Portuguese ship called the Santa Cantarina. It was laden with cargo. 61 00:05:29.180 --> 00:05:34.040 Although the Portuguese claimed a certain right of the waterway, various factions within 62 00:05:34.040 --> 00:05:39.040 John Holland believed it was unlawful for a private company to seize property on the high seas 63 00:05:39.040 --> 00:05:44.040 and others believed any kind of warfare to be simply against the will of God. 64 00:05:44.040 --> 00:05:51.040 Grotius, however, skillfully applied his understanding of natural law and rights to this particular situation. 65 00:05:51.040 --> 00:05:56.040 In effect, he defended the Dutch seizure of the ship on the basis of two primary laws of nature, 66 00:05:56.040 --> 00:05:59.040 self-defense and self-preservation. 67 00:05:59.040 --> 00:06:06.540 The traditional laws, inoffensiveness and abstinence, set limits on these primary laws. 68 00:06:06.540 --> 00:06:13.540 Grotius distilled the Portuguese exclusive claim of passage to the East Indias into three distinct rights. 69 00:06:13.540 --> 00:06:17.540 Possession, navigation, and trade. 70 00:06:17.540 --> 00:06:19.040 First, possession. 71 00:06:19.040 --> 00:06:23.540 The Portuguese could not claim right of possession by virtue of first discovery 72 00:06:23.540 --> 00:06:31.220 Because the lands of the East Indias were not, in a sense, terra nullius, or not unowned, 73 00:06:31.220 --> 00:06:34.580 but were in the possession of their native rulers. 74 00:06:34.580 --> 00:06:39.380 Since no nation state could claim exclusive possession of a fluid and ever-changing sea, 75 00:06:39.380 --> 00:06:44.260 says Grotius, quote, the sea, therefore, is in the number of things which are not in merchandise 76 00:06:44.260 --> 00:06:49.180 and trading, and that is to say, cannot remain proper, end quote. 77 00:06:49.180 --> 00:06:50.980 Second, navigation. 78 00:06:50.980 --> 00:06:56.300 This fundamental distinction between the characteristics of the sea and the land allowing the navigation 79 00:06:56.300 --> 00:07:01.580 to be open to all would remain central to later conceptions of property within the natural 80 00:07:01.580 --> 00:07:04.740 law tradition up to and beyond John Locke. 81 00:07:04.740 --> 00:07:07.100 Finally, trade. 82 00:07:07.100 --> 00:07:11.700 Not unlike free navigation, Grotius saw free trade as, quote, agreeable to the primary 83 00:07:11.700 --> 00:07:17.540 law of nature which hath a natural and perpetual cause and therefore cannot be taken away and, 84 00:07:17.540 --> 00:07:24.580 if it might, yet could it not, but by consent of all nations, so far of is it that any nation 85 00:07:24.580 --> 00:07:29.580 by any means may justly hinder two nations that are willing to trade between themselves, 86 00:07:29.580 --> 00:07:30.580 end quote. 87 00:07:30.580 --> 00:07:35.320 Grotius' argument for a free sea derived not only from an appeal to natural law but 88 00:07:35.320 --> 00:07:37.940 also from custom and consent. 89 00:07:37.940 --> 00:07:41.900 He argued additionally that the right to trade or navigate was legitimate not by virtue of 90 00:07:41.900 --> 00:07:44.260 of being a norm of objective justice, 91 00:07:44.260 --> 00:07:48.220 but because it was a moral faculty over a thing. 92 00:07:48.220 --> 00:07:51.060 This classic controversy of economic and political theory 93 00:07:51.060 --> 00:07:54.560 involving the dispute between the mare librum 94 00:07:54.560 --> 00:07:57.920 and the mare clausum, the free sea versus the closed sea, 95 00:07:57.920 --> 00:08:01.560 raged throughout the 17th century and really even beyond. 96 00:08:01.560 --> 00:08:03.720 In his Right of War and Peace, 97 00:08:04.620 --> 00:08:08.580 Grotius provides his reader with his famous definition 98 00:08:08.580 --> 00:08:10.100 of natural law. 99 00:08:10.100 --> 00:08:13.640 Natural right is the rule and dictate of right reason, 100 00:08:13.640 --> 00:08:16.440 showing the moral deformity or moral necessity 101 00:08:16.440 --> 00:08:19.640 there is in any act according to its suitableness 102 00:08:19.640 --> 00:08:22.000 or unsuitableness to a reasonable nature 103 00:08:22.000 --> 00:08:25.640 and consequently that such an act is either 104 00:08:25.640 --> 00:08:30.480 forbid or commanded by God, the author of nature, end quote. 