Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Wednesday, June 30, 2010

The Disfigured Face: The Unholy Trinity: Immanuel Kant

IF JOHN LOCKE WAS THE "FATHER OF LIBERALISM," IMMANUEL KANT was the "Father of Deontological Ethics" or the "Father of Autonomy." In the Pantheon of the Modern Thought, Kant is the Doctor Deontologicus, the Deontological Doctor, or perhaps the Doctor Imperativi, the Doctor of the Imperative, since his ethics are both based upon duty and command. What this, of course, means is that he is opposed to an ontological ethic. Kant's ethics are based on duty, on command, and they are not based on being or existence. In the face of growing individualism in ethics, Kant tried to derive some universal rules that were based on reason alone, but not in any sense on nature. "[F]or Kant, right does not conform to an ontological order, but rather to a rational order." Cortest, 54. He rejected the virtues, as not sufficiently exact, for he strained for moral rules "with mathematical exactitude" (mit mathematischer Genauigkeit). Virtues were too messy. Nature was to messy. Things like the "Golden Rule" were too messy. (See The Golden Rule in Immanuel Kant: The Golden Rule But a Footnote.) Reality was too messy, and we couldn't be sure we understood it anyway. In Kant's view, this "mathematical exactitude" (mathematischer Genauigkeit) based on a pure reason distilled of nature or being, was "more important than any deeper principle of being or truth," or inherited tradition or revealed religion. Cortest, 54. This search for universal rules to govern ethics based upon pure reason alone ultimately lead to his absolute categorical imperatives.
Kant's philosophy begins with a critique of traditional metaphysical thought. This is the very reason why his doctrine of right (jus) is entirely deontological. The older Aristotelian-Thomistic moral philosophy is based on an ontological foundation. With Kant, the science of being is divorced from morality. The new foundation for morality becomes reason itself. Reason [alone] serves as the starting point and establishes the limits for moral reasoning. The participants in Kant's moral universe are guided by reason rather than by nature. Individual human beings act in accord with universal principles rather than through a sense of natural or intrinsic good.
Cortest, 55 (emphasis added). To his credit, Kant was a strong advocate of moral freedom, and his deontological ethic had some sense of nobility and beauty about it in its zeal for justice. There is something lovely, wistful in the saying: "For if justice goes, there is no longer any value in human beings living on the earth." Wenn die Gerechtigkeit untergeht, so hat es keinen Werth mehr, daß Menschen auf Erden leben. Yet there is a certain harshness about Kant, and he seems to exclude the role of mercy and of love. (The phenomenologist Max Scheler criticized Kantian imperative ethics because it excludes behaviors that someone in authority, whether it be God or man, cannot order but only woo, such as mercy and love and faith. He also criticized it for being overly pragmatic and finding moral value only in those areas where change can be accomplished by order or command. Wherever Kant has been one hears the plaint: Where, oh where has supererogation gone? Oh where oh where can it be?) That is why Kant shudders at the thought of anyone who dares compromise the "law of punishment," which for Kant is one of his "categorical imperative."
Woe to him who crawls through the windings of eudaimonism [Aristotelianism? Thomism?] in order to discover something [mercy? love?] that releases the criminal from punishment or even reduces its amount by the advantage it promises . . .
(Cortest, quoting Metaphysics of Morals [Wehe dem! welcher die Schlangenwindungen der Glückseligkeitslehre durchkriecht, um etwas aufzufinden, was durch den Vortheil,den es verspricht, ihn von der Strafe, oder auch nur einem Grade derselben entbinde . . . .] Similarly, before society disbands, it would have a duty to put all the criminals found guilty of capital offenses to death. "Clearly, Kant defends a hard-line position on this question; this is so because for Kant, matters of justice must have a universal application." Cortest, 57. This is done through the use of absolute, exceptionless imperatives. Command, command, command; duty, duty, duty. This is a dry, external ethic. Compared to the ontological ethic, it is like eating sand instead of steak. With this irrepressible impulse to enforce law at all costs, we ought to be very thankful that God is not Kant, and that Kant was not God.

Immanuel Kant

Cortest then addresses the interaction of Locke and Kant, and their particular contributions to the project of Modernity:
It is clear that what begins as the defense of personal freedom in Locke is transformed by Kant into a system of absolute imperatives, in which the personal becomes the universal. Perhaps the best way to understand this transformation is to imagine that while Locke "freed" the individual from tradition, Kant made the now autonomous individual, through a set of rational principles, the foundation of justice and right. More than any other innovation in his moral philosophy the feature the most characterizes Kant's thought is this emphasis on autonomy. . . . This notion of moral autonomy may well be one of the most important developments in the history of modern ethics. Indeed, this doctrine is one of the features that most characterizes the thinking we call "modern."
Cortest, 58. (We have treated the issue of Kant's notion of autonomy in our prior posting: Ecstasis and Telos: Immanuel Kant and Selflaw.)

In his For an Ontology of Morals: A Critique of Contemporary Ethical Theory (Evanston, Ill.: Northwestern University Press, 1971), Henry Veatch criticizes Kant's anti-ontological ethical theory. Though the quote is rather long, it merits being posted:
So long as Kant is either unwilling or unable to recognize the possibility that a natural desire may nonetheless be a reasoned desire and thus determined by nothing less than a knowledge of the good, he must renounce altogether any and all attempts to provide an ontological basis for ethics in terms of a thing's nature, be it human nature or the nature of rational beings generally. But the question returns to plague the Kantians more persistently than ever: how can one possibly come to know the moral laws that are incumbent upon us as rational beings if appeal is not to be made to the nature of such beings by way of support? So far as we have been able to determine, the only way that a Kantian can answer this question is by attempting to appeal not to the nature of rational beings, bur rather to the purely formal requirements that presumably must attach to moral laws, insofar as these laws are held to be binding on all rational creatures.
Now, Locke the Liberal had made morality a matter of personal choice. The duty-above-all-else Kant had fitted this personal ethic into a system of static universal imperatives based upon reason alone. Hegel was to take these two and adds the component of development or evolution, as man, in his view was to find his increasing self-awareness by incorporation into the State. That will be the subject of our next posting.

Tuesday, June 29, 2010

The Disfigured Face: The Unholy Trinity: John Locke

THE LOSS OF ONTOLOGICALLY-BASED MORALITY began when Western man walked the intellectual trail from the woods of Aristotelian/Thomistic tradition to the moral desert of increasing autonomy, and thence to relativism and skepticism and moral anarchy. In his walk from the perennial ethic to modern autonomy and relativism, man the pilgrim, homo viator, traveling through history shed himself, as it were, of his traditional moral accoutrements. On the way to wherever apparent self-mastery and self-definition would lead him, a goal as pointless and as elusive as the search for the legendary Prester John, Western man cast off his scrip, his hat, his cloak, his staff, and ultimately even his faith, and in so doing, lost likewise his nature. This was the path from ontological ethics to deontological ethics: from ὄν to δέον, from being to duty,* at first duty to reason, and then duty, even enslavement, to the overweening State.

Sant'Iago (St. James) Dressed as a Pilgrim

Luis Cortest explores this process of the increasing rejection of the ontological and eudaemonistic ethics of Aristotle and St. Thomas in his fourth chapter of his book The Disfigured Face. Though there are many who are answerable to humanity and, even more importantly to God,** for their ideas of increasing infidelity and rejection of the natural law, Cortest focuses on three: John Locke (1632-1704), Immanuel Kant (1724-1804), and Georg Wilhelm Friedrich Hegel (1770-1831). (He could have chosen many others, including Hobbes, Hume, Rousseau, etc.) By focusing on these three, Cortest spans the 17th through the early 19th century. These are the chosen unholy trinity of "the Modern way," whose quality is supposedly autonomy, but is actually thralldom to human convention, to sin, and to the State.

