Vol. 16 No. 9 (September, 2006) pp.751-753
NATURAL LAW, LAWS OF NATURE, NATURAL RIGHTS: CONTINUITY AND DISCONTINUITY IN THE HISTORY OF IDEAS, by Francis Oakley. London and New York: Continuum International Publishing Group, 2005. 144pp. Hardcover. £16.99 / $34.95 / €29.96. ISBN: 0826417655.
Reviewed by Walter J. Kendall III, Professor of Law, The John Marshall Law School, Chicago, Illinois. 7kendall [at] jmls.edu.
History as a discipline is in the midst of fundamental revision, again. This time it is the traditional periodizations that are the subject of re-thinking (e.g., Bouwsma 2000). As a result, consensus understandings as to the meaning of events and ideas are being revised. And new canonical sources are being identified as long forgotten, or ignored thinkers are being foregrounded (e.g. Tierney 1997).
Francis Oakley’s book, NATURAL LAW, LAWS OF NATURE, NATURAL RIGHTS, is one of the growing number of such revisionist histories; his specifically in the history of ideas. Oakley has written an elegant and nuanced account of how realms of discourse usually treated separately – laws of nature, natural law and natural rights – communicate both dialectically and, although he does not say so, even elliptically.
It is, in its understated way, a challenge to other methodologists of the history of ideas. Followers of Kuhn, Skinner, and Foucault, with their emphasis on discontinuity, and Lovejoy and Whig historians, with their emphasis on continuities, would all do well to reflect on Oakley’s arguments.
This small, but soon to be classic book is of equal challenge to students of natural law and human rights. In his text and endnotes Oakley critically engages, among others, Strauss, Haakonssen, Tuck, and Shapiro.
In this study of the changing philosophical grounding of the laws of nature, natural law, and natural rights, Oakley assumes that “the traditional periodization of European history into ancient, medieval, and modern . . . is as much a hinderance as a help when it comes to understanding the course of European intellectual history” (p.23). He rather tends to see seismic shifts in political thought in both the 12th and 18th centuries and believes it wise to see the period in between as a distinct unit for study.
Oakley acknowledges the polysymmetry of each of the terms he is considering. He specifically refers to Lovejoy’s 66 senses of the term nature in antiquity, the contemporary “flowering of vital natural law philosophy” (p.17), and Hohfeld’s taxonomy of rights relationships. But he chooses to limit himself to three principal arguments focused on the grounding of these concepts.
The first argument is that the ambiguity of “nature” is fundamentally a function of three differences in usage or understanding; nature can be viewed as either organismic or mechanistic; law [*752] can be constituted or grounded either “in indicative rational norm or in imperative legislative command” (p.24); and, the community, subject to the sway of natural law, can be limited to humans or extended to animals and physical nature.
In other words, Oakley pursues the view that philosophic coherence requires “sinuous interconnections” (p.73) between positions a thinker adopts in natural theology, epistemology, natural, moral, legal, and perhaps political philosophy.
Oakley’s second argument is that the most significant shift in understanding of both the nature of nature and the nature of law (but not of rights) occurred in the 14th and 15th centuries. As a consequence of that shift, two traditions of natural law conception were transmitted to subsequent thinkers.
One tradition, the dominant one, is that human beings, through the use of reason, have access to norms of right and wrong that are natural, universal and unchanging. Labels that come to mind are intellectualist, organic, inherent. The other, which on its face might not appear to be a nature law notion at all, is that the absolute unfettered will of God is the only standard of morality.
Ockham, who is most often considered the originator of this view, went so far as to argue that God could make hatred of God morally permissible. Thus, there are no immutable norms and no intrinsically evil acts. Oakley traces Ockham’s thinking through his early academic and later political writings. He accepts the traditional view that Ockham grounded his thinking on God’s ordained or self-limited power, as opposed to His absolute immutable (?) power. But he concludes that Ockham also believed that right reason “in the present order” (p.80) is available as a guide to conduct. Thus Ockham’s thinking is properly considered a natural law theory. Here however the labels that come to mind are voluntaristic, mechanical, imposed.
Oakley views the dialectic relationship between these two traditions as the key to understanding the varied and complex natural law views developed during the 14th-15th centuries and into the 18th century.
Oakley, at some length and in some detail, challenges the notion that Hugo Grotius is properly considered “the natural law thinker who finally broke with classical and medieval natural law doctrines, setting in their place a new and secularized form of natural law” (p.64) He argues that there was nothing new in Grotius’ thinking about how the natural law is grounded. He goes further and insists that Grotius’ famous or infamous “impious hypothesis” – even if there were no God there would be a natural law – makes the lack of novelty clear!
As regards subjective, individualized natural rights, Oakley reviews the conflicting claims as to the origin of the idea. Strauss and Macpherson, among others, argue for Hobbes and the 17th century. Other claimants and their champions include “in the fifteenth, fourteenth, or twelfth and thirteenth centuries – in the theology of Jean Gerson (Richard Tuck), the nominalism [*753] of William of Ockham (Georges de Lagarde, Michel Villey, Michel Bastit), in the natural law theory of Thomas Aquinas (John Finnis), or even earlier, in the juristic formulations of the twelfth and thirteenth-century canon lawyers (Brian Tierney, Charles Reid)” (p.p.89), and Oakley himself.
He concludes that, unlike the shift in thinking about natural law in the 14th and 15th centuries, thinking about natural rights was a slow evolutionary development from its 12th and 13th century origin to the 18th century when rights talk escaped from “the objective norms of natural law . . . to become identified with a modern version of moral conventionalism” (p.106).
Oakley’s third argument is that what precipitated the shift in thinking about laws of nature that fully manifested itself in the 16th and 17th centuries was the pressure brought to bear on the Neoplatonic or Aristotlian metaphysics or cosmology of scholastic thought by an insistence on the untrammeled freedom, transcendence, and omnipotence of God. This emphasis on will, or power, meant that the laws of nature were imposed rather than being an indwelling rationality or grounded in divine reason. Nature was contingent, and its order was a result of God’s self-imposed covenant.
Oakley concludes his scholarly-historical analysis with a brief reflection on consent theory. Here, rather than continuity, there was a clear discontinuity. The older view of consent was bounded by a sense that authority was from God; whereas in the 17th and 18th centuries there was a growing sense that “morality is entirely the contingent product of the interactions of individuals” (p.109, quoting Knud Haakonssen).
Bouwsma, William J. 2000. THE WANING OF THE RENAISSANCE 1550-1640. New Haven, CT: Yale University Press.
Tierney, Brian, 1997. THE IDEA OF NATURAL RIGHTS: STUDIES ON NATURAL RIGHTS, NATURAL LAW AND CHURCH LAW 1150-1625. Grand Rapids, MI: Wm. B. Eerdmans Publishing Company.
© Copyright 2006 by the author, Walter J. Kendall III.