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.

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*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.

Jacques Maritain and Natural Law: Natural Law, Analogically Speaking

“THE CONCEPT OF LAW," MARITAIN OBSERVES, "is an analogous concept." Its analogous characteristic relates to the great chain of law from human positive law, through natural law, through eternal law, into the very truth of God. Though each link in this "chain of law" is "law," there is an analogical relationship between them which must be grasped, or one will misunderstand the eternal law, the natural law, and one may sever necessary links in this great "chain of law" which follows the "chain of being."

The fundamental fact is that the law we are most familiar with is the written law of man, human positive law. So it is that human law that most clearly and familiarly fits into St. Thomas's definition of law. Law, says St. Thomas in his Summa Theologiae, "is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated." S. T. Iª-IIae q. 90 a. 4 co. (nihil est aliud quam quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata.) But human law is not the only law that exists, though it may be the law with which we are most familiar.

It should be noted . . . that the very word "law" risks being misunderstood because the most obvious and the most immediate notion that we have of law is that of written law or positive law: consequently, if we overlook the analogical character of the notion of law, we run the risk of conceiving Natural Law and every species of law after the pattern of law best known to us--the written law.

Maritain, 44. To maintain that human written law is the paradigmatic form of law would be a massive mistake, because the ideal, the paradigm of law is not human law, but the eternal law, and subsequent to that the natural law. The eternal law and the natural law--and not human law--are more fundamental and pure forms of law than human law. And there are huge distinctions between these laws, most notably in the knowledge of the law and the means of promulgation of that law.

Some of these differences are pointed out by Maritain. For example, the analogical character of law is illuminated in the notion of Eternal Law. Contrary to written law, the "Eternal law is not written upon paper; it is promulgated in the divine intellect and is known in itself solely to God and by those who see him in his essence." Maritain, 45. This means, of course, that contrary to human law, Eternal Law in its fullness is, at least in this life, unknown to us and unknowable by us by natural means. "The Eternal Law is as infinitely distant from written or human law as the divine essence is from created being." Maritain, 45. And yet, as rational creatures, were know "a certain reflection" of the Eternal Law insofar as we know the truth. "For all knowledge of truth is a sort of reflection of and participation in the Eternal Law, which is the unchangeable truth." Maritain, 45 (quoting S. T. Iª-IIae q. 93 a. 2 co. "Omnis enim cognitio veritatis est quaedam irradiatio et participatio legis aeternae, quae est veritas incommutabilis.")

This analogous character of law is also reflected in natural law, which is distinguished from human, written law by its unwritten nature and its means of promulgation. Natural law is defined thus:

Natural Law is an order [of reason] based in nature, or required appropriately by human nature, whose regulations are naturally known by man--naturally, which is to say, through the inclinations by means of which the rational creature participates in the divine [i.e., eternal] law.

Maritain, 45.*

Importantly, the order of reason concerned with is not the order of reason in nature separate and independent from God. The order of reason that is behind the natural law is that of the author of nature, God. That is why it is a huge mistake, a massive blunder, to separate God and the Eternal Law from the natural law, as was done in the 16th Century, most notably by the likes of Hugo Grotius (1583-1645) and his successors who took his cue. Grotius famously wrote that the natural law would remain valid, would bind, even if, one, in a most wicked proposition, assumed that God did not exist.** Thus the corpse of natural law should be obeyed, in Grotius's view, even though the head of the eternal law be lopped off. This was a "rationalistic deformation of the concept of Natural Law." Maritain, 46.

