According to French philosopher Pierre Manent, modernity has a problem with the law. In his new book Natural Law and Human Rights: Toward a Recovery of Practical Reason, he argues that “what afflicts us, what troubles and demoralizes us” is that “we know longer know what law is… we no longer understand what the law is about.”
In this slim volume, adapted from a lecture series and ably translated by Ralph Hancock for the University of Notre Dame Press, Manent provides an incisive analysis of our situation, ably moving from sociological observation to philosophical argument. He writes that we have “been fleeing from law since we took up the project—let us call it the ‘modern project’—to organize common life, the human world, on a basis other than law.” But if modern man has fought the law, who won?
The idea of natural law has been relegated to the intellectual and political (mostly Catholic) fringe. Still, we remain haunted by it, for we still desire the multitude of human laws around us to be rational and justified.
Modern political theory rejected natural law as an imposition on human autonomy, and likewise condemned premodern hierarchies of command and obedience as unjustifiably arbitrary. Therefore, it banished the Christian idea of man as existing, obedient or disobedient, under law. In its place was established an idea of “humanity that begins in a freedom that ignores all law and that, once forced by necessity to give itself law, will do so only under the condition and with the intention of preserving its freedom whole without law.”
Fear and Consent
This freedom entailed a new understanding of man. The “state of nature” thought experiments of Thomas Hobbes and other modern political theorists stripped away any definitive human ontology or teleology. The modern understanding of human essence was reduced to individual existence in “a condition in which all human traits are absent.”
Humanity is thus free by virtue of being reduced to mere potentiality. Consequently, everything human came to be regarded as a construct that may be deconstructed, with nothing remaining as an essential part of our nature. To be free in this modern (and eventual postmodern) understanding requires that the given-ness of the human world be deconstructed.
Yet we still must live together cooperatively. How are autonomous individuals to be brought together? Manent first looks to Machiavelli, whose attempt to reestablish political science without recourse to natural law settled on fear as the means of holding a polity together. Hobbes likewise identified fear as that which creates a political community from a lawless, amoral state of nature consisting of a war of all against all. Fear is at the root of modern political theory.
But this violent basis for modern political thought is obscured by the modern state’s theoretical solution to the problem of obedience, which is the consent of the governed. Modern political legitimacy depends on the idea that, in obeying the law, each person is obeying himself—through the government he has consented to—rather than the arbitrary commands of another, or the dictates of a natural law. Consent of the governed, combined with the idea of human rights, supposedly secures for us the freedom that is our primordial essence, thereby allowing us to fulfill ourselves, whatever that means for us.
Thus, in theory the law ceases to be commandments imposed on us by nature or other people, and is instead a self-willed instrument of security and liberation. As Manent puts it, modern “law proposes to give members of society only those commands necessary to lead a life without law. Everything that goes beyond this limit, that might have some positive content or aim at a definite good, a way of life judged to be good, is held in some way to violate human rights.” The law will not direct us toward the good life, but will instead, by formulating and enforcing human rights under regimes legitimized by popular consent, preserve our freedom to live as we wish.
Consequently, Manent observes that the “unlimited sovereignty of individual rights became an unanswerable argument for anyone who wanted to prevail against the rules and meanings of any institution whatsoever.” We seek, and believe we have a “right to be everything that we are of want to be.” Thus, for modern man, the satisfaction of desire, and sexual desire in particular, often becomes the definitive aspect of our fulfillment, and normative judgments on the subject are vociferously rejected.
Modernity vs. the Law
Modernity has therefore not freed law from being arbitrary. Instead of the supposedly arbitrary commands of nature or hierarchy, there is the arbitrary will of individual desire. Under this regime of rights without reason, Manent charges that the human being “ceases to be a rational animal confronted with the challenge of acting well.” The individual is left “without either city or reason, ceaselessly busy reducing its being to what it feels.” The law does not direct us toward the good, but instead secures a right to the idiosyncratic pursuit of personal pleasures.
But this establishment of political law without natural law does not make us free. Although we are ostensibly governed only by our consent, we are overwhelmed with more laws than ever, and the clarity of commands, commandments, and obedience has dissolved into a muddle. Manent points out that the modern state is an “immense apparatus” that “does not know whether it is obeying or commanding, and the people who make use of it do not know either.”
Modernity banished natural law in order to establish the freedom of human will, but this cannot produce genuine law. Politically we cannot do without law, the essence of which is command and obedience, commandments kept or broken. Without natural law, these commands are indeed unjustifiable and arbitrary.
