1.5. Further evolution
28. The modern story of the idea of natural law presents itself in certain aspects like a legitimate development of the teaching of medieval Scholasticism in a more complex cultural context, marked particularly with a greater sensitivity to subjective morality. Following these developments, we may point to the work of the 16th century Spanish theologians who, in the manner of the Dominican Francesco de Vitoria, resorted to the natural law to battle the imperialist ideology of some Christian States of Europe and to defend the rights of the non-Christian peoples of the Americas. In fact, such rights are inherent in human nature, and do not depend on any concrete circumstances or upon the Christian faith. The idea of natural law, moreover, concurred with the Spanish theologians’ efforts in finding the basis, that is, a universal norm, which regulated the relationship between peoples and States
29. But, from another perspective, in the modern period the idea of the natural law assumed an orientation which contributed to making it difficult to accept today. In the last centuries of the middle ages, there developed in the Scholasticism a voluntaristic current, whose cultural hegemony changed deeply the idea of the natural law. Voluntarism aimed at valuing the transcendent nature of the free subject in relation to all other contingencies. Against naturalism, which tended to tie God to the laws of nature, voluntarism sought to highlight the unilateral and absolute freedom of God, at the risk compromising His wisdom and of rendering His decisions arbitrary. In addition, against rationalism, suspected of subduing the human person to the order of the world, it exalted an understanding of liberty of pure indifference, one of pure power to choose the opposite, and thus risked detaching the person from his natural inclinations and the objective good.(34)
30. The results of the voluntarism on the doctrine of the natural law were numerous. First of all, while in St. Thomas of Aquinas the law was understood as a work of reason and an expression of a wisdom, voluntarism resulted in binding the law to the will alone, and to a will detached from its intrinsic ordination to the good. Following that reasoning, all the force of the law was seen to reside solely in the will of the lawgiver. So the law was expropriated of its intrinsic intelligibility. Under such conditions, morality was reduced to obedience to the commandments which disclosed the will of the legislator. Thomas Hobbes would therefore declare: "It is authority, not truth, that makes law” (auctoritas, non veritas, facit legem).(35) Modern man, in love with autonomy, could not rise up against a such vision of law. Thus, on the pretext of protecting the absolute sovereignty of God over nature, voluntarism lost any inner intelligibility. The thesis of the potentia Dei absoluta [absolute power of God], according to which God could work independently from his wisdom and goodness, relativized all existing intelligible structures and weakened the natural knowledge man was able to comprehend. Nature ceased to be a criterion in which one could recognize the wise will of God: man could receive such knowledge only from revelation.
31. From another angle, several factors led to the secularization of the notion of the natural law. Among these, one may mention the increasing divorce between Faith and Reason that characterized the end of the medieval age, and also some aspects of the Reformation, (36) but above all the desire to overcome the violent religious conflicts that bloodied Europe at the dawn of the modern age. There was a desire to find a source for the political unity of the human community, putting between parentheses so to speak, religious confessions. Now the doctrine of the natural law prescinds from any particular religious revelation, and therefore from every confessional theology. It claims to base itself only on the light of reason common to all of men and, presents itself as the ultimate norm in the secular field.
32. Additionally, modern rationalism made the existence of an absolute and normative order of intelligible essences accessible to reason, and entirely relativized their reference to God as the ultimate foundation of the natural law. The necessary order of essences, eternal and immutable, were certainly actualized by God, but, it was believed, they already possessed such coherence and rationality. The reference to God ought to be therefore optional. The natural law may be imposed upon all men "even if God did not exist (etsi Deus not daretur).”(37)
33. The modern rationalist model of the natural law is characterized by: (1) the existential belief in an unchanging and ahistoric human nature, of which reason can select perfectly the definition and the essential properties; (2) the placing between parentheses the concrete situation of the human persons in salvation history, marked by sin, and by grace, whose influence on the knowledge and on the practice of the natural law is however decisive; (3) the ideal that it is possible for reason to deduct a priori the precepts of the natural law from the essential definition of the human being; (4) from the expansive extension given to the principles so deduced, the natural law appears as if it were a code of laws already known, which rules govern almost the entirety of behavior. This tendency of extending the field of the determinations of the natural law existed at the origin of the serious crisis when, particularly with the progress of the human sciences, Western thought became much more conscious of the historicity of human institutions and of the cultural relativity of numerous behaviors that at times were justified by referring to the evidences of the natural law. This difference between a maximalist theory of natural law and the complexity of the empirical data explains in part the disaffection with the idea of a natural law. Because the notion of natural law can serve to elaborate a universal ethic in a secularized an pluralistic society like ours, it is necessary therefore to avoid presenting it in the rigid shape that it assumed, particularly in modern rationalism.
