27 May, 2002
Author: George Irbe
Natural Law: Created by God, Perceived Through Reason
INTRODUCTION
For many years I have been in search of an answer to the question: ‘Is there a Natural Law?’ The search has been a frustrating one. I do not remember how long ago I reached the inner conviction that Natural Law exists; it seems like I have always had it. But, until recently I could not even express cogently my own sense of what Natural Law is. All I could say for sure was that I was absolutely convinced that it does exist. It is understandable, then, that I craved for more than just this vague instinctive feeling about Natural Law; I was searching for confirmation of it, for a definition of it, for assurances from others that my instincts about Natural Law are right.
I have not found any one Natural Law theory, espoused by the works of any one of the eminent thinkers which I have consulted, that would match exactly my own particular concept of it. Through the ages, wise men have come up with many different philosophical opinions on what Natural Law is, ranging from the view that denies the existence of any such law, through various theories on its source, validity and authority, and culminating at the other end of the spectrum in a purely religious belief that Natural Law has been codified and handed down to man directly by the biblical God, the Ten Commandments being the most prominent example of such promulgation.
In the Foreword to Natural Law Theory: Contemporary Essays1, the editor Robert P. George writes that there is a “remarkable assortment of natural law theories” around. The theories are categorized as ‘liberal,’ ‘conservative,’ ‘procedural,’ and ‘substantive.’ I cannot say that I am familiar in detail with any of the many modern-day variants of Natural Law theory out there. I have taken a quick glance at a few, but have not come across any one that would satisfy entirely my notion of what Natural Law is. The Natural Law concepts contributing the most to my own understanding of it come from scholars who adhere, to some degree at least, to the venerable traditional school of philosophy of the ancient Greeks.
I am undertaking this essay now only because I feel that I have gathered a sufficient number of kernels of thought on Natural Law from the various philosophers in order to fill in the mosaic of my own concept of it. It was also fortunate that I recently encountered a philosopher whose explanation of Natural Law helped me greatly to at last give verbal expression to my own conception of it. That philosopher is Thomas Hill Green, whose work I will be referring to at some length later. But before I proceed to a discussion of how the Natural Law philosophy of Green and of other philosophers has contributed to my own understanding of it, I want first to put into words my rather naïve and simplistic gut feelings about Natural Law, which I could not do before reading T.H. Green.
In addition to Green’s ideas which have provided for me the final break-through to my own understanding of Natural Law, several other philosophers, even ones who are skeptics concerning Natural Law, have contributed in their own way to my understanding of it. I admit freely to being, like most laymen, partial and selective in choosing the philosophers whose writings I have perused in any detail. Unlike the professional philosopher who must compete in the academic arena with other schools of philosophy and must of necessity know the sharpness of the arrows in the other’s quiver, I have not felt the need or interest, beyond acquiring a general superficial knowledge of their ideas, to delve into the details of the schools of philosophy and philosophers with whom I basically disagree. It follows, then, that in this discussion I will only call on the works of a select few of my favorite philosophers. As I mentioned above, most of my favorites are thinkers of the classical rationalist type.
THE 'THERE OUGHT TO BE A LAW' THEORY
We all have, at one time or anther, exclaimed, “there ought to be a law!” Almost without exception, the exclamation is evoked by a sense of frustration, if not anger, when we encounter some perceived wrong or unjust action which we are powerless to fight by the immediately available legal means. There is, however, a more significant and substantive concept voiced in the exclamation ‘there ought to be a law!’ than merely a complaint about a specific injustice that has visited the individual doing the exclaiming. All rational human beings understand the meaning of ‘law’ as a proscription or prescription, an ‘ought’ or an ‘ought-not’ which applies to everyone, or, in non-egalitarian societies, at least to a group or class of people. Therefore, by calling for a law, the individual is calling for a prescription or proscription which would be applicable to more than just him or her, and to all future occurrences of the same injustice which he or she is suffering from now. In other words, a person will not call for a ‘law’ for purely selfish reasons of the moment, because he knows that, if his motives are selfish and unjust he can as well be on the wrong side of that same law, if enacted, and thus be a victim of someone else’s selfish actions in a future circumstance. Let me add here that in exceptional cases the same benefit of a law is achieved even when the call of ‘there ought to be a law!’ comes from a rogue, for instance, one like Kennedy the Patriarch, who was influential in having laws passed that stopped unethical practices in stock-market trading after he had made his fortune by those same unethical practices.
The statement by T.H. Green on Natural Law that lifted the veil, so to speak, on my own understanding of it and brought the ‘there ought to be a law!’ expression to mind is:
. . there is a true and important sense in which natural rights and obligations do exist - the same sense as that in which duties may be said to exist though unfulfilled. There is a system of rights and obligations which should be maintained by law, whether it is so or not, and which may properly be called ‘natural.’ It is ‘natural’ because it is necessary to the end which is the vocation of human society to realize. But it is not a system of laws that ever did exist or could exist in a ‘state of nature’ independently of force exercised by an organized society over individuals. . . The ‘jus naturae’ thus understood is distinguished from the sphere of moral duty because it can be enforced by positive law. Moral duties do not admit of being so enforced.
