Front Page Titles (by Subject) CHAPTER II: The Natural Law in the Age of Scholasticism - The Natural Law: A Study in Legal and Social History and Philosophy
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER II: The Natural Law in the Age of Scholasticism - Heinrich Rommen, The Natural Law: A Study in Legal and Social History and Philosophy 
The Natural Law: A Study in Legal and Social History and Philosophy, trans. Thomas R. Hanley. Introduction and Bibliography by Russell Hittinger (Indianapolis: Liberty Fund 1998).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
The Natural Law in the Age of Scholasticism
A new philosophy and a new world order did not follow at once upon the entrance of the Christian faith into the ancient world, into a sociocultural complex that was in process of dissolution and was addicted to somber mystical beliefs and practices. Indeed, precisely because of the advancing disintegration, or rather decomposition, of ancient society and culture, a considerable number of early Christians were eschatologically minded; that is, they were unduly concerned with the supposed imminence of the last things, the end of the world and the second coming of the Lord. At all events and for a variety of reasons, the transforming power of Christian doctrine could at first accomplish little.
Christianity, however, contains three ideas of decisive importance for the present problem: the idea of the supermundane, transcendent, personal God as Lawgiver in the absolute sense, the idea of Christian personality, whose eternal goal transcends the state, the law, and the mores of the polis; and the idea of the Church as the institution charged with the salvation of mankind standing alongside and, in matters of faith and morals, above the will of the state. Such ideas had in the long run to affect the whole problem of natural law: not, indeed, in order to revolutionize it, but to explore it more thoroughly, to strengthen its foundations, and to complete it materially.1
The history of the natural-law idea shows that Christianity took it over at a very early date. Paul, the Apostle of the Gentiles, declares that the natural law is inscribed in the hearts of the heathen, who do not have the Law (of Sinai), and is made known to them through their conscience. It is valid both for pagans and for Jews because it is grounded in nature, in the essence of man. (Cf. Rom. 2:12–16).
The Fathers of the Early Church made use of the Stoic natural law, finding in its principles “seeds of the Word,” to proclaim the Christian doctrine of the personal Creator-God as the Author of the eternal law as well as of the natural moral law which is promulgated in the voice of conscience and in reason. Thus, for instance, we read in St. John Chrysostom (d. 407): “We use not only Scripture but also reason in arguing against the pagans. What is their argument? They say they have no law of conscience, and that there is no law implanted by God in nature. My answer is to question them about their laws concerning marriage, homicide, wills, injuries to others, enacted by their legislators. Perhaps the living have learned from their fathers, and their fathers from their fathers and so on. But go back to the first legislator! From whom did he learn? Was it not by his own conscience and conviction? Nor can it be said that they heard Moses and the prophets, for Gentiles could not hear them. It is evident that they derived their laws from the law which God ingrafted in man from the beginning.”2
The Fathers also took over the Stoic distinction of a primary and a secondary natural law, which they interpreted in a theological sense. They regarded the former as applying to the state of unimpaired nature or innocence, while they assigned the latter, with the coercive authority of the law, with bondage and slavery, to the theological condition of fallen nature. Nature, somehow wounded indeed but not destroyed, is therefore still able fully to recognize the first principles of morality and law. But the conclusions from the first principles, which were also plainly intelligible in the state of unimpaired nature, are now attainable only by means of deductive reasoning, since the practical reason is also weakened. Accordingly law takes on a harsh, compulsory character, and the state bears a sword. But the state as such was not regarded by the Fathers as some sort of consequence of sin. An age ignorant of tradition has been able to take such a view of the state only on the basis of patristic texts torn from their context and because of a want of understanding of the mental outlook of the Fathers.
The Fathers did not attempt to construct a system of ethics and jurisprudence. Their speculative thinking was wholly taken up with elucidating the truths of faith, which were in danger of being swamped in the upsurge of pseudomystical doctrines characteristic of the numerous mystery cults of declining antiquity. In addition, their heavy pastoral duties in the period of persecutions, organization, and evangelization left them little leisure for thorough theoretical treatment of questions of moral and legal philosophy.
St. Augustine (d. 430), it is true, forms an exception, and a very brilliant one. In his extremely fertile mind the ideas of ancient philosophy came once again to life and were worked into the new Christian mentality. His talents and the struggles against the Pelagian and Manichaean heresies, as well as the shattering experience of the breakdown of the Roman Empire, of the earthly city, brought ethico-legal problems home to the great bishop of Hippo.
For Augustine the substantial ideas, which Plato had conceived of as dwelling in a heavenly abode, became thoughts of God. The impersonal world reason of the Stoics became the personal, all-wise and all-powerful God. The purely deistic Nous of Aristotle became the Creator-God who transcends the world, but who continually sustains it through His omnipotence, directs it through His providence, and governs it according to His eternal law. This eternal law was for Augustine identical with the supreme reason and eternal truth, with the reason of God Himself, according to whose laws the inner life and external activity of God proceed and are governed. God’s reason is order, and His law rules this ontological order, the order of being, of essences and values. But since this norm is identical with the immutable, immanent nature of God, it does not stand above Him; it is connatural to Him, and it is as unchangeable as He. No power, no chance event, not even the complete collapse of all things can alter it. No obscure, occult fate is any longer enthroned, as in ancient thought, above the personal God.
Through this law God, so far as He produces external effects, directs, guides, and sustains the universe. God, supreme reason, unchangeable being and omnipotent will: this is oneness in its highest form. But the natural moral law and its component part, the ius naturale, is precisely this divine law with reference to man, so far as the latter participates in the divine law. The eternal law dwells as blind necessity in irrational nature. As oughtness, as norm of free moral activity, it is inscribed in the heart of man, a rational and free being. It appears in the moral, rational nature of man; it is written into the rational soul. There is no soul, however corrupt it may be, in whose conscience God does not speak, if only it is still capable of rational thought. There are human actions, consequently, which are in themselves good or bad. Bad acts are not qualified as such by force of law, but because they are such in themselves: because they constitute a disturbance of the natural order. Thereupon, because they are such, the lawmaker prohibits them under threat of punishment, which thereby obtains its moral justification. Not the will of the earthly lawgiver, but variance with natural reason is the ground of the intrinsic immorality of determinate actions.
The doctrine of natural law was transmitted to the golden age of Scholasticism not only in the works of the Church Fathers but also through the study of Roman law and through the development of canon law. The classical authors of the Corpus iuris civilis, as has been seen, stood in close contact with natural-law thinking. It is not merely in passing that we meet with the natural law in their writings: the natural law is there pronounced valid, unconditionally binding law. Considerably greater, however, was the influence of canon law in the form of Gratian’s Decretum (cir. 1148), especially since during the first period of the flowering of Scholasticism the study of Roman law by theologians was frowned upon and even, for a time, prohibited. Gratian distinguished between ius naturale and the mores. The ius naturale, which is contained in the Law (i.e., the Decalogue) and the Gospel, is of divine origin. It resides in human nature, it is alike in all men, and it has force independently of human statute. Natural rights and duties may indeed have to be more closely defined by positive law, but they stand as a norm and rule above the positive laws. To Gratian the latter were, like customary law or mores, liable to change according to time, place, and people. In short, Gratian merely set forth what tradition had handed down.
As the great philosophical movement of the Middle Ages, Scholasticism,3 approached its peak, the natural-law doctrine attained its most masterly expression. It was carried to speculative heights which have never been surpassed in the centuries that followed. Since then the doctrine of natural law has never wholly perished. Even though it might be neglected in the official academic philosophy which has been dominant in the chairs of the secular universities, and even though at the close of the nineteenth century and at the opening of the twentieth century jurisprudence might pronounce it dead, the natural-law doctrine has ever found a home and tender care among the adherents of the philosophia perennis. These have preserved it even throughout the decades in which legal positivism held fullest sway. Moreover, they carried it over, as Christian natural law, into an environment that is once again more favorable to the idea of natural law. For World War I and its consequences, to say nothing of World War II and its effects (which promise to be still more fateful), have brought men to recognize more and more openly the questionableness of a philosophy without metaphysics, of an epistemology without certainty of truth, of a jurisprudence without an idea of right.
