In HPR
Natural law theory has a long and distinguished pedigree in the
Western world, beginning in ancient Greece, where major philosophers
refer to a certain law or laws superseding human laws. Anaximander,
Pythagoras, Heraclitus, and Anaxagoras propounded theories of cosmic
harmony and the way that humans should, or do, participate in it; and
Hippias (ca. 460-390 B.C.) spoke about a divine law that can never and
nowhere be superseded. Plato in his Republic and Laws
speaks of an ideal “divine” law existing prior to all human affairs; and
Aristotle, in offering advice to defense lawyers in his Rhetoric
gives examples of civil and criminal cases where the lawyer could cite
generally recognized but unwritten “universal” laws which have priority
over the state-sanctioned laws which their clients are accused of
breaking.
Natural law attained a certain preeminence in Christianity due to St. Paul’s invocation (Romans
2:14-16, 21-24) of a “law engraved on the hearts” of pagans who had
never heard of Jewish laws, and Paul’s favorable contrast of such
unbelievers with Jews who disobey the laws laid down in the Ten
Commandments – Jews who “preach against stealing, yet steal; forbid
adultery, yet commit adultery,” etc.
St. Paul may have been influenced by Stoic philosophers who held sway
in his time, and extolled a supreme law of nature for all peoples.
Among the Stoics, Cicero offered the first and strongest explicit
defense of a law which:
cannot be contradicted by any other law, and is not
liable either to derogation or abrogation. Neither the senate nor the
people can give us any dispensation for not obeying this universal law
of justice. It needs no other expositor and interpreter than our own
conscience. It is not one thing at Rome, and another at Athens; one
thing today and another tomorrow, but in all times and nations this
universal law must for ever reign, eternal and imperishable. It is the
sovereign master and emperor of all beings. God himself is its author,
its promulgator, its enforcer.
Cicero’s concept of natural law was connected, of course, with his
ideal of human participation in a harmonious and finely-tuned universe,
presenting individuals and societies with an exemplar for ideal moral
decision-making and conduct. In our own era of the “Big Bang” theory of
cosmic explosion, and Darwinian theories about the evolution of the
earth and living species, notions about human coordination with the
“rhythms of nature” may seem overly idealistic or even poetic – although
for some nature-lovers this idea still has appeal.
During the Middle Ages, Roman jurists like Ulpian and Gaius
distinguished natural law from civil law and the “law of nations.”
Canonists of the Church, like Gratian and Rufinus, developed the theory
of natural law even further, including incipient concepts of natural
rights, as Brian Tierney shows in his excellent book, The Idea of Natural Rights.
St. Thomas Aquinas (1225-1274), and other Scholastics, brought these efforts to final fruition. Aquinas, in his Summa theologiae 1a2ae,
Q. 94, discusses the general self-evident principle of ethics, “good is
to be done, and evil avoided. In article 94:2, he shows how this
general principle takes on flesh, so to speak, in three concrete
precepts of the natural law:
The order of precepts of the natural law exists according
to the order of natural inclinations … (1) Every substance seeks the
preservation of its own being, according to its nature: and by reason of
this inclination, whatever is a means of preserving human life, and of
warding off its obstacles, belongs to the natural law … (2) Those things
are said to belong to the natural law, which nature has taught to all
animals, such as sexual intercourse, education of offspring and so forth
… (3) Man has a natural inclination to know the truth about God, and to
live in society: and in this respect, whatever pertains to this
inclination belongs to the natural law; for instance, to shun ignorance,
to avoid offending those among whom one has to live, and other such
things regarding the above inclination.
These three precepts are not original with Aquinas, but were also
held by predecessors, such as William of Auxerre and Roland of Cremona,
and cited by subsequent scholastics, such as Francisco Suarez, S.J.
