Natural Law Isn’t About Law…

…it’s about morality.

Freedom for Excellence: Virtue and Moral Character According to Aquinas (Part One) (audio), Fr. Thomas Petri, O.P. 

He begins by examining what Thomas would write regarding the purpose of natural law.

For St. Thomas Aquinas, the question of what it means to be moral is, in fact, a central question – the central question.  The central part of the Summa Theologica is all about morality. 

His work was about morality.  But was it not also about laws to back up this morality?

For St. Thomas Aquinas, morality – and people often balk at this, but it’s true – does not involve primarily duty or obligation or obedience to the law.  It was only later, beginning in the fifteenth or sixteenth century where Catholic moralists started focusing on law excessively and using Aquinas to excuse themselves – mostly the Jesuits (then, clears his throat).

Hey, he said it, not me.  I will stay out of the Catholic infighting, and leave Fr. Petri’s words to speak for themselves.

So, in that whole central section about morality, only a small section of it is about the law – only a small part.  For St. Thomas, morality is about two questions: first, what is happiness; secondly, how do I get it.  That’s basically what morality is for St. Thomas.

Please keep all of this in mind as we continue.  Forgive the length, but there is much to be covered.

Edward Feser delivered the Hayek Memorial Lecture at the Mises Institute in 2005.  He commented on the fact that many people associated with the Institute also are sympathetic to the idea of Natural Law, and he is complimentary about this.  However, furthering this is not his purpose with this lecture.  In his words, he intends to “accentuate the negative”:

In particular, I would argue that the work of Austrian thinkers, including Hayek and Rothbard, has been deficient where it has strayed from economics per se and forayed into the realm of moral theory.

He holds that from a Catholic point of view, positions held by Hayek and Rothbard have weaknesses.  What are these weaknesses, and what do these have to do with the cited passages from Fr. Petri, above? 

I will skip his criticisms of Hayek.  These are secondary to Feser’s main focus, and secondary to me.  What of his criticisms of Rothbard?

Rothbard’s views, by contrast, are often radically at odds with a Catholic conception of natural law.

Feser notes that natural law theorists will differ profoundly on the content and metaphysic of natural law.  Feser will come at it from the views associated with Thomas and the Scholastics – and opposes this to the views coming from Locke, as Locke rejects the traditional grounding of natural law in the natural ends of man.  Without going into the details of Feser’s criticisms, to summarize:

For if Lockean natural law is a watering down of the traditional Scholastic conception of natural law, Rothbardian natural law theory seems itself little more than a watering down of Locke. 

Which now brings me to the point.  Feser offers a section entitled “Morality and the law.”  Feser touches on the issue of suicide – yet I cannot determine why this is even relevant when speaking of “law.”  Yes, suicide is a violation of Thomistic natural law, but what does man’s law have to do with this?  The perpetrator is dead, for goodness sakes.  What punishment can be further inflicted?  I am reminded of this scene from the Cadaver Synod (scroll down for the picture). 

He then moves to Rothbard’s views on abortion and on the issue of the parent’s obligation to feed their children.  Here, I agree that Rothbard’s views are in disagreement with natural law.  Contrary to Murray Rothbard, Walter Block and other libertarian thinkers, I have argued that abortion is also in violation of the non-aggression principle (my most thorough examination is here). 

Regarding obligations to children, I also disagree with Rothbard – but here, again, I have made my argument from a libertarian perspective.  (For a complete listing of my thoughts on abortion and children, including addressing challenges, etc., see here).

If Feser left it here, I would have no disagreement with him – nor would I have any reason to include the above passages from Fr. Petri, or to even write this post.  But Feser doesn’t leave it here:

Rothbard advocated the decriminalization of illicit drugs, prostitution, and other so-called victimless crimes, not because he necessarily denied that these things are immoral, but because he thought to criminalize them would violate persons’ self-ownership rights to use, or even misuse, their bodies as they saw fit.

