Week 5: Natural Law Theory
Lecture Week 5: Natural Law Theory:
St. Thomas Aquinas
5.1 Resources for This Lecture
(internet resources accessed May 5th 2007).
Robert Lane, Lecture Notes for PHIL 4100 at University of West Georgia: http://www.westga.edu/~rlane/law/lecture13_nlt1.html
John Finnis “Natural Law” and Natural Rights,” in Ted Honderich, ed. The Oxford Companion to
Philosophy. Oxford: Oxford University Press, 1995, pp. 606- 607.
Stephen F. Brown “St. Thomas Aquinas” in Popkin, Richard H. The Columbia History of Western
Philosophy. New York: Columbia: 251-256. Columbia University Press, 1999.
St. Thomas Aquinas On the Truth of the Catholic Faith trans. James F. Anderson. New York: Image
Books, 1955.
David Papineau “Naturalism” in Stanford Encyclopedia of Philosophy
http://plato.stanford.edu/entries/naturalism/
Brian Leiter “Naturalism in Legal Philosophy” in Stanford Encyclopedia of Philosophy
http://plato.stanford.edu/entries/lawphil-naturalism/
Andrei Marmor “The Nature of Law”in Stanford Encyclopedia of Philosophy
http://plato.stanford.edu/entries/lawphil-nature/
John Finnis “ Natural Law Theories” in Stanford Encyclopedia of Philosophy
http://plato.stanford.edu/entries/natural-law-theories/
Igor Primoratz “Sexual Perversion,” in American Philosophical Quarterly, 04/ 1997.
http://www.ipce.info/ipceweb/Library/99-127_sx_perv.htm
5.2 Opening discussion.
1). The following argument is from J.Gay-Williams, “The Wrongfulness of Euthanasia,” in White ed. Contemporary Moral Problems Pp.99-102). Is it a good argument?
Euthanasia does violence to this natural goal of survival. It is literally acting against nature because all the processes of nature are bent towards the end of bodily survival.
When one of our goals is survival, and actions are taken to eliminate that goal, then our natural dignity suffers. (White p.101).
2). What do you think of the concept of the crime against nature, as discussed in this article on laws against certain sexual practices?
[“Unnatural sexual”] intercourse enforcement laws [are] still on the books in twelve [U.S.] states and Puerto Rico. In Florida, for instance, "any unnatural and lascivious act"--from oral sex, presumably, to toe sucking--can get you sixty days in jail (mothers breast-feeding are specifically exempt). Florida is nothing compared to Michigan, where oral-genital contact between consenting adults carries a penalty of up to fifteen years' hard time. Then there is Massachusetts, whose law states that an "abominable and detestable crime against nature, either with mankind or with a beast, shall be punished by imprisonment in the state prison for not more than twenty years. (Italics mine).
5.3. The Concept of Nature in Philosophy
In philosophy the term ‘natural’ generally means “belonging to or concerned with the world of nature, and so accessible to investigation by the natural sciences.” In ethics, Ethical Naturalism, holds that ethical conclusions are derivable from non- ethical premises, and that ethical properties are natural properties. More simply, it is thought that something is moral if it is natural, and some act is immoral if it is unnatural. Again, it is assumed that we can determine what is natural through referring to rational scientific explanations.
5.4 Natural Law Theories
The concept of Natural Law is related to the concepts of Ethical Naturalism. Natural law theorists typically make the following claims:
a). The human activity of lawmaking must meet certain moral standards in order for it to have law as its outcome.
b). The question whether a principle is a law cannot be separated from the question of that principle, or law’s morality.
A basic question for Philosophy of Law is “What is the moral standard that we should use to evaluate law?” The answer given by Natural Law Theory is that the standard is “Natural Law,” and that Natural Law is inseparable from the principles given above. We will discuss one major advocate of Natural Law Theory: St. Thomas Aquinas. (Another, modern, Natural Law theorist, Lon L. Fuller, will be discussed also).
Natural Law theories treat law as morally problematic. Writes John Finnis, “Classic and leading contemporary texts of natural law theory treat law as morally problematic, understanding it as a normally indispensable instrument of great good but one that readily becomes an instrument of great evil unless its authors steadily and vigilantly make it good by recognizing and fulfilling their moral duties to do so.”
