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.)

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.

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.
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*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

Natural Law's Modern Cousin Germain: Law's Relationship to Law

IN DISCUSSING THE RELATIONSHIP BETWEEN positive human law and the natural law, Finnis tries to fit in his theory of the relationship with traditional understandings of that relationship. It is not entirely convincing that with the Finnisian theory of natural law we are dealing with the same thing as the traditional, classical theory of natural law. It is in this nexus between human law and the natural law were Finnis's theory seems to depart, to degree if not entirely in kind, with the notions reflected in every theory of natural law which is that the human law is derived from and finds it source in the natural law and, ultimately, the eternal law itself. As an example of this traditional teaching, Finnis cites the 16th century words of St. Germain's Doctor and Student:

In every law positive well made is somewhat of the law of reason . . . and to discern . . . the law of reason from the law positive is very hard. And though it be hard, yet is much necessary in every moral doctrine, and in all lows made for the commonwealth.

NLNR, 281 (quoting D&S, I, c.4). This doctrine of St. Germain's is traditional. It is essentially identical with that of St. Thomas Aquinas: Omnis lex humanitus posita intantum habet de ratione legis inquatum a lege naturae derivatur. Every human law posited by man has the character of law insofar as it is derived from the eternal law. S.T. IaIae, q. 95, a. 2, c.

The relationship between positive law and natural law is most evident in certain laws that tightly bound with precepts of the natural law law. An example of this may be the criminal law against murder. St. Thomas would say (S.T., IaIIae, q. 95, art. 2, c.) that such a positive law is related to the natural law "by a process analogous to deduction of demonstrative conclusions from general principles," NLNR, 281, and consequently part of these laws' force comes from the natural law. Hooker, for his part, calls these sorts of laws "mixedly human" because they are a sort of admixture of human and natural law. NLNR, 281. (On the Laws of Ecclesiastical Polity, I, c. 10, sec. 11). Finnis calls St. Thomas's insight as "fundamentally correct, but vaguely stated and seriously underdeveloped." NLNL, 282. He finds Hooker's expansion not useful.

Finnis in some ways seems embarrassed by the traditional doctrine. Finnis avoids the term "natural law," and instead explores the question as one being the "relationship(s) between the particular laws of particular societies [i.e., particular positive laws] and the permanently relevant principles of practical reasonableness." NLNR, 281. He observes several qualities of human positive law that distinguish it from natural moral law:

1. Human legislation is generally written in propositional or indicative statements, not in hortatory or normative statements. The natural law would urge in the form of a command: "Do not kill!" State law would generally state it in a manner thus: "a person commits the offense of murder if he intentionally or knowingly causes the death of an individual." Finnis sees this characteristic as being one related to the acknowledgment that what's involved in the passage of law is the "pattern of a future social order," and that the language attempts "to reproduce that order." NLNR, 283.
   
2. Human law adds another level of reasoning since the "legal rendering of social order" provides the matrix for "a new train of practical reasoning." The law-abiding citizen therefore has more than the natural law to lean on; he may also lean upon the human law itself as defining for him the moral law in any given instance. He need not each and ever instance go back to fundamental principles, but may rely on the "artificial reason" of the law, as Edward Coke so adequately described it. Not only is it a new way of thinking, but it also gives a "distinct new motive for the law abiding citizen."
   

The example of murder is, of course, an easy one to work with because it is so intertwined with an intrinsic moral precept commonly and easily recognized that we ought not to take the life of someone who is innocent. The interrelationship between positive law and natural moral law (or the requirements of practical reasonableness) appears much more tenuous, perhaps even difficult to see when we deal with laws that seem to involve less strictly moral subjects, more jejune, even arbitrary decisions (such as that every-popular example of whether the state ought to decide whether drivers should drive on the right side or the left side of the road). The former type of laws (such as the laws against murder) Aquinas saw as derived from the natural law "like conclusions deduced from general principles," where these other types of laws were "like implementations [or determinations, or concretizations: the Latin term used by St. Thomas is determinationes, and it has no English equivalent by which it may be translated] of general directives."* NLNR, 284. Some of these determinationes are indeed so far-removed from, or only so-obliquely or tangentially related to, their original natural law basis that they become, as it were, authoritative "wholly from human law," as St. Thomas would say, or are, what Hooker calls "merely human laws." NLNR, 285.**

Perhaps the best way to understand the role of determinationes is to use the analogy of an architect. An architect knows that a house must have a means of entry and exit, a door, and knows further that such door must have some means of opening and closing it, say a knob, or handle, or similar device, and some means of security, a lock, deadbolt, chain, etc., to prevent those who we do not want opening it to open it. The determinationes or application, concretization, instantiation, or implementation of these general requirements and the freedom of action allowed an architect is virtually limitless yet in each and every instance he has remained faithful to the general requirements to have an instrument to allow opening and closing the door and unwanted access prevented.

"Determinationes" of "Door Entry Devices"
Should Human Law Have Less Freedom?

