Pierre Manent: La Loi Naturelle et Les Droits des Hommes. Paris: Press Universitaires de France, 2018.
Originally published in Social Science and Modern Society, Volume 56, Number 3, May/June 2019. Republished with permission.
We are told to respect ‘human rights.’ But why? Where do such rights come from, and why should anyone acknowledge that source as authoritative?
Philosophers once derived human rights from natural law. But, as Pierre Manent observes, natural law “has been radically discredited by modern philosophy and is today the object of unanimous contempt of enlightened opinion,” dismissed as an “archaism” by all but a few Catholic thinkers. If, then, our rights do not and cannot originate in “the laws of Nature and of Nature’s God,” as independence-minded Americans famously proclaimed, does any non-arbitrary criterion of judgment exist?
Evidently not. “Citizens of modern democracies” show themselves eager to reform their own ‘culture’ (usually in the name of equality) while refusing to judge the ‘cultures’ of others, even when bearers of foreign ‘cultures’ arrive in their countries. Both the eagerness to judge and the refusal to judge is judged to derive from human rights, on the grounds of an implied pseudo-syllogism: “All human beings are equal, ergo, all cultures are equal.” As a result (for example) “it is not a rare spectacle to see the same person become indignant at the condition of women in the Muslim regime, and in the same breath condemn all pejorative estimation or criticism of Islam as a human ‘whole’ or form of life.” What begins as an assertion of universal equality ends in unequal treatment, an incoherent assertion of human rights applied to some humans but not to others.
So conceived, the “authority” of human rights simultaneously “excites and hobbles our desire to judge and hobbles our faculty of judgment.” We can only exempt other humans from judgments founded on human rights if the human nature in which those rights inhere has no real nature at all, if human nature is plastic; “the almost limitless diversity of life-forms manifests humanity’s almost limitless ability to self-actualize without rule or criterion“—without law—”whether this rule or criterion derives its strength from human nature or human reason.” Cultural diversity is taken as evidence of exactly this plasticity or no-nature, the “ontological weakness” of any moral criterion grounded in human nature or natural law. According to modern human-rights advocates, “there is no law valid for all men, which they would be free to obey or disobey.” Yet if human rights have no origin in nature, including natural reason, does this not return us to the ‘state of nature’?
Indeed it does—to the sophisticated state of nature called ‘postmodernism.’ Without the laws of Nature and of Nature’s God as the criterion of judgment, “what is truly human can be constructed and deconstructed as we wish, since it lacks a natural basis whose determinative or inspiring force we should recognize.” Thus unmoored, ‘human rights’ become in principle part of “an indefinite social, moral, and political movement.” But unlike the movement of ‘History’ as understood variously by Hegel, Marx, and Dewey, this movement, like nature, has no purpose, no telos. Like Topsy, it just grows, although unlike Topsy its indignation at perceived affronts grows with it. Christianity would say: Absent a criterion of truth, human beings will fall back on pride; and in a democratic society the points of pride will turn petty.
The ‘human rights’ movement radicalizes not only equality but liberty, there being no knowable constraints on human self-deconstruction and construction. At the same time, such radicalized equality and liberty seeks some goal for itself, a goal its own assumptions deny it. “The prior act of deconstruction meets the resistance or the or the opposition of a tendency to re-naturalization”; in choosing one’s ‘identity’ one cannot escape the secret desire to have some reason to prefer this identity over that, and moreover to keep one’s aspirations within the notion of ‘human rights,’ lest one’s choice turn out to be, well, wrong. Even one of the most urgent natural desires, sexual desire, becomes de-naturalized as a choice of ‘gender’—a term once reserved for grammar, the province of the unlusty. Under such an ideology, “sexual desire no longer has its movement and its destination inscribed in the sexual nature of beings,” instead becoming random, dependent “on the specific nature of each subject,” of each individual. Natural equality no longer inheres in human beings as a species but in human beings as individuals. This reproduces (if I may be permitted a dash of heterosexualist speech) the same dilemma as cultural relativism: How do we judge contradiction or indeed violent clashes between and among self-defining individuals?
