Duns Scotus: On Synderesis and Conscience

THE NOTION OF SYNDERESIS AS A SORT OF antechamber of conscience, the scintilla conscientiae or spark of conscience, has an interesting history. Some time ago, we had a posting on St. Jerome's contribution on the natural law, and, as part of it, we discussed his injection of the notion of synderesis. See St. Jerome on the Natural Law: The Scintilla of Conscience. In his discussion on Duns Scotus's understanding of synderesis and conscience, Allan Wolter has a good synopsis of this word's curious history:

St. Jerome, in the opening chapter of his Commentary on Ezechiel (PL 25, 22B), is credited with introducing the Greek term "synteresis" into Latin, referring to it as the spark of conscience (scintilla conscientiae) which even Cain's sin could not eradicate from his nature. Derived from the Greek verb "syntereo" (to watch closely, to preserve or keep safe) it seems to have been nothing more than a poetic way of describing conscience. According to De Blic (1949), it was a medieval scribe who made the error of writing "synteresis" (conservation) for "syneidesis" (conscience) in copying Jerome's work on Ezechiel. The error was incorporated into the popular Glossa ordinaria and, through Peter Lombard's Sentences, passed on to the scholastic theologians, who speculated as to its exact nature, usually giving it a special function distinct from conscience.

Wolter, 45. The Scholastics, then, disputed what exactly synderesis was: how it was different from, or how it was related to, conscience; what its role was in the moral life; what its relationship was with the human will, with the human intellect; what its role was with respect to moral habits; and so forth.

With respect to whether synderesis resided principally in the intellect or principally in the will, Wolter gives a quick, if undetailed, summary of the issue:

Peter Lombard cites various views as to what "weights human nature towards good." Referring to Jerome's commentary, he says: "Man is rightly said to will good naturally, because he was established with a good and right will. For the higher 'spark of reason,' which also, as Jerome says, 'could not be extinguished in Cain,' always wills good and hates evil." (Sent. II, dist. 39) This suggests that synderesis might be either in the intellect or in the will or simply in the soul as possessing both.

Wolter, 45.

Since Peter Lombard was rather vague on the location of synderesis--in the will, in the intellect, or somehow in both--commentators on his Sentences naturally took different positions:

In one of the first known commentaries on Peter's book, attributed to Udo (Lottin, 1948, pp. 107-8), synderesis is identified with Augustine's ratio superior.* One of the first Franciscan masters at Paris, John of La Rochelle, went along with this interpretation of Udo. St. Bonaventure, on the other hand, interprets conscience as a habit of practical intellect, which inclines a person to know both general principles of moral rectitude and the goodness or badness of particular actions, whereas he sees synderesis as the "weight of the will whose function is to incline it towards the good in itself" (II Sent., dist. 39, art 2, q. 1; Opera II, p. 910).

Wolter, 46.

Blessed Duns Scotus

Scotus does not follow St. Bonaventure in assigning synderesis to the will. Following Bonaventure, Scotus could have identified his affectio justitiae with synderesis.** But Scotus viewed synderesis as having a role in the intellect, in its formation, prior to any act of will and its inclination towards the good in any free, elicited act. Scotus sees synderesis as nothing other than the practical intellect viewed from the perspective of making judgments based upon general moral principles. Synderesis is distinguished from conscience, since the latter is concerned with particular, concrete actions. Conscience follows synderesis. So while synderesis is not for Scotus as it was for Bonaventure the "weight of the will" which inclines to the good, he did view it as being a component in the prior act of intellect which was a "stimulus to good," particular when the will operated under its superior affectio justitiae, in which the person sought the good in itself, and not the lower affectio commodi, where the person sought the good for himself.

Scotus discusses these issues in his Ordinatio II, dist. 39, qq. 1-2, where he address Peter Lombard's Sentences (II, dist. 39). He asks the question, "Is synderesis in the will?" and then fashions arguments for this position and against this position, ultimately deciding that synderesis is in the practical intellect, and not in the will.

The first argument that Scotus advances as suggestive that synderesis is in the will, and not in the intellect is that synderesis "always protests against evil," and since "protest pertains to the will," it follows that synderesis must be something found in the will and not the intellect. But against this position, Scotus notes that the protest of synderesis arises because "it shows what good ought to be willed," and it is this intellectual showing that is the "occasion for protesting against evil," so it is something intellectual in nature, prior to the exercise of the will.

The second argument that might suggest that synderesis is something in the will is the notion that synderesis is understood to be "that whereby man necessarily is inclined to justice." Since St. Anselm teaches that inclinations toward what is advantageous (affectio commodi) is something in the will and it is willed necessarily, it seems to follow that inclinations to what is just (affectio justitiae) would also be something in the will. But Scotus distinguishes between these inclinations. As we have seen, Scotus divides the human will into two wills: natural will and free will. Free will, which is the power to act freely, is free to chose course between something that is advantageous to it and something that may not be advantageous to it, but rather is something that is just and contrary to its advantage. St. Anselm's statement, then, that the will wills its advantage necessarily mus be understood to refer to the natural will, which necessarily wills its own advantage, and not to the free will which can chose justice. Synderesis relates not to the natural will, but to the elicited act, and so it is something that is unrelated to the natural will that seeks its own advantage.

Similarly, St. Augustine's understanding of the will as something which necessarily inclines towards its own happiness. (Scotus refers to St. Augustine's De Trinitae, XIII.5) It would seem that our inclination towards justice is something similar to the inclination we have towards happiness. Since synderesis is what inclines a man to justice, it would suggest to be something that resides in the will. Scotus counters this argument in the same manner that he counters the argument from St. Anselm. He distinguishes between the natural will (which necessarily wills happiness defined as one's advantage) from the free will (which does not necessarily will either its advantage or justice, but is free to choose one or the other). Synderesis, then, relates not to the natural will, but to the free will, to an elicited, and not a determined and necessary, act.

Finally, Scotus argues that synderesis could be thought to be something related in the will through an argument based upon analogy. Irrational natures tend necessarily to fulfill their natures. The will, then, ought to have some similarity to this, and the "will too will have a principle necessarily inclining it towards the justice it is suited by nature to have." But this is to confuse natures. The nature of irrational objects is not free, whereas it is the dignity of rational natures to be free. So it is improper to analogize from the necessary nature of irrational creation to the free nature of rational creation. Synderesis, then, cannot be part of determined nature.

Scotus takes the position that synderesis is not something of the will, but is something that pertains to the intellect. This, he argues, is the meaning of Peter Lombard's text: "synderesis represents the higher portion of reason," to Lombard, and so it follows that "synderesis is in the intellect which is concerned with contemplation or the theoretical." Ordinatio II, dist. 39 (Wolter, 162)

Scotus also discusses conscience in this distinction. There are some arguments that might be made that conscience is something that pertains to the will. For example, in the Epistle to the Hebrews (13:18) mention is made of "good conscience." Since goodness pertains to the will (one speaks of a good will, not necessarily of a good intellect), this suggests that conscience pertains to the will. But against this, Scotus argues goodness is also attributed to habits of the practical intellect, and not only the will. Granted, goodness, when used of the practical intellect, refers to suitability to the will of what the practical intellect determines is right. So a good will pertains to a right practical intellect. Sometimes the notion of good is thus transferred from the will to the practical intellect. Such expressions sometimes go the other way, so we speak of a right will, though in reality it is the practical intellect that is right, the good will being right because it is in accord with the right as presented by the practical intellect.

Another argument that might be used to argue that conscience is something that is found in the will and not the intellect is that if conscience pertains to the intellect, then one would expect that the more one knew, the more conscientious that person would be. But this is not our experience, since we know that mere knowledge does not lead to conscientiousness. This would suggest that conscience then is not something pertaining to the intellect. Against this position, however, it also known that the will can act against what the practical reason presents to it as good. There are people, as Aristotle pointed out in his Ethics, that can recite the teachings of the philosopher Empedocles even while under the influence of passion. Failure to do what is right, then, may not be a defect of the intellect, but it could be a defect of the will. Therefore, the fact that someone with knowledge of the right may not do the right does not suggest that conscience is something in the will.

