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Natural Law 11
There are two other areas of concern. First, Natural Law reasoning rejoices in what it sees as an apologetic advantage (over divine-commnd theories) in its non-reference to God. Yet as Grotius observed, God is not necessary for Natural Law at all. Rather than leading the non-believer to God, it may lead him or her merely to an atheistic formulation of Natural Law such as that of Hart. Alternatively, a Christian version of Natural Law must rely on such Christian premises as would likely negate any so-called apologetic advantage. Vacek writes:
...natural-law ethics need not refer to God for either the content or the obliging force of our moral obligations.
A practical agnosticism can be the result.
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Natural Law 10
Fourth, the doctrine of Natural Law is at best “a very general moral outlook”. It has difficulty in showing how its basic principles may be translated into reliable and specific practical maxims. We may complain that the first precept is not self-evident but rather tautological. Once again, the sheer variety of outcomes in Natural Law thinking is evidence.
Fifth, does Natural Law give an adequate (in biblical terms) account of the distortion of human reason by sin? Barth fulminates:
...we cannot accept that merely relative and quantitative scope and significance of the fall, that doctrine of the nature of man which regards it as merely sick, dereanged and impotent, that talk of a remnant of the original divine image and likeness which remains in spite of the fall. This explains whu we have to object against Roman doctrine that...it misunderstands and distorts in the most dangerous way the seriousness of sin and therefore the seriousness of the human situation in relation to God.
On these grounds, Barth might allow a pre-lapsarian role for Natural Law; but the fall has so affected our human nature that even our reason is distorted. Brunner, in his earlier work, criticised Catholic ethical teaching as
not aware of this conception at all; for it is extremely unpalatable.
Of course, Thomas does account in part for the obfuscating power of sin. However, he views human nature as retaining its natural outline (pura naturalia); when not only our will, but our knowledge is corrupted by the effects of sin. Ultimately, Thomas’ anthroplogy is more in harmony with Aristotlean categories than scriptural principles.
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Natural Law 9
Third, does Aquinas adequately describe the nature of human beings as rational? This exposes two problems: anthropology has radically altered our understanding of the nature of human beings; and the notion of reason itself has undergone massive debate in the seven centuries since Aquinas. Thielicke writes:
...Natural Law in any given instance depends on the view of man which underlies it. But this view of man is something which is quite inconstant...hence there can never be such a thing as Natural Law which is of unchanging and universal validity.
Could human nature ever be known in the detail required to construct a Natural Law? Natural lawyers tend merely to insist that human nature is rational nature. The notion of reason itself, which is so crucial to Natural Law, has also been subject to much debate. Post-enlightenment rationality (and in particular practical reasoning) is of a different genus to that of Aquinas. While making this point, Crysdale almost ludicrously tries to adapt modern statistical reasoning to a Natural Law outlook.
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Natural Law 8
Second, the sheer diversity of moral principle and practice in the human experience mitigates heavily against the universalism of Natural Law. Thomas is aware of this difficulty, but his rejoinder, that the reason may be darkened by passion or racial proclivity, is inadequate in that it presupposes the successful attainment, sans grace, of the Natural Law in at least some human beings. The possibility that no human being has attained such knowledge is not considered.
The ascription of a telos to aspects of the natural order is almost arbitrary in the practice of Natural Law, as the controversies over the various Papal Encyclicals show. Various structures in the created order or society, such as procreation or the family, are assumed by their presence to be God-given and thus given a higher moral rating. Thus the objectivity and rationality that Natural Law claims for itself is compromised by the mutability of its detailed precepts. It becomes difficult to defend Natural Law as an objective and reasonable system when the precepts it allows seem so relative and subjective.
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Natural Law 7
There are five ways in which the question of knowledge is a problem for Natural Law. First, how does a human being actually know that “good should be done and evil avoided”? Can a more persuasive account be given for the operation of synderesis on the human heart? Lewis inquires:
...it is no good saying there are Natural Law precepts unless one can explain how “ordinary men” know them.
Is Aquinas an intuitionist? Daniel Maguire portrays Aquinas’ teaching as “affectivity” (or “gut-feeling”), a position rebutted successfully by Scott Davis. However, Thomist Natural Law is a form of intuitionism, in that it requires a moral proposition to be per se notum; and while Aquinas wants to appeal to reason as the ground of the doctrine, the primary precept must be understood pre-reason, that reason may build from it. This explanation is vague, to say the least.