Why should the art of human law be any different from the art of architecture? Why should it trouble us that human laws can display such diversity and imaginative creativity, adaptability and arbitrariness, uselessness and utility, artistic beauty and simplicity, sophistication and intricacy and primitiveness and yet remain intrinsically faithful to, based upon, or tied with the natural law as determinationes? Indeed, no natural law theory is concerned with limiting the exercise of human freedom and ingenuity in the passing of laws, but is concerned with providing them legitimacy. "The tradition of natural law theorizing is not concerned to minimize the range and determinacy of positive law or the general sufficiency of positive sources as solvents of legal problems." NLNR, 290. Essentially, natural law does nothing other than insist that human laws ought to be human, and not inhuman. The laws ought to be in conformity with nature, and not disharmonious with it. The laws ought to be in accord with reason, and not unreasonable. Such constraint is hardly a constraint. To say that laws ought not be inhumane, that laws ought to be consonant with the deeply-felt needs of human nature, that laws ought to be reasonable constrains only those (and there are unfortunately sufficient of them around in history and at present) who wish to impose inhumane, unnatural, vicious, and irrational laws upon their fellows.

But ordinarily, in the area of "second order" decisions, the freedom of action is truly marvelous. How much of each handle or its ornament is due to the original need for a means of entry and exit, and how much is just sheer human ingenuity? It some cases it is hard to tell apart. In every case, however, there is the fundamental requirement that must be complied with, and the human ingenuity and independence that is--within the fundamental requirement that a door entry device comply with its nature--entirely free.

So the law that we drive on the right side of the road at at the maximum speed of 70 mph may be viewed in two ways. First, from the principle that gives it its force. Second, from the human component that fleshes the general principle out.

There is a sense in which . . . the rule of the road gets 'all its force' from the authoritative custom, enactment, or other determination which laid it down. For until the stipulation 'drive on the [right], and at leass than 70 miles per hour' was positived . . . there was no legal rule of the road . . . . But there is also a sense in which . . . the rule of the road 'gets all its normative force' ultimately from the permanent principles of practical reason (which require us to respect our own and others' physical safety) in combination with non-posited facts such as that traffic is dangerous and can be made safer by orderly traffic flows and limitation of speed . . . .

NLNR, 285.

A similar area is the institution of private property. Private property is a requisite to the efficient use of material goods necessary for human flourishing. In a general sense, the institution of private property is one of natural law, and so it participates even in the eternal law. But there will be a whole slew of subordinate laws that will address the definition, protection, transfer of such property rights, and these latter--all of which will be at the level of the determinationes will be at the discretion of properly constitute authorities and obtain their force from them. For example, whether a transfer needs to be filed at some public office, or notarized, or whether some property rights may be lost by adverse possession for a requisite number of years, and under what circumstances, etc. are determinationes left at the liberty of the law-making authorities.

Thus, the legislative (and to a limited extent--in the interstices of the law--even the judicial) will be one focused on the determinationes, and only rarely will their be the need to focus on the "first order" questions. The "second order" questions will itself be governed by rules, propositions, principles, and maxims, some of which are closely-tied to "first order" questions (e.g., the prohibition of ex post facto laws), some of which are requisite to a reasonable legal regime (i.e., the Rule of Law) (e.g., legislative intent is derived from the words of the statute), some of which are principles of practical prudence and experience (e.g., stare decisis: laws ought not to change without good reason).

In sum: the derivation of law from the basic principles of practical reasoning has indeed the two principal modes identified and named by Aquinas; but these are not two streams flowing in separate channels. The central principle of the law of murder, of theft, of marriage, of contract . . . may be a straightforward application of universally valid requirements of reasonableness, but the effort to integrate these subject-matters into the Rule of Law will require of judge and legislator countless elaborations which in most instances partake of the second mode of derivation. This second mode, the sheer determinatio by more or less free authoritative choice, is itself not only linked with the basic principles by intelligible relationship to goals . . . which are directly related to basic human goods, but is also controlled by wide-ranging formal and other structuring principles (in both first- and second-order form) which themselves are derived from the basic principles by the first mode of derivation.

NLNR, 289.
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*S.T. IaIIae, q. 95, art. 2, c.
**S.T. IaIIae, q. 95, art. 2, c. (ea quae sunt secundi modi, ex sola lege human vigorem habent); Laws of Ecclesiastical Polity, I, c. 10, sec. 11.

Natural Law's Modern Cousin Germain: Finnisian Definition of Law

FINNIS PROVIDES US A COMPREHENSIVE DEFINITION OF LAW that defines the central case of law that disappoints by its overt positivism:

[T]he term 'law' . . . refer[s] primarily to rules made, in accordance with regulative legal rules, by a determinate and effective authority (itself identified and, standardly, constituted as an institution by legal rules) for a 'complete' community, and buttressed by sanctions in accordance with the rule-guided and buttressed by sanctions in accordance with the rule-guided stipulations of adjudicative institutions, this ensemble of rules and institutions being directed to reasonably resolving any of the community's co-ordination problems (and to ratifying, tolerating, regulating, or overriding co-ordination solutions from any other institutions or sources of norms) for the common good of that community, according to a manner and form itself adapted to that common good by features of specificity, minimization of arbitrariness, and maintenance of a quality of reciprocity between the subjects of the law both amongst themselves and in their relations with the lawful authorities.

NLNR, 276-77. The reason I find this definition of law as the "central case" or "focal meaning" of law disappointingly narrow and positivistic is that it excludes from its definitional boundaries entire areas where classically law has been recognized to exist: the natural law and the eternal law. This definition is crafted by Finnis by referencing the requirements of practical reasonableness and by "certain empirical features of persons and their communities." NLNR, 277. Perhaps this definition--which Finnis states is an effort not "to explain a concept, but to develop a concept which would explain the various phenomena referred to (in an unfocused way) by 'ordinary' talk about law." NLNR, 279. But to whose talk has he been listening to? The positivist? It seems that he has not been listening to the Thomist.