5.4 St. Thomas Aquinas (1225-1274): Biographical Note.
St. Thomas Aquinas is considered one of the most important thinkers of the Medieval period. He was born in Roccasecca in the kingdom of Naples (now in Italy). From the age of 5 he studied at the Abbey of Monte Cassino, and spent the rest of his life as a theologian of the Dominican Order of Roman Catholicism. In 1242, having obtained his licence to teach from the University of Paris, he began teaching philosophy and theology. He was officially made a saint in 1323.
Although St. Thomas Aquinas died at the age of 50, he managed to write 8 million words in his lifetime. The end of his life is quite mysterious: he experienced some sort of divine revelation at Mass (a Catholic ritual), and declared that “All that I have written seems to me like stray compared to what has now been revealed to me.” He died four months later.
5.5 Aquinas and Aristotle
St. Thomas Aquinas was greatly influenced by Aristotle (384-322 B.C.E), in particular his naturalism. According to Aristotle, all naturally occurring entities, including humans and other living things, have a function. This worldview is called teleology (telos meaning ‘purpose’). The function for plants, Aristotle thought, was to grow and reproduce. Living things have similar functions. Human beings had the additional capacities for reason. The goal of each thing, including living creatures, is to act in accordance with its distinctive function. Consequently, for Aristotle, the goal of humans was “a life concerned with action, belonging to the rational part of life.”
5.6 Thomistic Natural Law
Like Aristotle, St. Thomas Aquinas saw moral life as a life lived “according to reason.” Unlike Aristotle, Aquinas attempted to unify this idea with his Catholic faith, according to which God is the supreme law- giver. Victor Grassian writes:
According to the Thomistic [St. Thomas Aquinas] world- view, the universe was governed by eternal natural laws which are a reflection of divine reason. These eternal laws included the purely descriptive laws that governed the regular and inevitable behaviour of all objects and make knowledge of the world possible (e.g., the daily rising of the sun, the melting of water at a particular temperature). Such regularities would, with the advent of the Scientific Revolution, be given a precise mathematical formulation. But, as Aquinas saw it, along with the descriptive laws of nature that report unbroken regularities, God had ordained laws of behaviour directed exclusively at human beings who had the free choice to either obey or disobey them. Such natural laws governing proper behaviour were not, however, alien constraints that God imposed upon us, for he so instructed our natures that we would naturally find fulfilment only through the pursuit of these laws. Consequently, as rational creatures we would want to obey these laws for our own fulfilment, apart from a sense of obligation to God. Utilizing the reason given to us by God, human beings can distinguish the natural and proper ends of human behavior from their unnatural and improper counterparts. The basic moral obligations revealed to reason were necessary for the realization of the fundamental human values of life, health, procreation, knowledge, and sociability.
Discussion questions:
a). This account requires that the Universe was created by some ‘divine reason.’ Does Natural Law necessarily require the assumption of such a benevolent creator to work?
b). How would we assess the claim that there is some benevolent order in the Universe?
Would we have to scrap the theory if there was no such order?
c). Are life, health, procreation, knowledge and sociability all necessary fundamental human values? Are they all necessarily natural to all humans? Finally, should people be legally required to be healthy, procreate, acquire knowledge and be sociable?
5.6 Aquinas’ Definition of Law.
Aquinas defines law as:
an ordinance of reason for the common good, made by him who has the care of the community, and promulgated.
We can understand this definition to be proving four conditions, each of which is necessary, and all of which are jointly sufficient, for a principle to count as a law:
1. “an ordinance of reason”: law is essentially an appeal to reason. That is, a law has to appeal to, or fit, the needs of reasonable people. The law has to be intelligible to people, and it must make sense for reasonable people to follow the law.
2. “for the common good”: the purpose of law is to promote the well-being of people living together in a community, and this is one way in which it appeals to our reason, i.e., why we find it rationally compelling.