The history of the natural-law idea exhibits a uniform doctrinal development from the first Scholastics down to the able leaders of the scholastic revival of recent times. Its two culminating points were the synthesis of St. Thomas Aquinas and, following the heaviest assault made inside Scholasticism by the Occamists on the idea of natural law, the work of Vittoria, Bellarmine, Suarez, Vasquez, and De Soto (to mention only the most distinguished of the Late Scholastics). And the period after World War I again produced more understanding and esteem for a uniform doctrinal development that has been substantially independent of fashionable philosophies and of a jurisprudence with special sociological or political ties.
Scholasticism has dealt exhaustively with the problem of natural law. Not one of its exponents has failed to treat of the natural law, either in general in connection with the discussion of the virtues or in particular under such headings as De legibus or De iure et iustitia. And with the lex naturalis they handled, though not always with the aid of special distinctions, the ius naturale and ius gentium in the sense of the traditional formulas of Roman law. This holds true from Alexander of Hales to Thomas Aquinas, and thence down to the great masters of Late Scholasticism. It further holds good for the theologians and philosophers of the philosophia perennis, whether they were contemporaries of Pufendorf and Thomasius or of Savigny, down to the increasingly esteemed representatives of the scholastic revival which set in at the close of the nineteenth century.
‡In following the doctrinal development it is worthy of note that the antithesis of lex-ratio and lex-voluntas, applying here in the setting of theological speculation and in general to the lex naturalis inclusive of the natural law in the stricter sense, coincided structurally with the doctrines of the respective thinkers concerning God. But it is also noteworthy that later, when the natural-law doctrine had been severed from its theological moorings and hence secularized, the same thought patterns repeated themselves. Now, however, they were detached from the medieval form of Summa and applied solely to law in the narrower sense. The result has been that natural law is the consequence of the doctrines of the priority of the intellect over the will (law is reason) in both God and man, of the knowability of the essences of things and their essential order, their metaphysical being and the ordered hierarchy of values. Positivism, on the other hand, is the consequence of the doctrine of the primacy of the will with respect to the intellect in both theology and human psychology. Besides, voluntas here means more than mere will: it denotes passion, irrational appetite, and so on. Positivism signifies the renouncing of all efforts to know the essences of things (nominalism), the repudiation of the metaphysics of hierarchized being and value. Accordingly it is also found in the same conceptual pattern in the thinking of the nineteenth and twentieth centuries, even though it is concealed under different names.
Relativism in ethics, legal positivism, the theory of will in public and international law, nominalism and agnosticism in epistemology and metaphysics form down to the present a united front with the mysticism of a biological positivism appearing in natural-law dress. On the other side stands the conviction of unalterable principles of morality and law, of the idea of right as object of a philosophy of right, of the natural law, of the possibility of knowing the nature of things, of objective values and an ultimate unity of being and oughtness as well as the possibility of a true theodicy, or natural theology. And this antithesis continues on, in an ever more acute form, into the domain of constitutional theory and practice. The powerful position, in Anglo-Saxon countries, of the judiciary which understands and interprets (functions of the intellect) in contrast to the enactment of law through the will of the legislature rests ultimately upon the philosophical view that law is reason, not will. This means that right is discernible in the nature of the case or lies in the legal institution regulated by law, not in the will of the legislator: not, that is to say, in the wording of the law representing such a will or command. Such formulas as those found in the administration of justice in Anglo-Saxon countries (especially in the United States), where formal natural-law thinking has never disappeared among judges, are continually recurring even today.4
It was not with St. Anselm of Canterbury (1033–1109), often called the first of the Schoolmen, that Scholasticism began to concern itself more seriously with the natural law, but rather with the first great author of a Summa, Alexander of Hales (d. 1245). Deeper interest in it thus arose first and foremost from the philosophical preoccupation with laying a solid foundation for ethics, for law and the social forms of family and state, for a doctrine of society and the state. This interest was considerably heightened, however, in connection with the exegesis of certain passages in the Old Testament.
That is, the thesis of the immutability of the lex naturalis and ius naturale presupposes the intrinsic immorality and unlawfulness of certain actions, and it consequently excludes any dispensation from the norms of the lex naturalis. But such a position seemed to conflict with some Old Testament stories, whose moral tone and authority made it necessary to conclude that a dispensation is nevertheless possible. Such cases are, for instance, Yahweh’s command to Abraham to offer up his son Isaac in sacrifice (Gen. 22:2); the polygamy of the patriarchs; God’s instruction to the prophet Osee: “Go, take thee a wife of fornications” (Osee 1:2; cf. also ibid., 3:1); the injunction laid upon the Jews or permission accorded them at the time of the Exodus to take away with them vessels of silver and gold as well as raiment lent to them by the Egyptians (Exod. 3:21 f.; 11:2 f.; 12:35 f.); divorce openly allowed to husbands in the Mosaic legislation (Deut. 24:1–4); the reply of the angel Raphael to Tobias’ question about his identity: “I am Azarias the son of the great Ananias” (Tob. 5:18), which seems materially and formally to amount to a lie. All these cases called for a thorough discussion, from the theological and exegetical angles, of the question of the immutability, i.e., the essential nature, of the lex naturalis. But at the same time they were a warning not to be too doctrinaire in determining the content of the natural law.
Alexander of Hales, falling back upon St. Augustine’s teaching, hit upon a beautiful figure: the eternal law is the seal, and the natural moral law is its impression in the rational nature of man, which in turn is an image of God. Now, the laws of thought, as unchangeable norms of thinking, must govern speculative reason, the understanding, if the latter is to serve the purpose of its nature, the perception of truth; and such laws are immediately evident and certain. In the same way there exist for willing and acting in the domain of the practical reason supreme moral principles which are equally evident and sure. Thus every deed and action is moral only when it is performed in accordance with these principles. Moreover, this immanent natural moral law can never be destroyed. Yet the further conclusions from the supreme principles may well become obscured in individuals through the working of the passions and through a turning away from God, the Author of the natural law. To explain this possibility Alexander borrows a figure from Plato: the sun ever remains the same, yet darkness ensues when clouds pass before the sun or when, during a solar eclipse, the moon prevents the sun’s light from reaching the earth.
Although he held fast to the immutability of the first principles, Alexander of Hales at first sought to explain the changeableness of the further conclusions, observable in the Old Testament as well as elsewhere, by adopting the Stoic distinction, transmitted in the writings of the Church Fathers, of a primary natural law anterior to original sin and of a secondary one subsequent to original sin. The status naturae integrae, the theological state of nature preceding original sin, would in itself, as St. Augustine had already taught, have produced life in society, marriage, the family, and the political community. (This state of nature accordingly differs considerably from the individualistic state of nature, which indeed was directly opposed to the status civilis.) But had this state of nature been realized, community of goods, equal personal freedom, and a legal order unaccompanied by the use of force would have prevailed. Only in the state of fallen nature, after original sin, did private property, restrictions upon liberty, the coercive power of the state, and personal inequality arise. But the natural law underwent thereby no alteration; for even now the basic norm, men must live peacefully with one another, remains in force. Hence only the application of this norm has changed, not the norm itself. The secondary natural law, the second table of the Decalogue (i.e., the last seven of the Ten Commandments), is a consequence of original sin.5
But this theory had to be completely abandoned. For this type of argument was unable to furnish what it was intended to provide, namely, an ethico-philosophical explanation of the actions apparently contrary to the natural moral law recorded in the Old Testament. And so Alexander of Hales had recourse, as did St. Albert the Great and other contemporaries, to the doctrine of the primacy of the will in God as well as to God’s sovereign dominion that transcends all laws. These thinkers perceived clearly enough that in this way everything again became uncertain, but they were unable to prevent this outcome. For an adequate solution of the problem the genius of a Thomas Aquinas was needed.
