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.

Friday, March 18, 2011

Natural Law's Modern Cousin Germain: Ressourcement and Development

FINNIS THINKS THAT THE RATIONALISTS such as Samuel Clark made themselves easy targets for Hume's criticism, a criticism which deftly pointed out that these über-rationalistic theories were illegitimately leaping from fact to obligation, from two "is"-based premises to an "ought"-based conclusion without a middle term that coupled is to ought. Premises that were "is"-based could only yield "is"-based conclusions, not "ought"-based conclusions. So one had to give up, according to the argument, trying to construct any "ought"-based conclusions (that is, morally obligatory statements) from "is"-based premises that were predicated either upon nature or upon (speculative) reason. Practical reason as being a source of our "ought"-based premises was not something that factored into Hume's thinking since practical reason was executory of good, and not determinative of the good. Nor was it part of Hume's thinking that nature--created by God with its own ratio ordinis--might have some inner compelling inclinations, an internal movement, entelechy, or teleology, one based upon the reason of the Creator God himself, that necessarily imposed the obligatory "ought." He would not entertain the simple syllogism: we ought to act in accord with nature because nature has an order given it by God; nature suggests we should do act φ (or not do act φ); therefore, we ought to do act φ (or not do act φ).

How is it that Clarke made himself such an easy target for Hume? If Finnis is to be believed, it occurred through a historical shift or "turn," or actually two historical shifts or turns, in the thinking regarding natural law in between Thomas Aquinas (13th century) and Samuel Clarke, (late 17th early 18th century), one shift to which Clarke was heir, and one shift for which Clarke (and his fellow rationalist thinkers) were responsible. The first "turn" changed the model of natural law both in terms of the means of determine its content, and the basis of its obligation.

St. Thomas (under Finnis's interpretation) held a model that was based upon self-evident principles (and not nature) for its content. St. Thomas (again under Finnis's interpretation) held a model that with respect to obligation was built upon a "friendship" theory. As a result of the Jesuits Francisco Suárez and Gabriel Vásquez intermediated through the Dutch protestant Hugo Grotius, the natural law model shifted to a rationalistic-voluntaristic theory where content was obtained by a focus on nature and behavior fitting or unfitting to it and obligation was based upon divine command. Nature gave the "is," the divine command gave the "ought" to the "is," and the moral theory straddled both the world of "is" and the world of "ought."

According to Finnis, the Aristotelian/Thomasian classical tradition was thereby replaced by a false and unfaithful pseudo-Thomistic theory, one which sounded like Thomistic tradition but was actually a new "tradition of rationalism eked out by voluntarism." NLNR, 47. Through Suárez and Vásquez it entered into the Catholic intellectual world and took root in the early 17th century for four centuries until released through efforts of the some insightful theologians in the mid-1960s. Through Grotius it entered the Protestant intellectual world about the same time where it slowly morphed into rationalism to the extent it had any life at all, until it was practically banished in 1934 by the peremptory Nein! of Karl Barth.* In Finnis's interpretation, however, Clarke exposed himself further to Humean attack by rejecting the voluntaristic (Divine command) prong of the Suarezian/Vasquezesque/Grotian theory, and trying to bootstrap the obligation on an observation of nature, leaving himself only in the land of "is." Thus he left himself and all his progeny exposed to the attacks of Hume and of "the whole Enlightenment and post-Enlightenment current of ethics." NLNR, 47. The way out of the Humean and Enlightenment and post-Enlightenment critique according to Finnis's view is to go back to the original Aristotelian/Thomasian model based upon self-evident principles and the notion of friendship and not divine command. Since St. Thomas's development of these is insufficient, once re-acquired there must be some development. So Finnis's concept is one of ressourcement (return to the sources) and development (developing the original theory to clarify it).