3. “made by him who has the care of the community”: necessarily, a law is enacted or “posited” [from the Latin “positum,” which means put in place] by a sovereign ruler or body, someone whose responsibility it is to take care of the community.
4. “promulgated”: a law must be made public; a principle enacted by a sovereign cannot be law if it is kept secret, even if it is intended to benefit society.
Aquinas mentions a further characteristic of law, even though he does not include it in the definition that he gives: law must be coercive, that is, it must be backed up with force and threat of punishment if it is not obeyed.
• This is not part of the definition of law, since it is not a necessary characteristic of law. In a world in which everyone is perfectly virtuous (i.e., in which all people are saints), laws would not need to be coercive, since everyone could be counted on to follow them. Still, there would be laws, principles meeting the four conditions he sets out in his definition.
5.7 Four Types of Law.
Aquinas distinguished four kinds of law: eternal, divine, natural, and human
1. eternal law “governs the universe according to Divine Reason and establishes an objective order to the physical world and a reality to the moral world”
2. divine law: “God’s law revealed through the Scriptures [the Bible].”
· It directs human beings in the achievement of their supernatural purpose, the attainment of the vision of God.
3. natural law: according to Aquinas, this is “a bridge for rational creatures between eternal and human law. It enables humans to distinguish, through the natural light of reason, good from evil.” It is nothing other than “the rational creature’s participation in the eternal laws.”
Aquinas explains that Natural Law has the following properties:
• It is accessible to humans by reasoning.
• It directs human beings in the achievement of their natural purposes, including biological life, reproduction, knowledge, social living, and rational conduct.
• Natural law is both descriptive and normative...
What do the terms descriptive and normative mean?
descriptive (definition): a descriptive statement, or question, or theory, concerns how things actually are, not how they ought to be.
normative, or prescriptive: a normative statement, or question, or theory, concerns how things should be, how they ought to be, rather than how they actually are.
So, in other words, for Aquinas, natural law says both how things actually are and how they are supposed to be. The idea is that things are as they should be when they are performing their natural purposes or functions.
Robert Lane paraphrases Aquinas in the following example.
God created human beings with a number of specific functions or purposes. One those purposes is social living. God created us as social creatures who, as a matter of fact, have a natural inclination to want to be around others. Caring about others makes this possible, hence our natural inclination to care for other people. But in some people this natural tendency goes awry and they cease to act in ways that harm other people. So, our moral obligation not to harm others (the fact that we should not harm them) and to behave well towards them (the fact that we should do so) stems from the fact that humans actually are naturally socially creatures.
Another of our natural human purposes is reproduction. Sexual activity that has no chance of leading to pregnancy (e.g., sex using contraception, or homosexual sex, or masturbation) defeats this natural human purpose. So, our moral obligation not to engage in those sorts of sexual activities (the fact that we should not do those things) stems from the fact that humans actually are naturally reproducing creatures.
• These examples help show how humans are supposed to be able to discover, by way of reason, what the natural law is. We need only think about what our natural purposes are, and then figure out what sorts of activities will promote those purposes and what activities will defeat or undermine them. The former are in accordance with natural law and are therefore moral; the latter are in violation of natural law and are therefore immoral.
Finally,
4. human laws are made by humans “for the purpose of leading them gradually to virtue.”
By reasoning, we can derive our positive laws from the natural law.
If positive laws are not in synch with natural laws, then they are not genuine laws at all, but “perversion of law”:
“that which is not just seems to be no law at all. Hence the force of a law depends on the extent of its justice. ... Every human law has just so much of the nature of law as it is derived from the law of nature. But if in any point it departs from that law of nature, it is no longer a law but a perversion of law. (Summa Theologica, I-II, q.95 a.2)
5.7 Deriving Human Law from Natural Law.
For Aquinas, Human law is derived from Natural Law, in one of two ways:
1. Natural law (hereafter NL) completely determines what the human law (HL) should be, e.g. NL tells us that there should be a HL against killing innocent people and exactly what the content of that law should be (“do not kill innocent people”). It leaves no room for human choice in making the law specific.