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Natural Law 6
At first glance, the doctrine of Natural Law has a great deal to commend it to the moral theologian. The scriptures themselves offer ample testimony, it would seem, to the presence of some kind of inward and general moral knowledge by which humanity understands the divine imperative. Budziszewski offers some dubious examples, but there are several valid references. There is the witness of the created order to the character of its creator (Ps 19:1-6; 104; Rom 1:20); and the conscience whereby the law is “written on their hearts” (Rom 2:14-15). Wisdom literature seems to allow the application of reason in the understanding of morality. Further, the judgement of God is pronounced on pagan nations throughout the Old Testament (for example on the Canaanites for necromancy in Dt 18:9-14) when no explicit specially-revealed divine decree pertains to them.
Natural lawyers like Budziszewski (and Tony Abbott!) defend Natural Law on the grounds of its use as an apologetic contact point with the non-Christian world. Natural Law gives us reason to be optimistic about moral and political discussions, because even if the non-Christian denies knowledge of right and wrong in Christian terms, we can assume (according to Budziszewski) that he or she is deliberately suppressing the truth. Natural Law addresses the human ethical condition from the level, not of knowledge, but of will. Knowledge is assumed.
Ironically, it is this very area of knowledge in which the Thomist doctrine of Natural Law is most vulnerable. The epistemological question must head a critique of the doctrine. Helmut Thielicke writes:
In this whole matter...what is involved is not an ontic, but a noetic problem.
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Natural Law 5
Natural Law since Aquinas has followed several rivulets aside from the main stream. In the fourteenth century the nominalism of William of Ockham stressed the absolute power and freedom of God. Along with Duns Scotus, he deviated from the Thomistic doctrine by eliminating reason from the basis of Natural Law. In the sixteenth century, both Luther and Calvin held to versions of Natural Law, as did Hooker. Hugo Grotius, whose major work is On the Law of War and Peace (1625), provided for a secular version of Natural Law by observing that since this law was the law of our rational human nature, God was not an essential part of the doctrine, an autonomy affirmed by the Spanish Jesuit Suarez. Natural Law thinking has thus developed into a theory of universal human rights. The doctrine underwent a revival in Catholic teaching in the nineteenth century during the pontificate of Leo XIII as a counter to socialism and the rising tide of mistrust in divine revelation. The world, if it ignored the Word of God, might at least listen to reason. “Right reason” and Natural Law continue to be the basis of official Roman Catholic ethical teaching, from Paul VI’s Humanae Vitae down to John Paul II.
Aside from the institutional endorsement of Natural Law, there are several advocates of Natural Law theory on the contemporary scene which are best described as adjustments to the Thomist position. Two powerful Protestant proponents of Natural Law, to whose arguments we will return, are Oliver O’Donovan and Emil Brunner. Among the Roman Caholics, Finnis and Grisez offer a theories founded on “pre-moral pratical principles” identifying the various kinds of human good that are self-evidently worth pursuing. For Finnis these are life, knowledge, play, aesthtic experience, sociability, practical reasonableness, and ‘religion’. At a second level are “modes of responsibility”, which correspond to virtues. Moral rules (unsuprisingly for Finnis those of a peculiarly Roman Catholic sort) result from deductions at a tertiary level.
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Natural Law 4
For Aquinas it is a basic axiom that we should do what is good - which he locates in terms of the natural and essential inclinations of human beings. The application of his general conclusions, such as individul survival or social harmony, are then outlined in increasing complexity, so that in the end by a coherent logic he can build an impressive moral edifice.
...In questions of theory, truth is the same for everybody, both as to principles and to conclusions, but only in those principles which are called [by Boethius] ‘common conceptions. In questions of action, however, practical truth and goodwill are not not the same for everybody with respect to particular decisions, but only with respect to common principles; and even those who are equally in the right on some particular course of action are not equally aware of how right they are.
