by Fr. Charles Irvin
|Natural Law is found in human reason; human reason discovers Natural Law. Natural laws are those first principles, those self- evident principles, that require no proof; that demand the assent of the human mind, unless it wishes to risk insanity; they are not simply the utterances of popes or bishops or other divines. And no religious group can claim proprietary ownership over them.
They have, however, been the ground upon which an entire series of papal encyclicals have been built, beginning with Pope Leo XIII’s Rerum Novarum, followed by Pius XI’s Quadragesimo Anno, John XIII’s Pacem in Terris, along with many of Pope John Paul II’s encyclicals and other papal teachings. The right to private property, is a Natural Law right. And so are a just wage, the right of workers to organize, religious freedom, freedom of speech, and those truths which our Founding Fathers thought to be self-evident in their listing in our Declaration of Independence. Benjamin Franklin, Alexander Hamilton, James Madison and Thomas Jefferson grounded the foundation of these United States upon Natural Laws, those first principles which are so fundamental and so self-evident as to trivialize all attempts to “prove” them to be true.
As I have said, the Catholic Church has no proprietary ownership of Natural Law. The problem of our day, however, is that she is the only major world institution that continues to rely on it and build upon it her teachings about our human social contract, social morality, and the social order. Thus it is that, ours being a pluralistic society, many folks belonging to other pluralities mistakenly claim we’re “imposing our values” upon them by referencing our thought upon Natural Law.
Yet nothing could be further from the truth. Natural Law is available to all, can be claimed by all, and is “owned” by all. It could, to my way of thinking, provide a common language, a jointly shared lexicon, a bridge, enabling all in our culture engage in civil discourse using denominationally neutral language, terms, and concepts.
Too bad that Natural Law is held in such disregard by so many. Too bad that its character was used with such disfigured distortions as political weapons when Messrs. Robert Bork and Clarence Thomas were nominated to our Supreme Court. And, sad to say, too bad it hasn’t grounded the jurisprudential thinking of our Supreme Court Justices in the critical decisions they have been called upon to render in this latter half of our Twentieth Century.
Perhaps Natural Law will fare better in the next millennium, a time in which I hope we begin to restore order out of the “value free” cultural chaos in which we are presently watching our social order implode at the end of this millennium.
POSITIVISM vs. NATURALISM
When one journeys back to the foundational sources of Law one is immediately confronted with a “Y” in the path; one branch leads to naturalism, the other to positivism.
Naturalists affirm that there are rules of human conduct, laws if you will, which were not invented or created by the human mind but which exist in the nature of things, and which the human intellect uncovers, which it dis-covers through its rational powers. These precede the enactment and implementation of particular laws governing conduct in a particular society or culture.
The Positivists, on the other hand, affirm that all laws are the product of the sovereign legislator who “posits”, or places them in being, by human will. The totality of their authority is based not upon reason, but upon the will of the law maker/giver. The laws of the Positivists are not rationalized, nor, in many instances, can they be rationalized. They are simply imposed by authoritarian or majoritarian law maker/givers.
The Positivist position is based upon power, the Naturalist upon authority. We need to bear in mind that Authority authoriz- es, a notion that implies limits. Authority acts within limits; it is accountable to something greater. Power, on the other hand, is limitless, arbitrary and imposed; it is subject to no greater Authority or Reason. The infamous authoritarian and totalitarian political/military regimes of this century, to wit: Naziism and Communism, are based upon Positivist jurisprudence. Law is that the Lawgiver says it is.
The Natural Law theorist recognizes rules of human conduct to be based on Reason; Natural Law norms are quintessentially rational principles of human behavior. Furthermore they are not arbitrary – they are immediately (no mediating agency is needed) evident to the human intellect when it is acting rationally. They therefore are not invented by the human mind or posited, or placed into being, by human will. They need no other authority than the simple recognition of their truth.
Our own 1776 American Revolution was wholly based on the Natural Law: “We hold these truths to be self evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these, are life, liberty, and the pursuit of happiness. That, to secure these rights, governments are instituted among men…” We appealed to God in order to free ourselves from English tyranny. Thirteen years later the French Revolution appealed to Man freed from God for its justification. The result was the Jacobin and the guillotine, to be followed later by nihilistic existentialism and impotency.
