A Symposium on Natural Right and Natural Law

Natural Law in the Medieval Intellectual Context

James V. Schall, S.J.

Christianity, however, contains three ideas of decisive importance , . .: 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 state. Such ideas had in the long run to affect the whole problem of natural law: not, indeed, to revolutionize it, but to explore it more thoroughly, to strengthen its foundations,and to complete it materially. - Heinrich Rommen, The Natural Law

For what is revelation if not the macrocosm, in one way or another, imparting knowledge of itself to the microcosm?. . . There is, I imagine, no need to argue for the importance of
a right concept of revelation as their (religionand philosophy) underlying Idea. It seems to me almost self-evidentthat normally religion begins as revelation and gradually becomes tradition. I shall only suggest . . . that the essential difference between the Christian and all other religions, including Judaism, is that the former did not begin with revelation but with an historical event; the event namely by which the potential source of all revelation was passed from macrocosm to microcosm, and thus, from without to within. That, as I see it, is why the Incarnation has been correctly described as the Word becoming flesh. - Owen Barfield, The Concept of Revelation, Seven: An Anglo-American Literary Review
THE CONTEMPORARY PROBLEM in political philosophy continues to be that constituted by the arbitrary presuppositions of a theoretic relativism which are said to prevent any definitive grounding of right and wrong, valid for all cases. Yet, we are loathe to suggest that right and wrong are, ultimately, arbitrary or relative to time or culture. We do not like a Hitler or a Stalin to have been possibly right in some other time or place. The dominant relativist position thus runs into the difficulty of what the classical philosophers called the worst state. In contemporary terms, this might be rendered intelligible by asking how, other than on purely subjective, emotive grounds, can we in princif an Auschwitz, ple reject the morality o whatever we might think of Aristotle and massive abortion statistics? If we are

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able, in practice, to reduce at least the human fetus in all its stages to the status of a non-person, unprotected by law, why cannot we go and do likewise to just anyone on the basis of positive law? Why does the actual being o f a seven-month old fetus render the positive civil law permitting this extermination invalid morally, if it does? The cultural and political diversity o f mankind, furthermore, suggests a wide range of ways to organize civil society, so that we can ultimately anticipate, indeed encourage, many different ways to do the same sort of thing. But we hesitate to make this variety so great that we are, on cultural grounds, prevented from condemning at least some actions as wrongs in the eyes of everyone, no matter what their socio-political diversity. And to point to something as wrong is not the same as saying it will not happen. In this sense, we live in a world in which what ought not to happen does happen sometimes. And, often, this disorder happens through human agency. The question arises, further, can we classify our political organizations and their premises in such a way that, like Aristotle, we can designate on objective grounds good and bad forms of rule, each in turn bearing a greater or lesser degree of goodness or f the badness, decided on the basis o natural intelligibility of the best, whether it can exist or not? This effort will also imply the need felt by Plato and Cicero to address themselves to the notion o f the second best state. If we cannot do this, however, what is the point of our moral anger or praise, of our faculty of speech which, as Aristotle also noted, was given to us precisely to indicate what was good, what evil, what just, what unjust. This would mean, I take it, on the relativist premise, a radical incapacity actually to speak to one another because our very words have no referent in the nature of things to ground what we mean. Joseph Cropsey wrote: Man is encouraged to cultivate a natural philosophy by which he tri-

umphs over nature, even to creating its order out of his imagination, and a moral philosophy through which he capitulates to nature entirely. If we recall the implication of the oldfashioned dualism described earlier, it was very different from this. We saw t h e r e t h a t moral a n d political philosophy was the field of mans strenuous rebellion against brute nature, and natural philosophy was his act of union with the intelligible nature. We are struck by the immense perambulations of the mind. If the order of nature is not merely the product of our imagination, then moral and political philosophy must in some sense discover what we actually are. Indeed, in spite of Hume, we must with Aristotle discover what we are for. If nature is intelligible and human nature itself belongs to this intelligibility, itself open in some sense to human intelligence, then the perambulations of the mind are not infinite, except insofar as what is infinite in being comes under the scrutiny of the human mind. This is to say, to know what a thing is so limits the mind that nothing about it can be affirmed of it except what conforms to its particular level of being, to its order of actions, to its individual identifications. Since ancient times, then, the standard escape, as it were, from relativism has been, in the area of politics, formulated in terms o f the natural law, which was seen not as some uniform plan imposed identically in all existing beings, but as conforming to the peculiar mode of being proper to each. Both Cicero and Paul of Tarsus suggested that men as men, by the use o f their peculiar natural faculties, which they did not give to themselves but discovered themselves already to possess by virtue of their own givenness in the level of being they operated in, could-though need not-judge the rightness of their proper actions. As a result, they were responsible for their actions, which formed their own individual characters and destinies on this basis.

