For my first video on Natural Law, click here
For my video on Natural Law (Part 2), click here
The core of Natural Law theory is that through rational reflection, human beings can discern principles of right action that direct them to order their wills toward integral human fulfillment, as well as the well-being of all, individually and in communities.1 A simpler way of putting this is to say all humans can know right from wrong in ideal circumstances, using their minds.
Natural Law looks to the good of the individual and the community. If there is one thing that distinguishes the modernist way of thinking from the Natural Law one, it is the disappearance from relevance among the moderns of consideration of the “common good”. No one talks (or is permitted to talk) about the good of having babies for society as a whole, or the value of elders to the next generation, of having men and women using their fixed biological gifts for the good of the community; rather we talk about the rights of women, the right to abortion, the right to choose euthanasia and the right to one’s gender identity — as self sufficient goods. Wokism2, allied to mass corporatism and technocracy, is peculiar in only having a conception of individual flourishing, with what passes for the “common good” being defined as the good that nurtures and provides safe spaces for individual flourishing — the latter defined hedonistically as what the individual desires — with a primary common purpose being the crushing or cancelling of pockets of individual or collective resistance.
As discussed in Part 1, universalism is a characteristic of both Stoic and Christian thinking. But in both cases, the mass movement and concentration in cities of diverse peoples and cultures on the scale characteristic of modern Western societies was unforeseeable, indeed physically impossible until modern times. The Stoics during the Roman Empire may have imagined a common human nature, to which Natural Law applied, but can be forgiven for assuming a Roman world with people who already did or had come to dress and live and think and have philosophies very much like their own. And, of course, Cicero would have assumed a world run by Romans. Pluralism and multiculturalism I would argue fuel and foster the decline of faith in Natural Law theory while spurring the rise of positivistic/power legal theories: law is what the state tells you it is, assuming proper protocols and procedures are followed. I will address below the limits of this “universalism” in Natural Law theory given our experience in the last 75 tears with pluralism and multiculturalism.
As fate would have it, the Roman Empire in the West did not last long enough to see Rome rule the world, or even close to that. With the collapse of the Western Empire, it became Christianity’s turn to rule. And it was within Christendom that Natural Law theory came to its full fruition (or nearly so), under the tutelage of Saint Thomas Aquinas. Aquinas is generally regarded as the West’s pre-eminent theorist of the Natural Law, a status, arguably, he still holds or should hold to this day.3 As with Aristotle, Aquinas is a thinker whose genius and rigor of analysis has produced work that remains compelling to this day. Among those resisting modernism and its twisted Freudian offspring, most continue to find it necessary to build on the work of Aristotle or Aquinas or both. Thinkers of this stripe include Paul Gottfried and Alasdair MacIntyre.4
Aquinas was born in present day Lazio, Italy in 1225, then in the Kingdom of Sicily. He studied at university in Naples where he was introduced to the works of Aristotle and set out to assimilate the Greek philosopher’s thinking into the fabric of Christian theology. We can call this process Scholasticism.5 Thanks to Aquinas’ synthesis of classical Greek conceptions of man as a political animal, and the Christian innovation of God as Logos, intimately involved in his creation with a keen interest in his work, Aquinas was able to almost single handedly invent what we call jurisprudence or legal philosophy. The fundamentals of his Natural Law doctrine are to be found in his masterwork, the Summa Theologiae or Summa Theologica, in those questions and articles dealing with “The Law”.
First of all, Aquinas rejected the early church’s notion that law and government were rooted in sin (which would seem a pretty reasonable assumption these days, but I digress). Aquinas disagreed that law and government were therefore necessarily imperfect, or beyond correction. At the height of the High Middle Ages (1000 AD to 1300 AD), it not surprising Christian society was due for a less defeatist attitude. For Aquinas, a distinction had to be drawn between Divine Law, which could be known only by revelation, and Natural Law, which was wholly rational and which could be understood and interpreted by the light of unaided human reason. Scholastic philosophy was highly rationalistic and relied heavily on truth as elicited through logic and deductive reasoning. Where Aquinas stands apart from some modern Natural Law thinkers, is having God as the rational starting point. Christianity was the system, but the key I think is to begin with a premise of God, and in this sense Aquinas and a Roman jurists like Cicero or Ulpian, had much in common and came to many near identical conclusions about ultimate reality without sharing a common theology.
