The Gordian Knot of Natural Law

ACCOUNTING FOR THE DIVERSITY of mores, institutions, laws, and judgments about right or wrong among men might help us understand why there can be a universal natural moral law and yet such a divergence of human expression of right and wrong in light of it. We have previously addressed the issue of how natural law theories do not require or even imply that there will be unanimity among men with respect to the existence of that law or its content. (See, e.g., The Natural Law's Sophist Strawman.) Yet withal the argument is frequently hurled against the natural law as if it were dispositive against it. Opponents feel it is the clincher, when it's nothing but an attempted sucker punch.

In fact, natural law theories frequently account for the variations of these fundamental differences among men across history and across cultures. It is therefore valuable to explore these explanations. In his The Tradition of Natural Law, Yves Simon divides this question into five parts: First, negative precepts of the natural law. Second, positive precepts of the natural law. Third the distinction between premises of the natural law and conclusions from those premises and their relationship. Fourth, the role of prudence in the decisions relating to the application of the natural law to specific or particular applications or problems in the concrete. And lastly, the effect that the relative hierarchy or necessity among the inclinations may have when these are in competition. Finally, he addresses the notions of both progress and blindness in our knowledge. These aspects of the problem, all bundled and tied together as if in a Gordian Knot, explain why the natural law is not known universally. The fact that rope is bundled up together in an knot that cannot be easily unbound does not mean the rope does not exist.

The Gordian Knot of Man's Nature

The negative injunctions or precepts of the natural law (and not necessarily the knowledge of these precepts, which is another issue) are unqualifiedly universal and absolute. Acts that are wrong by essence, by their very nature, are wrong without qualification. Simon, following St. Thomas Aquinas, distinguishes between the external act and the essence of that act. Two external acts that are apparently identical may be essentially different. As an example, Simon cites the effect of extreme necessity on the property rights of another. To take water surreptitiously from a neighbor's well to reduce one's water bill or to keep us from having to dig our own well is stealing and, in its very essence, wrong. To take water from our neighbor's well to put out a fire in our household while we have yet to dig our well is, externally, the same act (using our neighbor's water without permission), but the necessity involved in the circumstance changes its essence of the act. The essence of the latter act has no wrong attached to it because necessity changes the character, the nature, the essence of the act. Sloppy language, however, causes confusion. In the first case, we have stealing, an act which is, in essence, wrong and universally so. In the second case, we do not have stealing. It is therefore wrong to say that it is lawful to steal in cases of extreme necessity. (This suggests, wrongfully, that a wrong may be excused. The fact is, that because of necessity there is no wrong that needs excusing in the latter situation at all.) Rather, it is accurate to say that the latter act, though it involves the taking of an other person's property, is not stealing at all. The essence or fundamental nature of the act has changed as a result of circumstance. A similar observation may be made with respect to killing. It is wrong for me to kill my neighbor so that I may have his wife. It is an altogether different thing to kill my neighbor if he rushes at me with his knife in the hopes of stealing me of my house and home. The first act is murder. The second act is not murder that is excused. The second act, though it likewise involves the killing of a man (i.e., homicide) is not wrong. Its essence is fundamentally changed. Sometimes the difference gets very subtle, and as an example, Simon gives the qualitative difference between a spy taking a cyanide tablet to kill himself in the face of imminent capture so as to avoid the giving of secrets in the likely prospect of torture, versus a soldier who jumps out of a trench before enemy fire to take out an enemy position even though death is virtually imminent. The former is self-slaughter, the latter is not, and their essential difference, though perhaps subtle, is as different as night is from the day.

What is wrong by nature can never be rendered right, but we shall have to be very cautious before we declare that a particular act is wrong by nature.

Simon, 148. Modern moral thinking is particularly sloppy in this regard.

With respect to positive precepts, there is a universal principle: "One principle covers all cases," Simon writes, namely, "any good act may become wrong by reason of the circumstances." Simon, 148. The classic example is the example of a deposit. Generally, it is obligatory to return property to one who has put it in our care (we have here a positive precept). So if our neighbor has deposited with us a sword, we are obliged to return it to him upon request. But what if our neighbor comes to us demanding his sword in the heat of extreme passion so that he may use it to slaughter then and there another man? In the latter situation, it would be wrong to turn over the sword. Between the first instance and the second instance, a circumstance has interfered. So Simon crafts the general principle:

[W]hereas circumstances can never vindicate a wrong by essence [though they may change the nature of the act], an act good by essence can always be made wrong by the circumstances.

Simon, 148 (citing St. Thomas's S. T. IaIIae, art. 18, q. 4, ad. 3. and De Malo, art. 4, q. 4, ad 2.) Simon calls this the "diabolic privilege." "The wrong cannot be made good, but the good can be made wrong." The good can be made wrong by circumstance, including one's intent or end in doing the good, and the foreseeable consequential effect of the good beyond the act itself. A good act may be interfered with, and made not good, by the who, when, where, and by what means surrounding it. Two examples are cited by Simon. To honor one's father is a natural good, a positive precept of the natural law. However, if one's father is in a murderous state and is assaulting an innocent with the intent to kill, it is not only lawful, but meritorious and perhaps obligatory to kill one's father to save the innocent victim. Circumstance has "interfered" with the positive precept to honor one's father. Similarly (and this is a classic example, Simon cites to S. T. IaIIae, art. 20, q. 1; De Malo, art. 2, q. 4, ad. 2) the giving of alms (i.e., "relieving destitution through free distribution") is good by essence. However, if alms are given for vainglory or to acquire disorderly power over others (as liberals are wont to do) the act is wrong. Circumstances have "interfered" with the good. (We have discussed in another posting the role of intent in the giving of alms. See By Nature Equal: How are Men Equal? Uniformity of the Host Property, Part 1.)

There is an important distinction between premises and conclusions. It is wrong to suggest that premises of the natural law are binding, but conclusions are not necessarily binding. The binding nature of the conclusions depends upon the clarity between the premises and the conclusions:

If the derivation of the conclusion is purely and simply logical, the conclusion derives unqualified necessity from the necessary premises. . . . If the premises are necessary and universal, the conclusions are the same. . . . That a conclusion is always necessary as the antecedent is almost a definition of a strictly logical connection. But the antecedents may be divided into those which do not and those which do involve a contingent condition. It a relation between antecedent and conclusion, the conclusion will always be as necessary as the antecedent.

Simon, 150. The presence of contingent conditions is not always easy to express or determine, as they are sometimes implied. As an example, Simon cites the natural law involving private property. Ordinarily, that is, under a certain modicum of organized civilized life, the right to private property is a fundamental natural law principle and ought to be respected by both the public authority and private individuals. But the implied condition is that there is some sort of civilized structure before this natural right can be said to arise:

Is it by law of nature that things are owned privately, with certain limits, under the common circumstances of civilized life? It is. But notice that the statement is not particularly sharp: "within certain limits" and "under common circumstances of civilized life." In a very small tribe in a tropical forest, for instance, in the Amazon or Equatorial Africa, what meaning does private property assume? Are those common conditions realized which are needed in order that it be naturally right that there be some sort and some amount of private property? Perhaps not. . . . Do not try to obtain more precision, more specification, by way of logical connection. It will not work. . . . Clearly the answer to this question is not to be found by way of deduction from the axioms of natural law. The issue is not one of logic but of prudential determination.

Simon, 154.

The logical connection between necessary premise and ineluctable conclusion is, relatively speaking, rare. More common is it that we have contingent conditions to antecedent premises, or conditions relating to circumstance that drive us out of the comfort of logical connection into the realm of determinations (determinatio), and into the real of prudential, not logical, thinking. We travel from law into judgment. (See From Law to Judgment: Lex Nuda to Lex Vestita.)

[A]s soon as specific situations and specific regulations are involved, there is absolutely no possibility of proceeding by way of logical connection. . . . [W]e are in a flood of contingency and we have to find our way by methods that are appropriate to dealing with contingencies. . . . This point is of signal importance to this discussion. Even those things which in rough outline may be considered deductions from what is naturally right do not constitute standards or links by which the ultimate particular determinations might be logically connected with the first principles. . . . The particulars of regulation belong to prudential determination, not to logic. Logical connection is not completely severed.

