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The questioning of the principles underlying the hermeneutic patina of natural law can be seen with profound suspicion. It is assumed that doing so would nolens volens engender an opposition to such legal instruments as human rights, which are generally regarded as achievements of an era and civilisation. As I do not want the opinion which I am about to present to be associated with any political tendency other than the one implied here, I must stress that I do indeed attach great value to such things as human rights or other legal products consubstantial with them. Nonetheless, I do not predicate such an appreciation on the assumption that they are valuable because they are natural, but only in so far as I find them useful for realising certain rational ends of political organisation. What I shall propound here is an opposition to the philosophical underpinnings of natural law, in particular, its inherent conflation of the pragmata with the chrēmata. I shall do so, not for the sheer pleasure of struggling for conceptual clarity, but for ultimately putting forward an argument for genuine autonomy, of not seeking legitimation for political praxis and theorisis in any kind of exteriority to human, be it God(s), a mystified Nature, some specious historical constant etc.
Pragmata and chrēmata
As the term “natural” is used to denote different things, I shall rely on my own terminology (and analytics), as introduced in my Notes on the Thinkable. For what is indeed Universal, for what has change or the lack thereof in itself, I name it the pragmatic and its elements the pragmata. An example of the pragmatic could be drawn from physics where, for instance, gravity is in operation whether human convention approves of it or not. Furthermore, the pragmatic exists even before it becomes thinkable, in the way that it will, to the extent that it will, for as long as it will; though it is only by becoming thinkable that it can be recognised. The Higgs boson, one of the major discoveries of modern science, was performing whatever function it is that it performs, regardless of being revealed to human—of becoming thinkable—yet it is by being thinkable that it is known; and in becoming thinkable it provides the impetus to further research and for the expansion of thoughts along those lines.
In contradistinction, the chrēmata are those things that have no change or the lack thereof in themselves; the things that exist because of—and in—human, in the way that they do, to the extent that they do, for as long as they do. For chrēmata change or stasis occurs through a process of thought, logos, which alters their presence. I name the logos of created differentiation, diaphoropoiesis, and the logos of created constancy, statheropoiesis. Examples of chrēmata would be morality, law, politics, social order, economic value etc. Whether a law is just or unjust—an evaluation—shall be determined in accordance with all the conscious and subconscious assumptions and presumptions peculiar to that chrēmatic order. The claim that, say, a law partakes of (the Form of) Justice, does not bestow pragmatic status on a chrēmatic element, since the very notion of “Justice” is a chrēmatic value that appears as an absolute figure of the thinkable in the fundamental taxonomy of thought. In other words, it is that manifestation of the thought, which encompasses all possible functions and ends—any given presence—of the thought qua chrēmatic.
Chrēmatopoiesis, human nature and the attachment of value
Having made these introductory remarks on the dichotomy between pragmata and chrēmata, we may now consider the empirical argument. If something were indeed pragmatic, it would need no human law to enable it or to standardise it. If something is chrēmatic it may actually require canonization in the chrēmatic order be it by law or tradition, _so as to _become applicable, or further, to be perceived as universally valid. Let us consider a few hypotheses: would we need a law to allow plants to photosynthesise? Or a law to permit the sun to rise and fall, as we see it? Or another piece of legislation to determine the center of mass of this planet? In all such cases the answer would be resoundingly negative.
What human could do in dealing with such magnitudes, would be to determine the value attached to them. In particular, human—human reason if you wish—can ascribe some degree of importance to the sun, be it as a source of aesthetic experience, or as the physical manifestation of a deity that overlooks humankind or one of its communities. Such evaluation could be made for all pragmata, say, for plants where for example it would be considered a sacrilege to cut down a tree or to collect flowers for decorating your office or expressing a feeling for another person. In those instances, we would be confronted with the formation of a chrēmatic other out of the pragmata. I call this kind of creation, chrēmatopoiesis.
To carry the argument further, let us cut to the nub of the issue: human nature. It is alleged that there indeed are some faculties in human that are pragmatic and these provide the basis—the ultimate legitimation—of a legal order that draws from that pragmatic source to become pragmatic/natural and therefore universal in itself. This kind of proposition entails both a valid and an erroneous remark. Its validity is found in the recognition of pragmatic elements in the entity named “human”; while its falsity is to be identified in conflating pragmata with chrēmata by assuming that the value attached to these pragmata is in itself pragmatic.
So what is human nature? I would indeed recognise as pragmatic those faculties peculiar to human which have change or the absence thereof in themselves and not in human convention. For example, humans see with their eyes, smell with their nose and hear with their ears. The occurrence or not of these facts is not a function of human convention; at least not in the present stage of human development. No law is needed to grant someone a right to seeing with their eyes rather than their nose or ears. If a law were necessary for fostering such a state of affairs, these “faculties” would not be pragmatic and certainly not universal, for wherever such law were absent the alleged universality would prove to be nothing more than a normative theory. Put differently, it would be empirically incorrect in the constitution of a case.