And, of course, this turned out to be horribly false argument. If the reason in the natural law is not divine reason, but nature's "reason" independent of God, then by what authority does an impersonal nature bind man? Nature cannot be presupposed, absent its creator, to be reasonable. Nature itself has thus no power to oblige. When thinkers, following Grotius's lead, severed God from nature, and concentrated "solely upon the order of nature--as deciphered by human reason--and did not perceive the relationship between the order of nature and the eternal reason," the enterprise was bound to fail. It was bound to fail because nature--bereft of eternal reason to give it its "ought"--is merely fact, merely is an "is," and there is no "ought" to be found in it. Thus severing the divine reason from nature naturally led to Hume's famous destruction of natural law without the eternal law, the so-called "Hume's Guillotine," or the "naturalistic fallacy," or the "Is-Ought problem."*** What Hume destroyed with his famous naturalistic fallacy argument was not a living natural law theory, but a natural law theory already decapitated by Hugo Grotius. Hume, who claimed to kill the natural law, was but stabbing a headless corpse and claiming victory, no real great feat of intellectual prowess. As Maritain summarizes it:

Suppose, absurdly, that God does not exist and that nothing is changed in things [i.e., let us suppose everything remains as it is]: then, by hypothesis, nature would continue to exist, and consequently the normality of functioning of human nature; the requirements of the ideal order based upon the essence of man would likewise continue to exist. But a second question presents itself: is this order rational, is it wise, does it oblige me in conscience? Indeed, the only foundation for its rationality is the Eternal Law, the divine reason, and it is precisely this which Grotius did not perceive.
. . . .
[W]hy should I be obliged in conscience by a purely factual order? In reality if God does not exist, the Natural Law lacks obligatory power. If the Natural Law does not involve the divine reason, it is not law, and if it is not law, it does not oblige.

Maritain, 46. In short, if God does not exist, if the natural law does not involve divine reason, it is not law.**** It has no "ought," and only is an "is," and the atheist Hume is absolutely and totally correct in criticizing someone who jumps from a mere "is" to an "ought." And we are orphans without law. The laws would all be flat. And the exchange between More and Roper in Bolt's "A Man for All Seasons" may be heightened and paraphrased to its metaphysical proportions: "Oh? And when the last natural law was down, and the Devil turned 'round on you, where would you hide, Grotius and Hume, the laws all being flat?"

Indeed, where would we hide if there were no right, no law, no truth and only might makes right? A law without eternal law, without right, reason, or truth is an abomination of law, it is to make law an idol, to render law desolate. Then let those that are in Judaea, that is those faithful of Israel, flee into the mountains (cf. Matt. 24:16), let no one go into their homes or their fields, and woe for pregnant women and nursing mothers, for the law, and the human power that has usurped law, will have no mercy on private property, labor, and human life if it finds it inconvenient.

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*I have added the content in brackets for clarity.
**Hugonis Grotii, De jure belli et pacis libri tres (Oxford 1913) (reproduction of 1646 edition), Prolegomena: "Et haec quidem quae jam diximus, locum aliquem haberent etiamsi daremus, quod summo scelere dari nequit, non esse Deum, aut non curari abe eo negotia humana." Translated, these famous words are: "And that which we have been saying would have a degree of validity even if we should dare to concede that which cannot be conceded without utmost wickedness, that there is no God."
***For a short discussion on this, see Ecstasis and Telos: David Hume and "Feelings, Nothing More Than Feelings . . . "
****The same should be said for "human rights." If these do not find their ultimate source in divine reason, in the eternal law, there is no reason except convenience for the strong to recognize them. Unmoored from the eternal law, human rights become unmoored from reason, and so we have people clamoring for such irrational, unnatural, and repugnant "rights" such as homosexual marriage or abortion.

The Disfigured Face: Ontological Morality and Human Rights

THE "NATURE" OF ARISTOTLE AND OF AQUINAS which is the source of the natural law is different from the denuded, one dimensional, materialistic "nature" of the modern day sciences. If the "nature" as understood by Aristotle and Aquinas were an apple, the "nature" as understood by the modern scientist is but a peel. The modern notion of "nature" is lacking both fruit and seed. It is tasteless, fruitless. It is bland of value, composed only of empirical fact. There is no "ought" in it; there is only "is" in it. The Aristotelian/Thomistic concept of nature had and element of design, but not the design of some complex watch, but the design of a quasi-living organism, as it had an inner entelechy, a desire, a yearning toward the God that had brought it out of nothing and that constantly preserved it in being. The entire cosmos, after all, even its raw matter, the chaotic matter over which the Spirit hovered, was a creature of God. God did not act arbitrarily, without reason in creation ex nihilo. It followed that nature had a purpose, a goal, an end, a telos (from the Greek word τέλος, a word meaning "purpose," or "goal," or "end"). Aristotle and St. Thomas Aquinas (and, for that matter, the entirety of the perennial tradition in between them and after them until this notion was rejected as part of the Enlightenment, Liberal, and Modernist project) was teleological. In this regard, Cortest quotes Ernest Fortin:

The heart of the Aristotelian enterprise is the well-known and now almost universally contested thesis that nature acts for an end.

This teleological view of nature of Aristotle was shared by St. Thomas; however, he nestled it into his unique metaphysics or ontology, which distinguished essence from existence, and which found that existence was the preeminent good, in fact the source of both the true and the good, of perfection. In St. Thomas's view, good and being are exchangeable terms. If a thing is good, it subsists in the fullness of its being (existence); that is, it conforms entirely to its nature which is informed by its end. To the extent that it fails to abide by its being (existence), to the extent that it misses the mark that is its end and which is defined by its nature, it suffers (or does, if the creature has free will and knowledge) evil. St. Thomas, it hardly need be said, also recognized the truths of revelation, particularly those that related to the dignity of man as a creature of God and as a result of his ultimate calling (union with God in the beatific vision). His understanding of the end of nature was informed by the Evangelical revelation.

Aristotle had no inkling of the Gospel. It is for this reason that, "[a]lthough both Aristotle and Aquinas construct ethical and moral systems on metaphysical principles, they have entirely different conceptions of the value of human life." Cortest, 18. So different is that conception, that Aristotle and St. Thomas stand apart each other by a great divide. It is the philosophical analogue of the historical divide between B.C. and A.D. The Lord had not walked among us when Aristotle did his thinking. Aristotle promoted (or at least excused) the killing of deformed children and human chattel slavery, something unthinkable to St. Thomas. So massive is the difference the Gospel made to the Aristotelian underlayment of St. Thomas Aquinas, that if Aristotle alone was relied upon to build a natural law, he would be unable to provide us with a workable morality. "I would argue," says Cortest, "that no credible doctrine of human rights can be based exclusively on an Aristotelian anthropology, since nature shows no compassion for the weak, the innocent, or the 'deformed.'" Cortest, 19. Cortest is right. As great as Aristotle was, he lived without Gospel light, and his teaching is, next to the sublime values of the Gospel, barbaric in some aspects. To return to raw Aristotelianism without the temper of the Gospel would be a giant leap backwards in human development.

While indisputably St. Thomas had a high view of human dignity, it would be a mistake to attribute to him, as some scholars do (John Finnis or Brian Tierney come readily to mind), the modern notion of "human rights." The most fundamental chasm exists between St. Thomas's traditional notions and the modern notions of human right. That chasm arises out of the excessive individualism of modernity, an individualism so excessive that it advances rights that are idiosyncratic, even against human nature and inimical to communal life. St. Thomas always saw rights ensconced within the greater good of the community, and never apart from duty to God and neighbor. He never saw rights as something inhering in free-standing, atomic and autonomous individuals. "In Thomas's system, ius or right is understood in terms of justice, which is itself always understood of others." Cortest, 21. In short, St. Thomas saw ius (right) as coming out of an I-Thou and I-You relationship, one of responsibility to God and to fellow humans. Moderns, on the other hand, see right as coming from the seagull philosophy in Pixar's (Disney's) movie Finding Nemo: "Mine, mine, mine, mine . . . ." I rather think that St. Thomas would have been impatient with the modern advocates of human rights, who now claim things like the right to abortion, the right to homosexual marriage, among a whole slew of rather questionable "rights." Like Nigel in Finding Nemo, he would have told the incessant advocates of autonomy to shut up. To claim St. Thomas as a sort of precursor to the modern notion of rights is not fair to St. Thomas's thought.