Ultimately, Scotus teaches that both synderesis and conscience pertain to the intellect, and not to the will. For Scotus, the free will and the elicited act is never necessary. It neither necessarily tends towards good or necessarily resists evil. To suggest that the will is compelled to do good would mean that there could be no sin. If synderesis always proposes what is right, and always opposes what is wrong, then it is not something that pertains to the free will, and so must be something that relates to the practical intellect. It is something that is proposed to the free will, and the free will can either act in conformity with it or act against it. Likewise, conscience is something that pertains to the intellect. For Scotus, conscience "is produced deductively by way of a practical syllogism." Conscience is not something innate, nor is it some sort of power in the soul; rather, conscience "represents an evident conclusion inferred from first practical principles." Ordinatio II, dist. 39 (Wolter, 164) Clearly, for Scotus, the conscience does not pertain to any appetitive habit or will, but is something that pertains to the practical intellect.

If synderesis is assumed to be something having an elicited act that necessarily and at all times inclines one to act justly and resit sin, then since nothing of this sort is in the will, we cannot assume it to be there. Consequently, it is in the intellect, and it cannot be assumed to be anything other than the habitual knowledge of principles which is always right. For the intellect, in virtue of its own natural light, assents to these principles immediately on the strength of their terms. And then, insofar as it depends in part upon the intellect, the free will is apt by nature to choose in accord with these principles, though such a choice may fail to follow insofar as the other, the principal cause, freely chooses otherwise, because there is no necessitating cause involved here.

According to this line of reasoning, we can also assume that conscience is the habit of making proper practical conclusion, according to which a right choice of what is to be done is apt by nature to follow, and hence it can be called a stimulus to good, insofar as free choice, as a whole, has one partial cause [practical knowledge] disposing it correctly and a volition that is right and good will follow unless there is a defect in the other partial concurring cause needed for willing.

Ordinatio II, dist. 39 (Wolter, 164-65).

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*In Book XII of his De Trinitate, St. Augustine divides human reason into ratio inferior and ratio superior, which is analogous to the difference between knowledge (scientia) and wisdom (sapientia). Ratio inferior is concerned with inferior, temporal, contingent matters (quae intendit temporalibus), while the ratio superior is concerned with metaphysical or eternal matters, most notably, God (quae intendit aeternis conspiciendis aut consulendis). See also St. Thomas Aquinas, S.T. Ia, q. 79, a. 9.
**On Scotus's notion of affectio justitiae and affectio commodi, see Duns Scotus, Proto-Existentialist.

Duns Scotus: On the Pursuit of Happiness

DUNS SCOTUS EXPLORES THE ISSUE OF HAPPINESS, and, in so doing, critiques the Aristotelian and Thomistic eudaimonistic doctrines. Scotus asks the question: must happiness be desired necessarily? Is happiness the motor which drives all our willing?

I answering this question, Scotus relies on his basic distinction between the "natural will" and the "free will," a distinction we have covered in prior postings discussing Duns Scotus's moral philosophy. One can review this distinction by accessing the posting Duns Scotus: Will, Free and Natural. For Scotus, the issue of happiness as the end of man is influenced by the matrix of his distinction between the natural, unelicited, and ever-present will and a free, elicited will. The former necessarily is inclined towards its perfection through the affectio commodi, the desire for its own advantage. The latter is not so disposed, as it seeks something beyond its own perfection, a good beyond its own good, through the affectio jusititiae, the desire or affection toward justice. That latter wills its own good necessarily, the latter only contingently.

Blessed Duns Scotus

In reference to the natural will: it always and necessarily seeks happiness as defined by its own perfection:

If it is the natural rather than the free appetite [or will] that is referred to [in the question of whether happiness is desired above all else and is the rationale or impetus behind the will], then the reply to the question is clear, for the [natural] will necessarily or perpetually seeks happiness, and this in regard to a particular happiness.

That it does so necessarily, is obvious, because a nature could not remain a nature without being inclined to its own perfection. Take away this inclination and you destroy the nature. But this natural appetite is nothing other than an inclination of this sort to its proper perfection; therefore, the will as nature necessarily wills its perfection, which consists above all in happiness, and it desires such by its natural appetite.
....
[I]f the will as nature is determined necessarily to seek happiness, then as nature it seeks it above all.

That it seeks happiness in particular in this fashion, is evident, because this appetite is directed toward a perfection in which the will really perfected; but real perfection is not something general or universal, but something singular. Therefore, it desires happiness in particular.

Ordinatio IV, suppl., dist. 49, qq. 9-10 (Wolter, 156-57)

Scotus next asks whether the free will, as distinguished from the natural will, necessarily wills happiness, both in general and in particular. His answer departs from the Thomistic formula which holds that the free will necessarily seeks happiness and good in general, but not necessarily in particular. In the Thomistic view, all men are compelled--determined--to seek the universal or general good, but are not so similarly compelled--they are free--to chose particular goods. Though a particular good is chosen under the light of the general good, the choice is not compelled: and for this reason, man is free to select a particular good which, in fact, may not be to his good, may not, in the particular instance, lead to his perfection, to his good, to happiness. It is this distinction between the determined general inclination toward the good and the free will in choosing the particular that allows the Thomist to preserve free will, but also to preserve the notion that all men seek good and happiness.

Scotus opposes himself to this doctrine. He sees the distinction between the general and the particular good, the former desired willy nilly, the latter involving free choice, as one involving a contradiction. In his view, the particular good or particular happiness involves good or happiness in a sort of concentrated or more perfect fashion, and if the general good compels necessarily, then it follows that particular good, which is the general good found in a more concentrated or more perfect way, compels necessarily. The particular good ought to have even greater "pull" on the will than the general good. Moreover, to Scotus, it seems that the will involves an inclination to particular goods, and less strongly one to general goods, and so if the will's inclination is necessarily to good in general, it follows that the will necessarily is inclined to good in particular. The inclination toward the general good, when informed by the intellect as to a particular good being a concretization of the general good, would appear to compel necessarily.

Scotus therefore offers a different approach. In his view, the will does not will necessarily the general, but freely the particular good. In his view, the will contingently wills both the general and the particular good. Man contingently wills both happiness in general and happiness in a particular instance.

[T]he will of a pilgrim in this life for the most part wants happiness, whether known in general or in particular, namely, where the intellect judges or asserts without doubt that happiness is to be found in this particular. Nevertheless, it does not of necessity will happiness either in general or in particular. . . . I say therefore that the will contingently wills the end and happiness both in general and in particular, although in most cases it seeks happiness in general, and also in particular when the intellect has no prior doubt that happiness consists in this particular thing.

Ordinatio IV, suppl., dist. 49, qq.9-10 (Wolter, 158)

The reason why the free will only contingently wills both general and particular happiness is because the free will for the most part follows the inclinations of the natural appetite or will. The natural will necessarily wills happiness, and so for the most part the necessary compulsion of the natural will informs the free will. "For it is impossible," Scotus says, that the free will " be habituated or inclined to will something to any greater degree than it is inclined by its natural appetite." As an example, Scotus points to a just person who confronts martyrdom: one's death is difficult to chose precisely because it goes against the habit or inclinations of our natural desire to preserve our own life.

While the free will in general follows the natural will, it is not compelled to do so. It may act in a manner that opposes itself to the natural will, and it may oppose itself either by choosing something against authentic happiness (e.g., hedonistic pleasure) or something more noble than its natural perfection (e.g., martyrdom). Therefore the free will only contingently wills its general and particular happiness in accordance with its natural inclination. The will is not forced to will the happiness towards which its nature inclines it.

The contingency arises from the fact that one can fail to want something because of happiness. This can be done negatively, that is, this can be done because one can seek something without considering the ultimate end of happiness. In such a case, happiness has no bearing on choice. Moreover, something can be chosen without ordering it towards happiness, without fitting it in to happiness, and at such a time, happiness is not a relevant determinant of choice. Finally, one can oppose authentic happiness and pleasure, and can chose the latter over the former. As an example, a person with faith can conceive happiness as sharing the beatific vision in God the Trinity, and at the same time think of the pleasures of fornication which are entirely opposed to the first happiness. If he continued to think of fornication, though it is not ordered to happiness, he could will to seek it, chose it, and engage in an act that contradicts his own good, his own happiness. This establishes, in Scotus's view, that one is never compelled to act, either in general or in particular, to choose good. Though the free will in the run-of-the-mill situation conforms itself to the natural will, and so generally and in particular seeks its happiness, it always remains radically free to oppose itself to the authentic good, and so will something that is not ordered to its own perfection or happiness. It also remains radically free to chose something greater than its own good, and so go beyond its own nature.