Since we obviously cannot, Manent next asks where this self-defeating passion for overturning natural law came from. Beginning with Machiavelli, modern political philosophers rejected the claim that human beings are social and political animals. For them, “all that is natural is gathered and concentrated” in the individual. This comports with early modern science generally: atomistic, focused on efficient, material, and formal causes as fully explanatory of natural attraction and repulsion, to the exclusion of ‘final’ causes or purposes. For Machiavelli and Hobbes, “the desire for power is the fundamental trait of human nature,” which, like all else in in nature, amounts fundamentally to matter in motion. Politically, this means that all purposes or ends of human life must be established by the prince, the sovereign, he who has won the struggle for power; whereas Machiavelli lauds this struggle and the virtù exhibited in it, the more timorous Hobbes looks to the sovereign to impose order on the human ‘atoms’ which would otherwise collide with destructive velocity. Positing fear as the most powerful of the human passions, he initiates the ‘rights talk’ of modernity, making Machiavelli’s invention, lo stato, the modern centralized state, the guarantor of the right to life of the sovereign’s subjects. Recalling Aristotle’s definition of politics as the practice of ruling and being ruled in turn, Manent observes that the modern state, ‘Leviathan,’ isn’t really political in that sense at all; rather, it is a construct instantiating a theory about the nature of the universe. Far from being an expression of the reality of human life, the Hobbesian sovereign is “metaphysical,” or, as Hobbes puts it, a “mortal god,” laying down his law and enforcing it on his subjects. He differs from the God of the Bible in that his subjects are not his creatures, and he is by no means all-powerful or all-wise. Since the materialist Hobbes doesn’t believe that the God of the Bible exists, Leviathan will be (as Americans like to say) close enough for government work.
Machiavelli derides the unreality of “imaginary republics,” designed by prophets and philosophers, but the Florentine “does anything but look at human action ‘as it is,’ since he substitutes for action ‘as it is’ in practical activity, I dare say, a theoretical action, that is to say an action as it can be fully taken into view by the theoretician.” What Machiavelli calls “the effectual truth”—anticipating utilitarianism by four centuries—supersedes what he dismisses as the unreality of Biblical and classical morality, whose precepts fail to correct human behavior but only confuse those who pay attention to them. Whereas natural law unites citizens and subjects only in imagination, fear unites them in reality. Fear of visible men (in a republic) or one visible man (in a principality) replaces fear of the invisible divine and natural laws, and of the natural and/or spiritual consequences of defying that law.
What makes this unreal is that Machiavelli requires of his prince “an action greater than action,” by which Manent means an action “no longer subject to the limits arising from the fact that the action is naturally produced by an agent and therefore depends upon the virtuous or vicious dispositions of that agent.” Machiavelli holds out a vision of human mastery of fortune, mastery of circumstances, with no limits, no “practical reason” which respects circumstances, a mastery that manipulates the fears of ‘lesser’ men. Whereas Aristotle distinguishes theoretical from practical reason, Machiavelli posits an “unlimited indetermination” to replace “the limited indetermination proper to the action of an agent whose provisions and ends are relatively stable.” Whereas the Bible teaches that fear of God is the beginning of wisdom, Machiavelli, anticipating Hobbes, teaches that fear of man is “the beginning of wisdom,” and that wisdom tout court amounts to knowledge of how to exploit that fear in order to master fortune. Heavenly angels give way to masterly princes whose God is Machiavelli.
All of this closes us off from “the field of practical life, that is to say, action under the law.” There is indeed “a great difference between what men do and what they should do,” as Machiavelli insists, but that very difference, and our acknowledgement of it, seen in both the Bible and in the writings of Plato and Aristotle, is the real realism. Machiavelli’s attempt to escape reality, to remold it into the fulfillment of a dominance fantasy, calls for men to produce “an unprecedented action which is no longer guided and therefore limited by practical reasoning or by ‘thoughtful choice.'” Prudence and what Manent understands as its Christian equivalent, conscience, gives way to vulpine cunning and leonine fearsomeness.