There still are some other aspects of human nature that require closer consideration. These are the propensities humans have for happiness, compassion, domination, egoism, altruism etc. It seems somehow safe to suggest that these are elements of human psychosynthesis, which is still part of human nature. Let us for argument’s sake assume that all of them are pragmatic and that no propensity whatsoever is generated or amplified by the chrēmatic order. Could we then discern some propensity which would indeed provide the fundament upon which a pragmatic/natural law edifice could be erected? I think that we would not, for these propensities are not monolithic and certainly not mutually exclusive to any human individual or collective. Most if not all of them coexist in varying degrees relative to interweaving webs of factors that enhance or suppress them, in complex ways and with different effects.
Against this backdrop, the legal theorist is dealing with the problématique of prioritising propensities along a value scale. In ordering these propensities, the thinker, blithely proceeding with chrēmatopoiesis, could very well be laboring under the impression that the taxonomy of value she formulated is indeed pragmatic and, a fortiriori, that all deductions qua potential laws she had inferred would partake of that ostensibly pragmatic essence. Yet, if the theorist were conscious of her process of thought, she would understand that she was effectively digressing towards a fictitious chrēmatic benchmark, only to realize that there is none to be found. She would then be faced with the dilemma of either validating her thoughts as being aligned with—or inferred from—the chrēmatic order she assumed as a given or perceived as desirable, or instead to venture into seeking legitimacy in an exteriority qua pragmatic/natural that would be considered as being “required” for providing a firm foundation to all that legal/ethical reasoning.
Before scrutinizing and eventually disposing of the presumptuous need for such an exteriority, I must state that what I am trying to suggest at this point is that even if propensities, as being elements of human nature, are pragmatic throughout, their evaluation and the law/ethics inferred from them are chrēmatic, all too chrēmatic. The fact that human rights have not always existed, that their application is neither historically nor culturally ubiquitous, that they are indeed considered an achievement of a certain era and civilisation, decisively obliterates the presumed pragmatic status of natural law, only to reveal that these doctrines are in themselves chrēmatic, litanies to its designation as “natural” notwithstanding. Pitting further stress on this remark, if we were to assume that human convention were to never bestow freedom of religion to the human being, human beings would have no such freedom, period; whereas by contrast, if human convention were to obstinately disprove of gravity, it would still be irrelevant to the operation of this physical force as such—and let those who agreed to such convention attempt jumping from 20.000 feet up from the sky to see for themselves how their law would function…
The gist of the matter is to draw a distinction between “human nature”, whatever that may be, and the tissues of values attached to it. My bottom line in this section is not to deny the existence of some elements germane to human that are pragmatic, but to treat their evaluation, the preference scale made out of them as chrēmatic. In being so, its products, the laws/ethics, are not universal unless they are instituted as such. It is the notion of “institution” that I shall consider in the following section to provide for my alternative approach in favor of genuine autonomy.
Autonomous and heteronomous legitimation
By the term “institution” I mean the act of formulating a constant out of an element of the chrēmatic. For example, if it is considered true that waging a war for one’s country is an act of high moral value, this “truth” is an instituted one, for it provides a patina of universal validity to a given value. If it is considered true that all humans think on the margin, as the naive economist would claim, this too is an instituted truth; one that may be taken for granted in a given culture or subculture, say within a capitalist society, or an academic community, or a sect of it. And to bring this to the case of natural law, if it is considered true that the human being has dignity, this too is an instituted truth, peculiar to a given chrēmatic order, for there have been, are and may be cases where such a claim was/is/may be false or even meaningless.
There essentially exist two types of institution: from the self and from the other. The former is auto-institution, the latter is hetero-institution. Given that law or nomos is chrēmatic and taking into account that institution is also chrēmatic, we can make use of the terms autonomy and heteronomy to refer to institution from the self or from the other respectively.
In the previous section I claimed that natural law is actually chrēmatic and by that token it is not necessarily universal unless it becomes so by institution. This does not mean that we should reject applicable natural law and instead go on searching for a truly pragmatic fount of legitimacy. Doing so would still involve some sort of chrēmatopoiesis, thus making the whole quest of identifying an exteriority as the quintessence of morality/legality, a futile one. Instead of running the risk of sinking into a slough of such fallacies, let us postulate that natural law is nothing more and nothing less than a specific kind of rational law code; “rational” in the sense that it does indeed function as the means to meet the ends of a chrēmatic order.
