Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Tuesday, July 20, 2010

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.

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