Manent considers Martin Luther and his three ‘solas‘ to have advanced a spiritual equivalent of Machiavellian reductionism. Unlike Machiavelli and Hobbes, Luther is of course no atheist, but he reduces the divine law to the simple Law of Love, and dismisses the natural law as irreparably polluted by sin. Like the modern philosophers, Luther centers human action on the individual—his conscience, his faith, his salvation; for him, my certainty of my salvation is the guarantee of “the authenticity of my faith.” The Church becomes a congregation, not to say a congeries, of individuals, with no need for guidance from the learned interpreters of the Bible and no need for the patient effort at improving or ‘perfecting’ one’s soul by obedience to the divine and natural law. Both Machiavelli and Luther “see and postulate an exist from and an access beyond the practical condition of men, which for both is characterized by a supremely shocking and decisively illuminating difference between the real life of men and the law that they hear or claim to follow.” Both maintain that human nature cannot have “the capacity for perfection.” Machiavelli then seeks radical change of man’s outer condition, in the course of which project virtuosity must replace virtue guided by divine and/or natural law. For Luther, a simple pietism at the command of the Holy Spirit replaces natural law.
How could Machiavellian ‘realism’ issue in a natural right teaching? The interplay of princely libido dominandi and the fear the prince inspires in his subjects recalls not the political rule that prevails between husband and wife or the kingly rule between parents and children, as described by Aristotle, but the masterly rule over slaves. How can this underlie a teaching on moral and political right? “As much as we are to be the sovereign authors of the human order and to depend only on our freedom, modern political construction could never have begun without relying on our nature, more precisely on the passivity of our nature, as it is imposed on especially by the affect of fear,” the central “node of passion” for the subjects of the prince. Hobbes sees that this master-slave relationship entails a sort of ‘good’ for both parties. The master wants to rule his subjects without too much trouble, especially such unpleasantnesses as regicide and rebellion; the subject wants to get away from the natural war of all against all, in which would-be masters contend for rule over the dead bodies of the slavish. Establishing a contract between master and slave stipulating that the master will protect the slave’s life in exchange for the slave’s obedience to the master solves both problems. Although right in the state of nature “has no meaning,” remaining indefinite and unenforceable, life in civil society under the social contract becomes decidedly less solitary, poor, nasty, brutish, and short.
The plasticity of human nature in the state of nature leads to the plasticity of rights in civil society, inasmuch as what begins as a minimalist contract of mutual protection soon elaborates, as both masters and slaves gain confidence in their security. In the name of “progress” new rights are invented. “To declare human rights in such a perfectly indeterminate and undeterminable way” (as eventually has come to be the case) “is to give anyone the formal authority to take whatever of the human world they judge or feel entitled to.” That is, the Machiavellian and Hobbesian desire for acquisition, understood comprehensively as the conquest of fortune and of nature, makes the accumulation of ‘rights’ yet another form of empire, with this gain, however, there is a loss. “What is lost sight of in particular is the determinacy and specific rule of the law as a rule of action, since the right, now understood as anterior to the law and independent of it, is presented to us as a sufficient principle of action, a function it cannot in any way fulfill” (emphasis added). In contrast, by defining man as a “political animal,” Aristotle (following Socrates) grounds human life in the concrete circumstances of human deliberation and action, where our elementary appetites and desires form the ‘lower’ limit and our natural capacities for speech and reason form the ‘higher’ limit.
“When,” departing from Aristotle, “we define man as ‘the being who has rights,’ or of ‘having always and everywhere the right to claim human rights,’ we say nothing about what constitutes and gives form to human life,” having followed Machiavelli and Hobbes in grounding political life in the subpolitical, in “a state or condition in which all human traits are absent.” “That is why Socratic political science, that political science which Aristotle presents as the specific science of the human world, proceeds from a description of the nature of which human cities are determined in their own eyes, that is, how they understand themselves and speak to one another, therefore from the opinion of the citizens on their city.” Socrates begins not only ‘politicking’ but philosophizing itself by talking with his fellow citizens, examining (and cross-examining) their opinions. This results in a practical, not theoretical, and an active, not passive, political science. By contrast, “modern natural right does not rest properly on a political philosophy [emphasis added] but on a doctrine of the State,” a doctrine that takes the majority of men to be passive subjects, not citizens at all.