2. NL tells us that we should have a certain sort of law, but allows room for human choice in the formulation of the HL. For example, NL dictates that we should have laws governing driving, since not having such laws would have very bad consequences for us all and would therefore defeat lots of human purposes. But NL doesn’t tell us exactly what the content of those laws should be (drive on the left or right? what’s the speed limit? etc.)
5.8 Unjust Human Laws.
Aquinas is often quoted as saying that “unjust law is not law.” Although not entirely accurate, it expresses a basic principle of his philosophy of law. He describes the various ways in which human laws may be unjust:
1. By being “contrary to the human good”
• “in respect to the end [purpose, or motive], as when an authority imposes on his subjects burdensome laws, conducive, not to the common good, but rather to his own cupidity [avarice, greed] or vainglory”
• “in respect to the author, as when a man makes a law that goes beyond the power committed to him”
• “in respect to form, as when burdens are imposed unequally on the community, although with a view to the common good”
2. By being “opposed to the Divine good,” e.g., “the laws of tyrants inducing to idolatry, or to anything else contrary to the Divine law.”
If a human law is unjust, then a citizen has no obligation to obey it... that is, if the unjust law can be disobeyed “without giving scandal or a more grievous hurt.”
This point raises a fundamental problem in legal theory that we will come back to next semester: are completely unjust laws legally binding?
5.8 The Naturalistic Fallacy.
The Naturalistic Fallacy is the (supposed) fallacy of appealing to some natural principle in moral argument. The standard form of this argument is “This behaviour is natural; therefore, this behavior is morally acceptable" or "This behavior is unnatural; therefore, this behavior is morally unacceptable". Such argumentation is frequently used in arguments on homosexuality (note that appeals to nature are involved in legislation concerning homosexuality, for example). This is exactly as Aquinas thought on the topic of homosexuality: Sexual intercourse with lower animals (bestiality), sexual activity with members of one’s own sex (homosexuality), and masturbation, for Aquinas, were unnatural sexual acts and thereby immoral. He believed that such acts deliberately disrupted the Natural Order of the World as created by God and which God commanded to be respected. (See Summa Theologiae, vol. 43, 2a2ae, pp. 153-154.)
5.9 Natural Law and Human Nature
As John Finnis argues, Natural Law does not necessarily commit the Naturalistic Fallacy.
What does the mainstream of natural law theory intend by using the word “natural” in that name for the theory? The shortest accurate answer is “of reason,” as in “the law of reason” or “the requirements of reason.” Aquinas is particularly clear and explicit that in this context, “natural” is predicated of something (say, a law, or a virtue) only when and because that of which it is predicated is in line with reason, practical reason, or practical reason’s requirements…
[So the equation Of “natural” and “rational” is grounded in the order of being]: what is good and reasonable for us is a resultant of what is foundational, our given nature; but in the order of coming to know, our knowledge of our nature is in significant part a resultant of our understanding of what kinds of possible objects of choice are good.
As such, Finnis argues that Natural Law is not vulnerable to the charge of committing the Naturalistic Fallacy. Rather, it is based on assumptions of what is required of “at least minimal human flourishing” (Finnis “Natural Law Theories”).
Discussion questions:
1). What conditions need to be met by a society to allow for human flourishing? What laws would be needed to maintain such a society?
2). Do you think Natural Law theory provides an adequate response to Moral Relativism?
Homework: The Nuremberg Trials
Consider the following case.
At the end of World War II, in 1945, all captured major German war criminals were tried for “crimes against humanity” (also described as “violations of international law” or “crimes contrary to the elementary dictates of humanity”) in what are termed the Nuremberg Trials. For the trial to take place at all, there was a basic question in philosophy of law that had to be answered. As German law had been changed by the Nazis to allow for theft, exploitation, a war of aggression, and the murder of millions of people, it was of course not possible to find the defendants guilty of German law.
The Judges assumed that the German generals had violated rules of a “higher law” applicable at all times and places, that is, Natural Law.
Do you think this decision was just? Or was it illegal to reject the argument that the German generals had done nothing wrong, as they were acting within the law?
(For discussion see section 3.1.1 in Finnis, “Natural Law Theories.” http://plato.stanford.edu/entries/natural-law-theories/
Nazis at the Nuremberg trials.