According to Finnis, St. Thomas had a view of natural law that was neither rationalist or voluntarist. Instead, St. Thomas's theory of natural law was predicated, not upon nature or reason's reflection upon nature, nor upon God's will, but upon self-evident principles, whether self-evident per se, quoad omnes, or quoad sapientes.** To be sure, St. Thomas was "regrettably obscure on the question of which practical principles or precept are self evident," NLNR, 51. At best, Aquinas only "adumbrated but left insufficiently elaborated" these principles. NLNR, 47. According to Finnis, the natural law was neither based upon nature (i.e., rationalist), nor upon God's will (i.e., voluntarist), nor even upon nature cum Divine command (i.e., rationalist and voluntarist), but upon self-evident (and consequently unprovable, yet undeniable) first principles of practical reason. Essentially, however, St. Thomas's theory was neither rationalist nor voluntarist. With respect to content, St. Thomas did not advance a rationalist notion:

[W]hat is decisive [in Aquinas], in discerning the content of the natural law, is one's understanding of the basic forms of (not-yet-moral) human well-being as desirable and potentially realizeable ends or opportunities and thus as to-be-pursued and realized in one's action, action to which one is already beginning to direct oneself in this very act of practical understanding.

NLNR, 45. With regard to obligatoriness, St. Thomas did not adopt a voluntarist or Divine command (will) theory:
Aquinas . . . treats obligations as the rational necessity of some means to (or way of realizing) and end or objective (i.e., a good) of a particular sort? What sort? Primarily (i.e., apart from special forms of obligation) the good is a form of life which, by its full and reasonably integrated realization of the basic forms of human well-being, renders one a fitting subject for the friendship of the being whose friendship is a basic good that in its full realization embraces all aspects of human well-being, a friendship indispensable for every person.
NLNR, 46. In Finnis's view, then, we are obligated to follow the content of the natural law (obtained from self-evident principles) not because of a command from God, but because it is the means of friendship with God.

"Terra Nullius" by Lachlan Amore-Lloyd

In between Samuel Clarke and St. Thomas two things happened to queer the natural law doctrine and which made it so susceptible to Humean attack. The first turn or corruption according to Finnis is to be found in the version of natural law espoused and promulgated by the Jesuits Francisco Suárez (1548-1617) and by Gabriel Vásquez (1549/51-1604). Though seemingly predicated upon Aristotle and Aquinas, the theory advanced by these Spanish Jesuits "differed radically from the ethical theories actually maintained by Aristotle and Aquinas." NLNR, 45. Essentially, they dropped the Aristotelian and Thomasian reliance on self-evident principles. Instead, they advanced a combined "rationalist" and "voluntarist" theory of the natural law.

In terms of content, the reliance on self-evident principles of St. Thomas's theory was abandoned and replaced with a rationalistic basis. For Suárez and Vásquez, reason looked to human (rational) nature (and not self-evident principles) and therein discerned by a sort of extrapolation whether a certain act φ was befitting or unfitting with that nature. If it was fitting, then it was morally right. If it was unfitting, then it was morally proscribed. If φ was the only fitting act in the circumstances, then it was morally needful to to φ. This was the "rational" component of their theory.***

In moving from human (rational) nature to obligation, Suarez and Vasquez rejected the Thomasian "friendship" concept, and replaced with a Divine command theory. They required "an act of will be a superior, directing to moving the will of an inferior." NLNR, 45. This was the "voluntarist" part of their theory. The moral obligatoriness of nature, then, involved looking at whether a certain act φ was fitting (and therefore legitimate, and if φ was the only thing one could do in the circumstances, mandatory) or unfitting (in which case it was illegitimate) coupled with a divine command to follow nature. Their theory was then a blend or intertwining of rationalist and voluntarist principles.

Finnis states that this marked rationalist-voluntarist shift in the Suarezian and Vasquezesque doctrines of natural law from the Thomasian self-evident-friendship model shows itself in a shift language. Whereas those schooled in St. Thomas's original doctrine spoke of "end" and "good," those who relied on the Jesuit formulation started talking about "right" and "wrong." NLNR, 46.

