Academic journal article Journal of Markets & Morality

Natural Law in Tocqueville's Thought

Academic journal article Journal of Markets & Morality

Natural Law in Tocqueville's Thought

Article excerpt

Introduction

In Tocqueville's works, it is hard to find a term natural law. There is no chapter that is dedicated to this subject. It could lead us to the presumption that Tocqueville denies the existence of natural law or that he more or less consciously omits this issue. We even find this opinion in the works of Tocqueville scholars. (1) What I intend to demonstrate is that such a presumption is false. Not only does Tocqueville acknowledge the existence of natural law, but he also assesses social phenomena on its basis.

Concept of Natural Law

Tocqueville's idea of natural law should be reconstructed from a variety of particular considerations concerning law.

First, we find a clear track of natural law in the definition of justice. We read in Democracy in America: "A general law--which bears the name of Justice--has been made and sanctioned, not only by a majority of this or that people, but by a majority of mankind." (2) The natural-law character in this definition is expressed in the universal scope of this system of norms. In the following part of his consideration, Tocqueville describes justice as the law of the whole human society. He makes a characteristic comparison: "A nation may be considered in the light of a jury which is empowered to represent society at large, and to apply the great and general law of justice."(3)

Referring to the fact that Tocqueville makes the equation between natural law and justice, it is worthy of our interest to look at the competition between justice and honor. By honor, he understands the aggregate of those rules by the aid of which esteem or glory is obtained. (4) The acceptance of the existence of a dual system of judgment of human behavior is his point of departure. Tocqueville writes, "at one time they judge them by those simple notions of right and wrong which are diffused all over the world; at another they refer their decision to a few very special notions which belong exclusively to some particular age and country." (5) Tocqueville therefore indicates that within society there are also norms, specific to the particular regime, that are created by the social and cultural conditions. Such norms are not always in line with the natural law. He states, "It often happens that these two standards differ; they sometimes conflict, but they are never either entirely identified or entirely annulled by each other." (6) As an example Tocqueville proffers the situation when someone refuses to fight a duel. From a natural-law perspective, it is a virtuous act, but as far as honor is concerned, it is at the same time dishonorable. (7) Although honor could wield a significant impact upon human behavior, it is unable to completely displace natural law. Tocqueville states, "and even while they yield without hesitation and without a murmur to [honor's] dictates, they feel notwithstanding, by a dim but mighty instinct, the existence of a more general, more ancient, and more holy law, which they sometimes disobey, although they do not cease to acknowledge it." (8) It is the obvious proof of the natural-law superiority over the other systems of norms. As we could see this is due to the fact that natural law is deeply written down in human nature and for this reason it is not easy to muffle its voice.

According to Tocqueville, one of the most significant differences between honor and justice lies in the fact that as the former refers only to the public, external area, the latter refers also to sphere of private behavior; "honor acts solely for the public eye, differing in this respect from mere virtue, which lives upon itself, contented with its own approval." (9) In this context, it seems to be justified that according to Tocqueville, observance of natural law leads man to virtue. We will come back to this question further in this article because it demands a deeper examination. Furthermore, honor is changeable and local phenomenon is limited by time and territory while natural law has universal, immutable nature. …

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