St. Thomas Aquinas
5.1 Resources for This Lecture
(internet resources accessed May 5th 2007).
Robert Lane, Lecture Notes for PHIL 4100 at University of West Georgia: http://www.westga.edu/~rlane/law/lecture13_nlt1.html
John Finnis “Natural Law” and Natural Rights,” in Ted Honderich, ed. The Oxford Companion to
Philosophy. Oxford: Oxford University Press, 1995, pp. 606- 607.
Stephen F. Brown “St. Thomas Aquinas” in Popkin, Richard H. The Columbia History of Western
Philosophy. New York: Columbia: 251-256. Columbia University Press, 1999.
St. Thomas Aquinas On the Truth of the Catholic Faith trans. James F. Anderson. New York: Image
Books, 1955.
David Papineau “Naturalism” in Stanford Encyclopedia of Philosophy
http://plato.stanford.edu/entries/naturalism/
Brian Leiter “Naturalism in Legal Philosophy” in Stanford Encyclopedia of Philosophy
http://plato.stanford.edu/entries/lawphil-naturalism/
Andrei Marmor “The Nature of Law”in Stanford Encyclopedia of Philosophy
http://plato.stanford.edu/entries/lawphil-nature/
John Finnis “ Natural Law Theories” in Stanford Encyclopedia of Philosophy
http://plato.stanford.edu/entries/natural-law-theories/
Igor Primoratz “Sexual Perversion,” in American Philosophical Quarterly, 04/ 1997.
http://www.ipce.info/ipceweb/Library/99-127_sx_perv.htm
5.2 Opening discussion.
1). The following argument is from J.Gay-Williams, “The Wrongfulness of Euthanasia,” in White ed. Contemporary Moral Problems Pp.99-102). Is it a good argument?
Euthanasia does violence to this natural goal of survival. It is literally acting against nature because all the processes of nature are bent towards the end of bodily survival.
When one of our goals is survival, and actions are taken to eliminate that goal, then our natural dignity suffers. (White p.101).
2). What do you think of the concept of the crime against nature, as discussed in this article on laws against certain sexual practices?
[“Unnatural sexual”] intercourse enforcement laws [are] still on the books in twelve [U.S.] states and Puerto Rico. In Florida, for instance, "any unnatural and lascivious act"--from oral sex, presumably, to toe sucking--can get you sixty days in jail (mothers breast-feeding are specifically exempt). Florida is nothing compared to Michigan, where oral-genital contact between consenting adults carries a penalty of up to fifteen years' hard time. Then there is Massachusetts, whose law states that an "abominable and detestable crime against nature, either with mankind or with a beast, shall be punished by imprisonment in the state prison for not more than twenty years. (Italics mine).
5.3. The Concept of Nature in Philosophy
In philosophy the term ‘natural’ generally means “belonging to or concerned with the world of nature, and so accessible to investigation by the natural sciences.” In ethics, Ethical Naturalism, holds that ethical conclusions are derivable from non- ethical premises, and that ethical properties are natural properties. More simply, it is thought that something is moral if it is natural, and some act is immoral if it is unnatural. Again, it is assumed that we can determine what is natural through referring to rational scientific explanations.
5.4 Natural Law Theories
The concept of Natural Law is related to the concepts of Ethical Naturalism. Natural law theorists typically make the following claims:
a). The human activity of lawmaking must meet certain moral standards in order for it to have law as its outcome.
b). The question whether a principle is a law cannot be separated from the question of that principle, or law’s morality.
A basic question for Philosophy of Law is “What is the moral standard that we should use to evaluate law?” The answer given by Natural Law Theory is that the standard is “Natural Law,” and that Natural Law is inseparable from the principles given above. We will discuss one major advocate of Natural Law Theory: St. Thomas Aquinas. (Another, modern, Natural Law theorist, Lon L. Fuller, will be discussed also).
Natural Law theories treat law as morally problematic. Writes John Finnis, “Classic and leading contemporary texts of natural law theory treat law as morally problematic, understanding it as a normally indispensable instrument of great good but one that readily becomes an instrument of great evil unless its authors steadily and vigilantly make it good by recognizing and fulfilling their moral duties to do so.”
