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.

Thursday, July 7, 2011

De Testimonio Quatuor Testibus: Consequentia Naturalis

SANCTION IS SOMETHING TYPICALLY SEEN closely tied to law, although St. Thomas Aquinas does not make it part of law's essence. Sanction is only necessary if law is violated, and the violation of law is not an intrinsic quality of law itself. Rather, violation of law is something that is a defect of the person who is subject to the law. For St. Thomas, the fact that there may be sanction or penalties attached to a law's violations, is not part of the reason to obey the law. The law has reason of its own, a ratio ordinis, independent of the sanction. "The reason the act is wrong is that it is contrary to the common good, and declared as such by public authority." True, in a fallen world, a man may not give one whit about the common good, and he may be motivated only by his private good. In such instance, the sanction gives an additional reason for obedience to the law, but it is a collateral reason, not one intrinsic to the law. The penalty or sanction is also pedagogical and, for the Holmesian "bad man," may provide additional motivation for obeying that law, sort of like the motivation a professor with a switch exercises over a student, who should rather be motivated to learn, than to avoid corporal punishment. In such instance, "[t]he civil penalty instructs him that the act is wrong, and provides a further motive--if he needs one over and above the sheer wrong of it--for avoiding it." Budziszewski (2003), 95.

In many cases, positive law determines the common good. Whereas the common good was undefined before the law, it is defined or determined by the very act of promulgating a law. In instance of this is a law requiring us to drive on the right side of the road. Before the law, there was no obligation to the common good to drive on the right side; whereas after the law there was such an obligation. The link between driving on the right side of the road and the common good was thus determined by the very promulgation of the positive law.

As discussed above, penalties or sanctions are for instructing or encouraging conformity with the conduct prescribed (or discouraging conformity with the conduct proscribed). It is one of the symptoms of this world that sometimes the very sanction meant to encourage obedience to law gives a greater reason for disobeying other laws (in order to avoid the sanction). Thus, a man who runs a red light may end up speeding and breaking yet another law to avoid the sanction associated with running the red light. A man might perjure himself and bear false witness against an innocent man to avoid being convicted of a crime himself and suffering the penalties associated with that crime. In times past, a woman who was guilty of adultery and became pregnant, might further break the law and obtain an abortion.

The natural moral law is, in St. Thomas's view and in any classical view, real law, and it also has a sanction analogous to the sanction we commonly see in the positive law:

Just as there are civil penalties for breaking the human law, so there are natural penalties for breaking the natural law--and for those who don't read the road signs, they are one of the ways that it is known. This too is part of our design, but it is the way the design kicks back when we ignore it: the witness of natural consequence.

Budziszewski (2003), 96.

What are these sanctions? For one, guilty knowledge which, if suppressed as it frequently is, unleashes the "furies" of conscience. But there are also natural physical or moral consequences frequently associated with especially chronic violations of the natural law. There are frequently adverse consequences to the natural law's breach. Chronic lying leads to the fact that no one will trust you. Betray your friends and soon you will have none. He who lives by the sword will often die by the sword. If you allow unmitigated premarital or extramarital sex (or divorce), your society is going to have increased sexually transmitted disease and increased family problems. These are just some samples of evils that befall those who habitually violate the natural law.

It is important to recognize that the adverse consequences to breaking the natural moral law (the sanction) is not what gives the reason for obeying the law. Thus, if the consequences are somehow adverted (e.g., if artificial contraception is used to avoid the natural consequence of premarital sex, to avoid pregnancy and its burdens, and avoid sexually transmitted diseases), the reason behind the law remains entirely untouched. So (in our example) even if all chance of pregnancy and sexually transmitted disease is removed, and there are no seeming adverse consequences, premarital sex is wrong because it violates the intrinsic relationship between the sexual act and its unitive and procreating meaning which is expressed authentically only in a monogamous marriage for life., a necessary prerequisite for the moral education of children. Moreover, though all sorts of psychological techniques and technical means (e.g., drugs) might be used to assuage the conscience, one cannot suppress it entirely.

Similar to positive laws that determine the good, the natural law has determined the good. Just like, in the example above, a declaration that citizens should drive on the right side of the road determines the good, so does the natural law determine our good. In the case of humans, that determination is made by God the creator, who, in fashioning human nature, made certain determinations which bind now both Him and us. God has decreed a particular order, and in his freedom consonant with His nature, he presumably could have decreed another. But the fact that he has decreed the particular order under which we find ourselves means that the order is normative to us. God has determined the good, and our freedom is fundamentally different from God's freedom. We are confined to exercise our freedom within the determination of the good as fixed by God:
[Contemporary man, however, doesn't] want the freedom of the creature but the freedom of the Creator--not freedom to be good, but freedom to determine the good. Maybe this is not so new after all, for it was the first temptation: to be "like God knowing good and evil."
Budziszewksi (2003), 100.

Finally, although the natural law has sanctions and penalties, these are not (in this world) "perfectly efficient." Moreover, "up to a certain degree of corruption in the will of the person subject to the law," the penalty may actually discourage a violation. However, "beyond that point," the sanction "actually provides a motive to go further."* Budziszewski (2003), 101. Our society manifests the corruption of will in the area of sexual mores. In a better ordered society, the natural consequence of premarital sex (like any other sex, pregnancy, and the burdens of raising a child and, if chronic, sexually transmitted disease) would discourage irresponsible sexual behavior. In a corrupt society, however, such natural sanctions actually encouraged further violations of the natural law--encouraging use of artificial contraception and blocks or remedies for sexually transmitted diseases--and an essential suppression of the virtue of chastity. When that fails, then abortion is the remedy. To avoid the consequence of one sin (unchastity), one has followed into the horror of another sin (murder).

The avoidance of the physical consequences of violating the natural law lead to greater wrongs, and there is a similar analogy that occurs in what Budziszewski calls the "noetic natural consequences of our acts," that is, the guilty knowledge we have of violating (and the subsequent suppressing) that which we cannot not know. It is common that a person commits a greater wrong to suppress, cover, avoid, or run away from the guilty knowledge that accompanies an earlier wrong. A woman who has had an abortion may resort to drinking, using drugs, and other self-destructive behavior in a (ultimately vain) way to out run or avoid the painful consequence of her first sin.

*As Budziszewski notes, this disincentive caused by sanction is the reason that the rigor of the positive law, though it should promote the natural law, has to consider the virtue of its citizenry, lest the penalty become motive for further crime. "This is one of the reasons . . . why human law should never be too far in advance of the level of virtue which the majority of the citizens have already achieved."

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