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.

Saturday, April 30, 2011

Natural Law's Modern Cousin Germain: Eternal Law, Part 2

REASON CAN ESTABLISH THE EXISTENCE OF GOD as Uncaused Cause with certainty. Chance alone is unable to explain the reality of the state of affairs as we know it. In his Natural Law and Natural Rights, John Finnis, however, ascribes a lower level of certainty in the use of analogy from the existence of an Uncaused Cause to the existence of there being an Eternal Law. In his view, the argument of analogy from our experience that an act of choice is always preceded by a prior intention and plan so as to infer an Eternal Law in the Uncaused Cause is "cannot . . . be rigorously established by philosophical argumentation." NLNR, 392. Reason, Finnis appears to believe, cannot establish that the Uncaused Cause is personal and therefore governed by a ratio ordinis in its (his) creation and governance of the cosmos, and yet it certainly can suggest, hypothesize, posit, speculate the existence of such a reality. "Verification," that is, confirmation of the truth that there is a personal God and an Eternal Law, and "clarification of the meaning of the concepts employed" in such an Eternal Law, will have to come from somewhere other than the tentative suggestions of reason. However, reason's suggestion that the Uncaused Cause may be personal raises the question as to whether there may not be some sort of communication or self-revelation by the Uncaused Cause. Can the divine Nous* or intelligence communicate with the human nous or intelligence?

But here we depart from the realm of Reason into the realm of fact, of experience, of history, where Faith will govern. Reason has established certainly that there is an Uncaused Cause, and has, moreover, suggested that such an Uncaused Cause may be both personal and, in its (his) creation of the state of affairs as we find them, have a ratio ordinis, a plan, an ordinance of reason which we call the Eternal Law. So in the area of God and of Law there is an overlap of Reason and Faith. What the former suggests as possible, the latter confirms as real.

It must never be overlooked that, for nearly two millennia, the theories of natural law have been expounded by men who, with few exceptions, believed that the uncaused cause has in fact revealed itself to be all that the foregoing analogue model of creative causality hypothesized, to be indeed supremely personal, and to be a lawgiver whose law for man should be obeyed out of gratitude, hope, fear, and/or love. . . . But it must also not be overlooked that the originators of natural law theorizing, who did not suppose [or know] that God had revealed himself by any such act of informative communication , believed none the less that through philosophical meditation one can gain access to the transcendent source of being, goodness, and knowledge.

NLNR, 392. In the latter category, of course, we would put perhaps Heraclitus, but certainly Plato, Aristotle, the Stoics, including Cicero. These representatives of human thought, though not graced with revelation, nevertheless argued against the relativists, the skeptics, the positivists of their day (the Sophists, the Cynics). They had, as it were, a natural faith in reason. They were convinced, based upon the resources of reason alone (the only resources they had since the Gospel had not been preached, and faith comes through hearing), that an objective moral order was both intelligible and discoverable. They were confident in reason; at the "foundation of such teachings [of practical reasonableness, ethics, or natural right] is their faith in the power and objectivity of reason, intelligence, nous." NLNR, 392. But even here, where reason was given great weight and revelation was unknown, there was a notion that human reason participated in the eternal reason or mind of God. The human nous was never apart from the divine Nous, but participated in the divine Nous. Here, reason did not oppose itself to Reason, but worked within Reason, as it were.
[T]here is much reason to believe that their confidence in human nous is itself founded upon their belief that the activity of human understanding, at its most intense, is a kind of sharing in the activity of the divine nous.

NLNR, 392-93.** The overlap and fit between reason's project in Plato and Aristotle and the schools they founded and faith's project in both the Mosaic and Christian revelation and the Church was so amicable and complementary that many were convinced that perhaps there had been some sort of communication between the Jewish prophet and the Greek philosopher. Thus in St. Augustine's De Civitate Dei we have the tentative hypothesis that perhaps Plato had some communication or access to the prophetic traditions of Israel:

Certain partakers with us in the grace of Christ, wonder when they hear and read that Plato had conceptions concerning God, in which they recognize considerable agreement with the truth of our religion. . . . Then, as to Plato's saying that the philosopher is a lover of God, nothing shines forth more conspicuously in those sacred writings. But the most striking thing in this connection, and that which most of all inclines me almost to assent to the opinion that Plato was not ignorant of those writings, is the answer which was given to the question elicited from the holy Moses when the words of God were conveyed to him by the angel; for, when he asked what was the name of that God who was commanding him to go and deliver the Hebrew people out of Egypt, this answer was given: "I am who am; and you shall say to the children of Israel, He who is sent me unto you;" Exodus 3:14 as though compared with Him that truly is, because He is unchangeable, those things which have been created mutable are not—a truth which Plato zealously held, and most diligently commended. And I know not whether this sentiment is anywhere to be found in the books of those who were before Plato, unless in that book where it is said, "I am who am; and you shall say to the children of Israel, who is sent me unto you."

St. Augustine, De Civitate Dei, VIII, c. 11.***

The interconnectedness between reason's project and faith's project ought not to be dismissed. The fact that philosophy and theology, reason and faith, more or less traveled parallel paths until joined in Judaeo/Hellenistic and Christian/Hellenistic philosophical/theological blends (e.g., Philo the Jew or Justin Martyr) ought not to suggest that they should not be joined. Nor should the fact that reason and faith and their separate contributions can be distinguished one from each other imply that they ought to be separately pursued. What God has so felicitously joined, let no man put asunder. Faith and reason must be used jointly and severally, not each severally, else we land in some sort of "muddle."
[T]he distinctions later drawn by Christian theologians between natural law and divine law, and between natural reason and revelation, have given some encouragement to the supposition that 'natural la' or 'natural reason(ableness)' signify properties of a purely immanent world ('nature') or an intelligence which has no knowledge of, or concern for, the existence of any transcendent ('supernatural') uncaused cause. But this supposition is mere muddle and is not, and was not intended to be, entailed by the aforementioned distinctions.
NLNR, 394.

Finnis, of course, is referring here to those natural law theories that were advanced at the time of the Enlightenment and beyond. We must not confuse those theories of natural law and natural right which were based upon the Dutch jurist Hugo Grotius's tentative suggestion that a moral law could be built upon the temerarious suggestion that we ought to think as if God did not exist.† The Deistic and later even agnostic and atheistic presuppositions entertained by some Enlightenment natural law thinkers ought not to deter us from the project as originally conceived. In our question for a reason-based morality, that is in our search for the natural moral law, reason does not require us to disclaim the existence of a personal God, a personal Eternal Law, or a personal Providence.
*Nous, of course, meaning intelligence or intellect, mind, reason, thought, etc. is a transliteration of the Greek word νοῦς.
**Finnis cites to Plato,
Republic, VI, 508a-509b; VII, 514a-518e and Aristotle, Metaphysics, XII, 7:1072b13-25 and Nicomachean Ethics, X, 7:1177b26-1178a1.
***"Mirantur autem quidam nobis in Christi gratia sociati, cum audiunt vel legunt Platonem de Deo ista sensisse, quae multum congruere veritati nostrae religionis agnoscunt. . . . Deinde quod Plato dicit amatorem Dei esse philosophum, nihil sic illis sacris Litteris flagrat 38; et maxime illud (quod et me plurimum adducit, ut paene assentiar Platonem illorum librorum expertem non fuisse), quod, cum ad sanctum Moysen ita verba Dei per angelum perferantur, ut quaerenti quod sit nomen eius, qui eum pergere praecipiebat ad populum Hebraeum ex Aegypto liberandum, respondeatur: Ego sum qui sum, et dices filiis Israel: qui est, misit me ad vos 39, tamquam in eius comparatione, qui vere est quia incommutabilis est, ea quae mutabilia facta sunt non sint, vehementer hoc Plato tenuit et diligentissime commendavit 40. Et nescio utrum hoc uspiam reperiatur in libris eorum, qui ante Platonem fuerunt, nisi ubi dictum est: Ego sum qui sum, et dices eis: qui est, misit me ad vos."
†The suggestion of Hugo Grotius that natural law would persist even if one dared to suggest that there was not a God (etiamsi daremus . . . non esse deum) has been treated in the prior posting Natural Law: Ecstasis and Telos.

