By Professor Brian M. McCall
Adapted from ch. 1 of The Architecture of Law: Rebuilding Law in the Classical Tradition (Notre Dame Press 2018). Part 1 can be found here.
THE DEFINITION OF LAW AS A DIALECTIC AMONG REASON, COMMAND, AND CUSTOM
Harold Berman once described three modes of jurisprudence: positivist (will of lawgiver), natural law (expression of moral principles as understood by reason), and historicist (law as a development of custom).26 For Berman, all three are necessary elements of law, as all three are intrinsic to all being. He explains:
Will, reason, memory—these are three interlocking qualities, St. Augustine wrote, in the mind of the triune God, who implanted them in the human psyche when He made man and woman in His own image and likeness. Like the persons of the Trinity itself, St. Augustine wrote, the three are inseparable and yet distinct. He identified will (voluntas) with purpose and choice, reason (intelligentia) with knowledge and understanding, and memory (memoria) with being—that is, the experience of time. . . . Their applicability to law is particularly striking, for law is indeed a product of will, reason, and memory—of politics, morality, and history—all three.27
Three of the schools identified by Philip Soper28 can be understood as disproportionately emphasizing one of these three modes. Classical positivism embraces commands to the exclusion of the other two. Modern positivism reintroduces the historically situated (custom) Rule of Recognition of a particular legal system to restore normativity to positivism, but excludes reasoning from universal principles. Finally, the “new” natural law school relies almost exclusively on abstract rationality (or, in the vocabulary of John Finnis, practical reason) to the displacement of the other two modes. Classical natural law jurisprudence advocates the integration of all three elements of jurisprudence—universal principles understood by reason, commands of the legislator, and developing historical customs—into a harmonious, although dialectical, definition of law. The three components, though part of a unified system, have been considered distinct parts of the legal order. As Berman has observed, medieval jurists not only divided law by jurisdiction and subject but also among reason, custom, and command.29 Advocates of new natural law jurisprudence, reacting to both forms of positivism, often reduce it to universal moral principles accessible by reason. For example, Lloyd L. Weinreb defines the point of natural law jurisprudence: “The task of natural law is to identify, in a form acceptable to the modern mind, some aspect of human existence that validates moral principles themselves as part of the description of reality.”30
In contrast to this more abstract new natural law, the classical definition of law, best formulated by St. Thomas Aquinas, combines all three elements. Aquinas defines law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”31 The first element, “ordinance of reason for the common good,” incorporates within the concept of law universal principles of reason concerning the common ends of human nature. Second, “made” and “promulgated” refer to an act of the will—a command of a specific authority whose command binds as a rule and measure. Finally, laws are made by one who “has care of the community.” Lawmaking must be historically situated within a developing community and not be a mere abstraction of reason or disembodied commands. Classical natural law jurisprudence considers all three elements as necessary components of law. In this introduction to natural law, I will merely attempt to sketch their terms.
Ordinance of Reason: Reasoning from Nature
Aquinas’s definition of law begins by clarifying that anything which does not possess the qualities enumerated in his definition is not in fact a law—“nothing is [law] other than that which . . .”32 There are definitional criteria, beyond the volition of the lawgiver, necessary to make an utterance or command a law. Although the ultimate answer is more complex, a primary reply to Hart’s question of what distinguishes the command of a gunman from a law33 is that a law must be an ordinance of reason (ordinatio rationis).34 Law is a product of reason. The primary criteria for something to be a law is that it must be “of reason” or reasonable. The great medieval jurist Gratian notes this requirement of law when he says that law “ratione consistat,”35 which can be translated “consists in reason” or “stands with or agrees with reason.” In the same section, Gratian points out that reason designates (with a connotation of entrusting) the law (legem ratio commendat), and that if law consists in reason, then it will be all that may have already stood (or agreed) by reason (si ratione lex constat lex erit omne iam, quod ratione constiterit).36 The use of the perfect subjunctive (constiterit) in this last phrase is interesting. It expresses the temporal potentiality of law. Law arises after truths may have been constituted in reason. The grammatical mood of the verb constiterit acknowledges the uncertainty of success in this first step—“may have stood by reason.” There is no certainty of complete success in deriving law from truths known from reason. This uncertainty underlines one of the tensions of natural law jurisprudence: objective truths of reality are accessible to human reason, but we may fail to access them fully.
This relationship between law and reason is clearly distinguished from positivism, which accepts as law anything that meets the currently reigning procedural requirements for making a law. For the natural law system, such is not sufficient; to be a law, the rule and measure must agree with or stand in the faculty of reason, not merely the will.
