Edmund Burke and the Natural Law

Peter Stanlis

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9780765809902
• eBook ISBN: 9781351312264
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

Today the idea of natural law as the basic ingredient in moral, legal, and political thought presents a challenge not faced for almost two hundred years. On the surface, there would appear to be little room in the contemporary world for a widespread belief in natural law. The basic philosophies of the opposition--the rationalism of the philosophes, the utilitarianism of Bentham, the materialism of Marx--appear to have made prior philosophies irrelevant. Yet these newer philosophies themselves have been overtaken by disillusionment born of conflicts between "might" and "right." Many thoughtful people who were loyal to secular belief have become dissatisfied with the lack of normative principles and have turned once more to natural law.

This first book-length study of Edmund Burke and his philosophy, originally published in 1958, explores this intellectual giant's relationship to, and belief in, the natural law. It has long been thought that Edmund Burke was an enemy of the natural law, and was a proponent of conservative utilitarianism. Peter J. Stanlis shows that, on the contrary, Burke was one of the most eloquent and profound defenders of natural law morality and politics in Western civilization. A philosopher in the classical tradition of Aristotle and Cicero, and in the Scholastic tradition of Aquinas, Burke appealed to natural law in the political problems he encountered in American, Irish, Indian, and British affairs, and in reaction to the French Revolution.

This book is as relevant today as it was when it was first published, and will be mandatory reading for students of philosophy, political science, law, and history.

Notes

Notes to Chapter One

¹ . H. G. Wells, Mind at the End of Its Tether (New York: Didier, 1946), pp. 1–4.

² . Alfred Cobban, “The Return of Natural Law,” in his The Crisis of Civilization (London: J. Cape, 1941), p. 94.

³ . A large number of works on Natural Law have appeared during the twentieth century. There is no comprehensive bibliography on the contemporary revival of Natural Law, but the following works should be consulted: James Bryce, “The Law of Nature,” in his Studies in History and Jurisprudence (New York, 1901); Sir Frederick Pollock, Essays in the Law (London, 1922); Roscoe Pound, Law and Morals (Chapel Hill, N.C., 1924); Charles G. Haines, The Revival of Natural Law Concepts (Cambridge, Mass.: Harvard University Press, 1930); Ernest Barker, “Ernst Troeltsch on Natural Law and Humanity,” in Natural Law and the Theory of Society: 1500–1800, ed. Otto Gierke (Cambridge, Eng.: At the University Press, 1934); John Walter Jones, “The Law of Nature,” in his Historical Introduction to the Theory of Law (New York: Oxford University Press, 1940); Cobban, The Crisis of Civilization; Richard O’Sullivan, “Natural Law and Common Law,” in the Grotius Society Transactions for the Year 1945, Vol. XXXI (London: Longmans, Green and Co. [1946]); Ernest Barker, “Natural Law and the American Revolution,” in his Traditions of Civility (New York: The Macmillan Co., 1948); University of Notre Dame Natural Law Institute Proceedings (Notre Dame, Ind.: University of Notre Dame Press, 1949–1951); A. P. D’Entreves, Natural Law (London: Hutchin-son’s University Library, 1951); Louis I. Bredvold, “Jus naturale redivivum,” in The History of Ideas News Letter, Vol. I, no. 1 (Dec, 1954). For the revival of Natural Law in France and Germany see the following: Joseph Charmont, La renaissance du droit naturel (Montpellier: Coulet et fils, 1910); François Geny, Science et technique en droit privé positif (Paris: L. Tenin, 1914–1924); Louis Le Fur, La théorie du droit naturel depuis le XVII siècle et la doctrine moderne (Paris, 1928); Jacques Maritain, Les droits de l’homme et la loi naturelle (New York: Éditions de la Maison française, Inc., 1942); Ernst Troeltsch, The Social Teaching of the Christian Churches (1912), tr. Olive Wyon (New York: The Macmillan Co., 1931); Ernst Troeltsch, Naturrecht und Humanität in der Weltpolitik (Berlin, 1923); Johannes Sauter, Die philosophischen Grundlagen des Naturrechts (Vienna: Springer, 1932); Heinrich Rommen, The Natural Law, tr. Thomas R. Hanley (St. Louis: B. Herder Book Co., 1947).

