First of a new series, "Schall on Natural Law," in Veritas, Journal of Natural Law Studies Center, I (September/October, 1997), 7-8 (PO 2276, Vienna, VA., 22183-2276).

Schall on Natural Law James V. Schall, S. J.




The "natural law" of this column, as it unfolds, will, unlike the natural law itself, restrict its author to no single topic, reasonable or unreasonable, though hopefully each installment will touch on what is understood in the tradition to be a natural law consideration. Plato, I believe, thought it was a good thing to know much about evil, though he did not think that acquiring such knowledge should be garnered from doing evil. Most controverted natural law questions and issues will have something to do with knowing what is or is not evil, or better, what is or is not good.


The briefest definition of natural law is that of Maritain, to wit: "the normalcy of a thing's functioning." Thus, we would be surprised to hear a cat quack. We do not use a hammer for a toothpick. This analogy implies that man has a normalcy of functioning, even when he is functioning improperly. That is, any rational being caught doing something evil will not hesitate to give reasons why what he did was all right. And, be it noted, it will be "all right" under some aspect; he will have a "reason." Nothing is ever completely wrong under every and all circumstances. We cannot do evil without at the same time doing it within something good. This is pure Aristotle and St. Thomas.


On the Feast of John the Baptist, we find an account of his famous death at the unwilling hands of Herod Antipas. Though Scripture is not a formal text on natural law, it often contains incidents that illustrate what it is all about. In general, as unprincipled tyrants go, King Herod was not such a bad guy. Unfortunately, in a move he probably often regretted, he married his brother's wife, a move that John the Baptist did not approve of on the grounds of degrees of kindred. But John did not make Herod angry because of this criticism of marital legalities. Indeed, Herod was rather afraid of him and fascinated by him. But John's words did infuriate Herod's wife, Herodias.


When Herod's niece, Herodias's daughter by her earlier marriage, called Salome in the tradition, danced so sublimely before Herod -- in a scene made famous in opera -- Herod is quite delighted. He promises the girl up to half his kingdom. We figure he must have been a bit tipsy to have made this rash promise before his buddies. But he did promise, only to find that his wife, who may have staged the whole thing, wants him to get rid of John. He is shamed into the terrible beheading at supper time. The scene is, of course, graphic and memorable.


But what I want to point out here, with regard to what might be understood as natural law or natural reasoning, is Herod's dilemma. Evidently, had Salome in fact asked for half the kingdom, assuming it was his private property, she would have gotten it. Why? because of Herod's promise. What is the principle? To use the famous Latin phrase -- pacta sunt servanda. That is, treaties and promises solemnly made are to be kept. Herod, however, had given Salome a choice -- whatever she wants, even if half the kingdom. After all, the girl might have wanted a new horse or a trip to Rome. On consulting with her mother -- another implicit admonition of natural law -- Salome returns with her motherly inspired request for the head of John on a platter.


At this point, we are told that Herod was dismayed, an honorable reaction. But what is interesting in his view of his own natural obligations is that he thinks that it a worse alternative to break his solemn promise to Salome and the court than to dispatch John in jail. Most of us would think, of course, that he had it wrong about the greater and lesser evil. He should have broken his promise rather than get rid of John. Indeed, we would say that such a promise, if it included killing an innocent man, was not a true promise in the first place. This is Augustine's "an unjust law or promise is no law." All promises and compacts presuppose right order for them to be valid promises.


While we do not exactly have to admire old Herod for keeping his promise in spite of the embarrassment of it all, we do have to admit that he did recognize what he took to be a solemn obligation into which he voluntarily entered. In breaking one element of natural law, the killing of John, he kept another element, the principle that we should keep our promises -- though perhaps not rash ones.


What does King Herod as a natural law thinker teach us? That voluntary promises, solemnly pronounced, have a naturally binding force. This is the truth of his actions and the cause of his dilemma before his friends and Salome, even before Herodias who must have known this rather stalwart side of Herod. Looking at this case, we see that it does not contain any definite revelational principles. The issue is one that could happen in any court, any place. John was invoking a marital law (Leviticus) that Herod did not dispute. He did not suggest to John, for example, that there is nothing wrong with marrying one's brother's widow, if she was a widow. (It seems that Herodias had not been married to Philip, as St. Mark said but, to another brother. Philip, Herod's brother, seems to have been in fact married to Salome, his niece.)


The issue is about promises and oaths and whether they should be kept. We need not expect Herod to have straightened out the subtleties out, but we do think that he, or anyone doing the same, acted on the wrong principle in the case. He was rightly dismayed that he was required to kill John. Instead of assuming that this was a higher responsibility, he reasoned on the basis of his understanding of the obligation of promises. In natural law, he had two other alternatives: a) he could have reasoned on the higher principle that innocent men are not to be killed (he had no doubt of John's innocence) or b) that rash or unjust promises do not bind. Herod Antipas, as a natural law thinker, can at least provide us with some occasion to sort out the relevant principles of our acting.