The "Seagull Philosophy" of Modern Right: Mine, mine, mine . . .

Three things are without question shared between St. Thomas and Aristotle: (1) a teleological view of nature, (2) a notion that positive laws, or laws particular to the city-state, are distinct from universal or natural law, and, finally, (3) that this natural or universal law is not to be separated from the notion of a natural or universal justice. Cortest, 14, 22.

From St. Thomas, Cortest jumps to the Dominicans at the School of Salamanca, focusing on the works of Francisco Vitoria, Domingo de Soto, and Domingo Bañez. These men were devoted followers of their fellow Dominican, Thomas Aquinas. Cortest also rejects the effort to recruit the Dominicans at the School of Salamanca as advocates of modern, individualistic human rights. "For them, individual or human rights are always understood within the more general context of justice." Cortest, 22. It seems that Brian Tierney is at the forefront of recruiting the Salamancans as advocates of modern human rights. But it would seem that Tierney is not recruiting, but impressing or shanghaiing the Salamancans who would probably be unwilling advocates of the modern, liberal, individualistic vision of human rights that are not based on any notion of nature or reason.

Domingo de Soto of the School of Salamanca

The Salamancans distinguished between the notions ius or right and dominium or lordship or power. De Soto's De iusticia et jure posits a distinction between the two:

Ius is the same as what is just (as Isidore says in Book V). It is the object of justice, the equity which justice establishes between men, dominium is the facultas of a lord (as its name implies) in servants or objects which he can use has he likes for his own benefit. Ius must therefore not be confused with domininium, as it is superior to it, and of wider reference.

Ius namque idem est (ut ait lib. 5 Isid.) quod iustum. Est enim objectum iustitiae: puta aequitas quam iustitia inter homines constituit: dominium autem facultas est domini (uti nomen sonat) in servos vel in res, quibus suo arbitratu, ob suumque commodum utitur. Fit ergo, ut ius no converatur cum dominio, sed sit illi superius et latius patens.

(quoted in Cortest, 23).

The Salamancan jurists, Vitoria, Soto, and, most famously, Bartolomé de las Casas, were very critical of the Spanish Conquista of the New World, and the Conquistadores' treatment, in some cases virtual enslavement, of the indigenous populations. It would seem, then, that the Salamancans were advocating some sort of inherent human rights of the Indian that were being violated. Brian Tierney seizes on the Salamancan notion of dominium or lordship as the source of the Salamancan advocacy of modern human rights. Dominium, Tierney suggests, is nothing but right under another name. Cortest, I think properly, criticizes Tierney's use of dominium as the source of individualistic rights. "[T]he difference between the traditional notions of dominium as Vitoria [and the Salamancans] understood it and a doctrine of 'natural rights' is vast." Cortest, 23. To equate the two would be to wrest the Thomistic objective foundation inherent in the Salamancans' thought and carry it into a subjective realm. It would be analogous to taking the Thomistic intellectual cathedral and moving it from a foundation of rock onto a foundation of sand, watch the cathedral collapse into a pile of rubble, and call the two situations the same. The underlying basis of modern rights theory and Thomistic and Salamancan natural law are simply different. Moreover, as Cortest correctly points out, the notion of dominium related to self-governance of a people, not to a subjective, individual right over one's possessions, and certainly not a subjective, individual right over one's own person against others. Cortest, 24. The Salamancans were not defending the rights of the Indians, but were defending the natural right of the Indian communities to exist and to govern themselves. Cortest, 25.

The only "right" found among the Salamancans that may be said to be an individual right in the strict sense would be the right to self-preservation. "Soto comes closest to defending a notion of personal rights in his treatment of self defense," which builds upon the right to self-preservation. Cortest, 25. But even this right must be understood within the more general framework of justice and the common good, something that is entirely absent from the modern concept of rights, which seem to be, in fact, independent of notions of justice to the entirety, and seem to be pitted against the demands of the common good or the good of the community. Certainly, many of the advocates of modern so-called "human rights" espouse values that are contrary to the very nature of man. Most uncontroversially, the claim to the "right" to procure an abortion is against human nature; indeed, it is foul, not fair, to nature's teaching. A tree, like a legal theory, is known by its fruits. Classical natural law and modern natural rights are two different species.