As Aquinas’s and Gratian’s definitions highlight, law is first an ordinance formulated by the rational power. Yet, as Gratian indicates, the rationality of human law flows from prelegal truths known by reason, with which law must agree. Classical philosophy distinguished different types of reasoning—the speculative and practical intellect. As the Thomist Henri Grenier explains, the two types of intellect are not two different powers but one single power distinguished by the two different types of ends to which the power can be directed.37 According to Grenier, “The speculative intellect is the name given to the intellect as it knows truth for the sake of the knowledge of truth. The practical intellect is the name given to the intellect as it directs knowledge to work, i.e., it directs its knowledge to some practical end.”38 The speculative intellect is directed at knowledge of things as they are. It seeks to know the truth of things for what they are. The practical intellect is directed to action. The former seeks to know what something is and the latter seeks to know what someone should do. Law is a practical discipline. Its end is action. A law is at its core a rule directing one to act. Yet, jurisprudence is rooted in both the speculative and practical intellect because one must first know things for what they are before one can know how to act. As Grenier explains, the practical intellect, although aimed at knowing the right action to attain an end, presupposes the speculative intellect has come to know the end to which the practical intellect tends:
An act of the practical intellect presupposes an act of the will: v.g. an act of the intellect concerning means presupposes the act of willing an end. An act of the speculative intellect does not presuppose an act of the will: v.g. an act of intellect concerning an end. Since an end is proposed to the will by the speculative intellect, and since an end is the first principle of action, the speculative intellect is called the first rule of all action. Thus we understand how everything practical is radicated, i.e., has its foundation in the speculative.39
Law directs action, and therefore in order to know how to make good law, we must understand to what end it directs human action. We must know what is the nature and end of human action. The classical natural law tradition refuses to accept the segregation of such practical enquiry from speculative knowledge about universals. Cicero (whose influence on the natural law tradition is significant) explains how speculative knowledge is essential for knowing how to live: “He who is to live in accordance with nature must base his principles upon the system and government of the entire world. Nor again can anyone judge truly of things good and evil, save by a knowledge of the whole plan of nature and also of the life of the gods, and of the answer to the question whether the nature of man is or is not in harmony with that of the universe.”40 The breadth of speculative knowledge essential to living well is not only natural but even touches knowledge of things divine. We will return to the question of whether speculative knowledge of not only natural things but also supernatural things is necessary to perfect practical reason. From Cicero’s quotation, we can see that for him knowledge of things divine was essential.
Putting aside this issue of the necessity of knowledge of things divine, we can establish for now that at least some speculative knowledge is essential to natural law jurisprudence. As philosopher Ralph McInerny indicates, some forms of intellectual activity require the engagement of both speculative and practical knowledge.41 When one is making a law, one is engaging the practical intellect—what law in this particular set of circumstances conforms action to the good? Yet, to engage in this reasoning, the lawmaker must know what is truly good. Analogically, a housebuilder uses the practical intellect in knowing how to build a house, but his intellect must know what it means to be a house. He must understand the universal “house” before he can know how to build this house.
Alasdair MacIntyre explains that two interrelated questions must be asked in any craft, including the craft of philosophy (and I would add law): What is good and best for me within the context and limitations in which I find myself? and What is good and best per se?42 The answers to these questions are inherently interdependent. For the natural law tradition of Aquinas, and for the Augustinian and Aristotelian strands upon which it drew, “there is then no form of philosophical inquiry . . . which is not practical in its implications, just as there is no practical enquiry which is not philosophical [i.e., speculative] in its presuppositions.”43
Modern philosophy forces a cleavage between speculative and practical knowledge, because they are seen as incompatible. The theories of Descartes, Rousseau, Hobbes, and Locke choose the speculative. Knowledge about ourselves or society comes from speculative contemplation of a mythical disembodied self or a mythical state of nature. The other extreme, represented by Edmund Burke, disparages speculative knowledge and contends that politics and law must be purely practical.44 Burke maintains, “Whereas theory rejects error, prejudice, or superstition, the statesman puts them to use.”45 It is the myopic focus of modern conceptual jurisprudence on practical knowledge that lies at the heart of Aaron Rappaport’s critique of how it has obscured the big questions that must be addressed to make jurisprudence meaningful and useful.46 John Finnis is a good example. He presents his concept of law as practical knowledge, and although he believes there is a sound speculative foundation for it, that speculative knowledge is not essential to his presentation of practical reason. Speculative knowledge, for Finnis, is literally an appendix rather than a foundation. This separation of speculative and practical intellect is a break with classical, and particularly Aristotelian, thought.47
As the Thomist Charles De Koninck explains, “Political science and prudence are practical in that they direct towards an end in conformity with right reason. But that presupposes that we know in some way the nature of the thing to direct and of the end; which is to say that the rectitude of practical rule presupposes the rectification of the speculative intellect.”48 The speculative must come first. We must know what the goal is, and then law, practical knowledge, can tell us how to attain it. De Koninck further compares speculative and practical knowledge and shows the dependence of the latter on the former: “In speculative knowledge the intellect is measured by the object, and in speculative wisdom we are principally concerned with things better than ourselves. . . . In practical knowledge, insofar as it is practical, the intellect is itself measure.”49
A simple example can illustrate this primacy of the speculative. If I am lost and stop to ask for directions, I cannot simply ask, “Which way should I turn?” The person I ask cannot answer this question. If he just formulates a practical rule “turn left” without knowing my ultimate end, the practical rule is of no value. If he happens to choose the direction that will take me to my goal, it is only accidentally a good rule. To formulate a rule for my action, the end must be known. The proper question to ask in this situation is this: “I am trying to reach place X, which way should I turn?” The speculative knowledge, where I am going, must come before the practical question.
But the relationship is in fact more complex. Not only is practical knowledge dependent upon speculative knowledge, but we come to know the universal nature of things through our knowledge of particulars. We come to understand the universal truths of the speculative intellect in the context of making practical decisions in contingent situations. Speculative truths are learned through encounters with particulars. This conclusion is a corollary of the general principle that sense knowledge is the material cause of intellectual knowledge.50 Aquinas, relying on Aristotle, argues that classical jurisprudence understood the principles of natural law to be general rules not made by human reason but rather discovered through reflecting on human nature in a process that is both inductive and deductive. These principles of natural law must be known both for their own sake (because they define the good of human existence) and for the sake of directing human lawmaking. Human-made positive laws, on the other hand, are formulated by human reason to add greater specificity to the general principles of natural law to direct people to specific action in particular circumstances and to help them to know the principles of natural law that they should see in particular laws. We can see in this simplified description of the natural legal order the interconnectedness of speculative and practical knowledge.