We distinguish, then, the system of rights actually maintained and obligations actually enforced by legal sanctions (‘Recht’ or ‘jus’) from the system of relations and obligations which should be maintained by such sanctions (‘Naturrecht’); . .2
There is no doubt that Thomas Hill Green believed in God; the only question is whether his belief was of a purely Christian kind. The dominant theme in his Prolegomena to Ethics3 is that man’s moral development results from the divine spirit acting according to a divine plan through individuals and mankind as a whole. The end “which is the vocation of human society to realize” in the statement above is according to that divine plan. This belief is probably the reason why Green was identified as an 'idealist' among philosophers.
As a rational theist I have found Green’s philosophy very appealing because it is inspired by a more sophisticated theology than the dogmatic one of Aquinas. I find that I share much of the substance of Green’s beliefs, if not always his teleology. Thus, Green’s declaration above that “There is a system of rights and obligations which should be maintained by law, whether it is so or not,” resonates with my belief that when we call out ‘there ought to be a law!’, it is as if we dip into a mysterious inner reservoir where the seeds of such ‘laws’ already reside. We sense that this reservoir lies within our immaterial soul, along with the other fundamental attributes of intelligence and self-consciousness.
I believe that these attributes are very special evolutionary gifts from the Creator. All that we call ‘natural’ is a part of His creation. Thus, I regard all the laws, those that rule the physical universe and those abstract moral laws that spring forth from our soul, as ‘natural.’ My complete belief system is explained in essays4,5,6,7 posted on my personal web page at http://www.interlog.com/~girbe; a summary of my beliefs is given in the essay A Statement of My Faith.8
THE THREE VIEWS OF NATURAL LAW
As I stated in the Introduction, there are, broadly speaking, three views on Natural Law: (1) Natural Law is promulgated by Yahweh; this is believed by people who are sincere adherents to one of the three religions based on the Old Testament of the Bible; (2) Natural Law simply is, just as the universe simply is, and both are discernable through man’s reason; this is believed by rational philosophers who would rather not say whether they also believe in Yahweh as the creator of the universe and the promulgator of the law, or no; (3) Natural Law is non-existent; this is believed by rational philosophers who may or may not also believe in Yahweh. I find that my own view of Natural Law does not fit comfortably into any one of these categories. By this yardstick, I guess that my understanding of Natural Law belongs somewhere between views (1) and (2): I recognize a divine promulgator of Natural Law, i.e. the Creator-God, and believe that men are obligated to use their ability to reason to discover how this Law pertains to the functioning of the universe and to their own behavior in it.
Often the most elucidating contribution to a critique of one’s beliefs is provided by one who is skeptical of those beliefs. In this instance, I find Jeffrey Stout’s opinions on Natural Law to be the case.9 Like Edmund Burke he has “a collection of doubts” that keep him from “becoming a theorist of natural law,” and he dismisses the very concept with “there are many natural law theories, some less objectionable than others.” But Stout provides, from the perspective of the non-believer in Natural Law, a candid assessment of the premises of those who believe in Natural law. Thus, of Aquinas he writes: “He held that promulgation is essential to law, that there is (literally) no such thing as a law not promulgated by someone. This implies that a higher law, if there is one, has a promulgator as its source. . . The promulgator is God, the law he promulgates eternal. The natural law . . is something that can be known by human beings naturally. Assume a biblical divine promulgator . . and you have the Thomistic higher law; otherwise, not.”
Stout also remarks on the modern forms of Natural Law theory which are not based on theological premises. The modern forms avoid defining a divine promulgator “in either of two ways: by finding a surrogate for God as promulgator of the higher law or by detaching the concept of law from that promulgation.” Kant, the most prominent of them, elevated Reason “to the status of quasi-divinity. . . The higher law, he argued, derives from our own self-legislating capacity as rational agents. . . According to Kant, we do not discover the higher law, we give it to ourselves.”
Stout notes that vestiges of the old natural law theory survive “. . in Cambridge Platonism, Deism, and the Scottish Enlightenment. The order of nature, though it may have been created by a divine being, is said to be governed by laws that human beings can discover through rational enquiry unaided by revelation or theological assumptions. . . The laws of nature, whether promulgated by someone or not, are to be defined simply as the deep structure of the natural order that reason aims to discover.”