Simon, 156. As an example, Simon points to the issue of marriage. Incest is against the natural law. From this principle we may logically apply it to very close relatives. But what about third cousins? What about fourth cousins? Are these latter always and everywhere encompassed by the prohibition against incest? Can the prohibition against incest, once we progress to third or fourth cousins, be dispensed with? Under what circumstances? We have clearly ventured down the path from logic to contingency, from law to prudence and judgment. The answers to questions in the area of prudence become much more knotty, much more subject to argument and differing opinion, much more various.

Finally, there are differing levels of necessity between human inclinations, or between laws of human nature. And human inclinations conflict with other human inclinations. Laws of human nature may conflict with other laws of human nature. And inclinations and laws may likewise conflict. And in such instances, the more necessary of the inclination or law at issue tends to supplant or override the inclination or law of lesser necessity, not unlike the situation in a scale, where the heavier weight overcomes the lesser weight. As an example, Simon points to monogamy, polygamy, and polyandry. It may be that, by natural law, monogamy is normative. The inclinations satisfied by monogamy (assuring the woman the exclusive devotion of her husband), however, are less urgently felt than inclinations toward survival (assuring the survival of the tribe, which under some circumstances--say a dearth of men because of war-- becomes significant and are better satisfied through polygamy), and are also less urgently felt than the need of identifying the father of the child (which is insulted by polyandry). Thus, though nature aspires to monogamy, circumstances may be such so that more fundamental felt needs interfere with its expression, and one faces a corruption caused by competition among fundamental needs, not all of which, because of contingencies, can be met:

The transition from polygamy to monogamy which may be observed in history, constitutes a normal progress from a state where only the more necessary laws of nature can be embodied in institutions to a state where institutions can afford to satisfy the less necessary and more lofty aspirations of nature.

Simon, 157.

Alexander Cuts the Gordian Knot by Jean-Simon Berthelemy (1743-1811)

It is apparent that when these various distinctions and difficulties are put together in historical and cultural mixes, that we will find, in the history of man, and among his various cultures, departures and divergences in the understanding of and the application of the natural law. It should come as no surprise. We can add to this mix the fact that knowledge of the natural law may be recognized to be progressive, like most human knowledge, and that there is such a thing as social and cultural blindness under which we may operate.

There is absolutely no reason to postulate that man should have been created in a state of perfect acquaintance with what is naturally right; we do not postulate that he should be born with perfect acquaintance with the laws, say, of chemistry or biology. Thus there is nothing conclusive in the most common objection against natural law which notices that in a certain epoch a thing is considered to be naturally right about which the most intelligent and conscientious people were not so clear a few centuries before. That is normal; it reveals the law of progressivity, which is that of the human intellect.

Simon, 158. (Unmentioned here by Simon, though mentioned at some length later (pp. 162-63), is what may be called the law of regressivity. Man does not always progress. There is no ineluctable law of progress. And if he progresses in some areas, he may not only not progress in others, he may regress in certain areas. Thus, modernly, we have progressed in medical science and in certain moral respects (our sensitivity to the wrong of slavery or even racism). Yet we have regressed horribly, to the point of virtual savagery, in the area of the family, accepting such intrinsic evils such as serial polygamy (no-fault divorce), abortion, and contraception, not only as not evil, but even as if they are rights!)

Finally, Simon observes that there may be "an abnormal blinding of our understanding of what is naturally right." Simon, 158. Moral blindness, like physical blindness, is seen in individuals, and it follows and should come as no surprise that it may be seen in societies and cultures. The possibility of moral blindness to the natural law does not prove that there is no such thing as natural law; it simply proves that we may be blind to it.

[I]f a practice considered highly immoral, wrong by nature, in one society is commonly received by mores and by laws and by institutions of another society, it does not follow that the case of what is naturally right is dubious. The possibility of corrupt judgment in a social group cannot simply be excluded. In fact, it is to be suspected that the judgment of every social group is blind or corrupt in some respect and to some extent.

Simon, 158. Hypocrisy is never too far away; and the intelligentsia are perhaps most prone to it. It is easy to the the splinter or mote in another culture's eye, and overlook the plank or beam in one's own. (Cf. Matt. 7:5).

In terms of knowing the natural law and applying it, we sometimes confront a Gordian Knot. Our human nature is Gordias, and our knowledge is, to some degree, all knotted up. There is no Alexander on earth to whom we can turn to fully unravel the knot of of the natural law. There is no man of whom we can say:

Turn him to any cause of policy,
The Gordian Knot of it he will unloose,
Familiar as his garter.

Shakespeare, Henry V, I, 1.45-47.

There is someone we can turn to, however, to unravel the windings and turnings of that Gordian knot of human nature and natural law: God, the Incarnate Word, His Revelation in Scripture and in Tradition, and the custody of that Revelation by His Church, and most particular, His Vicar, the Pope of Rome. The natural law is as familiar to God and to His Christ as a garter is to an English knight. And the Church has been given, not an Alexandrian sword which ignores the knotty problems of human nature and natural law by slicing it all to pieces, but the sword of the Spirit which guides us through their difficult and challenging sinuosities.

Natural Law's but a Short Step to God

IN OUR LAST POSTING we discussed knowing the natural law. Before we know that law, does it exist? The answer is yes. It exists in things. Behind that, it exists in God.

[B]efore natural law exists in our mind as a proposition it exists in things. . . . [The nature of the things we perceive] we express . . . rationally, and we have the first component of the definition of law: it is a work of the reason. But notice that it is a reason measured by things [whether life, a mother protecting her baby, an untrue word, or a promise, or whatever], which bows before things: that is what we mean when say that those things are right by nature. The natural law exists in nature before it exists in our judgment, and it enjoys the latter existence--that is what natural law means!--by reason of what the nature of things is. . . . It exists ontologically before it exists rationally in our minds; it is embodied in things before it is thought out, thought through, understood, intelligently grasped. Plainly it is because natural law is first embodied in things that we declare such and such an action to be right, and such and such an action to be wrong, under circumstances which may have to be defined with great attention and particularity.

Simon, 137.

This is the predicate discussion to Simon's re-exploration of obligation, as he sees obligation as intimately tied to the notion of rational order in nature. Obligation cannot stop at things, at the non-rational, at the ontological. Obligation, if it exists, would have to be rational, and thus it requires a reason behind the ontological, and ultimately, that requires one who is ordering all things to their end, namely God.

Historically, the natural law was related or linked to a Theistic world view. God was seen as the author of both physical creation and rational creation, the physical nature and the rational or moral nature. God as a rational Creator was the "backing," the "standard," in the words of Simon, the "ultimate guarantee," which gave stability to the laws of nature, and by analogy, to the laws of the moral order. Thus all order resided in the rational, most fundamentally, in the Logos, the Reason or Word of God.

The discovery of natural law is typically found in three stages beginning with the created order. First, the natural law presents itself to our minds as an explanation or proposition for the order we witness and as being part of the "nature" of things, whatever those things might be. The second stage is the recognition that by saying that something exists "by nature," there is implied that, before apprehended by the intellect, the natural law exists in things. The natural law in things precedes our thought about the natural law, or else we would not have found it therein. We draw it out of things, as it were, out of things where we find it (even intangibles such as promises), and where it has been placed by someone else. Thus we are led to the third stage. What is it that is behind nature that leads our mind to discover that law and that is in that nature independent of our minds? We thus are led to the threshold of the discovery of the "author of nature," the "legislator of nature," the "nature" that has the laws that we discovered first with our minds, and later determined to be in these things.

And thus the law which, in the order of discovery, exists first as a proposition in our minds, secondly as a way of being, thirdly and ultimately exists in the divine mind, where it takes on the name of divine [read: eternal] law.

Simon, 139. So the rational, bows to the ontological, and the ontological bows to Reason, that is to say, God. Our reason is therefore not ultimately subservient to things, but to the God behind the things. "To know" comes from the "to be" and the "to act" of things, and all three lead to that being in which "to act," "to know," and "to be" are identical, and this is God whom we are then obliged "to adore." That's where the non serviam of those who reject the natural law ultimately stems from.

Christ the Pantokrator, El Shaddai, the Ruler of All

So it is that we confront what in practice is the real objection against natural law. The natural law implies the existence of God and all the moral responsibilities, the answerability, and in extremis, the final judgment and the possibility of punishment following. We learn that our freedom is not without responsibility, and we are responsible, answerable to another for its use or abuse. It may also demand metanoia, repentance. (The part we often forget is that it also means the opportunity for mercy and grace and reconciliation.)

