From The American Journal of Jurisprudence, 38 (1993), 85-108. Originally given as a lecture to Thomas More Society at Dickinson Law School.
THE INTELLECTUAL CONTEXT OF NATURAL LAW
I think that legal and political philosophy are nothing else than natural law writ large.
-- A. P. d'Entreves, The Natural Law, 1951.1
This, gentlemen, is our birthright.... And in this matter we are in the most unyielding dilemma. For if there is no higher law, there is no basis for saying that any man-made law is unjust ...; and in such case, the ultimate reason for things, as Justice Holmes himself conceded, is force. If there is no natural law, there are no natural rights; and if there are no natural rights, the Bill of Rights is a delusion, and everything which a man possesses -- his life, his liberty and his property -- are held by sufferance of government, and in that case it is inevitable that government will some day find it expedient to take away what is held by a title such as that. And if there are no eternal truths, if everything changes, everything, then we may not complain when the standard of citizenship changes from freedom to servility and when democracy relapses into tyranny.
-- Harold R. McKinnon, The Higher Law, 1946.2
The subject of natural law, though one of the really fascinating subjects of our philosophic and legal tradition, is not widely considered today even in law schools or political science departments, let alone in philosophic or theological treatises, all of which actually have something to say about the subject. However, it is a perennial theme of remarkable vigor and interest to those perceptive thinkers who are brave enough to re-consider the topic.
"The first objection that the ordinary man in this country (England), at least, is inclined to make," the British historian Christopher Dawson wrote in 1946,
is that the idea of Natural Law is all very fine, but that it is an abstract ideal which does not cut much ice in the harsh world of political reality. The answer is that there has never been an idea which excited men more and produced more startling practical results than this (idea).3
Almost as if to confirm the Dawson observation, when natural law does attain some public visibility, as in the Thomas and Bork nominations to the Supreme Court, natural law appears to be a rather explosive topic. We begin to suspect that the reason it is not more widely considered is because it does have something very fundamental to say about the legitimacy of the civil order and the philosophic standing of legal studies.
In order to formulate some idea of what we are talking about when we speak of natural law, however, we can try to think of things that are "fitting," things that are "appropriate," that belong together. Some things just go together, like bacon and eggs; some do not, like caviar and chitlins or black pants and brown socks. This fittingness suggests that there is a certain correspondence in things, something that we just find to be there. There are some things that we just do not "do" for aesthetical if not for moral reasons.
Everything has its own "natural law," in a way, its own "normalcy of functioning," as Jacques Maritain once called it in an essay no student of the law should miss reading sometime.4 Thus, we expect dogs to act in dog ways. We do not expect them to quack like a duck or swim like a bass. We expect human beings to act in human ways, something that is confirmed by our judgment and criticism of one another when we do not. Even though we might, say, swat flies with the flat side of a wood saw, still the saw's "natural law," its normal functioning, its intrinsic purpose built into it, is to cut wood. This embodied purpose is what it is, what it does when it does that for which it is made.
Some friends of mine last year sent me a birthday card designed by Leigh Rubin. The scene on the card was stark. We see a very British couple still in pith helmets, their heads and shoulders sticking out of a huge pot. Under the black cauldron, in which the couple are squeezed, we see a blazing fire to boil the water for their stewing. This pot is surrounded on the ground by two parched thigh bones and a whitened skull, left overs no doubt from former British feasts. Beside the cauldron stands a small stand on which a table cloth and a bottle of wine are prepared. With the greatest of exasperation, as both are staring from the pot in utter disbelief at the bottle, the British gentleman exclaims to his wife: "Good heavens, Evelyn. These savages really are uncivilized. They're actually going to serve us with chablis."
Certain things, then, are simply not fitting, not to be approved, even among cannibals about to dine on the British colonial aristocracy. Not only is there some distinct, to say the least, impropriety about eating the British couple in the first place, even though it does seem to be a long-standing local custom of the savages, it is still more uncultured not to eat them in style. The British upper-class, at the very least, would seem to deserve a rich, red Bordeaux, a Chateau Neuf du Pape, or perhaps, a Saint-Emilion.
At the risk of belaboring this point about fitness and propriety as indicative that there is a certain expected order in things, even when it varies in application, let me recall the remarks of Peter Mayle, in his delightful book, A Year in Provençe. This English journalist was trying to learn the proper and expected habits of the locals in Provençe. He was especially perplexed by the intricacies of the French custom of kissing on the cheeks, how many times, both as to gender and to frequency. Initially, Mayle found out quickly that kissing a lady on only one cheek in greeting or departing, however fitting in England, was most inappropriate across the Channel.
"In my early days ... I would plant a single kiss," Mayle wrote frankly,
only to discover the other cheek was being proffered as I was drawing back. Only snobs kiss once, I was told, or those unfortunates who suffer from congenital froideur. I think I saw what I assumed to be the correct procedure -- the triple kiss, left-right-left, so I tried it on a Parisian friend. Wrong again. She told me that triple-kissing was a low Provençal habit, and that two kisses were enough among civilized people. The next time I saw my neighbor's wife, I kissed her twice, "Non," she said, "trois fois."5
Already here, in these delightful scenes, we have themes related to classic natural law such as the relation between custom and law as well as the relation between what is fitting and what barbarian, even between what is right and what is wrong. We already notice that there are ways to do things, that the same basic natural things are done in principle, even when done differently, even when some do them once, some twice, and some trois fois.
Several months ago, I had written someplace that one of the constant obligations and burdens of a professor in a political science department is to write myriads of recommendations to law school admission offices, even, I think, to Dickenson Law School here in Carlyle. In response to this comment, a friend of mine from California wrote:
Anent writing law school recommendations (mentioned in one of your columns), do you know there are more lawyers in California than in the whole of Japan? I can't understand how eager applicants aren't put off by the glut. Of course, there are new, tempting areas for legal intrusion; an attractive friend of my daughter's told me the other day that she would be practicing "environmental law." She announced it with zeal.