My interest was drawn also to Stout’s idea of how the rational deductive system, as employed by David Lewis, could be used for deriving the moral component of Natural Law. Stout claims that “. . it is the least metaphysical and most promising definition of lawhood currently under discussion in the philosophy of science.” He proposes the following:
Grant, for the purposes of argument, that there are moral truths. Assume that all the moral truths can be organized into deductive systems and that these, like Lewis’s systems of empirical truths, achieve varying degrees of simplicity and strength. Now we can define the moral law as precisely those generalizations appearing as theorems or axioms in each of the best moral systems. The natural law would be that part of the moral law we human beings can discover unassisted by divine revelation. . . To employ the notions I have just defined, you need not be a theist. If you are a theist, you might wish to add that God is the author of the moral law. . . But you will still be able to spell out what you mean by the rudimentary concepts of your theory without resorting to theology.9
I quote from Jeffrey Stout’s essay at length so that I can better high-light my own understanding of Natural Law by contrasting his arguments with my own. Returning first to the Thomistic model, I too believe that God is the promulgator of all natural law, including moral law, and that this law can be known by human beings naturally. But, the Creator-God who I recognize as the only genuine one who exists, is not the biblical divine promulgator who Stout and nearly everyone else assumes that one must be referring to, whenever one insists on having a divine promulgator.
This myopic, one could also say, parallactic, view of God has been the only accepted view for millennia in all the societies and civilizations based on the Bible. It pervades the thinking of both the rationalists who might be ambivalent about God’s role in Natural Law and, yes, the atheists, who also must posit the biblical God as the one they do not believe in. I am quite certain that if any one of the rational thinkers in these two groups was asked whether he or she could believe in a god whose bona fides are grounded in a polytheistic society, they would answer with a resounding “No!” Yet, it is precisely that kind of god they revere, either through their affirmation of him, or through an equally fervent denial of him.
Not very many people go to the trouble of researching the history of religion. Allan Menzies is one who has done a thorough job of it. It turns out that the God now worshiped by the three monotheistic religions emerged as the winner from a pantheon of gods of a polytheistic society because he was the patron god of the most powerful tribe of that society. Allan Menzies writes about the tribes of Israel:
Although the tribes retained their separate gods and religious observances . . the God whom Moses proclaimed as their head . . was Yahweh [who] is said to have a metaphysical meaning, and to designate the god as more really existing than any other. This is doubted; what is certain is that Moses declared that Yahweh promised to be with the tribes, and that they took him for their God. [Yahweh] . . was perhaps the God of the most powerful of the tribes; he was probably a nature-god, and connected with storms and thunder, and he had his seat at Mount Sinai.10
The believers in the biblical God want to have it both ways: on the one hand, they say that they believe in the same god as did Moses (the most powerful one among the many gods of the Israeli tribes); on the other hand, by some magical process which they cannot explain, this god evolved, in a quantum leap, from being one among many to being the one and only God not only of the Israelite tribes but of all the universe. And, as if there was not confusion enough already, the believers still ascribe to this god the characteristics and functions he had when a tribal god, while also regarding him as the Creator of the universe. Belief in this hybrid god has dominated the civilizations of the West for millennia; all attempts to introduce and disseminate the concept of the genuine Creator-God to the average man have been suppressed and expunged as heretical and blasphemous. So it is indeed the irony of all ironies that consciousness of, and acknowledgement of, the actual Creator-God has been usurped for millennia by an impostor who retains, to this day, the trappings of his pagan heritage. That is why Stout can casually toss in the remark, “Assume a biblical divine promulgator . . and you have the Thomistic higher law; otherwise, not.” To that I answer, “I beg your pardon, otherwise yes. I assume a non-biblical divine promulgator, and have a higher law comparable to the Thomistic one.
Even as I believe that all Natural Law (physical and moral) comes from the divine Creator, I also believe, along with the philosophers of the Enlightenment, that Natural law can be discovered (in Stout’s words) “ . . through rational enquiry unaided by revelation or theological assumptions.” By replacing Aquinas’s version of God with the Creator-God I can nevertheless discover Natural Law through rational enquiry unaided by conventional theological assumptions, or by that favorite tool of the religious con artists – revelation.
Finally, I also achieve an outcome similar to what results from Lewis’s “deductive system” without the deductive system: my Natural Law is discovered by humans unassisted by divine revelation. I am a theist who is convinced that God is the author of the moral law as well as every other kind of Natural Law. And I hope that I spell out what I mean clearly without resorting to theology.
THE RATIONAL ALTERNATIVE TO NATURAL LAW
There are people in group (2) of my classification above, whose rational thinking stops them short of allowing for any laws, either the physical kind of the natural world, or our moral laws, to be actually promulgated by a divine power, even though they may believe in God as such. Among them are those who nevertheless think that there is a sort of Natural Law which is simply the product of man’s own reason. John Finnis and Germain Grisez are noted expounders of this theory. According to Finnis, “natural law embodies the practically reasonable pre-moral principles of right and wrong which are per se nota (self-evident).”11 And Joseph Boyle, also of the same school, writes:
The basic principles and norms of the natural law, as natural, are addressed to all human beings, and they are held to be accessible to all who are capable of forming the concepts which comprise them. Furthermore, the foundations of moral life and judgment are in the moral law, and moral laws are propositional realities, ‘dictates of reason,’ . . These fundamental prescriptions of the natural law are held to have sense and reference, and indeed to be truths of a kind. The most basic referents of natural law prescriptions are the goods which perfect human nature. . . interest in [these goods] . . . is the common condition of all who are capable of rational action and volition.12
In making the case for the “practically reasonable pre-moral principles” rationalists like Finnis in effect make use of a potent logical argument used by Aristotle to deduce that certain prepositions are per se nota. (An easily-understood explanation of how this argument applies to moral concepts is given by Adler.13) Finnis et al use Aristotelian logic to argue that certain principles of Natural Law are similarly self-evident. Thus, they (apparently) avoid the requirement for a ‘divine promulgator’ for Natural Law.
