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.

Tuesday, March 15, 2011

Natural Law's Modern Cousin Germain: Images and Objections

IN THE SECOND PART OF HIS FIRST SECTION in his book Natural Law and Natural Rights, John Finnis seeks to disabuse the opponents of natural law theories from their false "images" of natural law theory. He also addresses some of the more frequently hurled objections against natural law theories.

In addressing these, the principles of natural law are first given by Finnis without elaboration (he elaborates on them in Part II of his book). Essentially, he states that there are a set of "basic practical principles," which are universal, and "which indicate the basic forms of human flourishing as goods to be be pursued and realized." Within this set of basic practical principles is another set, this one being a set of "basic methodological requirements of practical reasonableness . . . which distinguish sound and unsound practical thinking." This set of basic practical principles (including the set of methodological principles of practical reasonableness) allow for determination of right and wrong, and thus allow the formulation of a "set of general moral standards," standards which, moreover, extend beyond the individual, but also to the community, "in political philosophy and jurisprudence, in political action, adjudication, and the life of the citizen." NLNR, 23. The set of general moral standards are then incorporated into the Rule of Law, respect for human rights, and the common good. These principles explain the obligatoriness of human law, but they also allow for identification of any radical defectiveness (and accordingly non-obligatorinesss) of such radically defective human laws. In other words, we have a standard, one outside of the narrow confines of positive law, that allows for a sound critique of that positive law.

Finnis then makes a curious statement: "But of natural law itself there could, strictly speaking, be no history." And this statement includes the "principles of natural law" which likewise "have no history." NLNR, 24. The point is based upon a distinction between the subject matter (the res, the thing) and the "theory, doctrine, or account" of the subject matter, res, or thing. The "theories, doctrines, or accounts" of the thing may have a history; these theories may appear, as Hart accused them, in "protean guises." But the thing itself, the natural law itself, is outside of time, place, and therefore history. For Finnis, natural law and its principles are not unlike mathematical, physical, or geometric truths: these simply exist and are, unchanging, eternal, even though they may not have been grasped, or may have been inadequately grasped, or indeed, may have been implicitly or even expressly rejected by men in history. Distinction between "discourse about natural law," and "discourse about a doctrine or doctrines of natural law," is a distinction that has been inadequately maintained. In Finnis's view, natural law--the thing itself--is beyond history: it is suprahistorical, an unalterable, unchangeable, unchanging reality:

Natural law could not rise, decline, be revived, or state 'eternal returns'. It could not have historical achievements to its credit. It could not be held responsible for disasters of the human spirit or atrocities of human practice.

NLNR, 24. Finnis wants to go beyond the question of whether a particular doctrine of natural law is true or not true. Finnis wants to ask the question of whether the natural law--regardless of how expressed--is true. He also challenges some of the incomplete, warped, or simply mistaken notions, "imaginary image[s] of natural law theory, that positivistic or analytic jurists had regarding the natural law. NLNR, 31. He notes that in entertaining these images, perhaps even caricatures, of the natural law, "they themselves scarcely identify, let alone quote from, any particular theories as defending the view that they describe as the view of natural law doctrine." NLNR, 26. In other words, in their jousts against the natural law advocates, the positivists were largely battling with strawmen that they had concocted, perhaps themselves the victims of arrogance or naivety.

For example, Hans Kelsen and Joseph Raz accuse natural law theorists of being unable to distinguish between positive law and moral law, so all they are able to say is whether a positive law is moral or immoral, and are unable to determine whether a positive law exists or does not. Here, Kelsen and Raz are oblivious to the wide range of meaning given to the analogical term law by natural law jurists, so that whereas an immoral positive law may be said to be law in one sense, it may not be said to be law in another sense. The positivist penchant for univocity in the word law cripples them. NLNR, 26. Similarly, Kelsen has an odd notion that natural law jurists had some sort of "delegation" theory, which Finnis shows is based upon an inability to distinguish between delegation in general and delegation unconditionally. NLNR, 27. Finnis also challenges Hart and his advocacy of the hackneyed argument against the natural law: if the natural law existed then why is there not more agreement? Since there is so little agreement, Hart argues, there is no natural law. But, as Finnis shows (here recruiting the help of Leo Strauss*) it is the lack of common consent not the existence of it that spurred the natural law jurists to developing their theories. So how can the very fact that was the impetus for their theorizing be the fact that disproves their theory? Moreover, the theories make accommodations for, and attempt to explain why, there is such lack of uniform consent to the natural law, though there is in fact such a natural law. For example, St. Thomas distinguishes between the natural law's most general principles, its conclusions, and its proximate and remote determinations. The level and consent to the general principles is well-nigh universal, whereas consent to the more remote determinations is not to be expected. NLNR, 29-31. Hart seems insensitive to such subtleties. Moreover, Hart falls into a non sequitur. From the fact that there is some controversy as to a proposition, one cannot argue that one side of the controversy is therefore wrong. If there is an acrimonious debate, say, between a natural law jurist and a moral relativist on the moral liciety of abortion or contraception, that does not mean that the natural law jurist is wrong. It may equally be the case that the moral relativist is wrong. In other words, the existence of debate does not determine the validity or invalidity of any side. NLNR, 31. Julius Stone (1907-1985), a distinguished jurist whose work focused in particular on human rights and social justice, likewise lapses into error. In his Human Law and Human Justice, Stone asks whether natural law advocates are "entitled to claim that what they assert as self-evidence must be recognized as self-evident by all?" But this is not the issue. The issue is not whether something must be recognized. (After all, by that test, Professor Stone's theories, or for that matter, anyone else's, are deficient, since they are not recognized by all.) The issue is not whether there is some consent, or majority consent, or universal consent. The questions is whether claims to something being self-evident is true.** There are, alas, many men and many societies that reject truth, whether it be as a result of invincible ignorance, laziness, hatred of truth: it is of no moment. As Finnis also explains, a whole set of human knowledge--logic, mathematics, and sciences of all kinds--rely on self-evident principles that have not been proved, and that cannot be proved.
[W]hat is certain is that the natural sciences and in general all theoretical disciplines rest implicitly on epistemic principles, or norms of theoretical rationality, which are undemonstrated, indemonstrable, but self-evident in a manner strongly analogous to the self-evidence described by Aquinas to the basis principles of practical reasonableness.
NLNR, 32. Why should natural law advocates be under a burden different from anyone else? There are some men that think that the world is flat. Are we therefore to maintain that the spherical nature of the earth is a truth up for grabs? There are a substantial amount of men that, in theory or practice, reject the natural law. Are we therefore to maintain that the natural law does not exist? What's good for the legal positivist's goose, is good for the natural law jurist's gander.


*We have addressed Leo Strauss's great work Natural Right and History in series of blog postings. These are accessible via the hyperlink: Leo Strauss and Natural Law.
**As an aside, St. Thomas even explains that there are different levels of self-evident propositions, some of which are available to men as a whole, and some of which require some understanding of terms and therefore are available only to the learned. NLNR, 31-32 (discussing S.T. IaIIae, q. 94, a. 2c). In his
Nicomachean Ethics, Aristotle also speaks about a certain requisite intellectual maturity required to speak of ethics and politics.

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