In summary, for Scotus, one is never compelled to seek happiness in general necessarily. Both in general and in particular, one's happiness is always something contingently sought by one's free will. Though one's natural will is necessarily inclined to both its general and particular good, and one's free will generally follows, it is not necessarily the case that the free will has to follow the lead of the natural will. The free will's activity is contingent and remains always free--to chose something that is opposed to our natural happiness, either because it seeks something that is more base than our natural happiness (and sins), or it seeks something that is above and beyond our natural happiness (the supernatural life).

Duns Scotus: On Property and Social Contract

SCOTUS DID NOT WRITE A POLITICAL TREATISE, nor did he comment on anyone's prior political work such as St. Thomas commented on Aristotle's Politics. However, Scotus addresses the issue of private property during the course of his discussion of confession, specifically, the issue of whether someone needs to make restitution of property to receive absolution from the sin of theft or unjust taking of property. In addressing this question, Scotus goes into a brief excursus on private property, its fons and origo, and this takes him briefly into the origin of human government which he sees as the origin of private property. Succinctly, Scotus appears to depart from the common teaching that private property arises out of a natural law right. Rather, for Scotus, the right to private property is entirely one of positive law.

Scotus's treatment of private property and human government is found in distinctio 15 of the Ordinatio IV (q. 2). It is also mentioned in the parallel section of his Paris Lectures (qq. 2-4).

Blessed Duns Scotus Contemplating the Immaculate Conception

Scotus accepted the common teaching that, prior to the Fall of man, all things were owned in common, there being, under the natural law at the time, no such thing as private property. It was this state of original justice that drove the communal aspect of ownership in the early Christian Church and the shunning of private ownership by his own religious order, the Franciscans. After the Fall, however, private ownership as a general rule seems to have become the norm, and even common ownership such as in the early Church or among the religious, derives, not as a matter of natural law, but as a matter of common consent or religious doctrine, and Scotus asks why this is:

I ask: What is the source of distinct ownership such that this may be called "mine" and that "yours"? For all injustice through misappropriation derives from this as well as all justice through restitution.

Ordinatio IV, dist. 15, q.2 (Wolter, 219)

The answer to that question leads Scotus to a series of six conclusions. They are of significance because of their departure from ordinary teaching that private property is part of the natural law. Equally significant is Scotus's early social contractism or government by consent as it relates to the origin of human government.

The notion that prior to the Fall, ownership of property among humankind was in common rather than in the form of private property (Scotus's first conclusion) is adopted by Scotus both as a matter of authority (he cites to Gratian's Decrees, dist. 7, ch. 1, his causa 12, q. 1, and to St. Augustine's Commentary on the Gospel of John). But he also seeks to understand the rationale behind this belief. Given the purpose of property (to contribute to human flourishing) and the lack of disorder in paradisaical man, it seems that no one would have taken more than he needed from the commonality, and no one would have used force to take from others. However, "after the Fall of man, this law of nature of holding all things in common was revoked." Ordinatio IV, dist. 15, q. 2 (Wolter, 220). This is Scotus's second conclusion.

The reason behind the post-lapsarian revocation of common ownership is, for Scotus, two-fold. First, contrary to matters prior to the Fall, common ownership after the Fall would not have lead to peace, but would have acted against it. Covetousness raised its ugly head, and common ownership would have led to warfare as the covetous man sought to take more from the commonality than he required, and would have defended against others' use of it. The result would have been unequal distribution of goods, with the powerful obtaining more than their fair share. In such circumstances, private property is a superior institution than communism.

The revocation of the natural law of common ownership after the fall meant that something else had to replace that law. The revocation does not necessarily imply that a certain system is compelled. Thus, the revocation allowed merely "permission . . . to appropriate and divide up what had been common," and no particular form of private property or division was required either by natural or divine law other than a broad requirement of justice. Since the source of private property does not seem to come from either divine or natural law, Scotus believes it comes from positive human law. "[I]t seems more plausible to say this [the division of common property] was effected by positive law than the law of nature [and] the first division of property was brought about by some positive legislation." Ordinatio IV, dist. 15, q. 2 (Wolter, 221) (This is Scotus's third conclusion.)

Any positive law that parcels out property and creates private property requires both authority and the exercise of prudence or practical right reason, and so Scotus addresses those issues. Scotus's fourth conclusion is that the just division of common property into private property, and institution of human positive law, "requires of its legislator" "prudence and authority." The prudence is required of the legislator so that "he might dictate what ought to be established for the community according to practical right reason." Id.

This requires just authority, and Scotus asks the question where such just authority may be found. This leads him to the question of the origin of civil or political authority. First, Scotus distinguishes between two kinds of authority: paternal authority and political authority. Political authority he further divides into two general divisions: political authority vested in one person and political authority vested in a group.

Paternal authority is of natural law institution, and it remains unaffected by the Fall as a source of authority:

[P]aternal authority is just be natural law in virtue of which children are bound to obey their parents. Neither was this revoked by any positive Mosaic or Gospel law, but rather it was confirmed.

Id.

Political authority ought to be distinguished from paternal authority:

Political authority, however, which is exercised over those outside [the family], whether it resides in one person or in a community, can be just by common consent and election on the part of the community. [This authority] has to do with those who live together, even though there is no consanguinity or close relationship between them. Thus, if some outsiders banded together to build a city or live in one, seeing that they could not be well governed without some form of authority, they could have amicably agreed to commit their community to one person or to a group, and if to one person, to him alone and to a successor who would be chosen as he was, or to him and his posterity. And both of these forms of political authority are just, because one person can justly submit himself to another or to a community in those things which are not against the law of God and as regards which he can be guided better by the person or persons to whom he has submitted or subjected himself than he could by himself.

Id. (Wolter, 221-22)

This teaching of Scotus is historically significant. As C. R. S. Harris puts it:

Scotus is important in the history of political science as one of the pioneers of modern social theory. His doctrines [on social contractism] bear a strong resemblance to the late teachings of Locke. Scotus' account of the social contract is a philosophical analysis of the origin of society. Society, he held, was naturally organized into family groups; but when paternal authority was unable to enforce order, political authority was constituted by the people. Accordingly, [for Scotus] all political authority is derived from the consent of the governed.

(quoted in Wolter, 74)

This civil or political authority, justly originated in common consent, would therefore be authorized to pass just laws. (Fifth conclusion.) This conclusion sets Scotus up to address the issue of the source of private property.

From the institution of civil or political authority and its authority to pass just laws, private property is justified:

The first division of ownership could have been just by reason of some just positive law passed by the father or the regent ruling justly or by a community ruling or regulating justly, and this is probably how it [the regulation of property into private ownership once the natural law of common ownership was revoked] was done.

Id. (Wolter, 222)

The source of private property, then, is from human positive law, and is the result of the lacuna, or absence, of either natural or positive divine law after the revocation of the natural law of common ownership occurred after the Fall of mankind (sixth conclusion).

Duns Scotus: On Divorce

SCOTUS ADDRESSES THE TOPIC OF DIVORCE and the Mosaic law in Ordinatio IV, dist. 33, q. 3. The specific proposition that he engages is whether under the Mosaic law it was licit for a man to repudiate his wife. In support of the proposition that it was licit, Scotus cites Deuteronomy 24:1 and Malachi 2:16:

When a man, after marrying a woman and having relations with her, is later displeased with her because he finds in her something indecent, and therefore he writes out a bill of divorce and hands it to her, thus dismissing her from his house.

When you shall hate your wife, put her away, says the Lord God of Israel.*

Scotus also advances as authority that divorce is licit a canonical maxim found in Gratian's Decretum: "Everything which is born of certain causes, can be dissolved by certain causes." Dec. Grat. II, causa 27, c. 2. Since marriage is born of free consent, it follows under this principle that marriage can also be dissolved by free consent. This suggests that the Mosaic permission allowing divorce is legitimate.

Similarly, Scotus cites to the Decretum Gratiani, I, canon 11, dist. 34, which provides: "If it be established of a married cleric that the wife has committed adultery, she ought to be given a bill of divorce and sent away." This canon establishes not only the legitimacy of divorce under Mosaic law, but also under the law of the Gospel.