Christianity complicates this classical understanding of political life, as the City of God cross-cuts the City of Man. Man understood as a creature of God is a more ‘determined’ being than a political animal especially because he is as much a slave in his own way—a slave to sin—as the subject dwelling in the Machiavellian state. One cannot simply start political science from an examination of opinion, anymore, not only because all opinions are likely to be corrupt but because true, Christian ‘opinion’—the promptings of the Holy Spirit—is invisible and hearable only by those who have ears to hear, by the grace of God. “The center of gravity of Christendom resides in an interiority” that makes it harder to estimate the trustworthiness of the fellow-citizen with whom we are speaking. It is this interiority—leading to this confusion—which the “doctrinaires of modern natural right” zeroed in on and attempted to sweep aside. “The effort of modern natural right and the State that it inspires and informs was to produce at this time”—and in this world—”a being defined by a right to be or to do what would not be limited or ordered by either the law of the city or the law of conscience.” This being would inhabit a “thoroughly human,” i.e. man-made world, the world of the modern state, offering equality of subject under its rule by eliminating the intermediary authorities (clergy, aristocrats) between itself and them. If life thereafter consists simply in command and obedience, “one does not have to worry about the inner rule of action.”
If, as Hobbes maintains, men are “naturally free and equal,” even in civil society under the rule of the state they will remain “essentially recalcitrant.” Hobbes’s new political science therefore amounts to “a science of obedience.” But even under the terms of the social contract, might I not wonder about “the morality of the State”? How does it intend to use its immense physical power? Moreover, by suppressing human action, citizens life, the state obscures our understanding of human action by causing it to fall into desuetude; we see countries like contemporary Iraq, where subjects liberated from the reigning tyrant fall into a state of war of all against all, if only because they do not know how to do better. Even the success of the modern state—success defined by its philosophic architects and princely executives—pushes toward a conquest of nature which includes the replacement of natural rights (however vaguely defined) with state-produced civil rights serving the purpose of—what,, if not the state? By constructing itself, the state also deconstructs the trust implied by the social contract that calls it into existence.
Manent then looks closer at the way moderns conceive of ‘command.’ If “the actions of the sovereign are authorized by those who obey him,” then they and not the sovereign “are the true authors of these actions.” In Hobbes and all subsequent moderns, this limits command, inasmuch as the social contract aims at preserving the life of the subject; if the sovereign threatens my life, I am entitled to resist, escape, even kill him. Locke notices that he would take away my liberty might easily take my life, and uses this as justification of resisting tyrants. As modernity has continued, the scope of ‘human rights’ widens, so much that we now hear claims of ‘autonomy,’ of subjects given themselves law. In contemporary states we don’t so much obey commands as we ‘go along with’ the policies of states that don’t really command—a condition reminiscent of Tocqueville’s sketch of ‘soft despotism.’ All of this follows from the seeming strength but actual weakness of the modern state at its theoretical origin: “the idea that one could produce command from a condition of non-command, from a state of nature, or of natural liberty.” But there is no “natural liberty,” no “human condition without command” because “the human world is essentially though potentially orderly,” a place where command aims at action but must stem from the deliberation and decision which are “implicit in practical life.”