While Finnis's definition may be a comprehensive definition of human law in its focal sense, it cannot be a definition of "law" in its focal sense when it excludes the laws of all laws: the eternal law, and the particularly human participation in that law, the natural law. And what is particularly curious is that Finnis is careful to note that the definition is crafted so as not to be univocal, but is intended to be vague enough to be usable in an analogical or "broad-sense" manner. The definition, then, can be analogized downward so that it can include more or less developed or more or less primitive legal-like institutions. But the definition is sufficiently univocal so as to exclude from its boundaries law looking upward,* so that there is no similar analogical use of it to refer to the higher eternal law and the natural law.

Indeed, Finnis admits as much be severing the natural law from his definition of law:

'Natural law'--the set of principles of practical reasonableness in ordering human life and human community--is only analogically law . . . .

But his use of "analogy" here is different from the use of analogy in terms of human institutions looking downward. NLNR, 280. Finnis is hesitant, even embarrassed to link the term "natural" to the term "law" as he has defined it, tolerating it only because "past thinkers" have used it. He suggests that, instead of using the term "natural law," we could use the term "'natural right', 'intrinsic morality','natural reason, or right reason in action', etc. But no synonyms are available for 'law' in our focal sense." NLNR, 280-81. Law as used by Finnis is improperly used when used of the natural "law" or the eternal "law." This seems to be a break in the tradition.

There is therefore both an inadequacy of Finnis's definition of "natural law" itself (defined as a "set of principles of practical reasonableness in ordering human life an human community"**) and an inadequacy of the term "law" as a term comprehensive enough to include within its meaning "law" as used in the notions of eternal law and natural law.

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*It also excludes law in the sense of physical, biological, psychological laws (where "law" is used in a metaphorical sense, and excludes the "laws" associated with "arts and crafts and applied sciences" though the "similarity" between his definition of law and the law as used with reference to arts and crafts and applied sciences is "greater." NLNR, 280.
**Where is the legislator? Where is the promulgation? Where (in the event of disobedience) is the sanction?

Jacques Maritain and Natural Law: Human Positive Law

POSITIVE LAW, OR MERE HUMAN LAW, is the next law that Jacques Maritain addresses in the book Natural Law: Reflections on Theory and Practice. It should be noted that Maritain has not discussed, but "passes over" divine positive law, viz., law as revealed by God in revelation, such as that found in the Ten Commandments, in the Mosaic ceremonial law and temple cult, or in the New Testament in the institution of the Sacraments or the foundation of the Church. The positive law, as Maritain analyzes it, is pure human law, law that is human in both its source or authorship and in its knowledge.

The positive law in force in any particular social group, whether it be a question of customary right or written right, has to do with the rights and duties which are bound up in a contingent, not a necessary, manner with the first principle of the practical intellect: "Do good and avoid evil."

Maritain, 52. The power given to man by God to make law to govern and order the relationship among social groups is truly remarkable. We take this ability, which is clearly related to our freedom and our governance by reason--both a divine gift--, for granted. The ability to make law is something that relates to our being made in the image of God. The power to make law is part of our inheritance as imago Dei. It stands to reason that the power to make law is subordinate to, as it is reliant upon, the orders of natural law (morality) and eternal law (divine ordering). Human law, or positive law, has the power, within its range, to bind and to loose, to define certain things good or permissible, and certain things bad or proscribed.

Human reason intervenes here as a creative factor not only in that which concerns the knowledge of the law--as in the case of the law of nations [the ius gentium]--but in that which concerns the very existence of the law. It has the astounding power of laying it down that certain things will henceforth be good and others bad. . . . There is thus a moral good and a moral evil which depend upon the human reason because it takes into consideration the particular exigencies of the common good in these given given circumstances, in conformity, however, with principles of the Natural Law . . . . But the Natural Law does not itself prescribe the rules in question, it leaves them to the ultimate determination and initiative of the human reason.

Maritain, 52.

This view of positive law, of course, is what makes positive law binding upon men in conscience. The debitum legale or legal obligation that is posited by a human law, in a short of backwash, becomes also a debitum morale or moral obligation. This binding nature of positive law stems from the natural law, and so it follows that a positive law that is contrary to morals, to the natural law, is not, strictly speaking a law at all.

[A]n unjust law is not a law. This follows as a consequence from . . . . the fact that the positive law obliges by virtue of the Natural Law which is a participation in the Eternal Law. It is inconceivable that an unjust law should oblige by virtue of the Natural Law, by virtue of regulations which go back to the Eternal Law and which are in us a participation in that Law. It is essential to a philosophy such as that of Saint Thomas to regard an unjust law as not obligatory. It is the counterpart of this truth that the just law binds in conscience because it binds by virtue of the Natural Law. If we forget the one, we forget the other.

Maritain, 53.

We have forgotten one, and so we are forgetting the other. Our scholars and jurists have virtually banished the natural law from the halls of the law schools and from the pages of their opinions. Is it any wonder that they are flummoxed in the forging a theory of obedience to human law other than mere power or convenience? By severing the positive law's natural link with the natural law and eternal law, the positive law has become orphan. And like an orphan without a protector, without a guardian, he has become abused, ignored, slighted, and sits in the corner of an alley, shivering, hungry, bitter at the world, like a child Hitler, and seething in his anger, planning his revenge against all those who have slighted him. Woe to all men if this unbalanced child, morally unmoored and angry, should grow up and have placed in his hands power over his fellow man. There is no appeal to anyone from the judgments of this cruel and self-indulgent, and wickedly vengeful and overweening, orphaned law.

