From Natural Law to Enlightenment - From Locke to Rousseau

Nov 2016
Starting from the Platonic-Aristotelian view of the world order as a perfect static rational structure which the human mind could decipher by thinking, modern theorists like Grotius or Pufendorf had postulated a universal legal order - the reasonable natural law - which offered itself as an alternative to the decaying Christian-medieval dogma of a moral right set by God. So the step leads from good law to reasonable law: a law is not to be obeyed because it commands (Christian) morality, but because it commands reason. Already the Aristotelian Thomas of Aquinas distinguished between divine law which transcends reason, and natural law (lex aeterna and lex naturalis) and thus unintentionally paved the way for conceptions of a demythologized, i.e. post-Christian understanding of law. Factors such as the rise of the natural sciences (i.e. the insight into a somehow lawfully structured nature), the increasing politically and economically motivated resistance of non-clerical parts of society against the power of clerical institutions, the division of the church into two hostile denominations (which in the long run leads to the marginalization of theology as authority in legal questions), all this strengthens the need for a legal authority which is superior to man, but which must be followed not only because the law of divine origin and obedience to God and thus to law is something 'good', but because man by virtue of his natural cognitive faculty directly grasps and affirms the reasonable meaning of the laws.

Such a right can only be a 'natural' right which can be seen by the reason inherent in all human beings and which provides the standards for how people have to deal with each other in such a way that peaceful coexistence in the state and between states is possible. This has given rise to a universal legal concept that crosses the boundaries of denominations - but not yet the horizon of theology. In Locke, the advocate of economic liberalist ideas, a strongly utilitarian motive comes to light, he probably recognizes the metaphysical authority of Christian theology, but insists on an earthly legal concept - a concept of natural law - that is to keep free of theological interventions and primarily serves the economic prosperity of society. With a logical inconsistency Locke, despite his secularizing inclinations, does not cut off theology completely from his political doctrine.

For natural law may well stand as self-contained and quasi-absolute as chiselled out of the marble of eternity - only: the chisel was, of course, guided by the biblical God. This is inconsistent because the spheres of religion and earthly reason can only be separated here in appearance, for the right of reason as a product of the perfectly good God himself can only be something good through and through. To cut it off from this religious-moral category and to praise it as an independent system of values, but to underline its divine origin in one, as it were, in a threatening gesture to all doubters - that is split thinking, but perhaps also guided by tactical considerations. Because of the foundation of natural law in the biblical myth, atheism can, in view of the human rights activist Locke, only be synonymous with the denial of the divine source of natural law, reason enough to consider the atheists as subversive to the state.

Even the pioneer of international law, Grotius two generations before Locke stops halfway - who knows into which dungeons of the Inquisition the complete way would have led him - and admits the divine origin of natural law; but this right, according to Grotius is so plausibly reasonable in itself that even the hypothetical assumption that there is no God would not harm the validity of natural law. This is a clear hint.

With all these projections, which are nevertheless important precursors for a better future - the principles of politics are now clearly less marked by the arbitrariness of the powerful than before, and there can also no longer be any talk of the sovereign rights transferred by God to the princes - Rousseau clears up, not completely thorough and preserving some errors, certainly, but sufficiently powerful and inspired to usher in a new era - that of the freedom-thirsty subject - with a verve that echoes throughout the Occident. No longer the just world order set by the Christian God, pax et justitia, is the source from which the secular princes draw the legitimation of their selfish politics and legislation - with which the enlightenment natural law scholars had already halfway settled the accounts - ; no longer the right of nature, created and set by the Christian God for eternity, is the ordering principle of society, which every reasonably thinking human being is able to see as such and has necessarily to accept - no: the human being, the subject, it is himself, who is the one who is able to create, in perfect and immediate freedom, the reasonable laws according to which social coexistence in the State is ordered. Unlike the theocratic or the natural-law state, the Rousseau state is completely sovereign; it is not bound to a divinity or natural reason above it, it is free, self-determining, i.e. sovereign, creator of the rational laws that regulate social life. This state is sovereign, because it is the production of the totality of the free subjects which it comprises, the work of a sovereign, i.e. self-determining people. It is the product of their 'in itself' free will, in it the decisions of will flow together by nature of rational and responsible subjects to organic unity. To date, all states have been and continue to be unjustly and unfreely organised, says Rousseau, but that is because it was not a free, but an unfree, wrong will that established them. Particulars, egocentric, power-hungry individuals had exercised their particular, egocentric, power-hungry will to create a social order that for most of those living in it meant injustice and exploitation, resignation and suffering, ruptures in social circularity. To show a way out of this impasse, Rousseau introduces the concept of volonté générale. It is not the will of a generality in the sense of the statistical majority of the people, but a qualitative mode of will, which is completely unencumbered by particular considerations of utility and is directed solely towards the common good, towards the good of the whole society.
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