Moses with his Two Tables of the Decalogue

As contrary authority to the proposition of the licitness of Mosaic divorce, Scotus adverts to the natural law, specifically, the notion that is expressed by Adam's words: "A man shall cleave to his wife," which suggests a permanent natural union. The sexual union which is part of the conjugal union suggests a permanency, a one-fleshness which resists being separate. It was this natural union to which Christ referred when he taught that what God joined together, "let no man put asunder." Matt. 19:6.

The nature of marriage, further, suggests that it is an "irrevocable gift of the power of one's body to another for that of the other." Any condition or term to this giving of self is, by definition, not marriage. If divorce is allowed, the conveyance of self is, from a practical perspective, never irrevocable, but limited by one's will, and that negates the essential nature of marriage.

A final argument against the liciety of divorce under Mosaic law is that a woman had not rights to divorce her husband; parity or equality would suggest, then, that the man likewise had no power, since "so far as they are marriage partners," the man and wife "may be judged equal." Ordinatio IV, dist. 33, q. 3 (Wolter, 213)

This question is a difficult one for Scotus, and he wrestles with it without a clear resolution. Essentially, he advances two arguments, both of which are probable, and neither of which is definitive. First, he advances as a plausible position that divorce was never licit under the law of Moses. Second, he advances as a plausible position that God through Moses dispensed the Israelites from the natural law of marriage in order to avoid a greater evil: uxoricide.

Illicit nature of Mosaic divorce. The argument here is that it remained unlawful to divorce one's wife under the Mosaic law, and that marrying someone who was divorced was a mortal sin. However, the punishment against the woman or the man guilty of divorce and remarriage was remitted or suspended for the reason that it was necessary to prevent uxoricide. Scriptural support for this position is found in Christ's teaching that a person who puts away his wife and marries another commits adultery, and he who marries a woman who has been put away commits adultery (Matt. 19:9). If Christ is the fulfillment of the Mosaic law, his teaching would suggest that, under the Mosaic law, divorce remained adultery. Similarly, there is a natural-law basis for this. Christ adverted to the beginning of creation and man and woman, and that the natural, conjugal union between them was one rendered by God, and over which man had no authority--"what God has joined together, let no man put asunder." So under the natural law and God's plan, divorce could not be licit under the Mosaic law. Only the punishment under these circumstances was suspended to avoid the greater evil of uxoricide. One last argument is to point out that while Moses allowed for divorce "by reason of the hardness of your heart," i.e., as a result of the Jewish obduracy, this did not receive divine ratification. The marginal gloss on this issue states succinctly: "Moses permitted this, not God." Seizing on this gloss, Peter Lombard concludes that divorce was "permitted by Moses, not to concede divorce, but to prevent homicide." The obduracy of the Israelites prevented the full implementation of God's will as it related to marriage. Divorce was a matter of Mosaic permission and divine tolerance for the purpose of avoiding a greater evil.

Liciety of Mosaic divorce. The other view is that divorce was licit under the Mosaic dispensation. Moses's authority to articulate the divine law means that his permission has to be considered as part of God's law with God's ratification behind it. Accordingly, because Moses promulgated the law permitting divorce: "God himself joined, and those whom he separated, God separated, because God could not divorce those who were married." This seems to accord to Scripture--which allows for divorce--its face value. To suggest that divorce was not licit under the Mosaic law is difficult to reconcile with Scripture. Moreover, it cannot be said that the Mosaic law permitting divorce is unjust: God would not have allowed an unjust law. If the permission was not unjust, then there can be no mortal sin in following a just law. This would suggest that the Mosaic divorce was licit. This would suggest some sort of divine dispensation which is possible given that, in Scotus's view, the marital laws are not natural laws in the strict sense. God as supreme legislator could ratify marriage for a time, and, if the Mosaic divorce is exercised, dispense from that divine ratification.

Complete justice does not pertain to this matrimonial contract except by divine ratification . . . [and] it is reasonable that God should ratify it. . . . To avoid an evil which outweighs the good of wedlock's indissolubility, God can dispense from [the law of indissolubility] so that the marriage holds good until such a time as the woman may come to displease her husband. And in such a contract justice is preserved to some extent. For not only to obtain a greater good, but also to avoid a greater evil, the parties marrying may want to give themselves to each other in this fashion. Now, uxoricide is a greater evil than indissolubility is a good, because it includes not only the serious evil suffered by the woman killed but also the grave evil of the guilty killer. Uxoricide would also be a serious evil for the whole country, because it would be an occasion of continual discord and fighting by reason of the ire of the wife's parents towards her murderer; and this would tend to break down the family, because if the man were killed by his adversaries or by the law, it would destroy his family and the education of his child.

Ordinatio IV, dist. 33, q. 3 (Wolter, 215-16)

This, of course, implies that the entire Mosaic marital law involved less-than-perfect unions. Under "Mosaic law, when divorce was allowed and one man could have several wives, neither requirement was characteristic of marriage, because neither was it a one-to-one relationship, nor was the union simply indissoluble." The imperfection in the Mosaic marital law was supported by a divine dispensation which, in Christ, was abrogated.

Although Scotus struggles with these issues without a clear resolution, his doctrine of the natural law--which states that only the first two, and part of the third, commandments are natural law, strictly-so-called, but that the seven later commandments, the second table, are not natural law, but constitute divine positive law admitting of dispensation, allows for much easier resolution of the difficulties arising from Mosaic divorce:

I say it is not against the law of nature [to allow for divorce, as Moses did] in the strict sense, because it is not against any self-evident principles that pertain to the law of nature nor against any conclusion that follows immediately from such principles that a contract hold for only a time, according to this second view, nor does it run contrary to the education of the children, for God could have arranged another plan for the education of children [other than marriage], but one not as convenient as this, and even though one of the goods of marriage is in harmony with the law of nature, namely, indissolubility, God could have dispensed with this in order to avoid a greater evil.

Ordinatio IV, dist. 33, q.3 (Wolter, 218)

It is apparent from Scotus's treatment of this issue that we are dealing with a very thorny problem, one that perhaps may not be fully resolvable. We may never know the exact situation as it pertains to the Mosaic law allowing divorce. We do, however, have Christ's clear teaching on this matter, who brought us to the original teaching and original understanding of marriage.

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*The translation of Malachi 2:16 is from Wolter, 213. I do not have the Latin text in front of me, but I presume Scotus quotes the Vulgate. The Vulgate is: Cum odio habueris dimitte dicit Dominus Deus Israhel operiet autem iniquitas vestimentum eius dicit Dominus exercituum custodite spiritum vestrum et nolite despicere. The Douay Rheims which is pretty slavish to the Vulgate states: "When thou shalt hate her put her away, saith the Lord the God of Israel: but iniquity shall cover his garment, saith the Lord of hosts, keep your spirit, and despise not." The New American Bible translates: "For I hate divorce, says the LORD, the God of Israel, And covering one's garment with injustice, says the LORD of hosts; You must then safeguard life that is your own, and not break faith." The difference in translation stems from the difficult syntax in this section of Malachi. A discussion of the problem may be obtained by reviewing C. John Collins article "Malachi 2:16 Again." Depending on how one translates the difficult Hebrew text, Malachi 2:16, then, can be read as a sign of God's displeasure with divorce, or a more or less indication of its liciety.

Duns Scotus: On Polygyny

IN OUR PRIOR POSTINGS (see here and here) WE DISCUSSED the controversial position of Scotus on the Decalogue, namely that only the first two commandments, and, to a limited extent, the third, are part of the immutable natural moral law, strictly-so-called, and that the other seven commandments--usually referred to as the "second table" of the Ten Commandments and summarized in the "Golden Rule"--are not part of the natural law strictly-so-called, but are only loosely, and in a secondary sense, said to be part of the natural moral law. These latter commandments are only part of the natural law by courtesy, as it were, only because they were in harmony with the precepts of the natural law in the strict sense. In large part, Scotus was driven to make this distinction in order to try to explain those seeming divinely-authorized deviations from one or more of the commandments of the second table of the Decalogue in Scripture, e.g., the divine injunction on Abraham to sacrifice Isaac, the spoliation of the Egyptians by the Jews, or the taking of a prostitute as wife by Hosea. If the second table of the Decalogue does not involve the immutable natural moral law, but involves simply positive Divine law, then God can dispense from it without contradicting himself, without allowing something which, by its very nature, is evil.