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Cicero wrote, in a famous passage: True law is reason, right and natural, commanding people to fulfill their obligations and prohibiting and deterring them from doing wrong. Its validity is universal; it is immutable and eternal. Its commands and prohibitions a p ply effectively to good men, and those uninfluenced by them are bad. Any attempt to supersede this law, to repeal any part of it, is sinful; to cancel it entirely is impossible. Neither the Senate nor the Assembly can exempt us from its demands; we need no interpretation or explanation of it but ourselves. There will not be one law at Rome, one at Athens, or one now and one later, but all nations will be subject all the time to this one changeless and everlasting law.2 And some hundred years later, Paul of Tarsus wrote to these same Romans: It is not listening to the law but keep ing it that will make people holy in the sight of God. For instance, pagans, who never heard of the Law, but are led by reason to do what the Law commands, may not actually possess the Law, but they can be said to be the Law. They can point to the substance of the Law ingrained in their hearts-they can call a witness, that is, their own conscience-they have accusation and defence, that is, their own inner mental dialogue, on the day when, according to the Good News I preach, God, through Jesus Christ, judges the secrets of mankind.3 Thus, both from the tradition of reason and from the tradition of revelation, natural law was a part of Western heritage. And what stood behind this was a theory of metaphysical realism and incarnational theology that could account for stable essences which were not their own cause^.^ Plato, Aristotle, Thucydides, and Cicero stood for what reason could and must think about the human condition from its

own resources. And while in Arab philosophy especially, so much related to Aristotle, there was a tendency to subordinate revelation to reason, as myth to vision, the general Judaeo-Christian thinking at least sought to retain the validity of both reason and re~elation.~ Thus, even when natural reasoning came to be elaborated in revelation, as, say, with the passage from Paul or in the Ten Commandments, its content was also considered to be capable of being arrived at through a process of reason. The medieval elaboration of natural law, consequently, which saw reason as also law, took place against a background not of unbelief, as perhaps in our own time, but against the traditions of revelation-Hebrew, Muslim, and Christian.j Now, it is the standard contention of those contemporary political philosophers who would meet the dangers of institutionalized relativism by a return to Greek classical theory, that the natural law tradition, coming out of precisely the medieval philosophic reflection, cannot be used. This is because it is somehow tainted from the standpoint of reason on account of its relation to revelation, which did, as an historic fact, indeed, aid in the discovery of what is natural. The objection is not so much that the conclusions said to belong to natural law are not universal, but that they are only open to the restricted group who believe. Thus, natural law and its revelationinspired conclusions about what men ought to do as understood by their own reason has no validity insofar as its content was arrived at under the impulse of the existential questions addressed to reason by revelation, especially those questions pertaining to creation, retribution, personal uniqueness, family, individual destiny and its mode of possessing happiness. Thus, while Plato and Aristotle, those most reasonable of men, entertained with calmness the idea of exposing deformed or unwanted children, it is said that they could only be proved wrong because of revelation, which not everyone shared. Therefore, they were

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actually more reasonable than reason inspired by revelation. That is, it is naturally unreasonable to object to Platos and Aristotles stated positions, since they embody reason. Or, to put it differently, if a believer arrives at the unreasonableness of their position, he cannot transcend their natural rational powers, so that it must be unreasonable to conclude them wrong in this case. The importance of medieval philosophy, however, lies in posing the question of whether we can be more reasonable than the classics, even if our impetus for this further reasoning began with the intellectual comprehension of a question arising from faith. This, briefly, was what Aquinas meant in his famous discussion of the necessity (1-11, 9 1-4) of revelation, not only that there were truths the intellect could not arrive at by its own powers but also that there were truths it could arrive at but for one reason or another did not. Ernst Cassirer put the issue in its proper terms: The structure of the moral world is of the same type as that of the physical world. God is not only the creator of the physical universe; he is, first and foremost, the lawgiver, the origin of the moral law. Yet, here too we must bear in mind the general principle that it is no increase of the glory of God but rather a detraction from this glory to overlook the causae secundue or to deny their effectiveness. We must give their due to these second causes.God is the first cause and the ultimate end. But the moral order is a human order that can only be brought about by the free cooperation of man. It is not impressed upon us by a superhuman power; it depends on our own free acts. Hence, Thomas Aquinas could not accept the current theological doctrine that the state is a divine institution appointed by God merely as a remedy for human sin. . . , Thomas Aquinas is convinced that the highest good, the summum bonum of the ancient philosophers, cannot be