Now what is true for the Salamancans is not necessarily true for Suárez according to Cortest. In Cortest's view, Suárez appears to hover a bit closer to the modern notion of personal, positive human rights. Cortest, for example, cites to the definition of ius or right in Suárez's De Legibus, ac Deo Legislatore as more attuned to the modern understanding of human rights: According to Suárez, ius is "a certain moral power which ever man has, either over his own property or with respect to that which is due to him . . . . Accordingly, this right to claim (actio), or moral power, which every man possesses with rspect to his own property or with respect to a thing which in some way pertains to him, is called ius, and appears to be the true object of justice." [ius vocari facultas quaedam moralis, quam unusquisque habet, vel circa rem suam, vel ad rem sibi debitam . . . . Illa ergo actio, seu moralis facultas, quam unusquisque habet ad rem suam, vel ad rem ad se aliquo modo pertinentem vocatur ius, et illud proprie videtur esse obiectum iustitiae.] Cortest, 26 (citing Trac. de Leg. ac Deo Leg., I.2.5]

While Suárez may arguably be the source, or at least the harbinger, of modern notion of right, it would stem from his failure to "follow the strict Thomistic line of legal theory followed by the Dominicans at Salamanca." Cortest, 27.

But, in fact, the source of modern human right is more likely to be one who came after Suárez, but who relied heavily upon him: the Dutch Protestant jurist Hugo Grotius. In his De Iure Belli, Grotius seems well on his way to understanding right as a subjective right, positive, rather than negative, in tone:

A legal right (facultas) is called by the jurists the right to one's own (suum); after this we shall call it a legal right properly or strictly so called. Under it are included power, now over oneself, which is called freedom, now over others, as that of the father (patria potestas) and that of the master over slaves; ownership, either absolute, or less than absolute, as usufruct and the right of pledge; and contractual rights, to which on the opposite side contractual obligations correspond.

(quoted in Cortest, 27) While Grotius still bore traces of Aristotelianism, this language of "power . . . over oneself . . . which is called freedom" is recognizable as something new. Here we have a kernel of modern rights theory, one based on alleged autonomy or freedom from restrictions of any kind, including eventually, nature and, what is the same thing since nature contains within it the law of God, even God. Some of Grotius's notions, particularly when seasoned by the Hobbesian notions of nature and right which were wholly outside the pale of the Aristotelian/Thomist tradition, may be the source of modern theories of human right. But by the time one gets to Hobbes and his Leviathan one is clearly outside any notion of morality having an ontological or metaphysical foundation. In Hobbes, right is no longer tied to being, or, for that matter, Being.

Universal Ethic-Convergences 7-Further Evolution

1.5. Further evolution

28. The modern story of the idea of natural law presents itself in certain aspects like a legitimate development of the teaching of medieval Scholasticism in a more complex cultural context, marked particularly with a greater sensitivity to subjective morality. Following these developments, we may point to the work of the 16th century Spanish theologians who, in the manner of the Dominican Francesco de Vitoria, resorted to the natural law to battle the imperialist ideology of some Christian States of Europe and to defend the rights of the non-Christian peoples of the Americas. In fact, such rights are inherent in human nature, and do not depend on any concrete circumstances or upon the Christian faith. The idea of natural law, moreover, concurred with the Spanish theologians’ efforts in finding the basis, that is, a universal norm, which regulated the relationship between peoples and States


29. But, from another perspective, in the modern period the idea of the natural law assumed an orientation which contributed to making it difficult to accept today. In the last centuries of the middle ages, there developed in the Scholasticism a voluntaristic current, whose cultural hegemony changed deeply the idea of the natural law. Voluntarism aimed at valuing the transcendent nature of the free subject in relation to all other contingencies. Against naturalism, which tended to tie God to the laws of nature, voluntarism sought to highlight the unilateral and absolute freedom of God, at the risk compromising His wisdom and of rendering His decisions arbitrary. In addition, against rationalism, suspected of subduing the human person to the order of the world, it exalted an understanding of liberty of pure indifference, one of pure power to choose the opposite, and thus risked detaching the person from his natural inclinations and the objective good.(34)

