"While natural-law theory has often been used erroneously in defense of the political status quo, its radical and “revolutionary” implications were brilliantly understood by the great Catholic libertarian historian Lord Acton. Acton saw clearly that the deep flaw in the ancient Greek—and their later followers’—conception of natural law political philosophy was to identify politics and morals, and then to place the supreme social moral agent in the State.
From Plato and Aristotle, the State’s proclaimed supremacy was founded in their view that “morality was distinguished from religion and politics from morals; and in religion, morality, and politics there was only one legislator and one authority.”[3]
Acton added that the Stoics developed the correct, non-State principles of natural law political philosophy, which were then revived in the modern period by Grotius and his followers.
“From that time it became possible to make politics a matter of principle and of conscience.” The reaction of the State to this theoretical development was horror:
When Cumberland and Pufendorf unfolded the true significance of [Grotius’s] doctrine, every settled authority, every triumphant interest recoiled aghast. . . . It was manifest that all persons who had learned that political science is an affair of conscience rather than of might and expediency, must regard their adversaries as men without principle.[4]
Acton saw clearly that any set of objective moral principles rooted in the nature of man must inevitably come into conflict with custom and with positive law. To Acton, such an irrepressible conflict was an essential attribute of classical liberalism: “Liberalism wishes for what ought to be, irrespective of what is.”[5] As Himmelfarb writes of Acton’s philosophy:
the past was allowed no authority except as it happened to conform to morality. To take seriously this Liberal theory of history, to give precedence to “what ought to be” over “what is” was, he admitted, virtually to install a “revolution in permanence.”[6]
And so, for Acton, the individual, armed with natural law moral principles, is then in a firm position from which to criticize existing regimes and institutions, to hold them up to the strong and harsh light of reason. Even the far less politically oriented John Wild has trenchantly described the inherently radical nature of natural-law theory:
the philosophy of natural law defends the rational dignity of the human individual and his right and duty to criticize by word and deed any existent institution or social structure in terms of those universal moral principles which can be apprehended by the individual intellect alone.[7]
If the very idea of natural law is essentially “radical” and deeply critical of existing political institutions, then how has natural law become generally classified as “conservative”? Professor Parthemos considers natural law to be “conservative” because its principles are universal, fixed, and immutable, and hence are “absolute” principles of justice.[8] Very true—but how does fixity of principle imply “conservatism”?
On the contrary, the fact that natural-law theorists derive from the very nature of man a fixed structure of law independent of time and place, or of habit or authority or group norms, makes that law a mighty force for radical change. The only exception would be the surely rare case where the positive law happens to coincide in every aspect with the natural law as discerned by human reason.[9]"
NATURAL LAW VERSUS POSITIVE LAW, The Ethics of Liberty Murray N. Rothbard
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