Duns Scotus: Natural Law and Pure Divine Positive Law

ONE MAY BE TEMPTED TO THINK that Scotus's emphasis on the primacy of the will over intellect would result in his falling into voluntarism, where law is all will, there being no reason which can limit the will of the legislator. If law, including that law promulgated by God either in the divine order or the natural order, is a matter of divine inscrutable fiat, of absolutely untrammeled free will, then reason's role disappears. The law is irrational, or at least arational: and what has no basis in reason cannot be discovered by reason.

Scotus, however, maintains that reason can discover the natural law. But his doctrine on the natural moral law differs from that of St. Thomas, particularly in its treatment of that divine summary of the natural law, the Ten Commandments or Decalogue. In the next few blog postings will shall review Scotus's view on these matters.

Scotus insists, against a pure voluntarist, that the natural law can be known by reason, and in two ways. A "practical truth of natural law," Scotus says, is known in one of two ways:

[It] is either one whose truth value can be ascertained from its terms (in which case it is a principle of natural law, even as in theoretical matters a principle is known from its terms)or else one that follows from the knowledge of such truths (in which case it is a demonstrated conclusions from the practical order). And strictly speaking, nothing pertains to the law of nature except a principle or a conclusion demonstrated in this fashion.

Ordinatio IV, dist. 17(Wolter, 195). The prescriptions of natural law, then, are either self-evident or are conclusions that immediately or proximately derive from from those self-evident prescriptions. This is what "natural law" is strictly speaking. Scotus does recognize another sense of the term "natural law," and "extended sense," where natural law is understood as a "practical truth that is immediately recognized by all to be in accord with such a law." There is therefore in Scotus a recognition that natural law arises both as a result of reason and as a result of inclination or custom, but the later is not the natural law, strictly so called.

Blessed John Duns Scotus

Scotus is thus critical of Gratian's expansive definition of natural law.* Gratian defined the natural law as that which is contained in the law and the Gospels ("Ius naturae est, quod in lege et evangelio continentur . . ." D.1, P. 1, C. 1.) This definition of the natural law presupposes revelation, and it does not accord with a strict understanding of natural law as law that is known by reason, either from self-evident principles of practical reason or from conclusions rationally derived from those self-evident principles:

Gratian does not speak correctly about the law of nature when he has in mind to include all that is in the Old and New Testament Scriptures under the law of nature, because not all this represents practical principles known from their terms or practical demonstrated conclusions, or even truths that are evidently in accord with such.

Ordinatio IV, dist. 17 (Wolter, 195) What Gratian means by "natural law" so defined, according to Scotus, is really the "positive law of the author of nature," as distinguished from the "positive law as stems from one who is not nature's author," i.e., man. The positive law of God (which may or may not be also contained in the natural law as strictly defined by Scotus) is what is contained in the Law and the Gospels. That part of the divine law that is unknown by or through reason (through self-evident principles or conclusions) "pertains purely to divine positive law." Pure positive divine law is beyond reason's reach; however, it would be a mistake to believe that Scotus would suggest that pure positive divine law is against reason. Pure positive law and the natural law strictly so called have the same Divine Legislator, and so they are not at odds with each other. However, pure positive law imposes obligations that are unknown and unknowable to the natural law and the use of reason. Examples of pure divine positive law are the ceremonial laws of the Jews, e.g., the laws pertaining to animal sacrifice, or the Sacraments and other rites that Christ gave his Church, for example, the sacrifice of the Mass, confession, etc. The underlying obligation to worship the true God, however, is one of the natural law, because regardless of how God may, in positive legislation, decree that it be done, the act of worship is one that is immutable and self-evident from the proposition that God exists. But the obligation of worshiping God, which is one of the natural law, should be distinguished from the question of how it is to be done, which is one of pure divine positive law.

For it is not known from the terms of the [natural] law that God ought to be worshiped by the animal sacrifices of the Old Testament, and that for all times, or by our ceremonies, for instance, the Eucharistic oblation or chanting the psalms, even though these may be consonant with the law of nature in the sense that they are not opposed to it.

Ordinatio, IV, q. 17 (Wolter, 196). The divine positive law can change, depending upon time and place; however, "whatever pertains to the law of nature, either properly or extensively, is uniform." Ordinatio, IV, q. 17 (Wolter, 196) Scotus clearly believes in the immutability of natural law, and in fact its immutable nature is one way of knowing that what we have before us is a natural law precept as distinguished from a precept of positive law.

This discussion of the natural law and its relationship to purely positive law occurs during an exploration of the issue of auricular confession to a priest. For Scotus, the obligation to confess to a priest is a matter of pure positive divine law, part of the New Testament revelation. Obligations may be further imposed as a result of ecclesiastical positive law. However, the natural law has an immutable confessional law, a law which Scotus explains is as follows:

[W]e know by the natural light of the mind that a guilty person must be judged, or at least we recognize that this is highly in accord with a proposition that is known in this way. For no sin should be left unpunished anywhere if there is one ruler of the universe and he is just--something we know naturally or recognize as exceedingly in harmony with what we do know in this way. I even concede further what is said about the necessity of another as judge. But just who is this other? From what is known by natural reason, or from what is consonant with this, such a judge would be God alone, the one who rewards merit and punishes sin. . . . . But from all this it follows only that sin should be confessed to God. . . . [T]his sort of confession pertains to the law of nature, that is to say, it is consonant with the truths that pertains to the law of nature and hold good in every state after the Fall, for just men who believed in God as a ruler of the world who punishes justly, would have behaved as follows. After they had sinned, they would confess their sins to God, begging his pardon, knowing full well that without such remission, he as a just judge will avenge such sin.

Ordinatio IV, q. 17 (Wolter, 197-98).**

One thing lacking from the natural law of confession, however, is the assurance of forgiveness. This is something that Budziszewski has stressed in much of his writing on the natural law. There may be a hope for forgiveness implicit in the begging for forgiveness, but knowledge of divine forgiveness is something that is revealed. For Christians, that knowledge of forgiveness is afforded by the generous love of God as manifested in the Word made flesh, and in his passion and death on the Cross. The divine seal of that sacrifice or oblation is given us by Christ's resurrection from the dead. In Christ, and in the Church he founded and the sacraments he instituted, is found that forgiveness that the natural law's law of confession only hopes for.

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*We have addressed Gratian's definition of natural law as what is contained "in the Law and the Gospels" (in lege et in evangelio continentur) in Gratian and the Natural Law: Concordance and Discordance in the Natural Law, Part 1 and in Gratian and theNatural Law: Concordance in the Natural Law, Part 2.
**Blessed Scotus's opinion here accords with St. Thomas's likely opinion, who states in his Summa Theologiae: "Hence confession, which is of sacramental necessity, is according to Divine, but not according to natural law." S. T., Supp. q. 6, art. 2. (St. Thomas never completed the treatise on penance, so the supplement is not, strictly speaking his work. The supplement was probably compiled by St. Thomas's confrere Fra Rainaldo da Piperno. But in this regard certainly, it represents Thomas's view.)