In my previous post, I critiqued Reinach’s a priori theory of right for his attempt to ground it in extra-moral claims and obligations. I questioned the status of extra-moral claims and obligations. And I put forth an alternative phenomenological description of the act of promising that locates it within the domain of ethics. I argued that, rather than thinking of moral obligations as arising from the extra-moral obligation inherent in the act of promising, it is in the formal nature of the act of promising that it can only give rise to moral obligations if the content of the promise is moral (or at least not immoral). An immoral promise, or a promise with immoral content, can then be recognized as a kind of modified promise that, because of the formal nature of the act of promising which requires its content to not be immoral, does not give rise to an obligation to fulfill the content of the promise. It is a promise that one had no moral right to make in the first place, and one cannot have a moral obligation to do an immoral deed. From the act of promising, a species of social acts, Reinach moves on to discuss rights and property, and finally to the relation of his extra-moral a priori theory of right to positive and natural law. For the purpose of this post I will skip over the subject of rights and only briefly touch on the subject of property. Instead, I will focus on the implications of Reinach’s theory, and its errors, with regard to its relation to positive and natural law.
As with the act of promising, Reinach attempts to carve out a distinct extra-moral sphere for the phenomena of property. As with the act of promising, I contend that with respect to property Reinach fails to get at the thing itself, although he does seem to come close. He argues:
Now we touch upon the difficult question as to the origin of property itself. From the very outset we have to insist emphatically that this is not a question about historical development nor a psychological question nor an ethical question. We do not want to know how the institution of property gradually arose in the history of mankind; equally irrelevant for us are the psychological factors in human nature which in fact underlie the recognition and elaboration of the concept of property. We are above all not concerned with question whether property or some form of it can be morally justified and how it can be morally justified. We are interested in the conditions under which owning can arise in the apriori way in which for instance a claim arises from a promise. (72)
I quite agree that the empirical-contingent historical and psychological factors surrounding property are not of fundamental importance; they do not get at the essence of property. I will even agree to a point that the questions of what form of property is morally justified and how this can be justified are distinct, albeit related, questions. However, Reinach fails to see that property itself is a moral concept. As Reinach himself points out, property is not mere possession. The very essence of property is permeated with normativity. Property presupposes that a thing belongs to someone, that he has a right to it, that it is morally right and good that he make use of it as he sees fit, and morally wrong and bad for someone else to invade the owner’s right. It is surprising that Reinach could not see the inherently moral nature of property. To be sure, although property is an inherently moral concept, it is a separate but intimately related question as to what kind of property is morally justified; or, to be more precise, what counts as property. It is conceivable that an ethical theory could hold that no kind of property can be morally justified, although I think that any such theory would be absurd. A full-bodied a priori theory of right will, however, need to both recognize that property is a moral concept and answer the question what kind of property is morally justified, and it will need to explain why. These three issues are distinct but indispensable for a full a priori theory of right, because the a priori nature of property cannot be understood without them.
Reinach’s insistence that the a priori theory of right is extra-moral has strange consequences for its relationship to positive and natural law. Though the phenomena he describes are a priori and they form the foundation upon which the positive law can arise, the positive law can nevertheless deviate from these a priori structures. This in itself is not a problem, as it would indeed be strange if Reinach insisted that the positive law could not deviate from the a priori; plainly, it does. The strangeness of Reinach’s theory is that he argues that it is often good that the positive law do so. “Here too it is the case that that which exists according to essential laws and which prima facie ought to be, can turn out to be such that it ought not to be when considered in the whole context of its factual setting” (134, my emphasis). Why would it ever be the case that the a priori legal structures ought not to be followed? How could it be possible that the positive law ought to be followed even when in direct contradiction to its a priori foundations? One must wonder just what is the status of these a priori phenomena if they are right in some contexts and wrong in others. Judging from Reinach’s discussion here it would seem that he considers the a priori phenomena of right to be ideal types. Only if treated as ideal types could it be conceivable that a priori phenomena of right ought not to be followed in certain contexts. As ideal types it would make sense if they did not fit some cultural or historical contexts, and if they resulted regularly in bad consequences when followed in such contexts. But if this is true of Reinach’s theory, one must wonder what kind of a realist he is.