Natural Law was not a system of rules which covered the whole of human affairs. Some rules were morally indifferent and could be left to men to sort out, as Aristotle had argued. In the modern world, the rules of the road are a good example. It doesn’t matter if you drive on the right or left side of the road, as long as the lawmaker picks one or the other and makes his decision known to everyone. Other truths were self evident to rational man, such as the evil of killing the innocent, or that life, health and friendship were obviously ‘good’.
In the Summa Theologica, Aquinas starts off with the hypothesis that there is a relation between means and ends, between an operation and its result.6 A law simply put is a means of achieving an end. Since humans are rational beings, it is morally appropriate that they should act consistently with their rational nature. In principle, you don’t need a lawmaker as humans have the capacity in perfect circumstances to discover the laws all by themselves. But since some humans aren’t gifted with the intellectual ability to do the work, others are too crushed by labour to take the time to reflect and others are too broken by poor counsel, bad teachers, tyrannical bosses, or in modern times, controlled and manipulated by state and corporate propaganda, it isn’t very practical to go without a lawmaking body. Natural Law accepts that not everyone has the capacity or will enjoy the circumstances to allow him to do the ‘heavy thinking’. Thus many will need lawmakers to produce a system of laws to avoid doing wrong.
Aquinas divides laws into four categories:
Eternal law (lex aeterna), which encompasses the timeless laws that apply to the “whole community of the universe” and are governed by God, including physical laws like biology and physics.
Natural law (lex naturalis), being that part of eternal law that is discoverable by reason. Such law is comprised of those precepts of the eternal law that govern the behaviour of beings possessing reason and free will:
i) The first precept of the Natural Law, according to Aquinas, is to do good and avoid evil, which are considered both universal and objective aims.
ii) The second precept is that in every man, there is an aptitude to be good in accordance with his nature.
iii) The third precept is that on account of his reason, a man has a natural aptitude to learn about God and to live in society.
Divine law (lex divina), which is the law provided in the scriptures and religious books and descended from God.
Human law (lex humana), which is man-made law supported with reason and promulgated via human authorities for the common good. Man-made law is valid only insofar as its content conforms to the content or general principles of Natural Law.
To Aquinas, there is a duty to obey human law when founded on reason. Unjust or irrational law is not a law and hence, does not bind the conscience of the subjects. Where a human law does not conform to Natural Law, it is considered to be a perversion of the law.
William Blackstone in his Commentaries on the Law of England, writes of Aquinas’ theory of Natural Law that since it is “dictated by God”, laws that conflict with the dictates of Natural Law lose their power to bind morally. Blackstone’s description of Natural Law as being simply “dictated” by God is notoriously simplistic, as there is much more to the determination of whether a law is reasonable and directed towards the common good than simply waiting or reading out a “dictate” from God. The latter assumption about Natural Law has lead its critics, most notably the early positivists, to suggest it is simply the imposition of a set of moral rules, a particular theology, or to other critics that it is a mere means to protect the powers that be, namely the church and monarch. When I say that modern mass diverse societies are predisposed to positive/power legal theories, it is not to say that Natural Law, its opposite, is just the imposition of a common morality. What I suggest rather is that the lack of a common culture, customs or morals causes a social breakdown (decadence), a circumstance unfavourable to the operation of a Natural Law legal system. It literally impairs the capacity of the ruler and the population to see right and wrong (what in history one sees in a ‘lawless’ border town).