Scotus applies this sort of reasoning in the area of marriage and the seeming violations of its intrinsic qualities in polygamy and divorce, both of which appear to have been practiced by the Patriarchs or allowed by Moses. These are issues which he treats in his Ordinatio IV, dist. 33, q. 1 and q. 3. We shall look at Scotus's analysis regarding polygamy in this posting, and reserve the issue of divorce for the next.

William Blake's "Lamech and His Two Wives"

Scotus asks whether the polygamous unions of the Old Testament patriarchs such as Abraham, Jacob, David, and Solomon were against the natural law. As is typical of medieval Scholastics, Scotus first outlines the arguments pro and con, provides his answer, and then addresses the arguments against his position.

Scotus advances two arguments that would suggest that polygyny is offensive to the natural law on marriage. The first, drawing on Christ's own teaching on marriage, refers to Genesis 2:24, where it is revealed that in marriage man and woman shall be "two in one flesh," words which "express the law of nature about matrimony." Ordinatio IV, dist 33, q. 1 (Wolter, 208) In this view, it was not part of God's original design to allow for polygyny. Polygyny was an aberration first introduced into the world "in violation of the law of nature" by the proto-polygamist, Lamech*:

Lamech took two wives; the name of the first was Adah, and the name of the second Zillah. Adah gave birth to Jabal, the ancestor of all who dwell in tents and keep cattle. His brother's name was Jubal; he was the ancestor of all who play the lyre and the pipe. Zillah, on her part, gave birth to Tubalcain, the ancestor of all who forge instruments of bronze and iron. The sister of Tubalcain was Naamah. Lamech said to his wives: "Adah and Zillah, hear my voice; wives of Lamech, listen to my utterance: I have killed a man for wounding me, a boy for bruising me. If Cain is avenged sevenfold, then Lamech seventy-sevenfold.

Gen. 4:19-24. The second argument for holding that polygyny is against the natural law was one based upon equality: polyandry is prohibited to a woman, and it follows from the fact that if each spouse has equal rights to the conjugal debt, as St. Paul suggests in 1 Cor. 7:2-5,** then polygyny is also prohibited.

Against these two arguments, Scotus parades out examples of polygyny among the patriarchs: Abraham had Sara (his wife), Hagar (his concubine), and Keturah (his wife). Gen. 16:1, 3; 25:1. Jacob had two wives, Rachel and Leah, the daughters of Laban. Gen. 16, 25. David had many wives as well as concubines, as, famously, did his son King Solomon. It is unseemly to suggest that these patriarchs violated the natural law.*** Indeed, St. Augustine of Hippo in his book on the Good of Marriage states that the "just patriarchs did not make sinful use of their many wives, nor did they sin against nature, but did what they did for the sake of progeny; nor was there anything contrary to the law or to mores, for at that time there was no law prohibiting polygamy." Ordinatio IV, dist. 33, q. 1 (Wolter, 208)

In approaching the question, Scotus focuses on the concept of justice. What does strict commutative justice demand of the marriage contract with respect to its parties? Is there an intrinsic justice in marriage that binds the Divine lawgiver? Finally, are the answers to these questions affected by man's current post-lapsarian condition? In other words, how did the Fall affect the relationship between man and woman?

A basic principle of commutative justice is "in every exchange on the part of whose who make the exchange and from the standpoint of what they exchange, strict justice requires that, as far as possible, what is exchanged be of equal value in terms of the purpose for making the exchange." This basic principle of commutative justice can be imported in the marital agreement. Scotus identifies two considerations or matters of exchange: the first, the procreation of children, the bonum prolis; the second, the remedy against concupiscence (remedium concupiscientiae). In the procreative aspect, Scotus sees an intrinsic disproportion between what the male gives and what the female gives. The man can impregnate numerous women at one time, whereas the woman can only bear the progeny of one man at a time. In terms of procreation, therefore, the woman has less to give than the man. Viewed, then, from the perspective of the exchange of procreative powers, it would seem that polygyny would not offend commutative justice and so be licit from that perspective, whereas, polyandry would offend commutative justice:

Therefore, so far as strict justice in regard to this end goes, bigamy would seem to be licit, so that a man could make a bodily exchange with as many women as he could fecundate in the way it is possible for a man to do so. Hence, it would not be a violation of nature if, in certain other situations, one male had several females.

Ordinatio IV, dist. 33, q. 1, a. 1 (Wolter, 209) This conclusion, however, is only true following the Fall, for Scotus observes (rather vaguely here, as it is difficult to tell exactly he means) that "this was not the case in the state of innocence, where matrimony was and would have been strictly a duty of one's state, when when to have several wives would have been bigamous." "The simple exchange between one man and one woman would have sufficed for reproduction, since neither man nor woman would have been sterile then." Id.

The exchange between man and woman in matrimony with respect to the second end--a remedy for concupiscence--is different. Here, "the bodies of man and woman are of equal value." As a consequence, the conclusion of commutative justice is different with regards to this second end (remedy for concupiscence), as compared to the first end (procreation). And though not expressed by Scotus, he seems to imply that the second end trumps the first end, or at least overrides it on the issue of justice:

Therefore, so far as strict justice in the state of fallen nature goes, this contract, if both ends are considered, demands a one-to-one exchange of bodies.

Id.

Scotus does not explain why the exchange as to secondary end overwhelms the exchange as to the primary end. Nor does he identify another of the ends or goods of marriage, the bonum conjugum, the personalist ends of mutual help and companionship, and the bonum fidei, the good of fidelity between husband and wife. These, it would seem, would demand monogamy, as they are directly contradicted by polygamous unions of any kind. Regardless, Scotus cuts to the quick and invokes here the positive law of God, the legislator of marriage:

[T]here is complete justice in this exchange of rights [between one man and one woman] because of the authority of the superior who instituted or approve of such an exchange. Although some things belong to their owners, still what determines whether such and such an exchange is licit depends on the legislator, and this is true even more so as regards the mutual bodily exchange in the presence of a legislator who is God. But he has ordained as the rule both for the state of innocence and for that of fallen nature that this bodily exchange be one-for-one, and therefore it is only in such a way that justice in full is to be found.

Ordinatio IV, dist. 33, q. 1, a. 1 (Wolter, 209)

Scotus had defined a dispensation as "a clarification of the law or a revoking of the law." In the matter of polygyny, then, God "would have either clarified his law concerning this exchange [between the spouses] or revoked it in a particular case, and he could have done so reasonably where a greater good would result from its revocation than from its observance." Ordinatio IV, dist. 33, q. 1, a. 2 (Wolter, 209) It just this sort of dispensation of God's positive law on marriage that is involved in the polygynous marriages of the patriarchs:

[A]t a time when members of the human race needed to be multiplied either in an unqualified sense or with reference to divine cult, since there were few who worshiped God [at the time], it was necessary that those who did so, beget as much as they could, since only in their progeny would faith and divine worship continue to exist. At such time, then, God reasonably gave a dispensation so that one man might share his body with those of several women to increase the number of those who worshiped God, something which would not have occurred otherwise. Now, Abraham and certain other patriarchs, presumably, were dispensed in this way.

Ordinatio IV, dist. 33, q. 1, a. 2 (Wolter, 210)

One might recall here that this divine dispensation in the law of marriage is only possible because the "the two shall become one flesh" law of marriage is, in Scotus's view, one of positive Divine law, and not one of natural law in sensu strictu:

[S]omething is said to be of the natural law in two ways, viz., first, what is simply a practical truth known by the natural light of reason alone. Here a practical principle known from its terms represents the stronger form of such a law of nature, only second to which are those conclusions demonstrated from such primary principles. What pertains secondarily to the law of nature, however, is anything that as a general rule is in harmony with a law of nature in the previous sense. There is no dispensation as regards the first class, and therefore anything opposed to such would always be a mortal sin. But for the secondary type, dispensation occurs in a situation where the opposite seems to be generally more in harmony with the primary law of nature. And it is just this secondary sense of natural that monogamy pertains to the law of nature and bigamy is opposed to such, and hence . . . it does not follow that in a special case the opposite could not be licit, or even in some cases necessary.

