taken from ch. 5, “Common-Law Religion,” Common-Law Conservatism (WordBridge, 2007).

The founder of state of nature politics, Hugo Grotius, was motivated by the desire to move beyond religion, specifically Christianity of one form or another, as the basis for legitimating sovereignty. Sovereignty had to be grounded in something other than a common religious confession, and he felt he had found that grounding in the very institutions of private law: property and contract. These could serve not merely as institutions at the service of society but as institutions creating society.

The root of these institutions is the concept of subjective right, which entails a specific conception of human nature, viz., one in which human being are seen as ends, not means, and as centers of judicial spheres of influence from which their worlds are ordered (see the discussion on page 26 above).

However, the doctrine of subjective right, as Stahl rightly noted, is only a secondary principle of legal formation. It is subordinate to the primary principle of objective law. But Grotius and his followers, including John Locke, turned this hierarchy on its head, making the objective legal order the consequence of subjective right.

By making this secondary principle into the primary overarching principle of law and order, and in fact the source of sovereignty, the natural-rights philosophers in fact reversed one of the pillars of Christian civilization: the understanding that man was fallen, and that the institutions of society did not derive from him but were instituted over and around him, to hedge him in, as it were, in so doing to provide, in order and in authority, the basis for a sound, healthy, viable liberty.

Hence the Augustinian view of the depravity of human nature was tossed overboard in favor of the optimistic view thereof, (1) wherein man, if not perfectible (although the perfectibility of man became a popular corollary for many), at least was capable of establishing proper institutions by his own device, by consulting his own nature. The state of nature was not distinguished by being corrupt, but by being sub-optimal; man came together in society voluntarily – society is not pre-existing – and he did so, according to Grotius, because of a “drive toward sociability,” a need for companionship and for the benefits of cooperation. “When, however,” remarks Stahl, “Thomasius replaced the drive toward sociability with the drive toward happiness, by which the individual of necessity becomes isolated, the last remnant of an objective legal principle was eliminated.” (2)

As a result, natural-rights philosophy gave birth to the atomistic individual as the source of authority and sovereignty and law. The 18th century was characterized by Gierke (3) as an arid age as far as associationalism is concerned, for all the political theories were of this sort, individualistic and contractual, leaving no room for the autonomous standing of associational life in any form. Every form of association became voluntary, and the principle of voluntarism had to be assumed and then buttressed with other additional conceptions in order to sustain such institutions as the family, the state, the nation, all of which assume participation prior to consent. The philosophy left no room for pre-existing authority.

The counterpart to this focus on subjective right as the source of authority and law was a truncated notion of justice. Now the common law – this universal, integrating law – is itself the expression of strict justice. Grotius saw this clearly in describing strict justice as the justice involved in property and obligation – Aristotle’s commutative justice. By contrast, he categorized distributive justice as justice in the broad sense because unable to be enforced in law. For this reason, it was not justice at all, but mere morality. Now Grotius was on to something here. The distinction between the strict justice expressed in private law and the “broad” justice which is distributive justice is a valid one. Properly understood, this distinction is one between law-orders, the law-order of common law, c.q. private law as external law, and the internal law of each individual organization or association, which is governed by the principle of distributive justice. Grotius’ achievement was vitiated by the fatal decision to eliminate distributive justice from any consideration in law, thus destroying the notion of given authority structures. Distributive justice would return, but through the back door, as it were, destroying by deforming the received common law.

This “back door” was what came to be known as the social question. The focus on property and contract as the be-all-and-end-all of social order called forth a backlash in which property itself came under scrutiny as being problem rather than solution. This already had become clear in the period of the French Revolution, in the 1796 conspiracy led by François-Noël Babeuf to replace the Directory with a regime installing common property. It was also the driving force behind William Godwin’s Enquiry Concerning Political Justice (first edition 1793) proclaiming the perfectibility of man precisely through the elimination of institutions such as property. And, of course, Jean-Jacques Rousseau (“The first man who enclosed a plot of ground and thought of saying, ‘This is mine,’ and found others stupid enough to believe him, was the true founder of civil society” (4)) was the font et origo hereof.