Modern theory demands the consent of the governed, but it cannot plausibly be said to be given as required, for we cannot cast off our nature as finite, contingent, and embodied beings. We exist in our particularity, not as bloodless abstractions. Founding governmental legitimacy on the consent of the governed proves to be impossible, for “contrary to what we like to believe…governments are not, properly speaking, our own work or the product of our consent. We always intervene in an already governed world.” To strip away particularity in order to attain some neutral state is to abolish man.
Therefore, Manent accuses modern political theory of having abolished the acting human agent who deliberates and chooses within the circumstances of existence, in accord with reason and law, rather than out of fear and desire. The modern theoretical perspective begins from fear and aims at an unlimited freedom to indulge, while the acting agent seeks right action within the particulars of his existence.
Manent argues that a restoration of the idea of natural law will enable a recovery of our self-understanding as free agents acting under law, and of political law as justifiable rather than arbitrary. He is not the only philosopher to urge a recovery of natural law in response to the aporias of modernity. However, there are significant differences between his understanding of natural law and those of other prominent natural law thinkers.
For instance, unlike the so-called new natural law theory championed by the likes of Robert George and John Finnis, Manent does not aim to provide a dispositive methodology of sure moral reasoning that is capable of proving absolute moral prohibitions. Nor does he seek to describe a definitive ontology or teleology.
He is sympathetic to the motives behind these and similar efforts, but argues that such a “defensive and reactive approach…remains a prisoner of the theoretical viewpoint that it shares with the philosophy of rights.” While it is possible and sometimes beneficial to theorize about natural law, it is first and foremost experiential and practical.
Consequently, in contrast to more ambitious natural law theorists who seek to provide comprehensive theories of universal moral precepts, Manent offers a modest account of human motives, suggesting that the useful, the pleasant and the noble/honest/just are reasons for action that are accessible and available to all, and may therefore provide a beginning for moral reflection and dialogue.
A Compact Feast
Although Manent’s account is not detailed in this short volume, he addresses some obvious points of concern. For instance, he observes that the just or the noble leads us beyond that which is immediately around us, which is why “those persons who are declared the most just have often been the ‘reformers’ of their cities,” Acting agents do not leap outside of the world to attain a God’s-eye view, yet neither are they entirely enslaved to its conventions and contingencies.
He rejects the modern anxiety (which is accepted by some natural law thinkers, such as Finnis and his allies) about the gap between “ought” and “is”, declaring that “in reality there is neither a leap nor a chasm nor an abyss between ‘is’ and ‘ought,’ but only a gentle slope along which we can walk with moderate confidence.” This sanguine assessment results from recognizing that the agent deliberating about the “ought” is doing so just because he seeks to act practically and rightly within the “is.” The “ought” and the “is” are robustly bridged by the practically deliberating and acting agent.
Natural law is not a method of demonstrating an “ought” to a disinterested abstract observer, but an experiential reality of the acting agent. Therefore, Manent claims that “the very character of natural law excludes anything so dogmatically explicit” as universal declarations of human rights “since it always involves the ‘play’ proper to practical life, since it always leaves room to deliberate and then to choose… unlike declared rights, it is meant to be part of an actual deliberation and not to replace one.”
Manent’s understanding of natural law is only sketched in this volume, but it is heartening and stimulating for those of us who believe that natural law theorizing has, despite its ancient and medieval pedigree, become too modern—obsessed with meeting the Enlightenment challenge of a universally demonstrable standard of objective moral injunctions.
Not that Manent shies away from controversial political and sociological observations. He begins his reflections by noting that many of those who preach the moral absolutism of human rights at home eagerly acquiesce to moral relativism abroad. He criticizes free-market ideologues who wish to place economic markets outside of law, properly understood. And he regards same-sex marriage as a deliberate rejection of law, a repudiation of the normativity of the natural family and the sexual binary by which we are begotten.
In this provocative book, Manent has issued challenges to nearly everyone. He has assailed much modern political theory, with its emphasis on the consent of the governed and human rights, a critique that poses a particular challenge for Americans. He condemns leftist and communist ideologies, and yet also critiques, albeit less bitterly, much of the current theorizing regarding natural law. Those so challenged will not be without response—perhaps beginning with complaints that the brevity of this work leads its author to overgeneralize—but they ought to take it seriously.
This is a bold book, and Patrick Deneen’s back-cover blurb of this book as a “compact feast” may undersell it. This book is a treasure chest, for in a little more than 100 pages Manent lavishly offers gems of insight. His greatest jewel of wisdom is that modern man cannot win his fight against the natural law, for it is still part of him, deny it though he may.