St. Thomas (1225–74) starts from the likeness of human nature to the divine nature. Understanding and free will are the most essential marks that distinguish man from every other earthly creature. It is precisely through them that man is in a special degree the image and likeness of God. Man’s intellect and free will constitute the closest image of God in the material universe, His creation. St. Thomas, indeed, is fond of setting out from the notion of analogy of being: namely, that all created being, though of an altogether different kind from the divine Being, is an image of the latter and a participation in it—from merely inanimate being of inorganic nature up to man, whom God created after His own image.
Here teleology, the doctrine of ends or final causes, enters the scene.6 The essences of things, which are exemplifications of the ideas conceived by the divine intellect, constitute at the same time the end or goal of the things themselves. The perfection or fulfillment of the things is their essence: formal cause and end are one (causa finalis is ultimately identical with causa formalis). Accordingly in the essential nature of the created world, as it came forth in conformity with the will of the Creator, are imbedded also the norms of its being. In the essential nature is likewise founded essential oughtness, the eternal law, which is God’s wisdom so far as it directs and governs the world as first cause of all acts of rational creatures and of all movements of irrational beings. The eternal law, then, is the governance of the world through God’s will in accordance with His wisdom. This law is thus the order of this world. Creatures fulfill this law in conformity with their nature as it has been fashioned by God: from the lifeless and inorganic realm of creation, through the living but dumb creatures, to the rational and free beings.
The eternal law, therefore, comprises several elements. First, it includes what today we call the laws of the natural sciences: the laws of movement taken generally, in accordance with which the stars in the heavens and the stones upon earth are moved from without. Secondly, it embraces what in living creatures, plants and animals, we term the laws of their evolution and growth, the laws of reaction to external influences or stimuli, instinct, and the like, which, however, involve movement from within, after the manner of an entelechy.7 Thirdly, it contains the laws by virtue of which man, as a rational and free being, knows and wills, hence the laws of theoretical and practical reason. Since man is quodammodo omnia—herein consists his likeness to God, who is eminenter omnia—he is wholly subject to the eternal law in his material, sentient, and rational being, but ever in keeping with his essence. Oughtness, not blind compulsion and necessity, characterizes the way man obeys the law. Hence for man, as a free rational being, the eternal law becomes the natural moral law. Man must (i.e., ought to) thus both will and achieve the perfecting or fulfillment of the potentialities of his being which God has put into his nature, as he perceives them in virtue of his reason and becomes conscious of them.
Furthermore, this natural moral law is alone law in the proper sense: a norm which ought to be obeyed, not one that must be blindly obeyed. Our modern laws of nature are law only in a metaphorical sense. Law, indeed, is a norm and measure for acts which rational creatures alone are capable of. Its basic norm may be simply stated: Act in conformity with your rational nature. For rational nature, known through self-consciousness or reflex thinking, constitutes the ontological criterion of man’s oughtness. Through its free realization he becomes a man, a free rational being. God’s wisdom and knowledge as well as His will stand revealed in the essential idea of man.
St. Thomas reaches the same conclusion from still another consideration, from the metaphysical notion of goodness.8 Reason is the first and proximate rule for judging the moral quality of an action, which is moral precisely because it is inherently conformable to reason and nature, or immoral because it is at variance therewith. By what does reason gauge, however, whether an action or object is suited to the essential nature? St. Thomas gives the following explanation. Every agent, supposing that he is actually in possession of reason and freedom of will, acts for an end or purpose. The moving principle, the end, is thereby perceived and willed as something good. But a thing is an end only so far as it is a good, whose acquisition makes it worth one’s while to act. Goodness induces one to act. Goodness is, in final analysis, that which is in itself worth desiring and striving for. As cognition is directed to being, so the will is directed to goodness. And just as the intellect knows the thing so far as it has being, so the will lays hold of the thing, perceived as desirable or worth striving after, as good. All being is good. A being is a good so far as it appears suited to the essential nature. Now the supreme principles of speculative reason (the principle of contradiction, and so on, the immediately evident, axiomatic laws of thought) guide the intellect in its thinking. In the same way St. Thomas recognizes a supreme principle, a law, for the practical reason, for the will: good is to be done. The very same being which the theoretical reason knows as being and in which it apprehends truth, the agreement of knowledge with being, appears to the will and the practical reason as a good. That which is, also ought to be. Being, truth, and goodness are convertible. The law is truth; it wills what is good; and it presupposes knowledge of being.9
Good is to be done: such is the supreme commandment of the natural moral law. The highest and basic norm of the natural law in the narrow sense, then, may be stated thus: Justice is to be done. Yet this principle is altogether general. It needs still to be determined to what extent the object striven for by means of a concrete action is a true good. This is done more or less with the aid of a syllogism (which, of course, is not worked out in every case by concrete reasoning): Good is to be done; this action is good, it strives after a good; it is therefore to be performed. Good is that which corresponds to the essential nature. The being of a thing also reveals its purpose in the order of creation, and in its perfect fulfillment it is likewise the end or goal of its growth and development. The essential nature is thus the measure. What corresponds to it is good; what is contrary to it is bad. The measure of goodness, consequently, is the essential idea of a thing and the proportionateness thereto of actions and of other things. That is, “Good is to be done” means the same as “Realize your essential nature.” Moreover, since this essential nature issued from God’s creative will and wisdom in both its existence and its quiddity, the principle continues: “You thereby realize the will of God, which is truly manifested to you in the knowledge of your essential nature.” The same being is truth to the theoretical reason, and goodness to the practical reason.10
The train of thought thereupon widens. It follows that there are some actions which, because they correspond to the essential nature and its end, are in themselves good, moral, just; and that there are others which, because they are at variance therewith, are in themselves bad, immoral, unjust.11 At any rate, this is true on the assumption that both in God and in man the intellect, not the will, holds the primacy. For a natural moral law as an immutable basic norm, and the essential nature as a valid measure of what is moral and just, are possible only when this essence is itself unalterable. This presupposes, however, that the essential nature owes its idea, its quiddity, and its existence to the unchangeable essence of God Himself, of which they are reflections. “If, too, human nature is the immediate measure of moral goodness, it can be the norm of unalterable moral judgments only insofar as it itself embodies the idea of man as this rests from all eternity in the divine mind. But the ideas of things in the divine mind are, in their content, nothing else than the images through which God knows His own essence as imitable. This is true also of the idea of man.”12
The divine essence and, in one and the same act, the divine knowledge thereof and the creative will of God, likewise thereby informed in one and the same act, are (or rather, is) the basis for the essential nature and its immutability. “That God of necessity enacts and cannot alter that law which we call the natural law comes merely from the fact that His will cannot do away with His most perfect essence, that God cannot be at variance with Himself and cannot, as the Apostle says, deny Himself” (Kleutgen). This is the fundamental reason for rejecting moral and legal positivism. The will is not the law; on the contrary, it can only be right law when it is guided even in God by reason and intellect. “But to say that justice depends upon mere will is to say that the divine will does not proceed according to the order of wisdom, which is blasphemy.”13
Good is to be done, evil is to be avoided: this basic norm of the natural moral law has thus the character of an axiom. The real question, however, is that of its application to the concrete case. As another expression for the first rule of the lex naturalis, as general principles known to all, St. Thomas mentions love of God and of one’s neighbor. Man knows other principles only through deductive reason, yet not with altogether unerring certitude. For, in contrast with the speculative reason, the knowledge of the practical reason is more severely menaced in its clarity by the passions, by sinful inclinations. These conclusions from principles are for St. Thomas, as he explains in a searching inquiry into the problem, identical with the Decalogue, or Ten Commandments. The Decalogue contains the most essential conclusions for the simple reason that its precepts do not result from an arbitrary arrangement made by God, but from the fundamental distinction of good and evil. The first table of the Decalogue (first three Commandments) embraces the moral norms that relate to the worship of God; these required a special promulgation, in the view of St. Thomas, because they are not so evident as the laws found in the second table. The latter (the last seven Commandments), which are derived from the mutual relations among men and from the essence and goal of human nature, are, on the other hand, known more readily and with greater evidence. Human society in all its groupings ought to be built up in accordance with justice.