Locke, Kant, and Hegel: Luis Cortest's Unholy Trinity of "The Modern Way"

The 17th century is where one must look for the genesis of the modern notion of positive human rights. The unity of Christendom had been rent by the Protestant rebellion, and the powers of tyrant kings and tyrant princes went unchecked by the submissive state-sponsored churches, and increasing secularism grew as it were cancer. The Wars of Religion had exhausted men, pitting German against German, and Frenchman against Frenchman, European against European. And all of Europe, its hands in stained vermilion in fraternal blood, struggled with finding some sort of modus vivendi which was nothing other than practical compromise to a situation spawned by rebellion against God and His Church. Those practical compromises and accommodations were eventually apotheosized to the preeminent moral value of toleration. The preeminence given to toleration as a means to deal with religious dissent, and the temporizing accommodation to idiosyncrasies of belief that came with religious and moral anarchy, naturally led to despair that objective truth in religion or philosophy was impossible to attain. "Holiness before Peace," was the young John Henry Newman's motto adopted from Thomas Scott of Aston Sandford when liberalism was already infecting the schismatic Protestant ecclesial communions and established churches, a liberalism Newman, when created Cardinal, described thus in his so-called "Biglietto Speech" of 1879:***
Liberalism in religion is the doctrine that there is no positive truth in religion, but that one creed is as good as another, and this is the teaching which is gaining substance and force daily. It is inconsistent with any recognition of any religion, as true. It teaches that all are to be tolerated, for all are matters of opinion. Revealed religion is not a truth, but a sentiment and a taste; not an objective fact, not miraculous; and it is the right of each individual to make it say just what strikes his fancy. . . . . Hitherto the civil Power has been Christian. Even in countries separated from the Church, as in my own, the dictum was in force, when I was young [E.N. Newman was born in 1801], that: "Christianity was the law of the land." Now, everywhere that goodly framework of society, which is the creation of Christianity, is throwing off Christianity. The dictum to which I have referred, with a hundred others which followed upon it, is gone, or is going everywhere; and, by the end of the century, unless the Almighty interferes, it will be forgotten.
The end of the century came and went, and the Almighty does not appear to have interfered, probably because the West has refused to repent, and so must confront the punishment, some natural, some surely supernatural, for its disobedience. What the newly-created Cardinal Newman described as Liberalism was the doctrine of John Locke, the first of the unholy Trinity selected by Cortest. A man with opposing sentiments to Blessed John Henry Newman in every way, John Locke's motto may be said to have been, in opposition to Newman's, "Peace (or Tolerance) before Holiness."
When religion is understood as a purely personal matter, it becomes extremely difficult to tolerate religious groups that defend a doctrine of absolute truth in matters of faith and morals. Locke's goal for society was the peaceful coexistence of citizens. For Locke, it was more important that each person in society follow his or her own conscience than for anyone to defend a doctrine of absolute truth.
Cortest, 53. John Locke's weakness of Faith was physically mimicked in the weakness in his lungs (he was chronically asthmatic). Locke worked with limited lung capacity as well as limited Faith capacity. Locke's doctrine on tolerance was born from the brain of a man who rejected the Trinitarian faith, lapsing into an unorthodox Socinianism that denied the pre-existence of Christ and his atoning death on the Cross. Locke was a proto-Unitarian, only nominally Christian. He certainly had no traditional notion of the Church, as he seems to have had an ecclesial theory predicated upon social contract: "A church," Locke said, "seems to me to be a free society of men, joining together of their own accord for the public worship of God in such a manner as they believe will be acceptable to the Deity for the salvation of their souls." Cortest, 50 (quoting from Locke's Letter on Tolerance). What? Faith a contract among men? This betrays no notion of a Faith or a Church founded by an Incarnate God. Cortest's conclusion is a massive understatement:
Obviously, Locke was not a defender of traditional church teaching; he was, rather, one who had embraced a new way of understanding religious matters.
Cortest, 50. Locke seems to have been skeptical of the human mind to grasp ultimate truth, and of God to reveal himself to man. And to make way for his increasing rejection of the Faith, he demanded increasing tolerance from secular and religious authority for this false religious freedom. He wanted his rebellion to become right. The spirit that motivated him may be gleaned from his hatred of the Roman Catholic Church. Locke was intolerant with the notion of an objectively true Faith. Though these things are hard to tell with moral certainty (the last shall be first, the first shall be last), one thinks maybe the Devil had John Locke in his employ and it may have landed him in Hell. He, along with Thomas Hobbes, John Stuart Mill, and (less frequently) Friedrich Schleiermacher), is honored with the title the "Father of Liberalism," which is already a condemnation. Locke made the honor roll of error when his name was placed on the Index of Prohibited Books. In fine, he is a Doctor of Beelzebub's Church, the Doctor Liberalismus. (This is not to say that all of Locke's ideas are ipso facto suspect, but he must be handled with caution, sort of like a Petri dish infected with dangerous bacteria.)

John Locke

Locke not only advocated a religious freedom, he also advocated the radical separation of Church and State.
The church itself is absolutely separate and distinct from the commonwealth and civil affairs. The boundaries on both sides are fixed and immovable. He mixes heaven and earth together, things most remote and opposite, who confuses these two societies, which in their origin, their end, and their whole substance are utterly and completely different.
Cortest, 50-51 (quoting Locke's Letter on Toleration). The church "absolutely separate and distinct from the commonwealth?" The boundaries on both side are fixed and immovable? Where are these boundaries? And by whom are they set? By man or by God? By the State or the Church? The State and Church "remote and opposite?" The Church's role is to bring men to God. Is Locke suggesting the commonwealth's role is the opposite, that is, to bring men to the Devil? Clearly not. But perhaps unclearly yes.

Cortest compares Locke's novel doctrine with the Quanta cura, the Encyclical of Pope Pius IX of 1864, and comes to the conclusion:
Obviously, Pius IX did not believe for an instant that the Church should remain separate from and have no voice in civil society. One the contrary, he believed that the Church has the responsibility to make civil society more humane and just. Locke's doctrine of the complete separation of church and sate is absolutely incompatible with Roman Catholicism.
Cortest, 52.

Locke thus opened the way to modern secularism. "Locke may well not have been a secularist, but his principle of the total separation of the spiritual from the temporal prepared the way for modern secularism." Cortest, 53.

What the empiricist Locke wanted was the Church shoved in a corner where it should become irrelevant. His toleration is suspect; indeed it is a guise, a feigning, a cover for his skepticism and relativism. Why do we know this? Because Locke was intolerant of any Church that claimed special status. He was intolerant of anyone who believed in objective truth. With respect to the Catholic Church:
These, therefore, and the like, who attribute to the faithful, religious, and orthodox, that is, in plain terms, to themselves, any peculiar privilege or power above other mortals, in civil concernments; or who, upon pretence of religion, do challenge any matter of authority over such as are not associated with them in the ecclesiastical communion; I say these have no right to be tolerated by the magistrate; as neither those that will not own, and teach, the duty of tolerating all men in matters of mere religion.
So much for the tolerant Locke. No Catholic was wanted in tolerant Locke's tolerant England. No more Merrie Old England. No, to be part of the way things were going to be, you had to drop the notion that God came down from heaven in the form of a man, and founded a Church upon the Rock of Peter. You had to give up the notion that Peter had been given the authority, the keys to the kingdom of heaven, and could bind things both in heaven and on earth. You had to give up the notion that there was a natural law that was ontologically-based and that the Church claimed the right, by divine bestowing, to declare infallibly truths of Faith and truths on Morals. Being Catholic was the new crime. So it was that in Locke's "tolerant" Dour New England, the Catholics were legally and socially discriminated against until the Catholic Emancipation Act of 1829. No, Locke was not tolerant. He was simply an old-fashioned, unreasonable, closed-minded, and intolerant anti-Catholic.

What is perhaps the most characteristically modern aspect of Locke's thinking, is his "emphasis on the personal." Cortest, 53. This hyper-individualism simply does not fit with traditional moral thinking.
From the time of Plato, ethics as the science of the good was never a doctrine of individual choice. Traditionally, ethics formed part of an ontological whole; it is only in modern thought that morality and being become autonomous.
Cortest, 53. In support of his view, Cortest quotes Louis Dupré, whose work on the passage of traditional society to modernity has been mentioned in an earlier posting on this blog: (See Louis Dupré on Metanoia.) "As a science of the good, ethics had always been more than a concern about human perfection," Dupré observes.
Almost from the beginning it had occupied the center of an all-inclusive ontology. But when modern thought reduced the good to personal or social perfection, independently of and occasionally in position to the whole, it deprive it of ontological depth and marginalized morality with respect to the totality of Being. Few modern thinkers avoided the pitfall of severing the person as creative principle from the rest of nature.
Cortest, 53 (quoting Dupré's Passage to Modernity, p. 143). So Locke, though perhaps not the first to put a dent in the armor of ontological ethics, certainly did his part to weaken the temper of that armor's steel. Cortest argues that the separation of the individual from the community is the upshot of Locke's thought. Locke rejected any sort of ontological foundation for moral activity. While he talks of nature and natural law, he did not understand "nature" in the manner of his forefathers.
Locke's doctrine of human rights is non-ontological; by the time he was writing his most important works (in the late seventeenth century) the older understanding of the relationship between nature and morality had started to disappear. When Locke speaks of "nature," that term no longer has the same meaning as it had for thinkers one hundred hears before, who were still operating within an Aristotelian-teleological context.
Cortest, 54.

Noah's Covenant: Stained Glass, 13th Century, Chartres Cathedral

Locke's emphasis of individual freedom at the expense of an objective notion of justice and at the expense of an ontologically-based morality was problematic. If personal caprice is more important than some sort of universal order that is based upon being or that which exists, then where is the objectivity to be found if at all? Is there such a thing as an objective order? What is it that is supposed to guide the State, to guide positive law? Where is any effective restraint on the State?

