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NATURE AS REASON
A Thomistic Theory of the Natural Law
By JEAN PORTER William B. Eerdmans Publishing Company
Copyright © 2005 Wm. B. Eerdmans Publishing Co.
All right reserved. ISBN: 0-8028-4906-7
Chapter One
Introduction
In this book, I will set out a theological account of the natural law, taking my starting points from medieval natural law theorists (especially, but not only, Aquinas) and developing them into a constructive moral theory within a context of contemporary perspectives and concerns. This will strike many readers as a paradoxical project. The natural law is usually regarded as a universal morality, accessible to all rational persons whatever their particular metaphysical or religious commitments (if any), and therefore most appropriately studied through philosophical analysis. This approach, in turn, reflects a more general philosophical commitment to purifying reason from the contingencies of history and particular cultural practices. As applied to the natural law in the early modern period, this commitment was expressed through ongoing efforts to detach the natural law from the matrix of particular beliefs and practices - especially, in this case, the theological beliefs and practices - with which it had historically been associated. In the words of Ernest Barker, "Allied to theology for many centuries ... the theory of Natural Law had become in the sixteenthcentury, and continued to remain during the seventeenth and eighteenth, an independent and rationalist system, professed and expounded by the philosophers of the secular school of natural law." The claim that a sound appraisal of our moral beliefs and practices might depend in some substantive way on particular theological beliefs or modes of inquiry would seem from this perspective to be antithetical to a natural law approach on any plausible construal of what the natural law is.
The most austere defenders of the philosophical approach do not try to show that their construal of the natural law is consonant with the earlier tradition of natural law reflection. After all, just as a purely rational morality does not depend on culturally specific beliefs and practices for its content or force, so the history of reflection on such a morality cannot condition its development in any substantive way. Nonetheless, evidence for the historical validity of the philosophical approach to the natural law is available - or so it would seem. Consider a frequently cited passage from Cicero's Republic:
True law, however, is right reason corresponding to nature, diffused in all, unchanging, everlasting, which commanding, calls to duty, and forbidding, deters from wrongdoing. And indeed, it does not command or forbid the upright in vain, although neither its commands nor its prohibitions move the wicked. It is not permitted to alter this law, nor is it licit to attempt to derogate from it, nor can it be altogether abolished. Nor indeed can we be freed from it by the Senate or by the people. Neither need we seek for another to explain or interpret it for us. There will not be one law for Rome and another for Athens, nor will there be one law now, and another law in the future, but one everlasting and immutable law will govern all peoples at all times. And there will be one master and ruler common to all, God who is the author, the promulgator, and the judge of this law. And he who does not observe it is a fugitive from himself and rebellious against his own nature, and will thus suffer the worst penalties even if he evades what are commonly regarded as penalties.
At first glance, these words appear to support a purely philosophical approach to the natural law. Cicero describes the natural law as a law that is universal in scope, identically the same in all times and places, and unalterable, in such a way as not to admit of abolition, exceptions, or dispensations. Moreover, if we were to continue with our survey of the natural law tradition, we would find that these characteristics are indeed generally regarded as marks of the natural law. In the words of an anonymous twelfth-century canon lawyer, "The natural law precedes others in dignity, as it precedes them in time; with respect to time, because it began with human nature; with respect to dignity, because while other laws may be changed, it remains immutable. Hence, justice also is defined as a constant and perpetual will rendering to each one his right. Furthermore, reasons of state can set aside the civil laws, but not so, the natural law" (The Cologne Summa, excerpted in Lottin, 106).
Yet Cicero's remarks also hint at other ways of approaching the natural law. The natural law, he says, is "right reason corresponding to nature," and while the reference to "right reason" fits nicely with contemporary philosophical approaches, his reference to nature reminds us that historically, accounts of the natural law have frequently been associated with specific and contestable scientific and metaphysical accounts of nature - our own human nature, or the natural order more generally considered, or both together. What is more, he explicitly says it is God who is "the author, the promulgator, and the judge of this law," and in this way he links God's sovereignty over all peoples to the natural law. Presumably these remarks would not have the same meaning for Cicero that they came to have for later Jewish and Christian thinkers, but however they are to be understood, they do not fit comfortably with a purely philosophical approach to the natural law, at least as such an approach would be understood by most of our contemporaries.
In fact, reflection on the natural law comprises a rich and varied tradition, in which we find more than one way of construing what the natural law is and assessing its significance and practical force. Certainly, the philosophical approach to the natural law as sketched above represents one prominent strand of that tradition, emerging in the early modern period and dominating most discussions of the natural law up to the present day. But so long as we regard this as the only possible approach to the natural law, or consider it to represent the standard of clarity and rational adequacy by which other approaches should be evaluated, we will overlook or distort the alternative approaches this tradition also offers - approaches which are worthy of consideration in their own right, and which are in some ways, and from some perspectives, more promising than the currently dominant philosophical approach.