Modern critiques persist in arguing that Natural Law is a rigid ideology, inherently conservative, and “unacceptable” in a pluralistic society or one in which science has taught us more about human nature, human behaviour and the power of the irrational. A typical leftist or Wokist criticism of Natural Law, or any “conservative” or abstract principle, tends to be consequentialist, judging the good by the results. They argue that since Natural Law is conservative, it must be wrong. Any system that focuses on abstract principles and can’t guarantee the imposition of progressive beliefs or rights such as climate change, abortion, euthanasia, same-sex marriage, gender fluidity and radical egalitarianism, must be dismissed without further analysis.7 The fallacy here is simply reiterating the conclusion as an argument. Of course, the left may well be right to reject Natural Law out of hand, in its own political interests. A more sophisticated way of assessing Natural Law is once again to begin at the beginning and consider whether the theory is sound in its construction -- and thus avoid the criticism that it is simply a conservative consequentialist system.
First, Natural Law includes a theory of value — a substantive account of human well-being in its various dimensions. Left and right should be able to agree on much of this, though not all. Aquinas didn’t go on at length about value, but he does mention certain ‘goods’ (as opposed to evils) that are intrinsically valuable such as life, health, friendship, the formation of communities, marriage and family life, as well as the acquisition of knowledge and truth.
Second, Natural Law includes a theory of right action — moral rules and principles that guide and structure ethical decision making in concrete cases. As with Kant’s categorical imperative, Natural Law theory is in principle deontological, meaning belief in an objective moral norm, without regard to the consequences. This contrasts with consequentialism, which as noted above evaluates the act by the result, “the end justifies the means”. Aquinas wrote that one identifies right action through practical reasoning, in pursuit of the good, for oneself and for one’s community. This isn’t the same as the utilitarian '“greatest good for the greatest number”. You don’t add up the “goods”, subtract the “bads”, and get the answer.
Natural Law also involves an account of virtues understood as the habits of mind and character that reliably dispose one to choose and act in accordance with moral norms.
Natural Law theory doesn’t require consent for authority to be legitimate, which is very different from the Enlightenment fiction of the social contract or the fiction of "democracy" and the mystical power of the "vote" to produce legitimate and correct results, which myth is still believed by millions to this day. Traditionally, Natural Law theory viewed human beings as enmeshed in a web of authoritative communities, like the family, religious communities, fraternal or political associations, whose legitimacy is not based on consent but on their inherent connection to the common good.8 This recognizes the “thrown-ness” of our situation (to use a bit of Heidegger speak), and presents a more realistic picture of what it means to be alive; we have found ourselves where we are without choice, and these communities are for the most part good things, if we judge the tree by its fruit.
With the Renaissance and Reformation, a new scientific approach arose that focused on observation and experiment aided by human reason. But as Lloyd points out, far from leaving Natural Law in the rear view mirror, the new secularism turned out to be a 'Golden Age' of Natural law.9 With the scientific approach came secularism and a divide in Natural Law theory that exists to this day: do we start with God, or must we start only with Man, leaving God as a mere possibility? Natural Law thinkers mostly take one side or the other and fit into three categories: 1. Catholic or Thomist who follow Aquinas; 2. Philosophical, which is more popular in Europe with Kant or neo-Kantian approaches to the realm of the moral law; and 3. Sociological, which uses advances in behavioural science to show that Natural Law was 'right all along'.
Hugo Grotius, one of the leading exponents of the Law of Nature and supposed founder of international law, is said to have inaugurated the “new, modern, and secular era” in Natural Law theorizing by his ‘etiamsi daremus’ that Natural Law would still apply even if God did not exist because reason dictated a rational order in human affairs, an order that could be elicited by reasoning alone. Since all humans are rational, Natural Law should be able operate everywhere independently of God.10 This idea of applying one overriding law to people with divergent dialects and customs led to universalizing efforts, such as the codification of national law (e.g., the Code Napoleon), and to the application of Natural Law in international relations, where states were said to still exist in a ‘primitive state of nature’.