Like some sort of clumsy white knight, Kant comes in to the rescue, but instead of repairing the breach in the dike of ontological morality, he made the hole wider, and changed to focus of ethics from being to duty, a duty based upon a pure reason completely distilled from anything else that may be characterized as being part of man. And now the whole world's flooded with Kantian deontological ethics, and the ontologically-based natural law finds itself largely in the confines of the Ark, that is to say, the Roman Catholic Church, waiting the end of the rains and the recession of the world's waters. God promised he would not destroy the earth with waters he sent from the heavens (Gen. 9:11), but he did not promise that he would save us from the floods that we made for ourselves. At least not without repentance. Where the new Mount Ararat is to be found, where the Christian may once again stand on terra firma and rely on government that is not against him, is anybody's guess.

We will save Kant for our next posting.


*ὄν [on]= being in Greek, δέον [deon]= duty in Greek.
**We are bound by the natural moral law to assure that our thoughts conform to objective truth, and that our conscience and actions conform to the good. This obligation we owe to our neighbor and to God. The moral freedom we enjoy is ordered to truth and the good. There is moral fault in spreading falsehood among our brothers, a worse fault that knowingly spreading some sort of infectious disease.
biglietto is the name given to the formal correspondence that one has been created Cardinal by the Roman pontiff.

Monday, June 28, 2010

The Disfigured Face: The War of the Philosophers: St. Thomas on Slavery

THE SCHOOL OF SALAMANCA was the work of the Dominican Francisco de Vitoria. He has been hailed as the "Father of International Law." He was not trapped by a Spanish parochialism or jingoism; his philosophy, and his Faith, allowed him to overcome many of those nationalistic hindrances that bound the ordinary Spaniard to his belief in superiority or exceptionalism of his nation. It was these sorts of intellectual chains that bound up the intellect of that advocate of natural slavery, Sepúlveda, and made him, in an ironical way, a slave to them. Spain in the early 16th century was the glory of the earth. Headed by the Emperor Charles V, Spain was the world power. It was firmly planted in two continents. It took a great man to seek that there was a part of Spain, its earthly glory withal, that was not glorious in heaven. But Vitoria's merits were largely a reflection of his teacher, St. Thomas Aquinas.

Portrait of Emperor Charles V by Titian

It was his appointment to the University of Salamanca, and his promotion of Thomism there, that was Vitoria's greatest, and lasting work. Unusually, he did not publish any work during his lifetime, and the majority of what we have from him are as a result of notes taken from his lectures. Perhaps his most important, certainly the most frequently read, are his Relectio de indis recenter inventis, his lectures on the status of the recently-discovered Amerindians. Many of these notes, at least those on other topics, unfortunately, remain unpublished.

In his Relectio de Indis, Vitoria addressed the issue of whether Spain was justified in conquering the Americas because of the lapse of reason, the "rational insufficiency," of the Amerindians. Despite their social sins and cultural enormities (e.g., human sacrifice, idolatry), were the Amerindians capable of self-government, self-determination? Or were their cultural enormities, the product of the failure of the natural law and reason, justifications for just war and warrant for conquest? It is clear that Aristotle's authority and stature was the biggest impediment to answering the question. Specifically, the Aristotelian doctrine (found in his Politics and in his Nicomachean Ethics) that there were men who were barbarian, who were by nature slaves, and were naturally lacking in the right over themselves and their possessions. Slavery was rampant in the ancient Greek world, and Aristotle addressed the issue of whether it was a natural institution, or rather one that was conventional. Aristotle believed that slavery was a natural institution, that there were some men, who, by reason of their superiority, were naturally masters, and other men, who, by reason of their inferiority, naturally slaves.
But is there any one thus intended by nature to be a slave, and for whom such a condition is expedient and right, or rather is not all slavery a violation of nature? This is the question: but it is interesting that he feels the need to ask it. There is no difficulty in answering this question, on grounds both of reason and of fact. For that some should rule and others be ruled is a thing not only necessary, but expedient; from the hour of their birth, some are marked out for subjection, others for rule.
Politics, I, 2, 1254a. Vitoria was, as may be expected, conservative, and he struggled to find a way around the Aristotelian doctrine without repudiating it. "Aristotle certainly did not mean to say that such men thereby belong by nature to others and have no rights of ownership over their own bodies and possession (dominium sui et rerum). Such slavery is a civil and legal condition, to which no man can belong by nature." Aristotle "certainly did not mean by this that such men had a legal right to arrogate power to themselves over others on the grounds of their superior intelligence, but merely that they are fitted by nature to be princes and guides." Granting, arguendo, that the American Indians were "foolish and slow-witted as people say they are," Vitoria's conclusions were that it was "still wrong to use this as grounds to deny their true dominion (dominium); nor can they be counted among the slaves." Cortest, 37 (quoting Francisco de Vitoria, Political Writings (Cambridge: Cambridge University Press, 1991), 233.)

Fray Bartolomé de Las Casas by Félix Parra

Vitoria's effort to circumvent Aristotle without outright repudiation has been criticized by scholars, and probably rightly so. To give to Aristotle such a slant was outside the range of probability of Aristotle's intendment.

On the other hand, Las Casas was much less deferential to the Aristotelian "natural slavery" doctrine. Cortest, 38. Las Casas maintained that there was but one human race, "una denique sola species creaturae rationalis, quae in individuis suis per universum mundum erat dispersa," "besides, there is only one species of rational creature, which is dispersed through the entire world in his individuality." (So in his De unico vocationis modo.) Though there may be differing levels of cultural achievements and though they may be laboring under social or cultural impediments, the Indians remained children of God, redeemed of Christ, and fellow brothers with the Spaniards:
Again, if we want to be sons of Christ and followers of the truth of the gospel, we should consider that, even though these peoples may be completely barbaric, they are nevertheless created in God's image. They are not so forsaken by divine providence that they are incapable of attaining Christ's kingdom. They are our brothers, redeemed by Christ's most precious blood, no less than the wisest and most learned men in the whole world.
Cortest, 41 (quoting Las Casas's In Defense of the Indians) Can one imagine Aristotle, the proud Greek, saying of the Persians or the lesser peoples, "They are our brothers"? Manifestly no. Christianity injected something precious, something magnificent, into the world, a comfort to the poor and downtrodden, and a humbling medicine, perhaps bitter in taste, to the rich and the proud. Oh let us praise the Lord God in unison with Mary for the entry into the world of this thing!
Magnificat anima mea Dominum,
et exsultavit spiritus meus in Deo salvatore meo . . . .
Fecit potentiam in brachio suo,
dispersit superbos mente cordis sui;
deposuit potentes de sede,
et exaltavit humiles;
esurientes implevit bonis,
et divites dimisit inanes.
Others also addressed the issue of the Amerindians' status as "natural slaves," and weighed in against Sepúlveda. Among these, Cortest cites and discusses the Jesuit José de Acosta, the so-called "Pliny of the New World," who detailed the natural and moral history of the Indies. He discusses the Dominican Domingo Bañez, the proeclarissimum jubar, the "brightest light" of Spain, and confessor to St. Theresa of Avila. He also briefly addresses the view of the Dominican Melchor Cano, that zealous prosecutor of Carranza and author of the famous De Locis Theologicis. But the real focus of his sights is Francisco Suárez, and the teacher of them all, St. Thomas Aquinas.

In his De triplici virtute theologica, fide, spe & charitate, Suárez explicitly confronts the position of Sepúlveda on Spain's right of conquest over the pagan American Indians. The three arguments commonly given were that such conquest was justified by reason of the Indian practice of human sacrifice, which warranted intervention to defend the innocent. The second argument commonly given was that such conquest was legitimated by the cultural benefits that the pagan society would receive from its conquerors' superior civilization. The third argument (which is the one that Cortest in his discussion of Suárez focuses on) is the argument that the Amerindians were, by nature, slaves, and therefore could be compelled to obedience to their superiors. Cortest, 40.

Aztec Human Sacrifice: Did it Warrant Conquest?

In addressing the last argument, Suárez doubted that, in fact, there could be peoples that were so barbarous and uncivilized "that they were neither united in a civil society, nor capable of exercising government." In other words, the capacity to live in common and provide for self-determination and self-government is so intrinsic to humanity, that one ventures into the land of theory to suggest that a people have lost this capacity. In practice, Suárez maintains, such a barbarous people with an absolute inability to self-govern have never been found.

The fact is that all of these men: Vitoria, Las Casas, de Acosta, Bañez, Cano, Suárez, and literally hundreds of others who are lesser lights but remain within the constellation of the School of Salamanca were schooled by St. Thomas Aquinas. "[T]he reason these writers share a common view concerning the doctrine of natural servitude is that Thomas himself rejected this doctrine." Cortest, 42. It is St. Thomas, steeped in the law and teachings of the Gospel, who overcame the Aristotelian "some men are by nature slaves" blight.