Reinach also strongly distinguishes his theory of right from natural law. He is at pains to stress not only the extra-moral character of his theory of right, but also to distance himself from what he sees as the errors and vulnerabilities of natural law.
One has objected to natural law philosophers that they fill out the gaps in the positive law with the “ideal law” or “rational law” which beckons to them from a distance, and that they even want to replace explicit positive enactments by this “higher” law in the event of a contradiction between them. Such an objection would of course not even apply to us. We do not speak of a higher law, but of simple laws of being. (135)
It is certainly true and, I think a positive feature, that natural law makes positive law subordinate to it. However, it is not so much that natural law should replace explicit positive enactments when such enactments contradict it, but rather that such positive enactments are immoral and unjust and so lack obligatoriness. Such unjust positive laws should be replaced, not necessarily with natural law but with positive law that is in keeping with natural law. Moreover, not all natural law philosophers see natural law as filling in the gaps in positive law. Some see positive law as filling in the gaps of natural law! Reinach’s following criticism of natural law thus misses the mark, at least as far as some versions of natural law are concerned:
The frequently cited mistake which natural law theory made is that it believed in the possibility of setting up for all times an ideal law with immutable content and that it did not sufficiently take into account the variable conditions of life on which the validity of such principles depends. […] It is obvious that there are no general laws which can be proposed for the way in which say the sale of a house has to be conducted at all times and under all economic conditions, there remains
still the question whether there are not here laws of a very different, relatively formal kind which do not depend on changeable conditions and are therefore in their validity independent of all historical development. (136)
There are a host of confusions that need to be addressed here. Many natural law theories in the past have been guilty of attempting to specify ideal law with immutable content. Not all natural law theories are guilty of this, however.
There are natural law theories, though they are mostly relatively recent discoveries, that attempt to lay out precisely the kind of formal laws that Reinach is searching for. Indeed, my own conception of natural law is of a formal moral discipline that has its grounds in the logical structure of reality. Conceived in such a way, the principles of natural law are general or formal in nature but are sensitive to context when applied in practice. While it certainly would be absurd for a natural law theory to specify in detail the content of laws regulating the sale of houses, there are indeed some general moral laws governing such: laws of justice dealing with rights to life, liberty, and property that preclude the initiatory use of force. While it would be absurd for natural law to specify the precise amount of profit that can be had, how many witnesses are necessary, what kind of coinage must be used, etc., natural law can and does hold that a sale should be uncoerced and that for the sale to be just the seller and the purchaser must engage in voluntary and mutually agreed upon exchange; otherwise, it is not a genuine sale.
The natural law, as some have conceived it and as I conceive it, consists of general or formal universal principles that are grounded not in physical nature, or historical accident, or in human psychology, but in the logical structure of reality. Part of the reason for Reinach’s misguided rejection of natural law is that he conceives of it as only being grounded in either or both physical nature and human psychology (137-8). Once it is realized that this feature of natural law is a historical accident pertaining only to some invalid versions of it, much of the force of Reinach’s antipathy to natural law can be overcome. Indeed, it is this misconception of natural law, combined perhaps with his seeming conception of the a priori phenomena of right as ideal types, that seems to underlie Reinach’s insistence that the a priori phenomena of right are extra-moral. It rather seems more true to the things themselves to conceive of a single a priori discipline of natural law from the evaluative standpoint of which one can judge the justness of positive law which itself is necessary to “fill in the gaps” of the natural law, instead of positing a sphere of extra-moral phenomena that seems unnecessary and non-existent.
Geoffrey is an Aristotelian-Libertarian political philosopher, writer, editor, and web designer. He is the founder of the