Introduction to Natural Law
1. Natural Law and Reason
Among intellectuals who consider themselves “scientific,” the phrase “the nature of man” is apt to have the effect of a red flag on a bull. “Man has no nature!” is the modern rallying cry and typical of the sentiment of political philosophers today was the assertion of a distinguished political theorist some years ago before a meeting of the American Political Science Association that “man’s nature” is a purely theological concept that must be dismissed from any scientific discussion.1
In the controversy over man’s nature, and over the broader and more controversial concept of “natural law,” both sides have repeatedly proclaimed that natural law and theology are inextricably intertwined. As a result, many champions of natural law, in scientific or philosophic circles, have gravely weakened their case by implying that rational, philosophical methods alone cannot establish such law: that theological faith is necessary to maintain the concept. On the other hand, the opponents of natural law have gleefully agreed; since faith in the supernatural is deemed necessary to belief in natural law, the latter concept must be tossed out of scientific, secular discourse, and be consigned to the arcane sphere of the divine studies. In consequence, the idea of a natural law founded on reason and rational inquiry has been virtually lost.2
The believer in a rationally established natural law must, then, face the hostility of both camps: the one group sensing in this position an antagonism toward religion; and the other group suspecting that God and mysticism are being slipped in by the back door. To the first group, it must be said that they are reflecting an extreme Augustinian position which held that faith rather than reason was the only legitimate tool for investigating man’s nature and man’s proper ends. In short, in this fideist tradition, theology had completely displaced philosophy.3 The Thomist tradition, on the contrary, was precisely the opposite: vindicating the independence of philosophy from theology, and proclaiming the ability of man’s reason to understand and arrive at the laws, physical and ethical, of the natural order, if belief in a systematic order of natural laws open to discovery by man’s reason is per se anti-religious, then anti-religious also were St. Thomas and the later Scholastics, as well as the devout Protestant jurist Hugo Grotius. The statement that there is an order of natural law, in short, leaves open the problem of whether or not God has created that order; and the assertion of the viability of man’s reason to discover the natural order leaves open the question of whether or not that reason was given to man by God. The assertion of an order of natural laws discoverable by reason is, by itself, neither pro- nor anti-religious.4
Because this position is startling to most people today, let us investigate this Thomistic position a little further. The statement of absolute independence of natural law from the question of the existence of God was implicit rather than flatly asserted in St. Thomas himself; but like so many implications of Thomism, it was brought forth by Suarez and the other brilliant Spanish Scholastics of the late sixteenth century. The Jesuit Suarez pointed out that many Scholastics had taken the position that the natural law of ethics, the law of what is good and bad for man, does not depend upon God’s will. Indeed, some of the Scholastics had gone so far as to say that:
even though God did not exist, or did not make use of His reason, or did not judge rightly of things, if there is in man such a dictate of right reason to guide him, it would have had the same nature of law as it now has.5
Or, as a modern Thomist philosopher declares:
If the word “natural’ means anything at all, it refers to the nature of a man, and when used with “law,” “natural” must refer to an ordering that is manifested in the inclinations of a man’s nature and to nothing else. Hence, taken in itself, there is nothing religious or theological in the “Natural Law” of Aquinas.6
Dutch Protestant jurist Hugo Grotius declared, in his De Iure Belli ac Pacis (1625):
What we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God.