It is time to make explicit what has been implied thus far in the consideration of the role of reason in natural law jurisprudence. A law is not just any ordinance. It is an ordinance of reason, by which is meant a particular type of reasoning from nature. This concept is at the heart of the importance of speculative knowledge to natural law jurisprudence. An ordinance of reason is a rule that is consonant with the way things truly are. In short, legal rules are rationally discovered from considering the nature of things.
To introduce the term “nature” raises a host of issues. As Finnis remarks, as far back as the Stoics this term has possessed a variety of meanings: “Being scholastics, interested in establishing a technical vocabulary, the Stoics were aware that natura was a word with a variety of meanings and shifting references.”51 Confusion over the meaning of the claim that rules of action can be discovered from rightly understanding nature has led to a widespread rejection of classical natural law reasoning as a fallacy. Since the Enlightenment, this ancient epistemological approach has been dismissed as the “naturalist fallacy.” The simplified version of the argument is that it is not possible to demonstrate from what something is what it ought to do, or one cannot derive an “ought” statement from an “is” statement.
MacIntyre explains that the key to recognizing the legitimacy of classical reasoning from nature is that classical authors clearly understood that the word “nature” had two related meanings. MacIntyre explains that for Aristotle, ethics is the science of the transition of “man-as-he-happens-to-be” to “man-as-he-could-be-if-he-realized-his-essential-nature.”52 Those who decry natural law reasoning as fallacious would be correct if it merely argued that man-as-he-happens-to-be at a moment in history tells us what man-ought-to-be. This would be an unsupported mere rationalization of whatever man-happens-to-be at any point in time. It would provide no universally valid rules of action other than justifying the ever changing status quo. In contrast, for Aristotelian and hence natural law jurisprudence, one critically considers what man-happens-to-be in light of the potential for what man-could-be if he perfected the elements of what makes him what he happens to be. Aristotle’s central concept of potency and act is at the heart of MacIntyre’s insight. We consider man-as-he-happens-to-be in order to discover the potencies for what man-could-be-if-he-realized-his-essential-nature. Likewise, by considering water as it happens to be we can discover that it has the potency to become steam under the right conditions. When those grounded in the naturalist fallacy argument encounter the term “man-as-he-happens-to-be,” they understand it only to encompass current acts. Yet, for Aristotelians the term also includes the unrealized potentialities within what man-happens-to-be. Man-as-he-happens-to-be encompasses both what man is in act at the moment plus all the potencies for perfection contained within man. Identification of natural law precepts involves, at its heart, identifying these potentialities contained within man-as-he-happens-to-be and then specifying rules directing action toward actualizing these potencies.
The closer one comes to attaining the state of man-as-he-ought-to-be the closer one comes not only to goodness or perfection but to the fullness of being. The more good or perfect something is, the more real it is or the more being it possesses.53 Many modern authors who have an aversion to understanding rules in light of human nature are really arguing against basing laws on man-as-he-happens-to-be in act rather than the position of classical natural lawyers that it should be based on man-as-he-could-be-if-he-realized-his-essential-nature as evidenced in the potencies for perfection. The transition from the former to the latter involves an interconnected examination in light of reason and experience of (1) man-as-he-happens-to-be, (2) the precepts of the natural law (or “rational ethics”), and (3) man-as-he-could-be-if-he-realized-his-essential-nature.54 Rather than deriving the precepts from man-as-he-happens-to-be as conclusions from premises, there is a more nuanced dialectic among all three perspectives. Their relationship involves a movement from man-as-he-happens-to-be to man-as-he-could-be-if-he-realized-his-essential-nature by means of the principles of natural law.55 But it is only through the process of attempting this movement from one to the other that we discover those principles of natural law. The process is not a simple movement of one to the other through the third. It is dialectical. The Christian synthesis expands (in a paradoxical way that simplifies rather than complicates matters) the notion of man-as-he-could-be-if-he-realized-his-essential-nature to include not only a natural component but a supernatural component, and also an expanding notion of rules of rational ethics that includes precepts of divine law.56
Jean Porter similarly highlights the tension between facts about things as we find them and their underlying order and intelligibility in natural law jurisprudence. Nature as we find it must be understood in terms of its preordained intelligibility. She explains that natural law reasoning involves rational evaluations of natural facts in light of the intelligibility of nature. She begins by distinguishing between
nature seen as the ordered totality of all creatures, and nature seen as the intrinsic characteristics of a given kind of creature. It can also refer to the human capacity for rational judgment, which gives rise to moral norms, or to God’s will as revealed in Scripture, since the divine will certainly exists prior to all human enactments and provides their ultimate norm. At the same time, while this interpretation of the natural can be extended widely, it does not encompass every possible sense in which nature can be understood. In order to be incorporated into the concept of the natural law, a given idea of nature has to carry connotations of order and intelligibility. Nature in the sense of sheer facticity is not incorporated into the scholastic concept of the natural law, because nature taken in this sense cannot offer a basis for understanding the regularities of the non-human or social world.57
Reasoning from nature involves rational consideration of the facts as we find them throughout history. The facts of human experience of living in society and living with laws are the matter necessary for speculative reflection on the underlying order and purpose of human existence that imperfectly shows itself through these facts. If we can define it by a negative, reasoning from nature is not merely accepting facts about human experience as we find them. It is about discerning the underlying intelligibility hidden beneath often contradictory facts.