Cortest focuses on St. Thomas Aquinas's Summa Theologiae. Thomas's commentary on Aristotle's Politics is problematic in that it is difficult to tell when St. Thomas is citing Aristotle's text with approval, and when he is not. Moreover, the commentary was never completed. The Summa, though also not fully completed, presents clearly enough St. Thomas's own view on the matter of the institution of slavery. The heart of the Thomistic analysis is Question 57, article 3 of the second part of the second part (IaIIae):
From the bare nature of the case there is no reason for this man rather than that man being a slave. It is only when it is looked at pragmatically in its results that, as Aristotle says, it is expedient for him to be ruled by a wiser man whom he serves. Servitude, which is part of the ius gentium, is natural then in the second sense of our explanation, not the first.

[H]unc hominem esse servum, absolute considerando, magis quam alium, non habet rationem naturalem, sed solum secundum aliquam utilitatem consequentem, inquantum utile est huic quod regatur a sapientiori, et illi quod ab hoc iuvetur, ut dicitur in I Polit. Et ideo servitus pertinens ad ius gentium est naturalis secundo modo, sed non primo [modo].
S.T., IIaIIae, q. 57 a. 3, ad 3. St. Thomas appears, then, to reject the Aristotelian notion that some men, are by nature inferior to others. However, he does not enter into the intellectually vacuous and indefensible territory of those who hold that men are in all things equal. Such a view is, as a matter of empirical fact, untenable. (In fact, in practice, such a belief can cause untold suffering, perhaps even more than the suffering imposed by slavery. One need only look at the sufferings of those under Communism. Wasn't it Gilles Dauvé who said, "Communism believes in equality through force"? Slavery is inequality through force. Communism is equality through force. Both are social and moral evils.) What St. Thomas suggests is that though slavery is not a natural institution, it is natural that some men should be subordinate, but not enslaved, to others, namely, the wiser.

This view is confirmed in another part of the Summa (dealing with the relationship between man and wife). Here, St. Thomas distinguishes between the subordination which is only for the advantage of the master (slavery), and subordination which is for the benefit of the subject (right order):
Subjection is of two kinds; one is that of slavery, in which the ruler manages the subject for his own advantage, and this sort of subjection came in after sin. But the other kind of subjection is domestic or civil, in which the ruler manages his subjects for their advantage and benefit. And this sort of subjection would have obtained even before sin. For the human group would have lacked the benefit of order had some of its members not been governed by others who were wiser.

Ad secundum dicendum quod duplex est subiectio. Una servilis, secundum quam praesidens utitur subiecto ad sui ipsius utilitatem et talis subiectio introducta est post peccatum. Est autem alia subiectio oeconomica vel civilis, secundum quam praesidens utitur subiectis ad eorum utilitatem et bonum. Et ista subiectio fuisset etiam ante peccatum, defuisset enim bonum ordinis in humana multitudine, si quidam per alios sapientiores gubernati non fuissent. . . .
S.T., Ia q. 92 a. 1 ad 3. Slavery, though perhaps prevalent among men, is not a natural institution. It entered the world by reason of man's original sin, and, where it becomes institutionalized, as it did in Ancient Greece, or as it did in Africa, Islam (Islam has the added problem that slavery is justified in the Qur'an and the Sunnah, Mohammed having participated, nay, benefited, nay even relished in orgasmic shudder in the institution, as he had sex with his women slaves. Thus it would appear that slavery, which is against the natural law, has the sanction of Allah, if Muhammad and his Qur'an is to be believed.), or the West during the era of the slave trade and chattel slavery, it is the product of sin: indeed, it is a punishment for having sinned. Slavery does not insinuate itself into a society unless it has compromised the natural moral law:
The difference between a slave and a free man is that a free man is because of himself, as it says at the beginning of the Metaphysics; whereas a slave is geared to the benefit of another. So someone lords over another as a slave when he simply uses him for his own, that is the lord's purposes. And because everyone naturally values his own good, and consequently finds it grievous to surrender entirely to another the good that ought to be his own, it follows that lordship of this kind cannot but be punitive to those subjected to it. For this reason man cannot have lorded over man in the sate of innocence in that sort of way.

Cuius ratio est, quia servus in hoc differt a libero, quod liber est causa sui, ut dicitur in principio Metaphys.; servus autem ordinatur ad alium. Tunc ergo aliquis dominatur alicui ut servo, quando eum cui dominatur ad propriam utilitatem sui, scilicet dominantis, refert. Et quia unicuique est appetibile proprium bonum, et per consequens contristabile est unicuique quod illud bonum quod deberet esse suum, cedat alteri tantum; ideo tale dominium non potest esse sine poena subiectorum. Propter quod, in statu innocentiae non fuisset tale dominium hominis ad hominem.
Ia q. 96 a. 4 ad arg. There is a predisposition in man toward slavery. This is the result not only of the Fall, but also of the natural convenience, the pragmatic benefits to the master from this institution. It is sometimes so entrenched that the removal of it can cause more harm than the tolerance of it. Analogously, it is sometimes better to live, at least for a time, with a tumor, if to remove it would result in certain death. Thus, slavery is something that, though not in accord with nature, is frequently found among human societies. This is because something can be said to be natural in two ways, actively, because nature requires it, and passively, because nature does not appear to forbid the contrary.
You speak of something being according to natural right in two ways. The first is because nature is set that way; thus the command that no harm should be done another. The second is because nature does not bid the contrary; thus we might say that it is of the natural law for man to be naked, for nature does not give him clothes; these he has to make by art. In this way common ownership and universal liberty are said to be of natural law, because private property and slavery existence by human contrivance for the convenience of social life, and not by natural law. . . .

[Q]uod aliquid dicitur esse de iure naturali dupliciter. Uno modo, quia ad hoc natura inclinat, sicut non esse iniuriam alteri faciendam. Alio modo, quia natura non induxit contrarium, sicut possemus dicere quod hominem esse nudum est de iure naturali, quia natura non dedit ei vestitum, sed ars adinvenit. Et hoc modo communis omnium possessio, et omnium una libertas, dicitur esse de iure naturali, quia scilicet distinctio possessionum et servitus non sunt inductae a natura, sed per hominum rationem, ad utilitatem humanae vitae.
IaIIae q. 94 a. 5 ad 3. Thus, slavery was not a natural institution, but one of human origin. It has no divine or natural pedigree. It is one imposed by positive law, by custom, and has entered the world as a result of sin. Though men are, by accidents of birth, culture, education, inheritance unequal, all men are by nature equal, omnes homines natura sunt pares. S.T., IIaIIae q. 104 a. 5 co.

And so it is that this chapter turns to a close:
The philosophical debate concerning the nature of the native peoples of the New World was an important component in the controversy surrounding the legitimacy of the wars of conquest. The legal theory that grew out of this controversy would have a long history. The juridical treatises produced by the members of the School of Salamanca were primary sources for Hugo Grotius and, as such, had a major impact on the development of modern international law. More importantly, the participants in the debate reveal two distinctly different views concerning the dignity of the human person. One one hand, the [strict] Aristotelians (lead by Sepúlveda) defended a hierarchical notion of human worth . . . On the other hand, the strict Thomists defended the idea that no one is a natural slave; all people are children of God and thus, foreign peoples, even if they believe in different gods, are human beings created by God who live in legitimate societies.
Cortest, 47.

From here, Cortest turns to the philosophy of natural right. Specifically, Cortest traces its origin to the 16th century, and, after exploring the origin of modern human rights, will compare it to the classic, specifically Thomist, theory of natural law.

Sunday, June 27, 2010

The Disfigured Face: The War of the Philosophers: Sepúlveda v. Las Casas

IN A FAIR FIGHT, JUDGED BY MEN OF GOOD WILL, the natural law will win over error. So it would appear is the verdict of history of the famous "Juntas de Valladolid," the debate between fellow Dominicans Fray Juan Ginés de Sepúlveda (1489–1573) and Fray Bartolomé de las Casas (1484-1566). Were the Amerindians, as a result of their lack of Christian faith, capable of self-government, self-determination? What right, if any, did the Spanish kings have to conquer the Amerindians for violations of the natural law, such as their human sacrifices or their pagan customs? Were the Amerindians "natural slaves" referred to by Aristotle, or were they human beings of equal dignity with their Spanish masters? These were the sorts of matters that were debated between these two redoubtable opponents.

Sepúlveda was a formidable adversary. Born in the town of Pozoblanco, near the city of Córdoba, Sepúlveda received his education at the University of Alcalá, and then later in Bologna, Italy. He was a famous commentator and translator of Aristotle, and a correspondent with the famous Erasmus of Rotterdam. At the age of forty-five, he became chaplain and chronicler to the emperor Charles V (as a result writing a thirty volume work on the emperor's doings, the de rebus gestis Caroli Quinti). Sepúlveda fashioned distinct ideas regarding the Amerindians and the Spanish right of conquest under the doctrine of just war. These arguments were gathered into a volume entitled Democrates, secundus sive de justus belli causis, and a subsequent revision, entitled Democrates alter de justis belli causis apud Indios.