There are a hundred reasons for opposition to natural law, but this is one of them and at certain times it may be the strongest: obligation in natural law does not hold unless the natural law exists in a state which is actually prior, but which is ultimate in the order of discovery--"this law is an aspect of God."

Simon, 139. In fact, it takes us to the threshold of a proof of God's existence.

The fifth way is taken from the governance of the world. We see that things which lack intelligence, such as natural bodies, act for an end, and this is evident from their acting always, or nearly always, in the same way, so as to obtain the best result. Hence it is plain that not fortuitously, but designedly, do they achieve their end. Now whatever lacks intelligence cannot move towards an end, unless it be directed by some being endowed with knowledge and intelligence; as the arrow is shot to its mark by the archer. Therefore some intelligent being exists by whom all natural things are directed to their end; and this being we call God.

Quinta via sumitur ex gubernatione rerum. Videmus enim quod aliqua quae cognitione carent, scilicet corpora naturalia, operantur propter finem, quod apparet ex hoc quod semper aut frequentius eodem modo operantur, ut consequantur id quod est optimum; unde patet quod non a casu, sed ex intentione perveniunt ad finem. Ea autem quae non habent cognitionem, non tendunt in finem nisi directa ab aliquo cognoscente et intelligente, sicut sagitta a sagittante. Ergo est aliquid intelligens, a quo omnes res naturales ordinantur ad finem, et hoc dicimus Deum.

S.T., Ia, q. 2 a. 3 co.

There is thus a relationship between obligation and order, between obligation to law and God's Providence:

Here we see about how reasoning about finality in nature and reasoning about obligation ultimately converge. The ways are slightly different, but the logical structure and the end are the same. The facts of order in the universe and the facts of obligation under natural law, i.e., that our reason bows before things, both require rationally a transcendent First Being in whom "to be" and "to act" and "to think" are one and the same.

Simon, 145.

Something More Than Pure Reason

HOW IS THE NATURAL LAW KNOWN? This question Yves Simon questions "formidable," and perhaps it is. It is certainly formidable, in fact impossible to answer, if scientific knowledge is the only kind of knowledge that is demanded. The knowledge of the natural law and its content is scientifically unknowable. For one, there is no experiment that could be envisioned to prove whether a proposition is part of the corpus of the natural law or not. Moreover, if we were to engage in a rigorously scientific social study across peoples and cultures to try to establish content of the natural law (if that were even possible), presumably on the basis of a majority or perhaps supermajority view, it's foreseeable without even taking such a study that we would confront disappointment. But which advocate of natural law ever suggested that the the natural law is to be learned through materialistic means, or that a majority opinion among men is equivalent to natural law? To the questions of natural law, like many deeper human questions questions (Does God exist? What is man's end? and so forth), science and "social statics" yield no answer. Natural law is not an empirical matter. It is not a matter of statistics. It is a matter of deep thought.

That the natural law is a matter of deep thought does not mean it is a matter of pure reason. In striving to know the natural law, we are not called to practice a discipline of pure reason, abstracted from all human inclination. Man does not become moral by physical disembowelment. There are natural inclinations that are part of the recipe of man, and that inform him of right and wrong. Natural inclinations are a form of knowing right and wrong. The natural inclinations ought not be ignored.

Thus, Yves Simon talks about the two "modes" or two "ways" of determining judgments of right and wrong, the "way of cognition" and the "way of inclination." Cognition is knowledge that is obtained "by antecedent cognitions up to axioms or experience." In other words, with respect to a certain proposition or judgment (say, doing "x" is wrong), knowledge of whether that proposition or judgment is true is gained by working "backwards" from that proposition or judgment until one reaches, through a certain chain of reasoning, back to an axiom or an irrefutable datum of experience. Once the entire chain of reasoning or cognition backwards to an axiom or a datum of experience is obtained and anchored back to an axiom or to an irrefutable datum of experience, we have what we could call rational knowledge. This is the "way of cognition." Outside of this pure chain of intellectual title (a work which Simon states in some cases may take "centuries"), as it were, we work within the realm of probable and not certain propositions and opinions. Simon, 127-28.

The "way of cognition" is not the only form of knowledge of right and wrong. Where the "way of cognition" is available, it takes a certain precedence and serves as a sort of load star. Yet, in a wide variety of matters and circumstances the "way of cognition" is not available to us. In such circumstances, the "way of inclination" is an alternative means of forming judgment on the veracity of certain propositions of what is right or wrong. However, not every human inclination is to be followed willy nilly. Only sound human inclinations are worthy guides. There are unsound or disordered inclinations which ought not to be followed at all, but shunned as unreliable guides. To follow unsound or disordered inclinations is like the blind following the blind. In post-lapsarian man, in man after the Fall, not all inclinations are planted in human nature by God.

Every plant which my heavenly Father hath not planted, shall be rooted up. Let them alone: they are blind, and leaders of the blind. And if the blind lead the blind, both will fall into the pit.

Matt. 15:13-14.

The Blind Leading the Blind by Pieter Breugel the Elder

In the way of inclination, one walks outside or parallel to (and certainly never contrary to) the way of cognition. "One way is not necessarily exclusive of the other." Simon, 130. Sometimes judgments or propositions are known by cognition and inclination ("cheating on a contract is wrong"). Simon, 135. Yet the "way of inclination" is antecedent to the "way of cognition." Simon, 135. Decisions based upon the "way of inclination" are largely intuitive, based upon "moral sign" and "moral symbol," in the extreme we are in the area of the mantic, of divination, and so may be difficult to explain and to justify. Simon, 128, 132. There is a certain groping in the dark, perhaps, in the "way of inclination," and so we ought to be open to the guidance of the prudent, the wise, the sage.

(Indeed, as Christians, we have a yet more reliable guide regardless of whether we act in the "way of cognition" or the "way of inclination": the Magisterium of the Church, which, guided by the Holy Spirit of God ceded her by the Son of God, is a competent, reliable, even infallible guide of right and wrong. We ought to be inclined to follow the Church in matters moral without--certainly external, but also internal--dissent, even in those matters that do not clearly involve infallible teachings. Sound inclination on the part of Christians would require religious submission of will and mind (obsequium religiosum) to the Church's guidance even where not clearly infallible. In the case of infallibly-taught teachings, whether ordinarily or extraordinarily expressed, more than religious submission is required: they are to be accepted de fide, as moral dogma.)

The rejection of inclinations, and reliance on reason alone, dehumanizes us. That is what makes Kant so unattractive. Similarly, it is what makes Bertrand Russell such an unattractive guide in the area of marriage and sexual mores, for example. (Bertrand Russell had the temerity to write a book Marriage and Morals, when his own multiple marriages were failures, and his affairs and infidelities notorious. He was a cad, a very clever cad, perhaps, but a cad. Only a fool would take him as a guide of marital life and its morals.) These men, and those of their ilk, disemboweled of all inclination, seem to relish in a way of cognition alone, as if the natural inclinations, prejudices, repugnance of men even when sound ought to be ignored as if they were voices of sirens.

Indeed, sound inclinations are not the voices of sirens.

They are the voice of God.

They are part of the way of the natural law.

Tripartedness of Man's Nature and His Law

IT WOULD SEEM VIRTUALLY INARGUABLE that there is a natural law. It is implied by every positive law, by the fact that we argue over such positive laws' justice, whether they ought to be passed or amended, or even whether and when they ought to be obeyed. It is really only stubborn unwillingness to face the consequent of the natural law (that we may be answerable to something other than ourselves, God perhaps) that makes some men stubbornly refuse to acknowledge the natural law's existence. The consequent that some find unattractive is that man is limited, is constrained by his very nature. He cannot do as he like without fault. But that he may be limited by nature is not a limitation on his freedom. For man can like what he ought not like; he can like things that contradict his very nature. He is a creature who, as a result of his free will, can defeat his own nature, his own purpose, assault his very nature and so is open to self-injure or self slaughter. Man does not like to hear "no," even though the "no" is what keeps him in the "yes," sort of like the curbs or side rails keep one on the road. Some people, I am not quite sure why (the mystery of iniquity), like to ride off-road, and invariably end up in a ditch or worse.

