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.

Friday, July 23, 2010

The Gordian Knot of Natural Law

ACCOUNTING FOR THE DIVERSITY of mores, institutions, laws, and judgments about right or wrong among men might help us understand why there can be a universal natural moral law and yet such a divergence of human expression of right and wrong in light of it. We have previously addressed the issue of how natural law theories do not require or even imply that there will be unanimity among men with respect to the existence of that law or its content. (See, e.g., The Natural Law's Sophist Strawman.) Yet withal the argument is frequently hurled against the natural law as if it were dispositive against it. Opponents feel it is the clincher, when it's nothing but an attempted sucker punch.

In fact, natural law theories frequently account for the variations of these fundamental differences among men across history and across cultures. It is therefore valuable to explore these explanations. In his The Tradition of Natural Law, Yves Simon divides this question into five parts: First, negative precepts of the natural law. Second, positive precepts of the natural law. Third the distinction between premises of the natural law and conclusions from those premises and their relationship. Fourth, the role of prudence in the decisions relating to the application of the natural law to specific or particular applications or problems in the concrete. And lastly, the effect that the relative hierarchy or necessity among the inclinations may have when these are in competition. Finally, he addresses the notions of both progress and blindness in our knowledge. These aspects of the problem, all bundled and tied together as if in a Gordian Knot, explain why the natural law is not known universally. The fact that rope is bundled up together in an knot that cannot be easily unbound does not mean the rope does not exist.

The Gordian Knot of Man's Nature

The negative injunctions or precepts of the natural law (and not necessarily the knowledge of these precepts, which is another issue) are unqualifiedly universal and absolute. Acts that are wrong by essence, by their very nature, are wrong without qualification. Simon, following St. Thomas Aquinas, distinguishes between the external act and the essence of that act. Two external acts that are apparently identical may be essentially different. As an example, Simon cites the effect of extreme necessity on the property rights of another. To take water surreptitiously from a neighbor's well to reduce one's water bill or to keep us from having to dig our own well is stealing and, in its very essence, wrong. To take water from our neighbor's well to put out a fire in our household while we have yet to dig our well is, externally, the same act (using our neighbor's water without permission), but the necessity involved in the circumstance changes its essence of the act. The essence of the latter act has no wrong attached to it because necessity changes the character, the nature, the essence of the act. Sloppy language, however, causes confusion. In the first case, we have stealing, an act which is, in essence, wrong and universally so. In the second case, we do not have stealing. It is therefore wrong to say that it is lawful to steal in cases of extreme necessity. (This suggests, wrongfully, that a wrong may be excused. The fact is, that because of necessity there is no wrong that needs excusing in the latter situation at all.) Rather, it is accurate to say that the latter act, though it involves the taking of an other person's property, is not stealing at all. The essence or fundamental nature of the act has changed as a result of circumstance. A similar observation may be made with respect to killing. It is wrong for me to kill my neighbor so that I may have his wife. It is an altogether different thing to kill my neighbor if he rushes at me with his knife in the hopes of stealing me of my house and home. The first act is murder. The second act is not murder that is excused. The second act, though it likewise involves the killing of a man (i.e., homicide) is not wrong. Its essence is fundamentally changed. Sometimes the difference gets very subtle, and as an example, Simon gives the qualitative difference between a spy taking a cyanide tablet to kill himself in the face of imminent capture so as to avoid the giving of secrets in the likely prospect of torture, versus a soldier who jumps out of a trench before enemy fire to take out an enemy position even though death is virtually imminent. The former is self-slaughter, the latter is not, and their essential difference, though perhaps subtle, is as different as night is from the day.
What is wrong by nature can never be rendered right, but we shall have to be very cautious before we declare that a particular act is wrong by nature.
Simon, 148. Modern moral thinking is particularly sloppy in this regard.