Natural laws are immediately known by all; they are known to be wrong not through divine revelation but through reason unaided by faith. That which all men and women know to be wrong are such things as slavery, apartheid, rape, sexual abuse, larceny, murder, arson, abortion, lying, cheating, stealing, fraud, burglary, robbery, child abuse, perjury and kidnapping, among other things.
Natural laws are normative in all societies and among all people, not merely to one people in any one given time or place. To be sure, exceptions may be found in a few cultures and in a few societies, but those exceptions serve only to highlight those natural laws that the human mind finds to be otherwise general and universal.
To get to the origins of Natural Law, one must journey back to ancient Greek philosophers. Their view of reality was built upon the notion that the universe is governed by a Rational Principle, a LOGOS. Furthermore, they recognized that every human being can participate in the LOGOS because all of us have a logos principle or power, namely reason, within us that enables us to know and conform ourselves to Reality, a reality which subsists in the LOGOS.
The reason why humans don’t thusly conform themselves, and the reason why human beings act dysfunctionally, is because they have another concomitant power, the power of free choice. This enables them to act or not act in conformity with reason, to act “against nature”, to violate the nature of things. Among our other powers we humans have to power to act irrationally.
Ever since the 17th Century, philosophers such as John Locke, Thomas Hobbs and Jeremy Bentham led us away from those classical groundings, thus paving the way for philosophies of Communism, Naziism and Individualism which have, in turn, brought us to the Nihilism of today.
There are strong reasons for a re-cognition, a rethinking of Natural Law in our day. We need its return in order to buttress up our collapsing social order. May that happy day dawn soon!
Natural Law admits of a God, who is (among other things) eternal Reason, who exists at the summit of the of the order of being, who is the Creator of all of nature, and who wills that the order of nature reach its fulfillment in achieving its purposes as these purposes inhere in the nature of things found in the order of being. Finally, it asserts that the order of being that confronts man’s intellect is an order of “oughtness” for his will, for his choices and decisions.
Natural Law supposes a realist epistemology. What is real determines and gauges human knowledge. It is the measure of human knowledge. It calls to the human mind to reach out and grasp it. It presupposes a unitary and constant human nature that we share underneath all of our differences; it presupposes that human intelligence can reach out, grasp, and take unto itself external realities. And it supposes that human intelligence can achieve mutually shared understanding of what is real, what is truthful, and what is fair and just.
It is something that is rational, but not rationalist; it is the rule of reason as determined by reality, but not autonomous reason that determines for itself what reality “really is”. It is the height of arrogance for the human mind to assert that it defines that which produced it, that the human mind decides for itself whether that which produced it exists or doesn’t exist.
If our own history in recent decades tells us anything it tells us that there is an idea of Justice, that this idea is transcendent to the actually expressed will of the legislator, that is rooted in the nature of things, and that man can really know this ideal, this transcendent Justice. More importantly we have, during these past few decades, come to realize that Justice is not made by human judgment, that it measures all human judgments, or that it should if it doesn’t, and that in our conscience we know that human law and action should conform to it because to violate it is an offense against human nature as well as against God who is in His essence Justice itself. In other words, what is just is not necessary legal and what is legal is not necessarily just, the sort of thinking that grounded the civil rights movement and the anti-war movement of the 60’s and 70’s.
Those who reason this way seek allies in their protests against human laws, policies and actions which inflict violence on both human nature and transcendent Justice. This is a metaphysical affirmation, an affirmation of the metaphysical, an activity based on a Natural Law conviction, whether or not done consciously, whether or not done anonymously. In other words, the protests of the 60’s and 70’s were themselves grounded on Natural Law principles, that is to say, affirmations that there is in truth a Natural Law that judges the actions of human governments, that judges the decisions of the human will, that judges the declarations of the human mind.
Reason does not create Natural Law, any more that man creates himself. Reason dis-covers it. Natural Law affirmations are man’s participation in the rule of reason, the eternal law, the divine imperatives found within the nature of things as they exist in the purposed order of being. That is why human reason is god-like; that is one of the attributes of being made in the image and likeness of God.