"[N]othing would be right by [positive] enactment if some things were not right by nature." Simon, 118. In his treatment of the natural law, Simon explores a bit further the meanings of the word "right," ius. Like the word "law," lex, it is a word with rich implications and equivocal though related uses (i.e., analogical). The principle meaning of right or ius (or jus) is "that which is right, the thing that is right, the objective right," what Aristotle would call τὸ δίκαιον, or Cicero would refer to as justum. This is tautological, but fundamental.

Another meaning of "right" is more directly related to law. "That which is right is always such, in some way or other by reason of a law." There is a sort of confusion caused by this link between law and right, because the law by reason of which what is objectively right is also called ius or jus in Latin. That use of the word is carried over in most European languages, so we have the word Recht in German, droit in French, diritto in Italian, derecho in Spanish. The word plays therefore a dual role. In English, on the other hand, that concept is carried by the word "law," and so English is particular in parting the first meaning of ius (the right) with the second meaning of ius (the law underlying the right), and it putting the second meaning under the auspices of the word law. What all this means is that the English word "law," instead of the word "right" carries a dual role that it does not have in the other mentioned languages.

This famous particularity of the English language has probably exercised considerable influence on the Anglo-Saxon way of thinking about juridical (or legal matters. What is called the study of jus, Recht, droit, diritto, derecho, is not called the study of right in English, but the study of law. A whole library could be filled with controversies as to whether it is felicitous or not that one and the same word, "law," should be used to express the two ideas which are expressed in Latin by ius and lex, in German Recht and Gesetz, in French by droit and loi, in Italian by diritto and legge, in Spanish by derecho and ley.

Simon, 119.

The third meaning of ius, Recht, droit, diritto, derecho, in English "right," is "the legally recognized and sanctioned claim or faculty to do this or not do do that." This is a post-law notion of "right," which translates to being a "claim or a faculty" which is resident "in a person, or in a community, to whom something is due," and so may be "described as a good, as a service, or as a freedom to do or not to do." Simon, 120. This use of the word "right," which arises subsequent to law is entirely distinct from the other uses of the word "right." The use of the word "right" in this sense, not as the thing which is right, nor as that which is objectively right, but as that which a person can claim as due to him or her by reason of contract, or of positive law, or by custom, or even by nature is of relatively recent origin. Whether it was felicitous that the same word "right" was selected to describe something distinct is really beside the point, since by this day and age this use of the word "right" as claim due to one is too entrenched to change. We must suffer it, and the difficulties in thinking and communication is poses.

Going back to the first use of the term "right" as "that which is right," Simon insists that there are things that are right by nature. "The right by nature . . . would be that which is right by reason of what the things are. In other words, if some things are right by nature, that implies that a law exists in the nature of things." Simon, 120. And here Simon confronts the big division between the physical and moral worlds, both of which would appear to carry the same implication: that there are some things that are right by nature, and so imply that there is a law in the nature of things physical and things moral. So Simon considers "first the unity and then the contrast in the expressions "natural law" and "law of nature," the first by convention used to speak of the moral world, the latter by convention used to speak of the physical world.

Admittedly, there has not been absolute consistency in the use of these terms as referring to the physical world or the moral world. Often enough, the word "law of nature" is used in moral contexts, and the words "natural law" are used in physical contexts. And these are not two absolutely distinct worlds anyhow. There is substantial overlap between the physical and moral worlds, at least in man, and so we simply have to deal with the vagaries in human language. One, however, must recognize that, in man, there is a large area where the "law of nature" in terms of physical law overlaps with the "natural law" in terms of moral law, and it is a false dualism to propose that the physical nature of man has no meaning to his moral nature. It is a false division that was introduced largely by Kant. What Descartes did in dividing the world of matter from the world of soul, Kant did in dividing the physical world from the moral (and intellectual) world. The idealistic philosophies such as that of Kant, "sharpen the contrast between the universe of nature and the universe of morality." Simon, 121. And improperly so.

The Two Worlds in Which Man Moves

Eppur si muove, Signor Kant. The contrast between physical and moral worlds, as Simon notes, "is not so complete" as Kant would have it and would parcel it. Simon, 121.

[M]an, after all, also has a nature; man resembles other things inasmuch as he also has a nature. There is an interior, an immanent law of operation which connects the universe of mankind with the universe of physical nature. Indeed, laws of the physical kind extend to a number of aspects of man. . . . [and being] antecedent to free choice . . . these things . . . belong to the universe of nature. . . . What is particular about the natural law of man, of the moral world, is that essentially it operates through free choice. It exists as a rule inherent indeed in the nature of things bu which does not direct operation in determinate fashion. It governs behavior through judgment and through free choice.

Simon, 122. So man straddles two worlds: the physical and moral world, and, though they may be distinguished, they are, in reality, not entirely separate. There is a physical part. There is a moral part. There is a part that is both physical and moral. The physical informs the moral. The moral informs the physical. Man is one, not two, though there are two aspects to his unity.

Because of man's unique or particular nature, the natural law as it pertains to him may be divided into three divisions according to Simon. The first two divisions of natural law relate principally, but not entirely, to the physical world. Whereas the third division relates principally, but again not entirely, to the moral world.

The first division stems from the fact that "there are in man tendencies which he has in common with all things, above all, the tendency to keep existing." Simon, 123. Simon here invokes the words of Baruch Spinoza: "Every being strives to persevere in being." [Ethics, III, 6] (Conatus, quo unaquaeque res in suo esse perseverare conatur).

The second division relates to "inclinations that man has in common with animals."

Here man communes in a sense with all living nature, but more particularly with the animal nature, since both in man and in many animal species there is some infrarational control of these inclinations. Included in this division are the matters of sex in general, the association of male and female, the care of offspring.

The third division relates to "the inclinations proper to rational beings." It is perhaps the richest, and includes a panoply of human institutions and inclinations: the requirements of life in society, the desire to search and know the truth, to worship God, to express oneself, the problem of obedience, of government, etc.

The Three-Fold Division of Natural Law in Man

This three-fold division in man results in an all-encompassing view of the natural law:

Thus everything that is right by nature [in man] is right either because the universal nature of being is such, or because the universal nature of animal is such, or because the rational nature is such. This threefold classification insures the community between the natural law of the moral world and the natural law of the physical world, no matter how sharply these laws may be contrasted in some respects. After all, man is part of this universe; after all, man has a nature.

Simon, 124.

The theory of natural law is decidedly not Kantian. In practice, Kant placed a huge divide in physico-moral man, a huge intellectual cut between his physical and animal natures and his rational nature. "[T]he most constant tendency of Kant and the Kantian tradition is to strengthen, bring forth, overdo, render overwhelming, if not theoretically exclusive, the contrast between the universe of nature and the universe of morality." Simon, 124-25. The advocate of natural law is absolutely open to the three-in-oneness, the tripartedness yet essential unity of man.

The natural law of the moral world is immanent in a person by reason of his being a being, by reason of his being an animal, and by reason of his being a rational agent with inclinations, tendencies, aspirations which cannot be arbitrarily chosen. Concerning human behavior . . . it is by judgment and by choice that we act either according to or at variance with the inclinations of being the inclinations of the animal nature, and the inclinations of the rational nature.

Simon, 125.

From Law to Law: De Legis ad Lege

THE WORD "LAW" DOES NOT CUT LIKE A KNIFE, and does not handle lightly, precisely. It is a blunt, broad, heavy word with a significant depth and breadth of meaning, and it is easy to get lost in a thicket if we forget that the word "law" has rich analogical meaning and varied conventional use. The context where the term is used (at least in English) is truly daunting: a "law" of physics (say, a "law" of thermodynamics or the "law" of gravity), to mathematics (one may mention the commutative, distributive, associative "laws"), to economics (e.g., the "law" of supply and demand), to the laws of human communities (the "law of the land"), to authority ("Stop! In the name of the Law!"), to moral behavior (the natural "law"), to religious, revealed law (the "Law" of Moses, the "Law" of Grace). We even attribute laws to bad luck: Murphy's "law." Except for perhaps its use with respect to Murphy (where the use of "law" is metaphorical), the uses of the word "law" in these various instances are clearly are certainly not used univocally, but neither are they used entirely equivocally. Their relationship is analogical. "The analogy involved is that of proper proportionality, it is not a metaphorical analogy, and it is not analogy of attribution." Simon, 110. [For discussion on analogy, see The Analogy of Law: From Law to Law.] Thus, we have the situation where there is a proportion of a proportion. In mathematical relationships, the proportionality analogy may be depicted thus:

The proportionality analogy may be applied mutatis mutandis to conceptual relationships, so that there may be an analogy of proportionality between human law and human society and the natural law and mankind, or even the eternal law and the cosmos.

