THE "NATURE" OF ARISTOTLE AND OF AQUINAS which is the source of the natural law is different from the denuded, one dimensional, materialistic "nature" of the modern day sciences. If the "nature" as understood by Aristotle and Aquinas were an apple, the "nature" as understood by the modern scientist is but a peel. The modern notion of "nature" is lacking both fruit and seed. It is tasteless, fruitless. It is bland of value, composed only of empirical fact. There is no "ought" in it; there is only "is" in it. The Aristotelian/Thomistic concept of nature had and element of design, but not the design of some complex watch, but the design of a quasi-living organism, as it had an inner entelechy, a desire, a yearning toward the God that had brought it out of nothing and that constantly preserved it in being. The entire cosmos, after all, even its raw matter, the chaotic matter over which the Spirit hovered, was a creature of God. God did not act arbitrarily, without reason in creation ex nihilo. It followed that nature had a purpose, a goal, an end, a telos (from the Greek word τέλος, a word meaning "purpose," or "goal," or "end"). Aristotle and St. Thomas Aquinas (and, for that matter, the entirety of the perennial tradition in between them and after them until this notion was rejected as part of the Enlightenment, Liberal, and Modernist project) was teleological. In this regard, Cortest quotes Ernest Fortin:
Aristotle had no inkling of the Gospel. It is for this reason that, "[a]lthough both Aristotle and Aquinas construct ethical and moral systems on metaphysical principles, they have entirely different conceptions of the value of human life." Cortest, 18. So different is that conception, that Aristotle and St. Thomas stand apart each other by a great divide. It is the philosophical analogue of the historical divide between B.C. and A.D. The Lord had not walked among us when Aristotle did his thinking. Aristotle promoted (or at least excused) the killing of deformed children and human chattel slavery, something unthinkable to St. Thomas. So massive is the difference the Gospel made to the Aristotelian underlayment of St. Thomas Aquinas, that if Aristotle alone was relied upon to build a natural law, he would be unable to provide us with a workable morality. "I would argue," says Cortest, "that no credible doctrine of human rights can be based exclusively on an Aristotelian anthropology, since nature shows no compassion for the weak, the innocent, or the 'deformed.'" Cortest, 19. Cortest is right. As great as Aristotle was, he lived without Gospel light, and his teaching is, next to the sublime values of the Gospel, barbaric in some aspects. To return to raw Aristotelianism without the temper of the Gospel would be a giant leap backwards in human development.
While indisputably St. Thomas had a high view of human dignity, it would be a mistake to attribute to him, as some scholars do (John Finnis or Brian Tierney come readily to mind), the modern notion of "human rights." The most fundamental chasm exists between St. Thomas's traditional notions and the modern notions of human right. That chasm arises out of the excessive individualism of modernity, an individualism so excessive that it advances rights that are idiosyncratic, even against human nature and inimical to communal life. St. Thomas always saw rights ensconced within the greater good of the community, and never apart from duty to God and neighbor. He never saw rights as something inhering in free-standing, atomic and autonomous individuals. "In Thomas's system, ius or right is understood in terms of justice, which is itself always understood of others." Cortest, 21. In short, St. Thomas saw ius (right) as coming out of an I-Thou and I-You relationship, one of responsibility to God and to fellow humans. Moderns, on the other hand, see right as coming from the seagull philosophy in Pixar's (Disney's) movie Finding Nemo: "Mine, mine, mine, mine . . . ." I rather think that St. Thomas would have been impatient with the modern advocates of human rights, who now claim things like the right to abortion, the right to homosexual marriage, among a whole slew of rather questionable "rights." Like Nigel in Finding Nemo, he would have told the incessant advocates of autonomy to shut up. To claim St. Thomas as a sort of precursor to the modern notion of rights is not fair to St. Thomas's thought.
The "Seagull Philosophy" of Modern Right: Mine, mine, mine . . .
The heart of the Aristotelian enterprise is the well-known and now almost universally contested thesis that nature acts for an end.This teleological view of nature of Aristotle was shared by St. Thomas; however, he nestled it into his unique metaphysics or ontology, which distinguished essence from existence, and which found that existence was the preeminent good, in fact the source of both the true and the good, of perfection. In St. Thomas's view, good and being are exchangeable terms. If a thing is good, it subsists in the fullness of its being (existence); that is, it conforms entirely to its nature which is informed by its end. To the extent that it fails to abide by its being (existence), to the extent that it misses the mark that is its end and which is defined by its nature, it suffers (or does, if the creature has free will and knowledge) evil. St. Thomas, it hardly need be said, also recognized the truths of revelation, particularly those that related to the dignity of man as a creature of God and as a result of his ultimate calling (union with God in the beatific vision). His understanding of the end of nature was informed by the Evangelical revelation.