Measureless as is the power of God, nevertheless it can be said that there are certain things over which that power does not extend…. Just as even God cannot cause that two times two should not make four, so He cannot cause that which is intrinsically evil be not evil.7
D’Entrèves concludes that:
[Grotius’s] definition of natural law has nothing revolutionary. When he maintains that natural law is that body of rules which Man is able to discover by the use of his reason, he does nothing but restate the Scholastic notion of a rational foundation of ethics. Indeed, his aim is rather to restore that notion which had been shaken by the extreme Augustinianism of certain Protestant currents of thought. When he declares that these rules are valid in themselves, independently of the fact that God willed them, he repeats an assertion which had already been made by some of the schoolmen.8
Grotius’s aim, d’Entrèves adds, “was to construct a system of laws which would carry conviction in an age in which theological controversy was gradually losing the power to do so.” Grotius and his juristic successors—Pufendorf, Burlamaqui, and Vattel—proceeded to elaborate this independent body of natural laws in a purely secular context, in accordance with their own particular interests, which were not, in contrast to the Schoolmen, primarily theological.9 Indeed, even the eighteenth-century rationalists, in many ways dedicated enemies of the Scholastics, were profoundly influenced in their very rationalism by the Scholastic tradition.10
Thus, let there be no mistake: in the Thomistic tradition, natural law is ethical as well as physical law; and the instrument by which man apprehends such law is his reason—not faith, or intuition, or grace, revelation, or anything else.11 In the contemporary atmosphere of sharp dichotomy between natural law and reason—and especially amid the irrationalist sentiments of “conservative” thought—this cannot be underscored too often. Hence, St. Thomas Aquinas, in the words of the eminent historian of philosophy Father Copleston, “emphasized the place and function of reason in moral conduct. He [Aquinas] shared with Aristotle the view that it is the possession of reason which distinguished man from the animals” and which “enables him to act deliberately in view of the consciously apprehended end and raises him above the level of purely instinctive behavior.”12
Aquinas, then, realized that men always act purposively, but also went beyond this to argue that ends can also be apprehended by reason as either objectively good or bad for man. For Aquinas, then, in the words of Copleston, “there is therefore room for the concept of ‘right reason,’ reason directing man’s acts to the attainment of the objective good for man.” Moral conduct is therefore conduct in accord with right reason: “If it is said that moral conduct is rational conduct, what is meant is that it is conduct in accordance with right reason, reason apprehending the objective good for man and dictating the means to its attainment.”13
In natural-law philosophy, then, reason is not bound, as it is in modern post-Humean philosophy, to be a mere slave to the passions, confined to cranking out the discovery of the means to arbitrarily chosen ends. For the ends themselves are selected by the use of reason; and “right reason” dictates to man his proper ends as well as the means for their attainment. For the Thomist or natural-law theorist, the general law of morality for man is a special case of the system of natural law governing all entities of the world, each with its own nature and its own ends. “For him the moral law … is a special case of the general principles that all finite things move toward their ends by the development of their potentialities.”14 And here we come to a vital difference between inanimate or even non-human living creatures, and man himself; for the former are compelled to proceed in accordance with the ends dictated by their natures, whereas man, “the rational animal,” possesses reason to discover such ends and the free will to choose.15
Which doctrine, natural law or those of its critics, is to be considered truly rational was answered incisively by the late Leo Strauss, in the course of a penetrating critique of the value-relativism in political theory of Professor Arnold Brecht. For, in contrast to natural law,
positivistic social science … is characterized by the abandonment of reason or the flight from reason….
According to the positivistic interpretation of relativism which prevails in present-day social science … reason can tell us which means are conducive to which ends; it cannot tell us which attainable ends are to be preferred to other attainable ends. Reason cannot tell us that we ought to choose attainable ends; if someone ‘loves him who desires the impossible’ reason may tell him that he acts irrationally, but it cannot tell him that he ought to act rationally, or that acting irrationally is acting badly or basely. If rational conduct consists in choosing the right means for the right end, relativism teaches in effect that rational conduct is impossible.16
Finally, the unique place of reason in natural-law philosophy has been affirmed by the modern Thomistic philosopher, the late Father John Toohey. Toohey defined sound philosophy as follows: “Philosophy, in the sense in which the word is used when scholasticism is contrasted with other philosophies, is an attempt on the part of man’s unaided reason to give a fundamental explanation of the nature of things.”17
2. Natural Law as “Science”
It is indeed puzzling that so many modern philosophers should sniff at the very term “nature” as an injection of mysticism and the supernatural. An apple, let fall, will drop to the ground; this we all observe and acknowledge to be in the nature of the apple (as well as the world in general). Two atoms of hydrogen combined with one of oxygen will yield one molecule of water—behavior that is uniquely in the nature of hydrogen, oxygen, and water. There is nothing arcane or mystical about such observations. Why then cavil at the concept of “nature”? The world, in fact, consists of a myriad number of observable things, or entities. This is surely an observable fact. Since the world does not consist of one homogenous thing or entity alone, it follows that each one of these different things possesses differing attributes, otherwise they would all be the same thing. But if A, B, C, etc., have different attributes, it follows immediately that they have different natures.1819 It also follows that when these various things meet and interact, a specifically delimitable and definable result will occur. In short, specific, delimitable causes will have specific delimitable effects.20
The observable behavior of each of these entities is the law of their natures, and this law includes what happens as a result of the interactions. The complex that we may build up of these laws may be termed the structure of natural law. What is “mystical” about that?21
In the field of purely physical laws, this concept will usually differ from modern positivistic terminology only on high philosophical levels; applied to man, however, the concept is far more controversial. And yet, if apples and stones and roses each have their specific natures, is man the only entity, the only being, that cannot have one? And if man does have a nature, why cannot it too be open to rational observation and reflection? If all things have natures, then surely man’s nature is open to inspection; the current brusque rejection of the concept of the nature of man is therefore arbitrary and a priori.