From a scholarly perspective, Las Casas may not have had the laurels of Sepúlveda. But what he lacked in intellect, he made up for in heart and in zeal. Born in Seville, Las Casas's life straddled the discovery of the New World. He witnessed Christopher Columbus's return to Seville after the latter's first voyage. Las Casas's father, Pedro, accompanied Columbus on his second voyage, bringing his son a native Taíno native boy named Juanico. Las Casas spent much of his life in the New World and witnessed the brutal treatment of the native American population. All his life, it seems, he was the advocate of the native Americans against the Spanish colonists. He was the first resident bishop of Chiapas, Mexico. Witnessing first-hand the abuse of the natives by the Spanish colonists, he took it upon himself to intercede on their behalf to Charles V. At first, he sought to ameliorate the plight of the Indians by importation of black slaves from Africa; but he soon recanted this position, and became an advocate for the Africans as well. His natural solicitude for the plight of the Indians reached a climax and resolution after he heard the preaching of Fray Antonio de Montesinos. He resolved to divest himself of any holdings that relied on slave labor and gave up his own slaves. Convinced that the Spaniards had committed an act of great injustice against the native people of the Americas, he pushed for, and obtained in limited fashion, laws and institutional reforms. Since these views were not popular, particular with the rich and influential colonists, Las Casas required tremendous courage and persistence.

The debate at Valladolid was inconclusive at the time, but the passage of time has allowed the conventions of the time to change, and from our vantage point and the vantage point of history, it is now plain that Las Casas was the white knight, Sepúlveda the advocatus diaboli.
Neither man was ever proclaimed the winner at Valladolid, but if history is any indication fo the outcome, Las Casas was the clear winner and Sepúlveda a miserable failure.
Cortest, 36.

Las Casas's views were deeply influenced by his personal experience, his missionary spirit, and the preaching of Montesinos. Yet the Thomistic doctrines of the School of Salamanca were also deep influences on him. Cortest, 36. In his work advancing his views, the Democrates alter, Sepúlveda writes in the form a dialogue between Leopoldo (the interrogator) and Democrates (who advances Sepúlveda's position). Leopold asks Democrates:
Leopoldo: Do you realldy believe that anyone could be condemned by nature to live in slavery? . . . Do you think that the jurists, who (so many times) follow the rule of reason, are speaking in jest when they proclaim that all men are born free and that slavery was introduced afterwards by law?

Democrates: On the contrary, I believe that the jurists speak and act seriously and state their teachings with great prudence . . .
(quoted in Cortest, 33). The jurists and canonists referred to by Sepúlveda are those of the School of Salamanca, among them Francisco Vitoria, Domingo de Soto, and Las Casas.

One may here turn Domingo de Soto's De iustitia et iure, specifically book 4, question 2, article 2:
No law can repeal the law of nature: by natural law all men are born free . . . .slavery is that by which someone is subjected to the rule of another against nature . . . . Slavery is contrary to nature, that is to say, contrary to the firt intention of nature, which would desire that all men live zealously in accord with reason. But when this first intention is lost, punishment follows, in accord with corrupted nature. And one form of punishment is legal slavery.

Nullum ius potest naturalis derogare: naturali autem omnes homines nascuntur liberi . . . servitus sit qua quis dominio alieno contra naturam subiicitur . . . . Servitutem esse contra naturam: nempe contra primam naturae intentionem, qua cupit omnes homines secundum rationem studiosos esse. At tamen ailla deficiente intentione, ex culpa subsequuta est poena, quae est conformis naturae corruptae. Atque inter poenarum genera unum est legalis servitus.
Cortest, 35. The prevalence of slavery and its seeming naturalness, then, was a result of the Fall and the result of personal and communal sin. Under the natural law, under the law of reason, it cannot be justified. It is only blindness that makes us adopt it. It is indeed a form of punishment. If Plato is to be followed (Gorgias, 469b), since slavery involves such injustice, at least in the moral dimension, it is a worse punishment for the slave owner than the slave, who suffers physical evil but is innocent of the moral evil. (One would think, by a sort of analogy, that the prevalence of contraception, homosexuality, divorce and remarriage [serial polygamy], and abortion in our country might likewise be forms of punishment for our personal and social sins. Certainly, none of these are signs of authentic human flourishing.)

Saturday, June 26, 2010

The Disfigured Face: Ontological Morality and Human Rights

THE "NATURE" OF ARISTOTLE AND OF AQUINAS which is the source of the natural law is different from the denuded, one dimensional, materialistic "nature" of the modern day sciences. If the "nature" as understood by Aristotle and Aquinas were an apple, the "nature" as understood by the modern scientist is but a peel. The modern notion of "nature" is lacking both fruit and seed. It is tasteless, fruitless. It is bland of value, composed only of empirical fact. There is no "ought" in it; there is only "is" in it. The Aristotelian/Thomistic concept of nature had and element of design, but not the design of some complex watch, but the design of a quasi-living organism, as it had an inner entelechy, a desire, a yearning toward the God that had brought it out of nothing and that constantly preserved it in being. The entire cosmos, after all, even its raw matter, the chaotic matter over which the Spirit hovered, was a creature of God. God did not act arbitrarily, without reason in creation ex nihilo. It followed that nature had a purpose, a goal, an end, a telos (from the Greek word τέλος, a word meaning "purpose," or "goal," or "end"). Aristotle and St. Thomas Aquinas (and, for that matter, the entirety of the perennial tradition in between them and after them until this notion was rejected as part of the Enlightenment, Liberal, and Modernist project) was teleological. In this regard, Cortest quotes Ernest Fortin:
The heart of the Aristotelian enterprise is the well-known and now almost universally contested thesis that nature acts for an end.
This teleological view of nature of Aristotle was shared by St. Thomas; however, he nestled it into his unique metaphysics or ontology, which distinguished essence from existence, and which found that existence was the preeminent good, in fact the source of both the true and the good, of perfection. In St. Thomas's view, good and being are exchangeable terms. If a thing is good, it subsists in the fullness of its being (existence); that is, it conforms entirely to its nature which is informed by its end. To the extent that it fails to abide by its being (existence), to the extent that it misses the mark that is its end and which is defined by its nature, it suffers (or does, if the creature has free will and knowledge) evil. St. Thomas, it hardly need be said, also recognized the truths of revelation, particularly those that related to the dignity of man as a creature of God and as a result of his ultimate calling (union with God in the beatific vision). His understanding of the end of nature was informed by the Evangelical revelation.

Aristotle had no inkling of the Gospel. It is for this reason that, "[a]lthough both Aristotle and Aquinas construct ethical and moral systems on metaphysical principles, they have entirely different conceptions of the value of human life." Cortest, 18. So different is that conception, that Aristotle and St. Thomas stand apart each other by a great divide. It is the philosophical analogue of the historical divide between B.C. and A.D. The Lord had not walked among us when Aristotle did his thinking. Aristotle promoted (or at least excused) the killing of deformed children and human chattel slavery, something unthinkable to St. Thomas. So massive is the difference the Gospel made to the Aristotelian underlayment of St. Thomas Aquinas, that if Aristotle alone was relied upon to build a natural law, he would be unable to provide us with a workable morality. "I would argue," says Cortest, "that no credible doctrine of human rights can be based exclusively on an Aristotelian anthropology, since nature shows no compassion for the weak, the innocent, or the 'deformed.'" Cortest, 19. Cortest is right. As great as Aristotle was, he lived without Gospel light, and his teaching is, next to the sublime values of the Gospel, barbaric in some aspects. To return to raw Aristotelianism without the temper of the Gospel would be a giant leap backwards in human development.

While indisputably St. Thomas had a high view of human dignity, it would be a mistake to attribute to him, as some scholars do (John Finnis or Brian Tierney come readily to mind), the modern notion of "human rights." The most fundamental chasm exists between St. Thomas's traditional notions and the modern notions of human right. That chasm arises out of the excessive individualism of modernity, an individualism so excessive that it advances rights that are idiosyncratic, even against human nature and inimical to communal life. St. Thomas always saw rights ensconced within the greater good of the community, and never apart from duty to God and neighbor. He never saw rights as something inhering in free-standing, atomic and autonomous individuals. "In Thomas's system, ius or right is understood in terms of justice, which is itself always understood of others." Cortest, 21. In short, St. Thomas saw ius (right) as coming out of an I-Thou and I-You relationship, one of responsibility to God and to fellow humans. Moderns, on the other hand, see right as coming from the seagull philosophy in Pixar's (Disney's) movie Finding Nemo: "Mine, mine, mine, mine . . . ." I rather think that St. Thomas would have been impatient with the modern advocates of human rights, who now claim things like the right to abortion, the right to homosexual marriage, among a whole slew of rather questionable "rights." Like Nigel in Finding Nemo, he would have told the incessant advocates of autonomy to shut up. To claim St. Thomas as a sort of precursor to the modern notion of rights is not fair to St. Thomas's thought.