(1548-1617), who writes, along the same lines, but with a slightly
different emphasis:
Man is (as it were) an individual entity, and as such has
an inclination to preserve his own being, and to safeguard his own
welfare; he is also a being corruptible – that is to say, mortal – and
as such is inclined towards the preservation of the species, and towards
the actions necessary to that end; and finally, he is a rational being,
and as such is suited for immortality, for spiritual perfection, and
for communication with God, and social intercourse with rational
creatures. Hence, the natural law brings man to perfection, with regard
to every one of his tendencies and, in this capacity, it contains
various precepts – for example, precepts of temperance and of fortitude,
relating to the first tendency mentioned above; those of chastity and
prudence, relating to the second tendency; and those of religion,
justice and so forth, relating to the third tendency.
During the French Enlightenment, Montesquieu (1689-1775), in The Spirit of the Laws,
describes the basic inclinations of the “law of nature” along the same
lines as Aquinas: “the preservation of one’s being” and “seeking for
nourishment”; “the attraction arising from the difference of sexes”; and
the “advantage of acquired knowledge” and the “desire of living in
society.”
Without doubt, the third precept, which has to do with the special exigencies of rational beings,
is the most important natural law mandate. It is this third precept
that was reiterated by Protestant natural-law theorists, such as Grotius
(1583-1645), Cumberland (1631-1718), and Pufendorf (1632-1694), who
emphasized the natural altruism of humans and, like Aquinas, the
necessity of developing rational and harmonious social structures.
It is often asserted that David Hume (1711-1776) “upset the apple
cart” for natural law with the following pithy statement, widely taken
out of context, in his Treatise of Human Nature, about not deriving an “ought” from an “is”:
{Morality} consists not in any matter of fact
which can be discovered by the understanding … Can there be any
difficulty in proving that vice and virtue are not matters of fact,
whose existence we can infer by reason? … {However,} in every system of
morality which I have hitherto met with … the author proceeds for some
time in the ordinary way of reasoning, and establishes the being of a
God, or makes observations concerning human affairs; when of a sudden I
am surpriz’d to find that, instead of … Is, and Is not, I meet with … ought, or an ought not… This ought, or ought not …
should be observ’d and explain’d… A reason should be given … how this
new relation can be a deduction from others, which are entirely
different from it.
This prohibition (popularly called “Hume’s Guillotine”) is
interpreted by many contemporary philosophers as interdicting any
further attempts to make moral judgements based on essential aspects of
human nature. As an example of this interpretation, Immanuel Kant
(1724-1804) would stand out as one of the first practitioners of Hume’s
caveat. Kant, in his moral philosophy, proposed his “Categorical
Imperative” (CI) as the general format for proper ethical reasoning:
Employing the CI, the ethical decision-maker must dismiss all human
inclinations, and, purely on the basis of the cerebral deliberations of
practical reason, formulate only those “maxims” which one would be
willing to stand as a universal norm for all humans. This formula has
been widely criticized by modern philosophers. For example, R.M. Hare
shows that, with a little tweaking, a hypothetical Nazi could devise a
CI which would justify him in exterminating Jews.
Nevertheless, Darwin’s theory of natural selection of the species, coupled with various theories of the evolution of homo sapiens from
the hunter-gatherer stage, have led to a conception of human nature as
almost infinitely variable. This assumed variability seems to stand in
the way of any attempts by moralists to derive some reasonably stable
moral norms based on human nature.
Thus many contemporary ethicists try, like Kant, to adhere
religiously to Hume’s “Guillotine,” focusing only on moral conclusions
that can be derived from pure practical reason alone, without any
distracting attention to the “facts” of human nature or the welter of
human inclinations.
Philosophers are an ornery bunch, however, and many of them have
tried to beat Hume at his game, by showing ways in which “oughts” can
be, and are indeed, derived from “is.” But probably the best refutation
of the supposed is-ought Guillotine comes from Hume himself, who, if one
reads a little further in the Treatise, shows how he thinks the task of deriving “oughts” should take place:
See if you can find that matter of fact, or real
existence, which you call vice. In which-ever way you take it, you find
only certain passions, motives, volitions, and thoughts. There is no
other matter of fact in the case. The vice entirely escapes you, as long
as you consider the object. You never can find it, till you turn your
reflection into your own breast, and find a sentiment of disapprobation,
which arises in you, towards this action. Here is a matter of fact; but
`tis the object of feeling, not of reason. It lies in yourself, not in
the object. The fact that we feel a strong repugnance against murder
leads us to conclude that murder is wrong.