Aristotle likewise mentions two competing understandings of nature as either the matter of something or its substantial form: “Some identify the nature or substance of a natural object with that immediate constituent of it which taken by itself is without arrangement, e.g., the wood is the ‘nature’ of the bed, and the bronze the ‘nature’ of the statue. . . . Another account is that ‘nature’ is the shape or form which is specified in the definition of the thing.”58 He concludes that the “form indeed is ‘nature’ rather than the matter; for a thing is more properly said to be what it is when it has attained to fulfilment than when it exists potentially.”59 The form of something contains the definition of that which constitutes its fulfillment. Thus, another way to define nature is “the end or ‘that for the sake of which’” of a thing.60 Even in saying that the form is the proper meaning of nature, Aristotle argues that we need knowledge of both particular matter and the universal form to know something, whether in the discipline of medicine, physics, housebuilding, or law. He concludes:
But if on the other hand art imitates nature, and it is the part of the same discipline to know the form and the matter up to a point (e.g., the doctor has a knowledge of health and also of bile and phlegm, in which health is realized, and the builder both of the form of the house and of the matter, namely that it is bricks and beams, and so forth): if this is so, it would be the part of physics also to know nature in both its senses.61
Yet, although the end of something is properly its nature, the end “belongs to the same department of knowledge as the means.”62 As we have seen throughout this discussion, Aristotle also argues that practical knowledge of the means is related to speculative knowledge of the end, or “that for the sake of which.” Law is about human actions. The matter of the jurisprudential reasoning is actual human actions; jurisprudence requires the discovery of the forms that transcend individual human acts.
Thus, returning to the alleged naturalist fallacy, as MacIntyre points out, the question of what something “is” and what it “ought” to do are not distinct questions but rather the same question. What I ought to do is a function of what I am. As MacIntyre notes: “So ‘such and such is the good of all human beings by nature’ is always a factual judgment, which when recognized as true by someone moves that person toward that good. Evaluative judgments are a species of factual judgments concerning the final and formal causes of activity of members of a particular species.”63 Elsewhere, MacIntyre argues that evaluative and factual judgments are commonly encountered together. The claim of those who decry of the “naturalist fallacy” is itself a fallacy, for the rule that an “ought” judgment cannot be derived from an “is” statement is not universally true. For example, MacIntyre observes when we state that this is a watch, we can and do conclude that it ought to display the correct time, because the reason we identify it as being a watch is that it is a being that ought to keep time. This conclusion is true even if we find as a fact that it has been keeping incorrect time. Notwithstanding this fact, it ought to be keeping accurate time. The more accurate time it keeps, the more perfect a watch it will be.64 Likewise, if we know that a person is a firefighter, we regularly conclude that he ought to fight fires. The ought conclusion flows from the function or purpose identified in the predicate of each sentence (i.e., is a fireman).65
At the heart of classical natural law jurisprudence’s understanding of law as an ordinance of reason is this claim that rules of action (“ought” conclusions) can be known from speculative knowledge about the nature (or end or “that for the sake of which”) of things. By rationally considering what human beings do we can discover what they can do, their potencies for perfection. Rules can then be formulated directing human action toward these potencies for perfections. It is in this sense that we can say that an ordinance of reason is a rule derived from nature. This claim is at the heart of the fundamental break of the so-called new natural law school of jurisprudence, which abandons this leg of the three-part classical understanding of law as historically and communally situated commands that agree with ordinances of reason derived from the natural end of human nature. For classical authors, all law must be rooted in the metaphysical realities of human nature, properly understood. Porter explains this cleavage with classical jurisprudence by means of a compelling example:
There is a more fundamental difference between the “new natural law” of Grisez and Finnis and the scholastic conception of the natural law that cannot be brought out simply by a comparison of relevant texts on the natural law and reason. That is, Grisez and Finnis share in the modern view that nature, understood in terms of whatever is pre- or non-rational, stands in contrast to reason. This is implied by their insistence that moral norms must be derived from reason alone: that is, from pure rational intuitions that are in no way dependent on empirical or metaphysical claims about the world. They insist on this point because they are persuaded by Hume’s argument that moral claims cannot be derived from factual premises but, as a result, they are forced to deny the moral relevance of all those aspects of our humanity that we share with other animals. Even the traditional Catholic prohibition of the use of contraceptives is interpreted by them as a sin against life, which represents the same stance of will as is present in murder, rather than as a violation of the natural processes of sexuality. No scholastic would interpret reason in such a way as to drive a wedge between the pre-rational aspects of our nature and rationality.66
Law as Command: Promulgated by One Who Has Care of a Community
As we have seen from Aquinas, law may not be made by just anyone but only “by him who has care of the community” (ab eo qui curam communitatis habet).67 It is not someone merely in authority or in possession of power. The rule maker must have care of the community. Note that this formulation is not regime-type specific. It does not require the law be made by a king, or a legislative body, or the people at large. The test of legitimacy (that which binds) is that the lawgiver has care of the relevant community. There must be a relationship of entrustment and responsibility between the community and the legitimate lawgiver. The order of reason must not just exist in the mind of the lawgiver but must be externalized; it must become word; it must be publicly spoken or “promulgated” (promulgata). Although born of reason, law becomes an act of the will, not just a product of speculation. Reason gives rise to the act of promulgation.
Although we are critical of legal positivism’s claim that human law should be understood solely or primarily as a volitional act, that criticism does not mean that positivists are wrong in understanding lawmaking to involve an act of the will. The enacting of human law involves a free human choice, albeit a choice that is still constrained by ordinances of reason. That we must drive on the right as opposed to the left side of the road is not determined by human nature or an ordinance of reason. A lawmaker must make a choice between left and right. Higher law would preclude a choice requiring random changes in driving direction, as that would unduly endanger human life. Yet, within the constraints imposed by higher law, the choice of left or right is reserved to the election of the lawmaker. Law is an ordinance of reason, yet it is more than pure intellectual speculation. It involves willed human choice.