The social question, of course, concerned not the creation of wealth but its distribution. That wealth was distributed unequally, that was evident to all; and that this unequal distribution was likewise inequitable, was the conviction of many, increasingly many. Given the ebbing conviction that human misery might have some link to human depravity – something any Augustinian Christian would have been quick to point out – another root of the problem had to be discovered, and it was promptly found in property and the other institutions of civil society. Godwin, for example, attributed “almost all the vices and misery that are seen in civil society to human institutions. Political regulations, and the established administration of property, are with him the fruitful sources of all evil, the hotbeds of all the crimes that degrade mankind.” (5)

That an Augustinian voice was not entirely missing in the debates of the age is evident from the continuation of the just-cited quotation: “But the truth is, that though human institutions appear to be the obvious and obtrusive causes of much mischief to mankind; yet, in reality, they are light and superficial, they are mere feathers that float on the surface, in comparison with those deeper seated causes of impurity that corrupt the springs, and render turbid the whole stream of human life.” But, equally, that such a voice would garner mainly scorn and obloquy is evidence of the prejudice of the modern age, down through our day. For the writer was Thomas Robert Malthus; and if anyone has been vilified, or at the very least gravely misconstrued – after all, economics was supposedly dubbed “the dismal science” by Thomas Carlyle in response to Malthus’ treatment thereof (6) – it is he, the contriver of so-called “Malthusianism,” an epithet which speaks more of the prejudice of his opponents than for his own position.

Malthus dared to point out that the source of the misery in the world was not institutions but human nature itself. Human beings, led by passions and desires, have this inveterate propensity to engage in counterproductive behavior; and to believe that reason could counteract that propensity was a pipe dream.

The cravings of hunger, the love of liquor, the desire of possessing a beautiful woman, will urge men to actions, of the fatal consequences of which, to the general interests of society, they are perfectly well convinced, even at the very time they commit them. Remove their bodily cravings, and they would not hesitate a moment in determining against such actions. Ask them their opinion of the same conduct in another person, and they would immediately reprobate it. (7)

The specific manifestation of this propensity occurs in population growth. Now Malthus has been impugned and misrepresented regarding “Malthusianism” ever since he first put forward the argument. But what was his argument? It is often represented in simplistic terms: 1) human beings are capable of reproducing at an exponential rate; 2) the means of subsistence can only be increased at an arithmetic rate; 3) therefore, population growth will always outstrip the means of subsistence.

But this is not precisely what Malthus said; and it certainly is not what he was getting at. What he said was that population growth, if left unchecked, would multiply at an exponential rate, thus outstripping the means of subsistence. But, one way or another, population growth is checked. It is a matter either of implementing desirable checks, or being left to the mercy of undesirable checks, such as war, famine, and pestilence. And the whole point of Malthus’ argument was to respond to Godwin’s critique of civil society as being the source of society’s problems. For Malthus’ point was precisely to defend the institutions of civil society, specifically the family and private property, as desirable checks on what otherwise would be a miserable existence.

It seems highly probable, therefore, that an administration of property, not very different from that which prevails in civilized States at present, would be established, as the best, though inadequate, remedy, for the evils which were pressing on the society. (8)

The institution of marriage, or at least, of some express or implied obligation on every man to support his own children, seems to be the natural result of these reasonings in a community under the difficulties that we have supposed. (9)

But even given these institutions, a moral check is required above and beyond them. And this is the point to which Malthus’ argument was really leading: the need to convince young people not to marry before they could afford to support a family. Because marriage, family, and property are no final solution, only indispensable means thereto.

When these two fundamental laws of society, the security of property, and the institution of marriage, were once established, inequality of conditions must necessarily follow. Those who were born after the division of property, would come into a world already possessed. If their parents, from having too large a family, could not give them sufficient for their support, what are they to do in a world where every thing is appropriated? (10)

And here Malthus laid his finger on the core of the issue. Institutions were important, extremely important, but they could not provide an ultimate solution. That solution lay simply in the inculcation of the concept of citizenship as explained in the overview chapter of this book (see pp. 15f. above). Ultimately, the solution comes in the form of personal accountability, of each individual making decisions and taking responsibility for those decisions. There could be no alleviation of the problem of poverty outside of this acceptance of personal accountability; but the notion that the root of the problem lies in institutions apart from personal accountability works precisely to perpetuate the problem.