The "Seagull Philosophy" of Modern Right: Mine, mine, mine . . .

Three things are without question shared between St. Thomas and Aristotle: (1) a teleological view of nature, (2) a notion that positive laws, or laws particular to the city-state, are distinct from universal or natural law, and, finally, (3) that this natural or universal law is not to be separated from the notion of a natural or universal justice. Cortest, 14, 22.

From St. Thomas, Cortest jumps to the Dominicans at the School of Salamanca, focusing on the works of Francisco Vitoria, Domingo de Soto, and Domingo Bañez. These men were devoted followers of their fellow Dominican, Thomas Aquinas. Cortest also rejects the effort to recruit the Dominicans at the School of Salamanca as advocates of modern, individualistic human rights. "For them, individual or human rights are always understood within the more general context of justice." Cortest, 22. It seems that Brian Tierney is at the forefront of recruiting the Salamancans as advocates of modern human rights. But it would seem that Tierney is not recruiting, but impressing or shanghaiing the Salamancans who would probably be unwilling advocates of the modern, liberal, individualistic vision of human rights that are not based on any notion of nature or reason.

Domingo de Soto of the School of Salamanca

The Salamancans distinguished between the notions ius or right and dominium or lordship or power. De Soto's De iusticia et jure posits a distinction between the two:
Ius is the same as what is just (as Isidore says in Book V). It is the object of justice, the equity which justice establishes between men, dominium is the facultas of a lord (as its name implies) in servants or objects which he can use has he likes for his own benefit. Ius must therefore not be confused with domininium, as it is superior to it, and of wider reference.

Ius namque idem est (ut ait lib. 5 Isid.) quod iustum. Est enim objectum iustitiae: puta aequitas quam iustitia inter homines constituit: dominium autem facultas est domini (uti nomen sonat) in servos vel in res, quibus suo arbitratu, ob suumque commodum utitur. Fit ergo, ut ius no converatur cum dominio, sed sit illi superius et latius patens.
(quoted in Cortest, 23).

The Salamancan jurists, Vitoria, Soto, and, most famously, Bartolomé de las Casas, were very critical of the Spanish Conquista of the New World, and the Conquistadores' treatment, in some cases virtual enslavement, of the indigenous populations. It would seem, then, that the Salamancans were advocating some sort of inherent human rights of the Indian that were being violated. Brian Tierney seizes on the Salamancan notion of dominium or lordship as the source of the Salamancan advocacy of modern human rights. Dominium, Tierney suggests, is nothing but right under another name. Cortest, I think properly, criticizes Tierney's use of dominium as the source of individualistic rights. "[T]he difference between the traditional notions of dominium as Vitoria [and the Salamancans] understood it and a doctrine of 'natural rights' is vast." Cortest, 23. To equate the two would be to wrest the Thomistic objective foundation inherent in the Salamancans' thought and carry it into a subjective realm. It would be analogous to taking the Thomistic intellectual cathedral and moving it from a foundation of rock onto a foundation of sand, watch the cathedral collapse into a pile of rubble, and call the two situations the same. The underlying basis of modern rights theory and Thomistic and Salamancan natural law are simply different. Moreover, as Cortest correctly points out, the notion of dominium related to self-governance of a people, not to a subjective, individual right over one's possessions, and certainly not a subjective, individual right over one's own person against others. Cortest, 24. The Salamancans were not defending the rights of the Indians, but were defending the natural right of the Indian communities to exist and to govern themselves. Cortest, 25.

The only "right" found among the Salamancans that may be said to be an individual right in the strict sense would be the right to self-preservation. "Soto comes closest to defending a notion of personal rights in his treatment of self defense," which builds upon the right to self-preservation. Cortest, 25. But even this right must be understood within the more general framework of justice and the common good, something that is entirely absent from the modern concept of rights, which seem to be, in fact, independent of notions of justice to the entirety, and seem to be pitted against the demands of the common good or the good of the community. Certainly, many of the advocates of modern so-called "human rights" espouse values that are contrary to the very nature of man. Most uncontroversially, the claim to the "right" to procure an abortion is against human nature; indeed, it is foul, not fair, to nature's teaching. A tree, like a legal theory, is known by its fruits. Classical natural law and modern natural rights are two different species.

Now what is true for the Salamancans is not necessarily true for Suárez according to Cortest. In Cortest's view, Suárez appears to hover a bit closer to the modern notion of personal, positive human rights. Cortest, for example, cites to the definition of ius or right in Suárez's De Legibus, ac Deo Legislatore as more attuned to the modern understanding of human rights: According to Suárez, ius is "a certain moral power which ever man has, either over his own property or with respect to that which is due to him . . . . Accordingly, this right to claim (actio), or moral power, which every man possesses with rspect to his own property or with respect to a thing which in some way pertains to him, is called ius, and appears to be the true object of justice." [ius vocari facultas quaedam moralis, quam unusquisque habet, vel circa rem suam, vel ad rem sibi debitam . . . . Illa ergo actio, seu moralis facultas, quam unusquisque habet ad rem suam, vel ad rem ad se aliquo modo pertinentem vocatur ius, et illud proprie videtur esse obiectum iustitiae.] Cortest, 26 (citing Trac. de Leg. ac Deo Leg., I.2.5]

While Suárez may arguably be the source, or at least the harbinger, of modern notion of right, it would stem from his failure to "follow the strict Thomistic line of legal theory followed by the Dominicans at Salamanca." Cortest, 27.

But, in fact, the source of modern human right is more likely to be one who came after Suárez, but who relied heavily upon him: the Dutch Protestant jurist Hugo Grotius. In his De Iure Belli, Grotius seems well on his way to understanding right as a subjective right, positive, rather than negative, in tone:
A legal right (facultas) is called by the jurists the right to one's own (suum); after this we shall call it a legal right properly or strictly so called. Under it are included power, now over oneself, which is called freedom, now over others, as that of the father (patria potestas) and that of the master over slaves; ownership, either absolute, or less than absolute, as usufruct and the right of pledge; and contractual rights, to which on the opposite side contractual obligations correspond.
(quoted in Cortest, 27) While Grotius still bore traces of Aristotelianism, this language of "power . . . over oneself . . . which is called freedom" is recognizable as something new. Here we have a kernel of modern rights theory, one based on alleged autonomy or freedom from restrictions of any kind, including eventually, nature and, what is the same thing since nature contains within it the law of God, even God. Some of Grotius's notions, particularly when seasoned by the Hobbesian notions of nature and right which were wholly outside the pale of the Aristotelian/Thomist tradition, may be the source of modern theories of human right. But by the time one gets to Hobbes and his Leviathan one is clearly outside any notion of morality having an ontological or metaphysical foundation. In Hobbes, right is no longer tied to being, or, for that matter, Being.

Friday, June 25, 2010

The Disfigured Face: Thomistic Ontology: Existence Distinct from Essence

METAPHYSICS AFFECTS ETHICS perhaps is the conclusion of Professor Cortest's first chapter in his The Disfigured Face: Traditional Natural Law and Its Encounter with Modernity. The science of being affects the science of doing. Who we think we are, and what we think of reality, affects how we act. Modern man does not know how to act, largely because he does not know who he is or even what is (that, or he thinks he can make himself whatever he wants to be and has not stable, informing nature that ought to guide him). St. Thomas Aquinas did not suffer from the modern malaise which has deracinated or uprooted man.

At the heart of the natural law theory of St. Thomas Aquinas is his ontology. Ontology, a word which comes from Greek ontos (ὄντος = of being) and logia (λογία = study, science, theory), is the science of being. Since at least the time of Christian Wolff (1679-1754), "ontology" has been distinguished from "metaphysics" generally, and now is regarded as part of "metaphysics," along with its other components "psychology" and "cosmology." At the center of St. Thomas's ontology was the proposition that essence is really distinct from existence, that existence was the preeminent ground for the discovery of truth, and that existence was for every thing other than God, whose essence is existence, a sharing in existence as a gift of God. God it is "who properly causes existence in creatures, just as it is fire itself that sets other things on fire. And God is causing this effect in things not just when they begin to exist, but all the time they are maintained in existence, just as the sun is lighting up the atmosphere all the time the atmosphere remains lit." (Cortest, 12, quoting S.T. Ia, q. 8, art. 1)

"Thomas considered 'being' the first and most fundamental object known by reason." Cortest, 1. Being is, in fact, at the heart of the thought of St. Thomas and the one he referred to as "the Philosopher," Aristotle. "There is," Aristotle says in his book Metaphysics, "a science which investigates being as being and the attributes which belong to this in virtue of its own nature," ἔστιν ἐπιστήμη τις ἣ θεωρεῖ τὸ ὂν ᾗ ὂν καὶ τὰ τούτῳ ὑπάρχοντα καθ᾽ αὑτό. Arist., Met., 1003. To on hē on. Being as being.