There are other philosophers in this category, two of them favorites of mine – Karl R. Popper and Friedrich A. Hayek - who do not think that it is realistic to distinguish Natural Law as a unique species which is somehow above and beyond the ordinary run-of-the-mill law promulgated and enforced by human authorities. Both men are recognized as clear-headed, logical rationalists; both have difficulty accepting any transcendental influences on natural processes. That is not to say that rationalists like Popper and Hayek are necessarily atheists; they most likely believe in the biblical God, but do so in the rather limited sense of a God whose function is mainly to administer to human spiritual needs.
Popper gives his opinion on natural law in The Open Society and Its Enemies14. He sees an important distinction between (a) natural laws, or laws of nature, such as the laws of thermodynamics, and, on the other hand, (b) normative laws, or norms, or prohibitions and commandments, i.e. such rules as forbid or demand certain modes of conduct. A law in sense (a) – a natural law – is describing a strict, unvarying regularity which either in fact holds true in nature (in this case, the law is a true statement) or does not hold (in this case it is false). We often call such natural laws ‘hypotheses.’ A law of nature is unalterable; there are no exceptions to it. Since laws of nature are unalterable, they can be neither broken nor enforced. They are beyond human control, although we may get into trouble by not knowing them, or by ignoring them. In contrast to a law of nature, a normative law in sense (b), whether it is now a legal enactment or a moral commandment, can be enforced by men. Also, it is alterable.
There is a vary basic difference between Popper’s views and mine in that I maintain that laws of sense (a) and (b), although distinct from each other, are both, nevertheless, part of the Natural Law promulgated by the Creator. I maintain that laws of both sense (a) and (b) are, by definition, unalterable, and that, in Popper’s words, we get into trouble by ignoring them. But we get into trouble in two different ways, one of which hurts only us, the other hurts the natural world around us, of which we ourselves are a part.
The first way we get into trouble is when we are careless with, or still ignorant of, the function of a physical law belonging to Popper’s group (a). But, we have been endowed with intelligence that is superior by far over any other species here on Earth. Therefore, we have the ability to neutralize or avoid entirely the harmful and undesirable effects which the physical laws of nature may inflict upon us. These same laws can, and at times do, consign members of a lower species to destruction. Inevitably, sooner rather than later, we use our intellectual powers to mitigate or eliminate entirely these harmful effects.
The second way we get into trouble is when we ourselves do violence to the natural world, sometimes in ignorance of the harm we are causing, but most often doing so knowingly and willfully. Mankind’s rapacious exploitation and destruction of the Earth’s environment is a glaring example of where the transgression of Natural Law in the physical sense is indistinguishable from transgression of Natural Law in the moral sense. However, it would be indeed rare to encounter a person who has been raised in the bible-based Western culture, and thus, conditioned by the commands of Genesis 1:27-29, and Genesis 9:1-3, to think that despoiling the natural world is a moral sin.
Popper believes, then, that the distinction between laws in sense (a), i.e. statements describing regularities of nature, and laws in sense (b), i.e. norms such as prohibitions or commandments, is a fundamental one. However, he recognizes that many thinkers believe that there are norms – prohibitions or commandments – which are ‘natural’ in the sense that they are laid down in accordance with natural laws in sense (a). Some of them argue that certain legal norms are in accordance with human nature, and therefore with psychological natural laws in sense (a), while other legal norms may be contrary to human nature; and that those norms which can be shown to be in accordance with human nature are really no different from natural laws in sense (a). Popper adds that there are still others who think that natural laws in sense (a) are really very similar to normative laws since they are laid down by the will or decision of the Creator of the Universe.
It is my impression that Popper at least makes a concession of sorts to the possibility of there being a natural moral law when he says that he reserves the term ‘natural laws’ exclusively for laws of type (a), since it is easy to speak of ‘natural rights and obligations’ or of ‘natural norms’ if we wish to stress the ‘natural’ character of laws of type (b).
Nevertheless, Popper believes that norms are man-made in the sense that we must blame nobody but ourselves for them; neither nature, nor God. It is our business to improve them as much as we can, if we find that they are objectionable. The standards are not to be found in nature. Nature consists of facts and of regularities, and is in itself neither moral nor immoral.
I find some of Popper’s language rather enigmatic. He says that “it is we who impose our standards upon nature, and who in this way introduce morals into the natural world, in spite of the fact that we are part of this world. We are products of nature, but nature has made us together with our power of altering the world, of foreseeing and of planning for the future, and of making far-reaching decisions for which we are morally responsible. Yet responsibility, decisions, enter the world of nature only with us.”