This is the crucial part of Manent’s argument. Human beings are political and rational animals not only in the sense that they are innately (if often only potentially) capable of discussing amongst themselves what they intend to do and capable of thinking in accordance with the principle of non-contradiction as they discuss it; for human beings, speech and reason also form ineluctable parts of human action, part of “the very constitution of the human world, a world which supposes, to be thinkable, that action ahs reasons which govern it in principle.” Unless under such extreme duress or excitement that we active instinctively, we decide on an action and then command it—as individuals commanding our bodies to walk in a certain direction, as families managing a household, as citizens ruling and being ruled in a political community— after thinking things over. A genuinely human command derives from thought and not from libido dominandi. A political regime commands, makes the potential orderliness of human life real, but the modern state, deriving from a lawless ‘state of nature,’ lacks in principle any such humanly authoritative guidance. The natural law is not only a law of being but a law of action.
Rightly understood, political law derives from natural law. Political law has two dimension. In its “directive” aspect it guide the political community; in its “coercive” aspect it exercises “the right and the power to repress by force any contravention of it commands,” subject to review by a constitutional court. That is, genuine commands have their origin in rational deliberation and are subject to review and, if necessary, correction by rational deliberation. Because “the modern state intends to regulate a human world that believe itself to be without law or rule” but only ‘right’ that it constantly invent for itself—right derived from a “natural liberty” which has no real content—”the law from now on propose to give societies only commands necessary to lead a life without law” “We have charged political law to act contrary to it essence as law.” To counter this contradiction, we substitute ‘social laws’ for political ones; social pressures (sort of) rule us. Our characteristic social science become sociology, a science that avoids the essence of political life, which is the character of rule. For sociologists, feeling and folkway matter, but feeling and folkway do not address the human potential for purposeful deliberation, decision, and command. “What is in fact the modern republic in it time… if not a common action in search of its rule?”
For Manent, the “inflection point” of challenge to the modern state generated by claims of ‘autonomy’ was the évènements of May 1968, the rebellion of French students (temporarily in alliance with labor unions), asserting ‘rights’ against public order itself. “It should be emphasized that this ‘right’ was understood in a more and more extensive way, in a truly unlimited way, as the right to be whatever we are or want to be.” This went beyond even Aristotle’s description of how democrats define freedom badly, as doing what one likes; it speaks to being itself, beyond mere action. If our being has no law rightly to guide it, how can our actions be law-governed? Self-defined rights issue in non-law law; that is, law becomes “the slave of rights,” specifically, of the supposed right to be ‘recognized’ as whatever one says one is. “The human being from now on, if it is still likely to be defined, in a sentient or sensitive animal: an I qualified by the way it feels its life, or is ‘affected’ by it, a firm circle of the adherence to self, tautology of feeling of self from which no question is formed and which cannot be understood by anyone,” entitled to unquestioned recognition and indeed affirmation by everyone. “Instead of social energy being expended mainly to ‘get out of oneself,’ to enter into shared activities and to participate in the common life [of the political community], a growing part of [this energy] is diverted to assert the incommunicable feeling of the living ‘I,’ sentient or sensitive.” The ‘I’ ‘comes out’ as x, y, or z, but this coming-out never gets out of itself, merely asserting itself in an exercise of democratized or egalitarian will-to-power. Its slogan ought to be, Nietzcheism for everybody.
In moving to the modern state, human life has seen an increase and intensification of “activity,” of movement to satisfy man’s desire, as distinguished from “action,” movement toward purposes set by and planned for with “reflective choice.” The social conditions in which activity occurs have been equalized, at least in the sense that the tiled aristocrats, born to rule, have declined. And the scope of action has diminished, at least in comparison to the vigorous civic life of the Greek poleis. Esteem for conatus, for the effort at perfecting the human soul in part by means of participating in that civic life, has given way to the passivity of the ‘good subject’ (hardly a citizens) of the modern state, a passivity enlivened by the touchy self-righteousness of the demand for ‘recognition,’ which Christians would instantly recognize as a form of pride. Under modern conditions, liberty, which once meant free will and free choice, now means the liberation of “our natural necessity,” our physical desires. In Manent’s terminology “the free agent” or actor has been replaced by “the free individual.”