The Economist of London once remarked, with regard to gluts on free markets, even of lawyers, that a perceived shortage in any commodity would produce in five years a surplus, precisely a glut.
The last remark of my friend, her catching a kind of mystical fervor in the young woman's voice, that "zeal," moreover, confirms my already aroused suspicions that the ideological left, as Paul Johnson has confirmed, has been busy, at the level of theory, passing from socialism to environmentalism to pursue the substantially same theoretic goals.6 Nor did my friend, I suspect, very careful writer that she is, haphazardly use the word "intrusion" of the activity of such lawyers. The word that came instinctively to her mind on this topic of "zeal" and lawyer "glut," be it emphasized, was not something noble like "justice" but something ominous like "intrusion."
Even more importantly, I think, these remarks about societies with an abundance of zealous lawyers recall a famous comment of Plato in The Republic, in which he noted that a society filled with students of medicine and law is already a morally sick society (405a). With some professorial bemusement, I often remind the many applicants to law school of this counter-cultural Platonic utterance. The students almost invariably respond with the same "zeal" that the young environmental law student exhibited to my friend. By potential students, law is seen not as an "intrusion" but as an ennobling vocation, an ability to "do good," somehow. And since there is so much good to be done, in this logic, there is evidently no natural limit to the number of lawyers we might need. We might, however, recall with Plato that perhaps the first subject that might need to be addressed in this area is precisely that of the "good" to be done.
In the future, these young men and women, displaying perhaps too little of that healthy self-skepticism we in the religious tradition are accustomed to associate with original sin, will become, so they think, lawyers doing good untouched by corruption or ideological zealotry. They, at least, so they seem to believe about themselves, will not add to the bad name the legal profession has acquired through the politicizing and legalizing of so many modes of life, even family life. When Aristotle suggested that the young were incapable of properly studying political and legal matters, he had in mind this very lack of personal realization not merely of what others "do" do, but of what we ourselves will likely do to others, even with the best intentions, perhaps especially with the best intentions (1095a3-4). Just as there is no necessary correspondence between what we intend to do and what we do do, so there is no automatic correlation between intelligence and virtue. Indeed, to recall Plato again in his discussion of the philosopher and the tyrant, the most intelligent and the most corrupt must potentially be the same person.
On this very topic, it is well to consider what John Paul II wrote in his new social Encyclical Centesimus Annus, as it directly relates to our topic. Recalling specifically the classic teaching about "original sin" in the context of an overly legalized state, John Paul II, who himself uses the notion of natural law but little, wrote:
Not only is this doctrine (of original sin) an integral part of Christian revelation; it also has great hermeneutical value insofar as it helps one to understand human reality. The human person tends towards good, but is also capable of evil.... The social order will be all the more stable, the more it takes this fact into account and does not place in opposition personal interest and the interests of society as a whole, but rather seeks ways to bring them into fruitful harmony. In fact, where self-interest is violently suppressed, it is replaced by a burdensome system of bureaucratic control which dries up the wellsprings of initiative and creativity. When people think they possess the secret of a perfect social organization which makes evil impossible, they also think that they can use any means, including violence and deceit, in order to bring that organization into being. Politics then becomes a "secular religion" which operates under the illusion of creating paradise in this world (#25).
We can catch here some of the concern that we will see also in Solzhenitsyn about the over politicization and legalization of Western society.
In a paradoxical connection, then, the Holy Father, on the unusual grounds of original sin, actually defends private initiative against the dangers of a bureaucratic and legal claim that all evils can be eliminated. The only evils that can really be removed are those recognized and chosen by human freedom, a position that faces squarely the fact that often this very freedom will be abused so that many commonly recognized evils will in fact exist among us. In the reaches of political theory, as we will see further, the desire to remove evil is often associated with the desire to remove freedom. This latter desire in turn is associated with a form of theoretic truth that has its origin only in the human will.
The usual and cynical interpretation of the comparative paucity of lawyers in Japan, however, is that somehow the Japanese economic miracle has had something to do with the relative freedom in Japan from encumbering laws and threatening court actions that prevent experimentation, change, and productivity. The crisis of the American economy is thus said to be directly related to the multiplicity of lawyers in search of "doing good," of righting all wrongs. "Environmental law" and actions against "white collar crime" will end up, in the minds of not a few perceptive thinkers, by putting the economy in complete stagnation in the name of justice. The perfectly just society will be the society utterly incapable of doing much of anything at all because all action is circumscribed by legalized proscriptions. By becoming legally just, it will end up by becoming actually unjust. The response to this worry, from my students, however, is usually that because it lacks the same proportion of lawyers in California, Japan is somehow an unjust society, not to be envied.
To this justification of the lawyer's vocation, this pursuit of justice, that terrible and impersonal virtue, we must add the troublesome accusation of Solzhenitsyn in his famous Harvard Address of 1978, to an undergraduate audience no doubt replete with potential lawyers. I often have my students read this passage, a sobering, even withering passage in its implications. In its light, students are to assume their vocation with little illusion.
"Western society has chosen for itself the organization best suited to its purposes and one I might call legalistic," Solzenitsyn observed.
The limits of human rights and rightness are determined by a system of laws; such limits are very broad .... Every conflict is solved according to the letter of the law and this is considered to be the ultimate solution. If one is right from a legal point of view, nothing more is required, nobody may mention that one could still not be entirely right, and urge self-restraint or a renunciation of these rights, call for sacrifice and selfless risk; this would simply sound absurd .... A society with no other scale but the legal one is also less than worthy of man. A society based on the letter of the law and never reaching any higher fails to take advantage of the full range of human possibilities.7
Most young potential law students, I have observed, find these forceful words most disturbing to them as they recognize in them a direct challenge to much of what they have come to assume about the justification for what they are doing with their lives. Solzhenitsyn's words that one can be "legally right" but not "entirely right" ring dauntingly in their ears.
