Epstein on Natural Law, Ancient and Modern

A few brief thoughts I may return to later, time and study permitting.

One of the many wonderful things about our modern life is how quickly and easily accessible things are which would have been either inaccessible or time-consuming to access just a few brief years ago.  I recently stumbled upon a couple of Richard Epstein talks recorded on youtube.   They virtually allow one to attend those talks from the past – from any time and place.  How remarkable, if you pause for a moment to not take the development for granted.

This one here, in particular, is well worth watching: https://www.youtube.com/watch?v=R_ge4tYI8Vk

It is entitled “Natural Law in Ancient and Modern Guise.”  It is from 2010, and runs about one hour, with extra time for questions/answers. 

Epstein, a prolific academic writer and thinker, speaks, as always, in complete paragraphs, quickly and effortlessly.  He clearly knows his topics backwards, forwards, and sideways.  Even if one is inclined to disagree with him altogether, or in part, it is always most challenging and rewarding to hear the opposite side of the argument cogently argued.

For those inclined to agree, watch it twice. 

Or thrice.

I find that many who think well and deeply about political theory and philosophy are relatively uninformed about, or ignore altogether, economics and the revolution in economic life over the last quarter millennium.  Economists, however, often have a naïve or diminished view – or even an unmanly contempt for - the political and cultural structure that necessarily provides the foundation for a free and peaceful economic life.  

Epstein falls into neither camp.  He has a commanding grasp of both economic theory and of political philosophy.  He comes at all this, somewhat uniquely, from the standpoint of the law, and as a law professor.  As a non-lawyer I find this intriguing.  When he talks about economics and political theory, he typically thinks about not just the theory and broad “constitutional” questions (meant here not to only refer to the US constitution) but also the very specific legal issues that arise.  His description of Roman law and the pre-Thomistic “natural law” is fascinating.   He ties this to Anglo-American law, written and unwritten.

(There is also an insightful question and answer exchange around the question of natural right and natural law.  One is reminded that Leo Strauss pointed out that the ancient philosophers contrasted “nature” and “law/custom[nomos].”  Justinian Roman law, one assumes, could think about laws which are natural [not customary] since the Empire had created a universal political and legal system, a situation distinct from that of the ancient city).

Epstein's strong preference is for the classical liberal position, in politics, in law, and in economics.  He explains how these are intrinsically linked.

The concluding remark is this:  “Essentially the lesson is, unless you can master the ancient conceptions of natural law, you will never be able to do modern public policy well.”  How he gets there is an hour well spent.

Epstein also has a “new” book out (2014) that is on my list to read.  “The Classical Liberal Constitution: The Uncertain Quest for Limited Government”

Amazon link:  http://www.amazon.com/The-Classical-Liberal-Constitution-Government/dp/0674724895

He gives another fine talk on that book and on Hayek here:  https://www.youtube.com/watch?v=DhqXIc5CEpU

Is the Examined Life Worth Living?

At Prof. Larry Arnhart’s blog (here:  http://darwinianconservatism.blogspot.com/2013/11/natural-right-and-natural-history.html) I pose a question in the comment section that is, perhaps, unfair in its length.  Here I will attempt to answer my own question.

Like many questions, the answer implies questions:  In this case two, namely the chief philosophic questions of 1) reason vs. revelation and 2) the philosophic life vs. the non-philosophic life (or the philosopher vs. “the gentleman,” or philosophy vs. “the city”).  These two questions are related, in that the non-philosophic life is commonly, if not always, also religious.

Since reason (i.e. philosophy and science) can never disprove theology, and since theology and revelation do not explain through proof, there is an unresolvable mystery, conflict, or tension at some basic level between the two.  

In Arnhart’s extended argument, a human desire for religion is natural, and human happiness comes from leading a good life, one that is overall in accordance with what is best for us by nature over the arc of one’s life.  He lists twenty natural desires, of which one (number nineteen) is this desire for religion.  I will add here, that I find the argument reasonable and empirically cogent.

However, it is still uncertain how this works logically.  How can reason, science, show that human nature desires religious belief - while remaining agnostic itself by necessity - without discussing the truth of the religious belief, and hence without undermining religious belief?  Or, put another way, who leads the fuller and hence happier life in this formulation, the religious believer, or the scientist/philosopher who makes the argument that, among other things, religious belief is one component of a happy life, while at the same time not believing (even if not denying belief)?

Even if we leave the question of reason vs. revelation aside and approach these natural desires (and true human happiness) from the standpoint of reason alone, we do not avoid paradox (I would suggest).  As I claim in my original question, our natural sense of justice typically desires a support that is not fully supplied by reason alone (even if nihilism itself is avoided).  Who then is happier, the just and moral non-philosophic man, or the “philosopher/scientist” who understands better the natural basis for morality (again, within this argument)?  This too would seem to be unresolvable.  Certainly human reason cannot prove itself to be an inferior way of life, using its own tools, or that would simply be a peculiarly circular form of self-destruction.  But how exactly does one show that humans have a natural desire for justice - and then claim that true natural justice is more limited than our desire often demands – yet prove the superiority of living with this understanding (as compared to the simpler but seemingly more fulfilling sense of justice that is innate)?

This question about the superiority, or lack thereof, of the philosophic way of life, is not new, of course, but is coeval with the beginning of the philosophic way of life.  Arnhart has addressed it explicitly on his blog several places, such as here:  http://darwinianconservatism.blogspot.com/2011/07/strauss-on-supremacy-of-philosophic.html. and here:  http://darwinianconservatism.blogspot.com/2012/05/anastaplo-on-strauss-aquinas-and.html




Update 9/2015

Very tardy here, but I should update the above post to note that six months ago Prof Arnhart in responding to my second comment on this post:  http://darwinianconservatism.blogspot.com/2015/03/nietzschean-nihilism-natural-right-and.html  addresses a version of my long question from 2013 that is the first link at the top of this post:

WB:  "Is it possible that - rather than being Nietzschean - Strauss was open to something akin to your extended argument as being true, but still a "deadly truth" at that? (Even, of course, if you reject this conclusion).

You have written that a virtue ethics based on our human nature is narrower than a “cosmic” morality. However, one could argue that when we consider truly ghastly and heinous crimes our natural moral sentiments seem to desire such a cosmic morality, or at least something closer to it. If this is true, then it is our evolved human nature itself that desires a morality grander in scale than can be supplied by the natural right based on that human nature alone.

Perhaps Strauss could have accepted the broad bases of your argument (as he hints at them in the introduction to NRH), but would have been skeptical of them as being a sufficient ground for most "non-philosophers'" conception of justice? "

LA:  "That's a good suggestion. As you indicate, Strauss did say that the lack of cosmic support for what we care about was "the most terrible truth," and a Darwinian natural right would teach that terrible truth.

Similarly, the Nietzsche of "Human, All Too Human" thought that Darwinian science would not satisfy those human beings who needed a metaphysical purposefulness for life."