Natural Law's Modern Cousin Germain: Obligation and the Bad Man

IN HANDLING THE TOPIC OF OBLIGATION, John Finnis addresses some subsidiary issues. One of those has to do with defining the obligation that is involved in a promise, more specifically the obligation that may be implied in law on an enforceable promise, a contract. Is the promise made a promise to perform the promised performance or is the promise (more subtly) one to perform the promised performance and if that promised performance not rendered, to pay for damages in such event? If I make a promise to paint a man's house, and I breach that promise, what are my obligations? Are they to paint the house as promised or are they to pay compensatory damages for having failed to paint the house? There is, similarly, a question that arises regarding the obligation to obey a law (say a prohibition against driving more than 70 mph, the breach of which is fined at $100). Is my obligation one to obey the law (that is, not exceed 70 mph on the road) or is it merely to pay the fine or suffer the sanction if I decide to disobey the law (pay the $100).*

The distinction between whether a law (or promise) obliges in conscience to prohibit or to require an act or whether a law (or promise) obliges only to make good if one violates the law (or promise) is a distinction that arose in the 16th century, largely as a result of Spanish theologians and jurists. While it might have some value if applied judiciously to ease conscientious confronted with a multiplicity of laws, particularly in the modern bureaucratic state, it was a principle that the "bad man" could grab and abuse. And so the "bad man" in the law, who wrote for the "bad man," Oliver Wendel Holmes,** sought to remove all moral obligation from the law, particularly in the area of contract (promise).

In his famous works "The Path of the Law" and The Common Law, Holmes sought to "wash with cynical acid" (which ran through the arteries of the cynical Holmes) the notion of duty. He fashioned a notion of duty from the perspective of a "bad man," a man without conscience, and therefore dumbed down the notion of duty to the "prophecy that if he does certain things he will be subjected to disagreeable consequences." In the area of contract, the sense of wrong in failing to fulfill a promise was entirely scrubbed out: "[T]he duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it,--and nothing else." NLNR, 322 (quoting Holmes). "[T]he law's ambitions," however, "are higher than this, and its distinctive schemata of thought quite different" from that advocated by the cynical Holmes. NLNR, 325.

Justice Oliver Wendell Holmes, Jr.

But pace Holmes and his tendentious writings which sought to scrub moral duty from the law, most legal systems--recognizing the benefit to the common good of enforcing promises and laws as obligatory in themselves and not as merely providing for disjunctive options--seem to find something valuable in the enforcement of promise qua promise:

This virtually universal interpretation of contracts and contractual obligation has its significance . . . as an indication that contracts are upheld by the law for the sake of the common good, which is positively enhanced (i) by the co-ordination of action, and solution of co-ordination problems, made possible by performance of contracts (in the ordinary, not the Holmesian, sense of 'performance') and (ii) by the continued existence of a social practice which actively encourages such fully co-ordinate performance and discourages non-performance. If all contracts were interpreted and upheld in the Holmesian disjunctive sense, the common good of co-ordination might still, of course, be served to some extent. But it is served to a much greater extent if the law, as it does, (a) allows parties to enter into disjunctive contracts if they chose to, but (b) allows the parties to a contract to know with precision what unique course of action is required of the other party by law, in all those cases (the great majority) in which it is to the advantage of each party not to give the other party a free option between more than one course of action (as Holmes's contract does give).

