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Published online by Cambridge University Press: 05 August 2009
Among the many discussions stirred by recent searchings after the source and substance of a conservative tradition has been that of the place of natural law in the thought of Edmund Burke. One view which has received renewed emphasis is that Burke's natural law is essentially Thomistic. Those who support this view frequently cite Burke's many references to “the law of nations and of nature.” The purpose of this paper is to show, by particular reference to the subject of international law, that it is misleading to place Burke in the older natural law tradition. In ideas as well as in time, he stands more nearly at a mid-point between that tradition and the positivist approach to law. Revelation and the interpretive aid of a Universal Church, which were crucial to the traditional concept of natural law, do not play a similar role in Burke's thought. The same meaning, therefore, cannot be attributed to his references to the natural law.
1 See, for example, Stanlis, Peter J., “Edmund Burke and the Law of Nations,” American Journal of International Law, XLVII (07 1953), 413Google Scholar: “In his full acceptance of the international and constitutional law of nations, Burke was in perfect harmony with his cardinal moral philosophy—the law of nature.”
2 Ibid.
3 Selections from Three Works of Francisco Suarez (Classics of International Law, Oxford, 1944), p. 4Google Scholar.
4 Ibid., p. 178.
5 De Jure Belli ac Pacts, Libri Tres (Classics of International Law, Oxford, 1925), p. 38Google Scholar. Grotius went so far as to argue that the natural law would be valid even if there were no God. See Nussbaum, Arthur, A Concise History of the Law of Nations (New York, 1954), p. 108Google Scholar.
6 The State in Catholic Thought (St. Louis, 1954), p. 623Google Scholar.
7 See Nussbaum, , op. cit., p. 85Google Scholar. This is the same element which, in the thought of Thomas Aquinas, led Lord Acton to call him the “first Whig.” It is not the Whiggery of Burke.
8 Cf. Stanlis, , op. cit., p. 403Google Scholar.
9 Edmund Burke and the Revolt Against the Eighteenth Century (London, 1929), p. 117Google Scholar.
10 Stanlis, , op. cit., 398Google Scholar. He cites this as an example of the use of the vocabulary of natural law to arrive at “a Hobbist theory of sovereignty, of will over law, which completely contradicted Burke.”
11 Rommen, , op. cit., p. 174Google Scholar.
12 See Strauss, Leo, Natural Right and History (Chicago, 1953), pp. 303–13Google Scholar and Frisch, Morton J., “Burke on Theory,” Cambridge Journal, VII (02 1954), 292–7Google Scholar.
13 Cf. Works (12 vols., London, 1887), VI, 368Google Scholar; also an extract from Burke's notebook quoted in Somerset, H. V. F., “Edmund Burke Outside Politics,” Dublin Review, CCIV (01, 1939), 144Google Scholar and The Windham Papers (London, 1913), p. 278Google Scholar.
14 “Burke … says that natural right is human custom conforming to Divine intellect. … He dislikes, indeed, to define it very closely; natural right is an Idea comprehended fully only by the Divine intellect; precisely where it commences and terminates, we are no fit judges.” Kirk, Russell, “Burke and Natural Rights,” Review of Politics, XIII (10, 1951), 442Google Scholar. This is certainly not a very helpful criterion for, nor aid to, human judgment. Because of this lack of standard, rational or revealed, Lord Acton declared of Burke: “He looked for what ought to be in what is. Is this not essentially Anglican?” Quoted in Murray, Robert, Edmund Burke (Oxford, 1931), p. 359Google Scholar.
15 Parliamentary History, XXII, 228–30.
16 Ibid., XXII, 554–6. A few years later, Burke, wrote: “The miserable inhabitants of Bengal, who are submissive (as they have been well described) by nature, religion, and inveterate custom, — have been formed to obedience, and … the only question is, to whom they shall be slaves, they expect, they desire no liberty.” Correspondence (London, 1844), IV, 490–1Google Scholar.
17 Introduction to De Jure Belli, Libri Tres (Classics of International Law, Oxford, 1933), p. 50aGoogle Scholar.
18 Parliamentary History, XXII, 231–2. Stanlis, , op. cit., p. 404Google Scholar, cites this as proof that “Burke derived his principles of the law of nations from natural law,” but its implication is to the contrary. Rommen states flatly that the idea of a just war on both sides is “monstrous.” Op. cit., p. 669.