Law is a product of both reason and will. Errors occur when either one or the other is overemphasized. As Brian Tierney has demonstrated in his discussion of Villey’s theory of Aquinas on natural law, Aquinas maintains a distinction between law as describing things the way they are and ought to be and law as a set of precepts.68 Law is both a system that explains things as they are and a system of precepts directing action. Yet, after Aquinas, the volitional sense of law as precept seems to dominate later natural law thinkers’ understanding of all kinds of law, to the exclusion of the first. This emphasis on the volitional aspect predates and in some senses prepares the way for Austin. Francisco Suárez, although still clearly a natural law jurist in the Thomistic tradition, tends to emphasize law as “binding precepts, promulgated to rational creatures only, who are directed to a morally good life.”69 As the centuries have gone by, this second concept of law, law as willed precepts, and not the former, law as that which is and ought to be, has come to dominate. Therefore, contemporary defenses of natural law may err either by overemphasizing the intellectual component of natural law jurisprudence or by focusing on natural law as a list of commanded precepts. The two aspects are indispensable and related for Aquinas. Law is not merely an ordinance of reason. To be law, it must be promulgated by a real person in time. Law, in the first sense of the state of affairs that exists and that ought to exist, produces precepts. Reason is necessary to produce the precepts. It is in this sense that human laws (as precepts) are derived from the natural law principles, which in turn are derived from the proper ends contained in the exemplar, idea, and type of all laws, the eternal law. The greatness of the power to make human laws is nothing other than a participation in the authority of God himself. This participation involves moving from the purely intellectual—knowing the nature of things and therefore what they ought to do—to an act of the will, the promulgation of a precept. Austin is correct that laws are commands of one with the authority to utter them. Yet, natural law jurisprudence qualifies this claim by limiting the scope of those commands to commands consonant with reason and human nature.
Although law is more than precepts, Suárez is correct that law is a system of binding precepts that direct human, that is, rational, action. The incorporation of the idea that natural law is a set of rules or precepts into natural law jurisprudence is one of the contributions of Stoicism to the tradition. Although it is certainly true that the classical natural law tradition is rooted in Aristotle’s distinction between natural justice and conventional justice, Aristotle does not discuss natural justice as a system of laws containing precepts. The Stoics later add to the more general understanding of Aristotle a definite law-like quality to their understanding of natural law. The Stoics develop Aristotle’s notions of natural justice or a natural order into laws that create duties on us.70 By the time of Aquinas, the natural and eternal laws are not seen as analogous to law or merely law-like. His argument sets out to prove that they clearly satisfy all the criteria of a real law. To do so each of them must contain real rules or precepts that have been promulgated.71 Natural law is an ordinance of divine reason and contains precepts promulgated by God.
In so doing, Aquinas distinguishes two aspects of the concept of legal precept. Law is both a rule (regula) and a measure (mensura).72 These two terms indicate that to be a law a thing must both direct an action toward an end and must serve as a basis for evaluating a completed action. A rule directs or restricts action by binding or requiring actions to conform to a standard. Aquinas notes that one Latin word for law, lex, legis, is derived from ligare (“to bind”).73 Law binds specific acts to their proper ends. As a rule, a law has a dual function of proscribing and prescribing actions that hinder or further, respectively, the end of human nature. As a measure, law serves as a way of evaluating or measuring acts to see to what extent they conform to the rule. Did a chosen action bind the actor to a proper end, or was the act unhinged from human perfection? The measure is not simply a binary evaluation (it complies or not) but determines how far along the line formed by the directing rule an action lies. Precepts involve both prospective and retrospective evaluation. In this dual function, we can again see Aquinas’s understanding of law both normatively directing action (a rule) and descriptively telling us about the state of affairs (a measure).
However, not all precepts are of the same species. All laws are precepts, but not all precepts are of the same level of generality. Consideration of laws must therefore take account of whether the particular ordinance of reason is a general or a specific rule. Both types of laws can bind to varying degrees. Both aim at the same end but with lesser or greater specificity. If one asks for directions, one may receive a general or a specific rule of action: “Head north” or “turn left on a particular street, right on another.” Both types of rule are necessary due to the variety of contingent circumstances in which people find themselves. Rules that are drafted in more general language encompass more contingent circumstances and thus apply to more people. The more particular and concrete the rule, the more limited circumstances to which it will apply. The complexity emerges once we understand that every human act is a means to some end; the act is oriented either toward the end, or goods, of human nature, or it is directed away from this end. It is in this context that we can introduce the concept of intrinsically evil acts.
For this introductory consideration, we can state in general that an action is good if it directs the actor toward a perfection or end of human nature, and evil if it directs toward its opposite. In this sense, we consider objectively the relation of the act to its end and not the subjective awareness of the actor of this relation. For example, if a person is walking north objectively, the relation between his act, walking, and its end, the north, exists irrespective of whether or not the person subjectively knows or wants to walk north. A person who is in fact walking north but erroneously believes he is walking south is objectively walking north.74 Yet, all human acts cannot simply be categorized as good or evil. Some acts are indispensable for the attainment of the end of human existence and are therefore called “intrinsically good.” Others are incapable of being oriented to the end of human existence regardless of circumstances and are designated as “intrinsically evil.”75 A third category of acts comprise those that in and of themselves are indifferent toward the end; they can be related either to the end of human nature or its opposite.76 An act that in and of itself is incapable of having a transcendental relationship of harmony with the end of human nature is intrinsically evil. Thus, a rule of a general nature can be formulated that applies objectively to all beings who share this common nature or end. Such a rule would be a general principle of natural law that universally directs them to that end. Disregarding the subjective knowledge and hence culpability of an actor, one who engages in an intrinsically evil act is objectively not oriented to his proper end and hence objectively acting contrary to the universally binding precept of natural law. The person’s culpability or responsibility for so doing is another matter. He may be inculpably ignorant of this fact.