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*The term "positive law" (ius positivum) was coined in medieval philosophical commentary (e.g., Thierry of Chartres, ca. 1135, then Abelard), and was the term applied to law when the focus was on the source of law. The source of positive law was that it was laid down or promulgated by a positive act (positum is Latin ‘laid down’), that it was not intrinsic, natural, but secondary and adjunct. It was an extension of the more basic forms of law, the eternal and natural law, and ius gentium, and thus could not contradict the more fundamental laws, but only extend it or apply it to contingent situations. It was thus subject to change, particularly when human positive law was involved. Even divine positive law was subject to change (e.g., the ceremonial and judicial precepts of the Old Testament).

Cardinal Mercier and the Natural Law, Part 14: Natural Law, Right, and Duty

FROM GENERAL ETHICS, Cardinal Mercier goes into special ethics. His introduction to the topic of special ethics begins with clarification between the moral law, the natural law, positive law, rights, their origins and their kinds. Natural law or natural right, in its wide or most broad sense, "comprises all the rules of conduct which are logically deduced from the [natural] moral law, and which form the basis of our rights and duties both with regard to our neighbour and society in general." In this wide sense it is equivalent to "social morality." Used in this broader sense, we are dealing not with the foundational natural law, but with natural law after it has been determined, fitted, as it were, to the contingencies of contemporaneous society. Thus, although the natural law in the narrow sense is immutable and universally known, in this wide sense, the natural law or right may not be immutable or universally known. (In fact, it may not even exist until a contingency. Before in vitro fertilization, there was no need for natural law guidance in this area. Before the advent of paper money, "fiat" money, there was no need for natural morality to be applied to this human creation, etc.) The term natural law may also be used in a more restrictive sense than "social morality." It may be used that part of "social morality which treats of our duties arising from justice." [264(70)]. This subset of "social morality," also referred to as natural law, "designates all the rules of conduct which are logically derived from the moral law and whose execution, if need be, may be enforced by coercive measures." [263(70)] Thus we have natural law in the narrow sense, and natural law broadly defined as equivalent to "social morality," and natural law defined as a subset of "social morality," being those aspects of social morality which are subject to enforcement because of their close relationship to justice.

Positive law is the law that is posited,* or promulgated, by legitimate authority over a civil society. By its nature, it is flexible and changing by circumstance, and its aim, and indeed its justification, is that it orders the body politic with the end of the common good.

Our obedience is due to positive laws because such obedience is a condition of social life in its full development. Hence nature, or what comes to the same, natural law, enjoins a respect for the commands of a human legislator. The will of a legislator, since it is of a kind no different from our own, cannot of itself constitute the source of a true obligation for us; but the natural law, being dictated by God, does possess sovereign claims to our obedience.

[264(72)] Thus human positive law is, as it were, an appendage to the natural law. It requires the natural law for its authority. "There is a higher law than human laws, one 'written on the tablets of the heart', in the name of which the individual always has the right to protest against the tyranny of rulers."
--Cardinal Mercier It has no authority outside of the natural law, since it is based upon the will of man, and one man's will has, without authority behind it, no particular right to obedience. Mere aggregation of human wills in a chamber at a capitol does not make those wills any more grand so as to justify obedience without authority. Since all authority comes from God (Rom. 13:1), it follows that the positive law must accord with the law of God, must be within the scope of God's agency, or it ceases to have any binding nature. A human law that strays from its justification, that issues outside of the scope of its agency, collapses once again mere human will. So even though it comes dressed as a law, it is not law at all.

That is precisely where Mercier finds a corollary that is anathema to the positivists, secularists, and tyrants of any time and place:

No one must obey a positive law that clearly contradicts the fundamental principles of the moral law. In such circumstances the inalienable rights of the individual conscience must be resolutely vindicated against the claims of any form absolutism.

[264(73)] The source of this absolutism is irrelevant: it can be the will of one man, it can be the will of all but the conscientious one, it can be the will of any number in between.

It is at once apparent that this principle is subject to abuse. It is not a recipe for revolution or easy excuse for disobedience to properly constituted authority. But the fact that it is subject to abuse does not change one iota the fundamental truth of the principle. The danger of its abuse, however, "only furnishes a reason for not making a light use of its application and for carefully gauging its extent." The danger of its abuse does not give reason for "repudiating it." [264(73)] The fact that a law may be prejudicial to our interests is not justification for disobedience. The fact that a law may be against our best opinion is no justification for disobedience. Benefit of the doubt should be given to authority. Even if a law is clearly unjust, we may have to tolerate it, as affirmative disobedience to an unjust law may foreseeably result in more injustice than tolerance of an unjust law. But with all those caveats it remains unalterably true:

There is a higher law than human laws, one 'written on the tablets of the heart', in the name of which the individual always has the right to protest against the tyranny of rulers. In vindication of this right the martyrs shed their blood.

[265(73)]

Mercier's discussion of the relationship between natural law and positive law then gives way to the discussion of the origin of rights, both natural rights and positive rights. As positive law finds its fons et origo in the natural law, the question can be translated to whether positive rights find their fontes et origines in natural rights.