As Popper says, nature by itself is neither moral nor immoral. But, how then do we introduce morals into nature, and by what means do we impose standards upon it? I do not see how we can introduce morals into the natural world; we find it difficult enough introducing morals to ourselves, or rather ourselves to morals. On the other hand, one could not agree more with Popper’s statement that we have the power to alter the world and to make far-reaching decisions for which we are morally responsible. To that I would add that in exercising that power we should be obeying both the physical and moral components of the Creator’s Natural Law.
Friedrich A. Hayek is a champion of the free market system. He is a Nobel laureate in economics; he is also renowned for his works on the substance and essence of law, and how law is used and misused by legislatures when they attempt to ameliorate social ills and inequalities - some of them actual and most of them only perceived. Hayek reasons, quite sensibly in my opinion, that mankind has undergone an evolutionary process in cultural and societal development. The rules of just conduct, or laws, have likewise evolved in tandem with society and culture. Hayek sees the modern, politically and economically free society as the culmination of man’s cultural evolution which he calls the ‘Great Society.’
Hayek and Popper were contemporaries; both were born in the Austro-Hungarian empire at the dawn of the 20th century. They were acquainted professionally and in many respects held similar views of the world. They also share a skeptical view of the concept of Natural Law. Hayek presents a persuasive argument for the evolutionary development of law15, from which I have selected several quotes:
Law in the sense of enforced rules of conduct is undoubtedly coeval with society; only the observance of common rules makes the peaceful existence of individuals in society possible. . . It is no accident that we still use the same word 'law' for the invariable rules which govern nature and for the rules which govern men's conduct. They were both conceived at first as something existing independently of human will. . . they were regarded as eternal truths that man could try to discover but which he could not alter. . . law existed for ages before it occurred to man that he could make or alter it. . . rules did exist, served a function essential to the preservation of the group, and were effectively transmitted and enforced, although they had never been 'invented', expressed in words, or possessed a 'purpose' known to anyone. . . The idea that law might be created by men is alien to the thinking of early people. . . the late Spanish schoolmen used the term 'natural' as a technical term to describe what had never been 'invented' or deliberately designed but had evolved in response to the necessity of the situation.
Hayek, just like Popper, states categorically: “Nature can be neither just nor unjust.” Hayek has this to say about “the law of nature”:
. . the term ‘natural’ . . [is used here] . . to assert that law [is] the product not of any rational design but of a process of evolution and natural selection, an unintended product whose function we can learn to understand, but whose present significance may be totally different from the intention of its creators. The position maintained in this book is therefore likely also to be represented by the positivists as a natural law theory. . . it is true that it develops an interpretation which in the past has been called ‘natural’ by some . .
Though there can be no justification for representing the rules of just conduct as natural in the sense that they are part of an external or eternal order of things, or permanently implanted in an unalterable nature of man, or even in the sense that man’s mind is so fashioned once and for all that he must adopt those particular rules of conduct, it does not follow from this that the rules of conduct which in fact guide him must be the product of a deliberate choice on his part; . . or that these rules may not be given to him independent of any particular person’s will and in this sense exist ‘objectively.’ . . The views and opinions that shape the order of a society . . are not dependent on any one person’s decision . . and in this sense they must be regarded as an objectively existing fact. These results of human action which are not brought about by human design may therefore well be objectively given to us.
The evolutionary approach to law . . which is here defended has thus as little to do with the rationalist theories of natural law as with legal positivism. It rejects both the interpretation of law as the construct of a super-natural force and its interpretation as the deliberate construct of any human mind.16
It appears that, although Hayek “rejects the interpretation of law as the construct of a super-natural force,” he concedes in a round-about fashion that there are rules which may be given to man “independent of any particular person’s will,” and that these rules “which are not brought about by human design may therefore well be objectively given to us.” Hayek remains mute on the source of these ‘objective’ gifts, but I have no hesitation in saying that they are the Natural Law gifts of the Creator. I can go along happily with Hayek’s assertion that “law [is] the product not of any rational design but of a process of evolution and natural selection.” That assertion holds as well for someone who believes that Natural Law has always existed and that man’s understanding of it has grown through the evolutionary process. I would only add that instead of ‘natural selection’ I would describe the process as ‘ learning by trial-and-error.’
CLASSIC NATURAL LAW
I wish now to reach back into antiquity when all law was regarded as having a ‘natural’ origin. I find that my ideas on Natural Law are in many ways comparable to the ancients’. I refer again to F.A. Hayek as a reliable source on ancient law; he writes15:
. . all early ‘law-giving’ consisted in efforts to record and make known a law that was conceived as unalterably given. The historians of law are agreed that . . all the famous early ‘law-givers’, from Ur-Nammu and Hammurabi to Solon, Lykurgus and the authors of the Roman Twelve Tables, did not intend to create new law but merely to state what law was and had always been.
Of classical Athens at the height of its democracy we are told that ‘at no time was it legal to alter the law by a simple decree of the assembly.’ [A.H.M. Jones, Athenian Democracy; Oxford (1957); p. 52.] . . and it was chiefly because the assembly often refused to be bound by the law that Aristotle turned against this form of democracy, to which he even denied the right to be called a constitution.