NLNR, 324.
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*This refers to the distinction between a law that is "purely penal" (lex pure poenalis), "merely penal" (lex mere poenalis), or "disjunctive," and one that is not but binds the conscience pure and simple. There were also laws that were simply moral: lex moralis, and laws that were mixed in character (in other words incorporated a moral prohibition, but also added a fine or penalty for its violation): a lex poenalis mixta. If prohibitatory, the lex moralis and the lex poenalis mixta bound the conscience as to prohibited act. On the other hand a law purely penal did not bind the conscience as to the prohibited act, but simply bound the actor either to obey the law or pay the fine or penalty (if caught?!). One of the effects of the theory of purely penal laws is that it seems to inject a blurring into the difference between a tax and a penalty or fine. It changes most penalties into a tax for engaging in the "prohibited" activity. Ordinarily, this is not the intent of the legislative authorities. When the legislature passes a statute prohibiting speeds of 70 mph, it really desires to prohibit speeding, not provide for a tax on vehicles exceeding 70 mph.
**Lex Christianorum is no fan of the positivist and duty-bashing Holmes: See The Natural Law's Devil: Justice Oliver Wendell Holmes for the vicious theories of this vicious jurist, this jurist with cynical blood and cynical brain. He is a singularly unattractive fellow, as unattractive as Rousseau, but for different reasons. Whereas Rousseau was just a selfish little self-regarding and whining prig, Holmes was a cynical and warped moral monster with a stentorian voice. With Rousseau one has to deal with little demons and foolish and irresponsible inconsistencies. One can laugh at Rousseau. With Holmes one is dealing with legal nihilism advanced via a first-class intellect, with all the power of the devil himself. It was as if hell itself occupied the center of the jurist's mind so absent was God from anything he believed. One cannot laugh at Holmes. One either pities him or recoils with horror.

Natural Law's Modern Cousin Germain: Promises and Obligations

A PROMISE IS NOT A MONOLITHIC CONCEPT. There is variability in promises, differences in dignity in promises, as it were. From resolutions, to promises, to contracts, to covenants between humans, to vows, to covenants between God and man. We understand that not all promises impose a strict obligation on the promisor, that there are changes in circumstances, either foreseen or unforeseen, that make promises highly impractical or even impossible of performance. There are implied release valves, as it were, implied clausulae rebus sic stantibus,* where the reasonable promisee would not expect performance on the part of the promisor, and thus would accept a simply apology or the making of amends or, in some cases, even the need for these weaker substitutes for performance. If I promise to buy milk on my way back from work, but I get delayed with a client and I cannot leave work until after the store is closed, my wife will probably understand that the commitment to stop by the store and pick up milk was not intentionally breached, was excused by the unforeseen change of circumstance, and an apology or may even mere explanation will suffice despite the broken promise. No moral fault will be ascribed to the failure to abide by the promise.

On the other hand, there are some promises that are more formal, which demand compliance even if great sacrifice is required, even if unforeseen circumstances intervene, and that which are rarely, if at all, allow for breach. The solemn monastic vow, or a priestly vow of celibacy, would be an example of such promise. The marital covenant which binds in sickness and in health, for richer or poorer, for better or worse, until death parts the spouses is another example.** (We ought to be thankful that God's promises are of the exceptionless kind else we could not pray with confidence the traditional Act of Hope: "O my God, relying on Thy promises, I hope that, through the infinite merits of Jesus Christ, Thou wilt grant me pardon of my sins, and the graces necessary to serve Thee in this life and to obtain eternal happiness in the next. Amen.")

Marcus Atilius Regulus Departing for Carthage

And between extremes of exceptionless promises and conditional promises there is room for debate, and so man reasonably argues about promises--their bindingness in general and in particular--like he seems to argue about everything else. This flexibility in promises is found in both moral (extra-legal) analysis of promises and, more formally (though less flexibly), in legal doctrines that soften the enforcement of promises with legal defenses to the enforcement of a contract such as the doctrines of impossibility, impracticability, duress, illegality, failure of consideration, unconscionability, and the like. And yet, despite the recognition that promises enjoy different dignities, there are stories of fidelity to promise that inspire us to do less arguing and parsing of words and to be heroic in the keeping of our promises, perhaps most noble of all in the pagan annals of such is the story of Marcus Atilius Regulus.*** God, a Christian need hardly be reminded, is more faithful that Regulus. "The Lord," says the Psalmist, "is faithful to all his promises." Psalm 145(144):13. Fidelis Dominus in omnibus verbis suis.

Regardless of the play-in-the-joints quality that reasonably inheres in promises, a "promise properly made is always an exclusionary reasons, that is, [it] always gives a reasons for disregarding some reasons, which are genuine and relevant and which in the absence of the promise to do φ would have sufficed to justify not doing φ." NLNR, 308. Nevertheless, the exclusionary reasons that is incorporated within a promise "can be defeated by some countervailing reasons, often by a wide range of readily available reasons (though never by any and all of the reasons that would in the absence of the promise, have warranted not doing the thing promised)." NLNR, 309. In other words, promises restrict freedom of action: they are a willing limitation on our future reasons for acting. They are also reasons in and of themselves for acting. Even if defeasible by reason or circumstance, by condition precedent or subsequent, the promise limits, it constrains, it obliges in some manner.