One such alternative is suggested by another text, taken from what came to be called the Ordinary Gloss. This is an early twelfth-century gloss, that is to say, a running commentary on Scripture, compiled out of patristic commentaries on individual passages; it is described as the "ordinary" gloss because it quickly became the standard such compilation for scholarly use in the medieval schools. As such, it offers a particularly valuable witness to Western Christian theological reflection, since it epitomizes earlier patristic views while at the same time anticipating the main lines of subsequent scholastic theology. Here is what it says about what later became a locus classicus for scholastic reflection on the natural law, Romans 2:14: "When Gentiles, who do not possess the law, do instinctively what the law requires, these, though not having the law, are a law to themselves":
Paul said above that the Gentiles are damned if they act badly and saved if they act well. But since they do not have a law, as it were being ignorant of what is good or evil, it would seem that neither should be imputed to them. Contrary to this, the Apostle says: Even if one does not have the written law, one nonetheless has the natural law, by which one understands and is inwardly conscious of what is good and what is evil, what is vice insofar as it is contrary to nature, which in any case grace heals. For the Image cannot be so far extirpated from the human soul by the stain of earthly desires, that none of its lineaments should remain in it. For that is not altogether removed which was impressed there through the Image of God when the human person was created. Accordingly, when vice has been healed through grace, they naturally do those things which pertain to the law. Grace is not denied on account of nature, but rather nature is healed through grace; which being restored in the inner individual, the law of justice, which fault deleted, is reinscribed through grace.
On a first reading, it might seem that these remarks reflect the same basic understanding of the natural law that we find in modern philosophical approaches. Certainly, there are important continuities between the two, insofar as both insist on Cicero's distinguishing marks of the natural law, including its antiquity, its imperishability, and its universal scope. At the same time, however, the Gloss construes these marks in a distinctive way. Most strikingly, the natural law is here treated unproblematically as a scriptural doctrine, insofar as Scripture provides both a warrant for affirming the existence of the natural law and a theological context within which it is rendered meaningful. The natural law is grounded in creation and represents one aspect of the human reflection of the divine Image; as such it provides both a benchmark for sin and a basis for the hope of restoration. At the same time, the Gloss emphasizes what we might describe as the noetic, rather than the substantive or lawlike, character of the natural law, insofar as it is described as a capacity or power for moral discernment rather than as essentially or primarily a set of rules of right conduct. As we will see, the scholastics do believe that the natural law also generates specific moral norms. Yet they do not regard these as central to the natural law in its most important senses; rather, they identify the natural law in the primary sense with a capacity for moral discernment, or the fundamental principles through which such a capacity operates. This fact is significant because it points to an alternative way of construing Cicero's marks of the natural law, in terms of the universality of a capacity or power, rather than in terms of a universally accessible set of moral rules. Even so, the universally existing capacities and actions associated with the natural law call for theological interpretation, because they have been in some way damaged or obscured - otherwise, we would not need to be assured that they cannot be altogether extirpated and removed by sin, or told that they function properly when they have been healed by grace.
It is clear that this theological approach to the natural law would fit awkwardly, at best, with the modern and contemporary insistence on the universality and rationally compelling force of the natural law, considered as a set of moral norms. It is therefore not surprising to find that many modern and contemporary interpreters of the natural law have regarded their patristic and medieval forebears as confused, and have celebrated the modern emergence of the natural law as "an independent and rationalist system." But the modern approach to the natural law is not the only one possible, nor does it set the standard by which all other construals of the natural law should be judged. In particular, the distinctively theological approach exemplified by the Gloss should be of interest in its own right for theologians even today - that, at least, is an assumption underlying the current project.
In this book, I will develop a theological account of the natural law which takes its starting points and orientation from the concept of the natural law developed by scholastic jurists and theologians in the twelfth and thirteenth centuries. Admittedly, this is not an obvious starting point for developing a natural law ethic for the twenty-first century. As I hope to show in what follows, the scholastic approach to the natural law has much to offer, particularly seen from the standpoint of theological ethics. It suggests a way of thinking about the natural law that is distinctively theological, while at the same time remaining open to other intellectual perspectives, including those of the natural sciences. By the same token, it provides starting points for reflecting on the moral significance of prerational nature, seen in itself and in connection with the operations of human reason - and as we will see, the connection between the scholastics' approach to nature and their theological convictions is not adventitious. The natural law does not provide us with a system of ethical norms which is both detailed enough to be practical and compelling to all rational and well-disposed persons. However, there are good reasons to doubt whether any moral theory can provide us with such a system, and this approach to the natural law offers us something arguably more valuable, namely, a way of reflecting theologically on the phenomenon of human morality.
In developing this account, I will attempt to be mindful of the distance between the scholastics and ourselves. Nor do I want to suggest that the scholastic concept offers us a perfectly satisfactory account of the natural law, in comparison to which later approaches represent sheer decline. Reflection on the natural law comprises a living tradition in which later stages reflect the weaknesses as well as the strengths of their predecessors, and in this case, as we will see, later versions of the natural law reveal some of the ambiguities of the medieval approach. For both reasons, what I will offer should not be seen as an exposition of the scholastic concept of the natural law, but a contemporary theory of the natural law which draws freely on that concept.
At the same time, the distance between the scholastics and ourselves only extends so far. On certain key points the scholastics were right - or that, at least, will be a further assumption in what follows. They were right to insist on the distinctively theological significance of the natural law, as indicated by scriptural and doctrinal perspectives on nature. They were right to ground their accounts of the natural law in a robust concept of nature, including prerational components of human existence as well as human reason. And they were right to identify the natural law in its primary sense with fundamental capacities for moral discernment and action, rather than moral rules - without denying that the natural law, so understood, does yield determinate norms for conduct. My own approach to the natural law takes these insights as its starting points, and it is my hope that they will be vindicated by the developed account.
This project is motivated by the conviction that the scholastics offer us a cogent and attractive approach to the natural law. In developing a constructive theory out of this approach, my primary aim is not to solve contemporary problems or to correct the deficiencies of other approaches, to moral reflection generally or to the natural law in particular.
Continues...
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