Ordinatio IV, dist. 33, q. 1, a. 2 (Wolter, 211-12)

This divine dispensation, Scotus is quick to add, preserves the commutative justice in the marital exchange. The reasoning for this is that when an exchange involves more than one purpose, it is reasonable to prefer the primary end to secondary ends, so that the preference to procreation (which does not demand exactly one-to-one equivalency) may militate against any secondary ends of marriage (where the exchange demands exactly equivalency). In Scotus's view, then, God's dispensation to the patriarchs did not offend against commutative justice.

Now, this marriage contract to render the carnal debt has as its main purpose the good of having offspring and as its less important end the avoidance of fornication. Right reason, then, dictates that those who enter into such a contract do so in such a way that the primary interests of procreation are given greater value even if rendering the debt when desired is given lesser value. But this takes place in a contractual exchange involving the body of one man and those of several women. . . . And so it is clear how there is justice for both parties to the marital contract, because each ought to be willing, according to right reason, to surrender something he or she has a right to as regards the less important end in view of the fact that each receives an equal good as regards the more important end--an end that should be desired more, even if one party should have to sacrifice something in exchange to obtain it.

Id.

What is reasonable is obligatory when one's superior, in this instance, God, allows for such a dispensation. Hence, in Scotus's view, Sarah acted reasonably when she offered Hagar, her maidservant, to Abraham for the purposes of assuring progeny, when Sarah could not, at least without divine intervention, provide Abraham with the good of children.

What was true and exceptional for the patriarchs is no longer true. The divine dispensation has been revoked by Christ, and the original understanding and intendment of marriage, the "two in one flesh" law of marriage, is again in force. Moreover, the circumstances which allowed such dispensation to be just no longer obtain, and thus no longer justify the divine dispensation of the positive law of marriage.

[Bigamy] would be unlawful now, as there is no present dispensation by the lawgiver. Indeed, that law of nature, "They shall be two in one flesh," was restored through Christ (Matthew 19). Nevertheless, the reason it is not licit, speaking of the justice on the part of the contract and the contracting parties, stems from the fact that the principle end does not require it as present . . . . [S]ince the need to sacrifice the secondary end for the sake of the primary end no longer exists, the marital contract must be observed in such a way that justice is preserved as regards both ends, and this is best done when one man marries one woman.

Ordinatio IV, dist. 33, q. 1, a. 2 (Wolter, 211)****
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*Scotus distinguishes the Lamechian polygyny to the Patriarchal polygyny, and condemns the first but justifies the latter. Lamech offended both against commutative justice and against God's divine law because the circumstances did not justify his bigamy and there was no divine dispensation to allow for it. Lamech thus sinned mortally by marrying more than one woman. At the time of the Patriarchs, however, circmstances were different justifying an unequal exchange between spouses, and to these circumstances there was a revealed dispensation.

As for Lamech, however, one could amdit that he did sin mortally [while the Patriarchs did not], because he acted contrary to the law of nature in the secondary sense. He sinned, I say, by contracting with several women where neither right reason dictated this law had to be revoked, nor was he dispensed from the law by his superior [God]. In short, he had neither excuse to fall back on.

Ordinatio IV, dist. 33, q. 1, a. 2 (Wolter, 212)
**"Now in regard to the matters about which you wrote: 'It is a good thing for a man not to touch a woman,' but because of cases of immorality every man should have his own wife, and every woman her own husband. The husband should fulfill his duty toward his wife, and likewise the wife toward her husband. A wife does not have authority over her own body, but rather her husband, and similarly a husband does not have authority over his own body, but rather his wife. Do not deprive each other, except perhaps by mutual consent for a time, to be free for prayer, but then return to one another, so that Satan may not tempt you through your lack of self-control." 1 Cor.7:1-5. In Scotus's view, polyandry is never justified because there are no circumstances where the exchange between the spouses could be, from a commutative standpoint just. Any polyandrous marriage subordinates the primary end of marriage (progeny) to the secondary end (remedy against concupiscence) and therefore is intrinsically immoral. See Ordinatio IV, dist. 33, q. 1, a. 2 (Wolter 212)
***Scotus does not feel compelled to justify the patriarchs. "I say that although one may presume some of the holy patriarchs did not sin in contracting bigamous unions, because both of the aforesaid conditions for such occurred in their case, namely, there was a need for polygamy and its was approved and prescribed by divine authority, nevertheless, is some of them did not have such an excuse or lacked either one or other other ground for validating such marital unions, I would not argue against those who maintained that they may have sinned grievously, since I do not think they were confirmed in grace." Ordinatio IV, dist. 33, q. 1, a. 2 (Wolter, 212)
****Scotus envisions how circumstances could warrant the return of polygamy in terms of commutative justice in the exchange. Even if circumstances would warrant it, however, a divine dispensation would have to be revealed.

But in case a multitude of men fell through war, the sword, or pestilence, while a multitude of women remained, bigamy could become licit even now, if one considers only precise justice on the part of the contract and contracting parties. And also women in contracting with men ought to be willing to give more in return for less as regards the secondary end for the sake of receiving equal for equal as regards the primary end. And in such a case according to right reason a woman should be willing that her man be joined to another woman that childbearing may occur. All that would be wanting for complete justice would be divine approbation, which perhaps would then occur and be revealed in a special way to the Church.

Ordinatio IV, dist. 33, q. 1, a. 2 (Wolter, 211)

Duns Scotus: Decalogue or Trilogue? Part 2

IN OUR LAST POSTING WE discussed the distinction that Scotus made between the two tables of the Ten Commandments or Decalogue. The first two precepts of the Decalogue--not to commit idolatry or worship images, and not to use the Lord's name in vain--were precepts of the natural law in the strict sense. The third precept--to keep the Sabbath holy--is sort of a mixture, with the general injunction to set aside time formally to worship God part of the natural law in the strict sense, but the precept to do so on the Sabbath, not part of the natural law, but rather part of the divine positive law. The next seven precepts--to honor mother and father, not to kill, not to commit adultery, not to steal, not to lie, not to covet the neighbor's goods or neighbor's wife--are not, in Scotus's view, part of the natural law in the strict sense, but only in a loose sense, because they are in harmony with it. Natural law in its strict sense, as Scotus defines it, is law that is self-evident or conclusions that are derived immediately and in a logically necessary way from those self-evident precepts. And the entirety of the second table of the Decalogue is not necessarily inferred from the first principle; hence, at best, the second table of the Decalogue can only be considered to come from a positive law of God, that is the divine law, not from the natural law in the strict sense.

Scotus anticipates some objections to his view. He begins with a Scriptural objection, referring to Romans 13:9* and Matthew 22:37-40,** where it seems that the Golden Rule as a summary of the second table of the Ten Commandments (love your neighbor as yourself) and the first table of the Ten Commandments (summarized as loving the Lord God with all one's heart, soul, mind, and strength) are identified: "The second [table] is like it [the first table]." Matt. 22:39. Doesn't this suggest that the precepts of the second table necessarily follow from the first precept that God is to be loved, Deus est diligendus? Moreover, would a perfect and well-ordered love of God necessarily not be jealous and solipsistic, but rather would want that others also love the God who is to be loved? And isn't this wanting that others also love the God who is to be loved nothing less than love of neighbor? So it seems to follow that the second table of the Decalogue necessarily follows from the first table, and this means that the second table is natural law, strictly-so-called.

Blessed Duns Scotus

Scotus handles these objections to his view that the second table of the Decalogue is not natural law strictly-so-called, but only natural law loosely-speaking because it is in harmony with the natural law strictly-so-called. Scotus argues that for one precept to follow necessarily from another precept, it must follow both from the latter's positive formulation and negative formulation. Thus, he notes that the positive precept to love God with all one's heart, mind, and strength may be necessarily framed as a negative: Do not hate God. Framing the positive precept into a negative prohibition follows necessarily from the first. Though one can argue that love of neighbor (i.e., that we should not have any qualms about our neighbor loving the God who is to be loved) may be a conclusion from the precept to love God, it does not follow that love of neighbor (defined as not being adverse to him loving the God who is to be loved) may be concluded from the precept not to hate God. Since the precepts of the second table (assuming they can be derived from the injunction that we not be adverse to our neighbor loving the God who is to be loved) cannot be derived necessarily from the negative formulation of the first precept, the second table is not natural law, strictly speaking.