attained by reason alone. The oisio beutificu, the mystical vision of God, remains the absolute goal-and this goal always depends upon a free gift of divine grace. But man himself must begin the work and prepare for this event. The divine right does not abrogate the human right which originates in reason. Grace does not destroy nature; it perfects nature. Despite the Fall, therefore, man has not lost the faculty of using his forces in the right way and thus of preparing for his own salvation. He plays no passive role in the great religious drama; his active contribution is required and is, indeed, indispensable. In this conception mans political life has won a new dignity. The earthly state and the City of God are no longer opposite poles; they are related to each other and complement each other.8 The Thomist notion of the harmony of reason and revelation, not merely that they cannot be shown to be contradictory, but that reason can be shown to be more itself under revelation-for it is indeed irrational to expose children, deformed or too many, for political or eugenic reasons-is the context in which the revival of classical theory must be considered, even in its own classical terms. Perhaps the importance of this problem can be ascertained by referring to Professor Leo Strausss discussion of Marsilius of Padua, who is in many ways the direct link to Machiavelli and modern theory, the intellectual dividing line between natural law and natural right in the modern sense. Here, the issue of universality or reason is juxtaposed in such a fashion that the primacy of metaphysics to theology is at least hinted at. This would reintroduce the idea of civil religion in which the rites and practices of the polis would be required even apart from their truth, while the philosopher would need protecting from civil society in order that truth itself might be preserved against the unknowingness of the generality and the non-rational status of theology. Strauss

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wrote: Within the confines of political philosophy, Marsilius tacit opposition to Thomas Aquinas shows itself most obviously in his teaching regarding natural law or natural right. Marsilius denies that there is a natural law prop erly so called. He presupposes that reason knows no other legislator than man and hence that all laws properly so called are human laws: reason is indeed capable of discerning what is honorable, what is just, and what is of advantage to society. But such insights are not as such laws. Besides, they are not accessible to all men and hence not admitted by all nations; for this reason they cannot be called natural. . . . What is universally admitted is not rational, and what is rational is not universally admitted. Among the rules which can metaphorically be called natural rights Marsilius mentions the rule that human offspring must be reared by the parents up to a certain time; he may have regarded this rule as not unqualifiedly rational since Aristotle had held that no deformed child should be reared. More generally, if wars are by nature necessary in order to prevent overpopulation, the distinction between just and unjust wars loses much of its force, and this grave qualification of the rules of justice cannot but impair the rationality of those rules of justice which are universally or generally admitted to obtain within the commonwealth. In other words, the universally admitted rules of right are not rational since there exists a natural necessity to transgress them or since man does not possess freedom of will to the extent to which both common opinion and the teaching of revelation assert it.9 There are, perhaps, two reflections that can be made from the medieval point of view to this position that either freedom is too weak or reason too particularized to bear a true and universal natural law. The first context of medieval thinking in

politics is always to recall Augustine, the one thinker that everyone knew. The notion of a natural necessity to transgress the rule of right reason, of which Strauss spoke, as well as of a weakened condition of the will, would be nothing more than the classic doctrine of the Fall. This would suggest that it is not necessary to deny natural law or freedom, even on empirical grounds, to admit these practical consequences of non-observance or nonunderstanding, for which Augustines state was designed to account. Saint Paul had also suggested the common experience about which Augustine likewise wrote, that the things that we would do, we do not, while the things we would not do, we end up doing. Pauls answer to this was that Gods grace would be sufficient to us, that no one would be tempted beyond his means, that we could be forgiven. That is, freedom would not be removed, nor would understanding, nor would the consequences of human actions, good or bad, The Fall and grace, however, are clearly derivative from revelation, even though, being known and intelligible, they can serve to account for what does happen, contrary to our expectations of what men do do. Yet, the crucial issue to which Augustine addressed himself in the context of political theory concerns the reason Plato was finally able to speak of immortality in the Last Book of The Republic, the reason why, as Hannah Arendt postulated, Hell might be a most pertinent topic in political philosophy, especially if we do think it is possible to do real evil in this world to our fellow men and not have it accounted for by the polis.11 Once we recognize the natural intelligibility of justice as a proper political category, then, such that we would rather be just than merely seem so among our fellows, we likewise recognize that not everything which deserves reward or punishment can be resolved or punished in political life. This, of course, is one of Aquinas arguments for the need of revelation to understand reasons full meaning to itself. But beyond this, it also postulates the