Aristotle had no inkling of the Gospel. It is for this reason that, "[a]lthough both Aristotle and Aquinas construct ethical and moral systems on metaphysical principles, they have entirely different conceptions of the value of human life." Cortest, 18. So different is that conception, that Aristotle and St. Thomas stand apart each other by a great divide. It is the philosophical analogue of the historical divide between B.C. and A.D. The Lord had not walked among us when Aristotle did his thinking. Aristotle promoted (or at least excused) the killing of deformed children and human chattel slavery, something unthinkable to St. Thomas. So massive is the difference the Gospel made to the Aristotelian underlayment of St. Thomas Aquinas, that if Aristotle alone was relied upon to build a natural law, he would be unable to provide us with a workable morality. "I would argue," says Cortest, "that no credible doctrine of human rights can be based exclusively on an Aristotelian anthropology, since nature shows no compassion for the weak, the innocent, or the 'deformed.'" Cortest, 19. Cortest is right. As great as Aristotle was, he lived without Gospel light, and his teaching is, next to the sublime values of the Gospel, barbaric in some aspects. To return to raw Aristotelianism without the temper of the Gospel would be a giant leap backwards in human development.
While indisputably St. Thomas had a high view of human dignity, it would be a mistake to attribute to him, as some scholars do (John Finnis or Brian Tierney come readily to mind), the modern notion of "human rights." The most fundamental chasm exists between St. Thomas's traditional notions and the modern notions of human right. That chasm arises out of the excessive individualism of modernity, an individualism so excessive that it advances rights that are idiosyncratic, even against human nature and inimical to communal life. St. Thomas always saw rights ensconced within the greater good of the community, and never apart from duty to God and neighbor. He never saw rights as something inhering in free-standing, atomic and autonomous individuals. "In Thomas's system, ius or right is understood in terms of justice, which is itself always understood of others." Cortest, 21. In short, St. Thomas saw ius (right) as coming out of an I-Thou and I-You relationship, one of responsibility to God and to fellow humans. Moderns, on the other hand, see right as coming from the seagull philosophy in Pixar's (Disney's) movie Finding Nemo: "Mine, mine, mine, mine . . . ." I rather think that St. Thomas would have been impatient with the modern advocates of human rights, who now claim things like the right to abortion, the right to homosexual marriage, among a whole slew of rather questionable "rights." Like Nigel in Finding Nemo, he would have told the incessant advocates of autonomy to shut up. To claim St. Thomas as a sort of precursor to the modern notion of rights is not fair to St. Thomas's thought.
The "Seagull Philosophy" of Modern Right: Mine, mine, mine . . .
Three things are without question shared between St. Thomas and Aristotle: (1) a teleological view of nature, (2) a notion that positive laws, or laws particular to the city-state, are distinct from universal or natural law, and, finally, (3) that this natural or universal law is not to be separated from the notion of a natural or universal justice. Cortest, 14, 22.
From St. Thomas, Cortest jumps to the Dominicans at the School of Salamanca, focusing on the works of Francisco Vitoria, Domingo de Soto, and Domingo Bañez. These men were devoted followers of their fellow Dominican, Thomas Aquinas. Cortest also rejects the effort to recruit the Dominicans at the School of Salamanca as advocates of modern, individualistic human rights. "For them, individual or human rights are always understood within the more general context of justice." Cortest, 22. It seems that Brian Tierney is at the forefront of recruiting the Salamancans as advocates of modern human rights. But it would seem that Tierney is not recruiting, but impressing or shanghaiing the Salamancans who would probably be unwilling advocates of the modern, liberal, individualistic vision of human rights that are not based on any notion of nature or reason.
Domingo de Soto of the School of Salamanca
The Salamancans distinguished between the notions ius or right and dominium or lordship or power. De Soto's De iusticia et jure posits a distinction between the two:
The Salamancan jurists, Vitoria, Soto, and, most famously, Bartolomé de las Casas, were very critical of the Spanish Conquista of the New World, and the Conquistadores' treatment, in some cases virtual enslavement, of the indigenous populations. It would seem, then, that the Salamancans were advocating some sort of inherent human rights of the Indian that were being violated. Brian Tierney seizes on the Salamancan notion of dominium or lordship as the source of the Salamancan advocacy of modern human rights. Dominium, Tierney suggests, is nothing but right under another name. Cortest, I think properly, criticizes Tierney's use of dominium as the source of individualistic rights. "[T]he difference between the traditional notions of dominium as Vitoria [and the Salamancans] understood it and a doctrine of 'natural rights' is vast." Cortest, 23. To equate the two would be to wrest the Thomistic objective foundation inherent in the Salamancans' thought and carry it into a subjective realm. It would be analogous to taking the Thomistic intellectual cathedral and moving it from a foundation of rock onto a foundation of sand, watch the cathedral collapse into a pile of rubble, and call the two situations the same. The underlying basis of modern rights theory and Thomistic and Salamancan natural law are simply different. Moreover, as Cortest correctly points out, the notion of dominium related to self-governance of a people, not to a subjective, individual right over one's possessions, and certainly not a subjective, individual right over one's own person against others. Cortest, 24. The Salamancans were not defending the rights of the Indians, but were defending the natural right of the Indian communities to exist and to govern themselves. Cortest, 25.