With respect to positive precepts, there is a universal principle: "One principle covers all cases," Simon writes, namely, "any good act may become wrong by reason of the circumstances." Simon, 148. The classic example is the example of a deposit. Generally, it is obligatory to return property to one who has put it in our care (we have here a positive precept). So if our neighbor has deposited with us a sword, we are obliged to return it to him upon request. But what if our neighbor comes to us demanding his sword in the heat of extreme passion so that he may use it to slaughter then and there another man? In the latter situation, it would be wrong to turn over the sword. Between the first instance and the second instance, a circumstance has interfered. So Simon crafts the general principle:
[W]hereas circumstances can never vindicate a wrong by essence [though they may change the nature of the act], an act good by essence can always be made wrong by the circumstances.
Simon, 148 (citing St. Thomas's S. T. IaIIae, art. 18, q. 4, ad. 3. and De Malo, art. 4, q. 4, ad 2.) Simon calls this the "diabolic privilege." "The wrong cannot be made good, but the good can be made wrong." The good can be made wrong by circumstance, including one's intent or end in doing the good, and the foreseeable consequential effect of the good beyond the act itself. A good act may be interfered with, and made not good, by the who, when, where, and by what means surrounding it. Two examples are cited by Simon. To honor one's father is a natural good, a positive precept of the natural law. However, if one's father is in a murderous state and is assaulting an innocent with the intent to kill, it is not only lawful, but meritorious and perhaps obligatory to kill one's father to save the innocent victim. Circumstance has "interfered" with the positive precept to honor one's father. Similarly (and this is a classic example, Simon cites to S. T. IaIIae, art. 20, q. 1; De Malo, art. 2, q. 4, ad. 2) the giving of alms (i.e., "relieving destitution through free distribution") is good by essence. However, if alms are given for vainglory or to acquire disorderly power over others (as liberals are wont to do) the act is wrong. Circumstances have "interfered" with the good. (We have discussed in another posting the role of intent in the giving of alms. See By Nature Equal: How are Men Equal? Uniformity of the Host Property, Part 1.)

There is an important distinction between premises and conclusions. It is wrong to suggest that premises of the natural law are binding, but conclusions are not necessarily binding. The binding nature of the conclusions depends upon the clarity between the premises and the conclusions:
If the derivation of the conclusion is purely and simply logical, the conclusion derives unqualified necessity from the necessary premises. . . . If the premises are necessary and universal, the conclusions are the same. . . . That a conclusion is always necessary as the antecedent is almost a definition of a strictly logical connection. But the antecedents may be divided into those which do not and those which do involve a contingent condition. It a relation between antecedent and conclusion, the conclusion will always be as necessary as the antecedent.
Simon, 150. The presence of contingent conditions is not always easy to express or determine, as they are sometimes implied. As an example, Simon cites the natural law involving private property. Ordinarily, that is, under a certain modicum of organized civilized life, the right to private property is a fundamental natural law principle and ought to be respected by both the public authority and private individuals. But the implied condition is that there is some sort of civilized structure before this natural right can be said to arise:
Is it by law of nature that things are owned privately, with certain limits, under the common circumstances of civilized life? It is. But notice that the statement is not particularly sharp: "within certain limits" and "under common circumstances of civilized life." In a very small tribe in a tropical forest, for instance, in the Amazon or Equatorial Africa, what meaning does private property assume? Are those common conditions realized which are needed in order that it be naturally right that there be some sort and some amount of private property? Perhaps not. . . . Do not try to obtain more precision, more specification, by way of logical connection. It will not work. . . . Clearly the answer to this question is not to be found by way of deduction from the axioms of natural law. The issue is not one of logic but of prudential determination.
Simon, 154.

The logical connection between necessary premise and ineluctable conclusion is, relatively speaking, rare. More common is it that we have contingent conditions to antecedent premises, or conditions relating to circumstance that drive us out of the comfort of logical connection into the realm of determinations (determinatio), and into the real of prudential, not logical, thinking. We travel from law into judgment. (See From Law to Judgment: Lex Nuda to Lex Vestita.)
[A]s soon as specific situations and specific regulations are involved, there is absolutely no possibility of proceeding by way of logical connection. . . . [W]e are in a flood of contingency and we have to find our way by methods that are appropriate to dealing with contingencies. . . . This point is of signal importance to this discussion. Even those things which in rough outline may be considered deductions from what is naturally right do not constitute standards or links by which the ultimate particular determinations might be logically connected with the first principles. . . . The particulars of regulation belong to prudential determination, not to logic. Logical connection is not completely severed.
Simon, 156. As an example, Simon points to the issue of marriage. Incest is against the natural law. From this principle we may logically apply it to very close relatives. But what about third cousins? What about fourth cousins? Are these latter always and everywhere encompassed by the prohibition against incest? Can the prohibition against incest, once we progress to third or fourth cousins, be dispensed with? Under what circumstances? We have clearly ventured down the path from logic to contingency, from law to prudence and judgment. The answers to questions in the area of prudence become much more knotty, much more subject to argument and differing opinion, much more various.