The Decalogue (second table) presents the norms that follow from the essential relationships which in their turn are given in the essential nature of man as a rational, free, and social being. These precepts, as norms with a material content, protect the family and parental authority (Fourth Commandment), human life (Fifth Commandment), the person in the capital sense of husband and wife (Sixth Commandment), property (Seventh Commandment), and honor (Eighth Commandment); lastly they forbid (Ninth and Tenth Commandments) inordinate, illicit longing for those goods which are especially exposed to covetousness and, moreover, whose wrongful appropriation does not arouse that natural abhorrence which infractions of the Fourth, Fifth, and Eighth Commandments do.14 St. Thomas regards it as self-evident that the further deductions from these conclusions do not possess the same evidence, since they necessarily lose, in favor of particular prescriptions, the universal character required for evidence. Furthermore, they are not so unmistakably recognizable that errors about them may not arise in the minds of individuals as well as among groups.15 Moreover, they do not share in the prerogative of immutability enjoyed by the principia communissima as well as by the conclusions which make up the contents of the Decalogue.
For instance, from the nature of the legal institution, from the agreement with reason and from the right of property, which in the general sense is protected by the Seventh Commandment, it follows that goods held in trust should be restored to their owner. Nevertheless, as St. Thomas points out, such goods may be withheld from their owner in case they are to be used for treasonable purposes.16 Here the further conclusion does not hold good, although the universal norm of acting according to reason, the suum cuique, continues absolutely to govern the case. Some “matters cannot be the subject of judgment without much consideration of the various circumstances. Not all are able to do this carefully, but only those who are wise.”17 “In the very application of the universal principle to some particular case a mistake can occur through an inadequate or false deduction, or by reason of some false assumption”;18 and in the matter of its secondary precepts, “the natural law can be blotted out from the human heart, either by evil persuasions … or by vicious customs and corrupt habits.”19 Therein, moreover, practical reason differs significantly from theoretical reason, which is less subject to such disturbing influences.
This does not, then, mean merely that there is in St. Thomas no trace whatever of the extravagances of the rationalistic natural law current in the seventeenth and eighteenth centuries, since according to him only the Decalogue belongs to the contents of the natural law. It further means that the lex naturalis or ius naturale does not render positive laws superfluous, but actually calls for them. St. Thomas gives scarcely any attention to the doctrine of a state of nature, because he has no need of the latter for establishing the natural law. Now, the farther removed the conclusions are from the principia communissima, the more numerous and varied become the possible decisions. Hence a positive law must determine, must decide with greater exactness for concrete cases, what the correct application and conclusion are. There is all the more need of such determination because human nature, deprived and hence wounded somehow (though not destroyed or depraved) by original sin,20 must be—and in conformity with its inner goal also ought to be—constrained to good and restrained from evil. Self-education or addiction to goodness does not pertain to man as such. Consequently men stand in need of a clearly prescribed and adequately sanctioned system of norms, which emanate from an authority and power that in their inmost reality serve justice, and in the individual serve to perfect the essential nature of man. They are therefore ethical. St. Thomas is no romantic optimist like Rousseau.
Furthermore, it is precisely the object of the positive law to render the citizen virtuous. It is not merely a question of maintaining order, or external peace; the law should rather act as a medium of popular education to transform those who live under common legal institutions into perfect citizens. For this very reason positive norms, determinate coercive measures, and a more exact definition of the circumstances in which the general principle shall be applied, are imperative. Thus the definition of what theft consists in is given with the lawfulness of private property. But the punishment which should follow theft, if arbitrariness is to be avoided, requires, with respect to the procedural verification of the theft as well as to the sentence and its execution, exact legal provisions which vary with times, cultures, and individual peoples.
Here, in connection with the positive law which is therefore always “something pertaining to reason,” St. Thomas arrives at the nature of law. It has to do essentially with community life. On the other hand, it is distinguished from and contrasted with social ethics through its being directed to external order. The law wills that man conduct himself in such and such a manner; it concerns the external forum (vis directiva). It is the norm to be enforced: compulsion (vis coactiva) is proper to law, not to morality.
From this inner connection of every positive law with the lex naturalis St. Thomas rightly concludes that the positive law may not conflict with the natural law. So far as it is in conflict with the latter, i.e., with the unchangeable norms, it is not law at all and cannot bind in conscience. For the force and significance of the law consist precisely in the obligation in conscience. Yet it may at times be right to obey even an unjust positive law (one that is not against the natural law: e.g., a law that imposes an unjust tax burden), because the higher natural-law norm enjoins in individual cases the sacrifice of a particular good to a more general good. For instance, the general goods of security under law and the external order of peace constitute a higher value than does the individual right to just treatment in the levying of taxes. It is consequently not the unjust law that binds, but the higher norm of peace and of maintenance of the community.
In this fashion, then, all law, down to and inclusive of its positive individualization, is connected by means of the natural moral law with the eternal law and lives on the latter. Thus rectitudo practica, reasonableness or the relation to human nature still is, and ought to be, the essential element even in the positive law. For St. Thomas the law is somehow reason, not mere arbitrary will.21 The natural law remains the measure of the positive law. But this position is intimately connected with the doctrine of the immutability of the natural law and the enduring essential nature of man, as well as with the primacy of the intellect over the will in both God and man.
But can God, by His absolute power, dispense from the precepts of the Decalogue? St. Thomas unqualifiedly answers that the Ten Commandments admit of no dispensation whatever. “Precepts admit of dispensation when there occurs a particular case in which, if the letter of the law be observed, the intention of the lawgiver is frustrated. Now the intention of every lawgiver is directed first and chiefly to the common good; secondly, to the order of justice and virtue, whereby the common good is preserved and attained. If, therefore, there be any precepts which contain the very preservation of the common good, or the very order of justice and virtue, such precepts contain the intention of the lawgiver, and therefore are indispensable. …
“Now the precepts of the Decalogue contain the very intention of the lawgiver, who is God. For the precepts of the first table, which direct us to God, contain the very order to the common and final good, which is God; while the precepts of the second table contain the order of justice to be observed among men, namely, that nothing undue be done to anyone, and that each one be given his due; for it is in this sense that we are to take the precepts of the Decalogue. Consequently the precepts of the Decalogue admit of no dispensation whatever.”22
‡But what of the Old Testament passages that appear to involve divine dispensations from the natural law? In reply, St. Thomas notes the sovereign dominion of God over men and over concrete human actions and institutions: “The precepts of the Decalogue, as to the notion of justice which they contain, are unchangeable; but as to any determination by application to individual actions—for instance, that this or that be murder, theft, or adultery, or not—in this point they admit of change; sometimes by divine authority alone, namely, in such matters as are exclusively of divine institution, as marriage and the like; sometimes also by human authority, namely, in such matters as are subject to human jurisdiction; for in this respect men stand in the place of God, though not in all respects.”23
With Duns Scotus (d. cir. 1308), and with the principle of the primacy of the will over the intellect so much emphasized by him, there began inside moral philosophy a train of thought which in later centuries would recur in secularized form in the domain of legal philosophy. The principle that law is will would be referred in legal positivism, as well as in the theory of will in jurisprudence, to the earthly lawmaker (self-obligation).
For Duns Scotus morality depends on the will of God. A thing is good not because it corresponds to the nature of God or, analogically, to the nature of man, but because God so wills. Hence the lex naturalis could be other than it is even materially or as to content, because it has no intrinsic connection with God’s essence, which is self-conscious in His intellect. For Scotus, therefore, the laws of the second table of the Decalogue were no longer unalterable. The crux of theology, namely, the problem of the apparent dispensations from the natural law mentioned in the Old Testament and thus seemingly granted by God (the command to sacrifice Isaac, Raphael’s apparent lie, Osee’s alleged adultery, the polygamy of the patriarchs, and so on), was now readily solved.24 Yet St. Thomas, too, had been able to solve such cases. Now, however, an evolution set in which, in the doctrine of William of Occam (d. cir. 1349) on the natural moral law, would lead to pure moral positivism, indeed to nihilism.