The only "right" found among the Salamancans that may be said to be an individual right in the strict sense would be the right to self-preservation. "Soto comes closest to defending a notion of personal rights in his treatment of self defense," which builds upon the right to self-preservation. Cortest, 25. But even this right must be understood within the more general framework of justice and the common good, something that is entirely absent from the modern concept of rights, which seem to be, in fact, independent of notions of justice to the entirety, and seem to be pitted against the demands of the common good or the good of the community. Certainly, many of the advocates of modern so-called "human rights" espouse values that are contrary to the very nature of man. Most uncontroversially, the claim to the "right" to procure an abortion is against human nature; indeed, it is foul, not fair, to nature's teaching. A tree, like a legal theory, is known by its fruits. Classical natural law and modern natural rights are two different species.
Now what is true for the Salamancans is not necessarily true for Suárez according to Cortest. In Cortest's view, Suárez appears to hover a bit closer to the modern notion of personal, positive human rights. Cortest, for example, cites to the definition of ius or right in Suárez's De Legibus, ac Deo Legislatore as more attuned to the modern understanding of human rights: According to Suárez, ius is "a certain moral power which ever man has, either over his own property or with respect to that which is due to him . . . . Accordingly, this right to claim (actio), or moral power, which every man possesses with rspect to his own property or with respect to a thing which in some way pertains to him, is called ius, and appears to be the true object of justice." [ius vocari facultas quaedam moralis, quam unusquisque habet, vel circa rem suam, vel ad rem sibi debitam . . . . Illa ergo actio, seu moralis facultas, quam unusquisque habet ad rem suam, vel ad rem ad se aliquo modo pertinentem vocatur ius, et illud proprie videtur esse obiectum iustitiae.] Cortest, 26 (citing Trac. de Leg. ac Deo Leg., I.2.5]
While Suárez may arguably be the source, or at least the harbinger, of modern notion of right, it would stem from his failure to "follow the strict Thomistic line of legal theory followed by the Dominicans at Salamanca." Cortest, 27.
But, in fact, the source of modern human right is more likely to be one who came after Suárez, but who relied heavily upon him: the Dutch Protestant jurist Hugo Grotius. In his De Iure Belli, Grotius seems well on his way to understanding right as a subjective right, positive, rather than negative, in tone:
From St. Thomas, Cortest jumps to the Dominicans at the School of Salamanca, focusing on the works of Francisco Vitoria, Domingo de Soto, and Domingo Bañez. These men were devoted followers of their fellow Dominican, Thomas Aquinas. Cortest also rejects the effort to recruit the Dominicans at the School of Salamanca as advocates of modern, individualistic human rights. "For them, individual or human rights are always understood within the more general context of justice." Cortest, 22. It seems that Brian Tierney is at the forefront of recruiting the Salamancans as advocates of modern human rights. But it would seem that Tierney is not recruiting, but impressing or shanghaiing the Salamancans who would probably be unwilling advocates of the modern, liberal, individualistic vision of human rights that are not based on any notion of nature or reason.
Domingo de Soto of the School of SalamancaThe Salamancans distinguished between the notions ius or right and dominium or lordship or power. De Soto's De iusticia et jure posits a distinction between the two:
Ius is the same as what is just (as Isidore says in Book V). It is the object of justice, the equity which justice establishes between men, dominium is the facultas of a lord (as its name implies) in servants or objects which he can use has he likes for his own benefit. Ius must therefore not be confused with domininium, as it is superior to it, and of wider reference.(quoted in Cortest, 23).
Ius namque idem est (ut ait lib. 5 Isid.) quod iustum. Est enim objectum iustitiae: puta aequitas quam iustitia inter homines constituit: dominium autem facultas est domini (uti nomen sonat) in servos vel in res, quibus suo arbitratu, ob suumque commodum utitur. Fit ergo, ut ius no converatur cum dominio, sed sit illi superius et latius patens.