In other words, there are facts … and there are facts. Hume was
against deriving moral principles from certain “external” facts.
Alasdair MacIntyre points to a tract read by Hume as a young man in a
Presbyterian household, The Whole Duty of Man, which tried to
deduce moral duties from Christian “facts” about creation of the world
and man. I have suggested in my 2004 book, Natural Law: an Introduction and Reexamination,
that Hume’s reaction was triggered by Ralph Cudworth (1617-1688) and
Samuel Clarke (1675-1729), proponents of “rational morality” deducing
moral truths from metaphysical and religious “facts.”
But Hume was not against derivation from “internal” facts.
Quite the contrary, his moral theory is based on internal facts; and,
because of that, he is frequently categorized as a “moral-sense”
theorist. Moral-sense theory, insofar as it is concerned with basic
human tendencies, has some affinity with natural law theory. As
Frederick Copleston, S.J., concludes in Volume 5 of his History of Philosophy:
{Hume’s} insistence on the original constitution or
fabric of human nature suggests that this nature is in some sense the
foundation of morality or, in other words, that there is a natural law
which is promulgated by reason apprehending human nature in its
teleological and dynamic aspect.
In the 20th century, some unsettling developments led to a
re-consideration of the existence of a natural law. In 1945-46, the
Nuremberg trials, in which the victors in WWII condemned and executed
Nazi officials who arguably were following the laws of their country,
raised the question, “on the basis of what law are we judging them?” Is
there some superior law, or are there superior laws, to which even the
properly legislated laws of the nations have to be subject? For
infractions of these higher laws can “law-abiding” citizens of those nations be condemned?
Proponents of such an overarching law began to speak out. Lon Fuller,
Jerome Frank, and others voiced renewed support of natural law, and
skepticism about the prevailing hegemony of “legal realism.” The
Universal Declaration of Human Rights adopted by the U.N. in 1948 may be
seen as an additional movement for clarifying laws and rights that
stand above all national and civil enactments.
In the Catholic Church during the 60s, new cultural strains added to
the quest for information about eternal and universal laws which might
trump the positive laws enacted by regimes, and even democratic
polities. The emergence and popularity of the contraceptive pill,
combined with the invocation of natural law against contraception by
Pope Paul VI, led to renewed debates by theologians and philosophers
concerning the validity of natural law. The widespread opposition of
theologians, priests and prelates, as well as lay Catholics, to Pope
Paul VI’s 1968 encyclical against contraception, Humanae vitae,
is still fresh in the memory of many older Catholics. Dissident
theologians published a full page ad in the New York Times advising
Catholics to just follow their conscience, and not be concerned about
the overly negative restrictions in the encyclical.
But then, in an attempt to dispel the confusion and defend Catholic
tradition, a “New Natural Law” theory arrived on the scene, championed
by Catholic “analytic” philosophers – John Finnis, Germain Grisez, and
others. Depending on reason and logical analysis alone, and purporting
to avoid any dependence on the facts connected with human nature, they
devised a set of seven basic, self-evident values from which moral norms
could be safely derived: (1) knowledge; (2) life; (3) play; (4)
aesthetic experience; (5) sociability (friendship); (6) practical
reasonableness (applying one’s intelligence to problems and situations);
and (7) religion and pursuit of ultimate questions about the cosmos and
life.
They came to the defense of the Pope with a robust brief for
defending reproductive sexuality, against the inroads of the
contraceptive mentality. Finnis, in a 1970 article, Natural Law and
Unnatural Acts,” in the Heythrop Journal, argued:
What, in the last analysis, makes sense of the conditions
of the marital enterprise, its stability and exclusiveness, is not the
worthy and delightful sentiments of love and affection which invite one
to marry, but the desire for and demands of a procreative
community, a family. Some sexual acts are (as types of choice) always
wrong because of an inadequate response, or direct closure, to the basic
procreative value that they put in question.