Finnis addresses the question of why promises bind, but specifically why they bind legally so that public authority can enforce them against the promisor. What is the justification for the legal enforcement of the promise? And from the enforcement of promises by law it is an easy step to the enforcement of laws by law.

Finnis finds the answer to the problem of why promises may legally bind and be enforceable by public authority to lie in the "correct identification of the law-abiding subject's practical reasoning, reasoning to which such a norm is directed and which such a norm is intended to direct in a distinctively 'obligatory' way." NLNR, 315. As in most of Finnis's analysis, justification for force is found by reference to the common good. He sees the "relevant schema of practical reasoning" justifying enforcement to follow a three-step process:

1. In all coordination problems among individuals (whether these are to be done by public authority through law, or privately through compact, i.e., promises or contracts), one must act in a way that is legally specified if one is to respect the common good.
2. Where a certain "pattern-of-action" is legally specified as resulting in obligation (and incurred either as a matter of law or a matter of individual compact), the "only way of satisfying the need postulated" in step 1 above is "to act according to the pattern so specified."
   
3. So to act in a matter that respects the common good where a "pattern-of-action" is legally specified to result in obligation, one must or ought to act in the way that is specified as obligatory.
   

Finnis concedes that this sounds "empty and/or viciously circular." NLNR, 315. He simplifies the technical language to the following schema:

1. We need for the sake of the common good to be law-abiding;
2. But where φ is stipulated by law as obligatory [whether as a result of promise or as a result of law], the only way to be law-abiding is to do φ.
3. Therefore, we need [it is obligatory for us] to do φ when φ has been legally stipulated to be obligatory.
   

NLNR, 316. According to Finnis, the "law thus anticipates and seeks to capitalize upon, indeed, to absorb and take over, the 'good citizen's' schema of practical reasoning, and to give it unquestioned or dogmatic status." The first step is a moral principle, the moral principle that ties in to the legal system and justifies our obligation to it. The moral principle assumes that "laws provided directly applicable and authoritative guidance for the reasonable man and eliminate the need for him to weigh up (as the legislature had to weigh up) the pros and cons of man possible courses of action." NLNR, 318.

And yet the interplay between the moral reason (which can bow out in the event something is contrary to the common good or practical reason) and the legal reason (which is invariant, and positivistic, even if it allows for legal exclusions) makes it clear:

The equal obligation in law of each obligation-imposing law is to be clearly distinguished from the moral obligation to obey each law. For, like the obligation of promises, the moral obligation to obey each law is variable in force. . . . [T]he reasons that justify the vast legal effort to render the law, unlike the informal social institution of promising, relatively impervious to discretionary assessments of competing values and conveniences are reasons also that justify us in asserting that the moral obligation to conform to legal obligations is relatively weighty. These reasons relate particularly to the extent, complexity, and depth of the social interdependences which the law, unlike promises between individuals, attempts to regulate. Such an ambitious attempt as the law's can only succeed in creating and maintaining order, and a fair order, inasmuch as individual drastically restrict the occasions on which they trade off their legal obligations against their individual convenience and conceptions of the social good. . . . The law provides the citizen, like the judge, with strongly exclusionary moral reasons for acting or abstaining from actions.