It was not the original Aristotelian/Thomasian self-evident-friendship theory that made it into the influential treatise on law by Hugo Grotius (1583-1645), De Jure Belli ac Pacis, but rather the Suazerian and Vasquezesque rationalist-voluntaristic theory. It is clear from Grotius's text that the content of the natural law is obtained by rationally looking at what is fitting with human nature, and what is contrary to human nature, and then tying that determination with the divine command to follow nature. The act that was fitting to nature was commanded by God, the author of Nature. The act that was unbefitting to nature was proscribed by God, the author of Nature.

So by the beginning of the Seventeenth century, the Thomasian theory had essentially been replaced by the Suarezian/Vasquezesque model with nary a murmur by the theologians. By the beginning of the Seventeenth century, the kernel of the natural law theories was as follows:

What is right and wrong depends on the nature of things (and what is coveniens to such nature), and not on a decree of God; but the normative or motivating significance of moral rightness and wrongness, in particular the obligatoriness of the norm of right and wrong, depends fundamentally upon their being a decree expressing God's will that the right be done (as a matter of obligation) and that the wrong be avoided (likewise) . . . .

NLNR, 44.

The second "turn" is evident in Samuel Clarke (and incipient in Grotius himself), specifically Clarke's rejection of the "assumption that obligation is essentially the effect of a superior's act of will." NLNR, 44-45. In other words, of the rationalistic-voluntaristic Suarezian/Vasquezesqe/Grotian model, Clarke rejected the voluntaristic prong.**** But he retained the rationalistic part of the theory, remaining "so firmly within the grip of the thesis that practical reasoning is a matter of discerning relations of fittingness or consistency with nature that he tried to treat obligation as just one more of the set of relations of consistency."

It was these two turns that wholly corrupted the Aristotelian/Thomasian doctrine of natural law and exposed the substantially denuded and transformed doctrine of natural law to such withering attack by Hume and by Enlightenment and post-Enlightenment thinkers. But the theory of natural law that they dispatched into the grave was not the Aristotelian/Thomasian one, but rather a counterfeit. The theory they destroyed by the naturalistic fallacy was a rationalist-voluntaristic corruption sans the voluntaristic part, not the original, classical theory of Aristotle and St. Thomas which was based on self-evident principles and notions of friendship with God.

What therefore is required in Finnis's view is a ressourcement and a development of St. Thomas. We must recover his thought, says Finnis, and, where St. Thomas is deficient, we must develop it.

It is a bold theory and a bold project. One that has raised the hairs on the back of both classical and Thomistic natural law advocates, on one side, and modern consquentialists, relativists, and legal positivists, on the other side. But this is exactly what Finnis (through the work of Germain Grisez) claims to do and to have done in his Natural Law and Natural Rights. It is as if the triumvirate of Germain Grisez, John Finnis, and Joseph Boyle (who were the original collaborators and promoters of this "new" modern law theory) had boldly stepped into no man's land only to be fired on by both sides. What is not clear is whether this no man's land was once occupied by St. Thomas, a terra Sancti Thomae occupatum, or a land once occupied by Kant, a land des Kants, or a land-never-before-occupied and up for grabs, a terra nullium.