The analogy of proportion may be extended even further, so that the relationship between the various elements of positive law that we have studied, say the requirement that the law be a rule of reason, or for the common good, or supported by sanctions, or promulgated by the one that has responsibility for the community have analogical relationships with the natural law. As a result, we may say that the natural law is also a rule of reason, for the common good of mankind, supported by sanctions, and promulgated by the one who is responsible for mankind. For example, the relationship between a human legislator and the positive law may, by analogy of proportionality, be extended to explain the relationship between God and the natural law.

Having defined the positive law and identified its various components, and aware of the analogical use of the term law, we may then ask ourselves "whether the understanding of the positive law leads rationally to an antecedent, to a more profound or universal law, which we might call the 'law of nature'." Simon, 111. In answering this question, Simon asks three further questions. First, what is it that is meant when one asks whether a human positive law is just or unjust? Second, on what grounds is it that we conclude that a positive law ought to be changed? Third, why should positive human law be obeyed? Through the use of these three questions, Simon concludes that there is a law underlying human positive law so that "nothing would be right by [human] enactment if some things were not right by nature." Simon, 118. In short, human law presupposes a natural law, or human law makes no sense.

On the question of whether a human law may be just or unjust, men are almost unanimous that human laws can be just and that human laws can be unjust. In the extremes we may find doubters, so that anarchists would believe any human law is, by definition, unjust. At the other extreme, we may find inveterate positivists that would maintain that it is meaningless to mix terms like "justice," which is a term of value, with a term like "law," which is a term of fact.

But the extremists are not consistent with their ideologies, however sincere they may hold them. One wonders, for example, if Anarchist groups do not have organizational rules to handle their operations and governance. And they would be the first to invoke the laws protecting free speech if governments made efforts to squelch them. And even the most stubborn positivist, unless he were a Nazi supporter and blinded by its ideology, would admit that the laws against non-Aryans in Nazi Germany would be unjust. "The problem of injustice certainly exists with regard to every positive law." Simon, 113. Indeed, the question as to one law (and its justice or injustice) may be framed so as to encompass an entire political system. As a matter of unanimous practice, men discuss the justice of laws and of political systems, a practice which implies a notion of an extra-legal or extra-political standard. By further implication, this extra-legal or extra-political standard suggests an end or a purpose of law or of political systems.

The second question--when and on what grounds ought a positive law be changed?--in one way is already answered by the first question. A law ought to be changed on the grounds that it is just to change it, or at least not unjust to change it. (In fact, the question is asked when the law is passed in the first place.) This clearly suggests, again, and extra-legal standard, a natural law underlying all positive law. The difficulty of discovering its particulars does not justify refusing to acknowledge its existence.

This brings us to the last question. Why should human law be obeyed? "If there is no idea of an antecedent law," Simon observes, "the reason why positive law should be obeyed is entirely contained in the constraint possessed by civil society." Simon, 116. In other words, law would have no claim on the conscience, but would be obeyed only to avoid the sanctions that the state could impose upon us. Obedience to law would based upon reasons entirely pragmatic. In other words, the motive for obedience to law would be reduced "completely and in all cases, to a desire to avoid the trouble which would follow if the law was disobeyed." This may be often a motive. But can it be the only motive all the time? Is this sufficient grounds for justifying obedience in all cases? Simon thinks not. Most fundamentally, if one were to accept the argument that obedience to human law is in all cases justified by avoidance of sanction or inconvenience, then we are really voiding men from any obligation toward the positive law, and instead basing the relationship between positive law and men "in sheer power." Simon, 116. With respect to this, Simon observes:

There is an almost universal reluctance to interpret the obligation to obey positive law in terms which annihilate it and replace it by a system of physical constraints where there is no choice, no freedom, and no morality. The obligation to obey positive law obviously requires a different interpretation and this must be derived from the definition of positive law.

And that definition of positive law includes references to an extra-legal standard. In this case, the legal standards are in the definition: reason, for the common good, etc. Others may be further implied. What it suggests, even if simply by inclination, is that there is an extra-legal justification, one other than sheer power, that would make human law something that ought, if just, if ordered to the common good and predicated upon reason, to be obeyed, even if it results in inconvenience to ourselves.

So Simon concludes:

To sum up. No one could maintain with any appearance of consistency that it makes no sense to ask whether a law is just or unjust. And if we confess that the question makes sense, we also confess that there is a justice anterior to human enactment, that prior to their being just by reason of enactment some things are just by nature. These considerations also explain why a law happens to be changed. Finally, to say law should be obeyed exclusively because of the trouble which somewhat regularly follows upon the breaking of law is dialectically impossible. Men have never reasoned that way. When a society is in such a condition that its laws are obeyed only insofar as there is real danger of being caught and punished, it has already disintegrated and even the fear of punishment cannot do much to hold it together.

Simon, 117-18.

On the last observation by Yves Simon, we may wonder if we have not already reached the point of social disintegration.

Flying Solo and the Natural Law: The Common Good as Part of the Moral Order

AN OVEREMPHASIS ON INDIVIDUALISM will usually land one outside the philosophy of natural law and even outside human law properly so called. That is one reason why the natural law philosophy is largely out of favor. Individualism may be defined in a variety of ways, but ultimately, individualism looks at the common good as something merely utilitarian or useful. That is, the common good, is "a mere means to the good of individuals," and outside of this has no independent justification. Simon, 97. The common good does lead to the private good of men, but it is a misinterpretation of its importance to view it as a means, and not an end in itself. By subordinating the common good to the individual good, that is by making it the desire of private good and private action, one misinterprets it, and in fact destroys the notion altogether. There must be a common desire and a common action behind a good, and not a multiple of private desires and common actions, if a good it to be called authentically common. Adam Smith's "invisible hand" which supposedly guides individual choice and individual demand and individual supply and leads to the common good is farcical of the common good. By definition, selfishness, even if it may accidentally or even frequently also benefit the commonwealth, is not conducive to common good, at least one strictly so called.

But more is required that mere common desire and common action for there to be a common good. In addition to common desire and common action, this good, to be common, also requires a distribution to individuals; the common good must not be kept apart from or segregated from the individuals that make up the community. So Simon concludes:

A thing which has the appearance of a common good, inasmuch as it cannot be realized without common desire and common action, is not a common good and may amount to sheer destruction if it is kept apart from the persons who make up the community. . . . The accomplishments of common desire and effort if left undistributed are actually kept out of society and denied the character of common good.

Simon, 98. Three things, then, in Simon's view must exist for a common good to be a common good in theory and fact: (i) a common desire, (ii) a common action, and (iii) a distribution, in some fashion, among the individuals who make up the commonality.

Simon draws from a stray comment of the Communist Manifesto to make a point (though not by any means advocating any of its principles!). "The bourgeoisie," Marx and Engles state, "has accomplished wonders far surpassing Egyptian pyramids, Roman aqueducts, and Gothic cathedrals." Both the Roman aqueducts and the Gothic cathedrals can be considered common goods, so long as they are not withdrawn from access by the public. All men may drink the water the aqueduct guides into the city, just like all men can drink the living waters by attending the cathedral. The pyramids, on the other hand, are not common goods. There was no equivalent distribution among the people of the sizable human labor that was expended on these monuments for the glory of the Pharaoh. "The Pyramids of Egypt are a rather clear example of an undistributed and undistributable common achievement." Such things still occur, they are often the result of "pork barrel" spending, as when "a road is built, at great public expense, for the service of a very few people." Simon, 99. This reminds one of the famous "Bridge to Nowhere," a 365 million project to link the town of Ketchikan (population 8,900) and the island of Gravina (population 50) in Alaska.

Given that there has to be some appropriate distribution of a common good among the population to retain its characteristic of a common good, Simon asks whether the common good becomes utilitarian relative to the good of the individual that participates in it. In other words, does it become a mere means? No, says Simon:

[T]he law of distribution which is that of the common good in no way prevents the common good from enjoying the character of an end, and of an end higher than the private good, and of the final end if the community under consideration has the character of a complete community.