Mercier rejects at once any notion of rights being derived from a priori principles of individual reason. Thus, any Kantian basis for individual rights (which has essentially been adopted by political liberalism such as John Rawls's version) is spurned. And for good reason. Any Kantian basis for individual rights either ends in might over right or in right being nothing but convention. Mercier explains. Kantian notion of right stems from the categorical imperative, which a priori stems from the constitution of the mind itself. The Kantian formula begins with absolute autonomy of will, and limits it only by the categorical imperative. That imperative requires us to act externally in such a manner with respect to the free exercise of our will so that we may co-exist with the freedom of others and that it may be applied as universal law. The formula essentially requires that "the liberty of each must be reconciled with the liberty of all." [266(74)] The problem with the Kantian formula arises in its overemphasis of autonomy:

If the autonomy of the human person is in a true sense absolute [as proposed by the Kantian formula], I shall respect this autonomy in myself only by exercising my liberty as fully as possible; my right then will know no limit but my might. And everyone else may say the same of himself. Hence an inevitable conflict will arise between the activity of individuals, each of whom will try to extend his rights indefinitely.

[265(74)] In this incessant competitive scramble and clamor for individual rights, which is a necessary result of Kantian autonomy, two things must happen. Either the strongest will win over the weakest, and we fall into that most horrible of prospects that might makes right. Or else some sort of Hobbesian social compact may be made among all competitors so that there may be some sort of mutual pact of coexistence. The basis of right, as a consequence, will either be force or social contract. In one of these two manners will the competition of autonomous wills end. And there will be no notion of natural right. At its root, Mercier further notes, Kantian autonomy, and its emphasis on individualism, is anti-social since it advances the notion that autonomy is the superior good, and there is a mistaken perception that there is a loss of dignity or freedom in subordinating one's autonomy to the life of the community. Mercier therefore rejects any Kantian basis of individual right based upon autonomy and the application of the categorical imperative.

Equally rejected by Mercier is the notion that individual rights derive from the State. Here, the vaguely pantheistic musings of Hegel and Schelling and their followers tie in the Absolute with the State.

The Absolute is one with the substance of the Universe, and this substance is mind. The State is only a mode or aspect of the absolute or divine reason. The will of the State, not as arbitrary but as regulated according to the immutable principles of reason, creates rights.

[266(74)] Not only are these pantheistic theories subject to the criticisms against pantheism generally, but it is more patently offensive and in fact endemically against any sense of natural right. The State is the provider of right, and civil law becomes raised to the stature of absolute sovereignty.

Mercier also rejects any suggestion that human rights derive from a hedonistic or utilitarian principle. The natural right to these essentially Hobbesian thinkers derives from the natural "free for all" that exists in a State of Nature. These rights are entirely traded in for the peace and security of the social compact. Following this trade, the only rights that exist are those that are given by the State, which parcels them out on some sort of utilitarian formula (greatest good for greatest number). So it is that these ultimately lapse into notions that laws and rights derive from social compact or from the will of the legislator.

Similarly, Mercier mentions other competitors to Kant, Hegel, Hobbes, Mill: Rousseau (rights are the result of free will), Herbert Spencer (rights are the product of biological factors or the social organism), only to reject them. [267-68(74)]

The traditional basis for natural right is distinct from those bases advanced by the post-Enlightenment thinkers:

Rights are founded immediately on the moral law inasmuch as this is the expression of the intrinsic exigencies of our nature, and mediately on the Divine Will.

[268(74)] Quite obviously, this basis for human rights is different from the other theories. While it shares with Kantian theories the notion that the basis for human rights is the moral law, it bases itself on a traditional, classical natural-law foundation, both ontological and teleological. It thus does not suffer from the subjectivity of Kantian moral theory, but is ruggedly objective.

[T]his [moral] law, we maintain, [unlike Kant's moral law,] does not resolve itself into a priori judgments arising from the constitution of the mind and without any objective validity. The principles of our reason are the expression of essential relations which exist between things; our reason is not determined in the formation of its judgments by any blind necessity (e.g., by a priori forms) but by the force of objective evidence [i.e., reality, the way things are]. Hence when it prescribes certain rules of conduct in our dealings with other men, it does but formulate an order of relations which are derived from our very nature. Man is by nature a social being. The moral law therefore teaches him to live in accordance with that social nature. From this there result a number of practical judgments or imperatives which constitute the Natural Law.

[268(74)]

The purpose of the positive law, then, is to enflesh, in a human way, these fundamental human rights that derive from the natural law.

The function of Positive law is to interpret what is enjoined by the Natural Law, to develop its consequences, to enforce its execution, and to check its violation.

[268(74)] (emphasis added).

To maintain, as the positivist juridical theorists such as John Austin and his ilk maintain, that law and morality are, like East and West, separate and never should "Rights are founded immediately on the moral law ..."
--Cardinal Mercierthe twain meet, is folly. The moral law is, in fact, the one and only sure basis and foundation, the fons et origo of positive law and positive right. Ultimately, we find human right informed by our nature, "[b]ut as our nature, and consequently the moral law, have their origin from God, it must be the Divine Will, acting under the guidance of the Divine Reason, which is the metaphysical source of the natural law," and, through the natural law, the positive law.

Mercier then launches into a discussion of rights. These he divides into three general groupings: individual right, family right, and public right.

What, in Mercier's view, individual right consists of in light of the natural law is the topic of our next posting.