NLNR, 318.
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*A clausula rebus sic stantibus (Latin = "things-thus-standing clause" or "things-being-the-same-as-now clause") is a clause in a treaty (implied or express) that the promises or covenants assume that the circumstances that warrant the treaty and justify the obligations thereunder shall remain the same, and their material change could change the obligations therein contained.
**Even these are, in some (rare and extraordinary) cases, able to be dispensed. A Pope may, for grave reasons, dispense from a solemn religious vow (e.g., celibacy), and, the Pope may dispense from the marital promise for unconsummated marriages. See, e.g., John Paul II, Apostolic Constitution Pastor Bonus, II, art. 67; Code of Canon Law cc. 1142, 1698. Non-sacramental marriages can sometimes be dispensed with for reasons of faith (Pauline or Petrine privilege). There is an exceptionless promise: a valid sacramental and consummated marriage, however, can never be the subject of dispensation by any earthly power. Quod ergo Deus iunxit homo non separet. What God has joined, let no man separate. (Mark 10:9)
***Regulus was a Roman general and consul between 267 and 256 B.C. In the First Punic War, he defeated the Carthaginian fleet, invaded northern Africa, and defeated the Carthaginian army 256 B.C. He was then defeated and captured by the Carthaginians 255 B.C, where he remained prisoner for five years. Having promised to return in the event he was unsuccessful, he was sent as a peace envoy to Rome, he successfully persuaded the Senate to reject the Carthaginians' proposals. Then, in keeping with his promises to his sworn enemies the Carthaginians, he freely returned to Carthage and was tortured to death when he delivered the Roman response to their entreaty.

Natural Law's Modern Cousin Germain: Promises, Promises

WHAT IS IT THAT WE MEAN BY "OBLIGATION"? There is not a language in the world that does not include this notion, though the various connotations of the various words have subtle differences. But the term obligation comprehends those things that we have to do (though the "must" is not because we are extrinsically compelled to), or must do, that we which have a duty to do, that which is wrong not to do or which it is shameful not to do, that which we are morally or legally under an obligation to do. In Latin we have the notion of oportet facere, in French il faut faire, one's devoir, which in Greek is known as το δέον (to deon) (from which we get the work deontological). The notion of obligation moves us from external compulsion to internal, self-imposed compulsion. The concept of obligation includes the "demand of conscience, a claim upon one's commitment, decision, action," all sorts and manners of "rational necessity" or compulsion, requirements of practical reasonableness. NLNR, 297.

The word "obligation," at least in English, has connotations of "promise," and so we may talk sensibly of situations in which we ought to do something which we have no obligation (as a result of a prior promise) to do. And yet it is also used more broadly, so that we can also intelligibly talk about an obligation not to commit suicide. Has not a man, Finnis suggests, who is "irretrievably marooned alone on an island," and obligation to try to survive, and not to "drink himself . . . to death"? NLNR, 298.

The term obligation, however, is something more compulsory than something that is fitting or something that is supererogatory in nature, something that goes beyond the call of duty, and yet is no wise contrary to obligation. The term obligation has a sense that it is of precept, not something that is counseled.*

Man is a promising animal, ein Tier . . . das versprechen darf.** He is not only an animal that is under an obligation, but he is an animal that can obligate himself. A man binds himself by a promise,*** but how is it that, going beyond the perhaps conventional signs of promise, that this promise binds? How is it that after engaging in a promise there is a "new motive" for behavior, that one believes himself "immediately bound by his interest to execute his engagements, and must never expect to be trusted any more, if he refuse to perform what he promises . . . . [who] subjects himself to the penalty of never being trusted again in case of failure."† But going beyond both conventional sign and Humean self-interest (a "prudential ought"), what is it in the promise that makes the "promising-and-therefore-performing-or-accepting-the-justice-of reproaches-etc." something that benefits the common good outside our selfish regard?

The benefit to the common good of promise-making is quite apparent, and so its utilitarian justification is simple and forthright:

[A promise] provides an effective means of maintaining co-operation, once initiated, over the span of time necessary for the fulfilment of any human project . . . Like the law, it enables past, present, and predictable future to be related in a stable though developing order; enables this order to be effected in complex interpersonal patterns; and brings all this within reach of individual initiative and arrangement, thus enhancing individual autonomy in the very process of increasing individuals' obligations. . . . So if on is to be a person who favours and contributes to the common good, one must go along with the practice of promising. Similarly, and secondarily, if one is not to be a 'free-rider' who unfairly takes the benefits of beneficial social institutions but repudiates the burdens, then one must go along with the practice when one has promised, as much as when one has been promised.

NLNR, 303. Perhaps more basic than even this is that there is a tie-in to the natural law (what Finnis habitually refers to as the requirements of practical reasonableness), specifically the "Golden Rule," that "one doe as one would be done by," or "impartiality."