The very notion that one can be fully legal but not right, while a commonplace in classical ethical and political philosophy and natural law theory, is unsettling and seldom reflected on at a profound level. Likewise disturbing is the notion that some things, including especially the highest things, are not legal at all or are not subject to legality. This position would imply that the highest things are not reached in the polis by its laws, however useful at some level they might be. To attempt to politicize these higher things corrupts them and makes them "unworthy of man," to use Solzhenitsyn's blunt phrase.
Things like mercy and the sacrifice of one's rights are not subject to law without the risk of their being corrupted in their very essence. The State of Maryland recently required one year of "voluntary" service for high school graduation without apparently any scruple about the effect and ill-logic of "required voluntariness." Plato's notion in the Sixth Book of The Republic that the "good" subsumes justice for justice to be wholly itself lies at the theoretic heart of this problem as does the New Testament notion that greater love involves laying down one's life for one's friend, something that justice and law cannot command, but something without which no society is safe.8
Those who have the opportunity to study carefully St. Thomas and his famous "Treatise on Law" -- and no law student, I think, should fail to do this, however rarely it might formally be required of him -- will find that this danger of legalism, so chastised by Solzhenitsyn, to be given a theoretic basis in St. Thomas' emphasis on prudence, on the notion that law cannot cover everything. This affirmation that the law could only deal with certain grave crimes, not all disorders, did not mean, paradoxically, that where the positive law could not reach there was no duty, which is the fear of Solzhenitsyn about contemporary democratic society. Rather it meant that, taking law into consideration, the vital element of morality was based on our insightful judgment into each particular and actual case in so far as it did fall under one or other of the virtues. To ask the law to do more than it is capable of doing risks contempt on the part of the observers of the law and excessive use of force on the part of the enforcers of the law. This is a classic theme that harkens back to Aristotle and especially to Plato.
Our evening here together is under the auspices of that Great Lawyer, Chancellor, Philosopher, and, yes, Martyr, Sir Thomas More. I happen to have in my collection of sundry books a book of readings about Thomas More's Utopia, a book with direct, if enigmatic, relations to The Republic of Plato. In this collection is found a passage on More from C. S. Lewis' English Literature in the Sixteenth Century Excluding Drama. Lewis was considering the question of whether More's book is meant to be taken literally, to be put into practice as a political project, a proposition Socrates in The Republic also considered and rejected. Lewis, like Erasmus, thought that the Utopia was a comic book, a book of fun and satire, that the readers in the Sixteenth Century would understand this spirit about it. More himself in later life thought the book should be burned rather than "translated in an age prone to misconstruction."
Lewis, with his usual but often uncanny insight, speculated on just why it might be dangerous not to see the Utopia as a playful book as did More's readers in the Sixteenth Century. "It is, of course, possible that More's sixteenth-century readers, and More himself, were mistaken (about the playful nature of Utopia)," C. S. Lewis wrote.
But it is at least equally possible that the mistake lies with those modern readers who take the book au grand sérieux. There is a cause specially predisposing them to error in such a matter. They live in a revolutionary age, an age in which modern weapons and the modern revolutionary technique have made it only too easy to produce in the real world states recognizably like those we invent on paper: writing Utopias is now a serious matter.9
What is to be noted in this extraordinary passage is the notion that abstract and obscure literary utopias can now, because of modern technique and weapons, be put into political being. Thinkers without prudence, in other words, have become much more dangerous.
The present question is not whether or not such imagined utopias can be put into effect, we know they can be, but whether they ought to be. And this latter question requires the sort of reflection historically associated with natural law. We need a principle that subjects such utopias to a critique not grounded in the human mind as its sole cause or origin. If all thought is equally baseless, then we can really have nothing but arbitrary objections to given proposals to reform the world. The human mind is open to understanding how utopias are formed in the first place. That is a major purpose of the human mind. But unlike the modern utopias, the classical ones as philosophic discourse were founded on what is. They were not simply products of the human mind, itself in the service of the human will. Rather they revealed a right order to the human will so that its choices were not as such purely its own.
Lewis had even further important things to say about this background. More's "utopia" has often been considered to be a kind of liberal or socialist welfare state in which all goods were common and all needs were provided in a kind of fraternal spirit. But, Lewis warned, "there is nothing liberal in Utopia. From it, as from all other imaginary states, liberty is more successfully banished than the real world, even at its worst allows."10 The writers of utopias put into their books exactly and only what they want. "It is not the love of liberty that makes men write Utopias," Lewis added. What is it then? Is it an effort to foresee what the natural virtues would be like if left to themselves? Would they in fact even remain "natural"? Do they lead to something higher than themselves or does man by himself actually end up in opposition to the natural virtues?
Finally cautioning us on whether utopias of any sort are, without danger, capable of being morally put into actuality, Lewis added, in a rather prophetic passage: "It is doubtful whether More would have regarded euthanasia for incurables and the assassination of hostile princes as things contained in the Law of Nature."11 Need I add that "euthanasia for incurables," if not "assassination of hostile princes," is something we read about in the newspapers every morning? Are we, unlike More, to hold that such things are contained in the law of nature? Or do we perhaps think that if such things are prohibited, they are forbidden not by the law of nature, but only by a positive law of the civil society we live in, a society that has no further standard but itself and therefore one that can be changed at will?
Lewis' reasoning then is pertinent to the theme of the importance of natural law that I want to develop here, a theme already touched on by my friend who noted the peculiar "zeal" in a chance law student's voice, by Plato, by Solzhenitsyn, by St. Thomas, by John Paul II, and by Harold McKinnon. Initially, I want to suggest that there is something ominous about the lack of attention to the great tradition of natural law in Western Civilization. It means that certain things that ought to be questioned and carefully considered are not reflected upon because the intellectual tools for this reflection are either unlearned or unknown -- or all too often, unchosen. This lack of attention is intelligible, however, only within terms of a political and legal philosophy unwilling to go to the roots of human action and its relation to human institutions.