Certainly since the Enlightenment, and even spottily before in the Renaissance, the underlying philosophical views of both Aristotle and St. Thomas, who relied on Aristotle, have been increasingly rejected. The French positivist Auguste Comte saw metaphysics as a passing stage, sort of as like an intellectual teenager (theology being the infant), in the development of human intellectual knowledge. In his lectures on metaphysics, Theodor Adorno, who was no fan of metaphysics (or ontology), noted, probably accurately enough, that "metaphysics is used in almost the entire non-German-speaking world as a term of abuse, a synonym for idle speculation, mere nonsense and heaven knows what other intellectual vices." Theodor W. Adorno, Metaphysics: Concept and Problems (Stanford: Stanford University Press, 2001), 1. Before Adorno, Nietzsche called those who dabbled in metaphysics "Hinterweltler," "backworldsmen," perhaps an allusionary word play, in that Nietzsche's term sounds strangely like "Hinterwäldler," or "backwoodsmen." (Ontology or metaphysics is not the only area that has suffered abuse by moderns. The notion of natural law has been equally the subject of deprecation. One need only think of the utilitarian Jeremy Bentham, who called natural law "nonsense on stilts," or Associate Supreme Court Justice Holmes, who all his life "sneered at the natural rights of man." )

The rejection of the Thomistic ontology is unfortunate because it rejects the particular contribution of St. Thomas to metaphysics, specifically, his emphasis on existence (esse, "to be," that a thing is) as really (and not only mentally) distinct from essence (essentia--the "what" of a thing; its quiddity) in his metaphysics of being. For St. Thomas, both "essence" and "existence" were important concepts to distinguish in thinking about reality because, other than God in which they were identical, in created things they were really distinct things. Further, St. Thomas taught that truth is more principally grounded in the existence (esse) of a thing, rather than in its essence, veritas fundatur in esse rei magis quam in ipsa quidditate. St. Thomas, I Sent., d. 19, q. 5, a. 1. Unfortunately, at least initially, St. Thomas's views on ontology faced stiff competition from the nominalism that had infected the brains of scholars. More popular in the 13th [correction, 14th century] century seemingly was the thought of Ockham, and Ockham rejected the extra-mental distinction between essence and existence as meaningless, in fact non-existent, therefore equating both of these concepts. Cortest, 5. Ockham could not put it any plainer:
We have to say, therefore, that essence (entitas) and existence (existentia) are not two things. On the contrary, the words "thing" (res) and "to be" (esse) signify one and the same thing.

Ideo dicendum est, quod entitas et existentia non sunt duae res. Sed ista duo vocabula 'res' et 'esse' idem et eadem significant.
Ockham, Summa Totius Logicae, 3, 2, 27. Ockham also emphasized the particular, and did not believe in abstract essences as having any sort of reality; in short, he was a nominalist. (Though unrelated to the issue of ontology, Ockham also was a voluntarist in morality, believing the will to be preeminent over reason in law.)

As Cortest notes, if "essence" is studied without regard to "existence," then one loses contact with reality and ventures into a world of mere abstraction, of concepts, of the mere possible or potential. On the other hand, if "being" is considered a sophomoric abstraction, a verbal flatus, and all thought is focused on the particular existence, then we are unable to grasp universal realities or the concept of "nature." St. Thomas, like a clever helmsman, steers us between the Charybdis of a Kantian or Hegelian idealism, and a Scylla of a Humean or Lockean empirical superficialism.

Francisco Vitoria

For a time, Ockham and his followers carried the day, perhaps finding ultimate expression in the Lutheran boil that burst open spewing forth all its puss when the recalcitrant, troubled, disobedient Augustinian friar nailed 95 theses on the Cathedral doors in Wittenberg, shattering Christian unity. But slowly, surely, largely as a result of the work of Cardinal Cajetan (Tomasso de Vio) (1468-1534) and Francisco de Vitoria (ca. 1492-1546), the Thomistic spirit was revitalized. Cajetan, the diminutive Dominican with a prodigious mind, is probably the most celebrated of all the Thomistic commentators. Francisco de Vitoria, commonly regarded as the father of Spanish Thomism, completely reformed the curriculum at the University of Salamanca, replacing the Sentences of Peter Lombard with the Summa Theologiae of St. Thomas as the principal text for the study of theology.

Nobody could have foreseen the harvest that Vitoria's decision to sow Thomist seeds instead of Lombardian seeds into the furrows of the minds of his students. The names of those who came from, or have ties to, that school are profuse, and they ripened largely in Dominican and Jesuit habit, and fed the disciplines of moral theology, political philosophy, economics, and international law: Domingo de Soto (1495-1560), Martín de Azpilcueta (1491-1586), Domingo Bañez (1528-1604), Diego de Covarrubias y Leya (1512-1577), Tomás de Mercado (1525-1575), Bartolomé de las Casas (1484-1566), Luis de Molina (1535-1600), Juan de Mariana (ca. 1535-1624), Melchior Cano (1509-1560), and Francisco Suárez (1548-1617). From Spain, the Thomistic revival rooted itself into all Europe, affecting all manner of men and all manner of sciences.

Francisco Suárez

Cortest acknowledges that the last mentioned of the Salamancan greats: Francisco Suárez, the Doctor eximius, the exceptional Doctor, is "perhaps the greatest philosopher in the Thomistic tradition," and yet, "he differed profoundly from the Angelic Doctor [Thomas Aquinas] in his metaphysics." Cortest, 9. There is, in short, a school, distinct from Thomism, called Suarism. For Cortest, one of the fundamental distinctions between Aquinas and Suárez was precisely in the Thomistic distinction between essence and existence:
The primacy of existence, so fundamental for Aquinas, is lost with Suárez, for whom essence and existence can both be either potential or actual. . . . For Suárez, all being is reduced to essential being; existence is always subordinate to essence."
Cortest, 9. From the Thomist teaching that gave preeminence of existence over essence, Suárez went rogue. Suárez understood being primarily as essence, and this tended to deprecate the true character of being, of existing. "Therefore," Suárez concluded in his Disputationes Metaphysicae, XXXI, s. vi, 23, "it must be said that essence and existence are the same thing but that it is conceived of under the aspect of essence." Dicendum ergo est eamdem rem essse essentiam et existentiam, concipi autem sub ratione essentiam. Suárez had, in a way, come back full circle to Ockham.

From the point of view of the Thomist, this is a massive mistake. The mistake arises from seeing being as a noun rather than a participle. Cortest, 9. (One may recall that Ockham saw existence or being (esse) as a form of a verb, not a noun.) The mistake arises out of Suárez's taking for granted that his verbum mentis, the word in his mind, "corresponds exactly to what it represents, even when he uses it to conceptualize the principles of being itself." Cortest, 10 (quoting David M. Knight, SJ, "Suarez's Approach to Substantial Form," The Modern Schoolman 40 (1962): 238)

Is being, existence, esse, "to be," a verbal, nounal, or participial concept?

What difference, if any, does it make?
Taken as a participle, being signifies "the act of existing as exercised and is the same as the actual existent." Looked as a noun, it means "the essence of a thing which has or can have existence (esse) and it can be said to signify existence itself not as exercised in act but in potency or aptitude." Thus, taken as a noun, the objective concept of being is that which is or can be, that which has a real essence prescinding from actual existence without excluding or denying it.
Cortest, 9-10 (quoting John P. Doyle, "Suarez On the Reality of the Possible," The Modern Schoolman 45 (1967): 36-37) To view existence as a noun, rather than a participle, is to sort of fold the concept of existence into essence. And thus existence becomes, not an independent, extra-mental reality, but becomes the difference between essence potential and essence actual. According to Cortest, the result is to fragment being and take us somewhat out of reality. Metaphysics is the "science of possible being," and no longer the science of "actual or real being." We sort of walk out of the boundaries of authentic Thomistic ontology and its moderate realism. It sort of shatters the chain of being, in fact being itself, into virtually infinite shards.

It also affects Suárez's view of individuation (i.e., what makes individuals individuals?). Traditionally, the individual expression of an essence (say, "Socrates," as an individuation of "man.") was the result of matter or particular existence of an essence. But for Suárez, "neither matter nor existence constitute the principle of the individual." Cortest, 11. For Suárez, "accidents contain within themselves their own principle of individuation," and this "leads logically to the conclusion that a being contains within itself a multiplicity of individuating principles." Cortest, 11. By looking at accidents and substance thus separately, Suárez "destroys the very unity that most characterizes the Aristotelian-Thomistic conception of substance." Cortest, 11. Man was hacked up into many parts, and was no longer whole.