30. The results of the voluntarism on the doctrine of the natural law were numerous. First of all, while in St. Thomas of Aquinas the law was understood as a work of reason and an expression of a wisdom, voluntarism resulted in binding the law to the will alone, and to a will detached from its intrinsic ordination to the good. Following that reasoning, all the force of the law was seen to reside solely in the will of the lawgiver. So the law was expropriated of its intrinsic intelligibility. Under such conditions, morality was reduced to obedience to the commandments which disclosed the will of the legislator. Thomas Hobbes would therefore declare: "It is authority, not truth, that makes law” (auctoritas, non veritas, facit legem).(35) Modern man, in love with autonomy, could not rise up against a such vision of law. Thus, on the pretext of protecting the absolute sovereignty of God over nature, voluntarism lost any inner intelligibility. The thesis of the potentia Dei absoluta [absolute power of God], according to which God could work independently from his wisdom and goodness, relativized all existing intelligible structures and weakened the natural knowledge man was able to comprehend. Nature ceased to be a criterion in which one could recognize the wise will of God: man could receive such knowledge only from revelation.

31. From another angle, several factors led to the secularization of the notion of the natural law. Among these, one may mention the increasing divorce between Faith and Reason that characterized the end of the medieval age, and also some aspects of the Reformation, (36) but above all the desire to overcome the violent religious conflicts that bloodied Europe at the dawn of the modern age. There was a desire to find a source for the political unity of the human community, putting between parentheses so to speak, religious confessions. Now the doctrine of the natural law prescinds from any particular religious revelation, and therefore from every confessional theology. It claims to base itself only on the light of reason common to all of men and, presents itself as the ultimate norm in the secular field.

32. Additionally, modern rationalism made the existence of an absolute and normative order of intelligible essences accessible to reason, and entirely relativized their reference to God as the ultimate foundation of the natural law. The necessary order of essences, eternal and immutable, were certainly actualized by God, but, it was believed, they already possessed such coherence and rationality. The reference to God ought to be therefore optional. The natural law may be imposed upon all men "even if God did not exist (etsi Deus not daretur).”(37)

33. The modern rationalist model of the natural law is characterized by: (1) the existential belief in an unchanging and ahistoric human nature, of which reason can select perfectly the definition and the essential properties; (2) the placing between parentheses the concrete situation of the human persons in salvation history, marked by sin, and by grace, whose influence on the knowledge and on the practice of the natural law is however decisive; (3) the ideal that it is possible for reason to deduct a priori the precepts of the natural law from the essential definition of the human being; (4) from the expansive extension given to the principles so deduced, the natural law appears as if it were a code of laws already known, which rules govern almost the entirety of behavior. This tendency of extending the field of the determinations of the natural law existed at the origin of the serious crisis when, particularly with the progress of the human sciences, Western thought became much more conscious of the historicity of human institutions and of the cultural relativity of numerous behaviors that at times were justified by referring to the evidences of the natural law. This difference between a maximalist theory of natural law and the complexity of the empirical data explains in part the disaffection with the idea of a natural law. Because the notion of natural law can serve to elaborate a universal ethic in a secularized an pluralistic society like ours, it is necessary therefore to avoid presenting it in the rigid shape that it assumed, particularly in modern rationalism.