Natural Law is not, as some would characterize it, a rationalistically deduced code of either immediately evident or logically derived rules that are imposed universally and inflexibly on every human situation. It is something that is constantly found in the realities of human experiences and the data of human experience that presents itself to the human mind for comprehension. As human experience adds more and more pieces to the jig-saw puzzle, and as the human mind places them in their proper inter-connectedness, the evolution of our consciousness brings changes in our human applications of that perennial Natural Law found within the inner reality of things as they make their claim for our assent to their integrity and truth.
While Natural Law tends to conserve, it also urges us to develop and progress toward those inner imperatives in both human nature and in the nature of things that struggle for expression and integration with the way that we treat them.
We are, you and I, attempting to relate more deeply with the things of the spirit, with the things of the mind and the heart, the intellect and the will. While all these ideas here presented to you may appear to be abstract and irrelevant to our daily decisions, actions, choices, perceptions, and duties, I submit to you, nevertheless, that they are not. As a matter of fact I would argue that they are of very practical value and effect; their neglect, I would say, has led our policy makers and judicial officers, and our social order with them, into a considerable quagmire. The route out depends, I think, upon the acquisition of vision, a realist vision, a return to the rule of reason, to the iustum naturale as distinguished from the iustum legale.
Senator Joseph Biden of Delaware, during the Senate Judiciary hearings pertaining to the nomination of Judge (now Justice) Clarence Thomas for a seat on the U.S. Supreme Court, presented a number of indictments against Natural Law, presenting it as something outlandish, outdated, and inappropriate as a mode of legal thinking upon which a Justice of our Supreme Court should ground his or her judicial opinions. Senator Biden made it his concern to bring in legal scholars to join him in building his Complainant’s brief. The indictments fell into the following general categories:
For the Defense I would like to argue on the basis of what Natural Law IS, rather than what it is NOT. A good many of the indictments just mentioned above are based on a presumption that Natural Law fails to be objective, grounded in reality, and is irrational.
A closer examination of Natural Law reveals that it is based on an examination of the nature of things as they exist in reality. Natural Law propositions are thoroughly grounded in the objective order rather than being rationalistic abstractions far removed from the reality of human relationships.
Furthermore, nothing is clearer in Natural Law theory than its identification of the “natural” with the “rational”. Natural Law is the expression of the “Rule of Reason”. It’s purpose is to incorporate our understanding of human nature and human relations into the order of reason, thus removing us from the primordial, the prison of the now, the tyranny of rationalism, fatalism, determinism, and the claims of either monarchy or democracy (or opinion polls) to ownership of human nature.
It insists that we are not atomistic and autonomous monads existing in the isolationism of our own willed determinations. We are by nature social beings existing in mutual interdependency and purposed by God toward a rational end, thus being by nature in God’s image and likeness. It asserts that human nature has no separate existence apart from the human person, that each person is a unique and sacred expression of that God-like nature situated in interrelationships with other such beings, and participating individually in that one commonly held nature as a human community.
Natural Law is essential humanism. The secular humanist is its sworn enemy. Natural Law doesn’t lead to sainthood, it leads only to manhood, prescribing the minimal order not for the City of God but simply for the City of Man. It is foundational for a society that is only civil, and pretends nothing ecclesial. The ideal of Natural Law is reasonable manhood, men and women who do their duty to God, to others and to themselves. It’s goal is a tranquilitas ordinis built on a right understanding and employment of the nature of things, and understanding that is mutually shared and therefore not imposed either by majorities or minorities upon others.
Natural Law seeks to correct the grand illusion of our time, namely that we are to leave law behind us and enter the half- world of individual “freedom” (getting government and regulators off our backs), or a world of “freedom” that knows no other norm than sentimental love and subjectivist intentions that can be evaluated only in situationalist terms of particularized moral judgments made by monads in absolute freedom of choice.
Natural Law asserts that men and women are intelligent, that human nature is intelligible, that all of nature is intelligible, and that human reason uncovers that which is “out there” in order to assimilate it and thereby become part of reality, a reality not defined by human will and reason alone. It is, what jurists refer to, the Rule of Reason.