Simon, 100-01. (That's why Aristotle referred to the common good (which he calls the "good of the polis") as "greater and more divine," κάλλιον δὲ καὶ θειότερον, than securing private good. Arist., Nic. Eth., 1094b8. This preeminence of the common good is derived from its "completeness" and "duration," qualities that we discussed in our previous blog posting.

Not only does the common good take precedence over the private good because of its relative duration and completeness, there is also a sense of hierarchy or ordering in the types of goods (and evils). Drawing upon the thought of Pascal in his Pensées, [frag. 792], Simon makes this point. In this fragment, Pascal expresses an important truth. While within certain orders goods may be incommensurable, across certain orders they may not. Some goods are of more fundamental value the others. There is a difference of kind between some goods and others, or some evils and others. Not all matters are differences in degree.

Pascal expresses, with his unique power of words, the great metaphysical and ethical truth that all good of a lower order falls sort of any good of a higher order.

Simon, 102.


This is a truth utterly forgotten by moderns, who are loathe to make judgment calls, as if all value is a matter of taste. For modern ears, the sentiments of St. Thomas or of Cardinal Newman are incomprehensible

The good of grace in a single soul is greater than the good of nature in the whole universe.

The Church . . . holds that it were better for the sun and moon to drop from heaven, for the earth to fail, and for all the many millions who are upon it to die of starvation in extremest agony, so far as temporal affliction goes, than that one soul, I will not say, should be lost, but should commit one single venial sin, should tell one willful untruth, though it harmed no one, or steal one poor farthing without excuse . . . she considers the action of this world and the action of the soul simply incommensurate, viewed in their respective spheres; she would rather save the soul of one single wild bandit of Calabria, or whining beggar of Palermo, than draw a hundred lines of railroad through the length of Italy, or carry out a sanitary reform in its fullest details in every city of Sicily, except so far as these great national works tended to some spiritual good beyond them.

S. T. Ia-IIae, q. 113, 9 ad 2; John Henry Cardinal Newman, Certain Difficulties Felt by Anglicans in Catholic Teaching (London: Longmans, Green & Co. 1891), Vol. I, 240.

Here is a traditional truth entirely lost, one shared by St. Thomas, Cardinal Newman, Pascal, and anyone that gives a moment thought to eternal verities: "[A]ny good of the higher order is greater than the totality of the good that the lower order admits of." Simon, 102. (It should be noted that this notion is entirely lost by the advocates of the "New Natural Law Theory such as Finnis, Grisez, and George, who hold all human goods to incommensurable and do not admit of this sort of hierarchy of goods.) The physical order is subordinate to the rational order, and the rational order is subordinate to the natural moral order, and the natural moral order is subordinate (though never contradictory) to the order of grace. So, for example, one should never intentionally kill an innocent human being even to save one's physical life, or to gain riches, or to acquire knowledge, because this would be to commit a moral evil to so as to gain advantage in the physical or rational orders, violating this hierarchy that prevents such confusing of orders.

Simon then asks the question of what order--physical or moral--the common good may be placed. When one hears the Ciceronian saying: salus populi suprema lex esto, the health of the people is the supreme law, which is nothing other than the principle that the common good of a people is the centerpiece of law, is this suprema lex a law of the physical or moral order? It is, Simon insists, a principle of moral order, and so supreme, but not absolutely. That the common good should be at the center of law, should be its end, is a supreme principle:

Supreme, indeed, not absolutely speaking for the order of charity [which I've characterized as the order of Grace, L.C.], in the words of Pascal, is above all the perfections of nature; but supreme in an order that it would be most inappropriate to designate as physical, material, or external. The common good of the civil society . . . [is in the] order of moral perfection, which remains essentially naturally and never should be confused with the order of charity (in the strictly theological sense which is that of Pascal) . . . . Of this common good it should not be said that it is the ultimate end absolutely speaking, for it is an ultimate within an order which is not itself ultimate.

Simon, 105. Simon then concludes:

[T]he common good indeed enjoys primacy over the private good of the individual, when both are of the same order, but that at the same time the common good is internal to man and by its very nature requires continuous distribution among the members of society. As such it is the end of the laws of the state. . . . If the purse of law is common, the cause also must be common. Thus the law is a rule of reason, relative to the common good which, on account of its relation to the common good, proceeds from the community. . . . [t]he making of law belongs either to the community as a whole or to someone who is in charge of the community. . . . [and] has to be promulgated, it has to be conveyed to the knowledge of those who are subject to the law.

Simon, 107-08, 109.

When one gathers together all the thoughts of Simon on human law, the analogate of law with which we are most familiar, he proposes, in fact, the definition of law of St. Thomas Aquinas:

Law is an ordinance of reason for the common good, promulgated by him who has the care of the community.

[Lex] est aliud quam quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata.

Simon, 109; Ia-IIae q. 90 a. 4 co.

Using his understanding of human law as the analogate, Simon now turns to what it may tell us of the natural law, the natural moral law.

The Common Good and Its Counterfeits

THERE ARE RULES, AND THEN THERE ARE LAWS. Laws are rules, but not all rules are laws. What is it that distinguishes rules or ordinances from law in the strict sense? The distinguishing feature between laws and all other systems of order is that law "stands for a rule relative to the common good, and more precisely, to the common good of a community distinguished by [a relative] amplitude and completeness." Simon, 87. The laws' direct relation to the common good raises in tandem the question of whether the common good has a relative primacy over private good, and thereby have a superior claim to our loyalty over our private interests. This takes us directly into the question of the relationship between the individual and the community. In this post we will review Yves Simon's comments regarding the common good. In the next we will address Simon's comments regarding individualism.

The modern Western world idolizes individualism, and shuns any form of collectivism, and with such bias becomes tone deaf to the calls for the common good, to solidarity among people. Modernly, there is, without doubt, a bias against the common good to which we must become sensitive if we are to regain balance. The prevailing individualism expresses itself in the language of right at the expenses of the language of law; whereas a collectivist view will express itself in the language of law at the expense of the language of right. To walk between excessive individualism and excessive collectivism and speak in terms of the "common good" where both individual and collective good are balanced is to walk a tightrope. (The disease has infected even Evangelical Christianity which talks much of a personal, individual relationship with Christ, but seems to have completely overlooked the equally important obligation of membership in the Church and incorporation into the Body of Christ. Private prayer and private penance is given precedence over public liturgy and public confession.)

For all the value placed on the individual, it is apparent that the community has certain qualities that make it transcend the individual in the natural order. Simon places the preeminence of the community to the individual in the qualities of "duration" and "completeness" that the common good has over the private good. These qualities of the community are what justifies law, which aims to the common good, and not private good.

The common good is of greater duration than individual good. It is true that human communities do not live eternally; only individual human souls do. Knowledge of the individual soul's immortality is something that is vouchsafed by reason and by revelation. (The Church, being of divine institution and not of natural institution is excluded from this analysis, as the Church , in distinction from the State, transcends time and lives in eternity in the Church Triumphant. But there is no "Tribe Triumphant" or "State Triumphant" or "Nation Triumphant" in the Eschaton.) Though only the individual soul is immortal, the individual soul's immortality does not impeach the importance of the community in the natural order which persists beyond the individual deaths of men, irrespective of the eternal life of their souls. Simon refers to the requirements of the duration of the temporal order over and against the individual as the "problems of duration."

In this life, contemplation, joy, and the happier forms of love raise men above the world of becoming and destruction. But these true images of eternity are accessible here below, only by rare privilege, and their supratemporal way of existing is quickly suspended by the needs of a life which never ceases to be engaged in the stream of universal becoming.

Simon, 88. Wealth, education, language, science, culture, tradition. These are natural goods that must be taken up and passed down, or they would be lost by the death of the individual if not resident in the community, and these therefore have a life beyond the individual. They reside, as it were, in the community, and an individual shares in them but in passing. These endure in community, but not in the individual. Macbeth well-expresses man's short, seeming limited contribution in the natural order, albeit with the pessimism of a pagan:

To-morrow, and to-morrow, and to-morrow,
Creeps in this petty pace from day to day,
To the last syllable of recorded time;
And all our yesterdays have lighted fools
The way to dusty death. Out, out, brief candle!
Life's but a walking shadow, a poor player,
That struts and frets his hour upon the stage,
And then is heard no more. It is a tale
Told by an idiot, full of sound and fury,
Signifying nothing.