Yet, in recent years, we have, in obscure journals and conferences, one of the liveliest discussions of natural law in centuries because of considerable concern about the conditions of our political and legal system.12 What is the intellectual context of this natural law discussion? Here, I wish to indicate several lines of argument that are found in current literature on this topic. The natural law is, after all, a consideration of ancient and distinguished lineage. Not only was it found, though often haltingly, articulated in the Greek and Latin classics, but it is found discussed in one form or another in almost every language and period. Certainly there are marked references of it in our Founding Documents and debates.13
And when this natural law context is not so discussed, it means that a country or tradition has not yet been subject to or allowed itself to be subject the universal philosophy that limits all regimes by the sort of fundamental discussions that no human beings can, or more importantly, should avoid.14 What I wish to do here is to give enough natural law context to show that, for a serious student, there is a rational contemporary discussion of this controverted topic.15 At the same time, I do not pretend that everything that needs to be discussed is found in these reflections. The subject of natural law is historic, philosophic, of long and deep argument over the centuries about the meaning of man's essential existence in society and his own individual purpose. At times the topic of natural law is unnecessarily confused with the topic of the hypothetical laws of natural sciences. The scientific method, by virtue of what it is, its reduction to certain measurable criterion, does not touch the reality of the subject matter of the ethical and social sciences.16
In this regard, I am not quite in the position as the witness in the following account. It seems that a prosecuting counsel was having some trouble with a quite difficult witness. The man's evasive answers exasperated the counsel. Finally, he asked the witness if he was acquainted with any member of the jury. "Yes, Sir, more than half of them," the man in the witness box replied. "Are you willing to swear that you know more than half of them?" the counsel asked. "If it comes to that, I'm willing to swear that I know more than all of 'em put together," the witness defiantly responded. I will swear to no such complete knowledge of natural law here, but hopefully we can at least touch on "half" of the main problems that natural law traditions evoke.
The controversial elements of contemporary natural law discussion have to do with the following subjects: 1) What is the relation of classic natural right to natural law? 2) Is natural law necessary to limit actual states, including democracies? 3) Is natural law Kantian, that is, does it have a grounding in metaphysics or is it a logic independent of metaphysics, a postulate we need even if we cannot ground it in reality? 4) What is the relation between natural law, natural ethics, and revelation?
Let me begin this discussion, however, by simply recalling the most famous and most eloquent statement about natural law in our tradition, that of Cicero. This is a passage that I have students in classes simply stand up and slowly read aloud several times. For better than any other source, even St. Thomas, its intrinsic eloquence strikes a cord and recalls the force of the tradition. These are Cicero's moving words, ones cited again and again since his time, ones no student of the law should ever forget:
True law is Reason, right and natural, commanding people to fulfill their obligations and prohibiting and deterring them from doing wrong. Its validity is universal; it is immutable and eternal. Its commands and prohibitions apply effectively to good men, and those uninfluenced by them are bad. Any attempt to supersede this law, to repeal any part of it, is sinful; to cancel it entirely is impossible. Neither the Senate nor the Assembly can exempt us from its demands; we need no interpreter or expounder of it but ourselves. There will not be one law at Rome, one at Athens, or one now and one later, but all nations will be subject all the time to this one changeless and everlasting law (De Re Publica, III, 33).
Such powerful words from the great Cicero, himself a lawyer, recall for us that we are ultimately judged not by what our polity does, by what we propose in it, but by what is right in itself. Our own consciences are subject to a standard they know they did not create.
These words of Cicero also recall the famous charge of Socrates to the jury after his sentencing. He had been condemned to death at a trial of his peers in his city. There was nothing particularly irregular about this trial. And yet, as Socrates said to those jurors who voted to execute him, that the whole world would henceforth remember them as those who killed the philosopher. That is to say, and this is what the reading of Plato means, there is a standard of rightness that abides in all civil trials however they are decided in fact. It is in this sense that Plato is the primary natural law thinker in our tradition. He will ever be there to recount the trial both in its own light and in the light of what is. No evil, Socrates said, not even death, can hurt a good man. But the words of the philosopher abide. The trial of Socrates means, in some sense, that no unjust trial goes unpunished in the light of this law to which, as Cicero, himself a reader of Plato, wrote, all nations are subject.
The first line of consideration about natural law has been brought to our attention mainly by Leo Strauss, one of the great thinkers of our time. His famous essay on "Natural Law" is of fundamental importance to any contemporary thinking on this topic.17 Strauss was fully aware that the use of the term natural law was related to the notion of natural right. Arguing both in the case of Sophocles and of Aristotle, both of whom seemed at first sight to be natural law thinkers, Strauss maintained that no proper natural law concept existed in the classical tradition. Natural law was rather initially a Stoic idea but most properly it is a product of revelation. Strauss implied, contrary to the normal understanding of natural law thinkers, that to speak of natural law was to speak of revelation. To call natural law specifically a "law" there needed to be some proper origin of its promulgation, which seemed lacking in classical philosophy. Neither Aristotle's First Mover or Plato's Good, in Strauss' view, was conceived to be "personal." Consequently, the standards of rightness, while they could not exclude any possible source beyond philosophy, could not be shown to be properly a "law" but a only a "right."
Strauss's position, of course, harkens back to the controversies between the ancients and the moderns, in which controversy Strauss consciously and rightly took the side of the ancients. Modern natural right, that associated in particular with Hobbes and Locke, thus was not the same as classical natural right as found in Aristotle. The remark of A. P. d'Entreves is to the point:
The modern theory of natural law was not, properly speaking, a theory of law at all. It was a theory of rights. A momentous change has taken place under the cover of the same verbal expressions. The jus naturale of the modern political philosopher is no longer the lex naturalis of the medieval moralist nor the jus naturale of the Roman lawyer. These different conceptions have in common only the name.18
For the moderns, natural right or human right was not based in anything but the human will. It has properly speaking no origin in nature, except insofar as self-sufficiency or self-interest is the only "natural law," a view already found in the first book of Plato's Republic. Classical, as opposed to modern, natural right, on the other hand, did not have its origin in the human will. The human will did not make or cause this law to come into being.