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question of the abiding significance of our personal acts, whether or not they be properly rewarded or punished in the polis, and thus of our personal worth from which our acts proceed. Once we acknowledge a personal significance transcendent to the polis, but for lives residing in it, then we can ask what Augustine asked-not, Is there a Republic, but How do we locate it vis-8vis this world? Augustine did not disagree with Plato, nor even with Hobbes, about the normal altercations of men as we find them inhabiting the radically imperfect cities that do exist. Augustine understood that the answer to the question of the locus of punishment and reward, to the higher question of the meaning of the vision of the Good, cannot be settled finally within any political regime since it is not a question o f regime at all but of our deeds as reflective of our own goodness. Augustine does not say that our deeds are insignificant because often corrupt, but rather the opposite. The limiting of politics is at the same time a discovering of its nature, what can be expected of it. The connection of political philosophy and metaphysics then is grounded in the real being of man which can, with its given faculty of reason, recognize an otherwise and a not-otherwise, as Aristotle said. The things that can be otherwise a r e themselves reflective of the metaphysics by which we conclude the First Mover, which thinks on itself, moves by being known and loved. In this context, then, Strauss went on to remark that One can understand Marsiliuss denial of natural law best if one starts from the fact that he implicitly denies the existence of first principles of practical reason.12 This remains the heart of the question about natural law as arising from the medieval experience. Are the first principles of the practical intellect-do good; avoid evil-themselves rooted in the metaphysics of being such that contemplation does happen to men precisely insofar as they have reason? Revelation brought up the question of whether all men could be saved even if

they were not, as most were not, philosophers, a position that enhanced the dignity of each person no matter what his occupation. But what is at stake with natural law is rather the unity of man and cosmos, together with a statement of his unique mode of acting on the basis of what a finite being can know of the whole. Charles N. R. McCoy wrote: Natural law in its first precepts (as distinguished, then, from natural law in its secondary precepts-Jus Gentium) embraces actions that are naturally known as bearing on absolute natural commensuration with what nature intends for men: for example, to seek good and avoid evil. The matters belonging to Jus Gentium, on the other hand, are said to bear a relutiue natural commensuration with what nature intends for man. These are the civilizing institutions without which the principal ends of human life cannot be attained except with the greatest difficulty.l3 The institutions of the polis, in other words, are themselves natural in the sense that, knowing what we are and how we act, we can reasonably figure out what best aids or hinders us. The classical locus of this issue, even today, concerns Platos communality of property, wives, and children. But behind this lies the question of evil and good proceeding from men no matter what the particular regime, even a regime of communality of wives, children and property. McCoy remarked that many reasonable political and constitutional questions fell into place once the question of perfect happiness was clarified by revelation, a question that arises over the nature of post-Aristotelian philosophy and its modern revivals.14The unity of politics and metaphysics, and their different relation to revelation, can best be seen by recalling that the question of human h a p piness is indeed one that comes up from politics but cannot be fully answered by it. The frustration of half-contem-

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plation and half-action of the postAristotelian world, its weariness with the human lot, had threatened to ruin the structure of human knowledge in ethical and political science. This frustration had its roots in the intricate psychological structure of mans nature, reflected in Aristotles triple alternatives: god, beast, and social animal. It had its roots in the impossibility of a satisfactory natural solution to the ultimate political question of human happiness. A revolution profounder than man was capable of by his own natural powers seemed required if the natural wisdom of the ancient world, so hard won, was to be preserved, if the structure of political philosophy was to be safeguarded.15 That the happiness to which the human person tends is not alone a political one, granting the legitimacy of Aristotles notion of a true practical happiness, is itself evidence of natural law. This is why Augustines City of God remains the ultimate check on the notion that some elite group of philosophers will by their own powers discover that which finally constitutes human happiness. The human intellect is proper to each, standing against any notion of a separate, single agent intellect for everybody, and therefore it is capable of recognizing an intelligible answer when given. The medieval legacy of natural law remains an intellectually essential constituent for the de facto discussion political philosophy has engaged itself in over the question of the best regime and its relation to personal happiness and to regimes that are not the best. The tradition of Augustine is abiding and significant because it relates to the Platonic question of the location of the ideal state, a question that is part of the structure of the human intellect to inquire about. This too must recognize the reality of the real ac-