19 The Law of Nations (Classics of International Law, Washington, 1916), p. 305Google Scholar.
20 “St. Augustine seems to hold with the ancient proverb to the effect that ‘all things’ are ‘fair’ in war. … ‘For a just man ought not to give special consideration to these matters [rightful means of war], but only that he begins a just war.’” Scott, James Brown, Francisco De Vitoria and His Law of Nations (Oxford, 1934), pp. 184–5Google Scholar.
21 Ibid., p. xl. and Suarez, , op. cit., p. 829–30Google Scholar.
22 Op. cit., p. 566.
23 Jus Gentium Methodo Scientifica Pertractum (Classics of International Law, Oxford, 1934), pp. 324–5Google Scholar. See also Nussbaum, , op. cit., p. 153Google Scholar: “Under the necessary law war can be just on only one side, but under the ‘volitional’ law the war is to be considered as just on both sides as far as the effects are concerned; and to this extent the volitional law overrrides the necessary law. (Evidently this distinction was suggested to him [Wolff] by Grotius' theory.)”
The similarity between Wolff's “volitional” law of nations and Burke's “public law of Europe” is discussed in footnote 28, below.
24 De Jure Belli, Libri Tres (Classics of International Law, Oxford, 1933), pp. 31, 33Google Scholar.
“Most significantly Gentili departs from the teachings of the scholastics by stating that a war may be just on both sides, and not only because of excusable ignorance, as Vitoria concedes, but objectively. Gentili adds that there may be differences in the degree of justness.” Nussbaum, , op. cit., p. 97Google Scholar.
25 Ibid., pp. 12, 74. It should be noted that when Burke appeals to the method of analogy for deriving the law of nations from civil law according to principles of “universal equity” (see Stanlis, , op. cit., p. 409Google Scholar), he refers to Roman law, saying, “Almost the whole praetorian law is such.” Works, V, 321.
26 Nussbaum, , op. cit., p. 15Google Scholar, says that the idea of natural law never meant much in Roman law.
27 Op. cit., p. 166n.
28 Burke's commonwealth of Europe and its law are in many ways similar to the civitas maxima which Wolff had assumed in theory and the “volitional” law of nations which he derived from it. Nussbaum describes the civitas maxima as “no more than the personification of a certain body of rules which he [Wolff] believed to be observable in international affairs,” and the derivative volitional law of nations as “in a sense, another law of nature; to wit, a law derived from the nature of a hypothetical organization of nations.” Op. cit., pp. 153–4.
Wolff established the civitas maxima as a theoretical link between natural and positive law, and in doing so he shifted the emphasis from natural law. Otfreid Nippold, in his introduction to Wolff's work in the Classics of International Law, op. cit., pp. xxxvi–viiiGoogle Scholar, declares that Wolff freed international law from natural law and made positive law a science. Vattell, his follower, rejected the civitas maxima in favor of a completely rational basis for international law. Burke rejects the rationalism of Vattel and, while he never refers to Wolff, the law of Europe which he saw as an actual prescriptive standard served him in the same way that its theoretical counterpart served Wolff. Both Wolff and Burke paid their respects to natural law, but it was not the natural law of Suarez. Both had their difficulties in connecting it to observable human affairs. For Burke in particular, as the politician rather than the professor, it emerged as custom; custom refined by prudence, to be sure, but unsupported by any standard beyond itself.
Stanlis, , op. cit., pp. 400–1Google Scholar, recognizes that “India excepted, this common law of the European commonwealth is the broadest frame of reference Burke ever made.” He maintains that it was simply a practical preference of Burke's to assume this “new, hypothetical, transitional law between the universal natural law and the particular constitutions of particular states,” and to restrict his use of the term “law of nations” to it. On examination, however, the law of Europe appears to be the largest meaningful frame of reference which Burke's reliance on prescription will permit, rather than merely a convenient qualification of natural law. His difficulty in operating with consistency outside this frame of reference has already been noted with regard to India.
29 Works, V, 441.
30 Parliamentary History, XXX, 433–4. Stanlis, , op. cit., p. 407n.Google Scholar, says that at the time of the first partition Burke “had castigated Britain for placing a narrow national self-interest above social justice, and had warned that non-interference was a novel innovation which might someday destroy the balance of power in Europe.” Non-interference has no place in a balance of power policy, as Burke told Fox after the French Revolution, but neither, as this quotation makes clear, has “social justice” as a motive for intervention overriding considerations of national interest.
31 Works, VI, 368.
32 Stanlis, , op. cit., p. 397nGoogle Scholar.
33 Works, IX, 456. Cf. Stanlis, , op. cit., p. 410Google Scholar: “By virtue of His contract with the original goodness and wisdom of His creation, God cannot by arbitrary will be unjust to any of His creatures …”