Strauss disputed St. Thomas' understanding of Aristotle because he (Strauss) understood Aristotle to allow for some possible exception to natural right in concrete, extreme circumstances. Strauss wrote:
Aristotle ... seems to imply that such things as helping fellow citizens in misfortune into which they have fallen in consequence of performing a civic duty, and worshiping the gods by sacrifices belong to natural right. If this interpretation is correct, natural right is that right which much be recognized by any political society if it is to last and which for this reason is everywhere in force. Natural right thus understood delineates the minimum conditions of political life, so much so that sound positive right occupies a higher rank than natural right.19
That there is a necessity for a polity to establish a system of positive law by the very meaning of its existence was something recognized in the Thomist tradition under the notion of Jus gentium, of the law of nations. To be virtuous required that there be some system of legal order, but this did not imply that uncritical observance of the law itself was the sole content of right acting.20
At first sight, Strauss seems to argue that natural right allows for what later came to be a Machiavellian position, something Strauss himself explicitly rejected, namely, that once could positively do evil in some circumstances.21 "Natural right understood in terms of commutative and distributive justice is not identical with natural right as delineating the minimum conditions of political life," Strauss wrote;
the bad regimes habitually counteract the principles of distributive justice and last nevertheless. Aristotle is no longer under a compulsion to demand the dilution of natural right. He teaches that all natural right is changeable; he does not make the distinction made by Thomas Aquinas between the unchangeable principles and the changeable conclusions. This would seem to mean that sometimes (in extreme or emergency situations) it is just to deviate even from the most general principles of natural right.22
If one examines both Strauss and St. Thomas closely, I think, they are not as far apart as Strauss would seem to indicate.23 St. Thomas's distinction and Strauss's conclusion are, however, compatible once we agree that the extreme cases are really cases under a principle. The fact that bad regimes last does not mean they are not bad regimes. The fact of a wide variability of application of principle in ethical or political life is seen to be normal but that even the most extreme application must still fall under the principle. Strauss did not teach evil, as he held Machiavelli to do.
But what seems important in this discussion of rights and natural law, as Mary Ann Glendon has argued in another recent book of considerable perception, is that "rights talk," as she calls it, has now come to undermine the higher sources of human living together. The individualist theoretical basis of modern natural rights has ended up leaving only the positive law and the struggle over rights as the core of public life.24 It is not merely a question of finding a place for benevolence and kindness but also of questioning the very basis on which modern rights theory was based. This questioning, in fact, was what Leo Strauss set out to do.
The second line of consideration about natural law concerns the problem, indicated in Cicero, about whether the positive law of states is subject to anything beyond itself. The most forceful modern cause of a reconsideration of natural law was the Nuremburg Trials, the question of whether the actions of the Nazi leaders, which were mostly legitimate according to the positive law of their state, could be condemned because of some higher law. This question is not merely one of international law, treaties, or customs, but, even in lieu of these formal arrangements, whether there was some basis, some promulgation of law, that would enable us to condemn certain actions no matter what the civil law might propose to the contrary.
In the light of many recent instances of governments causing civil war or famine, even to their own citizens, we can see considerable effort to define and establish a right to intervention into the internal affairs of such states.25 The perceptive columnist Georgie Anne Geyer thus wrote:
In 1987 the United Nations became increasingly disgusted with governments such as Ethiopia's and the Sudan's using food and medicine as weapons of civil war. Thus began this trend to establish a "right of humanitarian intervention" in and under international law. This right remains still too nebulous, but one can see its formative influence in different places.... In a world of widespread collapse of states and institutions, there will be more and more Bosnias and Somalias. The only thing these new-style gunmen, militiamen, and thugs will understand is international force -- and that must be based upon international principles. The old idea that any group that seizes power and has a spurious sovereignty must be respected by the world is no longer appropriate to a world not of governments but of individual gunmen and shifting alliances.26
The "international" principles Georgie Anne Geyer speaks of cannot be merely positive law. For a country's positive law is precisely the problem. These principles must rather be based on clear insight into some abiding principles and norms about what is involved in being a human being and the responsibility we bear to humanity even in differing polities. Strauss's remark that bad regimes can survive does not mean that they ought to survive.
What is at stake here, of course, is not merely the integrity of civil societies in their diversity, but a judgment on this diversity, whether it too is limited because all civil states are designed even within their own confines a basic purpose that they cannot themselves overturn. No doubt the greatest danger in modern times is the world state devoted to evil with the power to impose its will on all lesser entitles. On the other hand, we witness civil societies lapsing into barbarism and defending their right to do so with principles of political sovereignty, principles that are products of modern natural right theory. The theoretic issue was already addressed by St. Thomas, following St. Augustine, in their position that an unjust law was not a law.
A further and related aspect to this question, which is especially obvious with the break-up of the Soviet Union, has to do with the rights of new states to be formed from older empires or large or small states. Many modern states are in fact historically groups of peoples put together for political purposes after a war or turmoil. The states of Eastern Europe and Africa too are obvious examples. If man is by nature a social and political animal, the question of what is a state suddenly becomes more directly asked. An Aristotelian argument can be made that all states should be more independent and autonomous, even smaller, without denying some kind of international market and political relationship.27 Obviously these sorts of questions cannot be merely questions of civil and international law but of natural law and classic natural right.
The third issue of central importance about the natural law is whether its existence is a kantian postulate, with no grounding in reality, but with some urgency in practice, or whether it has metaphysical origins? The immediate context for this question relates to two of the most remarkable books on natural law to be published in recent years -- John Finnis' Natural Law and Natural Right and Hadley Arkes, First Things: An Inquiry into the First Principles of Morals and Justice.28 What is at stake in these books, at first sight, will seem rather insignificant or obscure. Yet, as Aristotle already warned us, that small errors in the beginning can lead to large errors in the end. Or to put it another way, the major intellectual struggles are often ones that take place in out of the way places or in obscure journals but which when seen for what they were contain the real central issues of a philosophic or political system.