The law of Rome, which has influenced all Western law so profoundly, was even less the product of deliberate law-making. As all other early law it was formed at a time when ‘law and the institutions of social life were considered to have always existed and nobody asked for their origin. The idea that law might be created by men is alien to the thinking of early people.’ [Max Kaser, Romishe Rechtsgeschichte; Gottingen (1950); p. 54.]
I feel a comforting similitude of thought with the ancients. They understood that law is not made by man. To me that is a far more crucial point in their understanding about law than whether they thought that law came to them from nature, from a particular god, or from several deities. Some of them, some of the time, even identified the Creator-God as the promulgator of law. In any case, they understood that their task was to use their powers of reason to discover law that was already there, waiting to be discovered.
I am particularly impressed by the conception of Natural Law presented by Marcus Tullius Cicero (106 – 43 BCE). Cicero’s invaluable contribution to Western civilization is attested to in the Foreword to this particular edition of The Republic and The Laws,17 where it says, “he is recognized as the main vehicle for the transmission of Hellenistic philosophy to the West.” Cicero’s contribution is similarly recognized by Lloyd L. Weinreb:
His writings contain the first clear statements of natural law as a distinct philosophical doctrine. . . The doctrine of natural justice and natural law that Cicero expounded contains nothing that had not appeared before within the philosophic tradition extending from Plato to the Middle Stoa. . . The most crucial element of Cicero’s exposition is the link between the standard of conduct present in nature – whether it is called law, reason, or justice – and the use of human reason. Cicero asserts that there is such a standard in nature, more specifically in human nature, and that it applies to all humankind.18
On a more personal level, I am most impressed by Cicero’s intellectual grasp of a truth that seems to elude so many, i.e. that the universe is the brain-child of a Supreme Intelligence. Cicero declares in The Laws, Book II:
#16 What can be more certain than this, that no one should be so stupid and so arrogant as to believe that reason and intelligence are present in him but not in the heavens and the world? Or that those things which are barely understood by the highest intellectual reasoning are kept in motion without any intelligence at all?
When I first read Cicero’s statement, which he made more than 2000 years ago, it reminded me of a very similar thought expressed by John Cafferky, whose work, Evolution’s Hand, I admire greatly:
Our ability to understand so much of the workings of the cosmos is the strongest argument for the existence of an Intelligence behind the workings of the universe. If one posits a Creator, then physical evolution is one of the Creator's tools. But the comprehending mind on this Earth is the product of biological evolution. This leads us to the proposition that biological evolution is also the tool of an intelligent Designer. . . Just as it takes living things to beget other living things, it also takes Intelligence to beget intelligence.19
If we are going to talk about a Natural Law and insist that it has a Divine Author, it is mandatory that we first establish the fact that there is a Divine Author, and furthermore, that his capability to promulgate the Law for an infinite universe rests on his supreme intelligence which is beyond our ability to comprehend. Confirmation of the Divine Author’s presence comes to us from scientific observations and inquiries. John Cafferky has had recourse to some of the latest and most powerful scientific indicators proving that everything in the universe functions according to an intelligent design. In Cicero’s time such scientific indicators were not yet available, so credit must be accorded to his keen intuitiveness about these things. Cicero also left for posterity what is, in my estimation, the most comprehensive statement on Natural Law (as I understand Natural Law) that has ever been given before or since:
Law in the proper sense is right reason in harmony with nature. It is spread through the whole human community, unchanging and eternal, calling people to their duty by its commands and deterring them from wrong-doing by its prohibitions. When it addresses a good man, its commands and prohibitions are never in vain; but these same commands and prohibitions have no effect on the wicked. This law cannot be countermanded, nor can it be in any way amended, nor can it be totally rescinded. We cannot be exempted from this law by any decree of the Senate or the people; nor do we need anyone else to expound or explain it. There will not be one such law in Rome and another in Athens, one now and another in the future, but all peoples at all times will be embraced by a single and eternal and unchangeable law; and there will be, as it were, one lord and master of us all – the God who is the author, proposer, and interpreter of that law. Whoever refuses to obey it will be turning his back on himself. Because he has denied his nature as a human being he will face the gravest penalties for this alone, even if he succeeds in avoiding all the other things that are regarded as punishments.20
In Book I of The Laws, Cicero describes the nature of man and defines the substance of law and justice. He says of man and of reason:
#22 The creature of foresight, wisdom, variety, keenness, memory, endowed with reason and judgment, which we call man, was created by the supreme God to enjoy a remarkable status. Of all the types and species of living creatures he is the only one that participates in reason and reflection, whereas none of the others do. What is there, I will not say in man, but in the whole of heaven and earth, more divine than reason (a faculty which, when it has developed and become complete, is rightly called wisdom)?
#23 Since, then, there is nothing better than reason, and reason is present in both man and God, there is a primordial partnership in reason between man and God.