This brings us back to the social question, which at bottom is not a question at all, but the inevitable result when society refuses to recognize the intrinsically moral character of the problem. fiestern societies faced then, and the “global community” faces today, the problem of an explosion of poverty wherein the population of the working class was expanding beyond the capacity of the labor market to employ it and for which inadequate infrastructure was in place to support the weight of numbers. The social question is the result when the real question – the question of character and morals – is left unanswered, and the resort is made to political solutions.

Case in point: England’s poor laws ostensibly were introduced in order to stem the tide of poverty, but they had only made the problem worse. “It is a subject often started in conversation and mentioned always as a matter of great surprise,” Malthus observed, “that notwithstanding the immense sum that is annually collected for the poor in England, there is still so much distress among them. Some think that the money must be embezzled; others that the church-wardens and overseers consume the greater part of it in dinners. All agree that somehow or other it must be very ill-managed. In short the fact, that nearly three millions are collected annually for the poor and yet that their distresses are not removed, is the subject of continual astonishment.” (11) For Malthus, however, the problem was straightforward. The more money spent in such a manner to alleviate the condition of the poor, the more the problem would spread. And for good reason:

I feel no doubt whatever that the parish laws of England have contributed to raise the price of provisions, and to lower the real price of labour. They have therefore contributed to impoverish that class of people whose only possession is their labour. It is also difficult to suppose that they have not powerfully contributed to generate that carelessness, and want of frugality observable among the poor, so contrary to the disposition frequently to be remarked among petty tradesmen and small farmers. The labouring poor, to use a vulgar expression, seem always to live from hand to mouth. Their present wants employ their whole attention, and they seldom think of the future. Even when they have an opportunity of saving they seldom exercise it; but all that is beyond their present necessities goes, generally speaking, to the ale-house. The poor-laws of England may therefore be said to diminish both the power and the will to save, among the common people, and thus to weaken one of the strongest incentives to sobriety and industry, and consequently to happiness. (12)

Far from being part of the solution, the poor laws were part of the problem. For by providing support to poor families, these laws were simply encouraging their multiplication, thus leading to the “Malthusian” scenario.

Of course, this message was as ill-received as were the rest of Malthus’ conclusions. The age simply did not want to hear of responsibility and accountability, much less of human depravity. But Malthus’ message found fertile soil in the imagination of the remarkable Thomas Chalmers, the noteworthy Scottish divine who translated Malthus’ conclusions into an apology for the Christian state.

Chalmers’ rejection of the welfare-state approach to poverty was decisive: “Pauperism in so far as sustained on the principle that each man, simply because he exists, holds a right on other men or on society for existence, is a thing not to be regulated but destroyed.” (13) Nothing regarding this matter could be accomplished if its essentially moral character was not recognized. And coerced charity, the “charity of law,” only made the matter intractable.

In the final chapter of his treatise on political economy, Chalmers sums up the results of his discussion to that point:

We have laboured to demonstrate the futility of every expedient, which a mere political economy can suggest for the permanent well-being of a community. At best, they but tend to enlarge the absolute wealth of a country, without enlarging the relative comfort of the people who live in it. They may conduct to a larger, but not, on that account, to a happier society. They may tell on the condition of families, during those brief and evanescent seasons, when the population is somewhat in rear of the wealth; but, on the moment that this distance is overtaken, there will be the same straitness and discomfort as before.… There may be gleams of prosperity during the fluctuations, or the few short and successive stretches of enlargement which are yet in reserve for us. But all around, and in every possible direction, there is a besetting limit, which the mighty tide of an advancing population tends to over-pass, and which, being impassible, throws the tide back again upon general society; charged, as it were, with a distress and a disorder that are extensively felt throughout the old countries of the civilized world. (14)

Political economy alone is insufficient to rectify the situation. Character is the key. “The high road, then, to a stable sufficiency and comfort among the people, is through the medium of their character; and this effectuated by other lessons altogether than those of political economy.” Economic science, though a fine thing in its proper place, is powerless to effect a change here. It is lessons of a moral nature which are needed.