In the case of the Finnis book, a seminal book in the reappreciation of natural law thinking, there is no acknowledged Kantian problem. The problem arises because of the analysis of his position in two equally perceptive books, Henry Veatch's Human Rights: Fact or Fancy? and Russell Hittinger's A Critique of the New Natural Law Theory.29 Henry Veatch thought that in the system of Germain Grisez and John Finnis the ends we are obliged to pursue as human beings would be pretty much the same as in Aristotle and Aquinas. But the methods and evidence would be quite radically different from "the natural law tradition." Here is how Veatch saw the exact issue:
They (Grisez and Finnis) would deny that as human moral agents our knowledge of our true ends can ever be based on nature. Rather, such ends need to be held to be self-evident to us or perhaps known to us simply by intuition. But does this not sound like Kant and modern deontologists all over again? ... I suspect that the Grisez-Finnis tactic in the matter of moral evidence will not do.... After all, a purportedly natural-law ethic, from which all appeals to nature have been excluded, is in danger of coming out looking and smelling like a very curious sort of Unding. It is neither fish nor fowl.30
The issue about basing natural law on nature or on a postulate or intuition not consciously grounded on anything but the mind becomes of great significance when we want to know how the natural law is actually directed to our minds. If it is because we are existentially caused beings as such, then not only are we open to a natural law outside of our own making, but we are open to whatever in some sense caused us to be in the first place.
The crux of the problem has to do with the relation of the first principles of practical reasoning to metaphysics. That is to say, to what degree is practical reasoning from its own first principle of "do good and avoid evil" itself dependent on an order of being that is not simply arbitrary but one with its own intrinsic order given in nature, in human nature? It is the position of Veatch and Hittinger that the Finnis position does not seem to have any solid grounding other than in a Kantian type postulate that would not by itself argue to any knowledge of a true natural law based in reality.
This concern for an adequate basis for natural law is likewise what is behind the following remarks of Russell Hittinger:
If it is true that the common morality, or what is left of it, is being choked from the quadrant of "alien theories," then we need to address the theories -- in particular, the belief that a coherent philosophy of nature cannot constructively be brought to bear upon ethical reasoning.... If there are no "natures," and no proper telic completions to humanity and the goods sought, then I see not compelling reason to opt for Aristotelian rather than Nietzsche."31
Hittenger's point is, of course, that there should be such a "compelling reason" in what is.
The argument about a proper natural philosophy in the context of moral logic is precisely whether the order of the good and of particular goods as discovered in reason has any validity beyond itself and its proper formulation. The finality question -- "a proper telic completion to humanity" in Hittinger's words -- wants to know whether the being who thinks consistently himself has an end in nature other than just the thinking rightly. This question, no doubt, portends the relation of religion to natural law. It also, in Hittinger's reference to Alasdair MacIntyre's famous choice between Aristotle and Nietzsche, seeks a criterion of whether opposing systems of morals themselves are subject to a criterion of reality?32 Or are opposing systems or formulations of right order subject to the principle of contradiction, a principle grounded not merely in the mind but in reality? Only if this latter principle also holds for our moral and political systems can we avoid the dangers of the "utopias" that C. S. Lewis worried about.
Hadley Arkes' brilliantly argued book, on the other hand, is professedly Kantian while at the same time it is professedly Aristotelian. One is tempted to suggest that such a position makes him practically a Thomist, but I will leave aside that argument here. Arkes' "inquiry" into the first principles of morals and justice is a systematic testing of proposed ethical and political positions from abortion to war to welfare to cultural relativism on the basis of their consistency with a logic of freedom, consent, and universality. Arkes effectively shows what positions and policies can and cannot be held in a consistent logic.
"What we recognize, though, in the first place," Arkes wrote in a passage that specifically assumes a grounding of the logic of morals in reality,
is that moral propositions are in fact distinguished quite sharply from statements of subjective, personal feelings or private, religious belief. Moral statements purport to speak about the things that are universally good or bad, right or wrong, just or unjust -- which is to say, good or bad, right or wrong, for others as well as for oneself. The differences we recognize in the conventions of our ordinary language reflect an awareness of a real difference between speaking in a manner that is wholly personal and speaking, in a universal voice, about rights and wrongs that do not depend for their validity on personal feelings.33
Arkes has none of the provisoriness of Kant's ontological position. That is to say, that the logic he develops holds for the reality of the being making the argument, holds for his actions. The logic of morals is not merely a postulate of an autonomous practical reasoning but seems to be grounded in a discovered reality.
What is at issue, of course, is the ultimate problem with modern natural rights, namely, are they merely projections of a willed logic that gains a chosen end for no reason other than itself? Or are logically established rights in fact ultimately statements of a willed law that does not find its origin in the human condition itself? To be sure, what it is to be a human being can reflectively be known by humans who know they did not make themselves to be human. This is the proper sense we can speaking of "willing" our own being or law.
St. Thomas remarked that "Non enim Deus a nobis offenditur nisi ex eo quod contra nostrum bonum agimus (Contra Gentiles, III, 122). That is, "we do not offend God except insofar as we act against our own good." This position means that the good of reason, the human good, is itself something discovered and willed by man not apart from man's origin but because of it. His proper good is itself part of the order or law of things. The logic that is founded in the operative human intellect is thus itself rooted in the being of man in the first place, in the what is that is the proper object of his thinking, a reality that includes himself.
The final question about natural law concerns the question of its relation to revelation and to ethics.34 In a famous passage that serves in some fundamental sense as the foundation of modern political philosophy, Machiavelli, obviously referring to Plato, Aristotle, and Christianity, argued that we must deal not with these classic descriptions of how men ought to live but with the practical question of how they do live. When we make this latter principle our rule, it becomes possible to ask legitimately whether the use of means, called in the classic tradition evil, might not be useful and therefore right. The classical religious and philosophic traditions of happiness seemed to Machiavelli to be so exalted that no one could embrace them. So, Machiavelli thought, we should lower our sights to what most people could be expected to do.
As this idea worked its way out, particularly in Hobbes and Locke, we might find that the best we could do was to provide a kind of abundance and peace by prohibiting the discussion of right and good. If this lowered expectation is what we meant by happiness, then everyone could expect to be happy. This proposal was what came to be known as "the modern project."35 But its success would make no difference with respect to what anyone believed or held. There is a break between what our understanding of truth is and what we do. The nature of society, of the modern project, is to support whatever we do without criticizing what we do except in terms of the lowered sights that exclude a principled discussion of rightness, of natural law.