Friday, April 29, 2011

Natural Law's Modern Cousin Germain: Eternal Law, Part 1

THE FACULTY OF REASON IS AT ITS WEAKEST when confronted by the Uncaused Cause (which we now capitalize in recognition of His divinity) of the state of affairs that exists and when asking questions about that Uncaused Cause is, what is the essence of the Uncaused Cause. The senses and intellect both are at their stretching point, thin like the skin of a stretched balloon, and yet they can provide us--through analogical reasoning--a little more light on the nature or the essence of this Uncaused Cause.

[I]t is philosophically possible to speculate that [the uncaused cause's] causing of all caused state of affairs, being an uncaused causing which determines between contingent possibilities, is in some respects analogous to the free choices of human persons. . . . [T]he analogy may be justified in as much as human persons, by free acts of thinking, choosing, and using or making, bring into being entities (e.g. arguments, friendships, poems, and constitutions) that simply would not exist but for these not-wholly-determined human acts.
NLNR, 389.

Granted, the analogy, though justified, must needs be imperfect. Yet we experience the freedom of acts in our creation of things virtually brought forth as if from nothing.

Giotto Last Judgment (Detail)

The studied and haunting cadence of the ostinato of the Second Movement of Beethoven's Second Symphony. The budding three-dimensionality of a Giotto fresco. The rose window of Notredame Cathedral which captures the eye with its ebullience of color. The Cantos of Dantesque genius:
Nel mezzo del cammin di nostra vita
mi ritrovai per una selva oscura,
ché la diritta via era smarrita. . . .

The intellectual synthesis of St. Thomas's Summa Theologiae:
Quia Catholicae veritatis doctor non solum provectos debet instruere, sed ad eum pertinet etiam incipientes erudire, secundum illud apostoli I ad Corinth. III, tanquam parvulis in Christo, lac vobis potum dedi, non escam; propositum nostrae intentionis in hoc opere est . . . .

The Magna Carta:
Sciatis nos intuitu Dei et pro salute anime nostre et omnium antecessorum et heredum nostrorum ad honorem Dei et exaltacionem sancte Ecclesie . . . .

These humanly-created acts (whether of art, or poetry, or philosophy, or government) presuppose a prior knowledge, a plan, on the part of its human creator. Every work of art has a ratio ordinis behind its act. The artist knew what he was up to in doing what he did. These works of art did not fall together by sheer happenstance. "We only act freely when we know what the possibilities were, and when we know what we are doing." NLNR, 389. That seems self-evident. That analogy--applied to the Uncaused Cause--is the origin of the Augustinian and Thomistic concept of the eternal law (a concept, it ought to be noted, that was found in germ among the Greeks and in full flower of development in the Stoics, in the neo-Platonists, in Plotinus, and in Cicero).
The . . . Eternal Law is a development of the analogy in this respect: what we do is guided, shaped, directed by the formally (and often chronologically) prior plan we have in mind; if we are trying to get the members of a community themselves to act in the way we have it in mind for them to act, our plan of action can be presented as a law of their actions. So too the ensemble of caused states of affairs which exist in intelligible orders in accordance with physical and other laws of nature (both 'classical' and statistical), with principles of logic and theoretical rationality, with requirements of practical reasonableness for human flourishing, and with the flexible norms of arts and technologies. Thus the theory of Eternal Law proposes that the laws, principles, requirements, and norms of the four orders [physical, logical, moral, and artistico-technical] be regarded as holing for their respective orders precisely because they express aspects, intelligible to us, of the creative intention which guides [the uncaused cause's] causing of the categorically variegated 'community' of all entities and all states of affairs in all orders.

NLNR, 389. By "eternal" is meant that this law is not incomplete, that it cannot be subject to change or changing, and yet neither is it static or unchanging as we understand it. It is a manner of acknowledging that this law "neither develops nor declines," that the uncaused cause is "outside the range of application of the concepts of change and changelessness, and hence of time." NLNR, 390. That such an Eternal Law exists--a necessary corollary to the existence of the Uncaused Cause--is known, but what it is reason cannot say. "Yet every state of affairs , however 'fortuitous' [it may seem to us], requires [the Uncaused Cause's] creative causality if it is to exist. So the speculation on the 'plan' of that causality, i.e. on Eternal Law, suggests that much of that Law is quite unknown to us." NLNR, 390-91.

This ignorance of the "plan" behind the Eternal Law of the Uncaused Cause shields us from ever knowing the mystery of evil. Evil, as Finnis notes, "strictly speaking, is a defect, a lack, the non-existing of what ought (in terms of the norms of the relevant order) to have existed but in fact does not exist." NLNR, 391. The fact that evil is privity of the good, however, does not suggest that evil is not a reality, though in itself it does not exist and never can exist without an attendant good that is host to the privity which is evil. Absolute evil (sheer non-existence, an absolute absence of any good) is an impossibility. In light of our ignorance of the Uncaused Cause's "plan," that is, the Eternal Law, it is impossible to judge or assess the role of evil, for "we could only judge [the Uncaused Cause's] causality to be evil or imperfect or defective if we knew what the norms applicable to creative causality are," which, of course, we don't.
While we can speculate that the norms known to us do reflect the plan 'underlying' creative causality, such an assumption does not warrant an inference that that plan is 'capture' by the norms which we known (or could come to know by any means imaginable to us). The norms in terms of which we judge states of affairs to be evil, in any of the four orders, are not applicable to [the Uncaused Cause] as creator. Thus we have no ground to judge that [the Uncaused Cause's] creative causality is defective. In short . . . we do not know enough of [the Eternal Law] to be able to judge [the Uncaused Cause's] creative performance defective in terms of it.
NLNR, 391.

We can know that Homer nods. So when, in the Iliad, Menelaos kills Pylaimenes [V.576-79], and yet the latter re-appears in the epic poem to witness the death of his son [XIII.643-59], we recognize the poetic evil. Or when Homer describes the tri-partite embassy to Achilles (Phoenix, Odysseus, and Aias) as composed of two members instead of three [Cf. IX.165-93 with IX.182, 192], we comprehend the error. But what we know of Homer we do not know of the Uncaused Cause. We cannot know if and when or whether the Uncaused Cause--whom all call God--has nodded or nods. We would need to know the entire plan of history, of the design of Creation, or the intendment of Providence, and all these are outside our ken and therefore outside the human logos, the human reason, the human word.

Wovon man nicht sprechen kann, darüber muss man schweigen. "That of which we cannot speak, we must pass over in silence."*

*Ludwig Wittgenstein, Tractatus Logico Philosophicus, No. 7.

Thursday, April 28, 2011

Natural Law's Modern Cousin Germain: Nature, Reason, God, Part 2

WE FINISHED OUR LAST POSTING WITH THE QUESTION "Why do things exist? In addressing this question Finnis asks whether the principle of sufficient reason* compels the conclusion that there must be an answer to the question of the fact of "sheer existence," of "Why things are?"

Finnis admits that the proponents of natural law which in his Natural Law and Natural Rights he has not "reproduced or defended,"** thought, based upon the principle of sufficient reason, that there was such an answer, whereas the likes of Hume and Kant did not. NLNR, 384. From a philosophical standpoint, he rejects the principle of sufficient reason, but wonders if--despite the absence of such a principle--the question as to "why the whole state of affairs causing the first-mentioned state of affairs to exist itself exists?" may persist and be answerable. NLNR, 385. Finnis believes that the contingency of the world is at the heart of the answer to the question of whether there is a God (defined as an uncaused cause or uncaused causing). In other words, in assessing the contingency of the world, that all things must have an explicating cause, is there an infinity of causes (which necessarily is the skeptic's answer) or is there reasonably a first cause, an uncaused cause (which, if the question is not ignored, is the only other answer other than that of the skeptics)?