This “new” natural law style of thinking is arguably connected with
the second “self-evident” value – namely, life – proposed by Finnis; but
Finnis, in his discussion of the value of “practical reasonableness,”
presents it as a demonstration of the way that this “6th
value” must be coordinated with respect for other “basic values.” He
takes as one example, the position of the Catholic Church regarding
contraception:
The principal bearer of an explicit theory about natural
law happens, in our civilization, to have been the Roman Catholic Church
… That Church has stringently elaborated the implications of the
seventh requirement {of the sixth value – namely, that practical
reasonableness should embody respect for every basic value in
every act}, as those implications concern the basic values of life
(including the procreative transmission of life), truth (including truth
in communication), and religion. And it has formulated those
implications in strict negative principle, such as those declaring
wrongful any killing of the innocent, any anti-procreative sexual acts,
and lying and blasphemy.
The New Natural Law theory offers to many an approach to moral
decision-making, based on important values; but, because of its lack of
interest in facts about human nature, constitutes a break with the
tradition and history of natural law discussed above. Most importantly,
the claim to self-evidence of the seven pivotal values (and their
subdivisions) is less than persuasive. I became somewhat skeptical about
this in reading the chapters concerning each of the self-evident
values, in Finnis’ book, Natural Law and Natural Rights. When,
for instance, one reads the relatively long chapter (20 pages), full of
arguments, about the value of knowledge, one begins to wonder about the
purported “self-evidence” of this value: What are we to conclude
ethically from knowledge-valuation? That education is important? That
knowledge is to be sought for its own sake? That we should not do
anything until we have sufficient knowledge of consequences?
Similar excogitations could result regarding the interrelationships
between the seven “basic values”: One could, for example, argue in favor of
contraception from a reflection on Finnis’ sixth value, practical
reasonableness – the desire of spacing offspring in view of economic
contingencies, social frameworks, etc.
Like other critics, I have come to view New Natural Law as an
interesting moral theory, which may give some guidance for people of
good will in making moral decisions, but is not strictly a natural law
theory.
Traditional natural law theories, beginning with an analysis of major
human inclinations, lead to a philosophical examination of what it
means to be a human being, a member of the animal species, and, most
importantly, a rational animal. An interesting characteristic of the
three precepts of natural law defined by Aquinas, and others, is that
they are also, at one and the same time, natural rights. As Brian Tierney points out in The Idea of Natural Rights,
self-preservation is one of the chief intuitively obvious duties
discussed, over and over again, by medieval and late medieval thinkers;
but it is also considered an inalienable right. The dual nature of
self-preservation as a duty and a right is frequently brought
up in commentaries on the ideas of William of Ockham and Jean Gerson.
Thus, the medievalists defended, for example, giving a starving person
the moral right to steal from the rich; and the moral right of a person
whose life is threatened to kill the aggressor, if necessary.
This dual duty/right aspect is common to all three precepts of
natural law: The duty of self-preservation is likewise the right of
self-preservation; the duty of conscientious reproduction is also the
right of reproducing (now restricted or prohibited for millions by
totalitarian governments); and the duty of seeking the truth and
building up rational societies is also the right of knowing the truth
and contributing to the development of a rightly organized society.
Other inclinations do not have this characteristic. The tendency to have
power over others is not the right to do so; the tendency to be
promiscuous is not the right to be so; the tendencies to lie or steal
are not rights to do so.
Jeremy Bentham, the 18th century champion of utilitarian
moral theory, criticized natural law as a theory which was so vague and
indeterminate that almost anything could be justified by an appeal to
“nature.” Stephen Buckle, in his article on “Natural Law” in the
Cambridge Companion to Ethics, complains that natural law
cannot go beyond a few generalities concerned with being “rational.”