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*posit comes from the Latin positus, past participle of the verb ponere "to put" or "to place." Thus it means having been put or placed forth. It is thus law that is put or placed by the will of the legislator which could be human (in which case it is human positive law) or God (in which case it is divine positive law).

Peter Abelard and the Natural Law: Dialogue Between a Philosopher, a Jew, and a Christian

ABELARD WROTE HIS DIALOGUE between a Philosopher, a Jew, and a Christian (also called the Collationes or Comparisons), around 1130 A.D., perhaps while Abbot at the Benedictine monastery of St. Gildas de Rhuys. All three of the characters, including the Philosopher, believe in one God, and they meet up with Abelard in a dream. Abelard is recruited to be more-or-less the judge of their debate. The Dialogue is actual broken up into two dialogues, one between the Philosopher and the Jew, and the second (unfinished) dialogue between the Philosopher and the Christian.

In the first dialogue the Jew and Philosopher expressly discuss the merits of the natural law relative the revealed Mosaic law. During the course of the dialogue, the Philosopher argues that the natural law, which discoverable by reason, is superior to the revealed Mosaic law. A similar dialogue takes place between the Philosopher and the Christian as to the merits between the natural law and the new law of the Gospel. In essence, therefore, the Collationes is a debate about the interaction between the lex naturalis, the lex vetus, and the lex nova, the natural law, the Mosaic law, and the law of the Gospel. For the Philosopher, the natural law is considered to be the science of morals, or ethics. The natural law is preeminent to the Mosaic law, both it terms of time, in dignity, in simplicity, and in mode of discovery. Indeed, it becomes clear that the natural law is the base upon which the Mosaic law and the Evangelical law build, as they contain all that is contained in the natural law, but add additional precepts to the natural law's content. The natural law is discoverable by reason, whereas the Mosaic law and law of the Gospel both, are communicated through revelation.

Peter Abelard

During the course of the Collationes, the Philosopher has this discussion with the Christian:

So far as justice is concerned, it is not just the bounds of natural justice but also those of positive justice that ought not to be crossed. One sort of law is called "natural," the other "positive." Natural law is what the reason naturally innate in all people urges should be put into effect, and therefore remains the same among all people: such as, to worship God, to love one's parents, to punish the wicked, and to do whatever is necessary in the sense that without them no other merits whatever will be sufficient.

To positive justice, however, belongs what is set up by humans so as to preserve usefulness and worth more safely and increase them. It rests either on custom alone or on written authority. An example of positive justice is provided by the sort of punishments given in retribution and the procedures of judges in examining accusations which have been made. Among some, there is trial by combat or hot irons are used, among others an oath that, when we have to live among whoever it may be, we hold the laws they have set up (as I mentioned) just as we hold the natural laws.

The laws which you called divine--the Old Testament and the New Testament--also pass down some commands which are, as it were, natural (you call them "moral commands"), such as to love God and your neighbor, not to commit adultery, not to steal, and some commands which belong, as it were, to positive justice. These commands apply to certain people at a certain time, like circumcision for the Jews and baptism for you and many other commands which you describe as "figural." Moreover, the Roman pontiffs and church councils issue new decrees every day or dispense various indulgences, according to which, you say, what used to be lawful becomes illicit and vice versa--as if God put it in their power to make things good or evil which were not previously be their decrees and indulgences, and their authority could pass judgment on the law of nature.

Oportet autem in his, quae ad iustitiam pertinent, non solum naturalis, verum etiam positivae iustitiae tramitem non excedi. Ius quippe aliud naturale, aliud positiuum dicitur. Naturale quidem ius est, quod opere complendum esse ipsa, quae omnibus naturaliter inest, ratio persuadet et idcirco apud omnes permanet, ut Deum colere,
parentes amare, peruersos punire, et quorumque observantia ita omnibus est necessaria, ut nulla umquam sine illis merita sufficiant.

Positivae autem iustitiae illud est, quod ab hominibus institutum ad utilitatem scilicet vel honestatem tutius muniendam vel amplificandam aut sola consuetudine aut scripti nititur auctoritate, utpote pene vindictarum vel in examinandis acusationibus sententiae iudiciorum, cum apud alios ritus sit duellorum vel igniti; ferri, apud alios autem omnis controversiae finis sit iuratum, et testibus omnis discussio committatur. Unde fit, ut, cum quibuscumque vivendum est nobis, eorum quoque instituta, quae diximus, sicut et naturalia iura teneamus.

Ipse quoque leges, quas divinas dicitis, vetus scilicet ac novum testamentum, quaedam naturalia tradunt praecepta, quae moralia vocatis, ut diligere Deum vel proximum, non adulterari, non furari, non homicidam fieri; quaedam vero quasi positive iustitiae sint, quae quibusdam ex tempore sunt accommodata, ut circumcisio Iudeis et baptismus vobis et pleraque alia, quorum figuralia vocatis praecepta. Romani quoque pontifices vel synodales conventus cotidie nova condunt decreta, vel dispensationes aliquas indulgent, quibus licita prius iam illicita vel e converso fieri autumatis, quasi in eorum potestate Deus posuerit, ut praeceptis suis uel permissionibus bona vel mala esse faciant, quae prius non erant, et legi nostrae possit eorum auctoritas praeiudicare.

Coll. 133-5; 145-7 (Marenbon, trans.)