While Finnis rejects finding the answer to such a question in the principle of sufficient reason, Finnis suggests that self-evident principles of theoretical rationality (as distinguished from practical rationality) hold the clue to answering that question. One of those self-evident principles is the following:
If a question of a certain form has been asked and answered, one can except another question of the same general form to be answerable, and: If a theoretical question can be partially answered by positing a theoretical entity [that is, an entity of which we have no experience via the senses], and to do so allows the raising of further questions which, if answered, might well provide a more satisfying answer to the initial question, the one ought to posit such a theoretical entity--unless there are good reasons for not doing so.
NLNR, 385.***

We ask and are able to answer questions of the form, "Why does X exist?" as a matter of course. Why does the oxidization of iron exist? Why does George have blue eyes (why do his blue eyes exist) when both his parents had brown eyes? Why do solar eclipses exist? It follows that if the question, "Why does X exist?" may be asked of a particular state of affairs (say, iron, a person's eyes, the sun, or any subject of our myriad sciences), then it may be asked of the "whole set of states of affairs which initially explain why the particular state of affairs first under consideration itself exists." NLNR, 385. The answer to the question, "Why does X exist?" when said of the X that is defined as the "entire state of affairs" can be answered by positing a theoretical entity (an "uncaused cause" "uncaused causing," namely God). Further, positing that entity (the "uncaused cause," an "uncaused causing," or God) allows for the raising of further questions the answers of which allow for more satisfactory answers to the question as to why the entire state of affairs exists rather than something else or nothing. There is, therefore, good reason for positing that God as uncaused cause or uncaused causing exists. And there are no good reasons for positing that notion that God as uncaused cause does not exist. That, in a nutshell is Finnis's rendition of the argument of the existence of God based upon contingency which he appears to have borrowed from Germain Grisez (who adapted it from St. Thomas).

Five Eskimos (by Matisse)

The question, "why does X exist?" when "X" is the "state of the whole set of state of affairs" is more than the "empty project"of answering a question that is just an aggregate sum of the particular questions "why does X exist?" when that question is said of the individual Xs of a group or set. Thus Finnis rejects Paul Edwards's "Five Eskimos" argument that the question of "why does X exist?" is absurd when posited of the "the whole set of state of affairs" since if the question "why does X exist" when said of each individual of the set is answerable, there is no need to ask the question of the whole set of state of affairs: the answers to the question for each "X" answer the question for the aggregate of Xs. Here is Paul Edwards's argument:

Suppose I see a group of five Eskimos standing on the corner of Sixth Avenue and 50th St. and I wish to explain why the group came to New York. Investigation reveals the following stories: Eskimo No. 1 did not enjoy the extreme cold in the polar region and decided to move to a warmer climate. No. 2 is the husband of No. 1; he loves her dearly and did not wish to live without her. No. 3 is the son of Eskimos 1 and 2; he is too small and too weak to oppose his parents. No. 4 saw and advertisement in the New York Times for an Eskimo to appear on television. No. 5 is a private detective engaged by the Pinkerton Agency to keep an eye on Eskimo No. 4.

Let us assume that we have now explained in the case of each of the five Eskimos why he or she is in New York. Somebody then asks: "All right, but what about the group as a whole, why is it in New York? This would plainly be an absurd question. There is no group over and above the give members and if we have explained why each of the five members is in New York, we have ipso facto explained why the group is there. A critic of the cosmological argument would claim that it is just as absurd to ask for the cause of the series as a whole, as distinct from asking for the causes of the individual members.†

As Finnis argues, the question that asks for explanation for the whole state of affairs is different from a mere aggregation of the individual questions that ask for an explanation as to the existence of each member of a group or set. What is involved is "a matter of explaining more fully the existing of one particular state of affairs." In other words, the question seeks to go deeper than the individual sum of explanations aggregated. "The existing of that (first mentioned) state of affairs [in Edwards's example the explanation of the presence of five Eskimos in New York] is partially explained by the already postulated causing state of affairs, but only on the assumption that the whole causing state of affairs exists." NLNR, 386. The question is not why it is that five Eskimos find themselves in a corner in New York, but the question is why is it that the five Eskimos and New York exist and not some other entire contingent situation (such as four Eskimos in the corner of Krasnopesnenskaya and Barrikadnaya streets in Moscow)? So Edwards begs the question by assuming the answer (or by ignoring the deeper question). There is but one explanation for "the whole causing state of affairs."
[T]here is some state of affairs causing that whole causing set of prerequisites or conditions of the first-mentioned state of affairs, but which is not itself included in that causing set of conditions precisely because, unlike all members of that set, its existing does not require some prerequisite condition (not included in itself) to be satisfied.
NLNR, 386. In short, "[t]his newly postulated state of affairs can (and should, given the sense we are giving to 'cause') be called an uncaused causing." NLNR, 386. "Where the uncaused causing must differ, if it is to explain what needs to be explained, is in this: that to exist, it requires nothing not included in itself (That is the fact about it that we signify by 'uncaused')." NLNR, 386.

Does the "uncaused causing" exist?

The explanation of its existing can only be this: that the uncaused causing state of affairs includes, as a prerequisite to its existing, a state of affairs that exists because of what it is, i.e. because it is what it is.

NLNR, 387.

From this, Finnis seems to latch onto an ontological argument of sorts. In contrast to all other contingent state of affairs (which do not necessarily exist, and so what it is is different from the question of that it is), this uncaused causing must exist necessarily. For the uncaused causing, what it is is equivalent to that it is. The only thing we know, then of the uncaused causing is that what it is is the same as that it is. But that is enough to compel the conclusion that the necessary existence of an uncaused causing is the only adequate explanation for any contingent state of affairs to exist. "[W]ithout it [a necessary uncaused cause], no state of affairs that might not exist could exist." NLNR, 387. Since we know that there is a contingent state of affairs that exists which might not exist, then it follows that a necessary uncaused cause must exist. This "uncaused cause," this "uncaused causing" is what we call the God of philosophy, the God of reason. We are at preambula fidei, we are walking at the long edge of reason and the short edge of faith. We are the divide between faith and reason: windward is reason, leeward is faith.

*The "principle of sufficient reason" is a philosophical principle that everything must have an explanatory reason or cause. It rejects the argument that there are brute or unexplainable facts: that there are some facts that "just are." It is aligned with the common expression, perhaps Parmenidian in origin: ex nihilo, nihil fit, nothing comes from nothing. It is the principle behind King Lear's insistence, in his conversation with his daughter Cordelia, that there must be a reason.
KING LEAR: ..what can you say to draw
A third more opulent than your sisters? Speak.
CORDELIA: Nothing, my lord.
KING LEAR: Nothing?!
CORDELIA: Nothing.
KING LEAR: Nothing will come of nothing, speak again.

Shakespeare, King Lear, Act 1, sc. 1, 88-92.

Finnis quotes Leibniz's formulation of the principle: "No fact can be real or existent, no statement true, unless there be a sufficient reason why it is so and not otherwise, although these reasons usually cannot be known to us." Et celui de la Raison suffisante, en vertu duquel nous considérons qu'aucun fait ne saurait se trouver vrai ou existant, aucune Enonciation véritable, sans qu'il y ait une raison suffisante, pourquoi il en soit ainsi et non pas autrement, quoique ces raisons le plus souvent ne puissent point nous être connues. La Monadologie, section 32. Finnis rejects the principle as philosophically compelling: "But, in fact, this principle should not be conceded." NLNR, 384.
**It is unclear whom Finnis includes in this cryptic reference. He certainly includes Leibniz and Wolfe and most of the natural law theorists of the Enlightenment ilk who were inclined to predicate the existence of God on an argument based upon order (God the divine "watchmaker") and not contingency or causality.
***I'm not sure what self-evident principle this is. Most have been given a name (e.g., principle of non-contradiction). John Finnis cites to no source, either in his text or in his notes, as to this principle.
†Paul Edwards, "The Cosmological Argument," in Donald R. Burrill (ed.), The Cosmological Arguments: A Spectrum of Opinion (New York: 1967).

Wednesday, April 27, 2011

Natural Law's Modern Cousin Germain: Nature, Reason, God, Part 1

WE ARE NEARING THE END OF our review of John Finnis's magisterial presentation of the natural law in his book Natural Law and Natural Rights. This theory is not strictly speaking classical or traditional; it departs from the classical or traditional Thomist theory by minimizing the role of "nature," by bracketing ontological (metaphysical) questions, by accepting the Humean is/ought critique, and by stressing a "pure reason" more akin to Kant than "nature in reason" akin to Aristotle or St. Thomas. Finnis's theory of natural law is within that species of theories of natural law generally called "new" or "integration" theories of natural law. It is, however, to be regarded as allied with the classical theories, and some of its insights are very valuable.