However, in Aquinas’ theory, each of the three precepts intuitively
generates very specific duties.
No extensive ratiocination is necessary to realize that
self-preservation obligates individuals to take care of their health,
not overeat, avoid drunkenness, refrain from unnecessary risks, work to
earn subsistence, not overwork, and avoid greed – just to mention a few
of the obvious implications. The precept about procreation and
nurturance of offspring should lead the thoughtful person, without too
much hair-splitting, to take sex seriously, avoiding casual liaisons,
avoiding a contraceptive mentality, caring for physical and spiritual
well being of offspring, even into adulthood, cooperating with even
difficult spouses in raising offspring, except where violence, etc.
infringes on one’s rights or the rights of one’s children, and possibly
even working to overcome anti-reproductive policies of oppressive
governments. Finally, as mentioned above, the precept to pursue the
truth, both in the theoretic and practical realms, is the most important
for humans, and indicates that everyone, according to their capacities,
should educate themselves on all important issues, especially regarding
God and religion, examining both sides to avoid bias; that voters
should inform themselves on issues and candidates in democratic
societies; that all should contribute according to their talents and
opportunities to their neighborhood or community; and so forth.
Some contemporary values seem to contradict each of the three natural
law precepts, and need to be considered:(1) Suicidal tendencies can be
understood as desires to escape what appear to be intolerable suffering,
either physical or mental or emotional; and seem to contradict the
self-preservation instinct, and sometimes require heroic resistance. But
with these tendencies the desire for self-preservation is still there,
but thought to be no longer possible because of the loss of a sense of
health or well-being. And there is, of course, no mandate to use
extraordinary measures to stay alive when natural death is imminent. (2)
The problem of “overpopulation” is a mythical problem, as I have argued
elsewhere, along with many others (see e.g. www.pop.org),
and a very strange myth in a world where numerous countries are now
facing a demographic winter. In any case, one does nothing for the world
by contraception, although personal increases in wealth and lifestyle
may result from childless marriages. (3) Most importantly, contradictory
theories and relativism in morals may discourage many from even trying
to pursue the truth. How can we ever know the truth when there are so
many contradictory theories about the cosmos and the world? How can we
be sure about right and wrong when there are such rampant disagreements
about basic life choices? But this is the wrong question. The important
thing is to seek the truth, both in theoretical and practical matters; this is a lifelong pursuit, and ordinarily will result in some successes.
Christianity, with the Decalogue and the Golden Rule, receives
welcome support from natural law theory, but of course, goes seriously
beyond it with its commandment of love even of enemies, of going the
“extra mile,” of forgiveness, of lending without asking for repayment,
etc. So natural law has built-in limitations. If there is any other
moral theory besides natural law that provides even better guidance for
major and common life decisions, then this theory should be proposed,
and natural law should take the proverbial back seat.
The chief alternate choices of moral theories at present seem to be
reduced to two: Kantian moral theory, depending on moral
“universalizability” is taught in most courses on ethics now in our
colleges and universities. But I am not the only one who has found it
almost impossible, after ignoring (according to Kant’s requirement), my
inclinations, to come to good, solid ethical decisions in the crossroads
of life by deliberating whether I could, without self-contradiction,
will everyone in the world to make the decision I am contemplating.
Probably the most popular ethical theory today, for public officials
as well as for private citizens who have never heard of the theory, is
utilitarianism, which instructs us to always do what will procure the
greatest amount of happiness for the greatest number of people. If we
were clear on what the greatest “happiness” consists of, and what sort
of happiness the greatest number of people are looking for, it would be
easier to apply the theory. But, as it stands, noted utilitarian
theorists like Peter Singer, and ordinary practicing utilitarians like
Barak Obama, strangely find even things like infanticide to be moral. We
may react to such things like the observers of the Nuremberg Trials,
wondering whether there might be some basic, maybe unwritten, universal
laws that trump some of the strange avatars of moral laws that come on
the scene and seem to be considered authoritative by masses of
“experts.”