The Salamancan jurists, Vitoria, Soto, and, most famously, Bartolomé de las Casas, were very critical of the Spanish Conquista of the New World, and the Conquistadores' treatment, in some cases virtual enslavement, of the indigenous populations. It would seem, then, that the Salamancans were advocating some sort of inherent human rights of the Indian that were being violated. Brian Tierney seizes on the Salamancan notion of dominium or lordship as the source of the Salamancan advocacy of modern human rights. Dominium, Tierney suggests, is nothing but right under another name. Cortest, I think properly, criticizes Tierney's use of dominium as the source of individualistic rights. "[T]he difference between the traditional notions of dominium as Vitoria [and the Salamancans] understood it and a doctrine of 'natural rights' is vast." Cortest, 23. To equate the two would be to wrest the Thomistic objective foundation inherent in the Salamancans' thought and carry it into a subjective realm. It would be analogous to taking the Thomistic intellectual cathedral and moving it from a foundation of rock onto a foundation of sand, watch the cathedral collapse into a pile of rubble, and call the two situations the same. The underlying basis of modern rights theory and Thomistic and Salamancan natural law are simply different. Moreover, as Cortest correctly points out, the notion of dominium related to self-governance of a people, not to a subjective, individual right over one's possessions, and certainly not a subjective, individual right over one's own person against others. Cortest, 24. The Salamancans were not defending the rights of the Indians, but were defending the natural right of the Indian communities to exist and to govern themselves. Cortest, 25.
The only "right" found among the Salamancans that may be said to be an individual right in the strict sense would be the right to self-preservation. "Soto comes closest to defending a notion of personal rights in his treatment of self defense," which builds upon the right to self-preservation. Cortest, 25. But even this right must be understood within the more general framework of justice and the common good, something that is entirely absent from the modern concept of rights, which seem to be, in fact, independent of notions of justice to the entirety, and seem to be pitted against the demands of the common good or the good of the community. Certainly, many of the advocates of modern so-called "human rights" espouse values that are contrary to the very nature of man. Most uncontroversially, the claim to the "right" to procure an abortion is against human nature; indeed, it is foul, not fair, to nature's teaching. A tree, like a legal theory, is known by its fruits. Classical natural law and modern natural rights are two different species.
Now what is true for the Salamancans is not necessarily true for Suárez according to Cortest. In Cortest's view, Suárez appears to hover a bit closer to the modern notion of personal, positive human rights. Cortest, for example, cites to the definition of ius or right in Suárez's De Legibus, ac Deo Legislatore as more attuned to the modern understanding of human rights: According to Suárez, ius is "a certain moral power which ever man has, either over his own property or with respect to that which is due to him . . . . Accordingly, this right to claim (actio), or moral power, which every man possesses with rspect to his own property or with respect to a thing which in some way pertains to him, is called ius, and appears to be the true object of justice." [ius vocari facultas quaedam moralis, quam unusquisque habet, vel circa rem suam, vel ad rem sibi debitam . . . . Illa ergo actio, seu moralis facultas, quam unusquisque habet ad rem suam, vel ad rem ad se aliquo modo pertinentem vocatur ius, et illud proprie videtur esse obiectum iustitiae.] Cortest, 26 (citing Trac. de Leg. ac Deo Leg., I.2.5]
While Suárez may arguably be the source, or at least the harbinger, of modern notion of right, it would stem from his failure to "follow the strict Thomistic line of legal theory followed by the Dominicans at Salamanca." Cortest, 27.
But, in fact, the source of modern human right is more likely to be one who came after Suárez, but who relied heavily upon him: the Dutch Protestant jurist Hugo Grotius. In his De Iure Belli, Grotius seems well on his way to understanding right as a subjective right, positive, rather than negative, in tone:
A legal right (facultas) is called by the jurists the right to one's own (suum); after this we shall call it a legal right properly or strictly so called. Under it are included power, now over oneself, which is called freedom, now over others, as that of the father (patria potestas) and that of the master over slaves; ownership, either absolute, or less than absolute, as usufruct and the right of pledge; and contractual rights, to which on the opposite side contractual obligations correspond.(quoted in Cortest, 27) While Grotius still bore traces of Aristotelianism, this language of "power . . . over oneself . . . which is called freedom" is recognizable as something new. Here we have a kernel of modern rights theory, one based on alleged autonomy or freedom from restrictions of any kind, including eventually, nature and, what is the same thing since nature contains within it the law of God, even God. Some of Grotius's notions, particularly when seasoned by the Hobbesian notions of nature and right which were wholly outside the pale of the Aristotelian/Thomist tradition, may be the source of modern theories of human right. But by the time one gets to Hobbes and his Leviathan one is clearly outside any notion of morality having an ontological or metaphysical foundation. In Hobbes, right is no longer tied to being, or, for that matter, Being.
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