Feser notes that one has no natural right to that which is intrinsically immoral – meaning, that which goes against Thomistic natural law.  Fair enough.  But what to do about it?  He recognizes that virtue “requires a certain amount of freedom from outside interference, since virtue must be freely chosen if it is truly to count as virtue.”  It would be good if Feser left it even at this.

It is precisely these “so-called victimless crimes” where the quotes from Fr. Petri come into play – Aquinas was not advocating laws; he was writing of moral behavior.  Does Feser propose confession, counseling, excommunication, or other means of non-coercive methods of setting such “violators” on the straight and narrow path?  No, not really:

…this would seem to entail that to some significant degree, determining the specific amount of freedom we ought to have from outside interference with our moral choices must be a matter of prudential judgment and contingent circumstances

I can live with this, depending on by who and how such “moral choices” are to be dealt with.  Feser, like too many Christians, takes the easy way out:

…this is bound to entail that it is at least in principle legitimate for government to outlaw actions that are, from the point of view of natural law, intrinsically immoral, such as prostitution, the sale of illicit drugs and pornography, and so forth.

This is the lazy way, a way – sadly – that too many Christians take in order to avoid taking personal and institutional action.  By making such a statement, Feser implies, rather clearly, that the Church (and Christians more broadly) is impotent when it comes to teaching and training proper moral behavior.  It needs the threat of prison in order to perform this function.

Feser tries to soften his stance, offering:

I want to emphasize that none of this is meant by itself to prove that there ought at the end of the day to be laws against every behavior considered vicious from a natural law point of view.  …it is hard to see how anyone whose political philosophy is based on a Catholic conception of natural law could consistently fail to endorse some such laws.

I agree, depending on where one draws the line: is it drawn at abortion, or is it to include personal marijuana use?  Feser again returns to the case of abortion and to Rothbard’s views on children.  And, again, if he left it here, I would have no significant disagreement.  But he did not, again introducing…

…sexual license of every kind, with pornography, drunkenness, drug abuse, and every other kind of vice…

So now, Feser turns to “The state” and Rothbard’s objection to it.  Feser cites the “Tribute” episode (render to Caesar what is Caesar’s) and the well-known Romans 13 passage as evidence of the requirement to obey state authority.

…it is sometimes claimed that Christ and St. Paul didn’t really mean what everyone has always understood them to mean in these passages.

“Everyone” hasn’t always understood these passages to mean such things.  These passages have been greatly debated, and not only by libertarians.  One might consider that Jesus – who answered in a riddle in any case – had bigger fish to fry than to start another Jewish revolt against the Romans; one might also consider that Paul wrote in such a veiled manner to avoid Romain ire – given that this was a letter to Romans!

Gerard Casey offers an examination of this in his book, Freedom's Progress?: A History of Political Thought, and I offer an overview of this here.  He offers, regarding this passage from Romans:

Whereas some English translations use the word “governing” in verse 1, the Greek text does not.  It reads “Let every soul be subject to the superior powers.”

There are too many passages in the Bible that run directly contrary to Feser’s interpretation of Romans and the Tribute passage to list here.  One really should consider the Bible as a whole, and not pick and choose….

Returning to Feser:

Rothbard seems to regard the entire apparatus of state power as nothing more than a set of personal holdings, however ill-gotten, of whatever officials happen to control it at any moment.

They certainly treat it as such.

On the traditional natural law view, the state, being a natural institution…

The state, as we know it, most certainly was not a “natural institution.”  At the time of Aquinas, there was no state.  There was a king and there was a church.  Neither had monopoly power, neither could exercise force unilaterally, without any check on its authority.  The concept of a “state” as we know the term came into being with the Renaissance and Reformation, and took full flower with the Enlightenment.  It was not the form of governance provided during medieval Europe and the time of Aquinas.

To the extent later scholastics wrote favorably of a state, it should be considered that this was during horrendous political (not religious) wars that followed the Reformation, and this context is important.