The last chapter of John Finnis's book Natural Law and Natural Rights, entitled "Nature, Reason, God," addresses the issue of whether reason is all there is, or whether there is a faculty beyond reason which we must acknowledge. Granted, reason affords us the notion of basic self-evident human values, which, in Finnis's taxonomy, are life, knowledge, play, aesthetic experience, sociability, practical reasonableness, and religion.* The application of practical reasonableness in the pursuit of these basic goods in one's individual life is the basis of morality. And, when practical reasonableness reaches forth in the ordering of the life of a community, it is the basis of moral, right, just law. Practical reasonableness is explanatory of both the scope and limits of authority, of positive law, of rights, justice, and obligation. Reason obviously yields us much, albeit only with as much detail as the subject matter allows. For a large part of our questions, there will not be ready black-and-white, binary answers, but a sort of range of possibilities of right ways to instantiate the basic human goods, all of which consider the historical, cultural, and other practical contingencies under which man operates hinc et nunc, here and now.

But does reason provide us all answers? What does reason say to the necessary limits of the basic human values? What does reason say about the fact that life, for any individual, ends sometimes after long bouts with difficult neurological diseases, painful cancers, or the tragedy of accidents or war? How does reason respond to the fact that knowledge fades, that the most erudite genius sometimes lapses into the babbling nonsense of senility? All the knowledge in that brain of Pasteur, Einstein, Beethoven, Da Vinci, vanished with their death. Does reason have a response of why both play and art, as satisfying as they are, do not fully satisfy, but leave a wistful yearning that there must be something else? Friendships among men--even the most paradigmatic--are ended by death. Empires, nations, ideas, families, ruling cadres all come and go: there is a rise and a fall to all things. Nothing lasts. The reality of decay abounds. Vanity of vanities, all is vanity." Vanitas vanitatum dixit Ecclesiastes vanitas vanitatum omnia vanitas. (Eccl. 1:2) All these basic goods are like the beauty that Gerard Manley Hopkins speaks of in his poem, "The Leaden Echo":
How to keep — is there any any, is there none such, nowhere known some, bow or brooch or braid or brace, lace, latch or catch or key to keep
Back beauty, keep it, beauty, beauty, . . . from vanishing away?
. . . .
No there’s none, there’s none, O no there’s none,
. . . .
So be beginning, be beginning to despair.
O there’s none; no no no there’s none:
Be beginning to despair, to despair,
Despair, despair, despair, despair.
Reason leads us to the Finis Gloriae Mundi and the In Ictu Oculi of Juan de Valdés Leal. But there it hesitates. Reason is stopped, checked, flummoxed by the awareness that all things are subject to corruption, to decay, to death. Reason is stayed by the memento mori. "Remember, man, that thou art dust and to dust thou shalt return," we hear at the beginning of the Lenten season. "Memento, homo, quia pulvis es, et in pulverem reverteris." Reason may rationalize (which is not really reason, but an escape from reason, an ersatz reason) seek to ignore the question, and then it is not unlike the woman in her boudoir in C. Allan Gilbert's All is Vanity (1892). Looking into the mirror, reason sees itself as fully alive: it explains the here-and-now, but if it looks at the greater picture, does not the ephemerality of youth, of life, of beauty, of all things temporal held so dear show everything to be vanity? Is not the specter of death, and its radical limitation upon all our projects, everywhere, in everything? How does reason take us out all-is-vanity despair? How does reason answer the question, "What, in the long run, is the point of it all?" Does the vanity not lead one to "despair, despair, despair, despair"?

C. Allan Gilbert's "All is Vanity"

In view of these questions, can morality--and by extension--law rest content through a studied, calculated disregard, by simply wearing blinders or remaining oblivious to, and in feigned ignorance of, the great questions of life's meaning, and remain, like Gilbert's woman in her boudoir? Can we bracket law from these questions? No. Decay, corruption, death are realities that demand an answer.

Reasoning about law, like reasoning about anything, ultimately leads us to the fundamental question about the basis of reality itself. The entire construct of law begins with the awareness that man has a certain ensemble of inclinations, essential to his makeup, to his nature. And from this we must recognize a sort of design, an ordering, one which is a "given." And so we must as a given, but by whom?

The fact that human beings have a certain range of urges, drives, or inclinations; and the fact that these have a certain correspondence, parallelism, or 'fit' with the states of affairs that anyone intelligent would consider [to] constitute human flourishing; and the fact that without reasonable direction the inclinations will bring about individual and communal ruin ('natural sanctions'); and the fact that certain psychological, biological, climatic, physical, mechanical, and other like principles, laws, states of affairs, or conditions affect the realization of human well-being in discoverable ways--all these are facts in an order, external to our own understanding, which our understanding can only discover [not make]. This order is often called the order of nature. . . . . The remarkable fact that there is an order of nature which . . . is amenable to human understanding calls for some explanation.

NLNR, 380-81. And yet amongst this undeniable order, there is another reality which must also be acknowledged, a reality which is the opposite of order.

But, as there is order, so there is lack of order in the world, in terms of all four orders: waste in physical nature, error in reasonings, breakdown in culture, unreasonableness in human attitudes and actions.

NLNR, 381. There is, then, an order and disorder, good and evil, yin and yang, an ambiguity in the world. How explain both the order and the disorder, the good and evil, the ambiguity in both man and in the cosmos? So it would seem that "direct speculative questions about the significance, implications, or source of the orderliness of things yield, by themselves, no clear or certain answers." NLNR, 382. The moment that the orderliness of the world would lead you to infer God, in from stage left comes disorderliness, a disorderliness which seems to contradict the inference of a Providential God. What things are raises questions, but perhaps not definitive answers.

And yet if what things are does not provide the basis for any clear conclusions, what of the fact that things are? What of the fact of being, of "sheer existence"? Is there an answer to the question, "Why things are?"

We will address Finnis's view of the matter in the next post.
*The basic good of knowledge is treated in the blog posting Natural Law's Modern Cousin Germain: To Know is Good. The other basic values are generally treated in the posting Natural Law's Modern Cousin German: The Seven Basic Values.

Tuesday, April 26, 2011

Natural Law's Modern Cousin Germain: Lex Iniusta

WHAT IS THE CENTRAL THEOREM of authority which forms the foundation of the apologia in support of the the proposition that an unjust law is no law at all? For Finnis, that central theorem is defined thus:

[T]he ruler has, very strictly speaking, no right to be obeyed; but he has the authority to give directions and make laws that are morally obligatory and that he has the responsibility of enforcing. He has this authority for the sake of the common good . . . . Therefore, if he uses his authority to make stipulations [laws, orders, judgments, etc.] against the common good, or against any of the basic principles of practical reasonableness, those stipulations altogether lack the authority they would otherwise have by virtue of being his.

NLNR, 359-60. What this means is that laws, or orders, or judgments, or other "stipulations," if made for partisan, private reasons or if made in clear excess of legal authority, or if they direct that things be done that are violative of fundamental human rights, or impose inequitable burdens on his subjects, these sorts of "stipulations . . . fail, of themselves, to create any oral obligation whatever." NLNR, 360.*

Finnis then sides with the "classical position." An unjust law does not bind in any fashion in the moral sense. "Such laws lack the moral authority that in other cases comes imply from their origin, 'pedigree', or formal source." NLNR, 360. So he joins the chorus led by St. Thomas who himself relies on St. Augustine: lex iniusta non est lex: virtutem obligandi non habet, an unjust law is not law: it has no power to obligate.** This is so even if the law comes from a legally authorized source, is enforceable by courts, and is spoken of by all as law.

This, however, takes us to another issue. When a law is perceived by the greater majority of the citizenry as not unjust, what is the person who believes the law grossly unjust to do? If he disobeys the law the injustice of which his fellows have difficulty seeing, will he not cause scandal? Will not that act of disobedience against an unjust law have the consequence of minimizing respect for law generally? "It may be," as Finnis notes, "that if I am seen by fellow citizens to be disobeying or disregarding this 'law', the effectiveness of other laws, and/or the general respect of citizens for the authority of a generally desirable ruler or constitution, will probably be weakened, with probable bad consequences for the common good." NLNR, 361.

If that is the situation, is there a collateral reason relating to the common good--apart from the unjust law that does not bind--which may bind us nevertheless not to disregard an unjust law but to mind it? Another way of looking at the situation is does one unjust law impugn the entire system? And if not, then does our obligation to the entirety of the system demand compliance with the law that--taken by itself--is unjust and therefore not morally binding? The answer is that it depends upon the circumstances which must be prudentially assessed:

This degree of compliance will vary according to time, place, and circumstance; in some limiting cases (e.g., of judges or other officials administering the law) the morally required degree of compliance may amount to fully or virtually full compliance, just as if the law in question had been a just enactment.