To this day, we live in world where the idea that some laws are of a higher order and must prevail over national or state laws (mere human laws). These overring laws are said to possess higher moral or ethical authority (rarely is there recourse to God). To Aquinas, the higher order is God, to the secularists, it is Reason, but the use has extended far beyond the realm of “Natural Law” thinkers. You see in the extended group or class how easily Natural-Law-type thinking can start to look very unnatural, if those higher order “laws” worshipped by the elites have sources that are questionable at best, deranged at worse, while serving other ‘gods’, such as climate change, or Woke ideology. In that sense, we have to start asking, whose Natural Law and are these so-called higher principles legitimate and well thought out, grounded in Reason, or rather are they irrational usurpers. How do we distinguish Natural Law from its opposite, call it un-natural law or the perversion of law, as a Stoic would have understood it?
One application of the extended class is to call your national or state laws inherently good. English Chief Justice Sir Edward Coke, commented that the common law of England was the embodiment of human reason and therefore coterminous with Natural Law. In fact, he thought the common law could overturn an act of Parliament, which idea never caught on, especially with Parliamentarians.
Another downside of the secularized national law movement was the wiping out of local, so called archaic and feudal laws, in favour of consistent, uniform and unvarying laws without local traditions and variants. This drive for homogenization continues unabated until to this day, with national differences increasingly seen as needing to be replaced with laws consistent with ‘international norms’.
The secularization of Natural Law , had a number of other long-term consequences. While producing the “Golden Age,” it also contributed to Natural Law falling from favour in the 19th century.
First, there was a shift from duties and prohibitions (‘though shalt not kill’) to fundamental rights or human rights protecting the individual from the rulers, church and state, reflected in the writings of Locke and Rousseau, which thinking culminated in the American and French revolutions. This tumultuous period of history provided fodder for the critics. There were of course the excesses of the French revolution, to be avoided ‘at all costs’. In the new scientific age, Natural Law was accused of being devoid of scientific or empirical grounding. In the Hegelian age, it was seen as deficient, having no place within it for historical processes, thought to be controlling world events, also reflected in the writings of Marx.
Another famous criticism is that natural law purports to tell us what ought to be by looking at what is. Natural law to its critiques like David Hume, looked like a pretentious way to describe moral rules.11
Belief in the inevitability and human progress, the inevitability of change for the good, towards a material utopia, had no place for a theory of law in which certain truths are constant, unchanging and absolute. In its place you see the rise of what we know today as legal positivism and in more recent times, overt power theories of law, which I will cover another time. An early description of positivist theory is to look not at the content of the law for its legitimacy, or its merits, or its morality. Rather, legitimacy depends on the source, which is how most people think of law today. Law is the command of the sovereign backed by force in the form of clearly defined institutions, like a legislative assembly or a court.
On the other hand, secularization, allowed for Natural Law’s revival after World War II when the victors needed an answer as to how to punish the losers for crimes that didn’t exist when the crimes were committed. The solution seems to owe a lot to Natural Law concepts, such as “customary” international law in the case of the Nuremberg defendants, and retroactive legislation to punish unspeakable evil, as in the case of Eichmann trial in Israel. It is interesting that one of the older criticism of Natural Law theory, noted above, was that it is inherently conservative and used to entrench the existing power structure, such as the position of the Catholic Church or monarch. In modern times, the recourse to higher universal norms to sweep away the old order retains a revolutionary character, although often masking the interests of mass corporations who have nothing to gain from moral restrictions on consumption.
In distinguishing true Natural Law thinking from the impostors, a consistent feature of the former is rigor. These are not people who accept a pronouncement from a sociology department, or the media or government as authoritative without more. It still has to pass a test of practical reasonableness. And a feature of the new and contemporary Natural Law thinkers is to attempt to fill in the ranks of what is the ‘good’, which Thomas Aquinas had only sketched out.