Promising is one way of incurring such responsibilities. For the making of the promises creates a new criterion of impartiality, relative to the persons concerned and the subject-matter of the promise. The promise constitutes a special frame of reference or vantage point, in relation to which the conduct of the parties can be assessed for its impartiality.

NLNR, 304. And so this ties into to justice, in particular, commutative justice. The person to whom something is promised is owed something that before that promise he was not owed. He is due something where before the promise such was not due. The recipient of the promise receives "a special locus standi," which translates to a moral (and often legal) "right to claim performance" as something owed to him. NLNR, 304. This sort of private extension of impartialities, of modifying the various flows of private transactions and relationships of justice, relate back to the common good. There is no victimless crime in the breach of promise: not only is the promisee harmed by the promisor's breach, but all society in some way suffers from the breach.††

The making and keeping of promises is therefore intimately tied to both private and common good:

[T]hat common good (including the good of the promisee or other ascertained beneficiary) can be realized with reasonable impartiality only if the individual performs on his promise; and this necessity is the obligation of his promise (both the general moralists' obligation, and the obligation owed to the promisee or beneficiary). 'I cannot be one who acts for the common good unless I go along with the practice by performing on this promise.' Secondarily, 'I cannot be one who is rationally impartial unless I take the burdens of the practice as well as the benefits, and perform on this promise . . . .' The conclusion, in each case, is: "Therefore, I must perform . . . '

NLNR, 307. It is this that gives the promisee (or third party beneficiary) the right to claim performance from the promisor, and which justifies the imposition of force or compulsion on the part of public authority to enforce the promise made.†††


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*The distinction between counsel and precept is fundamental. We might quote St. Ambrose in his work Concerning Widows (De Viduis), XII.73.

You will see the difference between precept and counsel, if you remember the case of him in the Gospel, to whom it is first commanded to do no murder, not to commit adultery, not to bear false witness; for that is a commandment which has a penalty for its transgression. But when he said that he had fulfilled all the commandments of the Law, there is given to him a counsel that he should sell all that he had and follow the Lord, for these things are not imposed as commands, but are offered as counsels. For there are two ways of commanding things, one by way of precept, the other by way of counsel. And so the Lord in one way says: "Thou shalt not kill," where He gives a commandment; in the other He says: "If thou wilt be perfect, sell all that thou hast." He is, then, not bound by a commandment to whom the choice is left.

En tibi distantia praecepti atque consilii, si illum recorderis, cui in Evangelio (Matt. xix.13 et seq.) ante preascribitur, ne homicidium faciat, ne adulterium admittat, nefalsum testimonium dicat; praeceptum etenim ibi est, ubi est poena peccati. At verose pracepta legis memorasset implesse, consilium eidem datur, ut vendat omnia, et sequatur Dominum; haec enim non praecepto imprantur, sed pro consiliodeferuntur. Duplex namque fora mandati est: una praceptiva, altera voluntaria. Undeet Dominus in alia dicit: cum Non occides, ubi precepit; in alia: Si vis perfectus esse, vende omnia tua. Ergo hic liber est praecepto, cui defertur arbitrium.

**We don't usually cite to Nietzsche, but in this case we do. See On the Genealogy of Morals, II.1:

To breed an animal with the right to make promises--is this not the paradoxical task that nature has set itself in the case of man?

Ein Tier heranzüchten, das versprechen darf – ist das nicht gerade jene paradoxeAufgabe selbst, welche sich die Natur in Hinsicht auf den Menschen gestellt hat?

***Finnis defines a promise as "the making of a sign, a sign which signifies the creation of an obligation, and which is knowingly made with the intention of being taken as creative of such obligation." NLNR, 299.
†Hume, A Treatise of Human Nature, III.ii.5 (quoted in NLNR, 301).
††A reality too often forgotten in the laws that permit divorce, which is nothing other than a breach of promise, and a promise which is to last, and is binding to the promissor, as long as the promisee is alive.
†††Finnis rejects the notion of promise as "'bonds' created by 'acts of will' . . . on the part of the promisor." NLNR, 307. While there is obviously a voluntaristic component to the making of the promise (a promise must be made with the promisor's free will), the act of will is not the fundamental component of the promise. The act of will for Finnis "has no special role in explaining the obligation of performance promised." Rather, the obligation is one founded upon reason, and not will.

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?