#24 . . whereas men derived the other elements in their make-up from their mortal nature – elements which are fragile and transitory – their mind was implanted in them by God.
and of law:
#18 . . law is the highest reason, inherent in nature, which enjoins what ought to be done and forbids the opposite. When that reason is fully formed and completed in the human mind, it, too, is law.
and of justice:
#19 . . the origin of justice must be derived from law. For law is a force of nature, the intelligence and reason of a wise man, and the criterion of justice and injustice. . . But in establishing what justice is let us take as our point of departure that highest law which came into being countless centuries before any law was written down or any state was even founded.
It is interesting to note here that F.A. Hayek says that rules of just conduct existed before man had the capability to express them in words or to write them into laws, and that these rules may have been ‘objectively given’ to man. Cicero says that a ‘highest law’ came into being countless centuries before any law was written down. From this I draw the conclusion that Hayek’s ‘objectively given’ law and Cicero’s ‘highest law’ are of the same genre, i.e., what I call Natural Law – the law that materializes for us through the ‘there ought to be a law’ process.
THE WILL TO BE GOOD AND NATURAL LAW
We can declare along with Cicero that “law in the proper sense is right reason in harmony with nature.” We can add to that that it takes right reason and a morally conscientious soul to comprehend all the dictates of Natural Law. Cicero and Hayek tell us that primitive man accepted law intuitively, as a given, conjecturing that it came to him from ‘nature’ or a deity; a more sophisticated appreciation of law evolved together with the evolution in man’s reason. T.H. Green postulates a similar process of evolution in man’s morals. We can say, then, that man’s comprehension of Natural Law, being dependent both on his right reason and his moral standards, has also similarly evolved, and is still and forever evolving.
On the strength of the above, I am now going to posit that the same corner-stone on which Green rests the ultimate virtuosity of man – the Will to be Good – is also the key to man’s comprehension of, and compliance with, Natural Law. I will paraphrase Green’s presentation on the meaning of ‘the will to be good’ from his Prolegomena to Ethics, Book III – ‘The Moral Ideal and Moral Progress’:
Men had recognized already long ago that there are certain true goods which are good for all men, and good for all of them because they all have the same basic nature and capacity. Furthermore, as members of organized social groups, men learned that in order to attain these goods, they themselves had to be good in the moral sense, and that ultimately the supreme good which is common to all mankind is the universal will to be good.
Kant, in his characteristically uncompromising approach to these matters, declared in the opening of his ‘Foundation of the Metaphysics of Morals’ – “Nothing can be conceived in the world, or even out of it, which can be called good without qualification, but a Good Will.” But how do we define ‘Good Will’? T.H. Green maintains that the perfection of human character – a perfection of individuals which is also that of society, and of society which is also that of individuals – is for man the only object of absolute or intrinsic value. This perfection consists in a fulfillment of man’s capabilities according to the divine idea or plan. We cannot know or describe this plan in detail, except for the parts of it which we may have already attained. But we know that to make any progress towards its attainment men’s actions must always be governed by the interest and will to attain it. This interest, this will, is therefore the supreme moral good for man; therefore, we say that the greatest good is the will to be good. Similarly, we also hold that, in fact, the estimation of virtue, the award of praise and blame, has always had reference to man himself, not to anything adventitious to man, as the object of ultimate value from which the value of any virtue was derived.
It was during the era of Greek intellectual flowering that the Greek philosophers felt a spiritual need to understand the conception of the unity of virtue, as determined by one idea of practical good which was to be the conscious spring of the perfectly virtuous life – an idea of it as consisting in some intrinsic excellence, some full realization of the capabilities, of the thinking and willing soul. Here we have – not indeed in its source, but in that first clear expression through which it manifests its life – the conviction that every form of real goodness must rest on a will to be good, which has no object but its own fulfillment.
The Socratic philosophers made it clear that this object, being a perfection of the rational man, an unfolding of his capacities in full harmonious activity, was not one to which the virtuous practices were related as means to an external end, but itself included their exercise. To do so was to establish the principle of the conviction that goodness is to be sought for its own sake and, so sought, is itself and alone the good.
In the development of that reflective morality which our own consciences inherit, both the fundamental principle and the mode of its articulation have retained the form which they first took in the minds of the Greek philosophers. The Greek conception of the virtues is thoroughly sound. They are considered genuine only when resting on a pure and good will, which is a will to be good – a will directed not to anything external, or anything in respect of which it is passive, but to its own perfection, to the attainment of what is noblest in human character and action. In this respect that which we may call, after its first clear enunciators, the Platonic and Aristotelian conception of virtue, is final. It marks the great transition, whenever and however achieved, in the development of the idea of true good from the state of mind in which it is conceived as a well-being more or less independent of what a man is in himself, to that in which it is conceived as a well-being constituted by character and action.