NLNR, 361. It is foreseeable that, in some circumstances, the conscientious (and rightly thinking) citizen and (a fortiori since the scandal is greater) the public official may be called not to act on his conscientious objection to one law in order to heed to what ought to be his conscientious attachment to the legal system as a whole:
So, if an unjust stipulation is, in fact homogeneous with other laws in its formal source, in its reception by courts and officials, and in its common acceptance, the good citizen may (not always) be morally required to conform to that stipulation to the extent necessary to avoid weakening 'the law', the legal system (of rules, institutions, and dispositions) as a whole. . . . [T]he citizen, or official, may . . . have the diminished, collateral, and in an important sense extra-legal, obligation to obey it.
NLNR, 362. In short, there are (possibly) moral reasons for obeying immoral laws.

Unless the law involves a direct offense against a basic human good (or a direct violation of the natural law or divine law), the problem of obeying (or disobeying) and unjust law under these circumstances is an exercise in prudence, and there are many factors to consider:
  • The difficulty in identifying the injustice, the actual distribution of burdens, and the actual motivation of the authority passing the unjust law, and so determining the extent of injustice in the law in any particular circumstance (when are we informed enough of the law, the circumstances, and the costs and benefits?).
  • The difficulty of the lawmaker and his need to compromise in the prudent exercise of his authority (when are we allowed to second-guess the legislature?).
  • The difficult of assessing when the common good's requirement that one be obedient to the legal system "as a whole" is compromised by the unjust law, singly, or in common with other unjust laws (when is revolution, or less radically, civil disobedience against an unjust regime (or law) conscientiously permitted?)
  • The difficulty of determining when it is proper to exercise conscientious civil disobedience for the purpose of spurring legal reform (when should I break a law for the purpose of raising the public awareness of a wrong?)
  • The practical availability of intra-systemic channels for challenging the unjust law. (When should the courts or petition to the legislature be used as a an avenue for attacking an unjust law, and when is recourse to the courts excused?)
  • The other obligations (institutional, familial) that may limit my freedom of action. (Does a man who has no obligation to wife and children have a different threshold for civil disobedience than a man who has no such obligations?)
The entire issue is "highly contingent upon social, political, and cultural variables." One should not "expect generally usable but precise guides for action in circumstances where the normally authoritative sources of precise guidance have partially broken down." NLNR, 362. One may quote here a text referred to be Finnis in his notes, a text by P. T. Geach (The Virtues) which supports the classical formulation but expresses it in a "vigorous modern formulation."
University people argue mightily about whether laws that violate these principles are laws or (as Aquinas called them) mere violence. Of course it doesn't matter whether you call them laws or not: the question is what consequences follow. An unjust piece of legislation exists de facto, as an institution: but it is no debt of justice to observe it, through it may be imprudent to ignore it. And though a private person should not lightly judge a law to be unjust, its contrariety to the Law of Nature and the peace and justice of society may be so manifest that such a judgment is assured. A sufficient mass of unjust legislation may justify a man in deciding that the civil authority is a mere Syndicate. I think Old John Brown rightly so judged about the slave-owning U. S. commonwealths of his time. Rebellion, however, is another matter, because the evils it may bring about are so great: whether Old John Brown judged rightly about this is a matter we must leave between Old John Brown and his Maker . . . .
NLNR, 367.

Old John Brown

And the most issues of obedience to an unjust law and lie within the discretion of prudence, yet there are situations where obedience to an unjust law is simply not allowed a man under any circumstances. There are some situations where exceptionlessly an unjust law must be disobeyed regardless of the cost to oneself. Put in secular terms, there are instances where "[i]t is universally true that one has an absolute (liberty-)right not to perform acts which anyone has an absolute (claim-)right that one should not perform." NLNR, 362. Put in religious terms, there are times when must obey God rather than men. (Acts 5:29) This is what the statement an unjust law is not law at all is supposed to encapsulate.

The statement an unjust law is not equivalent to law would seem to be one of two things. Either it is pure nonsense (being self-contradictory) or it is the "dramatization of the point" that an unjust law is not law in the focal or central sense, but law, at best, in a non-focal, "in a manner of speaking" sense. An unjust law is not law simpliciter, it is only law secundum quid.

It is interesting to observe that the classical formulation has been carelessly re-written by modern enemies of natural law so as to confuse categories. So citing largely H. L. A. Hart, Finnis summarizes the modern re-characterization as follows:

[M]odern critics [of the lex iniusta doctrine express the traditional doctrine in terms such as] 'what is utterly immoral cannot be law,' or that 'certain rules' cannot be law because of their moral iniquity', or that 'these evil things are not law, or that 'nothing iniquitous can anywhere have the status of law', or that morally iniquitous demands [are] in no sense law, or that 'there cannot be and unjust law.'

NLNR, 364 (quoting Hart passim) (emphasis in Finnis).

Note the re-characterization by Hart. As Finnis notes, the "tradition, even in its most blunt formulations, has affirmed unjust LAWS are not law." NLNR, 364. The classical tradition clearly recognized that the unjust law is law in one sense. But they also recognized that the unjust law is not law in another, more plenary sense.*** The tradition therefore recognized that unjust laws may be laws in a purely positive sense or they may be laws which of their own do not justify obedience, but as part of a greater legal system may demand conscientious obedience for collateral reasons (to avoid scandal, etc.). It is not unusual to "shift" senses of a term "within the space of a single sentence." The term "law" may be used to refer to its "intra-systemic expository viewpoint," or its "historical/sociological viewpoint," or its "viewpoint of unrestricted practical reasonableness." So the sentence's seeming contradictory nature disappears if one considers the subtility of the advocates' thought: A law from the viewpoint of unrestricted expository viewpoint is not a law from the viewpoint of unrestricted practical reasonableness.

With a little bit of good faith and a little bit of intellectual effort an understanding of the classical position is easily gained, and it is impossible to say that it is nonsense. The positivist's accusation against the exponent of the classical doctrine of natural law of falling headlong into a contradiction is clearly meritless. The argument is one born of ideology; it is a cheap shot; it is the result of intellectual torpor, carelessness, or just plain intellectual dishonesty. In a word, nonsense. Indeed, nonsense on stilts.
*Finnis excludes motive from the formulation. Thus, a ruler can pass a law or make a judgment for improper motive which yet conforms with the interests of the common good. Also, those people unaffected by the distributive injustice of a law are not exempt from the moral obligation of that law. NLNR, 360.
**S.T. IaIIae, q. 96, art. 6, c.
***The traditional analysis is replete with words that made it clear that they used words in non-univocal senses; that is, that terms were frequently analogical or ambiguous and allowed for a wide sense of meanings, some precise some less so precise. So they distinguished between a term or concept simpliciter or vere or propie or in senso stricto (respectively, simply, true, proper, in a strict sense) and a term or concept in senso lato or secundum quid or secundum aliquem modum or secundum similutidnem or cum aliqua adjectione (respectively, in a loose sense, in a manner of speaking, in a certain mode, in a similar sense, with certain limitations).

Monday, April 25, 2011

Natural Law's Modern Cousin Germain: Unjust Laws and How They May Arise

JOHN FINNIS SEEMS ALWAYS ON THE VERGE of being embarrassed or apologetic about some of the concepts or coinages of traditional or classical natural law. One of those that he seems eager to disassociate, or at least distance himself from, is the statement that "unjust laws are not law." The statement has a superlative pedigree, found in such orthodox doctors of the Church as St. Augustine, who, in his De libero arbitrio (I, V, 11.53) states that an "a law that is unjust does not seem to me to be a law at all."* The thought is also embraced by St. Thomas Aquinas who states (in his Summa Theologiae, IaIIae, q. 93, art. 3, ad 2) that "in so far as [a human law] deviates from reason, it is called an unjust law, and has the nature, not of law, but of violence."** These men were not prone to foolish prating, and though the former sometimes waxed eloquent with imprecise rhetorical flourish, the sober and precise scholastically-trained St. Thomas can hardly be accused of such. More respect ought to be given these thinkers than that which would state that whatever concern drove them to use such language is nothing but a "subordinate concern," or a "subordinate theorem." It seems to me not so much a subordinate theorem, but, properly understood, as a rather good short-hand synopsis (what Finnis depreciates into a "slogan") of their theory of law.***

It is true that the entirety of St. Augustine's and St. Thomas's thought on the natural law--its relationship to the eternal law, and the relationship of the positive law to both the natural law and eternal law, etc.--is more than this pithy saying. So we can agree with Finnis when he says:

The principal concern of a theory of natural law is to explore the requirements of practical reasonableness in relation to the good of human beings who, because they live in community with one another, are confronted with problems of justice and rights, of authority, law, and obligation. And the principal jurisprudential concern of a theory of natural law is thus to identify the principles and limits of the Rule of Law, and to trace the ways in which sound laws, in all their positivity and mutability, are to be derived (not, usually, deduced) from unchanging principles--principles that have their force from their reasonableness, not from any originating acts or circumstances.
NLNR, 351.