But beyond that, Scotus takes issue with whether the injunction to love one's neighbor follows necessarily from the affirmative formulation of the law that one is to love God. From the fact that one's love of God ought not to be jealous (i.e., we ought not to exclude others from loving God), it is not necessary that we must will the good of others. The good of others is only to be desired if God desires the good of the other, or God accepts the love of the other, e.g., one who is not destined to be damned. Why should we not be adverse to another loving the God who is to be loved, if God does not care or accept the love of the other, our neighbor? "But it is not certain from the law of nature that everyone is such that his love is accepted by the God who is loved or should be loved." Ordinatio III, suppl., dist. 37 (Wolter, 205) Since the natural law does not necessarily tell us that God wants us to desire the good of the other or accepts our neighbor's love, it follows that we need not, as a matter of natural law, will that the other love God or simply not be adverse to our neighbor loving God. So, in Scotus's view, the love of neighbor does not flow necessarily from the strict natural law principle that one is to love God.

The last counterargument offered by Scotus as to why the second table of the Decalogue is not necessarily implied by the first table, is that--assuming we are required necessarily from the injunction to love God to want our neighbor to love God--the requirements of the second table of the Decalogue do not necessarily follow from the first table. Assuming that wanting our neighbor to love God is a natural law precept, it does not follow, for example, that one must not kill our neighbor, or not want him to commit adultery, or not want him to steal, etc. "For it is possible," Scotus argues, "for me to will that my neighbor love God and nevertheless not will that he preserve corporeal life or conjugal fidelity, and so on wit the other precepts." Ordinatio III, suppl., dist. 37 (Wolter, 205-06).

Accordingly, Scotus maintains that the only real principle of the natural law in its strict sense is that God is to be loved, Deus est diligendus. The second table of the Decalogue--the divine injunction that we love our neighbor as our self--is something to which we are enjoined. But it is incumbent upon us to follow the Golden Rule not because it is part of the natural law in the strict sense, but because it has been commanded (positively) by God. St. Paul in his letter to the Romans, and Christ in the Gospels, impose upon the Christian a law greater than the natural law when they tell us that we ought follow the Golden Rule and love our neighbor as ourselves understood as following the second table of the Decalogue. Paul and Christ urge us to follow "a higher love of neighbor that transcends that which is included in, or follows from the principles of the law of nature."

[A]lthough the love of neighbor that can be inferred from principles of the law of nature only requires that we love him in himself, still the love of neighbor as explained [by Christ and Paul] includes willing him these other goods, or at least not wishing him the opposite evils, such as not wanting him to be deprived unjustly of corporeal life, of conjugal fidelity, or temporal goods, and the like. Hence it is true that love of neighbor fulfills the law, viz., in the way it has been explained that this law of love must be observed, although not in the way that love of neighbor follows from the first principles of natural law. In a similar fashion, the whole law--so far as the second table and the prophets are concerned--depends on this commandment: "Love your neighbor as yourself," again understanding this not as something that follows of necessity from the first practical principles of the law of nature, but as the Lawgiver intended the love of neighbor to be observed according to the precepts of the second table.

Ordinatio III, suppl., dist. 37 (Wolter, 206)

For someone devoted to the Thomist way of looking at things, this is deeply unsettling. To suggest that one's love of neighbor or the Golden Rule is something that is the result of a positive precept of God alone and not also part of the natural law means that it is known only by revelation and not by reason. And there is something very bothersome about this since it seems to go against the tradition of the Church that the second table of the Decalogue is a summary of the natural law and bind all men regardless of race or creed. This is a great limitation on the natural law, and it seems to be too great a sacrifice for the purpose of assuring the immutability of the natural law and easing the problems that arise from the apparent Scriptural exceptions or dispensations from the natural law such as Abraham's sacrifice of Isaac, the Jews' plundering of Egyptian goods, and Hosea's marriage to a whore.

Scotus is setting the stage for handling the seeming exceptions in Scripture to the second table of the Decalogue: the command by God that Abraham slay Isaac; the taking by the Jews, by Moses's command, of Egyptian treasure; the taking of an adulterous wife by Hosea in order to highlight Israel's infidelity. If the second table of the Decalogue is not a matter of natural law strictly so-called, but a matter Divine positive law, then the issue of dispensation is not problematic. Although the natural law does not allow of any dispensation since it is immutable, the positive law does allow for dispensation because it is not immutable, but is entirely based upon the will of God and not of necessity. Still, to solve the problem of these Scriptural anomalies, one fears that maybe Scotus gave away too much.

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*"The commandments, 'You shall not commit adultery; you shall not kill; you shall not steal; you shall not covet,' and whatever other commandment there may be, are summed up in this saying, (namely) 'You shall love your neighbor as yourself.'"
**"'You shall love the Lord, your God, with all your heart, with all your soul, and with all your mind. This is the greatest and the first commandment. The second is like it: You shall love your neighbor as yourself. The whole law and the prophets depend on these two commandments.'"

Duns Scotus: Decalogue or Trilogue? Part 1

THE COMMON TEACHING OF MEDIEVAL THEOLOGIANS was that the Decalogue or Ten Commandments represented a synopsis or summary of the natural law, and, as natural law, their precepts were immutable, and therefore admitted of no dispensation.* Granted, formally, these laws were revealed, but they were, at the same time, materially equivalent to laws that were discoverable by reason, i.e., they were part and parcel of the natural moral law. Even the Catechism of the Catholic Church (more vaguely, perhaps, in part as a concession to Scotus) in section 1981 "The Law of Moses contains many truths naturally accessible to reason." In section 1958, the Catechism states: "The natural law is immutable and permanent throughout all the variations of history." Scotus takes a different view. The only precepts of the Decalogue that are natural law, strictly-so-called, are those of the "first table," i.e., those that pertain only to man's relation to God. The precepts of the "second table" of the Decalogue are not part of the natural law strictly-so-called, although they are "exceedingly in harmony with that law."

The big problem confronting those who advance the position that all the Ten Commandments present the immutable natural law from which there is no dispensation even by God, arises from those areas in Scripture where God seems to give approval to behavior not consonant with some of Decalogue's precepts. Frequently, the command to Abraham to sacrifice Isaac, Gen. 22:1-12, the spoliation of the Egyptians by the Jews, Exodus 11:2, 12:35-36, and the command to the prophet Hosea to take the harlot Gomer, daughter of Debelaim, and through her have "children of fornication," Hosea 1:1-3.

Statue of Blessed Duns Scotus at his birthplace

Scotus handles the problem of these seeming Biblical infractions of the precepts against murder, stealing, and adultery in Ordinatio III, suppl, dist. 37 (translated in Wolter, 198-207), where he handles the 37th distinction of Book III of Peter Lombard's Book of Sentences, and addresses the question: "Do all the commandments of the decalogue belong to the law of nature?"

As is typical in setting up his view, Scotus presents the differing views, pro and con. The most fundamental argument against the view that all the precepts of the Decalogue are part of the natural law and hence immutable is the apparent dispensations of that law in revealed Scripture. The argument is that if the precepts of the Decalogue are natural law, they are immutable and necessarily so and admit of no dispensation, even by God. The reason for this is as follows. Scotus begins with his definition of natural law strictly so-called: "What pertains to the law of nature is either a practical principle known immediately from its terms or necessary conclusions that follow from such principles." For Scotus, a precept of natural law must either be self-evident, or must be immediately a conclusion from those self-evident precepts. Even God cannot make these false, as to make these precepts false would involve denial of the fundamental principle of non-contradiction which constrains even God. Something cannot both be and made not to be. If the precept is necessary (self-evident) or is a necessary conclusion from a self-evident precept, God cannot dispense without self-contradiction, and God, like reality, cannot be self-contradictory. It follows that those precepts in which God has dispensed cannot, strictly speaking, be precepts of the natural law. Either that, or what appear to be dispensations are not really dispensations, but clarifications. God "cannot make what they say is good to be anything but good, or what they say must be avoided to be anything but evil, and thus he cannot make what is illicit licit." Scotus cites to the loci classici of problematic situations: Abraham's test, the spoliation of the Egyptians, and the command to Hosea as apparent dispensations from the commands that prohibit killing, stealing, and committing adultery.