The will is the nobler faculty; the intellect is but the ministering torch-bearer of the will, which is the master. Between God’s essence and that of man there exists, apart from the fact of creation, no inherent connection, no analogy of being. Hence, too, there exists no unchangeable moral order grounded in the nature of things, in the ordered universe of being and value. As all being is founded on the mere absolute will of God without participation in His essence, so all oughtness or obligation rests solely on the same absolute will. Oughtness is without foundation in reality, just as the universals are merely vocal utterances (flatus vocis) and not mental images of the necessary being of the ideas in God. In this way Occam arrived at a heightened supernaturalism, but only to deprive almost completely the natural order of its value.
For Occam the natural moral law is positive law, divine will. An action is not good because of its suitableness to the essential nature of man, wherein God’s archetypal idea of man is represented according to being and oughtness, but because God so wills. God’s will could also have willed and decreed the precise opposite, which would then possess the same binding force as that which is now valid—which, indeed, has validity only as long as God’s absolute will so determines. Law is will, pure will without any foundation in reality, without foundation in the essential nature of things. Thus, too, sin no longer contains any intrinsic element of immorality, or what is unjust, any inner element of injustice; it is an external offense against the will of God.
As a result, Occam, who sees only individual phenomena, not universals, the concepts of essences, can likewise admit no teleological orientation toward God is inherent in all creation and especially in man; or at least he cannot grant that it can be known. The unity of being, truth, and goodness does not exist for him. Moral goodness consists in mere external agreement with God’s absolute will, which, subject only to His arbitrary decree, can always change. To such an extent were God’s omnipotence and free will extolled that much subtle speculation was devoted to the question of whether God can, through His absolute power, will hatred of Himself; a question which Occam and many of his disciples answered in the affirmative. Man sins, therefore, because and only so far as a positive law, by which he is bound, stands over him. God, on the other hand, cannot sin because no law stands above Him, not because it is repugnant to His holiness. Hence there exists no unchangeable lex naturalis, no natural law that inwardly governs the positive law. Positive law and natural law, which indeed is also positive law, stand likewise in no inner relation to each other. The identity of this thought structure with The Prince of Machiavelli, with the Leviathan of Hobbes, and with the theory of will of modern positivism (the will of the absolute sovereign is law, because no higher norm stands above him) is here quite obvious.25
The dispute over whether the intellect of the will is the nobler faculty had, in the moral positivism of Occam’s school, split the scholastic doctrine of natural law to its very core. The scholastic revival of the age of the Protestant Revolt, however, successfully understood the speculative rehabilitation of the lex naturalis and ius naturale on an ontological basis, just as it also went back to St. Thomas in its theology.
The philosophy of law received special and thoroughgoing treatment at the hands of the Late Scholastics. The outstanding figures in this field were, to mention but a few of the many important scholars, the Spaniards Vittoria (d. 1546), Suarez (1548–1617) and Vasquez (d. 1604), and the Italian St. Robert Bellarmine (1542–1621).
The reasons for this more intensive preoccupation with the problems of the natural moral law and philosophy of law were many. To begin with the doctrinal ones, Occamism had wrought havoc in theology as well as in metaphysics and ethics. Reason had been rendered barren. The so-called Reformers had drawn the ultimate conclusions from Occamism with respect to theology. Contemptuous of reason, they had arrived at a pregnant voluntarism in theology as well as at the doctrine of natura deleta, of nature as destroyed by original sin. Thereby the traditional natural law became speculatively impossible.26 The spirit of the Renaissance, too, had made use of Occam’s separation of faith and knowledge to emancipate secular thought or worldly wisdom, and to place it in opposition to sacred learning. Pomponazzi (1462–1530), after the manner of the Averroists, had spoken of a twofold truth: what is true in philosophy may be false in theology, and vice versa. Law as such was separated in a positivist fashion from the eternal law when the natural moral law had been made into a positive act of God’s absolute will. Machiavelli (1469–1527) had secularized this view and had drawn the consequences for politics. The absolute power of God in Occam’s doctrine became at the hands of Thomas Hobbes the absolute sovereignty of the king.
But there were also practical reasons. Not only in idea, but also in actual fact the orbis christianus had ceased to be “the world.” The Spanish and Portuguese discoveries had brought to light the East Indies and America, and the gentes dwelling there. This event raised new and great problems for the ius gentium. The first and extremely important treatise on international law, the work of Francis de Vittoria, bears the title, De bello et de Indis. Besides, the enormous expansion of trade in the early period of modern capitalism raised new moral problems for the Late Scholastics, as did also the process of political transformation from feudal society to a world of states ruled by absolute sovereigns. Thus it came about that nearly every scholar of the time composed treatises entitled De legibus and De iure et iustitia.
The task of the Late Scholastics was, then, as Petavius so well pointed out, to work out further, to develop fully and completely, what the thinkers of the golden age of Scholasticism, in particular St. Thomas Aquinas, had taught implicitly and in outline. They saw and carried out this task in the case of the natural-law doctrine, too. The decline of the doctrine of natural law set in only after them. So competent a scholar as Joseph Kohler has held that “if, then, a natural law is to be fashioned today, it must be attached to these Spaniards of the age of Spain’s greatness, not to Hugo Grotius.”
In their theology and psychology these thinkers of Late Scholasticism restored to honor the Thomistic doctrine of the divine essence as source of the entire moral order and, with it, that of the primacy of the intellect over the will. The natural law is grounded in essence and reason, not in mere absolute will, in God’s absolute power. God’s omnipotence is subordinated, humanly speaking of course, to the decrees of His wisdom. Like these, therefore, the essences of things are also unchangeable. Potentia ordinata is that power in virtue of which God has created, among all possible worlds and orders of being, precisely the present one. Absolute power, on the other hand, is the power through which He can do everything that is not in itself contradictory. Hence God cannot cooperate in human sinning, and still less can He be its total cause. The Occamist question of whether God could will hatred of Himself involves an intrinsic impossibility.
In short, the intellect grasps the pure essence of a thing, its quiddity or whatness, and prescinds from actual existence. The will, on the contrary, can lay hold of a being only as something existing or to be brought into existence; it is directed to the particular, to the individual. Intellectual apprehension is more immaterial; it grasps essential being. The will in itself is blind, in contrast to the intellect which apprehends the object immediately. The will lays hold of the object only when the latter is presented by the intellect as a known and valuable good. On this depends the question of the possibility of an immutable natural law. Positivism in law and ethics corresponds to agnosticism in epistemology.
Like the idea of God, the idea of law was also purged of Occamist positivism. For the Late Scholastics the law belongs more to the reason than to the will. The will, it is true, moves all faculties to action. Yet it is blind: to arrange and direct are the work of reason. The will is related to the intellect as a queen is to a king. The will, the queen, manifests her desires to the king and moves him. But the intellect, the king, enacts the law (Bellarmine).
The lex naturalis, therefore, is not related to the will of God in a simple positivist manner. It is related to God’s essence, to His reason, whence emanates the eternal law whereof in turn the natural law is, and ultimately every moral and positive law should be, a participation. The natural law has for its proximate principle the essential nature of man. It is a judgment of reason concerning the conformity of moral action and nature. But at the same time it shows that what is good ought also to be done. God, who fashioned the essential nature of man with reason and will, is simultaneously recognized as Lawgiver, too. To state it in another way, what the eternal law is in God actively, i.e., as will in accordance with His essence, that the natural law is in man passively: a law flowing from his essence and imbedded in it. The mere light of natural reason that indicates the agreement or disagreement of an action with man’s essential nature (Vasquez) is insufficient by itself. There must in addition be the rational insight that an act in accord with reason and nature is also God’s will (Suarez, Bellarmine).
