Rothbard and the Natural Law Tradition in the Works of Grotius, Carmichael, Pufendorf, and Hutcheson

0:00First off, I would like to thank the Mises Institute for the opportunity to address this important conference. This is actually my seventh conference speaking to all of you. Since the publication of Murray Rothbard's economic thought before Adam Smith nearly 20 years ago, numerous works in the natural law tradition have been translated or reissued. In particular, Liberty Fund and the Mises Institute must be commended for their tireless pursuit and publishing many important out-of-print pre-classical works for a new generation of scholars and lay readers. As Rothbard wrote in the introduction to his path-breaking work, quote, if knowledge buried in paradigms, lost, can disappear and be forgotten over time, then studying older economists in schools of thought need not be done merely for antiquarian purposes or to examine how intellectual life proceeded in the past.

0:54Last. Earlier economists can be studied for their important contributions to forgotten and therefore new knowledge today. Valuable truths can be learned about the content of economics not only from the latest journals but from the texts of long deceased economic thinkers. Although Grotius, Puffendorf, Carmichael and Hutchison may be considered quote unquote long deceased economic thinkers by many in the field of economic history and thought, their works nevertheless provide a valuable link to the late scholastic tradition of natural and Natural Law. Up on the screen is just a very simple sort of diagram of the derivation of natural law from early times down to the period of the Enlightenment.

1:42The doctrine of natural law is as old as philosophy itself, and this tradition essentially began with the Greeks. According to Heinrich Raman, quote, the idea of a natural law can emerge can emerge only when men come to perceive that not all law is unalterable and unchanging divine law. It can emerge only when critical reason looking back over history notes the profound changes that have occurred in the realm of law and mores and becomes aware of the diversity of the legal and moral institutions of its own people in the course of its history. Additionally, according to many scholars, the natural law tradition has at least three distinct features. First, all natural law theories regard morality as a body of specific precepts, both divine and human. Second, these theories use the assumption of juridical equality as a fundamental assumption, that is, everyone appears equal before the law. Finally, there's a certain tension expressed between natural law, that is, the natural rights that emanate out of the natural law, and positive laws enacted by individuals of a certain age.

2:50This paper, therefore, is a brief attempt to further explore and extend the conversation begun in Rothbard's economic thought before Adam Smith of the natural law tradition of the late scholastics to the theories and selected works of these four early modern natural law thinkers. First, Hugo Grotius. According to Rothbard, the Protestant scholastic Hugo Grotius, quote, deeply influenced by by the late Spanish scholastics developed a natural law theory which he boldly declared was truly independent of the question of whether God had created them or him. He was a well respected humanist scholar of his time and yet he was caught up in the tragedy of the 30 years war and not unlike Erasmus a century earlier was ever hopeful of a cessation of hostilities between Protestant and Catholic nation states.

3:42Notwithstanding his many other numerous commentaries and studies, his tract, the Latin title, Mare Librum, or the Free Sea, published in 1609, and Deiure Belli et Pacis, or the Rights of War and Peace, published in 1625, considers the application of traditional natural law principles in a new way without a total abandonment of the scholastic framework. The publication of the Rights of War and Peace, although not profitable and originally published in Latin, provided him with a worldwide reputation as a brilliant jurist. Grotius certainly followed in the footsteps of the late scholastics. As Raman reminds his readers, he was, quote, still closely connected with the teachers of the preceding centuries. He stands out more through the first formal inclusion of natural law and positive law in international law than through any intellectual contribution of his own, end quote.

4:36In a real sense, Grotius' thought and works were a bridge over which Pufendorf, Carmichael, Hutchison and others would refashion natural law and natural rights for a new age. Although caught in a transitional age and still linked by many ties to the preceding age, he yet served to transmit to the natural law theory of the modern period its distinguishing marks, rationalism, sociality or social relations, and particular political aims. In a minor In a work taken from on the law of prize and booty titled The Free Sea, Grotius laid the groundwork for his multi-volume magnus opus, The Rights of War and Peace. Grotius was retained by the Dutch East India Company as counsel in a dispute with the Portuguese. A Dutch admiral had captured a Portuguese ship called the Santa Cantarina. It was laden with cargo.

5:29Although the Portuguese claimed a certain right of the waterway, various factions within John Holland believed it was unlawful for a private company to seize property on the high seas and others believed any kind of warfare to be simply against the will of God. Grotius, however, skillfully applied his understanding of natural law and rights to this particular situation. In effect, he defended the Dutch seizure of the ship on the basis of two primary laws of nature, self-defense and self-preservation. The traditional laws, inoffensiveness and abstinence, set limits on these primary laws. Grotius distilled the Portuguese exclusive claim of passage to the East Indias into three distinct rights. Possession, navigation, and trade.

6:17First, possession. The Portuguese could not claim right of possession by virtue of first discovery Because the lands of the East Indias were not, in a sense, terra nullius, or not unowned, but were in the possession of their native rulers. Since no nation state could claim exclusive possession of a fluid and ever-changing sea, says Grotius, quote, the sea, therefore, is in the number of things which are not in merchandise and trading, and that is to say, cannot remain proper, end quote. Second, navigation. This fundamental distinction between the characteristics of the sea and the land allowing the navigation to be open to all would remain central to later conceptions of property within the natural law tradition up to and beyond John Locke.

7:04Finally, trade. Not unlike free navigation, Grotius saw free trade as, quote, agreeable to the primary law of nature which hath a natural and perpetual cause and therefore cannot be taken away and, if it might, yet could it not, but by consent of all nations, so far of is it that any nation by any means may justly hinder two nations that are willing to trade between themselves, end quote. Grotius' argument for a free sea derived not only from an appeal to natural law but also from custom and consent. He argued additionally that the right to trade or navigate was legitimate not by virtue of of being a norm of objective justice, but because it was a moral faculty over a thing. This classic controversy of economic and political theory involving the dispute between the mare librum and the mare clausum, the free sea versus the closed sea, raged throughout the 17th century and really even beyond.