Finally, there are differing levels of necessity between human inclinations, or between laws of human nature. And human inclinations conflict with other human inclinations. Laws of human nature may conflict with other laws of human nature. And inclinations and laws may likewise conflict. And in such instances, the more necessary of the inclination or law at issue tends to supplant or override the inclination or law of lesser necessity, not unlike the situation in a scale, where the heavier weight overcomes the lesser weight. As an example, Simon points to monogamy, polygamy, and polyandry. It may be that, by natural law, monogamy is normative. The inclinations satisfied by monogamy (assuring the woman the exclusive devotion of her husband), however, are less urgently felt than inclinations toward survival (assuring the survival of the tribe, which under some circumstances--say a dearth of men because of war-- becomes significant and are better satisfied through polygamy), and are also less urgently felt than the need of identifying the father of the child (which is insulted by polyandry). Thus, though nature aspires to monogamy, circumstances may be such so that more fundamental felt needs interfere with its expression, and one faces a corruption caused by competition among fundamental needs, not all of which, because of contingencies, can be met:
The transition from polygamy to monogamy which may be observed in history, constitutes a normal progress from a state where only the more necessary laws of nature can be embodied in institutions to a state where institutions can afford to satisfy the less necessary and more lofty aspirations of nature.
Simon, 157.

Alexander Cuts the Gordian Knot by Jean-Simon Berthelemy (1743-1811)

It is apparent that when these various distinctions and difficulties are put together in historical and cultural mixes, that we will find, in the history of man, and among his various cultures, departures and divergences in the understanding of and the application of the natural law. It should come as no surprise. We can add to this mix the fact that knowledge of the natural law may be recognized to be progressive, like most human knowledge, and that there is such a thing as social and cultural blindness under which we may operate.
There is absolutely no reason to postulate that man should have been created in a state of perfect acquaintance with what is naturally right; we do not postulate that he should be born with perfect acquaintance with the laws, say, of chemistry or biology. Thus there is nothing conclusive in the most common objection against natural law which notices that in a certain epoch a thing is considered to be naturally right about which the most intelligent and conscientious people were not so clear a few centuries before. That is normal; it reveals the law of progressivity, which is that of the human intellect.
Simon, 158. (Unmentioned here by Simon, though mentioned at some length later (pp. 162-63), is what may be called the law of regressivity. Man does not always progress. There is no ineluctable law of progress. And if he progresses in some areas, he may not only not progress in others, he may regress in certain areas. Thus, modernly, we have progressed in medical science and in certain moral respects (our sensitivity to the wrong of slavery or even racism). Yet we have regressed horribly, to the point of virtual savagery, in the area of the family, accepting such intrinsic evils such as serial polygamy (no-fault divorce), abortion, and contraception, not only as not evil, but even as if they are rights!)

Finally, Simon observes that there may be "an abnormal blinding of our understanding of what is naturally right." Simon, 158. Moral blindness, like physical blindness, is seen in individuals, and it follows and should come as no surprise that it may be seen in societies and cultures. The possibility of moral blindness to the natural law does not prove that there is no such thing as natural law; it simply proves that we may be blind to it.
[I]f a practice considered highly immoral, wrong by nature, in one society is commonly received by mores and by laws and by institutions of another society, it does not follow that the case of what is naturally right is dubious. The possibility of corrupt judgment in a social group cannot simply be excluded. In fact, it is to be suspected that the judgment of every social group is blind or corrupt in some respect and to some extent.
Simon, 158. Hypocrisy is never too far away; and the intelligentsia are perhaps most prone to it. It is easy to the the splinter or mote in another culture's eye, and overlook the plank or beam in one's own. (Cf. Matt. 7:5).

In terms of knowing the natural law and applying it, we sometimes confront a Gordian Knot. Our human nature is Gordias, and our knowledge is, to some degree, all knotted up. There is no Alexander on earth to whom we can turn to fully unravel the knot of of the natural law. There is no man of whom we can say:
Turn him to any cause of policy,
The Gordian Knot of it he will unloose,
Familiar as his garter.
Shakespeare, Henry V, I, 1.45-47.

There is someone we can turn to, however, to unravel the windings and turnings of that Gordian knot of human nature and natural law: God, the Incarnate Word, His Revelation in Scripture and in Tradition, and the custody of that Revelation by His Church, and most particular, His Vicar, the Pope of Rome. The natural law is as familiar to God and to His Christ as a garter is to an English knight. And the Church has been given, not an Alexandrian sword which ignores the knotty problems of human nature and natural law by slicing it all to pieces, but the sword of the Spirit which guides us through their difficult and challenging sinuosities.

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