29. But, from another perspective, in the modern period the idea of the natural law assumed an orientation which contributed to making it difficult to accept today. In the last centuries of the middle ages, there developed in the Scholasticism a voluntaristic current, whose cultural hegemony changed deeply the idea of the natural law. Voluntarism aimed at valuing the transcendent nature of the free subject in relation to all other contingencies. Against naturalism, which tended to tie God to the laws of nature, voluntarism sought to highlight the unilateral and absolute freedom of God, at the risk compromising His wisdom and of rendering His decisions arbitrary. In addition, against rationalism, suspected of subduing the human person to the order of the world, it exalted an understanding of liberty of pure indifference, one of pure power to choose the opposite, and thus risked detaching the person from his natural inclinations and the objective good.(34)
30. The results of the voluntarism on the doctrine of the natural law were numerous. First of all, while in St. Thomas of Aquinas the law was understood as a work of reason and an expression of a wisdom, voluntarism resulted in binding the law to the will alone, and to a will detached from its intrinsic ordination to the good. Following that reasoning, all the force of the law was seen to reside solely in the will of the lawgiver. So the law was expropriated of its intrinsic intelligibility. Under such conditions, morality was reduced to obedience to the commandments which disclosed the will of the legislator. Thomas Hobbes would therefore declare: "It is authority, not truth, that makes law” (auctoritas, non veritas, facit legem).(35) Modern man, in love with autonomy, could not rise up against a such vision of law. Thus, on the pretext of protecting the absolute sovereignty of God over nature, voluntarism lost any inner intelligibility. The thesis of the potentia Dei absoluta [absolute power of God], according to which God could work independently from his wisdom and goodness, relativized all existing intelligible structures and weakened the natural knowledge man was able to comprehend. Nature ceased to be a criterion in which one could recognize the wise will of God: man could receive such knowledge only from revelation.31. From another angle, several factors led to the secularization of the notion of the natural law. Among these, one may mention the increasing divorce between Faith and Reason that characterized the end of the medieval age, and also some aspects of the Reformation, (36) but above all the desire to overcome the violent religious conflicts that bloodied Europe at the dawn of the modern age. There was a desire to find a source for the political unity of the human community, putting between parentheses so to speak, religious confessions. Now the doctrine of the natural law prescinds from any particular religious revelation, and therefore from every confessional theology. It claims to base itself only on the light of reason common to all of men and, presents itself as the ultimate norm in the secular field.
32. Additionally, modern rationalism made the existence of an absolute and normative order of intelligible essences accessible to reason, and entirely relativized their reference to God as the ultimate foundation of the natural law. The necessary order of essences, eternal and immutable, were certainly actualized by God, but, it was believed, they already possessed such coherence and rationality. The reference to God ought to be therefore optional. The natural law may be imposed upon all men "even if God did not exist (etsi Deus not daretur).”(37)33. The modern rationalist model of the natural law is characterized by: (1) the existential belief in an unchanging and ahistoric human nature, of which reason can select perfectly the definition and the essential properties; (2) the placing between parentheses the concrete situation of the human persons in salvation history, marked by sin, and by grace, whose influence on the knowledge and on the practice of the natural law is however decisive; (3) the ideal that it is possible for reason to deduct a priori the precepts of the natural law from the essential definition of the human being; (4) from the expansive extension given to the principles so deduced, the natural law appears as if it were a code of laws already known, which rules govern almost the entirety of behavior. This tendency of extending the field of the determinations of the natural law existed at the origin of the serious crisis when, particularly with the progress of the human sciences, Western thought became much more conscious of the historicity of human institutions and of the cultural relativity of numerous behaviors that at times were justified by referring to the evidences of the natural law. This difference between a maximalist theory of natural law and the complexity of the empirical data explains in part the disaffection with the idea of a natural law. Because the notion of natural law can serve to elaborate a universal ethic in a secularized an pluralistic society like ours, it is necessary therefore to avoid presenting it in the rigid shape that it assumed, particularly in modern rationalism.