John Finnis is an Australian legal philosopher, and one of the “new natural law theorists.” He has heavily influenced contemporary Natural Law thinking.12 In his 1980 book, "Natural Law and Natural Rights", Finnis appeals to the distinctive moral aim of the 'common good' and tries to show how best to order social interactions. His theory emulates Aquinas, in that he also claims that normative propositions about what law ought to be are not derived (as positivist critics claim) from bare descriptions of the natural world: of what is. It is more complicated than that.13
Finnis doesn’t start with 'God' or a particular theology and is quite clear that he is not presenting Natural Law as an expression of God's will, although he doesn't rule out that the deity may have cause to reveal himself. Finnis is considered a bit “stodgy” by some, and the approach is certainly dry. He goes so far as to say that Aristotle and Plato's assumption of man's ability to access the divine is more "meditative" than "argumentative"; refers to the Augustinian and Thomistic views on Eternal Law as mere 'speculation'; and notes that the Stoics stopped their inquiry into the 'good' at one: virtue, and their system is really more rooted in piety.14 Finnis sets out to build a system on more solid foundations. He argues instead that laws are self-evident and founded on the fact humans have a common need for certain basic goods. The seven basic goods15, not to be confused with products, are as follows:
Life and Health
Knowledge
Play
Aesthetic Experience and the appreciation of beauty
Sociability and Friendship
Practical reasonableness: “the basic good of being able to bring one’s own intelligence to bear effectively in dealing with problems and shaping one’s character”
Religion, which he defines as a general concern for the order of the cosmos, human freedom and reason
In doing so, Finnis rejects both Hume and Aquinas’ principle of practical reason, whether in the pursuit of our desires (Hume) or in pursuing good and avoiding evil (Aquinas). Instead, he adopts the Aristotelian approach of defining what we ought to pursue to have a good life. Of course, you can have a good life and not like people, and you can access moral truths, arguably, without engaging in any kind of thought puzzle, or calculation. Many would say, you just “know it when you see it” although that isn’t terribly satisfying for a philosopher. Finnis nonetheless also sets out nine methodological requirements of practical reasonableness to enable us to make decisions about how to act, what basic goods to choose and generally how to order our lives:
Harmony of purpose/a coherent life plan.
No arbitrary preferences amongst values.
No arbitrary preferences amongst persons.
Detachment from particular realizations of good (avoiding fanaticism).
Fidelity to commitments (avoiding apathy and/or fickleness).
Efficacy (within limits).
Respect for every basic value.
Respect for community and the common good.
Following one’s conscience and being authentic.
One criticism that could be levelled at Finnis is that he focuses entirely on man’s nature. Is there no more to guide us than ourselves? What about our access to metaphysical truths, whatever they may be? What about the laws of nature themselves? Wouldn’t these laws or truths outside of ourselves help guide us? Consider if we are really better off or closer to the law with longer lists of the ‘good’ and tweaking the methodology of our practical reasoning? Other Natural Law thinkers do, and Wokists certainly would, add to or substitute very different ‘goods’. Although instructive, most people who think critically in fact end up ‘knowing’ or thinking quite confidently that they ‘know’ without following any predetermined set of calculations, using a methodology too complicated to be put into words. Others just do what they are told, although not necessarily without accepting, somehow, that the directions they are given are good ones. What is the source of that belief? Which brings us back to the question of universality, or the assumption that the ‘goods’ are necessarily of universal application.
Modern mass societies are not only increasingly pluralistic and multicultural, but subject to a crushing volume of laws and regulations. Is our legal system better than that of the Roman Republic, with few laws, interpreted through a common set moral or religious values? To paraphrase John Adams, can a legal system even function without a moral people to start with? Perhaps not. And if not, then what?
First, it is evident that in mass societies that are pluralistic and multicultural, in which Natural Law thinking is considered “outdated,” “old fashioned”, “unacceptable” or out and out “impossible”, only positivistic/power systems of law seem to be imaginable, both by the elites and masses alike. John Waters, writing about the gutting of the Irish Constitution, provides a perfect example of positivism in action, in the newly multicultural state. In his series on Natural Law, 2/3, on substack, John Waters, Irish writer and thinker, illustrates in painful detail how fundamental so-called “inalienable” unwritten rights, such as the “right to life" of the unborn, once codified, become mere human laws and are then, much to the consternation of pro-lifers like Waters, subject to abolition as occurred in Ireland, the express language in the constitution of permanence and immutability, notwithstanding.