5.4 St. Thomas Aquinas (1225-1274): Biographical Note.
St. Thomas Aquinas is considered one of the most important thinkers of the Medieval period. He was born in Roccasecca in the kingdom of Naples (now in Italy). From the age of 5 he studied at the Abbey of Monte Cassino, and spent the rest of his life as a theologian of the Dominican Order of Roman Catholicism. In 1242, having obtained his licence to teach from the University of Paris, he began teaching philosophy and theology. He was officially made a saint in 1323.
Although St. Thomas Aquinas died at the age of 50, he managed to write 8 million words in his lifetime. The end of his life is quite mysterious: he experienced some sort of divine revelation at Mass (a Catholic ritual), and declared that “All that I have written seems to me like stray compared to what has now been revealed to me.” He died four months later.
5.5 Aquinas and Aristotle
St. Thomas Aquinas was greatly influenced by Aristotle (384-322 B.C.E), in particular his naturalism. According to Aristotle, all naturally occurring entities, including humans and other living things, have a function. This worldview is called teleology (telos meaning ‘purpose’). The function for plants, Aristotle thought, was to grow and reproduce. Living things have similar functions. Human beings had the additional capacities for reason. The goal of each thing, including living creatures, is to act in accordance with its distinctive function. Consequently, for Aristotle, the goal of humans was “a life concerned with action, belonging to the rational part of life.”
5.6 Thomistic Natural Law
Like Aristotle, St. Thomas Aquinas saw moral life as a life lived “according to reason.” Unlike Aristotle, Aquinas attempted to unify this idea with his Catholic faith, according to which God is the supreme law- giver. Victor Grassian writes:
According to the Thomistic [St. Thomas Aquinas] world- view, the universe was governed by eternal natural laws which are a reflection of divine reason. These eternal laws included the purely descriptive laws that governed the regular and inevitable behaviour of all objects and make knowledge of the world possible (e.g., the daily rising of the sun, the melting of water at a particular temperature). Such regularities would, with the advent of the Scientific Revolution, be given a precise mathematical formulation. But, as Aquinas saw it, along with the descriptive laws of nature that report unbroken regularities, God had ordained laws of behaviour directed exclusively at human beings who had the free choice to either obey or disobey them. Such natural laws governing proper behaviour were not, however, alien constraints that God imposed upon us, for he so instructed our natures that we would naturally find fulfilment only through the pursuit of these laws. Consequently, as rational creatures we would want to obey these laws for our own fulfilment, apart from a sense of obligation to God. Utilizing the reason given to us by God, human beings can distinguish the natural and proper ends of human behavior from their unnatural and improper counterparts. The basic moral obligations revealed to reason were necessary for the realization of the fundamental human values of life, health, procreation, knowledge, and sociability.
Discussion questions:
a). This account requires that the Universe was created by some ‘divine reason.’ Does Natural Law necessarily require the assumption of such a benevolent creator to work?
b). How would we assess the claim that there is some benevolent order in the Universe?
Would we have to scrap the theory if there was no such order?
c). Are life, health, procreation, knowledge and sociability all necessary fundamental human values? Are they all necessarily natural to all humans? Finally, should people be legally required to be healthy, procreate, acquire knowledge and be sociable?
5.6 Aquinas’ Definition of Law.
Aquinas defines law as:
an ordinance of reason for the common good, made by him who has the care of the community, and promulgated.
We can understand this definition to be proving four conditions, each of which is necessary, and all of which are jointly sufficient, for a principle to count as a law:
1. “an ordinance of reason”: law is essentially an appeal to reason. That is, a law has to appeal to, or fit, the needs of reasonable people. The law has to be intelligible to people, and it must make sense for reasonable people to follow the law.
2. “for the common good”: the purpose of law is to promote the well-being of people living together in a community, and this is one way in which it appeals to our reason, i.e., why we find it rationally compelling.
3. “made by him who has the care of the community”: necessarily, a law is enacted or “posited” [from the Latin “positum,” which means put in place] by a sovereign ruler or body, someone whose responsibility it is to take care of the community.