Still, Finnis throws us a bone and humors us with quite a good apologia for the statement that an unjust law is no law at all. He sets the groundwork for an explanation of the meaning behind the statement that an unjust law is as if it were no law at all by recapitulating the concept he has of law and the role of the lawmaker in promoting the common good of those under his care:
The ultimate basis of a ruler's authority is the . . . furthering [of] the common good by stipulating solutions to a community's co-ordination problems. . . . [A]uthority is useless for the common good unless the stipulations [read: laws] of those in authority . . . are treated as exclusionary reasons, i.e., as sufficient reason for acting notwithstanding that the subject would not himself have made the same stipulation and indeed considers the actual stipulation to be in some respect(s) unreasonable, not fully appropriate for the common good. . . .
NLNR, 351-52.

As Finnis notes, it is the purpose of law, its authority, and the reason behind the exclusionary principle (which therefore demand conscientious compliance by the citizen) that drive the reasoning implicit in the slogan that an unjust law is no law at all. The reasonable pursuit of the common good is the raison d'être of law: it is at the heart of its moral bindingness. Indeed, we can identify injustice by the variance of law from its purpose. Thus injustice can arise in four different ways:
  1. The ruler's authority is fundamentally focused on the common good. Passing laws that are aimed at something other than the public, common good (private good, the ruler's own good or a cadre of his friends, or a lobbyist group's advantage, or supportive of his personal ideology, or out of malice for a group or minority . . . the ways are legion) are at variance with the ruler's authority and the purpose of law, and so may give rise to injustice.
  2. The ruler may act ultra vires, that is, beyond his authority, thus making a law unjust. When all powers are concentrated in one person (legislative, executive, and judicial) this may not be as significant (though even here, the ruler, though he may have plenary legislative, executive, and judicial authority, he may act against custom or against some sort of higher law to which he is beholden).†
  3. The Rule of Law by its very nature redounds to the common good;†† accordingly, a law, stipulation, or means of enforcement which contradicts the Rule of Law may be easily classified as unjust. Therefore, "the exercise of legal authority otherwise than in accordance of manner and form is an abuse and an injustice, unless those involved consent, or ought to consent, to an accelerated procedure in order to cut out 'red tape' which in the circumstances would prejudice substantial justice." NLNR, 353.
  4. The law may be substantively unjust, either as a result of violating distributive or commutative justice. Accordingly, a law could violate distributive justice by taking from the common stock and unjustly providing it to a certain group or minority, by unfairly concentrating or imposing a burden that would more properly be shouldered by a larger group or the commonality as a whole. Similarly, commutative justice could be violated by a law if it denies a person, a group, or the whole commonality of a human (fundamental) right which can be exercised within any restrictions that might be imposed by the needs of public order, health, or other fundamental rights, etc.
For the reasons outlined above, laws can, and frequently enough are, unjust. (This injustice is based upon reason alone. Obviously, laws can be unjust because they contradict divine positive law [e.g., prohibit or discourage the proclammation of the Gospel as done in China or in Muslim countries], but then they would also contradict reason.)

What are the effects of injustice on that law? The question itself brings forth another question because we have to define the range of our inquiry. Finnis identifies four "scopes" of the question, and they seem to comprehend all possible meanings of the question, "what effect, if any, does a law's injustice have on that law being a law?"
  1. What "empirical liability" will one have if a law is unjust and one disobeys that law on the ground of its injustice? What are the practical chances of me being punished for disobeying an unjust law?
  2. What "legal liability" will one have if the law is unjust and it is disobeyed? What, within the positive framework of human law (bracketed from any moral question), will be the result of the violation of an unjust law? (Are there legal defenses or legal challenges to a law, such as does it violate due process, is it void for vagueness, or does it violate some provision of the Bill of Rights, etc.)
  3. What is the "legal obligation in the moral sense" to an unjust law. As we have discussed, positive laws enjoy a moral authority of sorts based upon their prima facie tie-in to the natural law and the common good. Can an unjust law still enjoy moral force, and if so, when?
  4. What is the "moral obligation deriving not from the legality of the stipulation-of-obligation but from some 'collateral' source"? Is there something extra-legal that would affect our moral obligation to obey the unjust law though the heavens may fall upon us?
Some jurists are impatient with some of these questions (the latter two, in particular) and suffer from "methodological obtuseness." So jurists of such stripe will "seek to banish the question, in some of its senses, to 'another discipline', or even declare those senses to be nonsense." NLNR, 354-55.Thus , for example, the positivists H. L. A. Hart and, before him, John Austin and Jeremy Bentham.

Now, to say that human laws which conflict with the divine law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity.

NLNR, 354-55 (quoting John Austin, The Province of Jurisprudence Determined (London: John Murray, 1832), 279.) (emphasis added). Silly Austin, it was he that was talking raving nonsense. Put blinders on, Mr. Austin, and your view is sure to expand. That's your argument? That's nonsense. But to get back to the point and to avoid ad hominem attacks on a man that can't defend himself . . . .

Back to the "scopes" of inquiry identified above. The concern of the first question's scope is, of course, the "bad man's" viewpoint of the law (a la Holmes) and it absorbs the concerns of the positivist who cannot look beyond it: "Am I or am I not likely to be hanged for non-compliance with this law?" is the only question. We mustn't dabble (in his view) with the question, "Is the law right or not?"

The second concern deals with legal attacks against the law. In some countries such defenses can void an unjust law. Frequently, "there are (and reasonably) quite a few opportunities of raising 'intra-systemically', for example before a court of law, the question whether what would otherwise be an indubitable legal obligation is in truth not (legally) obligatory because it is [legally] unjust." NLNR, 345-57. Unfortunately, this avenue is sometimes foreclosed by prior rulings, and so, for example, the extreme injustice and unconstitutionality of a case like Roe v. Wade, is, in practice law, and it cannot be argued against intra-systemically with any hope of reversal until the Supreme Court is rid of some of its ideologically-left-leaning members, the scruple given to the principle of stare decisis overcome, and a more intellectually honest and originalist jurisprudence governs the Court. The system sometimes fails, and Roe v. Wade--the legal Kristallnacht for fetuses in this country--was and is an abhorrent failure, from the perspective of constitutional law and natural law both.

A red and blue pencil.

Which brings us to the third sense. What happens when "one is confident that the legal institutions of one's community will not accept that the law in question is affected by the injustice one discerns in it?" Here, we may place the abolitionist prior to the Civil War, a member of the Confessional Church in Nazi Germany, the abortion protester in the contemporary United States. What hope would they find intra-systemically with the positive law--whether it be the Fugitive Slave Acts, or the Nuremberg Acts, or Roe v. Wade--and among the passions and mores of the people? What ought such folks do?

Here, the positivist wants to hide in positivist sands both his head and his discipline (ostensibly jurisprudence, a rather odd duck if we take both justice and prudence out of it), blue-penciling any deep, moral questions, not unlike one scratched through unwanted words in a contract in days of yore.