Another consequence consistent with the pre-eminence of power analysis in mass pluralistic societies, is to have the rule of law replaced by the rule of managers. The web of laws to empower the managers doesn’t represent a system, other than a system of control. You can see this process in the transition from a tort system and a traditional court system to a no-fault system, or from a contractual approach to employment law and marriage to a Kafkaesque system of specialized secretive tribunals, with exclusive authority and powers, and almost unlimited discretion, and very limited oversight from the courts, charged with distributing and controlling problems, rather that judging.
As Finnis writes:
… law is indeed a social order in which there are rulers and subjects, but it is to be distinguished from any social order in which the rulers are exercising a ‘managerial direction” over the subjects. Law is distinguished from such managerial direction partly by the generality of its major rules, and above all by the fact that its officials are bound to apply the rules which they have previously announced ….”.16
The modern official is a far cry from the one described by Cicero in his, “On Government”:
The function of the state official is to govern, and to issue orders that are just and advantageous and in keeping with the laws. Indeed, it can truly be said that an official is the speaking law, and the law is a non-speaking official. Besides, government is something supremely in accordance with the prescriptions of justice and with nature … for without government, no household can exist at all, and no community, and no nation, and not the human race itself, or the world of nature, or for that matter the entire universe. For the universe obeys God, and is obeyed by the seas and lands, so that human life is governed by the law which is universally valid.17
Where did we go wrong and where do we go from here?
Next time, Legal Positivism, which has become firmly entrenched as the dominant theory of the concept of law, although critical studies are gaining fast and legal realism is always lurking about.
“Natural Law”, Moschella, M. and George, R, “Forthcoming in The International Encyclopedia of Social and Behavioral Sciences, 2nd ed., p. 2
I am omitting a full definition of “Wokism” as that would be an essay in its own right. Suffice to say I reject the notion it is rooted in Marxism, seeing it as more Freudian with close ties to mass government and mass corporations.
https://www.nlnrac.org/classical/aquinas
“After Virtue,” MacIntyre, A, (University of Notre Dame Press, 1981)
“The Idea of Law”, Lloyd, D. (Penguin, 1985), p. 80
https://www.academia.edu/9653032/NATURAL_LAW
In academia, one can find the caveat that, just because the author has expressed conservative views in the past, such as being contra same-sex marriage or abortion, one should not dismiss the author’s work out of hand, as if such post Wokist sacred cows are beyond the political, beyond principled criticism (see, e.g., Crowe, J., “Natural Law Beyond Finnis”, (2011) 2(2) Jurisprudence 293-308 at 296, where the author notes that many law students find Finnis “stodgy and outmoded” in the area of “sexual issues”).
“Natural Law”, Moschella, M. and George, R, “Forthcoming in The International Encyclopedia of Social and Behavioral Sciences, 2nd ed., p. 9
“The Idea of Law”, Lloyd, D. (Penguin, 1985), p. 82
John Finnis has argued that this picture of Grotius’ thought is based on a ‘misunderstanding’ given that arguing from the hypothesis of God’s non-existence was common place long before Grotius, including among scholastics (“Natural Law and Natural Right”, supra at 43).
“The Idea of Law”, Lloyd, D. (Penguin, 1985), 97. For an overview of the is-ought critique, see “Natural Law and Natural Rights,” supra p. 416 and sections II.5-6.
“Natural Law Beyond Finnis”, Crowe, J. (2011) 2(2) Jurisprudence 293-208, p. 1
“Jurisprudence”, Shaw, J.J.A., (Pearson, 3rd ed., 2014) p. 56
Natural Law and Natural Right,” supra at 377, 389, 392, 394
“Jurisprudence”, Shaw, J.J.A., (Pearson, 3rd ed., 2014) p. 58
“Natural Law and Natural Rights”, Finnis, J. (Oxford, 2nd ed., 2011) p. 8
“On Government”, Cicero, (On Laws (III), (Penguin, 1993), p. 193