One common, flip criticism by opponents of natural law is: who is to establish the alleged truths about man? The answer is not who but what: man’s reason. Man’s reason is objective, i.e., it can be employed by all men to yield truths about the world. To ask what is man’s nature is to invite the answer. Go thou and study and find out! It is as if one man were to assert that the nature of copper were open to rational investigation and a critic were to challenge him to “prove” this immediately by setting forth on the spot all the laws that have been discovered about copper.
Another common charge is that natural-law theorists differ among themselves, and that therefore all natural-law theories must be discarded. This charge comes with peculiar ill grace when it comes, as it often does, from utilitarian economists. For economics has been a notoriously contentious science—and yet few people advocate tossing all economics therefore into the discard. Furthermore, difference of opinion is no excuse for discarding all sides to a dispute; the responsible person is the one who uses his reason to examine the various contentions and make up his own mind.22 He does not simply say a priori, “a plague on all your houses!” The fact of man’s reason does not mean that error is impossible. Even such “hard” sciences as physics and chemistry have had their errors and their fervent disputes.23 No man is omniscient or infallible—a law, by the way, of man’s nature.
The natural law ethic decrees that for all living things, “goodness” is the fulfillment of what is best for that type of creature; “goodness” is therefore relative to the nature of the creature concerned. Thus, Professor Cropsey writes:
The classical [natural law] doctrine is that each thing is excellent in the degree to which it can do the things for which its species is naturally equipped…. Why is the natural good? … [Because] there is neither a way nor a reason to prevent ourselves from distinguishing between useless and serviceable beasts, for example; and … the most empirical and … rational standard of the serviceable, or the limit of the thing’s activity is set by its nature. We do not judge elephants to be good because they are natural; or because nature is morally good—whatever that would mean. We judge a particular elephant to be good by the light of what elephant nature makes it possible for elephants to do and to be.24
In the case of man, the natural-law ethic states that goodness or badness can be determined by what fulfills or thwarts what is best for man’s nature.25
The natural law, then, elucidates what is best for man—what ends man should pursue that are most harmonious with, and best tend to fulfill, his nature. In a significant sense, then, natural law provides man with a “science of happiness,” with the paths which will lead to his real happiness. In contrast praxeology or economics as well as the utilitarian philosophy with which this science has been closely allied, treat “happiness” in the purely formal sense as the fulfillment of those ends which people happen—for whatever reason—to place high on their scales of value. Satisfaction of those ends yields to man his “utility” or “satisfaction” or “happiness.”26 Value in the sense of valuation or utility is purely subjective, and decided by each individual. This procedure is perfectly proper for the formal science of praxeology, or economic theory, but not necessarily elsewhere. For in natural-law ethics, ends are demonstrated to be good or bad for man in varying degrees; value here is objective—determined by the natural law of man’s being, and here “happiness” for man is considered in the commonsensical, contentual sense. As Father Kenealy put it:
This philosophy maintains that there is in fact an objective moral order within the range of human intelligence, to which human societies are bound in conscience to conform and upon which the peace and happiness of personal, national and international life depend.27
And the eminent English jurist, Sir William Blackstone, summed up the natural law and its relation to human happiness as follows:
This is the foundation of what we call ethics, or natural law … demonstrating that this or that action tends to man’s real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destruction of man’s real happiness, and therefore that the law of nature forbids it.28
Without using the terminology of natural law, psychologist Leonard Carmichael has indicated how an objective, absolute ethic can be established for man on scientific methods, based upon biological and psychological inquiry:
because man has an unchanging and an age-old, genetically determined anatomical, physiological, and psychological make-up, there is reason to believe that at least some of the “values” that he recognized as good or bad have been discovered or have emerged as human individuals have lived together for thousands of years in many societies. Is there any reason to suggest that these values, once identified and tested, may not be thought of as essentially fixed and unchanging? For example, the wanton murder of one adult by another for the purely personal amusement of the person committing the murder, once it is recognized as a general wrong, is likely always to be so recognized. Such a murder has disadvantageous individual and social effects. Or to take a milder example from esthetics, man is always likely to recognize in a special way the balance of two complementary colors because he is born with specially constituted human eyes.29
One common philosophic objection to natural law ethics is that it confuses, or identifies, the realism of fact and value. For purposes of our brief discussion, John Wild’s reply will suffice:
In answer we may point out that their [natural law] view identifies value not with existence but rather with the fulfillment of tendencies determined by the structure of the existent entity. Furthermore, it identifies evil not with non-existence but rather with a mode of existence in which natural tendencies are thwarted and deprived of realization…. The young plant whose leaves are withering for lack of light is not nonexistent. It exists, but in an unhealthy or privative mode. The lame man is not nonexistent. He exists, but with a natural power partially unrealized…. This metaphysical objection is based upon the common assumption that existence is fully finished or complete…. [But] what is good is the fulfillment of being.30
After stating that ethics, for man as for any other entity, are determined by investigating verifiable existing tendencies of that entity, Wild asks a question crucial to all non-theological ethics: “why are such principles felt to be binding on me?” How do such universal tendencies of human nature become incorporated into a person’s subjective value scale? Because
the factual needs which underlie the whole procedure are common to man. The values founded on them are universal. Hence, if I made no mistake in my tendential analysis of human nature, and if I understand myself, I must exemplify the tendency and must feel it subjectively as an imperative urge to action.31
David Hume is the philosopher supposed by modern philosophers to have effectively demolished the theory of natural law. Hume’s “demolition” was two-pronged: the raising of the alleged “fact-value” dichotomy, thus debarring the inference of value from fact,32 and his view that reason is and can only be a slave to the passions.