(34) Cf. Benedict XVI, Lecture at Regensburg on the Occasion of the Meeting with the Respresentatives of Science. (12 September 2006), in AAS 98 (2006) 733: "In all honesty, one must observe that in the late Middle Ages we find trends in theology which would sunder this synthesis between the Greek spirit and the Christian spirit. In contrast with the so-called intellectualism of Augustine and Thomas, there arose with Duns Scotus a voluntarism which, in its later developments, led to the claim that we can only know God's voluntas ordinata. Beyond this is the realm of God's freedom, in virtue of which he could have done the opposite of everything he has actually done. This gives rise to positions which clearly approach . . . the image of a capricious God, who is not even bound to truth and goodness. God's transcendence and otherness are so exalted that our reason, our sense of the true and good, are no longer an authentic mirror of God, whose deepest possibilities remain eternally unattainable and hidden behind his actual decisions."

(35) Thomas Hobbes, Leviathan, Part II, c. 26 “In the constituted state, the interpretation of the laws of nature do not depend on doctors, on the scribes who address issues of moral philosophy, but on the civil authority. In fact the only possible doctrine that is true is, that authority, not truth, is what makes law.” [Editor's note: the statement auctoritas, non veritas, facit legem is found only in Chapter 26 of Hobbe’s Latin version of Leviathan, not in the English]

(36) The position of the Reformers with regard to the natural law is not monolithic. Those like Martin Luther and John Calvin, being based on St. Paul, recognized the existence of the natural law as an ethical rule, even if is radically incapable of justifying man. "Nothing, indeed is more common, than for man to be sufficiently instructed in a right course of conduct by natural law, of which the Apostle here speaks. . . . .The end of the natural law, therefore, is to render man inexcusable, and may be not improperly defined--the judgment of conscience distinguishing sufficiently between just and unjust, and by convicting men on their own testimony depriving them of all pretext for ignorance." (John Calvin, Institutes of the Christian Religion, Book II, c. 2, 22) (Henry Beveridge, trans.). In the three centuries following the Reformation, for the Protestants, the natural law served as the foundation of jurisprudence. Only with the secularization of the natural law in the 19th century, did Protestant theology keep a distance from it. From that time forward there arose an opposition between Protestant and Catholic opinions on the question of the natural law. But today, Protestant ethics seems to be displaying a new interest in the notion of natural law.

(37) This expression has its origin in Hugo Grotius, De iure belli et pacis, Prolegomena: "Haec quidem quae iam diximus locum aliquem haberent, etsi daremus, quod sine summo scelere dari nequit, non esse Deum."

Natural Law: Ecstasis and Telos

ETIAMSI DAREMUS . . . NON ESSE DEUM. These temerarious but still tenuously introduced words in the introduction (Prolegomena) of Hugo Grotius's treatise De iure belli ac pacis (1625) symbolize a historical phenomenon of which anyone who studies the Natural Law must be aware. In this treatise on international relations, Grotius (1583-1645), commonly called the "Father of International Law" (although the title could equally be claimed by the Spaniard and Catholic Vittoria), relied on the doctrine of the Natural Law. Though the Dutch Grotius was himself a Christian [of Protestant bent, he wrote an apologetic of Christianity in Dutch, Vewisjs van den waren Godsdienst (1622) which was translated into Latin as De veritate religionis Christianae (1627)], he argued that the Natural Law would bind us etiamsi daremus . . . non esse Deum, even if "we dare to say there is no God." It is true that the Natural Law binds all men, including the Atheist, and if understood in this manner, there is no controversy to what was said. But Grotius's etiamsi is indicative of something in the air a little more subtle, and a little more ominous. It is perhaps the first shoot, the first flowering of a Natural Law theory wholly unmoored from the notion of God, if such a theory is even tenable. It was the maturation of trend of turning away from God being the measure of all things to a Protagorean man is the measure of all things. In his classic The Natural Law: A Study in Legal and Social History (Indianapolis: Liberty Fund, 1988), the historian of Natural Law, Henrich Rommen, identifies Grotius as the "turning point." The "turn," however, started much earlier than Grotius.


In his excellent book Biblical Natural Law (Oxford: Oxford University Press, 2008), Matthew Levering, an Associate Professor of Theology at Ave Maria University, discusses this "turn" from a theocentric notion of Natural Law to an anthropocentric notion of Natural Law. According to Matthew Levering, two things are required for a wholesome (and also Biblical, i.e., consistent with Revelation) theory of Natural Law. The first he calls ecstasis. The second he calls teleology.