This controversy had a still deeper significance. Suarez and Bellarmine wished to stress the inner oneness of natural law and eternal law. They wished to do this, moreover, by way of the recognition of God as the Lawgiver who wills that actions correspond to being, to essential nature. Vasquez, the Spanish Augustine, had regarded rational nature, irrespective of the positive will of God, as the primary ground of the obligation to obey the natural law. For him, consequently, since an act of the lawmaker’s will belongs necessarily to the nature of law, the natural law is not properly law in the strict sense: it is not lex praecipiens, merely lex indicans. This view, a very uncommon one among the Late Scholastics,27 assumed great importance in the rationalist doctrine of natural law. Arriaga and Grotius were already teaching, in order fully to bring out its immutability, that the natural law would have force even if there were no God.28 Out of this there developed an autonomy of abstract human reason conditioned by the separation of the eternal law and the natural law, and also the ethico-legal rationalism of the individualistic natural law (a development which, by the way, Suarez had foretold in his controversy with Vasquez). This loosening was thus the signal for the outbreak of a fanatical rationalism in speculation, which was bent upon drawing all possible conclusions from this isolated and, later still, individualistically interpreted pure rational nature. Moreover, such fanaticism lacked all corrective of history as the domain of God’s providential activity. To the rationalistic natural law corresponded Deism in theology.
The natural moral law is therefore a judgment of reason which presents actions as commanded or forbidden by the Author of reason, because the light of reason shows them to be in agreement or disagreement with man’s essential nature; and at the same time reason judges that God wills that which accords with nature: essential being ought to be realized. In its essence and intellectual content the natural law is absolutely dependent upon the divine intellect; in its real existence, upon the divine will.29
In this way, not only was the connection between the eternal law and the natural law maintained for later ages, but, for contemporaries, the true character of law was upheld against the so-called Reformers who belonged to the school of Occam. For the latter saw the natural law exclusively in the words of Scripture. Indeed, with their doctrine of natura deleta they could not even attain to a moral law that is naturally good. Gratian’s formula, ius naturae quod in Evangelio et lege (Decalogue), which was now being misinterpreted, vanished. So, too, did Ulpian’s formula, quod natura omnia animalia docuit. Only now was an elucidation of the ius gentium possible.
The Late Scholastics, like St. Thomas, included the Decalogue, regarded as belonging in its entirety to the lex naturalis, in the contents of the natural moral law. They distinguished in this connection the supreme principle, “Good is to be done, evil avoided,” and equally evident though already less universal principles, which therefore embrace specific kinds of goodness. Such are the following: Give to everyone his due; Worship must be paid to God; Justice must be observed; Agreements must be kept. From these follow by way of deduction additional precepts, which concern individual goods and the institutions that protect them. Thus theft, lying, adultery, and perjury are always forbidden because they are intrinsically evil.
These teachers came to speak of the relationship of the natural law to the positive law mostly in connection with political science, and particularly in reference to the end of the state. Moreover, connected with this problem is the question of the nature of law in relation to morality.
Any positive law which offends against the natural moral law is not a law that is binding in a moral sense, i.e., in conscience. But only those laws are absolutely null and void that run counter to the prohibitive natural law. Therefore a law that would positively prescribe murder or perjury would not be a law at all, nor may one obey it. The case where a law is opposed to the affirmative natural law is different. The citizen must put up with encroachment on the part of a government that deals unjustly, e.g., in the matter of taxation, if through resistance the public order, already threatened by the very fact of the unjust law, would be still more gravely menaced. Only such authority as enacts laws which are in conflict with the prohibitive natural law ceases to be authority in the rightful sense and becomes tyranny. Mere power can impose no inner duty of obedience. But this truth has nothing to do with the fact that among the Indians, for instance, laws prevail which are contrary to natural law. For such laws are made by lawgivers and accepted by subjects or members of the community, not because these laws are immoral and bad, but because conscience, darkened through deficient rational insight and troubled by passions, is unable to recognize their inherent badness. Indeed, St. Thomas admitted such a possibility in the case of conclusions from the natural moral law.
Conversely, however, it follows from the fact of natura vulnerata as well as from the ethical character and goal of community life, and of the state in particular, that positive human laws are absolutely necessary for determining the further inferences from the first principles in the interest of a more exact and readily discernible establishment of order and for the setting up of institutions needed for community life. The natural-law prohibition of adultery implies at the same time an affirmation of marriage and of the general norms that are most needed for its functioning as an institution. “Thou shalt not steal” presupposes the institution of private property as pertaining to the natural law; but not, for example, the feudal property arrangements of the Middle Ages or the modern capitalist system. Since the natural law lays down general norms only, it is the function of the positive law to undertake the concrete, detailed regulation of real and personal property and to prescribe the formalities for conveyance of ownership.
The nature of law was likewise explored. As a rule, the Late Scholastics employed the terms lex naturalis and ius naturale as synonyms. But Suarez and Bellarmine, for instance, made a distinction when they expressly declared that violation of the lex naturalis on the part of the Indians by no means constitutes grounds for a just war: hence Christian princes are not justified in subjugating these gentes by alleging their transgression of the lex naturalis. Only an offense against the ius naturale warrants such action. In this respect, indeed, states stand in the same relationship to one another as do persons, and the Indian states are true states in the sense of law. Law, therefore, stands out in the overall picture of the moral realm by reason of its social character, its reference to another (whether person or group). Justice is the virtue which has right (with which law in the technical sense is concerned) for its object. It is essentially directed to one’s fellow man. As commutative justice it has to do with those who are upon an equal footing in the social complex; as legal justice it concerns the rights of authorities or superiors, which it commands subjects to respect; as distributive justice it obliges authorities, in their administrative activity, to give to everyone his right according to his function and merit in the ordered whole. Thus the norms that have to do with the life in common of men and groups (their social units, arrangements, and social functions) are the object of justice. They are thereby law.
These norms constitute natural law insofar as such regulations pertain, as immediately necessary, to the essential nature and essential fulfillment of man in the vita oeconomica (marriage, family, and occupational groups organizing themselves according to social functions in the service of the common good, for the peaceful ordering of the people) and in political life (state and international community). Since these regulations are necessary, their realization, improvement, and maintenance against lawbreakers are enforceable by the public authorities. Law wills that this be done without further ado, not merely because morality demands it. The debitum iustum (ex iustitia) thus differs from what is owed ex pietate or ex gratitudine precisely because gratitude is of its very nature unenforceable: if obtained by force, it ceases to be a moral action at all. Seneca in his day raised the question of why no suit can be brought against an ingrate. Owing to the failure of the ancients to work out this distinction, he did not find the right answer, namely, that gratitude, like pietas, is simply unenforceable. The son who has to be compelled by court action to support his impoverished, incapacitated father fulfills indeed a legal duty, and the state rests satisfied. No one will contend, however, that through this fulfillment by court order he has complied with the moral duty of pietas.
The great accomplishment of the Late Scholastics lay in the domain of the ius gentium. They cleared up, before Grotius, the ambiguous distinctions of Roman law that had crept in during the course of centuries. Ius gentium in the proper sense is not ius naturale, although the precepts of the latter are evidently valid for the ordering of the community of peoples. Thus differentiated, ius gentium is the quasi-positive law of the international community: it is founded upon custom as well as upon treaty agreements. The basic norm of this positive ius gentium is, besides the material principles of the natural law, especially the axiom, pacta sunt servanda. To positive international law belong the doctrines of war, truce and peace, international trade and commercial treaties, and, in addition, the law concerning envoys. But the requirements that a war must be just, and that the community of peoples must establish and foster friendly intercourse, pertain to the natural law.