4. “promulgated”: a law must be made public; a principle enacted by a sovereign cannot be law if it is kept secret, even if it is intended to benefit society.
Aquinas mentions a further characteristic of law, even though he does not include it in the definition that he gives: law must be coercive, that is, it must be backed up with force and threat of punishment if it is not obeyed.
• This is not part of the definition of law, since it is not a necessary characteristic of law. In a world in which everyone is perfectly virtuous (i.e., in which all people are saints), laws would not need to be coercive, since everyone could be counted on to follow them. Still, there would be laws, principles meeting the four conditions he sets out in his definition.
5.7 Four Types of Law.
Aquinas distinguished four kinds of law: eternal, divine, natural, and human
1. eternal law “governs the universe according to Divine Reason and establishes an objective order to the physical world and a reality to the moral world”
2. divine law: “God’s law revealed through the Scriptures [the Bible].”
· It directs human beings in the achievement of their supernatural purpose, the attainment of the vision of God.
3. natural law: according to Aquinas, this is “a bridge for rational creatures between eternal and human law. It enables humans to distinguish, through the natural light of reason, good from evil.” It is nothing other than “the rational creature’s participation in the eternal laws.”
Aquinas explains that Natural Law has the following properties:
• It is accessible to humans by reasoning.
• It directs human beings in the achievement of their natural purposes, including biological life, reproduction, knowledge, social living, and rational conduct.
• Natural law is both descriptive and normative...
What do the terms descriptive and normative mean?
descriptive (definition): a descriptive statement, or question, or theory, concerns how things actually are, not how they ought to be.
normative, or prescriptive: a normative statement, or question, or theory, concerns how things should be, how they ought to be, rather than how they actually are.
So, in other words, for Aquinas, natural law says both how things actually are and how they are supposed to be. The idea is that things are as they should be when they are performing their natural purposes or functions.
Robert Lane paraphrases Aquinas in the following example.
God created human beings with a number of specific functions or purposes. One those purposes is social living. God created us as social creatures who, as a matter of fact, have a natural inclination to want to be around others. Caring about others makes this possible, hence our natural inclination to care for other people. But in some people this natural tendency goes awry and they cease to act in ways that harm other people. So, our moral obligation not to harm others (the fact that we should not harm them) and to behave well towards them (the fact that we should do so) stems from the fact that humans actually are naturally socially creatures.
Another of our natural human purposes is reproduction. Sexual activity that has no chance of leading to pregnancy (e.g., sex using contraception, or homosexual sex, or masturbation) defeats this natural human purpose. So, our moral obligation not to engage in those sorts of sexual activities (the fact that we should not do those things) stems from the fact that humans actually are naturally reproducing creatures.
• These examples help show how humans are supposed to be able to discover, by way of reason, what the natural law is. We need only think about what our natural purposes are, and then figure out what sorts of activities will promote those purposes and what activities will defeat or undermine them. The former are in accordance with natural law and are therefore moral; the latter are in violation of natural law and are therefore immoral.
Finally,
4. human laws are made by humans “for the purpose of leading them gradually to virtue.”
By reasoning, we can derive our positive laws from the natural law.
If positive laws are not in synch with natural laws, then they are not genuine laws at all, but “perversion of law”:
“that which is not just seems to be no law at all. Hence the force of a law depends on the extent of its justice. ... Every human law has just so much of the nature of law as it is derived from the law of nature. But if in any point it departs from that law of nature, it is no longer a law but a perversion of law. (Summa Theologica, I-II, q.95 a.2)
5.7 Deriving Human Law from Natural Law.
For Aquinas, Human law is derived from Natural Law, in one of two ways:
1. Natural law (hereafter NL) completely determines what the human law (HL) should be, e.g. NL tells us that there should be a HL against killing innocent people and exactly what the content of that law should be (“do not kill innocent people”). It leaves no room for human choice in making the law specific.
2. NL tells us that we should have a certain sort of law, but allows room for human choice in the formulation of the HL. For example, NL dictates that we should have laws governing driving, since not having such laws would have very bad consequences for us all and would therefore defeat lots of human purposes. But NL doesn’t tell us exactly what the content of those laws should be (drive on the left or right? what’s the speed limit? etc.)