Which is to say that it is not Rationalistic, or a product of the Enlightenment. It’s origins are more ancient and perennial. The Enlightenment insured the triumph of the idea that “law is will” over the more ancient idea that “law is reason”, with the consequent unleashing of forms of totalitarianism that have savaged us over the period of the last two and a half centuries, Napoleon being the first bastard child of the parent notion that “law is will”. Positivism is the Enlightenment’s living rationalistic descendant in today’s world. Man, with his reason and will, is God.
The gift we can offer in this Catholic Moment, is one that can save humanity from the ravages of Positivism’s undermining of legal jurisprudence, namely it’s dogma telling us that, “Law is simply the expression of the will of the legislature.” Our gift to humanity is to point to the transcendent truth that we are all endowed by a nature that is not determined by man alone, that is not man-made, man-granted, or at man’s disposal. Human rights are not granted by the U.S. Congress, our Constitution’s Bill of Rights, the United Nations Charter, or any other human agency no matter how supreme or world-encompassing, even the Church itself. Nor can those rights be taken away by any of those institutions. Nor can we even of our own accord alienate them from our intrinsic human nature.
The statesman as such need not be a believer; in our system of government the statesman ought not be the sort of believer who feels on a mission to convert all in the nation to the true faith. as he believes it to be. The statesman’s decisions are the result of imperatives that are no higher than those of the people from whom he receives his warrant and office. At the same time we are a people under God who recognize the sovereignty of God over men and over nations. This is what make our Revolution radically superior to the French one.
The Jacobins proclaimed Man’s reason to be free of all transcendent measures, values and goals and that this was the sole and first purpose of all political organization. Religion? “Well,” moderns tell us, “that is purely and solely a private matter, opinion or feeling.” Our nation’s Founders, however, proclaimed their political organization’s first principle to be under God’s sovereign purposefulness. President John Adams early on acknowledged this by declaring that we derive our enjoyments as a society from Him who has endowed us with those capacities.
Later on President Lincoln would say:
This and many other public statements, including Supreme Court decisions, proclaim to all the world that the American Revolution, far from being merely a secularist rebellion against an ancient regime is planted in the ground of classical Western liberalism and humanism, something that is a part of the patrimony of Christianity.
The Magna Charta asserted quite plainly that the king was under God and therefore under the law, because he as sovereign is granted his office by the consent of a people who are God’s people. All Western constitutionalism springs from this soil. The consent of the governed gives purpose along with imposing limits on the government. All powers not specifically vested in their government are reserved by Natural Law in the people who alone grant those powers to their governors and rulers.
Medieval jurisprudence, along with its philosophy of government, recognized that the king owes obligations to his people, among them being bound to seek their consent to his legislation. It was the parallel to the notion of consensus fidelium found within the polity of the Catholic Church. All of which is grounded in the very ancient notion of popular participation in the function of ruling. It was in that treasury that Lincoln found his phrase “government of the people, by the people and for the people”. No Jacobin would have been able to even think that way. For within it is contained the Natural Law corollary that justice itself resides within the people who, in virtue of their nature as persons bound in community judge, direct and correct the processes of government and their governors themselves.
We need to recover something that was peculiarly American that seems to have either been neglected or forgotten, namely the notion of vocation. As a nation under God we have a purpose, a mission, a destiny… and it comes from a loving Creator who has endowed us with those rights that enable us to achieve that purpose. We need to recover the truth that we not only can be but are a virtuous people, a people with an internal system of governance that directs us with a sense of “oughtness”, and the power to do what is right.
Has, in our day, the notion of freedom been replaced by mere libertarianism? Have we supplanted the power and the freedom to do as we ought been replaced by the power and freedom to do as we like? Are we governed by urges and feelings, or are we governed by purpose and responses to that which life places in front of us? Are we free to do what is good, or are we free to do merely as we feel? And if the latter, is that really a good? One that serves the common good?