In the tradition of St. Thomas, what man could know of how he ought to act in every difficult circumstance was at best problematic. Or perhaps, it could be better described with St. Paul that we would do the correct thing but we do not. St. Thomas argued that one of the reasons for the necessity of revelation, in addition to natural reason, was precisely because of the insufficiency of natural law or reason to provide for men as they are the possibility of achieving their natural and supernatural purposes.36 This incompleteness of natural law did not mean that what we could know of it was wrong or even that natural law was defective in itself. Rather it meant that there were certain incomplete things that we needed to know more clearly if we were to achieve our highest ends.
Thus, as human beings, we are only able to legislate about external acts. It is sufficient that we simply observe decent laws. But all disorder in our lives and polities ultimately comes from a disorder in our thoughts and desires, in our souls, as Plato said. St. Thomas thought it was the divine law, revelation, that alone could address itself to our inner personal order from which external order proceeded. Thus, if we are internally ordered, our civil society will be well-ordered. Soulcraft and statecraft, at the most fundamental level, correspond. But it is quite possible for a civil order to be legally relatively decent but in jeopardy because of the moral and philosophic beliefs and disorders of its citizens.
St. Thomas held that there were four reasons why it might be necessary to have in addition to natural law a divine law. These four reasons were the need to order our thoughts and desires as well as our external acts, the need to be more sure what things were to be done and not to be done, the need to punish and reward things that are not in fact punished or rewarded in this life, and finally the need to know something more clearly about God than natural reason can provide. The reason these points are still necessary to emphasize is that they serve to limit the notion that the state or some other object can substitute for God.37
The importance of natural law comes as something of a surprise until we begin to consider the sort of questions to which it addresses itself. In 1978, the Right Honourable Lord Hailsham of St. Marylebone gave an address entitled, "Moral Reflections on the Natural Law." Lord Hailsham observed:
May it not be that one reason at least for the decline in morality ... is the reluctance of modern society to accept not merely the objective validity of value judgments ... but the sense of personal responsibility which can only remain so long as men and women believe in the existence of free will -- a doctrine inherent in most religious creeds, but implicitly questioned or denied by a great deal of the teaching in universities about psychology and sociology?38
The natural law is not conceived in opposition to freedom but as intrinsic to its meaning. The very drama of human existence is that it can choose or reject its law, its right acting. Without this freedom, there would be no meaning to a law of precisely a human and rational nature. On the other hand, a freedom with no relation to law, to a fitting order, would be merely a chaos.
Let me conclude by referring back to a brilliant young man, perhaps in his early thirties, who once in Milan taught rhetoric to young law students. He pondered his life and theirs to conclude that his teaching had no higher purpose. He went off to refashion his life, to write and preach some of the most profound things ever written by any man. I cite this passage to young law students, not so much to encourage them to look carefully at the profession they have chosen, but to remind them that considerations of the higher things, of natural law, of the way truth is addressed to each of us in our souls, do not cease to be fundamental to the very dignity of the law, to the "higher law," as Harold McKinnon called it in San Francisco.
"And it seemed good to me, as before Thee, not tumultuously to snatch away, but gently to withdraw my tongue from the talkers' trade," the young Augustine brashly wrote in his Confessions; "that the young, who thought not on Thy law, nor on Thy peace, but on mendacious follies and forensic strifes, might no longer purchase at my mouth equipments for their vehemence."39 That the young Augustine was not enamored by law and the lawyers, by those of the "talkers' trade," as he called it, need not, perhaps, detain us. Yet, Augustine was too philosophic a witness to let pass our consideration of what he felt and said. Augustine understood that those who studied law could seek not the peace and truth in God's order but to profit by "mendacious follies and forensic strifes."
The importance of natural law, in the end, is to remind the positive law and those who practice it, either as legislators, executives, or lawyers, that there is a standard of rightness, of purpose that, as Socrates implied at his trial, is present in every trial and in every litigation. Only when this is understood can a people be safe from the legalization and politicization, from the tyranny of a groundless law that threatens the deepest of human purposes for which they are created and "created equal," as our Declaration of Independence says. "We hold these truths to be self-evident...." In the end, the importance of natural law is to account for what this means, for why certain truths must be precisely, self-evident, and not merely made or formulated by a mind and a will, even by a legislative will, that is freed from any further grounding but in itself and its own assertions.
2Harold R. McKinnon, The Higher Law, An Address Delivered Before the Conference of Federal Judges of the Ninth Circuit, at San Francisco, September 3, 1946 (Berkeley, CA.: The Gillick Press, 1946), p. 16.
4Jacques Maritain, "Natural Law," Man and the State (Chicago: University of Chicago Press, 1956), p. 87. See also Maritain's The Rights of Man and the Natural Law (San Francisco: Ignatius Press, 1986).
The following brief bibliography of earlier books on natural law thinking is worth recalling: 1) Heinrich Rommen, The Natural Law (St. Louis: B. Herder, 1946); 2) Natural Law and Society, Edited by John Cogley (Cleveland: World, 1956); 3) A. P. d'Entreves, Natural Law: An Historical Survey (New York: Harper Torchbooks, 1965); 4) Yves Simon, The Tradition of Natural Law: A Philosopher's Reflections, Edited by Vukan Kuic (New York: Fordham, 1965); Paul Sigmund, Natural Law in Political Thought (Cambridge, MA.: Winthrop, 1971); The Natural Law Reader, Edited by Brendan F. Brown (Dockett Series, #13; New York: Oceana, 1960); Michael Bertram Crowe, The Changing Profile of the Natural Law (The Hague: Martinus Nijhoff, 1977); Peter Stanlis, Edmund Burke and the Natural Law (Shreveport, LA.: Huntington House, 1986); Iltud Evans, O. P., Light on the Natural Law (Baltimore: Helicon, 1965). See too the Marxist philosopher Ernst Bloch, Natural Law and Human Dignity, Translated by Dennis J. Schmidt (Cambridge, MA.: MIT Press, 1986).