What do these words mean? Ecstasis is the transliteration of a Greek word ekstasis or ἔκστασις. It means to "extend outwards" to "stretch out." It is the word from which we derive the English word ecstasy. It is used here for the desire of union with the Divine. This ecstasis need not be religious in origin, though it most often is. For example, the neo-Platonic philosopher Plotinus, no Christian himself, in his Enneads speaks of his ecstasis, his virtual experience of union, with his philosophic notion of God which was based upon a natural theology. The term ecstasis was readily adopted by Christians to describe the union with the Trinity. Levering's point is that the Natural Law must recognize ecstasis, a desire for union with God, which means that our lives on earth are ordered to God.


The second requirement that Levering argues is required for an adequate theory of Natural Law is a teleology of nature. The word teleology is a technical word derived from a combination of two Greek words: telos (τέλος), which means "end", "purpose", or "goal," and logos (λόγος), a word which means "reason" or "word." For example, in the Gospel of Christ Christ is referred to as the Logos of God, the Word or Reason (logos) of God. John 1:1. In St. Paul's letter to the Romans, Christ is also referred to the end (telos) of the Law. Rom. 10:4. As applied to Nature, a teleological view would include the concept that God created nature, including the nature of man, and that He did so with a plan, a purpose, an end, a reason in view.

In short, requiring a theory of Natural Law to possess a notion of ecstasis and a notion of teleological nature means that God is both the origin and the end of things, including man. God is the alpha (A), He is the omega (Ω), the first and last letters of the Greek alphabet, and the first and last letters of the Natural Law. Put another way, the requirement that a theory of Natural Law include notions of ecstasis and notions of teleology in nature mean that a theory of Natural Law must presuppose Eternal Law.

The traditional or classical notion of Natural Law includes both notions of ecstasis and teleology in nature. This notion of Natural Law found its most mature expression among the Stoics, e.g., Cicero, and was advocated in modified form by the Church, e.g., in St. Augustine and St. Thomas Aquinas, as consonant with, and in fact revealed in, Scripture and Tradition. Many modern theories of the Natural Law shun notions of ecstasis. They turn not outward to God (ecstasis), but wholly inward (in what may be called an entasis) to man. Though a turning inward to man is not fatal to a theory of the Natural Law (in fact it would be part of our discovery of our nature), it is when this turning inward is exclusive or in opposition to the turning outward to God that it becomes a problematic to a theory of Natural Law.

The story of how the Natural Law came to be progressively emancipated from its theological roots is a long one, and there are many controversial points about it, for example who initiated the process, and whether the arguments made to justify such emancipation are valid or not. Regardless, Levering calls this disassociation from of the Natural Law from its original theological roots the "Anthropocentric Turn" or "Anthropocentric Shift." He wrests out eight individuals from history to make his point. And for the next series of reflection we will rely on his choices: Renè Descartes, Thomas Hobbes, John Locke, David Hume, Jean-Jacques Rousseau, Immanuel Kant, George W. F. Hegel, and Friederich Nietzsche. There are many others Levering could have chosen (e.g., Ockham, Scotus, Machiavelli, or Luther). Though these may (or may not) have been believers in various shades, the "natural law" of Messrs. Hobbes, Hume, Locke, Rousseau, Kant, and Hegel is not the Natural Law. These gentlemen's ideas are already on the way out of the Porch (Stoa) or the Church (Ekklesia) , and in some instances completely out of the Porch or the Church into the Wilderness.

To a greater or lesser degree, each of these men rejected the notion of ecstasis and teleology in nature. In some cases, there was no apparent rejection, but some of their presuppositions would lead to or implied such rejection. Each played a part in the Western world's turning from God as the measure of all things, including Law, to Man as the measure of all things, in particular Law. Some of their notions have prevailed and are assumed in modern culture, and we have to be aware of them in order to understand better the Natural Law, to reject these ideas, or to respond to them.