The moving force, that is to advance the general multitude to a better and higher condition than they now occupy, will not be brought to bear upon them by the demonstrations, however just, of any theory; and, in fact, the right impulse, and the right habit, have often been exemplified, and by large classes of peasantry, before the theory of population was ever heard of. It is so in Norway; and, most assuredly, without any inoculation of principle from the school of Malthus. It was so in Scotland, long before the promulgation of his doctrines. In both countries, they realized, in practice, what, in system and philosophy, they did not understand. A moral and intelligent peasantry, imbued with a taste for the respectabilities of life, mixing prudence and foresight with every great practical step in the history of their doings, holding it discreditable to enter upon marriage without the likelihood of provision for a family – such a peasantry have more than once been exhibited in the annals of world, and may be made to re-appear. (15)

The fountain of such character is Christianity, which, in its zeal to realize a heavenly harvest of souls for eternity, preaches a doctrine which in its secondary effects produces precisely the sort of character which alleviates the problems signaled by political economy but left unsolved by it. “It is forgotten, that a warm and earnest Christianity, was the animating spirit of all our peculiar institutions, for generations after they were framed; and that, wanting this, they can no more perform the function of moralizing the people, than skeletons can perform the function or put forth the faculties of living men.” And it has been the public schools as part of the church establishment which have imbued the populace with these salutary doctrines. “The scholastic is incorporated with the ecclesiastical system of Scotland; and that, not for the purposes of intolerance and exclusion, but for the purpose of sanctifying education, and plying the boyhood of our land with the lessons of the Bible. The scholarship of mere letters, might, to a certain extent have diffused intelligence amongst the people; but, it is mainly to the presence and power of the religious ingredient, that the moral greatness of our peasantry is owing.” (16)

The social question could not be effectively answered through the mechanical means of political measures; yet this was the course men of influence were determined to take. “It would seem to argue a growing sense of desperation among our public men, that their schemes of patriotism and philanthropy are so thickening of late upon us; while, but a semblance of relief, or, at the best, a short-lived respite will be all the result of them.” A fool’s errand; for “it is by the efficacy of moral means, working a moral transformation, and by that alone, that our deliverance will be effected; and little do the mere advocates of retrenchment, and colonization, and public works, and poor-laws, and other merely political expedients for the melioration of the people – little do they know, how utterly powerless all these enterprises are, while the Christianity of the land is unprovided for, and its Christian institutions are left inoperative, from the want of zealous and energetic labourers to fill them.” (17)

And this opposition to allotting to Christianity its proper role in society is likely attributable to deeper motives than mere ignorance. “We fear, that with many [politicians and political economists], it may be distaste and antipathy.” For they cannot abide a living faith. “There is a certain style of Christianity, a lifeless, inert, and meagre style of it, which is tolerated in general society. But when it comes to be Christianity in earnest, the Christianity that speaketh urgently and importunately to the consciences of men, the uncompromising Christianity that enjoins the holiness of the New Testament in all its spirituality and extent, and asserts the doctrine of the New Testament in all its depth and all its peculiarity; such a Christianity has been very generally denounced as fanaticism; and its faithful evangelical expounders, have very generally had a stigma affixed to them, and been outcasts from the patronage of the state.” From a spiritual standpoint, this is of course deplorable; but even from a prudential standpoint it is unwise. For – “this is the only Christianity that will either attract or moralize the population; and that, not because of its deceitful adaptation to vulgar prejudices, but, because of its truly divine adaptation to the actual workings of the human mind, and the felt necessities of human nature.” If the political leadership insists on excising Christianity from its proper role in social life, it will call down a judgement upon the nation. “While this enmity to the truth as it is in Jesus operates in the hearts of our rulers, it is perhaps a vain expectation, that the civil and political importance of its being sounded forth from the pulpits of our land shall come to be recognised by them. On this subject, they may have been struck with judicial blindness; and ere Christianity shall manifest its power to regenerate our social condition, and overspread the land with prosperous and contented families; perhaps it will first vindicate itself on our ungodly nation, in the utter dissolution of an economy which disowns it, in the vengeance of some fearful overthrow.” (18)

