Autor: Strauss, Leo

Buch: Natural Right and History

Titel: Natural Right and History

Stichwort: Naturrecht: Ursprung; Analyse: Konventionalismus, Hauptargument gegen Naturecht; Gerechtigkeit - Gesetz

Kurzinhalt: But the facts to which conventionalism refers do not seem to prove that the principles of right are changeable. They merely seem to prove that different societies have different notions of justice ...

Textausschnitt: 97a For our present purpose it is sufficient to give an analysis of the standard argument used by conventionalism. That argument is to the effect that there cannot be natural right because "the just things" differ from society to society. This argument has shown an amazing vitality throughout the ages, a vitality which seems to contrast with its intrinsic worth. As usually presented, the argument consists of a simple enumeration of the different notions of justice that prevail or prevailed in different nations or at different times within the same nation. As we have indicated before, the mere fact of variety or mutability of "the just things" or of the notions of justice does not warrant the rejection of natural right except if one makes certain assumptions, and these assumptions are in most cases not even stated. We are therefore compelled to reconstruct the conventionalist argument out of scattered and fragmentary remarks. (Fs) (notabene)

97b It is granted on all sides that there cannot be natural right if the principles of right are not unchangeable.1 But the facts to which conventionalism refers do not seem to prove that the principles of right are changeable. They merely seem to prove that different societies have different notions of justice or of the principles of justice. As little as man's varying notions of the universe prove that there is no universe or that there cannot be the true account of the universe or that man can never arrive at true and final knowledge of the universe, so little seem man's varying notions of justice to prove that there is no natural right or that natural right is unknowable. The variety of notions of justice can be understood as the variety of errors, which variety does not contradict, but presupposes, the existence of the one truth regarding justice. This objection to conventionalism would hold if the existence of natural right were compatible with the fact that all men or most men were or are ignorant of natural right. But when speaking of natural right, one implies that justice is of vital importance to man or that man cannot live or live well without justice; and life in accordance with justice requires knowledge of the principles of justice. If man has such a nature that he cannot live, or live well, without justice, he must have by nature knowledge of the principles of justice. But if this were the case, all men would agree as regards the principles of justice, just as they agree as regards the sensible qualities.2 (Fs)

98a Yet this demand seems to be unreasonable; there is not even universal agreement as regards the sensible qualities. Not all men, but only all normal men, agree as regards sounds, colors, and the like. Accordingly, the existence of natural right requires merely that all normal men should agree as regards the principles of justice. The lack of universal agreement can be explained by a corruption of human nature in those who ignore the true principles, a corruption which, for obvious reasons, is more frequent and more effective than the corresponding corruption in regard to the perception of sensible qualities.3 But if it is true that the notions of justice differ from society to society or from age to age, this view of natural right will lead to the hard consequence that the members of one particular society or perhaps even only one generation in one particular society or, at the most, the members of some particular societies must be regarded as the only normal human beings in existence. For all practical purposes, this means that the natural right teacher will identify natural right with those notions of justice that are cherished by his own society or by his own "civilization." By speaking of natural right, he will do nothing else than claim universal validity for the prejudices of his group. If it is asserted that, as a matter of fact, many societies agree in regard to the principles of justice, it is at least as plausible to rejoin that this agreement is due to accidental causes (such as similarity of conditions of life or mutual influence) than to say that these particular societies alone have preserved human nature intact. If it is asserted that all civilized nations agree in regard to the principles of justice, one would first have to know what is meant by "civilization." If the natural right teacher identifies civilization with recognition of natural right or an equivalent, he says, in effect, that all men who accept the principles of natural right accept the principles of natural right. If he understands by "civilization" a high development of the arts or sciences, his contention is refuted by the fact that conventionalists are frequently civilized men; and believers in natural right or in the principles which are said to constitute the essence of natural right are frequently very little civilized.4 (Fs)

99a This argument against natural right presupposes that all knowledge which men need in order to live well is natural in the sense in which the perception of sensible qualities and other kinds of effortless perception are natural. It loses its force, therefore, once one assumes that knowledge of natural right must be acquired by human effort or that knowledge of natural right has the character of science. This would explain why knowledge of natural right is not always available. It would lead to the consequence that there is no possibility of a good or just life or no possibility of "the cessation of evil" before such knowledge has become available. But science has as its object what is always or what is unchangeable or what is truly. Therefore, natural right, or justice, must truly exist, and therefore it must "have everywhere the same power."1 Thus it seems that it must have an effect that is always the same and that never ceases at least on human thought on justice. Yet, in fact, we see that human thoughts on justice are in a state of disagreement and fluctuation. (Fs)

100a But this very fluctuation and disagreement would seem to prove the effectiveness of natural right. As regards such things as are unquestionably conventional--weights, measures money, and the like--one can hardly speak of disagreement between the various societies. Different societies make different arrangements in regard to weights, measures, and money; these arrangements do not contradict one another. But if different societies hold different views regarding the principles of justice, their views contradict one another. Differences regarding things which are unquestionably conventional do not arouse serious perplexities, whereas differences regarding the principles of right and wrong necessarily do. The disagreement regarding the principles of justice thus seems to reveal a genuine perplexity aroused by a divination or insufficient grasp of natural right--a perplexity caused by something self-subsistent or natural that eludes human grasp. This suspicion could be thought to be confirmed by a fact which, at first glance, seems to speak decisively in favor of conventionalism. Everywhere it is said that it is just to do what the law commands or that the just is identical with the legal, i.e., with what human beings establish as legal or agree to regard as legal. Yet does this not imply that there is a measure of universal agreement in regard to justice? It is true that, on reflection, people deny that the just is simply identical with the legal, for they speak of "unjust" laws. But does not the unreflective universal agreement point to the workings of nature? And does not the untenable character of the universal belief in the identity of the just with the legal indicate that the legal, while not being identical with the just, reflects natural right more or less dimly? The evidence adduced by conventionalism is perfectly compatible with the possibility that natural right exists and, as it were, solicits the indefinite variety of notions of justice or the indefinite variety of laws, or is at the bottom of all laws.1 (Fs)