This enterprise may be severely criticized. First, such a bracketing is "artificial," and ignores the overlap between ethical, moral, and legal questions. Second, the very concept of law imports a standard of practical reasonableness, which is the same standard that is involved in moral questions. "Since there can be no sharp distinction between the 'two disciplines' [law and ethics or political philosophy] at that basic level, it is not clear why the distinction, if such there be, should be thought so very important at other levels." NLNR, 358. Third, one should be aware that the advocate of "bracketing" often only wants to "bracket" one version of morality, and suffers no similar scruple in importing his own into his jurisprudence (we may cite John Rawls as a chief offender, who sought to bracket the natural law jurisprudence, but disingenuously welcomed his own liberally-based jurisprudence with welcome arms in his system). The very importation of moral and political elements by jurists (even those who most fervently advance the separate discipline of jurisprudence) shows that law, morality and ethics, and political philosophy belong together. It is apparent that:

[T]he state of the scholarly literature testifies, so to speak, to what a sound philosophy of practical reason establishes abstractly: the principles of practical reasonableness and their requirements form one unit of inquiry which can only for a pedagogical or expository convenience which risks falsifying the understanding of all three.
NLNR, 359.

So Finnis, to his credit, has no such scruples, and he asks the very pertinent question: "What, then, are we to say in reply to the question whether an unjust law creates a moral obligation in the way that [a] just law of itself does?" NLNR, 359. What do we do if the emperor has no clothes, or if his clothes have "injustice" writ all over them? Is there a point beyond which the presumptive moral obligatory force of human law is overcome? And if so, when?

Finnis first of all sets the stage with a brief review of authority, its source and its purpose. Next, he sets forth some caveats. Finally, he answers the question point blank.

These will be the subject of our next posting.
*Nam lex mihi esse non videtur, quae iusta non fuerit.
**See also S.T. IaIIae, q. 95, art. 2 ("Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law." [Unde omnis lex humanitus posita intantum habet de ratione legis, inquantum a lege naturae derivatur. Si vero in aliquo a lege naturali discordet, iam non erit lex sed legis corruptio.])
***The principle has a Pagan pedigree. One sees it in Plato. See, e.g., Laws, IV: 715a-b:
Where offices of rule are open to contest, the victors in the contest monopolize power in the State so completely that they offer not the smallest share in office to the vanquished party or their descendants; and each party keeps a watchful eye on the other, lest anyone should come into office and, in revenge for the former troubles, cause a rising against them. Such polities we, of course, deny to be polities [οὔτ᾽ εἶναι πολιτείας], just as we deny that laws are true laws [οὔτ᾽ ὀρθοὺς νόμους] unless they are enacted in the interest of the common weal of the whole State. But where the laws are enacted in the interest of a section, we call them feudalities rather than polities; and the “justice” they ascribe to such laws is, we say, an empty name.

It is present in Cicero (De Legibus, II, v.11):
[t]hose who formulated wicked and unjust commands, thereby breaking their promises and agreements, put into effect anything but "laws".

Ex quo intellegi par est, eos qui perniciosa et iniusta populis iussa descripserint, quom contra fecerint quam polliciti professique sint, quidvis potius tulisse quam leges.

And, of course, we must not forget that classic Pagan source of unjust laws meriting disobedience: Sophocles's Antigone.
One thinks of the Fueros or basic rights that the King of Spain had to uphold as part of his assumption of kingship over various Spanish domains. For example, the Aragonese required the king to take an oath to uphold the Aragonese Fueros before the justicia who, in the name of the Cortes, and representing the people, would say: "Nos que valemos tanto como vos, os hacemos Rey y Señor con tal que nos guardeis nuestros fueros y libertades, y sino no." "We, who are worth as much as you, make your our King and Lord, provided you keep our laws and liberties, otherwise not." (Interestingly, cited by John Adams in his A Defence of the Constitutions of Government of the United States of America (Union, N.J.: The Lawbook Exchange, 2001), Vol. I, 393. But this could clearly happen if Congress passes an unconstitutional law, for example, or if the President violates the separate of powers doctrine by some act.
The Finnisian treatment of the Rule of Law has been addressed in prior postings. See Natural Law's Modern Cousin Germain: Rule of Law: What It's Not and Natural Law's Modern Cousin Germain: Rule of Law: What It Is

Sunday, April 24, 2011

Natural Law's Modern Cousin Germain: Voluntarism and Law

VOLUNTARISM IS THE NOTION THAT law and perhaps even all reality is, at its kernel, an act of will, and not an act of reason. The debate is perennial, though the answer, while fraught with difficulty, is plain enough. While frequently categorized as a dilemma (e.g., the Euthyphro dilemma)* or a fight among equals--Avicebron v. Averroes, Duns Scotus and William of Ockham v. St. Thomas Aquinas--the sound opinion, and certainly the Thomist solution, appears to be on the side of reason. The Thomist will say that the intellect recognizes being and being as good, and the will is then naturally attracted to the good recognized by reason. For a man, reason, then is the ultimate source of action, of value, of reality. Those opposed to St. Thomas will say that it is the will which determines what is good, and the will determines itself, as it is not determined by reason. Do we love something, desire it, because it is good? The Thomist will answer yes, the Ockhamite no. Is something good because we love it, desire it? The Thomist will answer no, the Ockhamite yes. Some, like perhaps Suarez, try to straddle both sides of the issue.

Is Moses holding God's Will or God's Reason?

The question of whether reality or law is principally will or reason extends out to the very basis of reality and of law--to the eternal truth to the eternal law, and the participation of eternal law we called the natural law. Is moral obligation ultimately predicated upon God's will or God's reason? For Finnis, the answer is plain:

The grounding of ethical obligations in God's will becomes a prize specimen amongst conceptual fallacies collected for exhibition in elementary philosophy books.

NLNR, 343.

But the question persists, and moderns still ask the question and align themselves on either side of the watershed, with all positivists--Bentham, Austin, and Kelsen among them--on the wrong side.

*Plato, Euthyphro, 10a (ἆρα τὸ ὅσιον ὅτι ὅσιόν ἐστιν φιλεῖται ὑπὸ τῶν θεῶν, ἢ ὅτι φιλεῖται ὅσιόν ἐστιν: Is the pious loved by the gods because it is pious, or is it pious because it is loved by the gods?)

Saturday, April 23, 2011

Natural Law's Modern Cousin Germain: Lex Pure Poenalis

ACCORDING TO JOHN FINNIS THERE IS a division between the advocates of the lex pure poenalis theory (whose representative we might make Suarez) and the Thomists who generally do not support the notion of a law purely penal. The difference between the two schools is, in Finnis's view, the result of their notion of the human act. Essentially, the difference between the Suarezians and the Thomists on this issue is the result of their telescoping their views of a human act into the legislative process. The problem comes from their respective views of the ultimate role of the will--both in an individual man's actions and (by telescoping) in the legislature's actions. It is part of a historical tendency to elevate will over reason, in both human activity and in law and politics.
In short, in examining the purely penal law theories, with their attribution of all moving and obligatory force to the lawgiver's will, we are examining one limited aspect or offshoot of that vast movement of thought which has sought, with overwhelming historical success, to expel from the analysis of individual and political action all systematic attention to the intelligibility of the good which are realizable in action.
NLNR, 342.

Suarez v. Aquinas
Is Will or Reason Supreme in Law?

For a Thomist (as well as for a Suarezian), a human act is a series of interacting human capacities: there is (i) the cognitive grasp of an end or objective (an act of reason); (ii) there is the elicited desire for that good (an act of will); (iii) there is the practical reason's efforts to find means to that desired end (an act of practical reason); (iv) there is the decision to terminate the means-to-end analysis and to act (an act of will). NLNR, 337-38. Up to this point there is agreement between the Thomist and the follower of Suarez.*

Suarez, however, stops his analysis there, and attributes the final internal action required before the completion of the human act to the be internal decision to terminate the means-to-an-end analysis and to act, which is an act of will. For the Thomist, however, there remains one more step: an executive command or imperative order (an imperium) which is, at root, a directive of reason to oneself.** Suarez, on the other hand, finds Aquinas's imperium to be "unnecessary and indeed impossible, 'certainly a fiction'." NLNR, 339 (quoting Suarez, De legibus, I, c.5, para. 6; c. 4, para. 4).***

It is this subtle difference between St. Thomas and his intellectual opponents (which includes Vasquez and Suarez) as to the human act that explains the difference between them in the legislative act, since both seem to analogize from the human act to the legislative act. So, for St. Thomas, "[t]he important thing is that the expressed imperium, the promulgated 'intention of the legislator', represents to the subject an intelligible determinate pattern of action, which, having been chosen by the lawgiver to be obligatory, can actually be obligatory in the eyes of a reasonable subject because the ruler's imperium can (for the sake of the common good) be reasonably treated by the subject as if it were his own imperium." NLNR, 341.†

For, just as an individual's imperium, his formulated resolve to act, motivates his exertions by being transparent for the value of his objectives and the appropriateness of teh chosen means to them, so in the eyes of the subject the ruler's imperium is compelling precisely be being transparent for the common good, tot the needs of which the ruler's stipulation is treated by the subject (who recognizes the need for authoritative resolution of social problems) as a relevant response.