5.8 Unjust Human Laws.
Aquinas is often quoted as saying that “unjust law is not law.” Although not entirely accurate, it expresses a basic principle of his philosophy of law. He describes the various ways in which human laws may be unjust:
1. By being “contrary to the human good”
• “in respect to the end [purpose, or motive], as when an authority imposes on his subjects burdensome laws, conducive, not to the common good, but rather to his own cupidity [avarice, greed] or vainglory”
• “in respect to the author, as when a man makes a law that goes beyond the power committed to him”
• “in respect to form, as when burdens are imposed unequally on the community, although with a view to the common good”
2. By being “opposed to the Divine good,” e.g., “the laws of tyrants inducing to idolatry, or to anything else contrary to the Divine law.”
If a human law is unjust, then a citizen has no obligation to obey it... that is, if the unjust law can be disobeyed “without giving scandal or a more grievous hurt.”
This point raises a fundamental problem in legal theory that we will come back to next semester: are completely unjust laws legally binding?
5.8 The Naturalistic Fallacy.
The Naturalistic Fallacy is the (supposed) fallacy of appealing to some natural principle in moral argument. The standard form of this argument is “This behaviour is natural; therefore, this behavior is morally acceptable" or "This behavior is unnatural; therefore, this behavior is morally unacceptable". Such argumentation is frequently used in arguments on homosexuality (note that appeals to nature are involved in legislation concerning homosexuality, for example). This is exactly as Aquinas thought on the topic of homosexuality: Sexual intercourse with lower animals (bestiality), sexual activity with members of one’s own sex (homosexuality), and masturbation, for Aquinas, were unnatural sexual acts and thereby immoral. He believed that such acts deliberately disrupted the Natural Order of the World as created by God and which God commanded to be respected. (See Summa Theologiae, vol. 43, 2a2ae, pp. 153-154.)
5.9 Natural Law and Human Nature
As John Finnis argues, Natural Law does not necessarily commit the Naturalistic Fallacy.
What does the mainstream of natural law theory intend by using the word “natural” in that name for the theory? The shortest accurate answer is “of reason,” as in “the law of reason” or “the requirements of reason.” Aquinas is particularly clear and explicit that in this context, “natural” is predicated of something (say, a law, or a virtue) only when and because that of which it is predicated is in line with reason, practical reason, or practical reason’s requirements…
[So the equation Of “natural” and “rational” is grounded in the order of being]: what is good and reasonable for us is a resultant of what is foundational, our given nature; but in the order of coming to know, our knowledge of our nature is in significant part a resultant of our understanding of what kinds of possible objects of choice are good.
As such, Finnis argues that Natural Law is not vulnerable to the charge of committing the Naturalistic Fallacy. Rather, it is based on assumptions of what is required of “at least minimal human flourishing” (Finnis “Natural Law Theories”).
Discussion questions:
1). What conditions need to be met by a society to allow for human flourishing? What laws would be needed to maintain such a society?
2). Do you think Natural Law theory provides an adequate response to Moral Relativism?
Homework: The Nuremberg Trials
Consider the following case.
At the end of World War II, in 1945, all captured major German war criminals were tried for “crimes against humanity” (also described as “violations of international law” or “crimes contrary to the elementary dictates of humanity”) in what are termed the Nuremberg Trials. For the trial to take place at all, there was a basic question in philosophy of law that had to be answered. As German law had been changed by the Nazis to allow for theft, exploitation, a war of aggression, and the murder of millions of people, it was of course not possible to find the defendants guilty of German law.
The Judges assumed that the German generals had violated rules of a “higher law” applicable at all times and places, that is, Natural Law.
Do you think this decision was just? Or was it illegal to reject the argument that the German generals had done nothing wrong, as they were acting within the law?
(For discussion see section 3.1.1 in Finnis, “Natural Law Theories.” http://plato.stanford.edu/entries/natural-law-theories/
Nazis at the Nuremberg trials.
posted by G. Roche | 6:22 PM
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