From this ius gentium (most properly so called), they further distinguished international private law. The latter contains norms regarding legal institutions that are common to nearly all peoples, and hence are closely related to the natural law. Such are the general formal legal institutions touching purchases, leases, promissory notes, contracts, ownership, the family and inheritance. For, despite regulations that differ in detail, all these legal institutions have, among almost all peoples, many things in common over and above their natural-law foundation.
[1.]It is thus correct to speak of a Christian natural law, but solely in the sense in which we use the term Christian philosophy. A Christian philosophy, to adopt the balanced view of Etienne Gilson, is one “which, although keeping the two orders [of reason and the supernatural] formally distinct, nevertheless considers the Christian revelation as an indispensable auxiliary to reason” (The Spirit of Mediaeval Philosophy, trans. by A. H. C. Downes [New York: Charles Scribner’s Sons, 1936], p. 37). See also his Christianity and Philosophy, trans. by Ralph MacDonald, C.S.B. (New York-London: Sheed and Ward, 1939), p. 101. As Johannes Messner has pointed out, “when we speak of a ‘Christian’ natural law, this does not mean that the natural law knowable by us through reason alone is replaced or amplified by one derived from supernatural revelation, but that our knowledge of its existence, its essence and its content is confirmed and clarified through the guidance of reason by faith. … For the Catholic the designation ‘Christian’ natural law further includes the conviction that the Church, in virtue of its divine mission, is the unfaltering guardian and infallible expounder of the same” (Die Soziale Frage [5th ed., Innsbruck-Vienna: Verlagsanstalt Tyrolia, 1938], p. 492).
[2.]Ad pop. Ant., XII, 4 (Migne, PG, Vol. CXXXII), quoted by Stanley Bertke, The Possibility of Invincible Ignorance of the Natural Law. The Catholic University of America Studies in Sacred Theology, No. 58 (Washington, D.C.: Catholic University of America Press, 1941), p. 8, where also (pp. 5–11) the views of the other Church Fathers on the natural law are conveniently presented in summary fashion. Bertke’s study is a real contribution to the whole problem of the natural law.
[3.]Scholasticism, which follows the main lines of Aristotle’s thought, in part “advocates a natural dualism of God and creature, mind and matter, thought and thing, as against monism and pantheism; it defends a moderate realism, as against ultrarealism, nominalism, and conceptualism, in the problem of the universals; it is spiritualistic and not materialistic, experimental and not aprioristic, objectivistic and not subjectivistic; in sense-perception it is presentational and not agnostic or representational or idealistic; concerning intellectual knowledge it defends a moderate rationalism, as against sensism, positivism, and innatism; it is common-sense knowledge critically examined and philosophically vindicated” (Celestine N. Bittle, O. M. Cap., Reality and the Mind [Milwaukee: Bruce Publishing Co., 1936], p. 146).
[4.]Cf. Charles Grove Haines, The Revival of Natural Law Concepts (Cambridge: Harvard University Press, 1930), pp. 104–234; Benjamin Fletcher Wright, Jr., American Interpretations of Natural Law (Cambridge: Harvard University Press, 1931), especially pp. 292–306.
[5.]It may be observed that the common assignment of the first three of the Mosaic Commandments to the first tablet of stone, and of the last seven Commandments to the second tablet, is merely conventional. We simply do not know how the Ten Commandments were distributed on the two stone tablets, as the Bible itself gives no information on the matter. Cf. Louis Hartman, C.SS.R., “The Enumeration of the Ten Commandments,” Catholic Biblical Quarterly, VII (1945), 105, note 1.
[6.]For an excellent discussion of the all-important and universal metaphysical principle of finality, “every agent acts for an end,” see R. Garrigou-Lagrange, O.P., God: His Existence and His Nature, trans. by Bede Rose, O.S.B. (2 vols., St. Louis: B. Herder Book Co., 1934–36), I, 199–204; also K. F. Reinhardt, A Realistic Philosophy, pp. 87–89.
[7.]“In Aristotle’s vitalistic holism,” entelechy “is the substantial form or soul which unites with primary matter to constitute the unitary substance of the organic body; it is primarily an entitative principle” (Celestine N. Bittle, O.F.M. Cap., The Whole Man [Milwaukee: Bruce Publishing Co., 1945], p. 632). For a comparison of the Aristotelian notion of entelechy with that of Hans Driesch, cf. ibid., p. 473.
[8.]See, in general, Gustaf J. Gustafson, S.S., The Theory of Natural Appetency in the Philosophy of St. Thomas. The Catholic University of America Philosophical Series, Vol. LXXIV (Washington, D.C.: Catholic University of America Press, 1944), especially pp. 84–90. Among the numerous recent analyses and expositions of St. Thomas’ doctrine of the natural moral law, may be mentioned: Walter Farrell, O.P., The Natural Moral Law According to St. Thomas and Suarez (Ditchling, England: St. Dominic’s Press, 1930); A Companion to the Summa (4 vols., New York: Sheed and Ward, 1938–42), II, 365–89; Hans Meyer, The Philosophy of St. Thomas Aquinas, trans. by Frederic Eckhoff (St. Louis: B. Herder Book Co., 1944), pp. 455–73; Karl Kreilkamp, The Metaphysical Foundations of Thomistic Jurisprudence. The Catholic University of America Philosophical Studies, Vol. LIII (Washington, D.C.: Catholic University of America Press, 1939), pp. 39–73; Stanley Bertke, op. cit., pp. 1–45. For an undoubtedly well-intentioned but pathetic attempt to outline, weigh, and criticize the moral philosophy of a St. Thomas (as well as to devise a positivistic methodology which will advance ethics from the alchemy stage to the high plane of science and thus accelerate the urgently needed moral progress of mankind), see Louise Saxe Eby, The Quest for Moral Law (New York: Columbia University Press, 1944).
[9.]“Now as being is the first thing that falls under the apprehension absolutely, so good is the first thing that falls under the apprehension of the practical reason, which is directed to action (since every agent acts for an end, which has the nature of good). Consequently, the first principle in the practical reason is one founded on the nature of good, viz., that good is that which all things seek after. Hence this is the first precept of law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based upon this; so that all the things which the practical reason naturally apprehends as man’s good belong to the precepts of the natural law under the form of things to be done or avoided” (Summa theologica, Ia IIae, q.94, a.2). Wherever possible, all English quotations from St. Thomas are taken from Anton C. Pegis, Basic Writings of Saint Thomas Aquinas (2 vols., New York: Random House, 1945). “For St. Thomas truth and goodness are one; there is a science of truth which is a science of the good; there is accordingly a truth of conduct which carries with it its own stringent obligations. There is, of course, a distinction between knowledge and action but there is only one intellect which is both speculative and practical. We might then define the object of St. Thomas’ moral science as ‘what conduct ought to be in virtue of what man really is, the right ordering of life to life’s true goal.’ The viewpoint is completely realistic” (Gustaf J. Gustafson, S.S., op. cit., p. 100).
[10.]But it is man’s natural tendencies or inclinations which disclose to his reason and will in what direction the perfection of his essential nature lies and, therefore, more precisely what is to be done as good, and what is to be avoided as evil. “Since, however, good has the nature of an end, and evil, the nature of the contrary, hence it is that all those things to which man has a natural inclination are naturally apprehended by reason as being good, and consequently as objects of pursuit, and their contraries as evil, and objects of avoidance. Therefore, the order of the precepts of the natural law is according to the order of natural inclinations. For there is in man, first of all, an inclination to good in accordance with the nature which he has in common with all substances, inasmuch, namely, as every substance seeks the preservation of its own being, according to its nature; and by reason of this inclination, whatever is a means of preserving human life, and of warding off its obstacles, belongs to the natural law. Secondly, there is in man an inclination to things that pertain to him more specially, according to that nature which he has in common with other animals; and in virtue of this inclination, those things are said to belong to the natural law which nature has taught to all animals, such as sexual intercourse, the education of offspring and so forth. Thirdly, there is in man an inclination to good according to the nature of his reason, which nature is proper to him. Thus man has a natural inclination to know the truth about God, and to live in society; and in this respect, whatever pertains to this inclination belongs to the natural law: e.g., to shun ignorance, to avoid offending those among whom one has to live, and other such things regarding the above inclination” (Summa theologica, Ia IIae, q.94, a.2). “It is at this point that the theory of natural appetency enters the field of ethics. To know what man must do, one must first of all know what man is, know his nature, his needs, his possibilities and his limitations. In more technical language, this is to know his natural appetites, which, as orientations of that nature, point out his goal and the means which are at his disposal for its attainment” (Gustaf J. Gustafson, S.S., op. cit., p. 101).