8See James V. Schall, "On the Disappearance of Mercy from Political Theory," The Politics of Heaven and Hell: Christian Themes from Classical, Medieval, and Modern Political Philosophy (Lanham, MD.: University Press of America, 1984), pp. 253-78.
9C. S. Lewis, "A Play of Wit," from English Literature in the Sixteenth Century Excluding Drama, Vol. III of The Oxford History of English Literature (Oxford: The Clarendon Press, 1954), 167-71, in Utopia: A Collection of Critical Essays, Edited by William Nelson (New York: A Spectrum Book, 1968), p. 66.
12Let me list here a basic, brief bibliography of studies on natural law: 1) Jacques Maritain, The Rights of Man and the Natural Law (San Francisco: Ignatius Press, 1986); 2) Heinrich A. Rommen, The Natural Law (St. Louis: B. Herder, 1946); 3) Yves Simon, The Tradition of Natural Law: A Philosopher's Reflections, Edited by Vukan Kuic (New York: Fordham University Press, 1965); 4) A. P. d'Entreves, The Natural Law: An Historical Survey (New York: Harper Torchbooks, 1965); 5) John Finnis, Natural Law and Natural Right (New York: Oxford, 1980); 6) Henry B. Veatch, Human Rights: Fact or Fancy? (Baton Rouge: Louisiana State University Press, 1985); 7) Paul E. Sigmund, Natural Law in Political Thought (Cambridge, MA.: Winthrop, 1971); 8) Russell Hittinger, A Critique of the New Natural Law Theory (Notre Dame: University of Notre Dame Press, 1987); 9) Michael Bertram Crowe, The Changing Profile of the Natural Law (The Hague: Martinus Nijhoff, 1977); 10) Peter J. Stanlis, Edmund Burke and the Natural Law (Shreveport, LA.: Huntington House, 1986); 11) Javier Hervada, Natural Right and Natural Law: A Critical Introduction (Pamplona: University of Navarra, 1987); E. B. F. Midgley, The Natural Law Tradition and the Theory of International Relations (London: Paul Elek, 1975).
13See Ellis Sandoz, A Government of Laws: Political Theory, Religion, and the American Founding (Baton Rouge: Louisiana State University Press, 1990); Hadley Arkes, Beyond the Constitution (Princeton: Princeton University Press, 1990).
14See James V. Schall, "Truth and the Open Society," Order, Freedom, and the Polity: Critical Essays on the Open Society, Edited by George W. Carey (Lanham, MD.: University Press of America, 1986), pp. 71-90; Charles E. Rice, "Some Reasons for a Restoration of Natural Law Jurisprudence," Social Justice Review, 81 (July/August, 1990), 125-41; Jay J. Aragones, "Beyond Bork and Brennan: Should Catholic Law Schools Teach Natural Law?" Crisis, 8 (November, 1990), 14-19..
15Two journals are particularly concerned with this topic: Vera Lex (Natural Law Society: An International Review), Pace University, Pleasantville, N. Y., 10570); The American Journal of Jurisprudence (formerly the Natural Law Review), University of Notre Dame, 46556.
See also "A Symposium on Natural Right and Natural Law," Modern Age, 28 (Spring/Summer, 1984), 220-46; Glenn N. Schram, "A Protestant Consideration of Natural Law," New Oxford Review, LVIII (November, 1991), 20-24; Carl Braaten, "Protestants and Natural Law," First Things, (#19, January, 1992), 20-26; James V. Schall, "On the Christian Statement of the Natural Law," Christianity and Politics (Boston: St. Paul Editions, 1981), pp. 213-43; "Natural Law and the Law of Nations: Some Theoretical Considerations," Fordham International Law Journal, 15 (#4, 1991-92), 997-1030); "'On Being Dissatisfied with Compromises': Natural Law and Human Rights," Loyola Law Review, (New Orleans), XXXVIII (Summer, 1992), 289-309.
24Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1991). See review of this book, James V. Schall, "The 'Wrongs' of Rights," Freedom Review, 23 (August, 1992), 50-52; also "Human Rights as an Ideological Project," The American Journal of Jurisprudence, 32 (1987), 47-62.
28John Finnis, Natural Law and Natural Right (New York: Oxford, 1980); Hadley Arkes, First Things: An Inquiry into the First Principles of Morals and Justice (Princeton: Princeton University Press, 1986. See also Natural Law, Edited by John Finnis, in The International Library of Essays in Law and Legal Theory (New York: New York University Press, 1992), Vols. I & II, and Germain Grisez, "A Critique of Russell Hittinger's Book, A Critique of the New Natural Law Theory," The New Scholasticism, LXII (Autumn, 1988), 438-65.
29Henry B. Veatch, Human Rights: Fact or Fancy? (Baton Rouge: Louisiana State University Press, 1985); Russell Hittinger, A Critique of the New Natural Law Theory (Notre Dame: University of Notre Dame Press, 1987).
Pertinent essays to this debate: Germain Grisez, Joseph Boyle and John Finnis, "Practical Principles, Moral Truth, and Ultimate Ends," The American Journal of Jurisprudence, 32 (1987), 99-152; Henry Veatch and Joseph Rautenberg, "Does the Grisez-Finnis-Boyle Moral Philosophy Rest on a Mistake?" The Review of Metaphysics, 44 (June, 1991), 807-30); Ernest L. Fortin, "Natural Law and New Rights," The Review of Politics, 44 (October, 1982), 590-612; Robert P. George, "Recent Criticisms of Natural Law Theory," The University of Chicago Law Review, 55 (1988), 1371-1429.
38Lord Hailsham of St. Marylebone, "Modern Reflections on the Natural Law," A Commemorative Lecture to the Canon Law Society of Great Britain and Ireland, Delivered at Grays Inns, London, October 19, 1978, p. 9. See also Yves Simon, The Freedom of Choice (New York: Fordham, 1987).