Potpourri of Natural Law

QUESTIONS RELATING TO A PHILOSOPHY OF NATURAL LAW overlap with other philosophical questions, including those relating to freedom of choice (free will), the priority of reason over will, and the existence of God. So inextricably intertwined are these issues, that it is doubtful that a natural law theory can be accepted if there is a disbelief in free will, if will is given precedence over reason in the assessment of good (if right takes precedence over good), or if the existence of God is denied. Before he discusses the natural law proper in his The Tradition of Natural Law, Yves Simon summarily addresses these three issues.

Free Choice. The principal point that Simon stresses in his discussion of free choice is to dispute the false dichotomy generally posited between free choice and lack of causality or order. There is a tendency to pit freedom of choice against law. This is a false opposition, as freedom of choice is not inconsistent with reason, or order, or with law, but works hand in glove with these. Whatever its source (and the Christian tradition would place its source in the Fall), there is a tendency to place law and freedom in opposition, since freedom is seen to exist only where there is indeterminacy, which is another way of saying where there is no law.

There seems to be in the human mind an everlasting readiness to associate free choice with indeterminacy and, under favorable circumstances, to place the principle of freedom in a lack of determination, in the lack of a positive feature, in a lack of causality and rationality.

Simon, 58. Thus (the argument goes), if God exists, man is not free. Or if natural law exists, we are not free. Or if man has a human nature to which he ought to conform, he is not free. Unless man is servant to no God, to other man, to no social convention, to nothing but his existential self, he is not free. Autonomy from reason, from (any) cause, from nature, from God is the hackneyed recipe for freedom. It is as foolish a recipe, or perhaps as satanic an inspiration, as the argument that one is free only if one jumps into an abyss and is spared the limitations of being supported by the earth. It is this false perception which must be overcome and seen as a falsehood, or else one will be blinded to the notion of freedom within the constraints of reason, or of law, or the love of neighbor, or under God.

Human Lemmings Following "Autonomy" to a Moral Abyss

Yves Simon notes that the notion of freedom as absence of cause was historically manifested in the Epicurean response to the atomism of Democritus. Confronted with the necessity associated with the Democritean "necesitarianism" that "everything is made of atoms," and its doctrine that the "soul is nothing else than an aggregate of atoms that are more polished and move more smoothly that others," Simon, 59, Epicurus devised the notion of the unpredictable, indeterminable swerve, in the downward rain of atoms, the paregklisis (παρέγκλισις), what Lucretius, the Roman materialist, called the clinamen.

(Oh how dark and dreary, nay depressing, are Democritus and Lucretius! What sort of comrades are they! Let us theists say with the poet John Dryden in his "Epistle the First" against all who would rob us of our God, whether they be Democritus or Lucretius or Christopher Hitchens :

. . . [T]his is a piece too fair
To be the child of chance, and not of care.
No atoms, casually together hurl'd
Could e'er produce so beautiful a world.
Nor dare I such a doctrine here admit,
As would destroy the providence of wit.

And poor Epicurus! Who would save us from this dreariness by the doctrine of swerve! As if we should be happy that, in jumping into the abyss, we may gain meaning from the fact that we "swerve" before we hit bottom. Either way, it seems to me, we end up rather flat, our end being one-dimensional, pancake-like.)

We ought not to accept the general concept without some sort of critical frame of mind:

Some discrimination should be exercised before assuming that a free act has to be an event without a cause, and event without law and without reason, a thing akin to chance but more causeless than a chance event.

Simon, 60.

Let our minds stay. Let our minds pause. Let our minds go up instead of down. Let us suppose, even ex hypothesi if not ex fide, the opposite is true. Let us suppose:

[F]ree choice is to be described not as a case of indetermination but rather as a case of superdetermination, as a distinguished case of domination over diverse ways of acting and over the diversity of acting and nonacting, the notion of a law immanent in free natures assumes a sense widely different from whatever its sense might be in a theory which conceives of freedom after a pattern of indeterminacy.

Simon, 60. It would seem that the advocate of the natural law, and not its opponent, has the open mind. Only the close minded man, the man of a lemming-like mind, is foolish enough to jump into the abyss and hope for swerve. The open-minded man is willing to think that perhaps it may be wise to think twice before jumping into an abyssal void.

Reason versus Will. "In most, if not all, phases of its adventurous history, the notion of natural law is violently attacked whenever the voluntaristic trend is predominant." Simon, 61. When, in one's philosophical or jurisprudential view, will is placed before reason, there can be no natural law. This is because natural law places reason as logically prior to the will. Reason, not will, is the fundament of law. Since our understanding of the natural law is affected by the predominant notion of human law, when legal positivism reigns, as it did, for example, in Nazi Germany, or in the philosophy of the Franciscan William of Ockham (ca. 1288-ca. 1348), or the jurisprudence of the English philosopher John Austin (1790-1859) or the American Supreme Court Associate Justice Oliver Wendel Holmes, Jr. (1841-1935) we may be sure that the environment for the natural law is poor. Legal voluntarism, a jurisprudence where law is primarily will, the command of the sovereign, is like throwing salt into the jurisprudential field. It stunts the growth of a sound philosophy.

God. The tentative words of the Dutch jurist Hugo Grotius--etiamsi daremus non esse Deum--seem to us moderns harbingers of the evils of atheism in law. (For a short treatment of Grotius's statement see Natural Law: Ecstasis and Telos.) God's absence in law is far from theoretical when we are confronted with the gaunt faces and lifeless bodies of our brothers and sisters in the Gulag of Soviet Russia or the Konzentrationslager of Nazi Germany.

Victims of the Rejection of Natural Law at a Gulag

Victims of the Rejection of Natural Law at Dachau

In the face the evils harvested by Marxist materialistic philosophy in Communism or in Nazi Germany where the will of the State overcame all right, one is haunted by Dostoevsky's message as summarized by Jean Paul Sartre: "Where there is no God, all things are lawful," Если Бога нет, то всё дозволено. Natural theology and natural law are inextricably intertwined, despite the efforts of many to divide them and their insistence that one can proceed lustily without the other.

There is no question of denying the connection between the problem of natural law and the problem of God. But it is not easy to show precisely what this connection is. One may wonder whether the study of moral nature and of natural law is a way to the knowledge of God or whether the knowledge of God must be had before the proposition that there exists a natural law of the moral world is established.

Simon, 62 Simon favors the first option.

The Prison of Atheistic Existentialism

But from this logical priority in the order of discovery it does not follow that the understanding of natural law can be logically preserved in case of failure to recognize in God the ultimate foundation of all laws. Again, the intelligence of natural law is a way to God. This means, for one thing, that it normally leads to the knowledge of God's existence and it means, for another, that if the way to God is blocked, no matter what the obstacle, the intelligence of natural law is itself impaired (this is logically inevitable).

Simon, 62. Thus, someone who, like Jean Paul Sartre, has locked himself in a cell of atheistic existentialism with the fundamental premise that there is no God, will be forced to reject, time and time again, any concept of the natural law because to accept it would require abandonment of his fundamental premise. Jean Paul Sartre, is, in the words of the popular Eagles song "Hotel California," a prisoner of his own device. And there are stubborn men who will remain in the prison made with their own hands, though someone shows them that their cell door is wide open. 'Tis a pity he's a fool.