One thing was certain: no progress was possible if the “charity of law,” the coercion of a misnamed charity, was allowed to take root. And here Chalmers writes a passage so prophetic of the future of Christianity that I include it in its entirety as an appendix. (19)

At its root was precisely confusion – willful confusion – regarding the very nature of justice. “We have long thought that by a legal provision for indigence, two principles of our moral nature have been confounded, which are radically distinct from each other…. These two principles are humanity and justice, whereof the latter is the only proper object of legislation – which, by attempting the enforcement of the former, has overstepped altogether its own rightful boundaries.” (20) This confusion regarding justice had led to the situation in which the alleviation of poverty is accomplished not through charity or self-help, but as a matter of right by which one simply may claim the shortfall from society at large.

Whatever the calls be, which the poverty of a human being may have on the compassion of his fellows – it has no claims whatever upon their justice. The confusion of these two virtues in the ethical system will tend to actual confusion and disorder, when introduced in the laws and administrations of human society. The proper remedy, or remedy of nature, for the wretchedness of the few, is the kindness of the many. But when the heterogeneous imagination of a right is introduced in to this department of human affairs, and the imagination is sanctioned by the laws of the country, then one of two things must follow – Either an indefinite encroachment on property, so as ultimately to reduce to a sort of agrarian level of all the families of the land; or, if to postpone this consequence a rigid dispensation be adopted, the disappointment of a people who have been taught to feel themselves aggrieved, the innumerable heart-burnings which law itself has conjured up, and no administration of that law, however skilful, can appease. (21)

This confusion was made possible by the very natural-rights paradigm that was once seen as the means to supersede narrow confessional politics. Hugo Grotius delivered his own hostage to fortune when he eliminated distributive justice from consideration in law. By doing so, he made subjective right to be the source of law and social order; he made the individual primary; but he also in principle eliminated the associations and institutions in society which relied not on consent but on givenness. The “safety net” provided by institutions such as the family and the church (witness Chalmers’ stellar work in the parishes in which he was active) was destroyed from without – by state institutions assuming their roles – and from within – by its very members refusing to acknowledge these structures and their roles within them. For the classical liberal apotheosis of strict (read: commutative) justice leads to individualism and to the dialectical opposition of an apotheosized distributive justice in the form of collectivism.


1. Both Grotius and Locke dissented from the Augustinian doctrine of original sin.

2. Stahl, Principles of Law, p. 27.

3. Natural Law and the Theory of Society 1500-1800.

4. Rousseau, Discourse on Inequality, in The Basic Political Writings, trans. Donald A. Cress (Indianapolis, Indiana: Hackett Publishing Company, 1987), p. 127.

5. Malthus, An Essay on the Principle of Population, chap. 10, paragraph 4.

6. The truth of the matter is, although Carlyle did refer to Malthus’ treatment as “mournful… dreary, stolid, dismal, without hope for this world or the next,” he did not refer to it as “the dismal science.” For details see Robert Dixon, “The Origin of the Term ‘Dismal Science’ to Describe Economics,” available on the World Wide Web at http://www.economics.unimelb.edu.au/ TLdevelopment/econochat/Dixonecon00.html.

7. Malthus, An Essay on the Principle of Population, chap. 13, paragraph 3.

8. Malthus, An Essay on the Principle of Population, chap. 10, paragraph 24.

9. Malthus, An Essay on the Principle of Population, chap. 10, paragraph 26.

10. Malthus, An Essay on the Principle of Population, chap. 10, paragraph 29.

11. Malthus, An Essay on the Principle of Population, chap. 5, paragraph 3.

12. Malthus, An Essay on the Principle of Population, chap. 5, paragraph 14.

13. Chalmers, Problems of Poverty, p. 202.

14. Chalmers, On Political Economy, pp. 420-421.

15. Chalmers, On Political Economy, p. 422.

16. Chalmers, On Political Economy, p. 434.

17. Chalmers, On Political Economy, pp. 438-439.

18. Chalmers, On Political Economy, pp. 439-440.

19. See Appendix I, p. 95.

20. Problems of Poverty, p. 201.

21. Problems of Poverty, pp. 202-203.