A Medieval Disputatio between Four Persons

The passage is remarkable for its distinctions and clarity. First, it clearly distinguishes between natural law (or right) and positive law (or right). True, Abelard uses the terms iustitia naturalis and iustitia positiva, and not lex naturalis (or ius naturae or ius naturale) and lex positiva (or ius positivum). So the emphasis is less on law or right, than on righteousness, virtue, or living in accord with the good. This concept was likely borrowed and adapted from the commentary to Plato's Timaeus by the 4th century Christian Calcidius (who translated the first part of Plato's dialogue into Latin from Greek at the request of Bishop Hosius of Córdoba) where it was used as a term to distinguish between human justice broadly vis-à-vis the ordering of the cosmos generally. Marenbon (2007), 275. And while it may not be the first such use of the terms positive law and natural law (these terms are used by Thierry of Chartres and St. Bernard of Chartres in that sense), it certainly represents one of the first such uses of the term in the history of the philosophy of law, and it appears to have influenced later canonists who would use that distinction specifically to distinguish laws promulgated by humans from those strictly natural. Marenbon (2007), 275.

The other distinction that is made by Abelard, and one related to the first, is that between malum prohibitum and malum in se. Though he does not use these terms, it is clear that he recognizes that the positive law can make things once lawful, illicit, and make things once unlawful, licit. Abelard hints even at the possibility of abuse: that the human authority may pass positive law that is not consonant with the natural law, and has the temerity to pass beyond its bounds.

The distinction between positive law and natural law is extended even to God, who is recognized as having the authority to promulgate positive laws of his own--divine law--which may be confirmatory of the natural law, or may require acts in addition to those mandated by the natural law, such as those relating to circumcision for the Jew, and baptism for the Christian.

Girolamo Zanchi on Human Law, Part 3

Girolamo Zanchi

ZANCHI CONCLUDES HIS TREATMENT on the relationship between human or political law and the natural law by addressing the issue of the construction or enforcement of human law, and by pointing out two significant distinctions between human law and the natural law.

With respect to the first issue, Zanchi insists that the natural law has a role in the application of human law in certain situations where the law--if enforced according to the letter--results in injustice. His reasoning as as follows.

Human laws, that is, positive laws of the State, have as their aim the promotion of the common good. On occasion, however, enforcement of the letter of this law may actually result in "the ruin of those people for whose sake it was enacted," thus contradicting its purpose. There are therefore instances where the "letter of the law" should not be followed; rather, the "purpose of the law and the spirit of the law-giver must be examined and followed." This appears to be an application by Zanchi of the legal maxim salus populi suprema lex est, the welfare of the people is the supreme law, a principle as old as the Roman Twelve Tables (Compare Cicero, De Legibus, 3.3.8 ("ollis salus populi suprema lex esto")

As an example of such an instance, Zanchi supposes a human law that provides that no person is allowed to open the city gates if the city is being besieged. Obviously, this law is unobjectionable from a general perspective, and it seeks to protect the citizens and promote the common good when the city is under seige by preventing the city from being occupied by enemy force. Thus, this law would derive from the natural law.

Zanchi then posits the situation where the city is under seige, and the city's army is outside the walls engaged in battle with the opposing army. The city's army retreats and seeks entry into the safety of the very city which they are defending. If the letter of the law is obeyed in this circumstance, the city's army will be slaughtered and without its army the city will ultimately be captured, defeating the law's purpose and the natural law. "[W]ho does not see that in such a case the city gates must be opened despite the letter of the law . . . .?" (345) Clearly, the letter of the law ought not to be followed in such and similar instances, but the purpose of the law, the intent of the legislator, and the natural law override the law's letter.

Justinian's Codex recognized this principle (1.14.5): "There is no doubt that he violates the law, who, adhering to its letter, violates its spirit . . . ." (Non dubium est in legem committere eum, qui verba legis amplexus contra legis nititur voluntatem . . . .). Similarly, this principle is carried forward in the teaching of the Church fathers and ecclesiastics, and applies in the context of divine law as well as human law. "Some law-followers," Zanchi states, "have actually sinned against the will of God" even when externally obeying the letter of the divine law itself because they act against its principle, its spirit. As examples of this, Zanchi cites the various encounters between Jesus and the Pharisees and Scribes related in the Gospel. These are examples where the letter of the law and the spirit of the law conflict. Thus, plucking heads of grain on the Sabbath did not violate the divine injunction to keep the Sabbath day holy (Mark 2:23-28; Matt. 12:1-7), nor did curing a man on the Sabbath (Matt.12:9-14), since they conformed to the purpose of the law, and the enforcement of the letter of the law contradicted its purpose.

Zanchi thus concludes:

Laws are enacted from natural law for the common good and the welfare of human beings, and only for as long as they do so do they have the power to obligate. If, therefore, it should happen that by sticking to the letter of the law, we act against the welfare of human beings, we have acted more against the law than in accordance with it.

(346) However, Zanchi cautions that this principle is not to be used without some restriction. The power to determine in the first instance when enforcement of the letter of the law violates the natural law--and therefore ought not to be obeyed--is with the authorities, assuming that they may coveniently be available. "When, however," the authorities "cannot be easily consulted and there is a danger in delay, and the case of the law is clear to each person," then in such instance "it is appropriate for the person involved, to whom the responsibility falls, or on whom the burden of the State is conferred," when the purpose "of the law is lost, to follow his own interpretation of the law." (346)

Zanchi completes his treatment of human laws by pointing out two fundamental distinctions between the human law and the natural law. The first is that, while human law changes, the natural law does not and cannot. The second difference is that human law only governs external acts, whereas the natural law covers both external and internal acts. He explores those two issues.