Why is this subtlety important? Is this just subtlecraft? Cortest answers:
On this foundation [of existence being really distinct from essence, and being the preeminent metaphysical principle for understanding reality], an epistemology and an ethics are developed. In fact, the Thomistic system [of knowledge and of morality] can be understood as a series of logical extensions from this premise.
Cortest, 11. The eventual effect was to divide the world of thought into two: either those who relied only on existence, focusing only in individual existent things, neglecting essence, or those who relied only on essence, neglecting existence. The former are the empiricists. The latter are the idealists. Both views have significant effect on ethics, that is, affect one's view of the natural law.

Thursday, June 24, 2010

The Disfigured Face of Natural Law: Introduction

WE SHALL FOCUS THE NEXT SIX OR SO POSTINGS on a book by Professor Luis Cortest entitled The Disfigured Face: Traditional Natural Law and its Encounter with Modernity (New York: Fordham University Press, 2008). Professor Cortest is an Associate Professor of Spanish and Medieval and Renaissance Studies at Oklahoma University. It is apparent that his interests in the Spanish writers of the 16th century, the so-called Siglo de Oro, or the "Golden Age," of Spanish literature introduced him to the principles of the natural law which were so prevalent in that age. In earlier postings, we reviewed at some depth the auto sacramental authored by the great 17th century Spanish playwright, Pedro Calderón de la Barca entitled A Dios por razón de estado, To God by Reason of the State. For the Spanish of the Siglo de Oro, the doctrine of natural law was as prevalent and as alive in the minds and hearts of thinkers and artists as feelings of democracy, human rights, and relativism are today. Central to the thesis of Professor's Cortest book is that the great synthesis of the natural law found in St. Thomas Aquinas is based upon a certain ontology or philosophy of being, and a certain teleological or purposeful view of nature (nature has an end, a purpose, a telos, which is Greek for "end," "goal," or "purpose."). The underlying Aristotelian/Thomist ontological and teleological assumptions, central to an authentic Thomist natural law theory, have been progressively dismantled by the philosophical and scientific presuppositions stemming from the Enlightenment and Modernism. By and large, Enlightenment and Modern thought have rejected the Aristotelian/Thomist ontology and teleological view of nature. This is true--alas--of even advocates of the so-called "modern" natural law theories of Finnis, Grisez, O'Boyle, and George (what is sometimes referred to as the "Integration" natural law theories, see our previous posting By Nature Equal: Human Equality and the Natural Law, Last Possible Ally Fails where this theory is briefly discussed.) The necessity of a certain view of being (ontology) and nature (teleology) as part of a classical treatment of natural law has been also the topic of a posting on the Jesuit thinker, John Courtney Murray. See The Four Requirements of a Classical Natural Law Theory.

Professor Cortest's book has four chapters: Thomistic Ontology, Ontological Morality and Human Rights, The War of the Philosophers, The Modern Way, Pope Leo XIII and His Legacy, and The Survival of Tradition. We intend to devote one posting for each chapter.

Wednesday, June 23, 2010

Sunni Islam and the Natural Law: Natural Law Thought in Abu al-Husayn al-Basri, Part 2: Conclusion

AL-BASRI SEEKS TO DEVELOP A THEORY OF LEGAL KNOWLEDGE that gives proper emphasis on both revelation and reason. Reason alone, he acknowledges, is insufficient guidance for man; he must consider the divine revelation in assessing whether those things that the presumption of permissibility would allow him to otherwise enjoy may be enjoined. Man must also access revelation to know certain obligations of which reason is unable to inform him. How, for example, would reason inform the Muslim of the need to fast at Ramadan? How else except through revelation would the Muslim know of which prayers to pray, and in which direction to face in prayer, and that he needed to abstain from wine or from the flesh of swine? Emon, 85. There are things, furthermore, that reason simply cannot answer; its light is too weak, and so revelation supplements.

Yet in some circumstances reason speaks, and speaks authoritatively. Where the Sharīʿa does not does not speak, where it is silent, reason, based upon its presumption of permissibility, can direct as to what is good and bad, what is husn (حسن) and what is qubh (قبح). Moreover, reason is also important as a sort of preamble to the faith, a Muslim praeambula fidei. For Al-Basri, reason provides the basis for recognizing the authenticity of scripture (sihhat al-sharʿ, صحّــت الشرع), the knowledge of God and his characteristics, most importantly that he does not perform evil acts (la yafʿalu al-qabih, لا يفعل القبيــح). Emon, 84. Finally, for al-Basri, there are areas where both the Islamic scriptures and reason overlap or establish concurrently the same truth. That there is one God, that one has an obligation to return a deposit, and that one may enjoy the benefits of things so long as they do not harm another. These are the sorts of things to which both revelation and reason jointly testify. Emon, 85. In summary, al-Basri's thought is as follows:
For al-Basri, natural reasoning about the good and the bad involves a series of principles and premises that contribute to a method of inquiry into the various indicators at one's disposal. At times, these indicators may be reason, where its authority is based on al-Basri's fusion of fact and value in his presumption of permissibility. At other times, the indicators are source-texts [the Qur'an and the Sunnah], whose authority is built upon a series of principled presumptions.
Emon, 85-86.

Al-Basri addresses in a notable way the fundamental role of reason in the establishment of law, and relates it to will. Clearly, as one would expect from one with Mutazilite leanings, he finds himself in the rationalistic camp, and not the voluntaristic camp. He asks, speculatively, whether Allah could say to Muhammad or to legal scholars (the ʿUlamā'), "rule and whatever you decide is correct." Emon, 86. Could Allah make right conditioned on radical choice alone, on raw will alone, whether that was the will of a prophet or a group of scholars? While some, al-Basri acknowledged, believed such authority resided in Muhammad or the ʿUlamā', most jurists did not believe such authority was given even to them. Indeed, al-Basri believed that such authority could not be given. Men do not always choose rightly, and they can be corrupt. So, were God even to mandate that such a man be followed as if he were right regardless of the right, that would not change the essential wrongness in following him. God cannot change a wrong to a right, and he cannot make the legislation that an evil man wills into one that is right. "To establish an obligation," al-Basri maintained, "one must first know the good before acting upon it." Emon, 87. Importantly:
This knowledge of the good can only be known prior to any choice that the individual makes, thus rendering the method of knowing to be of paramount importance. The goodness of an act is not a consequence of choice, but rather is a maslaha [مــصــلح] or perceived good that is given effect through choice [هو مصلح في نفسه ب الإكهتيار ].
Emon, 87.

One should note, however, that al-Basri's use of reason as normative is limited to the interstices of the Sharīʿa, inasmuch as where the Sharīʿa reveals an injunction different from that which reason would demand, reason is abrogated. This would suggest that reason has a clearly subordinate role to revelation, and that where the two conflict, reason is preempted. This is implicit in his rule:
To make a determination of the rule of obligation, the jurist utilizes his naturalistic reasoning to determine what the proper rule is for the given situation. This is possible as a first step because of al-Basri's naturalistic presumption: nature embodies the fusion of fact and value, given God's desire to benefit humanity through His creation. Subsequently, one inquires into whether the rationally based rule might change on the basis of scriptural [Qur'anic and Sunnaic] proofs. "If he does not find [therein] anything that changes [the rule] from the rationally based rule, then he decides in accordance with [the latter]. But if he finds a source-text [in the Qur'an or Sunnah] that rebuts or alters the rationally based rule, he must rule according to the source-text. "Reason decides those rules on condition that a scriptural proof does not alter [our decision] on [them].
Emon, 87-88 (quoting al-Muʿtamad, 2:343). So here, once again, even the Mutazilites disappoint. The reason they advocate, even if nominally normative, is shunted, thwarted, made to sit in a corner, when the Sharīʿa is in the room. The Sharīʿa is not to be judged by human reason; it is not to be judged even by that law of God in the heart of man. If St. Paul is correct that God has written his law in the heart of man, then the Muslim insists that the law of God in man's heart be squelched if the Sharīʿa holds otherwise. Can God preempt his own law? Does that not place God in a contradiction? Can God have put one law in man's heart and another in the Sharīʿa? Would God put us in such a quandary?

Though the Catholic view shares some companionship with the Mutazilite view, it insists that there is no contradiction, and never can be, between the natural law and the law of God. There is no possibility of preeminence of one law over the other, of appeal from human reason to God, for the very simple reason that the Divine Law and the Natural Law have the same Divine Legislator and both are founded on the one Eternal Law. "We know in effect that truth cannot contradict truth," John Paul II said to the Pontifical Academy of Sciences in 1996. We also know in effect that Natural Law, based upon reason, cannot contradict the Divine Law, based upon revelation. When it comes to the Divine Legislator, Law cannot contradict Law.

This truth, that Law cannot contradict Law, seems to have been altogether lost in the Dar-al Islam, the House of Islam.