tions of men as described so brilliantly and sadly by this same Augustine or by a Machiavelli or a Hobbes. Aquinas, on the other hand, while agreeing with Augustine on both of these points, recognized the Aristotelian tradition of reason, speculative and practical, as itself addressed by certain questions arising from revelation, but questions addressed to intellect in its own terms. Aquinas did not argue that human reason can completely achieve the answers to f happiness it does those intimations o receive by reflecting on its own experience. He recognized the limited nature of politics while acknowledging that what can be achieved by politics is perfectly proper and good. What he added, however, is that the additions to reason deriving from faith are not, on that account, unreasonable.16The source of stimulated knowledge is not the same as the knowledge once acquired in its own terms. The conclusion, then, would suggest that natural law ought not to be thought back out of existence on ecumenical grounds, however useful an intellectual exercise it might be for pedagogical purp o s e ~ . Rather, ~ natural law should be looked upon as being itself made more complete and profound in its own order because questions posed by revelation, by the macrocosm to the microcosm, as Owen Barfield put it, do enable us to think better about the good in our actions and the good to which they are directed, in the light of which we think of rewards and punishments, both civil and ultimate. The fact is that natural law is explored, strengthened, and completed by the impulse of thinkers in the medieval period beginning their reflections with questions posed to them by revelation. Openness to truth remains the hallmark of the human intellect, even when this truth is not created out of mans own imagination.

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Joseph Cropsey, Political Life and a Natural Order, Political Philosophy and the Issues of Politics (Chicago, Ill., 1977). p. 229. Cf. also, Reo Christensom, Natural Law: Maybe the Fathers Were Right, Heresies: Right and Left (New York, 1973), pp. 1-16. Ticero, On the Commonwealth, 111, 33. 3Paul, Romans, 2:13-16. Cf. S. Jaki, The Road of Science and the Ways to God (Chicago, Ill., 1978). T f . M. Mahdi, Alfarabis Philosophy of Plat0 and Aristotle, (Ithaca, N.Y., 1962). Tf. M. Fox, Maimonides and Aquinas on Natural Law, Studies in Maimonides and Aquinas (Elmsford, N.Y., 1975), pp. 75-106 Leo Strauss, Natural Law, International Encyclopedia of the Social Sciences, vol. 11,8045. Cf. John Finnis, Natural Law and Natural Right (Oxford, Eng., 1980), Ch. 13. Cf. also the authors On the Christian Statement of the Natural Law, Christianity and Politics (Boston, Mass., 1981), pp. 213-42. 8Ernst Cassirer, Nature and Grace in Medieval Philosophy, The Myth of the State (New Haven, Conn., 1946), pp. 114-15. gLeO Strauss, Marsilius of Padua, History of Political Philosophy, ed. Leo Strauss and Joseph Cropsey, 2nd ed. (New York, 1972), p. 267. ]This is the burden of Augustines Confessions. Cf. Paul, Romans, 7:15-16. Cf. the authors On the Neglect

of Hell in Political Theory, The Thomist, January 1980, pp. 27-44. Wrauss, Marsilius. . ., p. 267. I3Charles N.R. McCoy, The Structure of Political Thought (New York, 1963). p. 95. Cf. also H. McKinnon, The Higher Law (Berkeley, Calif., 1946); Lord Hailsham, Modern Reflections on the Natural Law (London, 1978); Henry Veatch, Natural Law: Dead or Alive? Literature of Liberty, October 1978, pp. 7-31; Jacques Maritain. Man and the State (Chicago, Ill., 1951), Ch. IV; A.P. dEntrhves, Natural Law: An Historical Survey (New York, 1965); E.B.F. Midgley, The Natural Law Tradition and the Theory of International Relations (London, 1975); and the authors Generalization and Concrete Activity in Natural Law T h e o r y , Archiv f i i r Rechts- und Sozialphilosophie, no. 2, 1959, pp. 162-92. Cf. the authors Post-Aristotelian Philosophy and Political Theory, Cithara, November 1963, pp. 56-79. I5McCoy, p. 98. Wf. Etienne Gilson, Reason and Reuelation in the Middle Ages (New York, 1938); F. Wilhelmsen, Faith and Reason, Modern Age, Winter 1979, pp. 25-32; and the authors Reason, Revelation, and Politics: Catholic Reflections on Strauss, Gregorianurn, nos. 2-3, 1981. Cf. Leo Strauss, The City andMan (Chicago, Ill., 1964), Ch. 1.

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