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.

Monday, September 12, 2011

Determining Rachel

CLASSIC THOMISTIC THEORY OF NATURAL LAW distinguishes between self-evident principles, conclusions, and determinations* of natural law. The self-evident principles and, to a large extent, the conclusions are matters that most will not disagree on, and are generally considered to be those sorts of matters which, in J. Budziszewski's expression, we can't not not know. Self-evident principles are matters such as we ought to do good, and avoid evil. Conclusions include such matters as one ought not to kill an innocent human being or commit adultery. The self-evident principles and conclusions must then be extended out to reach out all sorts of behavior. Some of these determinations are more clear than others (if they, say involve general principles: you should not use artificial contraception), whereas others clearly get into prudential decision and run into the gray of factual determinations (e.g., whether a war is just or not, what punishment, if any, ought to be assessed against certain behavior, e.g., assault with a deadly weapon). These determinations, though they may vary diversely from place to place, from time to time, from culture to culture, are still informed by the natural law, and are therefore binding. The determinations can be made both by individuals (in moral decisions) and by properly constituted authority in laws. In both events, the moral law informs the determinations.

Jacob and Leah by Erwin Speckter (1806-1835)

A classic example of determinations is the rule that one ought to drive on the right-hand side of the road. In England and other places influenced by England, as everyone knows, the rule is to drive on the left-hand side. These are determinations of a general natural law rule that the properly constituted authority has an obligation to pass reasonable laws so as to reduce the fatalities associated with the activities of its citizens to the benefit of the common good. Once, however the determination is made by properly constituted authority (or custom) to drive on the right side of the road, it would be a breach of both that particular law (or custom) and the natural law to drive on the left side.

Sometimes, these determinations are self-imposed as a result of choices that an individual makes. An example that J. Budziszewski gives in his short book Natural Law for Lawyers,** involves marriage. He plays off the biblical story of Leah and Rachel as an example of how a person can freely determine the natural law, but, once having made his decision, the natural law becomes highly specific.

A man (we shall call him Jacob) has the choice of one of two women as wife: Leah or Rachel. Suppose that Leah and Rachel are equally attractive to him, and equally virtuous. Let us suppose that, for whatever reason, Jacob loves Rachel more than Leah, and so chooses her to be his spouse. From a prudential (and moral) perspective, he could have chosen Leah without any fault. From a prudential (and moral) perspective, he chose Rachel, without any moral fault. But he has freely selected Rachel to marry.

However, once having chosen Rachel over Leah, he has chosen "the goodness of who-Rachel-is over the equal but different goodness of who-Leah-is, not because Rachel is more good in herself than Leah but because she seem more good to him." Budziszewski, 85. But this freely-made determination binds him, and makes the general moral precept that he should not commit adultery very specific: he may not engage with sexual relations with anyone except his chosen Rachel.

*The topic of determinations is treated in various prior posts, but is extensively discussed in Natural Law's Modern Cousin Germain: Law's Relationship to Law
**J. Budziszewski, Natural Law for Lawyers (Nashville: ACW Press, 2006).

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