We retain the conviction that to be good in one of the many forms of goodness is for the individual the good; that, inexhaustibly various as those forms may be, each of them must be founded on a will, of which the good in one or other of these forms is the object; and that the good for man, in that universal sense in which it is beyond the reach of the individual’s realization, must yet be a kind which is related to all forms of individual goodness. And the essential forms in which, however otherwise modified, the will for the true good (which is the will to be good) appear, they follow the outlines of the Greek classification of the virtues.
T.H. Green has definitely convinced me of the axiomatic truth that the greatest good that a man can possess is the will to be good. If I now turn to Natural Law, I can, first of all, state unabashedly my belief (I think that Cicero would back me up) that it is Law conceived, promulgated and administered by the Creator-God. Therefore, in the moral sense, it is perfect law beyond comparing, more perfect than the perfection of character we can only hope to attain through our will to be good.
CONCLUSION
The principles of Natural Law that we seek to discover lie in one of two areas: we may be seeking to understand a physical law which dictates the working of some process in the material universe, or we may be looking for a determination of what would constitute our own best behavior within that universe, i.e. the moral dimension of Natural Law, for which we draw from within ourselves. In the first instance, we are looking for confirmation of a hypothesis we have proposed about the functioning of a physical law in nature. In the second instance, we are seeking for the best expression that we can give in positive law to a moral principle that we already harbor in our soul as if by instinct.
Whichever is the case, we must begin our quest with reason as the tool and the will to be good as our intention. The Creator, having granted us a superior intelligence and a wide latitude for the exercise of our own free will and power of reason, expects that we will use our knowledge of the physical laws that govern the functioning of his universe to our advantage, but that we will do so wisely and benevolently. An example of the moral responsibility that comes with our deciphering of how a physical law of nature functions is that of atomic fusion and fission. The moral dimension of Natural Law is always present, even when we seek understanding of a physical law that functions within the material world. We are often tempted to willfully disregard the moral dimension implicated in our actions when we exploit a physical law of nature to our advantage, but we do so at our own peril. The undesirable consequences that may result are also part of the Creator’s Natural Law.
In fact, as history tells us, the basic moral component of Natural Law, the essential bedrock of the social norms of society, has been understood by men and promulgated by them as positive law long before they were able to make a written record of it. But today, as we explore ever deeper, and at an accelerating pace, into the intricacies of the physical laws of the universe and put these laws to our own use, the moral dimension associated with such use presents us with a mounting, multi-faceted challenge. As we use our power of reason to solve the secrets of the physical laws, we must always do so with the will to be good. In particular, there is still much moral Natural Law, concerning our behavior with respect to the natural environment, that is anxiously awaiting to be discovered by us, if we would only exercise our will to be good.
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2. Thomas Hill Green; Lectures on the Principles of Political Obligation (1882); Longmans, Green and Co.
(1941); Essay A: "The Grounds of Political Obligation; #9, #10, #16.
3. Thomas Hill Green (1883); Prolegomena to Ethics; Fifth Edition, Oxford University Press (1924)
4. G. Irbe (2000); God, His Laws, and Mankind; http://www.interlog.com/~girbe/
5. G. Irbe (2000); Aristotle's Spurned Legacy; http://www.interlog.com/~girbe/
6. G. Irbe (2000); How It All Comes Together: God - Life - Soul; http://www.interlog.com/~girbe/
7. G. Irbe (2001); The Dark Side of Human Nature; http://www.interlog.com/~girbe/
8. G. Irbe (2001); A Statement of My Faith; http://www.interlog.com/~girbe/
9. Jeffrey Stout; Truth, Natural Law, and Ethical Theory; in Natural Law Theory Contemporary Essays;
: Robert P. George, editor; Clarendon Press, Oxford (1992); p. 4.
10. Allan Menzies (1895); History of Religion; Charles Scribner's Sons, New York (1922); p. 182.
11. John Finnis; Natural Law and Natural Rights; Clarendon Press, Oxford (1980)
12. Joseph Boyle; Natural Law and Ethics of Traditions; in Natural Law Theory Contemporary Essays;
: Robert P. George, editor; Clarendon Press, Oxford (1992)
13. Mortimer J. Adler (1970); The Time of Our Lives; Fordham University Press (1996); p. 87 - 88.
14. Karl R. Popper; The Open Society and Its Enemies; Vol. 1 The Spell of Plato; Princeton University
: Press (1966); Chapter 5.
15. Friedrich A. Hayek; Law, Legislation and Liberty; Chicago University Press (1973); Vol. 1, Ch. 4.
16. Friedrich A. Hayek; Law, Legislation and Liberty; Chicago University Press (1973); Vol. 2, Ch. 8.
17. Marcus Tullius Cicero; The Republic and The Laws; translated by Niall Rudd; Oxford University Press
: (1998)
18. Lloyd L. Weinreb; Natural Law and Justice; Harvard University Press (1987); p. 39 - 40.
19. John Cafferky; Evolution's Hand: Searching for the Creator in Contemporary Science; East End Books,
: Toronto (1997); p. 98.
20. Marcus Tullius Cicero; The Republic and The Laws; translated by Niall Rudd; Oxford University Press
: (1998) The Republic, Book III, #33.
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