Shakespeare, Macbeth, V.5.19-28.

The human species is expressed but briefly in an individual life, individual life is an ephemeral spark. Yet within the chain of individual lives one finds in the expanse of generations that occurs in the life a community, a nation (though nations come and go) and, more broadly, a human people (such as the Jews, though they come and go, e.g., the Cro-Magnons) or, more broadly yet, the human species, that human life persists virtually immortal. No individual man has the staying power, the duration of a family or tribe, much less of a nation, a people, or the species. "The duration is a trait by which the primacy of the common over the private good is clearly established." Simon, 89.

There is, however, something more than "duration" that accords a dignity to the common, rather than the individual, life. "[M]ore profoundly, it is a completeness which determines the greater excellence of the common good." Simon, 89. What does Simon mean by "completeness"? The fact is that individuals are limited. This is what drives the need for the division of labor and the specialization that comes with it. The specialization is required even for the necessaries of life: safety from aggression, shelter, food, and so forth. But the specialization is required a fortiori for the more noble pursuits: the sciences or the arts, or even moral wisdom. There is, therefore, an intrinsic need to contribute to the common life, to sociability. "This need is so deeply rooted in our rational nature," notes Simon, "that when it is frustrated it soon breeds a singular power of destruction." Simon, 90. Refuse a man a wife and friends; put him in solitary confinement, or worse, educate him in moral solipsism, and you will see what Simon means.

There are common goods. Yet there are also their counterfeits. Utilitarianism ("greatest good for the greatest number") suggests a recipe for the common good, but it is a counterfeit, since at the heart of its premises is still the individual good, which it merely sums up. Utilitarianism is a calculus of added individual good, and so it is qualitatively different from a true understanding of the common good. The difference between a utilitarian view versus a solidaritarian view is the difference between a bunch of people watching the same pornographic film in solitary porno booths versus men watching a football game in a stadium in common. The former really involves nothing that could be characterized as a common good. Add up the multiple individual mastubatory orgasms and you do not derive one iota of common good.

To bring forth the qualitative difference between the common good and the private good, let us remark that a good is common if, and only if, it is of such nature as to call for common pursuit and common enjoyment. It is not an addition, or a multiplication, but an objective relation of the thing desirable to the powers of desire and attainment which distinguishes the common good from the private good.

Simon, 90. Such goods as public peace and safety, the moral order, educational institutions are common goods.

It may be difficult to say in what respects man is, and in what respects he is not, a part of the community. What is not open to doubt is that insofar as the individual has the character of a part, the principle of the primacy of the whole signifies not only that the common good is greater, but also that the private good may have to be sacrificed to the greater good of the community.

Simon, 91. This is what justifies occupations such as the police, or firemen, or the military, who are expected to, and are honored for, sacrificing their lives for the good of the community if called upon to do so. They are heroes to the common good.

There are, however, counterfeits to the common good. As previously mentioned, utilitarianism is one such counterfeit. Another counterfeit is what Simon calls "the myth of a common good external to man," a myth which lends itself to "the temptation . . . to conceive a human community after the pattern of a work of art and the excellent condition of the human community after the pattern of perfection supplied by a masterwork." Simon, 92. This is the haunt of social engineers, of liberals, of socialists, of communists, of collectivists. Tied to this is a tendency to absolutize, even divinize the State.

Apotheosis of Washington, Winterhur Museum

Apotheosis of the Spanish Monarchy by Tiepolo (Fresco at Royal Palace, Madrid)

Politics is not an art; art can be morally vicious, let us say lewd, yet aesthetically or technically perfect. Politics ought not to be thought to be the same way as art. Politics, if morally vicious, is by no means good. Politics is, in its foundation, a virtue which incorporates moral right and the exercise of prudence, and so it defines itself by whether it is morally good. When the common good is treated as a thing of art alone without reference to external moral standard, technical political prowess, not political virtue distinguishes the public man. Politics becomes instrumental, not prudential. Statecraft becomes not soulcraft, but the art of manipulation, of propaganda, of show, of celebrity. It is what gives us Trumans and Clintons and Obamas instead of Washingtons. More sanguinely, it is what gave us Napoleons or Hitlers or Maos, instead of Charlemagnes or St. Louises or Charles Vs. This is because "no art solves any problem of human use," Simon, 94, and so if politics is considered an art, substantive standards are waylaid. The image Simon uses leads one to think of a Dr. Hannibal Lecter:

A clever physician known to be possessed of criminal dispositions is the least desirable person at the bedside of a patient, especially if the patient happens to be an obstacle to the physician's design.

Simon, 94. So likewise, the reign of politics ought not to be given to a man or woman that is morally unfit, even if he may be politically savvy.

The tendency to view governing or politics as an art and not a virtue is exacerbated by the overly secular and materialistic good we have of social good.

The myth which identifies the common good with the perfection of a work of art and thus represents it as something nonhuman is constantly strengthened by the assumption that society, or at least the temporal, as distinct from the spiritual society, is concerned only with external actions, such as digging, orderly conduct in the street, marching, charging and retreating according to orders, paying taxes, fulfilling contracts, etc. Political society, in this view, would have nothing to do with what goes on in the heart of men.

Simon, 95. The common good thus encompasses the whole of man under God. It is something manifestly separate from the State. The State is its servant, not its master.

From Law to Judgment: Lex Nuda to Lex Vestita

FROM REALM OF GENERALITY TO THE REALM OF PARTICULARITY, from the realm of law to that of judgment, from the realm of certainty and necessity to the realm of probability and contingency, from premise to conclusion, from principle to determination, from the realm of reason and logic to the realm of inclination, prudence, feel, and soundness. This is the path one travels in moving up from the naked law, the lex nuda, to the fully determinate judgment immediately prior to action, which, if it is lex, is a lex vestita, a law clothed by contingency and particularity, a law only in a manner of speaking, not a law strictly so called.

"A law is a rule and there is nothing more essential to it than the intelligible features implied in the concept of rule. These include universality and necessity." In fact, "if any law is so grounded in a necessary state of affairs as to be unqualifiedly immutable, this is a law in the most excellent sense of the term." Simon, 83, 85. But law is the beginning point, not the ending point of the decision behind a human act. At the end of the decision ladder, "[t]he individual case with which practical judgment ultimately has to deal may always be in some significant respect, unique, unprecedented, and unrenewable." Simon, 82. Thus, the last conclusion of the practical reasoning from law to judgment is "marked in essential fashion by features of strict singularity and of contingency." Simon, 82. And as we clamber up this decision-making ladder we move from the realm of law into the realm of judgment, from lex nuda to lex vestita, the latter, in some ways, being even the opposite of law. The final product is not lawless, but it is in some ways no longer law. "But in a judgment marked by singularity and contingency we recognize features opposite to those of law." Simon, 83. This shift, this change is remarkable.


In many of the decisions that confront us immediately prior to action here-and-now, hinc et nunc, though the judgment may be informed by law, the final conclusion is so marked by contingency of time, place, manner, and circumstance that, at its end stages, the decision may be marked less by pure didactic reason than what Yves Simon calls "inclinations," or an "affective connaturality," a "practical wisdom," in short: the virtue of prudence.

Law is, by its nature, universal, broad, not particular, not narrow, not molded to the unique individual decision and individual judgment. In the region of law, reason and its syllogism reigns supreme. However, the judgment immediately prior to an individual action is, in most cases, particular, contingent, narrow, virtually in some ways the opposite of law. Ultimately, though judgment is not law-less, judgment is not law. And somewhere in between law and judgment there comes into play the notion of practical wisdom, something distinct from the steely syllogistic logic of premise to conclusion. At the end of the process from law to judgment, one begins to enter into the realm of "feel," of "soundness." Surely, not irrational "feel" or "soundness," but "feel" or "soundness" nevertheless. There is a subtle change as one travels from law to judgment, one where the actor shifts incrementally from logician to sage, from legislator to judge, from syllogism to prudence, from law to virtue. This is what happens when we move from the nomos physeos, the universal natural law whose subject is "We," to the nomos autos, the individual "law" (which is in reality judgment) of the here-and-now whose subject is the "I."