105 00:08:30.480 --> 00:08:32.640 In contrast to the late scholastics 106 00:08:32.640 --> 00:08:34.200 who had sought to determine the relationship 107 00:08:34.200 --> 00:08:36.560 between law and morality from the standpoint 108 00:08:36.560 --> 00:08:41.440 of Four Cardinal Virtues with Justice Regulating Social Relations, 109 00:08:41.440 --> 00:08:45.560 Grotius elevates social relations within the virtue of justice 110 00:08:45.560 --> 00:08:50.560 to a disproportionate degree of importance. 111 00:08:50.560 --> 00:08:52.600 Therefore, according to Raman, quote, 112 00:08:52.600 --> 00:08:56.720 law is that which results from the appetitus socialis, 113 00:08:56.720 --> 00:08:58.400 the social appetite. 114 00:08:58.400 --> 00:09:01.080 Grotius believed it possible to derive by strict logic 115 00:09:01.080 --> 00:09:03.280 a suitable system of rational law, 116 00:09:03.280 --> 00:09:06.360 having force that would be great enough to bind the will. 117 00:09:06.360 --> 00:09:11.640 A body of law with detailed prescriptions covering debts and property, the family institution 118 00:09:11.640 --> 00:09:15.840 and inheritance, the scholastics on the other hand considered only the general institutions 119 00:09:15.840 --> 00:09:21.140 themselves of marriage, property and contract as belonging to natural law, not the particular 120 00:09:21.140 --> 00:09:26.360 prescriptions about marriage and the family, possessions and the form of private ownership 121 00:09:26.360 --> 00:09:28.320 and the like. 122 00:09:28.320 --> 00:09:33.440 And as Grotius points out in his prologue to the first edition of The Rights of War 123 00:09:33.440 --> 00:09:39.880 and Peace. The great truth is that everything is insecure without law, as Aristotle showed 124 00:09:39.880 --> 00:09:46.440 with his famous example of the brigands, so the community which all human beings or a multiplicity 125 00:09:46.440 --> 00:09:54.000 of nations construct amongst themselves certainly requires laws. According to Rothbard then, 126 00:09:54.000 --> 00:09:58.840 natural laws for him are discoverable by human reason, and the 18th century enlightenment 127 00:09:58.840 --> 00:10:03.840 was essentially the spinning out of the Grotian framework. 128 00:10:04.000 --> 00:10:06.460 Sam is giving me five minutes, so I have to move on. 129 00:10:06.460 --> 00:10:10.080 Unfortunately, I won't be able to talk about Carmichael 130 00:10:10.080 --> 00:10:14.880 or Puffendorf, so I'll move on to Francis Hutchison, 131 00:10:14.880 --> 00:10:17.720 which I think is probably a little more important anyway. 132 00:10:18.600 --> 00:10:22.400 Francis Hutchison, on the death of Carmichael in 1729, 133 00:10:22.400 --> 00:10:24.520 Hutchison assumed the chair of moral philosophy 134 00:10:24.520 --> 00:10:26.300 at the University of Glasgow, 135 00:10:26.300 --> 00:10:28.620 a position he would hold until his death. 136 00:10:28.620 --> 00:10:36.420 Hutchison studied the classics. He certainly was well informed for his day. In fact, Rothbard 137 00:10:36.420 --> 00:10:41.140 says this. He says, his lectures on philosophy, on politics, on law and ethics and political 138 00:10:41.140 --> 00:10:46.100 economy drew students from all over Britain, the most famous of whom, of course, was Adam 139 00:10:46.100 --> 00:10:54.640 Smith, who studied under him from 1737 to 1749. His short introduction to moral philosophy 140 00:10:54.640 --> 00:11:05.640 published and translated into English in 1747 and his system of moral philosophy published posthumously by his son in 1755 contained the bulk of his considerations on natural law. 141 00:11:05.640 --> 00:11:16.640 It was Hutchison who brought to Scottish philosophy a solid belief in natural rights and the beneficence of nature as well as the basic classical liberal worldview. 142 00:11:16.640 --> 00:11:27.640 Not unlike his predecessors in the natural law tradition, most especially Grotius Pufendorf and Carmichael, Hutchison uniquely interprets and expands numerous areas of moral philosophy. 143 00:11:27.640 --> 00:11:36.640 Hutchison, like Shaftesbury and other neo-stoic philosophers, viewed philosophy not as a mere theoretical exercise, but as having a practical function. 144 00:11:36.640 --> 00:11:43.200 function. This practical dimension of Hutchison's scholarly output is found in his short introduction, 145 00:11:43.200 --> 00:11:48.560 viewed by many as the progenitor of the Scottish Enlightenment. His argument for the Aristotelian 146 00:11:48.560 --> 00:11:55.200 good life was based on his belief in the benevolence of God, the harmony of the universe, and man's 147 00:11:55.200 --> 00:12:01.000 sociable dispositions. This work was aimed at a university audience with a twofold purpose, 148 00:12:01.000 --> 00:12:05.480 to put forward an optimistic view of God, human nature and the harmony of the universe, 149 00:12:05.480 --> 00:12:09.760 and to provide students with the knowledge of natural and civil law required by the university 150 00:12:09.760 --> 00:12:11.760 curriculum. 