First, Zanchi observes that the natural law is unchanging, whereas human law changes depending on the contingencies of time, place, and personality. For this reason, there may be disagreement between human law and natural law. The natural law cannot change for the very simple reason that it "is simply certain, general eternal aspects of God's will, the revelation of the rule for doing and avoiding, written on the hearts of human beings." (347) Human laws, on the other hand, "cannot be eternal and unchangeable because their circumstances," in terms of "place, time, and personality" vary. (347) This distinction between the two is what makes St. Augustine state in his De libero arbitrio (On Free Will) [1.6.14.48] that temporary laws may be suspended for a time (Appellemus ergo istam legem, si placet, temporalem, quae quamquam iusta sit, commutari tamen per tempora iuste potest.)

It follows that human laws must change to conform to the natural law. Human law must therefore change in two situations. First, the development in human reason, as a community advances from relative imperfection to relative greater perfection, demands that the human law be adapted to reason's development. Laws ought to reflect the same development one sees in philosophy or other sciences. Second, differences and varieties in people, communities, or States require different laws adapted to their specific situations. As an example of how the state of a people affects laws, Zanchi again refers to St. Augustine. If a people is virtuous, it may be acceptable for them to elect their own magistrates. However, if the people become depraved, then allowing them to elect their own magistrates may result in the election of criminals, and so the law allowing for participatory elections should be changed. (De Libero Arbitrio, 1.6.14.45-46)

[Zanchi then applies this principle to the Church, and gives as an unfortunate example the selection of ministers; however, here he displays the prejudice of the Reformers which fails to give sufficient deference to the teachings of Christ on Church governance and its constitution.]

How, then, can human laws change, but the natural law not change?

The response to this . . . is quite simple: Anything that human laws retain from natural law cannot be changed, but anything that differs from it because of the particular circumstances and that impedes the public good more than it advances it must be changed. In addition, human laws by their own nature have their own individual circumstances. Thus, because circumstances change, it follows that the [human] law can change entirely too. Still, natural law maintains its general principles without any particular circumstances. Thus, it remains immutable.

(348) The second big difference between the natural law and human law is that the natural law is broader, more extensive than human law. The natural law "prohibits all vices and crimes, in general, both internal and external ones." Thus, the natural law "regulates not only external worship but also internal worship." (348) Likewise, the natural law, in particular the "Golden Rule," prohibits not only external injury to our neighbor, but internal injuries, such as nursing hatred and envy. "Love is commanded," by the natural law, "because we, ourselves, want to be loved."

In contradistinction with the natural law which governs both external and internal fora, human or political laws only relate to "external crimes" and "external duties." (349) Human laws do not reach into the inner part of man. The reason for this is that human laws have limited scope and purpose. Since human or political laws look only toward promoting the common good, they do not look at the private good of an individual except perhaps accidentally.

Moreover, even in externals, human law is limited. There is a prudential aspect in human law that is absent in the natural law. Human laws simply cannot prohibit every external wrong without resulting in greater harm to the common good. Human laws can only prohibit those wrongs that prudently can be prevented. Where something cannot be prevented, either as a result of human nature, custom, or the people's wishes, human law ought not be applied because it would be vain and fruitless or would result in greater harm. Thus Proverbs 30:33: "Pressing the nose produces blood" (qui vehementer emungitur elicit sanguinem). Zanchi suggests that Christ recognized this principle when, as related in Matthew 9:17, he says that if new wine is put into old wineskins, the old wineskins will burst and the wine will be lost. The new wine represents "harsher and stronger ideas," and if people are not ready for them "the people will fall from bad to worse and become more corrupt" by trying to hoist these ideas upon them. Thus, human or political law requires prudent and wise application. This element of human laws gives rise to one of the more important principles of human legislation: "It is essential that the laws be possible. By possible I mean, in accordance with both nature and the customs of the people." (349).

In conclusion, Zanchi's treatment of the natural law is substantially more traditional and classical than Calvin's treatment, though it appears more influenced by the Protestant Reformers' ideas than Vermigli, whose doctrines were reviewed in earlier posts on this blog. Zanchi's treatment, however, is much more complete and methodical than Calvin's and Vermigli's treatment of the natural law. Zanchi, nevertheless, does provide some basis for a Protestant tradition of the natural law, a tradition that, as we discussed in earlier blogs, Karl Barth vehemently, and perhaps--applying strictly the underlying principles of the Reformer's theology--logically rejected.

Doctrines of the natural law will invariably be affected by one's theological or philosophical presuppositions. Theological error will often find outlet in a false view of the natural law. Thus, for example, Calvin's theological error with respect to the depravity of man marred his view of natural law. A fortiori, Barth's theological error entirely blinded him to the continuing validity of the natural law. Similarly, one's philosophical presuppositions can affect one's doctrine of the natural law. Thus, someone with a nominalist or materialist, mechanistic philosophy (as distinguished from someone with a realist philosophy or a philosophy open to the existence of God) will be seriously hampered in his ability to grasp the possibilty eternal or natural law. Theological and philosophical traditions, in addition to our own culture's customs and our own internal passions and vices, can render our vision astigmatic, myopic, hyperopic . . . indeed, can make us even blind to the fullness of the eternal and the natural law, just as it can blind us to the Gospel.