The Natural Law

From his Gifford Lectures two years ago, N. T. Wright offered:

To be an image-bearer is more than just behavior; otherwise we put the knowledge of good and evil before the knowledge of God.

The Natural Law: A Study in Legal and Social History and Philosophy, by Heinrich A. Rommen

Why begin a post on Rommen’s book with a quote from N. T. Wright?  Forgive the length of the following, from the Translator’s Preface (Thomas R. Hanley) to Rommen’s book:

An extensive treatment of moral problems from the standpoint of the natural law or rational ethics often leaves the impression that ethics, as a branch of philosophy, is quite sufficient to lead a man to perfection and happiness, individual and social.  From such a viewpoint the supernatural order, with its elevation of man, divine revelation, and divine grace, all too often takes on the appearance of something artificial or unnatural, something unnecessary and superfluous.  Mature reflection, however, will show that such an impression is quite unwarranted.  Neither as a science nor as an art is ethics, or the doctrine of the natural moral law in its concrete applications, able of itself to lead man as he actually is to his individual and social good.

Both Wright and Hanley seem to be offering that the Four Natural Virtues (Prudence or Wisdom, Courage, Temperance, and Justice) are insufficient to lead a man to his telos of happiness – beatitudo.  It also requires the Three Theological Virtues (Faith, Hope and Love).

However, this does not preclude for non-believers the discovery and understanding of the natural law:

Rational ethics, founded on the natural moral law, preserves, therefore, its independence and value like any other branch of philosophy.  In this way it performs the valuable functions of serving as a basis of understanding and agreement between Catholics and all those who fail or refuse, for one reason or another, to recognize consciously their actual and inescapable incorporation into the supernatural order and their call to actual, full, and living membership in the authentic Church of Christ.

Please, no fighting about the dig at non-Catholic Christians….

Now, on to Rommen.  He begins with a history of pre-Scholastic thought – as he describes it, The Legacy of Greece and Rome.  The idea of natural law is as old as philosophy.  Even primitive law held that such laws were unchangeable by human ordinance, and it has the same force always and everywhere within a given cultural environment.

In Western culture, this philosophical concept of natural law first made its appearance through the Greeks.  There was a distinction even then – a distinction that continues to this day:

One is the idea of a revolutionary and individualistic natural law, essentially bound up with the basic doctrine of the state of nature…

This incorporates the idea of the state as a social unit, resting on free contract.

The other is the idea of a natural law grounded in metaphysics that does not exist in a mythical state of nature before the “laws”…

The idea of God is wrapped up in the latter.

C. Jay Engel has recently written extensively on this mythical idea of man coming out of a state of nature.  Human history just isn’t so.  Man is born into a family and a community, with all of the rights and obligations that this entails.  As regarding the broader society, it is from such beginnings that one must work if one is to build a proper narrative of man in relation to his fellow man; it is only within such a framework that any possibility of meaning and fulfillment in life will be found.

Rommen examines the Sophists, noting that it is not easy to judge them fairly.  Their writings have come to us in fragments, and chiefly through Plato’s dialogues.  Rommen offers three ideas that came out of their thinking:

·         Existing laws are artificial constructs that serve class interests

·         There is a natural-law freedom and equality of all mankind – hence a world community that is superior to the city-state

·         Finally, that the state or polis is nonessential; it owes its origin to human decision of free contract.  Prior to this, mankind must have lived in a state where pure natural law was in force.

To summarize, they were critical of positive laws, yet per Rommen they juggled ideas and paradoxes which threatened to dissolve the notions of goodness and morality.

Epicurus, who had no room for metaphysics, would counter, doubting that anything can be objectively and naturally right.   Utility and pleasure were the sole principles of ethics for him.  All justice was to be found in positive laws.  We have seen the same debate ebb and flow ever since.

Socrates would show that there was a knowable objective world of goodness and justice.  Plato and Aristotle would follow, with order – not freedom – as their chief concern.  This explains their pre-occupation with the best form of state government.  Yet to achieve order, an ethical basis for law must be discovered – they held that there was a distinction between what is naturally just and what is legally just.

The metaphysical natural law of Plato as well as the more realistic one of Aristotle formed the high-water mark of moral and natural-law philosophy in Greek civilization.

We know that Plato established the ideas of the forms – the perfect forms; Aristotle embodied these, place the forms in the entity or being.  Plato’s archetype was the pure idea; Aristotle’s was to be found in human artistic activity: for example, the architect or sculptor who brings to life the idea in his mind.

And it is here where we will find that some actions correspond to nature and are naturally good; others are repugnant to nature, and therefore naturally bad.  From this, Aristotle would identify that which is naturally just and naturally unjust.

Neither Aristotle or Plato would have much to say about the content of natural law; the Sophists, more concerned about the individual, would have more to say on this. 

The ideas of natural law would find their way into Roman law, still with little distinction between law and morality.  Concepts like “worship must be paid to God” and “live honourably” were to be found in the law.  This was driven by the view from even Plato and Aristotle that the sole moral fulfillment of man was to lie in citizenship:

The virtuous life is the goal of man.  But he can achieve this goal only as a citizen of the polis and in obedience to its laws.

Despite this, Rommen finds in Roman law the finest legal system yet developed in the West – albeit he recognizes that English common law also carries many features of this same natural law.  Roman law further passed this idea of natural law to the new Christian era and to the scholastic philosophers – a “true philosophia perennis,” basic philosophical truths that are perennial, enduring, abiding, permanent, eternal. 

The Stoics were individualist just like the Sophists, yet not militantly opposed to the polis.  They built upon the work of Socrates, Plato and Aristotle: correct knowledge is the basis of ethics; the unity of knowledge and conduct forms the ideal of the sage.  This ideal would repeat in the Christian ideal of the saint.

The Stoics would pave the way for Christian natural law; they gave a terminology through which this natural law could flow.  Cicero was its greatest popularizer, and it was mainly through his writings that these ideas would come to the medieval world.

Cicero would write (along with other similar notions):

If the principles of Justice were founded on decrees of peoples, the edicts of princes, or the decisions of judges, then Justice would sanction robbery and adultery and forgery of wills, in case these acts were approved by the votes or decrees of the populace.

Regarding the philosophy of Aristotle and Aquinas, Rommen cites from An Introduction to Philosophy, translated by E. I. Watkin:

“It is also the evidential philosophy, based on the double evidence of the data perceived by our senses and our intellectual apprehension of first principles….”

This recalls C. S. Lewis, from The Abolition of Man:

This thing which I have called for convenience the Tao, and which others may call Natural Law or Traditional Morality or the First Principles of Practical Reason or the First Platitudes, is not one among a series of possible systems of value.  It is the sole source of all value judgements.  If it is rejected, all value is rejected.   If any value is retained, it is retained.

Conclusion

Returning to Rommen, he offers a hint of hope for our time when natural law (and, not coincidentally, a life of fulfillment and meaning) seems furthest from the minds of man:

Scholastic philosophy has been the place of sanctuary for the natural law when arid positivism has driven the latter out of secular jurisprudence.  Yet it has always come back into jurisprudence whenever the human mind, weary of the unsatisfying hunt for mere facts, has again turned to metaphysics, queen of the sciences.

This introduction sets the stage for the Scholastics.  This will come next.