8:01In his Right of War and Peace, Grotius provides his reader with his famous definition of natural law. Natural right is the rule and dictate of right reason, showing the moral deformity or moral necessity there is in any act according to its suitableness or unsuitableness to a reasonable nature and consequently that such an act is either forbid or commanded by God, the author of nature, end quote. In contrast to the late scholastics who had sought to determine the relationship between law and morality from the standpoint of Four Cardinal Virtues with Justice Regulating Social Relations, Grotius elevates social relations within the virtue of justice to a disproportionate degree of importance.

8:50Therefore, according to Raman, quote, law is that which results from the appetitus socialis, the social appetite. Grotius believed it possible to derive by strict logic a suitable system of rational law, having force that would be great enough to bind the will. A body of law with detailed prescriptions covering debts and property, the family institution and inheritance, the scholastics on the other hand considered only the general institutions themselves of marriage, property and contract as belonging to natural law, not the particular prescriptions about marriage and the family, possessions and the form of private ownership and the like. And as Grotius points out in his prologue to the first edition of The Rights of War and Peace. The great truth is that everything is insecure without law, as Aristotle showed with his famous example of the brigands, so the community which all human beings or a multiplicity of nations construct amongst themselves certainly requires laws. According to Rothbard then, natural laws for him are discoverable by human reason, and the 18th century enlightenment

9:58was essentially the spinning out of the Grotian framework. Sam is giving me five minutes, so I have to move on. Unfortunately, I won't be able to talk about Carmichael or Puffendorf, so I'll move on to Francis Hutchison, which I think is probably a little more important anyway. Francis Hutchison, on the death of Carmichael in 1729, Hutchison assumed the chair of moral philosophy at the University of Glasgow, a position he would hold until his death. Hutchison studied the classics. He certainly was well informed for his day. In fact, Rothbard says this. He says, his lectures on philosophy, on politics, on law and ethics and political economy drew students from all over Britain, the most famous of whom, of course, was Adam Smith, who studied under him from 1737 to 1749. His short introduction to moral philosophy published and translated into English in 1747 and his system of moral philosophy published posthumously by his son in 1755 contained the bulk of his considerations on natural law.

11:05It was Hutchison who brought to Scottish philosophy a solid belief in natural rights and the beneficence of nature as well as the basic classical liberal worldview. Not unlike his predecessors in the natural law tradition, most especially Grotius Pufendorf and Carmichael, Hutchison uniquely interprets and expands numerous areas of moral philosophy. Hutchison, like Shaftesbury and other neo-stoic philosophers, viewed philosophy not as a mere theoretical exercise, but as having a practical function. function. This practical dimension of Hutchison's scholarly output is found in his short introduction, viewed by many as the progenitor of the Scottish Enlightenment. His argument for the Aristotelian good life was based on his belief in the benevolence of God, the harmony of the universe, and man's sociable dispositions. This work was aimed at a university audience with a twofold purpose, to put forward an optimistic view of God, human nature and the harmony of the universe, and to provide students with the knowledge of natural and civil law required by the university curriculum.

12:11Although a critic of many aspects of Puffendorf's The Whole Duty of Man, which was the standard text in Protestant universities of the day, Hutchison maintained the basic structure of the work by modifying its moral emphasis. His short introduction is divided into three books, The Elements of Ethics, Elements of the Law of Nature, and The Principles of Economics and Politics. Beginning his treatise with references to Aristotle and Cicero, Hutchison provides his reader with the role and importance of moral philosophy, and I quote, as all other arts and sciences have in view some natural good to be obtained as their proper end, moral philosophy, which is the art of regulating the whole life, must have in view the noblest end since it undertakes as far as human reason can go to lead us into that course of life which is most according to the intention of nature and most happy, to which end whatever we can obtain by other arts should be subservient.

13:07Moral philosophy, therefore, must be one of the commanding arts which directs how far the other arts are to be pursued. In book three, Hutchison identifies the state or civil society as, quote, a society of freemen united under one government for their common interest, that the common interest of the whole body is the end of all civil polity is owned by all." In defense of natural liberty, Hutchison identifies it as, quote, the right of acting as one inclines within the bounds of the law of nature, nor could we hold any such liberty where there are no laws to defend it from the force of the stronger. So we say a people enjoys liberty when each one is allowed to act as he inclines within in the bounds of civil law and not subjected to the caprice of any other.

13:54We should never look upon laws as aversive of liberty, but that his sole enemy is the capricious, humorous will or command of men in power. And yet, according to Rothbard, quote, Hutcheson's devotion to laissez-faire was limited and guarded, end quote. In fact, his devotion to natural rights was weakened by being the first to adumbrate the chimerical and disastrous formula of utilitarianism, the greatest happiness for the greatest number, possibly after having acquired it or its equivalent from Gershom Carmichael. Although Grotius, Huffendorf, Carmichael and Hutchison were all defenders of the classical natural law tradition, a general tendency to downplay the importance of natural law began to appear around the middle of the 18th century.

14:42According to Rothbard, however, quote, while scholasticism was compatible with an emphasis on Natural Law and Rights, it was generally discarded and reviled as ignorant superstition along with revealed religion." This of course led to the unfortunate descent into utilitarianism from Adam Smith to the present day. For nearly two decades, Rothbard's economic thought has provided readers with a pivotal reference point and work for further study and reflection. Economic scholars and others would do well to continue this process of discovery in the and the History of Economic Thought from an Austrian perspective. Thank you.