Many human acts fall into the third category. They are by their very nature capable either of being oriented toward one’s end or toward its contrary. For example, if a person must travel from Dallas to Chicago, we can say that his end is Chicago. The simple act of boarding a plane is not intrinsically oriented toward or opposed to this end. If the airplane is traveling to Chicago, then the act of boarding the plane is oriented to the end, but if it is flying to Mexico City, then the act of boarding the plane is not oriented to the end. Acts of this third category may become good or evil acts not by any intrinsic quality of the act. Once the owner of a plane decides that a particular flight is flying to Chicago, then the act of boarding the plane becomes oriented to the end of the person wanting to go to Chicago, not by the act of boarding the plane itself but by the extrinsic choice of the owner. Acts oriented to an end of human nature not by virtue of the act but by the willed choice of someone can be called extrinsically good, and acts oriented to the opposite of an end of human nature by virtue of a determination are extrinsically evil.77 For example, stopping one’s car when encountering a light that is red in color is not in and of itself good or evil. Once a legitimate authority has determined that in order to protect human life from unnecessary danger that a red light means a car should stop, then doing so becomes oriented to the end of the preservation of life and hence extrinsically good.
Rules that state what actions are intrinsically good or evil are therefore of the general type, because they apply to all human beings in all circumstances. Rules that change the nature of an otherwise neutral act to good or evil are specific rules because they apply only to the circumstances enumerated in the rule in which the otherwise neutral act will be good or evil. The determination of the owner of the airplane to fly to Chicago applies only to the particular time a particular flight is departing, not to all flights and all passengers in general.
Rules of law can thus be distinguished as either general or specific. General rules are universal in application. They direct human nature not by the choice of any human lawgiver, but by the intrinsic nature of the act and its intrinsic compatibility, or not, with universal human nature. Specific rules are more limited in scope. They apply extrinsic criteria, chosen by the applicable legislator, to otherwise neutral acts (vis-à-vis the end of human nature), and the fact of the rule itself is what establishes a transcendental relation between the act and the end of human nature. The two types of rules are distinct, yet not unrelated. Specific rules are limited to those that conform to general rules. Thus, an intrinsically evil act cannot be made good by a specific rule. General rules limit and define the scope of specific rules.
Legal positivism in all of its various forms emphasizes law as a collection of individual rules. For the pure positivists, such as Austin, law is composed of whatever particular collection of rules the sovereign declares. More nuanced positivists such as Hart surround this core concept with procedures, such as Hart’s own concept of the Rule of Recognition. Yet even for Hart, a legal system is composed of those rules from the internal point of view that one in the system would recognize as law. Rules are detached from reason. Although more moderate positivists such as Hart and Raz might advise that a legal system would be a better system if its rules were formulated and promulgated in a rational manner, the quality of reasonableness is not a necessary condition for the rules to be recognized as law. They might be poorly crafted rules, but they are law nonetheless. Classical natural law jurisprudence accepts that law is composed of rules, but those rules promulgated by the will of a lawgiver must be consonant with the precepts of natural law that are known to human reason.
Custom and Mores
Historicism understands law merely as the product of particular communities’ societal evolution. Laws develop out of the lived experience of cultures. In a certain sense, historicism is a form of collective positivism. Positivism relies upon the will of a particular person or persons at a point in time. The law is whatever the sovereign decrees. Historicism sees law as an undirected and unconstrained social phenomenon arising out of the collective will of a community that reveals itself over time. Despite rejecting historicism’s exclusive reliance on a historically unfolding collective will as the only source of law, natural law jurisprudence does recognize a role for historically developing societal practices. As Aquinas’s definition makes clear, law is more than an abstract ordinance of reason; it is a rule promulgated by a particular lawgiver, one who has care of the community, for the purpose of the common good of that particular community. Law encompasses both general principles of reason applicable to all communities and particular laws made for historically situated communities.
Human nature is not disembodied. It is encountered in historically situated contexts. Leo Strauss explains that at the heart of the emergence of philosophy is the recognition of the distinction between natural and conventional, between natural and ancestral.78 Likewise Aristotle recognizes that justice can be divided into general or natural justice and political or conventional justice.79 Something natural is that which it is simply by virtue of its own being; whereas something conventional is what it is due to the convention of human society. Although this distinction seems clear at first, the complexity lies in the fact that the natural and conventional are intermingled. The natural is not simply known naturally. It is hidden within the conventional. The ancestral conventions contain principles incorporated from nature and practices established merely by the community. Philosophy is the quest to disentangle them and to find the distinction. The quest ultimately leads to questions about the first things and the nature of man as perfect or imperfect.80 One task that natural law jurisprudence assigns to human lawmakers is to distinguish, within the ancestral conventions of a community, those consonant with nature and those opposed to it. To separate the natural from the conventional and the good customs from the evil ones, we require principles, rules against which to measure historically situated customs. The precepts of the natural law provide these principles against which the customs of a people must be measured. Historicism is correct in seeing that laws have evolved through historical circumstances. Yet, it attains this insight at the cost of losing sight of the natural that is intertwined within this process.