One practical consequence of this is euthanasia; “the modern state tends almost irresistibly to institutionalize euthanasia in one form or another.” Why? If freedom means liberating our physical desires from all external obstacles; if death is “the obstacle par excellence” for modern man, the fear of death “the king of terrors,” as Hobbes calls it; then modern man will want not only to avoid death as long as possible but to choose the moment he dies, and not allow death to ‘choose’ that moment for him. And if the modern state has been “entrusted” as the guarantor of modern freedom; if the modern state has no natural law above it to guide its choices; if, moreover, the state’s law by its very character as human law cannot possibly ‘know’ when and how to make life-or-death decisions regarding a person innocent of any objectively determinable criminal act; the ‘legal’ act of euthanasia must be arbitrary, which is to say lacking the character of law. This is a consequence of “the perspective of modern liberty, which defines death as an extrinsic accident of life.” This involves the modern state in self-contradiction, in legalizing what is non-legal in the strict sense.
Although much changes under the conditions of statism, the regime question remains. Manent does not in any way trivialize the importance of such republican principles as representation (“the great invention of modern politics”) and consent, especially given the alternative regimes of modern tyranny and oligarchy in the forms of bureaucratic despotism or of military juntas. But even consent to be governed by elected representatives does not match actual participation in political rule. This matters because “natural law is not a rule foreign to human action as would be a physical or metaphysical criterion elaborated by theoretical reason; it is a friend of action, motivating for action.” It lends judgment to action because practical reason originates, guides, and evaluates the results of action. Politics rightly understood is architectonic and politics animated by deliberation could not be farther removed from modern theory, in which the beginnings of human life are anarchic. Under modern conditions, “human association” becomes “more and more opaque to itself; it understands itself less and less since, as the practical and archic operation is more and more obscured by an-archic conventions and frameworks the bases of actions and of institutions and the sources of citizens’ own actions and institutions are less and less accessible to them.”
Under the condition of passivity induced by statism, we are often told not to be ‘judgmental.’ On the contrary, Manent remarks, “we cannot avoid judging one another.” We cannot, because the “objective components of human nature” consist in large measure of three motives: the pleasant, the useful, and l’honnête —an untranslatable French word meaning both the honorable and the just. We cannot avoid pursuing these motives, judging which one will prevail in each circumstance we face. “The agent’s motives are not up to him, as to either their presence or their nature; they belong to the human being as such, to human nature; but the way they become his action is up to him.” We may have wrong ideas of the honorable and the just, as (for example) Islamic terrorists do; we frequently make mistakes about what’s useful, and we even make wrong judgments about the pleasurable, as addicts do. But even in the case of terrorists and tyrants, “it is less the idea that is false than their relation to the idea.” Heroic self-sacrifice for the sake of God is not in itself a bad idea, but the way terrorists and tyrants seek to honor God does indeed leave a couple of things to be desired—namely prudential reasoning and a refusal to sacrifice others along with oneself.
Given the inherent human desires for the pleasant, the useful, and the noble and just, Hume’s radical division between the ‘is’ and the ‘ought’ (a sensible response to modern philosophic doctrines) no longer holds. The human ‘ought’ is implicit in the human ‘is.’ This doesn’t mean that the ‘ought’ of natural law acts like a computer program, producing a detailed course of action; rather, it more nearly resembles DNA, which provides the core of our natural being while making that life both available for enhancement and susceptible to ruin, depending on our choices and circumstances, on how we ruled and are ruled. Natural law “help[s] us apply a simple and concrete criterion for determining whether it is possible for human nature to find satisfactory fulfillment in a given institution, political regime, or framework of action I general.” This practical, prudential character of natural law “save[s] us from the tyranny of the explicit and the exhaustive that is the fate and the scourge of the philosophy of human rights,” whose “dogmatism” has “ruined the whole architecture of practical life” by undermining deliberation and the true command that issues from deliberation. Natural law guides without commanding, leaving it to “the agent, enlightened by the natural law and alert to particular circumstances,” to “make the reflective choice that leads to effective action and commands it.” Natural law points human beings to “a happy life—that is to say a reasonably pleasant, useful and noble life.”
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