Even if one were to grant some form of minarchist state to Feser, we are so far removed from this that one should ask: who is closer to right – right here, right now, today, in the real world that we live in – based on Christian natural law morality: Rothbard or Feser?

We are obligated to pay tribute for wars of horrendous aggression, abortion, torture, societal destroying education, culturally destructive behavior, subsidies for the failed businesses of multi-billionaires.  Half the people in prison harmed no one but themselves.  Central banks might be the most dishonest and corrupt institution ever created, yet we are obligated to live under their system.

You want me to pay taxes for police?  They are arresting people for going to the beach.  The courts?  Virtually everyone charged with a federal crime is found guilty – is this even possible in a fair system?

What’s left?  Streets?  Ok, I give.  Limit my taxes to streets, and I can meet Feser halfway.  Everything else? 

The Catholic natural law tradition denies that anyone has such absolute property rights in external resources in the first place; and if we don’t have such rights, they can’t be violated.

What is this sleight of hand by Feser?  I agree that the Catholic tradition does not afford us absolute rights in property.  This does not mean that I have no rights in property.  Yet we live in a society where I have close to no rights in my property.

I am taxed at least 40% on income, probably another 20% in property and sales taxes as well as taxes paid by those from whom I buy goods and services.  The pittance I am left with is subject to more limitations than I care to list. 

Are these the characteristics of the governing authorities to which Paul (supposedly) admonishes us to submit, that Jesus (supposedly) requires from us taxes?  Don’t make me laugh.  God warned the Israelites of taking a king that would demand ten percent – ten percent!  Let’s not ignore this chapter.  God demands honest weights and measures – so what of central banking?  Let’s not ignore this either.

Finally, from the highest earthly authority we have on this matter of supposedly requiring law to do the moral work of the Church (or Christianity, more broadly).  In John 8, we read of the woman caught in adultery, a crime deserving of stoning.  The priests ask Jesus what should be done with this woman.  He replied: “Let any one of you who is without sin be the first to throw a stone at her.”  Jesus offered advice and counsel to this woman: “Go now and leave your life of sin.”  No stoning.

There is some dispute as to this portion of John – was it in the earliest manuscripts or wasn’t it?  Well, the Church fathers have left it in; this means something.  More importantly, does it sound contrary to Jesus’s overall teaching on the purpose of the law?  How many times do we read of Jesus saying, “You have heard it said…but I say…” and words to this effect? 

Physical punishment for non-violent actions is immoral.  To the extent Christians are unable to teach proper moral behavior, they need only look in the mirror for blame.  It is the lazy way out to use force in such situations.

Conclusion

So now, go back to Fr. Petri, and forgive the repetition:

For St. Thomas Aquinas, morality – and people often balk at this, but it’s true – does not involve primarily duty or obligation or obedience to the law.  It was only later, beginning in the fifteenth or sixteenth century where Catholic moralists started focusing on law excessively and using Aquinas to excuse themselves – mostly the Jesuits.

For St. Thomas, morality is about two questions: first, what is happiness; secondly, how do I get it.  That’s basically what morality is for St. Thomas.

Morality isn’t about punishment or law.  I will take it from the foundational philosopher of natural law, Thomas Aquinas, and skip any advice from Feser.  Aquinas was writing of morality, not law and punishment. 

This is where the proper function of the non-aggression principle comes into play, in conjunction with a natural law morality.  For this, I turn to Walter Block:

A more sophisticated understanding of libertarianism does not say, with the NAP: “Thou shalt not murder, initiate violence against innocent persons or their legitimate possessions.” Rather, it states, that if you do, you will be punished in accordance with libertarian punishment theory.

The NAP works well as a theory of proper punishment.  It does not work well – and was never meant to work well – as a complete moral framework, one suitable for liberty.  For this, Feser might consider looking to…oh, what’s his name again? 

Oh, yeah…Murray Rothbard.