Further confusion arises in contemporary jurisprudence when jurists such as Hart confuse morality with mores, or the customs of a people. The contemporary notion of morality differs dramatically from our ancient and medieval ancestors’ understanding of the subject. The word “morality” as used to mean a compartmentalized set of nonlegal norms (primarily negative) governing personal behavior did not even exist in the vocabulary of classical or medieval philosophers.81 The concept of a distinct body of nonlegal rules directing individual action as a science or discipline distinct from law or politics was alien to classical and medieval writers. Ethics was an integral part of politics for Aristotle.82 One of the most important, and least noted, achievements of Porter’s work on law and morality is to remind us that our grouping of natural law and morality on one side and human laws on the other is alien to classical and medieval philosophy and jurisprudence, including that of Aristotle and Aquinas.83 Morality is inseparable from law, not in the sense that law embodies moral rules but that moral rules embody law. “Morality,” as I use the term here, includes the determination of natural law precepts by individuals applying them to their personal actions, as distinguished from determinations of natural law made by authorities (either personal or political superiors), and applicable to multiple members of a community.84 Morality is distinct from human law, but merely as a different species of the same genus, not as belonging to a different genus or normative system.
The root of the confusion over law and morality can be seen in Hart’s introduction of the subjectivist idea of understanding law as the concept that most people in the community or legal officials have of law.85 Finnis adopts this concept approach to law.86 Hart sees both law and morality as the concepts a society has of these terms. He refers to “morality of a social group”87 rather than morality as such. For Hart, morality is virtually synonymous with the tradition or customs of a society. He struggles to distinguish law and morality from the custom of a man taking his hat off indoors.88 He argues that morality does not have to conform to reason.89 Morality can be whatever a people consider as morality as long as it contains certain characteristics; there can be such a thing as a barbarous morality for Hart.90
In contrast, classical philosophy anchors both morality and humanmade law in the same source, the eternal law that is known through the natural law. Grenier defines morality as “the transcendental relation of a free act to its object as in conformity or disconformity with the rules of morals, i.e., with right reason and the eternal law.”91 Morality is therefore not distinct from law but rather ultimately derived from the eternal law. Yet, morality involves a particular type of conformity. It is the conformity of a free act. A bee that produces honey conforms to the eternal law in a different, unfree way. A free act is one in which the intellect knows and the will choses the act in conformity with the eternal law. Therefore, as Grenier states, the “proximate rule of morality is right reason, and its supreme rule is the eternal law.”92 The proximate rule of both morality and law is therefore natural law (or right reason), but the remote rule is eternal law. Yet, this conformity is known and willed in three distinct ways, corresponding to the classical three-part division of morality, based upon the person establishing the conformity of acts to right reason and the eternal law—individuals (monastics, or ethics), domestic superiors (morality of the family), and legal authorities (politics, or the morality of civil society).93 Rather than attempting to divide “law” and “morality” as Hart sought to do,94 classical philosophy and hence jurisprudence understood that human beings are whole beings who live not only as individuals but within domestic and political communities. Their freely chosen actions are directed to their proper end ultimately by the eternal law and proximately by their own determinations (ethics), their personal superiors (domestic commands), and political authorities (civil laws). To separate morality from law is to separate morality from its origin.
The development of human law unfolds in the context of historical communities—families, social groups, and political communities—all making determinations of natural law precepts. Human lawmaking is a part of this integrated system of developing rules of ethics (or monastics), customs, and human laws.
The classical natural law tradition requires a dialectical interaction of three components. Law must be an ordinance of reason that results from reflection upon the natural ends of human nature. The conclusions of reason must be embodied in actual rules promulgated following a willed choice of one who has care of a community. Finally, the specific laws of a community must be devised and revised in light of the developing and evolving practices of that community.
26. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983), 556.
27. Harold J. Berman, “An Ecumenical Christian Jurisprudence,” in The Teachings of Modern Christianity on Law, Politics, and Nature, vol. 1, ed. John Witte, Jr., and John S. Alexander (New York: Columbia University Press, 2006), 756– 57.
28. Soper identifies four schools of jurisprudence: classical natural law, classical positivism, modern positivism, and modern natural law. See Philip Soper, “In Defense of Classical Natural Law in Legal Theory,” 205– 6.
29. Berman, Law and Revolution, 529.
30. Lloyd L. Weinreb, “The Moral Point of View,” in Natural Law, Liberalism, and Morality: Contemporary Essays, ed. Robert P. George (Oxford: Oxford University Press, 2001), 202.
31. St. Thomas Aquinas, Summa Theologica, trans. Fathers of the English Dominican Province (New York: Benziger Brothers, 1947), I-II, q. 90, a. 4 (unless otherwise noted all translations of the Summa Theologica are from this edition).
32. Ibid., I-II, q. 90, a. 4 (my translation).
33. Hart, Concept of Law, 6– 7.
34. Summa Theologica I-II, q. 90, a. 4.
35. Gratian, Concordia Discordantium Canonum, in Corpus Iuris Can onici (Graz: Akademische Druck-u. Verlagsanstalt, 1959); electronic reproduction, vols.
1– 2 (New York: Columbia University Libraries, 2007), D.1, C.5 (hereafter cited as Decretum), http://www.columbia.edu/cu/lweb/digital/collections/cul/texts/ldpd _6029936_001/pages/ldpd_6029936_001_00000059.html.
37. See, Henri Grenier, Thomistic Philosophy, vol. 2, Philosophy of Nature, trans. Rev. J.P.E. O’Hanley (Charlottetown, PEI: St. Dunstan’s University Press, 1950), 220– 21.
39. See ibid.
40. Marcus Tullius Cicero, De Finibus Bonorum et Malorum, 2nd ed., trans. H. Rackham (New York: G.P. Putnam’s Sons, 1921), 293.