As Scotus summarizes the prevalent view:

One view here claims that the whole decalogue pertains to the law of nature and explains it in some such way as this. The law of nature is a law proceeding from first principles known to hold for actions; these are seminal practical principles known from their terms. The intellect is naturally inclined to their truth because of their terms, and the will is naturally inclined to assent to what they dictate. From such principles everything in the decalogue follows either mediately or immediately. For all that is commanded there has a formal goodness whereby it is essentially ordered to man's ultimate end, so that through it a man is directed to his end. Similarly everything prohibited there has a formal evil which turns one from the ultimate end. Hence, what is commanded there is not good merely because it is commanded, but commanded because it is good in itself. Likewise, what is prohibited there is not evil merely because it is prohibited, but forbidden because it is evil. On this view, then, it seems the reply to the first argument should be that God simply cannot dispense from such cases, for what is unlawful of itself cannot, it seems become licit through any will.

(Wolter, 200)

How, then, do the advocates of this view (such as St. Thomas) "explain away those texts where God seems to have given dispensation"? According to Scotus:

One way of doing this is to claim that though a dispensation could be granted to an act that falls under a generic description [like killing in general], it could never be given insofar as it is prohibited according to the intention of the commandment [e.g., killing an innocent neighbor], and hence [killing and unjust aggressor, for example] would not be against the prohibition. Put another way, an act that is inordinate cannot become well-ordered, but an act insofar as it violates a prohibition is inordinate. Therefore, it cannot be subject to dispensation insofar as it is against a prohibition.

(Wolter, 200)

St. Thomas avers absolutely that strict dispensation from the natural law is impossible. IaIIae, q. 100, art. 8. What appear to be dispensations in Scripture, are just apparently so. These apparent exceptions or dispensations to the law are either interpretations of the law (clarifications in a specific case, a clarification of the intent of the legislator), IaIIae, q. 94, art. 5, ad. 2; q. 100, art. 8, ad. 4, or involve, not a dispensation from law, but a change of circumstance effected by God who, as the Lord of the cosmos and Judge of men, changed underlying circumstances, thus changing the application of that natural law which remained immutable. Accordingly, God can take a person's life and allow another to be the executioner, and there is no violation of the precept, "thou shalt not kill." God can take another person's property in punishment, and transfer title to another, which thereby results in no violation of the precept "thou shalt not steal."

Scotus finds the positions of St. Thomas and similar positions unconvincing. By definition, a dispensation is not allowing the precept to stand and allow permission for a person to act against. Rather, a dispensation revokes the precept or declares how it is to be understood. Dispensations are therefore of two kinds: "one revokes the law, the other clarifies it."

Given that definition, Scotus asks whether, under a particular precept of the natural law and under identical circumstances, God can prohibit and make illicit a certain act (say, murder) with one individual, but licit and allowable for another? Is there a situation where God can dispense Abraham from the law, but not Philip, though Philip and Abraham are in identical circumstances? If the answer is yes, then God has the power to dispense from the law unconditionally, and the natural law would be no different than those Mosaic ceremonial prescriptions or other prescriptions that are of the nature of positive law. The law against murder, then, would be identical to the kosher laws. And God seems to have done just that in these exceptional Scriptural situations.

For this reason, Scotus insists that the only real precepts of natural law, strictly so called, in the Decalogue, are found in the "first table" or the decalogue, and not in the "second table." All the precepts of the "first table" regard God immediately as their object. All the precepts of the "second table" do not. As Scotus explains the difference between the precepts of the "first table" and the "second table" of the Decalogue:

[T]he first table . . . regard God immediately as object. Indeed, the first two, if they are understood in a purely negative sense--i.e., "You shall not have other gods before me" and "You shall not take the name of the Lord, your God, in vain," i.e., "You should show no irreverence to God"--belong to the natural law, taking law of nature strictly, for this follows necessarily [from the proposition] "If God exists, then he alone must be loved by God." . . . Consequently, God could not dispense in this regard . . . .

Ordinatio III, suppl., dist. 37 (Wolter, 202) The precepts of the "second table" in Scotus's opinion do not participate in this necessary nature:

[T]he reasons behind the commands and prohibitions [of the second table of the Decalogue] are not practical principles that are necessary in an unqualified sense, nor are they simply necessary conclusions from such. For they contain no goodness such as is necessarily prescribed for attaining the goodness of the ultimate end, nor in what is forbidden is there such malice as would turn one away necessarily from the last end, for even if the good found in theses maxims were not commanded, the last end [of man as union with God] ;could still be loved and attained.

Ordinatio III, suppl., dist. 37 (Wolter, 2002).

According to Scotus, the only real precept of natural law, then, is, as Christ summarized it, to love the Lord your God with all your heart, soul, mind, and strength. E.g., Luke 10:27, Mark 12:30. The precepts that Christ summarized as involving the principle of loving one's neighbor as one self, i.e, those involved in the "second table" of the Decalogue are not natural law precepts.

As to the third precept of the "first table" of the Decalogue--to keep holy the Sabbath day--the underlying precept that some time be allotted to give God worship is a principle of the natural law strictly so-called, but the specification of when that time is is not a natural law precept. Nothing necessarily requires that God be worshiped on the Sabbath, but the natural law does require that he be worshiped at regular intervals. Though some suggest that the entirety of the Third Commandment is not of the natural law, Scotus disagrees. If the requirement that God at least be worshiped during a definite time is not part of the indispensable natural law, then:

God could dispense from it absolutely, so that a man for the entire duration of his life would never have to manifest any affection or love for God. This does not seem probably, for without some act of goodwill or love towards God as ultimate end, one could not do anything simply good that would be needed to attain that end, and thus this person would never be bound to will anything that is simply good in an unqualified sense. . . . Therefore, strictly speaking, it is not clear how one could infer that a person is bound then or now to worship God, and, by the same reasoning, how anyone is bound at some undefined time to do so, for no one is obliged to perform at some undefined time an act which he is not obligated to perform at some undefined time an act which he is not obligated to perform at some definite time when some opportunities so present themselves.

(Wolter, 203)

While the precepts in the "second table" of the Decalogue are, in Scotus's view, not part of the natural law strictly-so-called, they belong to the natural law in an attenuated sense because "they are exceedingly in harmony with that law." In other words, the precepts in the "second table" of the Decalogue are not self-evident or direct conclusions from self-evident principles, such as those of the "first table" which obviously implement the great principle of Scotist morality: God is to be loved, Deus diligendus est. The precepts of the "second table" "are very much in harmony with the first practical principles that are known of necessity," and thus are part of the natural law "speaking broadly."

So Scotus summarizes his conclusions:

To put all we have said together, first we deny that all the commandments of the second table pertain strictly to the law of nature; second, we admit that the first two commandments belong to the law of nature; third, there is some doubt about the third commandment of the first table; fourth, we concede that all the commandments fall under the law of nature, speaking broadly.

(Wolter, 204).

This distinction between the natural law strictly-so-called, and the natural law "speaking broadly," postures Scotus in a position where he can explain those seeming exceptions to the natural law if all ten commandments are made part of the law of nature strictly-so-called.


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*A summary of St. Thomas's view that the Decalogue contains the natural law and admits of no dispensation may be found in the Summa Theologiae, IaIIae, q. 100, arts. 1, c., and 8, c.

It is therefore evident that since the moral precepts are about matters which concern good morals; and since good morals are those which are in accord with reason; and since also every judgment of human reason must needs by derived in some way from natural reason; it follows, of necessity, that all the moral precepts belong to the law of nature; but not all in the same way. For there are certain things which the natural reason of every man, of its own accord and at once, judges to be done or not to be done: e.g. "Honor thy father and thy mother," and "Thou shalt not kill, Thou shalt not steal": and these belong to the law of nature absolutely. And there are certain things which, after a more careful consideration, wise men deem obligatory. Such belong to the law of nature, yet so that they need to be inculcated, the wiser teaching the less wise: e.g. "Rise up before the hoary head, and honor the person of the aged man," and the like. And there are some things, to judge of which, human reason needs Divine instruction, whereby we are taught about the things of God: e.g. "Thou shalt not make to thyself a graven thing, nor the likeness of anything; Thou shalt not take the name of the Lord thy God in vain.

Now the precepts of the decalogue contain the very intention of the lawgiver, who is God. For the precepts of the first table, which direct us to God, contain the very order to the common and final good, which is God; while the precepts of the second table contain the order of justice to be observed among men, that nothing undue be done to anyone, and that each one be given his due; for it is in this sense that we are to take the precepts of the decalogue. Consequently the precepts of the decalogue admit of no dispensation whatever.