Even so, what would still beg to be examined, is the origin of institution. Natural law theorists are effectively expounding a theory of heteronomy, since they claim that it is something other than them which determines the value they attach to the things they create. Whatever the name of that otherness may be, it is still considered as exterior to their law/ethics per se. Having already referred to the chrēmatic character of natural law, I can see no reason why we “should” cling on to such superstition. Why do we need something else to justify the things we do? Why not openly accept that what we do in terms of law and ethics, we do it because we honestly believe that it will be better than not doing it, in the context of our values, and that we do it because we agree that such course of action is the most optimal choice, relative to the array of options we have established?
I do understand why a government, office, person claiming to be the representative of a deity on earth would indeed need such an exteriority to justify their rule. I also understand why secular exteriorities may be required to provide a plausible foundation to a given political conception. Take for instance the figments of the Westphalian state, the nation, the sovereign authority qua supreme morality of these reified concepts that are all treated as the ultimate backstop to a certain chrēmatic order. In such cases, I do see the need for some kind of a deus ex machina to save the day, for the governments clinging to such notions are also claiming to be serving something “other” than what they actually do.
But when it comes to a modern society, such as the one I live in, the European Union, which purports to be enlightened, which claims to be democratic, i.e. ruled by the people and not some dubious otherness, which tacitly or explicitly suggests it has greatly overcome the most egregious prejudices of the Middle Ages, I frankly believe that there can be no persuasive excuse to keep on with this ritualistic reference to some exteriority in order to legitimise what is evidently done here by us.
Put succinctly, the context in which I find myself immersed in—the European Union or, more generally, the “West” of the 21st century—needs no heteronomy whatsoever. For instance, we can still have human rights even if these are recognised as the chrēmatic proto-elements of our ideal legal system; as the basic principles we would enshrine in any legal code we would concoct. Moreover, we can still consider the human being as having dignity, as a rational way of maintaining peace or of improving our well-being, however defined, or generally of achieving our objectives. If it is indeed the people who decide, let them, through their deliberations, be the institutors of their chrēmatic order and not some spurious otherness.
Against such a proposition, it could be said—and it has been stated quite forcefully and consistently—that in the absence of some perceived authority exterior to human, order would be unsustainable, as everyone would turn against everybody else until all were sent into oblivion. This sort of ex cathedra pronouncement can generally be seen as the first line of defense of a system of political organisation whose locus of power is centralised; a system that does not trust anyone other than those who are to be found in the highest echelon of the political structure. Be as it may, that would still be a chrēmatic statement, an evaluation of a sort and would in no way provide legitimacy of a pragmatic character. And to be clear, my proposition, which is that of trusting people rather than some elite, is no pragmatic either; it also is chrēmatic all along and I think it is in line with the tenets of thought found in the context I am brought into. Which of the two approaches is to prevail is a matter of context, of the specific value scale, not of either of them being somehow better at proposing pragmatic laws/ethics, since there are no such things to be found.
The division between pragmata and chrēmata is necessary for conceptual clarity per se. In the context of jurisprudence or indeed other realms of inquiry, this is of utmost importance in drawing clear delineations between different conceptualisations of the origin of legitimacy. In this article, I have put forward an argument against the conflation between pragmata and chrēmata, suggesting that no chrēmatic benchmark exists and that the evaluation of pragmata involves a process of chrēmatopoiesis, which does not universalise the value attached to them, unless by institution. The institution of such a standard can be perceived as being brought about by otherness or recognised as stemming from the self.
Natural law theories have hitherto been forwarded along the lines of heteronomy, seeking to bestow the status of ultimate validity of legal/ethical values to an exteriority. In the context in which I currently am living in, I cannot help but think that such a presumptuous practice is superfluous if not detrimental to the ends this chrēmatic order asserts. In particular, I am of the opinion that in these circumstances there are grounds for openly acknowledging that autonomy is what we are doing and that our laws are rational relative to our values/ends.
The realisation of autonomy in this context, is not a penchant of a thinker for categorisation and precision; it rather is the kind of idea that can allow people to escape from the rigidities imposed on them by themselves without them being aware of it. In this regard, I repeat that I do not object to the products of natural law per se, such as human rights. I do, nevertheless, deny their alleged heteronomous status, willing instead to uphold that a law code draws its legitimacy from us, its universality from our institution, from our willingness to abide by the principles we formulate and from our determination to establish them as the midpoint of our chrēmatic order.
So why does anyone need to bother with all this anyway? Simply because being aware of the actuality of autonomy allows one to proceed with changing instituted truths that were formulated in a context anterior to their own. As society empowers and remakes itself in different ways, it eventually considers anew the preference scales of its dead ancestors; and an autonomous society may do so with alacrity and rigor.