151 00:12:11.760 --> 00:12:15.720 Although a critic of many aspects of Puffendorf's The Whole Duty of Man, which was the standard 152 00:12:15.720 --> 00:12:20.160 text in Protestant universities of the day, Hutchison maintained the basic structure of 153 00:12:20.160 --> 00:12:24.640 the work by modifying its moral emphasis. His short introduction is divided into three 154 00:12:24.640 --> 00:12:31.280 books, The Elements of Ethics, Elements of the Law of Nature, and The Principles of Economics 155 00:12:31.280 --> 00:12:37.520 and Politics. Beginning his treatise with references to Aristotle and Cicero, Hutchison provides 156 00:12:37.520 --> 00:12:43.960 his reader with the role and importance of moral philosophy, and I quote, as all other 157 00:12:43.960 --> 00:12:49.520 arts and sciences have in view some natural good to be obtained as their proper end, moral 158 00:12:49.520 --> 00:12:54.000 philosophy, which is the art of regulating the whole life, must have in view the noblest 159 00:12:54.000 --> 00:12:59.520 end since it undertakes as far as human reason can go to lead us into that course of life 160 00:12:59.520 --> 00:13:07.920 which is most according to the intention of nature and most happy, to which end whatever we can obtain by other arts should be subservient. 161 00:13:07.920 --> 00:13:15.320 Moral philosophy, therefore, must be one of the commanding arts which directs how far the other arts are to be pursued. 162 00:13:15.320 --> 00:13:20.620 In book three, Hutchison identifies the state or civil society as, quote, 163 00:13:20.620 --> 00:13:25.980 a society of freemen united under one government for their common interest, that the common 164 00:13:25.980 --> 00:13:31.060 interest of the whole body is the end of all civil polity is owned by all." 165 00:13:31.060 --> 00:13:36.940 In defense of natural liberty, Hutchison identifies it as, quote, the right of acting as one inclines 166 00:13:36.940 --> 00:13:41.380 within the bounds of the law of nature, nor could we hold any such liberty where there 167 00:13:41.380 --> 00:13:44.700 are no laws to defend it from the force of the stronger. 168 00:13:44.700 --> 00:13:49.660 So we say a people enjoys liberty when each one is allowed to act as he inclines within 169 00:13:49.660 --> 00:13:54.340 in the bounds of civil law and not subjected to the caprice of any other. 170 00:13:54.340 --> 00:14:00.300 We should never look upon laws as aversive of liberty, but that his sole enemy is the 171 00:14:00.300 --> 00:14:05.420 capricious, humorous will or command of men in power. 172 00:14:05.420 --> 00:14:07.380 And yet, according to Rothbard, quote, 173 00:14:07.380 --> 00:14:11.060 Hutcheson's devotion to laissez-faire was limited and guarded, end quote. 174 00:14:11.060 --> 00:14:16.600 In fact, his devotion to natural rights was weakened by being the first to adumbrate the 175 00:14:16.600 --> 00:14:22.520 chimerical and disastrous formula of utilitarianism, the greatest happiness for the greatest number, 176 00:14:22.520 --> 00:14:28.120 possibly after having acquired it or its equivalent from Gershom Carmichael. 177 00:14:28.120 --> 00:14:33.560 Although Grotius, Huffendorf, Carmichael and Hutchison were all defenders of the classical 178 00:14:33.560 --> 00:14:37.920 natural law tradition, a general tendency to downplay the importance of natural law 179 00:14:37.920 --> 00:14:42.000 began to appear around the middle of the 18th century. 180 00:14:42.000 --> 00:14:46.120 According to Rothbard, however, quote, while scholasticism was compatible with an emphasis 181 00:14:46.120 --> 00:14:52.020 on Natural Law and Rights, it was generally discarded and reviled as ignorant superstition 182 00:14:52.020 --> 00:14:58.740 along with revealed religion." This of course led to the unfortunate descent into utilitarianism 183 00:14:58.740 --> 00:15:03.980 from Adam Smith to the present day. For nearly two decades, Rothbard's economic thought 184 00:15:03.980 --> 00:15:09.980 has provided readers with a pivotal reference point and work for further study and reflection. 185 00:15:09.980 --> 00:15:14.260 Economic scholars and others would do well to continue this process of discovery in the 186 00:15:14.260 --> 00:15:18.260 and the History of Economic Thought from an Austrian perspective. Thank you.