[11.]The “first necessary and natural dictate of practical reason is: Do good, avoid evil. The ‘good’ here is that which is according to natural inclinations, the ‘evil’ that which is against those inclinations; for the whole purpose of man’s natural inclinations, as natural, is to indicate what nature needs for its perfection.
[12.]Viktor Cathrein, S.J., Moralphilosophie (2 vols., 4th ed., Freiburg im Breisgau: Herdersche Verlagshandlung, 1904), I, 185 f. All this, too, should enable one to appreciate the profound statement of St. Thomas: ‘We do not wrong God unless we wrong our own good” (Summa contra Gentiles, Bk. III, chap. 122).
[13.]St. Thomas, De veritate, q.23, a.6.
[14.]The problem of the correct numbering of the Ten Commandments is well handled by Louis Hartman, C.SS.R., article cited, Catholic Biblical Quarterly, VII (1945), 105–8.
[15.]Cf. Jacques Maritain, The Rights of Man and Natural Law, trans. by Doris C. Anson (New York: Charles Scribner’s Sons, 1943), pp. 62–64.
[16.]Summa theologica, Ia IIae, q.94, a.4.
[17.]Ibid., q.100, a.1.
[18.]De veritate, q.16, a.2 ad 1.
[19.]Summa theologica, Ia IIae, q.94, a.6. Cf. ibid., q.77, a.2; q.94, a.5; Maritain, loc. cit.
[20.]It is well to point out that, in developed Catholic teaching, original sin is not something positive but the privation of those supernatural (especially sanctifying grace with its allied virtues) and preternatural gifts which God had gratuitously bestowed upon the human race in the person of its head, Adam. Yet it is an habitual sin of human nature itself which consists in a privative aversion toward God as man’s supernatural end and whose voluntariness springs from the actual will of Adam in his capacity as the natural head of the human race. Cf. J. M. Hervé, Manuale theologiae dogmaticae (4 vols., 17th ed., Paris: Berche et Pagis, 1935), II, nos. 429–43. Moreover, it is the far more common teaching among Catholic theologians that the natural powers of man have not been intrinsically weakened by original sin: fallen man no more differs from man in the (hypothetical) purely natural state than one who has been despoiled of his clothing differs from him who has been going about in the nude; but it is quite commonly held also that the natural powers of fallen man have been extrinsically weakened. Such traditional formulas as vulneratus in naturalibus and natura vulnerata must seemingly be understood, consequently, of nature taken historically, not philosophically (cf. ibid., II, nos. 444–48). In short, the difficulty which man in the present order experiences in doing good “comes rather from the obstacles to virtue that man encounters than from any intrinsic diminution of his natural powers.” Francis J. Connell, C.SS.R., in The American Ecclesiastical Review, CXIII (1945), 70. See also John A. Ryan, Original Sin and Human Misery (pamphlet, New York: Paulist Press, 1942), particularly pp. 39–42, 52–55.
[21.]Hence St. Thomas is easily able to bring custom into harmony with law: “Therefore by actions also, especially if they be repeated, so as to make a custom, law can be changed and set forth; furthermore, something can be established which obtains the force of law, in so far as, by repeated external actions, the inward movement of the will and the conceptions of the reason are most revealingly declared. For when a thing is done again and again, it seems to proceed from a deliberate judgment of reason. Accordingly custom has the force of a law, abolishes law, and is the interpreter of law” (Summa theologica, Ia IIae, q.97, a.3).
[22.]Ibid., q.100, a.8. For “God cannot dispense a man so that it be lawful for him not to direct himself to God, or not to be subject to His justice, even in those matters in which men are directed to one another” (ibid., ad 2). Walter Farrell, O.P., aptly indicates the metaphysical basis of this position of St. Thomas: “These precepts do not depend on the will of God; they are not extrinsically but intrinsically valid, for the Natural Moral Law, like all law, is essentially the work of reason not of will; in this case it is the divine reason which cannot be changed” (The Natural Moral Law According to St. Thomas and Suarez, p. 120).
[23.]Ibid., ad 3. Cf. also ibid., q.94, a.5 ad 2. In other words, St. Thomas supposes that in such cases of apparent dispensation God did not act as Lawmaker, but as Lord and Master, with sovereign dominion over human life and property. But see the cautious and sobering remarks of Jacques Leclercq, Les droits et devoirs individuels, Part I, “Vie, disposition de soi” (Namur: Maison d’Édition Ad. Wesmael-Charlier, 1937), pp. 53 f., on this now common solution. Of course, whether or not the traditional exegesis of all such Old Testament episodes and passages is correct is another question. For instance, there is neither any need nor any sound reason for holding that Yahweh ordered Osee to commit fornication or adultery. Cf. A. Van Hoonacker, Les douze Petits Prophètes (Paris: J. Gabalda & Cie., 1908), pp. 13 ff.
[24.]Cf. Walter Farrell, O.P., The Natural Moral Law According to St. Thomas and Suarez, pp. 122–30.
[25.]On the positions of Scotus and Occam in this far-reaching controversy, see Anton-Hermann Chroust, “Hugo Grotius and the Scholastic Natural Law Tradition,” The New Scholasticism, XVII (1943), pp. 101–12.
[26.]The true relationship between the natural order (the realm of natural laws and of the natural moral law) and the supernatural order (the realm of divine grace) is clearly and concisely set forth by Oswald von Nell-Breuning, S.J.: “Elevation to supernature leaves human nature unchanged in principle. Therefore, human nature retains its full value as a source of knowledge for social order. All principles for the structural plan of human society are impressed upon human nature by God, and remain so; therefore, they can be recognized in and deduced from this human nature with certainty. This is also true of man exalted by grace or abased by sin. Just as grace elevates man above his mere nature as a being without taking away anything from his human nature, so sin has not changed the condition of human nature into something else. True enough, there is no longer a purely natural order since God has introduced a supernatural order and has destined man for a supernatural goal; in fact, there never existed a man in the purely natural order. (Thus the sinner can miss the supernatural goal, but he cannot nullify his destiny for this goal.) The natural order is consummated by the supernatural order in such a way that it remains fully unchanged. That is why the natural order, although we can separate it from the actually given supernatural order only by abstract thinking, is not merely a fancy, but a living reality whose misappreciation, denial, or debasement at the same time not only misappreciates, denies, and debases supernature, but actually deprives it of its foundation, thus making it untenable” (Reorganization of Social Economy. The Social Encyclical Developed and Explained, trans. by Bernard W. Dempsey, S.J. [Milwaukee: Bruce Publishing Co., 1936–37], p. 17, note).
[27.]Cf. A.-H. Chroust, article cited, The New Scholasticism, XVII (1943), 114 f.
[28.]This important problem, together with its bearing on the nature of moral obligation, is discussed in Part II.
[29.]On Suarez’ doctrine of the natural law, see the widely divergent expositions and appraisals of Heinrich Rommen, Die Staatslehre des Franz Suarez, S.J. (M.-Gladbach: Volksvereins-Verlag, 1927), pp. 43–77, and Walter Farrell, O.P., The Natural Moral Law According to St. Thomas and Suarez, pp. 48–72, 147–55. For an excellent presentation of Bellarmine’s doctrine in its historical setting, cf. Franz Xaver Arnold, Die Staatslehre des Kardinals Bellarmin (Munich: Max Hueber Verlag, 1934), pp. 13–75.