In short, in contrast to the natural-law view that man’s reason can discover the proper ends for man to follow, Hume held that only the emotions can ultimately set man’s ends, and that reason’s place is as the technician and handmaiden to the emotions. (Here Hume has been followed by modern social scientists since Max Weber.) According to this view, people’s emotions are assumed to be primary and unanalyzable givens.
Professor Hesselberg has shown, however, that Hume, in the course of his own discussions, was compelled to reintroduce a natural-law conception into his social philosophy and particularly into his theory of justice, thus illustrating the gibe of Etienne Gilson: “The natural law always buries its undertakers.” For Hume, in Hesselberg’s words, “recognized and accepted that the social … order is an indispensable prerequisite to man’s well-being and happiness: and that this is a statement of fact.” The social order, therefore, must be maintained by man. Hesselberg continues:
But a social order is not possible unless man is able to conceive what it is, and what its advantages are, and also conceive those norms of conduct which are necessary to its establishment and preservation, namely, respect for another’s person and for his rightful possessions, which is the substance of justice … But justice is the product of reason, not the passions. And justice is the necessary support of the social order; and the social order is necessary to man’s well-being and happiness. If this is so, the norms of justice must control and regulate the passions, and not vice versa.33
Hesselberg concludes that “thus Hume’s original ‘primacy of the passions’ thesis is seen to be utterly untenable for his social and political theory, and … he is compelled to reintroduce reason as a cognitive-normative factor in human social relations.”34
Indeed, in discussing justice and the importance of the rights of private property, Hume was compelled to write that reason can establish such a social ethic: “nature provides a remedy in the judgment and understanding for what is irregular and uncommodious in the affections”—in short, reason can be superior to the passions.35
We have seen from our discussion that the doctrine of natural law—the view that an objective ethics can be established through reason—has had to face two powerful groups of enemies in the modern world: both anxious to denigrate the power of man’s reason to decide upon his destiny. These are the fideists who believe that ethics can only be given to man by supernatural revelation, and the skeptics who believe that man must take his ethics from arbitrary whim or emotion. We may sum up with Professor Grant’s harsh but penetrating view of
the strange contemporary alliance between those who doubt the capacity of human reason in the name of scepticism (probably scientific in origin) and those who denigrate its capacity in the name of revealed religion. It is only necessary to study the thought of Ockham to see how ancient this strange alliance is. For in Ockham can be seen how philosophic nominalism, unable to face the question of practical certainty, solves it by the arbitrary hypothesis of revelation. The will detached from the intellect (as it must be in a nominalism) can seek certainty only through such arbitrary hypotheses.
The interesting fact historically is that these two anti-rationalist traditions—that of the liberal skeptic and the Protestant revelationist—should originally have come from two … opposite views of man. The Protestant dependence upon revelation arose from a great pessimism about human nature…. The immediately apprehended values of the liberal originate in a great optimism. Yet … after all, is not the dominating tradition in North America a Protestantism which has been transformed by pragmatic technology and liberal aspirations?36
3. Natural Law versus Positive Law
If, then, the natural law is discovered by reason from “the basic inclinations of human nature … absolute, immutable, and of universal validity for all times and places,” it follows that the natural law provides an objective set of ethical norms by which to gauge human actions at any time or place.37 The natural law is, in essence, a profoundly “radical” ethic, for it holds the existing status quo, which might gross
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