Further, Aquinas distinguishes between the determinations and conclusions of Natural Law. Restitution of a victim, for example, is a conclusion of Natural Law; whereas the content of the restitution is merely its determination. Lastly, it is worth noting that while Aquinas is certainly no utilitarian, neither is his ethics purely deontological, as has been often assumed. The precepts of the Natural Law aim at the goodness of the end over (even) the goodness of the act performed. Where Aquinas differs from utilitarian thought is that he does ascribe intrinsic value to human actions, in a manner subordinate to the ends. In addition, the good which is the end is not merely defined in terms of human pleasure. In this way, Aquinas can argue teleologically that adultery, homosexuality, drunkenness, gluttony, suicide, murder, lying and promise-breaking are unnatural and therefore contrary to Natural Law.
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Natural Law 3
The locus classicus of Thomas’ doctrine of Natural Law is the six articles of 1a2ae, 94. The Natural Law he describes as a habitus, because it is present in the human conscience or synderesis; it “stays always in man” (semper in homine manet). The question of how Natural Law is known by the human subject is a vexed one worthy of further discussion; suffice to say that the Natural Law is the underlying assumption behind human moral discourse. It may be termed a habit not because it is a quality whereby one acts, but because it is steadily held. There is but one precept of Natural Law which Aquinas reveals by analogy with the basis of human apprehension in the real. Like the first principles of natural science, the first principles of practical reason are per se notum - “self-evident”. Practical reason first apprehends the good; thus the first precept of Natural Law, upon which all others are based is:
that good is to be done, evil to be avoided.
All drives of human nature, then, insofar as they can be “governed by reason” (regulantur ratione) are covered by Natural Law. The secondary precepts of Natural Law, which cover a vast range of human activity, derive from this primary command. Thomas tackles next the vexing problem of the universality of Natural Law. In theory, Natural Law must be universally applicable; but even cursory observation can identify the sheer diversity of human desires and behaviour. Aquinas’ solution is to point to the proper priority of the human intellect: humans may be blocked from knowledge of the good by “passion or bad custom or even by racial proclivity”; but all human inclinations should be governed by the intellect. Natural Law in the primary precept is immutable; but may be added to in the secondary precepts in special circumstances - by divine command, for example. It is the first, common precepts that, according to Aquinas, even the effects of sin cannot cancel in the human heart. Sin has effect on the secondary precepts up to a point. Human nature remains essentially sound despite sin: the human desire for virtue is blocked rather than corrupted at the source.
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Natural Law 2
The Roman Stoic jurist Cicero gave Natural Law its classic pagan formulation. The Natural Law must needs be the law of right or sane reason. He wrote:
True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions.
Cicero held that Natural Law was really only discerned by the intelligent man. This is because he understood “nature” as related to reason in the human instance. Natural Law is not inscribed on nature per se, but is available to the human intellect.
This notion was baptised by Justin Martyr in the second century:
In the beginning He made the human race with the power of thought and of choosing the truth and doing right, so that all men are without excuse before God; for they have been born rational and contemplative.
However, the first systematic articulation of Christianised Natural Law theory was in the Summa Theologiae, that “great Gothic cathedral of human thought” (O'Connor) (and other works) of Thomas Aquinas in the thirteenth century. Aquinas’ doctrine of Natural Law is not held in isolation from the rest of his thought; nor even the rest of his ethics. Rather, as Jean Porter insists, his thinking is continually informed by his Christian convictions and concerns. As Leo Strauss has explained, Thomas’ doctrine of Natural Law differs from the classical theory in that whereas the classical ethicists begin with everyday notions of justice and ascend to the sublime truth by a dialectical process, Thomas begins with God and His Eternal Law. He distinguishes the lex aeterna from the lex naturalis. These are but two of five types of law that Aquinas recognises. The Eternal Law is defined as the providence of God which regulates the universe proceeding from the intellect and will of God. Natural Law is the aspect of Eternal Law which applies to human beings alone and is in accordance with human nature, thus:
...Natural Law is nothing other than the participation of eternal law in rational creatures.
As O’Connor explains:
...Natural Law may be regarded as eternal law in so far as it is intuitively and innately knowable.
Aquinas here provides a corrective to Ulpian’s version of the doctrine , which allowed Natural Law as belonging to all creatures. Thomistic Natural Law applies only to rational human beings.
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