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.

Saturday, August 7, 2010

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

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

Positive law is the law that is posited,* or promulgated, by legitimate authority over a civil society. By its nature, it is flexible and changing by circumstance, and its aim, and indeed its justification, is that it orders the body politic with the end of the common good.
Our obedience is due to positive laws because such obedience is a condition of social life in its full development. Hence nature, or what comes to the same, natural law, enjoins a respect for the commands of a human legislator. The will of a legislator, since it is of a kind no different from our own, cannot of itself constitute the source of a true obligation for us; but the natural law, being dictated by God, does possess sovereign claims to our obedience.
[264(72)] Thus human positive law is, as it were, an appendage to the natural law. It requires the natural law for its authority. "There is a higher law than human laws, one 'written on the tablets of the heart', in the name of which the individual always has the right to protest against the tyranny of rulers."
--Cardinal Mercier
It has no authority outside of the natural law, since it is based upon the will of man, and one man's will has, without authority behind it, no particular right to obedience. Mere aggregation of human wills in a chamber at a capitol does not make those wills any more grand so as to justify obedience without authority. Since all authority comes from God (Rom. 13:1), it follows that the positive law must accord with the law of God, must be within the scope of God's agency, or it ceases to have any binding nature. A human law that strays from its justification, that issues outside of the scope of its agency, collapses once again mere human will. So even though it comes dressed as a law, it is not law at all.

That is precisely where Mercier finds a corollary that is anathema to the positivists, secularists, and tyrants of any time and place:
No one must obey a positive law that clearly contradicts the fundamental principles of the moral law. In such circumstances the inalienable rights of the individual conscience must be resolutely vindicated against the claims of any form absolutism.
[264(73)] The source of this absolutism is irrelevant: it can be the will of one man, it can be the will of all but the conscientious one, it can be the will of any number in between.

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

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

Mercier rejects at once any notion of rights being derived from a priori principles of individual reason. Thus, any Kantian basis for individual rights (which has essentially been adopted by political liberalism such as John Rawls's version) is spurned. And for good reason. Any Kantian basis for individual rights either ends in might over right or in right being nothing but convention. Mercier explains. Kantian notion of right stems from the categorical imperative, which a priori stems from the constitution of the mind itself. The Kantian formula begins with absolute autonomy of will, and limits it only by the categorical imperative. That imperative requires us to act externally in such a manner with respect to the free exercise of our will so that we may co-exist with the freedom of others and that it may be applied as universal law. The formula essentially requires that "the liberty of each must be reconciled with the liberty of all." [266(74)] The problem with the Kantian formula arises in its overemphasis of autonomy:
If the autonomy of the human person is in a true sense absolute [as proposed by the Kantian formula], I shall respect this autonomy in myself only by exercising my liberty as fully as possible; my right then will know no limit but my might. And everyone else may say the same of himself. Hence an inevitable conflict will arise between the activity of individuals, each of whom will try to extend his rights indefinitely.
[265(74)] In this incessant competitive scramble and clamor for individual rights, which is a necessary result of Kantian autonomy, two things must happen. Either the strongest will win over the weakest, and we fall into that most horrible of prospects that might makes right. Or else some sort of Hobbesian social compact may be made among all competitors so that there may be some sort of mutual pact of coexistence. The basis of right, as a consequence, will either be force or social contract. In one of these two manners will the competition of autonomous wills end. And there will be no notion of natural right. At its root, Mercier further notes, Kantian autonomy, and its emphasis on individualism, is anti-social since it advances the notion that autonomy is the superior good, and there is a mistaken perception that there is a loss of dignity or freedom in subordinating one's autonomy to the life of the community. Mercier therefore rejects any Kantian basis of individual right based upon autonomy and the application of the categorical imperative.

Equally rejected by Mercier is the notion that individual rights derive from the State. Here, the vaguely pantheistic musings of Hegel and Schelling and their followers tie in the Absolute with the State.
The Absolute is one with the substance of the Universe, and this substance is mind. The State is only a mode or aspect of the absolute or divine reason. The will of the State, not as arbitrary but as regulated according to the immutable principles of reason, creates rights.
[266(74)] Not only are these pantheistic theories subject to the criticisms against pantheism generally, but it is more patently offensive and in fact endemically against any sense of natural right. The State is the provider of right, and civil law becomes raised to the stature of absolute sovereignty.

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

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

The traditional basis for natural right is distinct from those bases advanced by the post-Enlightenment thinkers:
Rights are founded immediately on the moral law inasmuch as this is the expression of the intrinsic exigencies of our nature, and mediately on the Divine Will.
[268(74)] Quite obviously, this basis for human rights is different from the other theories. While it shares with Kantian theories the notion that the basis for human rights is the moral law, it bases itself on a traditional, classical natural-law foundation, both ontological and teleological. It thus does not suffer from the subjectivity of Kantian moral theory, but is ruggedly objective.
[T]his [moral] law, we maintain, [unlike Kant's moral law,] does not resolve itself into a priori judgments arising from the constitution of the mind and without any objective validity. The principles of our reason are the expression of essential relations which exist between things; our reason is not determined in the formation of its judgments by any blind necessity (e.g., by a priori forms) but by the force of objective evidence [i.e., reality, the way things are]. Hence when it prescribes certain rules of conduct in our dealings with other men, it does but formulate an order of relations which are derived from our very nature. Man is by nature a social being. The moral law therefore teaches him to live in accordance with that social nature. From this there result a number of practical judgments or imperatives which constitute the Natural Law.

The purpose of the positive law, then, is to enflesh, in a human way, these fundamental human rights that derive from the natural law.
The function of Positive law is to interpret what is enjoined by the Natural Law, to develop its consequences, to enforce its execution, and to check its violation.
[268(74)] (emphasis added).

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

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

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

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

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