41. Ralph McInerny, St. Thomas Aquinas (Notre Dame, IN: University of Notre Dame Press, 1982), 61. See also Aquinas, Summa Theologica I, q. 14, a. 16, and St. Thomas Aquinas, Commentary on the Nichomachean Ethics, trans. C.I. Litzinger (Chicago: Henry Regnery, 1964), bk. 6, lect. 2 (discussing the relationship between speculative and practical intellect).
42. See Alasdair MacIntyre, Three Rival Versions of Moral Enquiry: Encyclopaedia, Genealogy, and Tradition: Being Gifford Lectures Delivered in the University of Edinburgh in 1988 (Notre Dame, IN: University of Notre Dame Press, 1990), 62.
43. Ibid., 128.
44. See Leo Strauss, Natural Right and History (Chicago: Chicago University Press, 1953), 309– 12.
45. Ibid., 311.
46. See Aaron J. Rappaport, “On the Conceptual Confusions of Jurisprudence,” Washington University Jurisprudence Review 7, no. 1 (2014): 77– 106.
47. Strauss, Natural Right and History, 312.
48. Charles De Koninck, “On the Primacy of the Common Good: Against the Personalists and The Principle of the New Order,” The Aquinas Review 4 (1997): II: “Negation of the Primacy of the Speculative,” http://ldataworks.com /aqr/V4_BC_text.html#BC_h003.
50. See Summa Theologica I, q. 84, a. 6 (citing Aristotle, Metaphysics 1.1, and Posterior Analytics 2.15).
51. John Finnis, Natural Law and Natural Rights, 2nd ed. (Oxford: Oxford University Press, 2011), 375.
52. Alasdair MacIntyre, After Virtue: A Study in Moral Theory, 2nd ed. (Notre Dame, IN: University of Notre Dame Press, 1984), 52. Some quotations herein are from the second and some from the third edition. Unless otherwise noted, all references are to the second edition.
53. On the convertibility of the concepts of being and goodness John L. Hill, After the Natural Law: How the Classical Worldview Supports Our Modern Moral and Political Values (San Francisco: Ignatius, 2016), 59– 60.
54. MacIntyre, After Virtue, 53.
57. Jean Porter, Natural and Divine Law: Reclaiming the Tradition for Christian Ethics (Grand Rapids, MI: Eerdmans, 1999), 77.
58. Aristotle, Physics, in The Basic Works of Aristotle, ed. Richard McKeon (New York: Random House, 1941), 2.1.
60. Ibid., 2.2.
63. MacIntyre, Three Rival Versions, 134.
64. Edward Feser provides another excellent example that demonstrates the logical connection between being and goodness: “It is of the essence or nature of a Euclidian triangle to be a closed plane figure with three straight lines, and anything with this essence must have a number of properties, such as having angles that add up to 180 degrees. These are objective facts that we discover rather than invent; certainly it is notoriously difficult to make the opposite opinion at all plausible. Nevertheless, there are obviously triangles that fail to live up to this definition. A triangle drawn hastily on the cracked plastic seat of a moving bus might fail to be completely closed, or to have perfectly straight sides, and thus its angles will add up to something other than 180 degrees. Even a triangle drawn slowly and carefully on paper with an art pen and a ruler will contain subtle flaws. Still, the latter will far more closely approximate the essence of triangularity than the former will. It will accordingly be a better triangle than the former. Indeed, we would naturally describe the latter as a good triangle and the former as a bad triangle”; Edward Feser, Neo-Scholastic Essays (South Bend, IN: St. Augustine’s Press, 2015), 298– 99.
65. See MacIntyre, After Virtue, 57– 59.
66. Porter, Natural and Divine Law, 93. Notes to Pages 22–33.
67. Summa Theologica I-II, q. 90, a. 4.
68. Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natu ral Law, and Church Law, 1150—1625 (Grand Rapids, MI: Eerdmans, 1997), 23– 24.
69. Pauline C. Westerman, The Disintegration of Natural Law Theory:
Aquinas to Finnis (Leiden: Brill, 1998), 82.
70. See Hill, After the Natural Law, 53.
71. See Summa Theologica I-II, q. 93 and 94.
72. Ibid., I-II, q. 90, a. 1.
74. For a more complete discussion of the distinction between objective and subjective morality, see Henri Grenier, Thomistic Philosophy, vol. 4, Moral Philosophy, trans. Rev. J.P.E. O’Hanley (Charlottetown, PEI: St. Dunstan’s University, 1950), 76– 79.
75. Ibid., 82– 86.
76. Ibid., 78.
77. See ibid., 82– 86.
78. Strauss, Natural Right and History, 81– 91.
79. See chapter 7 in The Architecture of Law: Rebuilding Law in the Classical Tradition.
80. See Strauss, Natural Right and History, 81– 91.
81. MacIntyre, Three Rival Versions, 28, 191.
82. Ibid., 191.
83. See Jean Porter, Ministers of the Law: A Natural Law Theory of Legal Authority (Grand Rapids, MI: Eerdmans, 2010), 278– 79.
84. See chapters 6 and 7 in The Architecture of Law: Rebuilding Law in the Classical Tradition.
85. See Jonathan Crowe, “Clarifying the Natural Law Thesis,” Australian Journal of Legal Philosophy 37 (2012): 161.
86. See Finnis, Natural Law and Natural Rights, chap. 1.
87. Hart, Concept of Law, 169.
88. Ibid., 9, 44, 84, 121, 122.
89. Ibid., 177.
91. Grenier, Moral Philosophy, 77.
92. Ibid., 89.
93. See ibid., 10– 11.
94. See Hart, Concept of Law.