⁴ . Roscoe Pound, “The Scope and Purpose of Sociological Jurisprudence,” Harvard Law Review, XXV (Nov., 1911), 162. In 1945 Richard O’Sullivan also observed: “Even before the outbreak of the war of 1914–1918 the minds of men … were seeking to restore jurisprudence to its proper state and its ancient dignity by a revival and a restatement of the principles of natural law” (Grotius Society Transactions for the Year 1945, p. 137).

⁵ . Charles Haines has proved from a rich source of American court cases that in practice the Natural Law has always been applied: “In public law the use of natural law theories for various purposes has been continuous from Colonial times to the present day.” Haines has demonstrated “the significance of natural law ideas in the interpretation of the state and federal constitutions in the United States, where natural law doctrines have been extensively applied” {The Revival of Natural Law Concepts, p. 220). According to Roscoe Pound, the same use of Natural Law ideas is to be found in practical legal decisions throughout Europe: “All nineteenth-century theories of judicial decision in one way or another grow out of the natural law thinking of the seventeenth and eighteenth centuries” (“The Theory of Judicial Decision,” Harvard Law Review, XXXVI [May, 1923], 802).

⁶ . For two excellent essays on the Natural Law as viewed by these writers, see Robert N. Wilkin, “Cicero and the Law of Nature,” and Thomas E. Davitt, S.J., “St. Thomas Aquinas and the Natural Law,” in Origins of the Natural Law Tradition (Dallas: Southern Methodist University Press, 1954). In Cicero’s time three types of law were clearly distinguished: (1) Jus civile was a positive law applicable only to Roman citizens. (2) Jus gentium was generally contractual law, commercial in its content, and was a kind of common or international law which applied both to Roman citizens and foreigners. It possessed a “universal” element as distinct from the local or national peculiarities of jus civile. (3) Jus naturale was the Natural Law, the law imposed on all men by virtue of their common humanity. Its moral essence was contained in the Stoic principle of equality: omnes homines natura aequales sunt. In St. Thomas Aquinas there were four types of law: (1) lex divina, the law revealed to man by God in the Scriptures; (2) lex humana, man’s positive laws which conformed to God; (3) lex aeterna, the law of all creation, revealing the will of God in natural phenomena and to all His creatures; and (4) lex naturalis, the Natural Law, by which man’s right reason can comprehend the will and reason of God.

⁷ . Compare these points for similarities and differences with Lois Whitney’s account of the laws of nature in the eighteenth century, in Primitivism and the Idea of Progress (Baltimore: The Johns Hopkins Press, 1934), p. 10.

⁸ . Cobban, The Crisis of Civilization, p. 86.

⁹ . See Etienne Gilson, Reason and Revelation in the Middle Ages (New York: Charles Scribner’s Sons, 1950).

¹⁰ . See Troeltsch, The Social Teaching of the Christian Churches.

¹¹ . O’Sullivan, Grotius Society Transactions for the Year 1945, XXXI, 120. See also p. 122.

¹² . Ibid., p. 123.

¹³ . Ibid., p. 135.

¹⁴ . John S. Marshall, “Richard Hooker and the Origins of American Constitutionalism,” in Origins of the Natural Law Tradition, p. 68.

¹⁵ . “The American Revolution, as it ran its course from 1764 to...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Table of Contents
• Introduction to the Transaction Edition
• Foreword
• Preface
• ONE The Philosophic Content and Historical Importance of Natural Law
• TWO Natural Law and Revolutionary “Natural Rights”
• THREE Burke and the Natural Law
• FOUR The Law of Nations
• FIVE Revolutionary “Natural Rights”
• SIX Human Nature
• SEVEN Church and State
• EIGHT Burke and the Sovereignty of Natural Law
• APPENDIX I
• APPENDIX II
• Bibliography
• Notes
• Index