All powers not specifically delegated to our civil magistrates reside within us, within the nature of who we are as people endowed by our Creator. Perhaps it is true, after all, that democracy is not merely a political experiment but rather a spiritual enterprise. If so, then we have responsibilities and rights that pre-exist our Constitution and Bill of Rights. We have responsibilities and rights that no Congress or Legislature can grant us or take from us. And if that be true, then our Constitution and Bill of Rights are not products of the Enlightenment, they are descendants of our Christian patrimony.
Those that hate our Church ask whether or not Catholicism is compatible with American democracy. The real question, as Fr. John Courtney Murray put it, is the inverse: Is American democracy in its present state compatible with Catholicism? How comfortable can I be as a Catholic who finds himself living as an American? And if I am discomfited, what do I have to offer to America precisely because I am a Catholic? As a Catholic I have a tradition that is wider and deeper than the tradition I have as an American. My religious faith has claims on me that are far more profound than my patriotism. The richness of thought and the challenges to my intellect that come to me as a Catholic are more time-tested and more human in nature than those philosophies presently among us that have been reduced to the lowest common denominator by the pressing demands of a spurious understanding of pluralism now current. The humanity found in the two thousand years of Catholic Tradition has a depth and richness beyond that found in the two hundred years of Americanism.
Perhaps in the confluence of those time lines the Catholic Moment has, indeed, arrived… and you and I can offer pearls of great value as contributions to the American experience that others might come to likewise treasure. We have, I submit, a theology of politics that is of great value. We don’t have a political theology, or a theology that is political. Ours is a vision that allows us to see human nature and the nature of things not as libertarians, or secular humanists, or as those who are, along with them, radically mistrustful of human nature and therefore seek to exert power over it in order to control it according to our terms. Ours is a philosophy and belief, and radically so, in human freedom, freedom based on Truth and not on fickle and traitorous human vote or opinion. Ours is the freedom to be and do what a Creator has endowed us to be and do in order to live in the glory hidden within us that waits to be revealed.
Some “Letters to the Editor” February 15, 2002 Editor ANN ARBOR OBSERVER 201 Catherine Ann Arbor, MI 48104-1484 Dear Editor: Your recent reference to Natural Law as a “curious Catholic term for justice as that church interprets it”, displays a considerable lack of understanding about basic jurisprudence. (See “Odd Couple” The Ann Arbor Observer, February, 2002, p. 9). Natural Law is not something that was just cooked up by the Catholic Church in order to justify its own tenets. “Natural Law” was first expounded upon by Aristotle, writing over 300 years before the existence of the Catholic Church, who wrote in his classic treatise Ethics that there is a “natural” form of “political justice”, which “has the same validity everywhere and does not depend upon acceptance.” While it is true that this concept was further developed by Sts. Augustine and Thomas Aquinas, it was also adopted by John Locke, considered by many to be the liberal founding philosopher of our country, who posited in Two Treatises of Government (1690) that the “law of nature” leads to recognition of “natural rights”, which are at the very essence of our dignity as human beings. From thence comes the proposition in the Declaration of Independence that there are certain rights “to which the Laws of Nature and of Nature’s God entitle” all men. These “truths” are “self-evident”, including the proposition “that all men are created equal”, and that they are endowed by their Creator with certain unalienable Rights . . .” These are not my words, nor are they the words of some old, crusty member of the Catholic hierarchy; rather, they are the words of Thomas Jefferson, the quintessential liberal renaissance man. Consistent with the “self-evident” notion that there is a higher law which transcends the positive human law, Dr. Martin Luther King, Jr., writing from his jail cell in Birmingham, Alabama, noted his agreement with St. Augustine’s statement that “[a]n unjust law is no law at all”, and further went on to quote St. Thomas Aquinas in stating that, “An unjust law is a human law that is not rooted in eternal and Natural Law.” (“Letter From Birmingham Jail”, The Autobiography of Martin Luther King, Jr.). Building on this foundation, Dr. King declared that, “A just law is a man-made code that squares with the moral law or the law of God.” (Id.). While the theory of Natural Law may be welcomed by many “conservatives”, it has also been a centerpiece in the philosophies of many of the great liberal thinkers. Very truly yours, Anthony P.Patti, J.D. 5408 Lohr Lake Drive Ann arbor, Michigan 48108