(34) Cf. Benedict XVI, Lecture at Regensburg on the Occasion of the Meeting with the Respresentatives of Science. (12 September 2006), in AAS 98 (2006) 733: "In all honesty, one must observe that in the late Middle Ages we find trends in theology which would sunder this synthesis between the Greek spirit and the Christian spirit. In contrast with the so-called intellectualism of Augustine and Thomas, there arose with Duns Scotus a voluntarism which, in its later developments, led to the claim that we can only know God's voluntas ordinata. Beyond this is the realm of God's freedom, in virtue of which he could have done the opposite of everything he has actually done. This gives rise to positions which clearly approach . . . the image of a capricious God, who is not even bound to truth and goodness. God's transcendence and otherness are so exalted that our reason, our sense of the true and good, are no longer an authentic mirror of God, whose deepest possibilities remain eternally unattainable and hidden behind his actual decisions."
(35) Thomas Hobbes, Leviathan, Part II, c. 26 “In the constituted state, the interpretation of the laws of nature do not depend on doctors, on the scribes who address issues of moral philosophy, but on the civil authority. In fact the only possible doctrine that is true is, that authority, not truth, is what makes law.” [Editor's note: the statement auctoritas, non veritas, facit legem is found only in Chapter 26 of Hobbe’s Latin version of Leviathan, not in the English]
(36) The position of the Reformers with regard to the natural law is not monolithic. Those like Martin Luther and John Calvin, being based on St. Paul, recognized the existence of the natural law as an ethical rule, even if is radically incapable of justifying man. "Nothing, indeed is more common, than for man to be sufficiently instructed in a right course of conduct by natural law, of which the Apostle here speaks. . . . .The end of the natural law, therefore, is to render man inexcusable, and may be not improperly defined--the judgment of conscience distinguishing sufficiently between just and unjust, and by convicting men on their own testimony depriving them of all pretext for ignorance." (John Calvin, Institutes of the Christian Religion, Book II, c. 2, 22) (Henry Beveridge, trans.). In the three centuries following the Reformation, for the Protestants, the natural law served as the foundation of jurisprudence. Only with the secularization of the natural law in the 19th century, did Protestant theology keep a distance from it. From that time forward there arose an opposition between Protestant and Catholic opinions on the question of the natural law. But today, Protestant ethics seems to be displaying a new interest in the notion of natural law.
(37) This expression has its origin in Hugo Grotius, De iure belli et pacis, Prolegomena: "Haec quidem quae iam diximus locum aliquem haberent, etsi daremus, quod sine summo scelere dari nequit, non esse Deum."
(35) Thomas Hobbes, Leviathan, Part II, c. 26 “In the constituted state, the interpretation of the laws of nature do not depend on doctors, on the scribes who address issues of moral philosophy, but on the civil authority. In fact the only possible doctrine that is true is, that authority, not truth, is what makes law.” [Editor's note: the statement auctoritas, non veritas, facit legem is found only in Chapter 26 of Hobbe’s Latin version of Leviathan, not in the English]
(36) The position of the Reformers with regard to the natural law is not monolithic. Those like Martin Luther and John Calvin, being based on St. Paul, recognized the existence of the natural law as an ethical rule, even if is radically incapable of justifying man. "Nothing, indeed is more common, than for man to be sufficiently instructed in a right course of conduct by natural law, of which the Apostle here speaks. . . . .The end of the natural law, therefore, is to render man inexcusable, and may be not improperly defined--the judgment of conscience distinguishing sufficiently between just and unjust, and by convicting men on their own testimony depriving them of all pretext for ignorance." (John Calvin, Institutes of the Christian Religion, Book II, c. 2, 22) (Henry Beveridge, trans.). In the three centuries following the Reformation, for the Protestants, the natural law served as the foundation of jurisprudence. Only with the secularization of the natural law in the 19th century, did Protestant theology keep a distance from it. From that time forward there arose an opposition between Protestant and Catholic opinions on the question of the natural law. But today, Protestant ethics seems to be displaying a new interest in the notion of natural law.
(37) This expression has its origin in Hugo Grotius, De iure belli et pacis, Prolegomena: "Haec quidem quae iam diximus locum aliquem haberent, etsi daremus, quod sine summo scelere dari nequit, non esse Deum."
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