*On Karl Barth's highly negative assessment of natural law, see a series of posting in Lex Christianorum: Karl Barth's Response to Natural Law: Nein!, Karl Barth's Tin Ear: Notes, But No Melody, and Karl Barth: Rubbing Out the Image of God in Man.
**Self-evident propositions whether of speculative reason (such as the principle of non-contradiction: something cannot both be and not be in the same way and same time) or of practical reason (e.g., one ought always to do good) were traditionally divided into those that were obvious in themselves (per se nota secundum se or per se nota secundum se tantum) and those self-evident to us (per se nota quoad nos). The latter were divided into propositions that were self-evident to all (per se nota quoad omnes) and those propositions more complicated, and which only with those with sufficient understanding of the terms could grasp their self-evident status (per se nota quoad sapientes).
***Given the texts of St. Thomas, Finnis cannot outright say that this "rationalist" thinking is not present in St. Thomas, but he essentially demotes it, insisting that this "rationalist" thinking is secondary, and that fundamentally, St. Thomas is based upon "self-evident" principles and not rationalist observations of nature. "Aquinas would not reject the Vazquez-Suarez formulae, but would give them a subordinate and derivative place in the methodology of ethics." NLNR, 45. Finnis also states that a subsidiary effect of the shift in focus was the "perverted faculty" argument, which he colors as a "late but traceable descendant of the Vazquez-Suarez conception of natural law . . . which looms large among the modern [false] images of natural law theory, that natural functions are never to be frustrated or that human faculties are never to be diverted ('perverted') from their natural ends." He calls the argument "ridiculous," but gives no basis for that judgment other than a brief reference to Germain Grisez's Contraception and the Natural Law. NLNR, 48, 55. At least six things ought to be noted about the comment. First, Finnis's extreme formulation of the "perverted faculty" argument ("never"). Second, may there a more nuanced form of the "perverted faculty" argument that is acceptable (something à la "'close-in' teleologies" advanced by Steven A. Long in his Natura Pura? See Long on Porter: "Close-In" Teleologies and the Natural Law. Third, St. Thomas appears to have had a form of the "perverted faculty" argument (certainly in the case of lying, S.T. IIaIIae, q. 110, a. 3c, which Finnis acknowledges), and indeed (fourth) a form of it can be find in authoritative documents of the Catholic Church and in its common teaching. Fifth, what is the relationship between John Paul II's "theology of the body" and the "perverted faculty" theory? If one acts against the "theology of the body," is one also not guilt of having "perverted" [the bodily] faculty" argument? Sixth, why is it "ridiculous" without argument? Finnis is more tolerant of the opinions of Hart, Raz, and positivists than the moral theologians who advocated a "perverted faculty" argument.
****This is an assertion by Finnis without any supporting reference, and, in my view, dubious. It is difficult to see how such a conclusion can be based upon Samuel Clarke's Discourse, where it seems rather clear that the will of God was invoked by him, and so he would have combined both the rationalist and voluntaristic prongs of what Finnis identifies as the Suarezian/Vasqezesque/Grotian model of natural law as compared to the Aristotelian/Thomasian model:

That the same necessary and eternal different relations that different things bear one to another, and the same consequent fitness or unfitness of the application of different things or different relations one to another, with regard to which the will of God always and necessarily does determine itself to choose to act only what is agreeable to justice, equity, goodness, and truth, in order to the welfare of the whole universe, ought likewise constantly to determine the wills of all subordinate rational beings, to govern all their actions by the same rules, for the good of the public in their respective stations: That is, these eternal and necessary differences of things make it fit and reasonable for creatures so to act: they cause it to be their duty, or lay an obligation upon them, so to do, even separate from the consideration of these rules being the positive will or command of God, and also antecedent to any respect or regard, expectation or apprehension, of any particular private and personal advantage or disadvantage, reward or punishment, either present or future, annexed, either by natural consequence, or by positive appointments, to the practising or neglecting those rules.

That though these eternal moral obligations are, indeed, of themselves incumbent on all rational beings, even antecedent to the consideration of their being the positive will and command of God, yet that which most strongly confirms, and in practice most effectually and indispensably enforces them upon us, is this, that both from the nature of things, and the perfections of God, and from several other collateral considerations, it appears, that as God is himself necessarily just and good in the exercise of his infinite power in the government of the whole world, so he cannot but likewise positively require that all his rational creatures should in their proportion be so too, in the exercise of each of their powers in their respective spheres: That is, as these eternal moral obligations are really in perpetual force merely from their own nature and the abstract reason of things, so also they are moreover the express and unalterable will, command, and law of God to his creatures, which he cannot but expect should, in obedience to his supreme authority, as well as in compliance with the natural reason of things, be regularly and constantly observed through the whole creation.

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