NLNR, 342.

While Suarez and Vazquez apply the notion of imperium to the legislative command, they see it "primarily as an expression of the lawgiver's decision (to impose an obligation)." As a consequence, "the important thing for them is the act of will (decision) thus expressed and addressed to subjects." Finnis believes that Suarez (mistakenly), then, "makes the point that unless the lawgiver decides to make obligatory the pattern of action which prefers, it will not be obligatory," which menns that "what makes the conduct actually obligatory is, precisely and simply, the lawgiver's decision that it should be."†† NLNR, 341.

What takes precedence in man's law in foro interno and in man's law in foro externo? Is it reason or is it will? Does the good precede the right, or does the right precede the good? Is the gist, the kernel of law rationalism or voluntarism? The Thomists will stand on the side of reason. The advocates of purely penal law, as well as most moderns, will stand on the side of will.
*In assessing the thought of Suarez and Aquinas, one ought not to look at reason and will as wholly separate or reified or personified faculties within a man. The one-and-the-same person reasons and wills, and the reason and will "are psychologically entirely interdependent and only analytically distinguishable." NLNR, 338, n. 37. The various steps are not even to be considered to occur separately and seriatim: they are not "necessarily chronologically extended." NLNR, 337.
**Finnis cites to S.T. IaIIae, q. 17, art. 1: "Command [imperare] is an act of the reason presupposing, however, an act of the will. . . . . Consequently it follows that command [imperare] is an act of the reason, presupposing an act of the will, in virtue of which the reason, by its command [imperium], moves (the power) to the execution of the act." [I]mperare est actus rationis, praesupposito tamen actu voluntatis . . . . Unde relinquitur quod imperare sit actus rationis, praesupposito actu voluntatis, in cuius virtute ratio movet per imperium ad exercitium actus."
***Finnis also refers to Gabriel Vasquez who in his
Commentarium Ac Disputationum in Primam Secundae, disp. 49, c. 4 (which addresses St. Thomas's Summa Theologiae, IaIIae, q. 17, art. 17, ad. 1). Vasquez states that the Thomist notion of imperium was "unnecessary," "inept," and "futile." NLNR, 339 n. 39.
†Finnis cites to S.T. IIaIIae, q. 50, art. 2, c. and ad 3; q. 47, art. 12, c.
††Finnis cites to De legibus, I, c. 4, paras. 7-8; c. 5, paras. 16, 19.

Friday, April 22, 2011

Natural Law's Modern Cousin Germain: Obligation and Legislative Will

JOHN FINNIS ACCUSES ALL advocates of purely penal law* of trading in fictions, a "comedy of fictions," specifically fictions that tie in obligation to legislative will. But before dealing with that issue, there are also some factual and legal objections that may be noted.

The factual objections to the theory arise from the factual fictions that are required for the theory's exercise. It would be a rare legislator that would formulate the intent in passing a law with a penalty that he was offering the citizenry an option between obeying the law and avoiding the penalty or disobeying the law and paying the penalty. Disjunctive legislative intent--which is what is required for the purely penal law advocates' theories to have any validity--seems dubiously lacking. Even less likely is the legislator who would think that adding a penalty to a legal proscription is a "trump" card out of the moral obligation to follow that law. It is probably the case that legislators have some sort of sense that a certain behavior ought to be proscribed because it is best for the common good that it be proscribed and any penalty associated with violation of the law is to add law's sanction, to provide a disincentive to disobeying the law, and to advance the pedagogical, retributional, and reformational characteristics of the law. The factual basis for the purely penal law theory is, in Finnis's view, sorely lacking.

The second problem is that the theories confuse, or at least are calculated to confuse, the difference between a tax and a penalty, in that the theories invariably make what is a penalty into something much more akin to a tax.

The third problem is more fundamental in Finnis's view. The "real basic difficulty" of the theory "lies in the very notion which gives the theory its perennial plausibility and popularity," that being that notion that if a legislator can absolutely prohibit an act, he has the authority to do the lesser, namely, providing the option to the citizens either to avoid the act or to pay a fine or penalty if they infringe. The problem with this notion is that it obfuscates the source of any binding nature of positive law that being the moral "higher" or "deeper" principle. In other words, it is not legislative will alone that determines whether a law ought to bind or not bind, it is the legislative will coupled with the moral foundations behind that will that couple to make law binding:

By his decision to stipulate that φ is legally obligatory for X, a person with authority to make laws brings it about that (i) φ is legally obligatory and thus (presumptively) that (ii) φ is morally obligatory. . . . [but] these consequences flow not from any 'force' of the lawgiver's 'superior will', but from the interrelationship between (a) the fact that he has thus decided and (b) a 'higher' (or 'deeper') principle that makes that fact legally and/or morally significant.

NLNR, 334. The problem arises in that the legislator is not really a moral legislator; he is not a "moralislator." The moral obligation arises not from the legislative will,** but from a prior "higher" or "deeper" source, namely the relationship of the law to the common good which the law is intended to advance. If a law prohibiting some behavior derives its binding power from the fact that prohibiting that act is aimed that advancing the common good, then it is the very prohibition of that act that advances the common good, and not the application of a penalty, which has no real relationship to the common good. It is as if the legislator puts his law, like some child his toy boat, on the stream of the natural law; the legislator does not make the stream. The moral obligation to obey a law arises when the law prohibiting a certain act (or commanding a certain act) is passed and promulgated for the purpose of advancing the common good; the attachment of a penalty does not minimize that obligation.
[t]he lawgiver's acts of will have their significance for the practical reason of other people only because can take their place in a normative framework which is not of the lawgiver's making. That framework has no place for legislative 'intentions' (or 'acts of will') to withhold or modify moral obligations; for such intentions, if they had their intended effect, would seriously weaken the clarity and certainty and uniformity of application which are the very bases of law's utility as a specific way of realizing the common good.
NLNR, 335. It would therefore constitute an abuse of legislation to allow for a disjunctive law when the common good demands an outright prohibition of a certain act, an outright prohibition subject to sanction.

This is not say that a legislator cannot intentionally pass disjunctive statutes. In fact, something akin to that is done in cases of taxes that are imposed with the use of certain objects (e.g., cigarettes or liquor) or levies upon certain conduct (e.g., importation of luxuries). A sense of that is also found in cases where certain acts are prohibited unless licenses are obtained (and paid for) (e.g., hunting or fishing). In these sorts of cases, there is no prohibition to doing the act φ (or obligation to do act φ); rather, at best the legislator (often only implicitly) exhorts that act φ not be done without some prior act (license, payment of tax, levy) or that act φ be done (unless one obtains a license, pays a tax or levy). There is therefore no question of any moral obligation because the injunction to do or not do φ has no legal binding effect if the condition excusing it (tax, levy, license) is met. But this is a different beast altogether from the ordinary penal statute that contains a punishment or sanction for its violation. There is therefore an odd mix-up or blending of two different kinds of legislative acts in the thinking of the advocates (such as Francisco Suarez) of the theory of purely penal law.

*As we noted in our prior posting a "purely penal law" (lex pure poenalis) is one which does not prohibit an action absolutely, but simply imposes a penalty in case one is convicted of its violation. Thus under the theory's notion, the legislator leaves it, in a certain sense, to the choice of the subject whether he will abstain from the penal action, or whether, if the violation is proved against him, he will submit to the penalty. Under the theory, there is no strict binding of the conscience to abstain from the prohibited act. There is a disjunctive (either/or) choice given the subject: either forego the act (obey the prohibition) or submit to the fine or penalty if caught and convicted of the act's violation.
**Finnis would say that the legislator (and his will) is an efficient cause of the moral obligation that arises from a promulgated law, but that the formal cause of that moral obligation of a law is the benefit to the common good. Finnis repudicates Locke's notion (found in his sixth Essay on the Law of Nature) that the "formal cause of obligation [is] the will of a superior." NLNR, 337 n. 35 (quoting Locke).