That prudence, sound inclination, or practical wisdom, and not syllogistic reason, take the upper hand in judgment immediately prior to action ought not to disturb us. First, such prudence or sound inclination is not in contravention of law or reason. Prudence and sound inclination is not, by any means, antinomian or irrational; at its lower rungs, the universal law and its ratio ordinis remain at the base of the law/judgment ladder. More, however, the tempering as it were of the law as it is adapted to contingencies allows for the entrance of something entirely new: love.

Prudence, practical wisdom, admits of a variety of states. In whatever state it exists, it remains a disciple of love. But it may be more or less enlightened. The more enlightened its condition, the better it satisfies the requirement that human conditions be ruled and measured by reason.

Simon, 85.

Law is, then, at the fundamental premise of human action, and as one progresses from absolute and unchanging moral law to judgments based upon prudential bases one progresses from law to judgment. Thus laws, to the extent they include within themselves more prudential aspects, become less like laws and more like judgments.

This fact reminds us that laws participate unequally in the character of law. Inasmuch as a law is a work of the reason, the ways of inclination used by prudence, no matter how reasonable and necessary they may be, satisfy the essential implications of law less completely, less plainly, than the ways of rational necessity. A law is more or less a law according as it has more or less completely and directly the character of a work of reason.

Simon, 86.

Law: Is It Will First or Reason First?

LAW IS A RULE AND A MEASURE OF HUMAN ACTION. With this "nominal and dialectical definition," the "commonly accepted" definition, Yves Simon begins his exploration of human law with the aim of establishing a "real and scientific" definition of law through further reasoning. He does this by trying to grasp what exactly law must have, what conditions must be present, for something to be a rule and a measure of human action. In doing so, Simon fashions four fundamental questions: (1) whether law is the work of reason; (2) what is the end or purpose of law; (3) what is the cause of law; and (4) how and what is promulgation of the law.

In addressing the first question--whether law is predominantly a work of reason--the opposite question naturally raises itself: whether law is principally or predominantly work of the will. Legal rationalism or legal voluntarism appear to be the two choices as we walk the great divide of the law. But whether law involves reason and law involves will are not mutually exclusive options. The real question is which ought to predominate in law? Which is another way of asking which ought to be subordinate in law? Reason or will? Yves Simon concedes what seems apparent: "That every law involves an act of will is taken for granted." Simon, 71.

Thus the first question in our progression from the nominal and dialectical [common] to the real [and scientific] definition of law is whether, in order to have the character of a rule and measure of human action, the thing called law should be primarily a work of the reason or a work of the will.

Simon, 72.

From a historical perspective, a theory of legal voluntarism (where the will predominates over reason in law) has a checkered reputation. It seems a refuge of tyrants and revolutionaries and democratic demagogues. So we see it as a justification for the arbitrary power of Caesar, or the alleged "divine right" of Kings, or the ukase of the Czar: The Roman jurist Ulpian's unsettling dicta: princeps legibus solutus est (the prince is not bound by the laws) and quod principi placuit legis habet vigorem (what pleases the prince has the force of law) come to mind as indicative of this tendency. See Dig. 1.3.31; 1.4.1. More contemporaneously, we might point to Rousseau "for whom law is an act of the general will, and expression of what the people will, so that, in case of dispute about justice or wisdom of the law, the fact that the people wants it to be that way is final." Simon, 73. Populi locuti, causa finita est. Rousseau and his French Revolution minions decapitate the noble tradition of Heraclitus: that the counsel of one man is also law, for the opinion of one man, if he is the best, is worth ten thousand. See DK 33, 49 (νόμος καὶ βουλῇ πείθεσθαι ἑνός, "and it is law also to obey the counsel of one," and εἷς ἐμοὶ μύριοι, ἐὰν ἄριστος ᾖ, "one is ten thousand to me, if that one be the best.") It matters not reason: the general will supplies its own reason. Here, Juvenal's line is relished: Hoc volo, sic jubeo sit pro ratione voluntas. (Satires, VI, 223). "I will this, I order it, so let my will stand for reason." Will, whether of one tyrant or of a tyrannous majority, is the juggernaut in law for the legal voluntarist.

Yves Simon

On the other hand, the proposition that law is "a thing which is a rule and a measure of human action," and "primarily the work of reason," is what Yves Simon calls "axiomatic," which, from a philosophical viewpoint, is to say that it is an "absolute premise," that is, a proposition that is undeducible, indemonstrable. (This, of course, suggests that the opposition premise, that law is "primarily the work of will," is also an opposing absolute premise, one which cannot be deduced or demonstrated to be true, but one, since erroneous, which can be demonstrated to be false.) To say that a proposition is axiomatic is to say "that if we understand the subject" (in this case, "law"), "and the predicate of this proposition," (in this case "a thing which is a rule and a measure of human action"), "we also understand that they are to be connected by the copula 'is'". Simon, 77. That an axiomatic proposition, one which is logically self-evident, is psychologically evident is a different story. "It may take years or generations or centuries for the mind to understand a proposition that is logically immediate." Simon, 77. As an example, one might point to traditional Islamic societies. It is doubtful that these societies, having been so ingrained with the irrational notion that law is nothing but the will of Allah, would recognize the self-evident nature of the proposition that law is a rule or measure principally of reason. (See, e.g., Robert R. Reilly's The Closing of the Muslim Mind (ISI Books 2010). On the matter of legal voluntarism, these minds have been poisoned at the intellect's well, have been stunted by a sort of mental hydrargyria. It exhibits itself by their mercurial, irrational, impulsive violence.

Law involves a rule or measure of "human action." By "human action" we mean to exclude those parts of men's activities that are involuntary or the result of insanity, temporary or lasting, or some sort of pathological emotion. (These latter are "cosmic events" in Simon's nomenclature, not "human actions," though the acts of humans may be incidentally involved.) In other words, to be in the world of "law" we must be placed in the realm where there is a sufficient modicum of freedom so that actions can be governed by rational measure or rational rule. This is the realm where the external action would be generally viewed as having with it moral implication in addition to a mere physical implication. Where the man is answerable for it, where he ought either to be praised or to be condemned.

How do we know that a case of killing is a cosmic event rather than a human action? We hold that the mind of a man is gone, that the use of his judgment is suspended, that his reason is out of commission. It is the presence of reason which makes all the difference. . . .Thus by reflecting upon the rational character of what is recognized as "human action" we come to understand that ruling human action primarily pertains to reason. The rule of an action proceeding from the reason must be rational. If the will is reasonable, if it follows the reason, it is to the reason that primacy belongs; but if the will is held to enjoy primacy, it is also held to be free from reasonableness, from agreement with the reason, from direction by the reason. Such a will is arbitrary, and the most adequate way to convey the rationality of the law may be to say that such a will is lawless.

Simon, 79-80. Ordinary cosmic events, events which man has no control over, such as the movement of the planets, the countless physical and chemical processes witnessed every day, are subject to "law," as they exhibit an order; however, it is an order or law entirely outside the scope of human law. In comparing the order relating to "cosmic events," to a notion of legal voluntarism, the absurdity of the latter relative to legal rationalism is apparent: "A voluntaristic interpretation of law would place less rationality in human actions than in processes that are just natural. The absurdity of such an interpretation helps to perceive the truth of the opposite view and of its consequences." Simon, 80. In other words, to hold to legal voluntarism would mean to say that man is governed by processes less rational than the world of nature in which he finds himself. There is a fundamental absurdity in such a proposition. Thus, the self-evident proposition that "law" must be a measure or rule principally based upon reason preserves itself through the apparent absurdity of the opposite proposition.

There is, however, the question of instinct, which itself is a sort of "rule" or "intelligence" by which animals, and in a certain manner, also man are governed. How does human "law" differ from such rule of instinct? It is in the apprehension of an end, knowing it to be an end, that we find what distinguishes instinct from reason. The ordering of activity with knowledge of an end, knowing it to be an end, and the structuring of means to achieve that known end, is what distinguishes the impulse of instinct from the impulse based upon reason. The legislative activities of man, which encompass "a constant effort to embody a certain philosophy of man and society," cannot be confused with animal instinct. If there are societies, or part of societies, that base themselves on such nonrational instinct, they are, at least to that respect, infrarational or subhuman. Simon, 81.