Introduction to Natural Law Jurisprudence (part 3)

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, part 2 here.


The consideration thus far has continually referred to the end or object of human acts. We need to establish a few clarifications. The end or object of human activity is incorporated into the definition of law in the phrase “for the common good.” This part of the definition indicates the purpose of law: it answers the question, “Why does law exist?” Law exists to orient human actions to their common natural end. Law is a rule and measure that directs the human intellect and will toward the object or end that is common to all human beings. Yet, like the false dichotomy between law and morality, the term “common good” can be misunderstood as in opposition to the individual end, the object of the life of an individual human being. Like the false dichotomy between law and morality, we will see that there is no dichotomy between common and individual good: they are parts of the same whole.

To more fully understand the common good as the end of law, one must more deeply consider the different layers of the legal edifice than is possible in this introduction.  For an introductory consideration it is sufficient to establish that for something to be part of the common good it must be both good (i.e., objectively oriented to a good) and common to members of the species. Something which is good is a perfection of the intrinsic nature of a thing. The more perfectly a thing conforms to what it is, the more it partakes of the attribute of goodness. Since an individual exists as a particular instantiation of a universal, individuals transcendentally related to the same universal share a common nature and hence a common mode of perfection. That which is therefore good for all instances of a universal is a common good. To be common, a good must be a good that is not unique to one individual or group of individuals but it must be a good common to all in the relevant species. “Common” here means capable of being participated in by more than an individual. A purely personal good is one that is good only for the individual and cannot be participated in by others. A common good is more universal in that it can be the good or end not of one singular person, but of many persons. The common good is the composite of all the goods common to human nature and is equivalent to the end of human nature. The common good is more than the collection of the private good of each person. It is, however, not separable from the good of the individual members because that which is good for an individual is always consonant with that good common to all. As De Koninck explains, “The common good is not a good other than the good of the particulars, a good which is merely the good of the collectivity looked upon as a kind of singular.”95 Because of this connection, an individual can say that the common good is his good and by that claim he does not mean it is his good in opposition to the good of other members of society. The common good is his good and also the good of others. Since the common good transcends the singular good, it is each member’s good simultaneously because it is the end of each member by virtue of their common metaphysical composition.

Good and being are deeply related. The good or end of something is to attain the perfection of its being. The common good is the attainment of the perfection of each person that is common to all people. The end or perfection of man is fixed by his nature and has been legislated by the eternal law. The particular end of each man is therefore the same or common end of all men, to attain the perfection of their common nature.

Although the term “common good” has been abused by collectivists of various stripes, it is opposed to a collectivist agenda that obliterates the particular good of individuals. The common good is greater than the singular good in that it is a good, a final cause for the singular, but it transcends the singular: “It reaches the singular more than the singular good: it is the greater good of the singular.”96 The common good is greater in the sense that it is a genus that includes the species of the singular good. The family presents a good example. If the father of a family obtains a new job for higher pay, this is a good for the father, but it is also a good for the entire family. The new job is a good that diffuses itself throughout the whole family, while also being a singular good for the father. The highest end of the singular is to desire that which is good for itself and good for the entire species. The collectivist error conflates the common good of man with the political common good. Collapsing all into the individual and the political state, the collectivist limits the common good of man to the political aspect of man’s nature. But as Aquinas notes, “Man is not ordained to the body politic, according to all that he is and has.”97 As De Koninck explains:

It is not according to all of himself that man is a part of political society, since the common good of the latter is only a subordinate common good. Man is ordered to this society as a citizen only. Though man, the individual, the family member, the civil citizen, the celestial citizen, etc., are the same subject, they are different formally. Totalitarianism identifies the formality “man” with the formality “citizen.” . . . Man cannot order himself to the good of political society alone; he must order himself to the good of that whole which is perfectly universal, to which every inferior common good must be expressly ordered.98

This profound reflection of De Koninck points out the poverty of understanding wrought by a simplistic debate between collectivists, who understand the common good to consist solely in the political good of the state, and the personalists, who combat collectivism by exalting the particular good of individuals. As De Koninck indicates, the common good is composed of many common goods. There are as many common goods as societies—family, local communities, the nation. Yet these component common goods are themselves part of the ultimate common good of man and are hierarchically related as moving from smaller to greater, each higher good encompassing the lower ones.99 Just as the simplified dichotomy of morality and law has obscured the more complex nature of morality, so too modern discussion of the common good has become two-dimensional, individual and common, whereas in reality the common good is composed of a variety of common goods, all related to aspects of common human nature.

The common good is also distinguishable from the aggregate good of some forms of utilitarianism that measure good by that which is good for the greatest number of singulars. The common good is not the aggregate good. As De Koninck explains, “The common good is greater not because it includes the singular good of all the singulars; in that case it would not have the unity of the common good which comes from a certain kind of universality in the latter, but would merely be a collection, and only materially better than the singular good.”100 Recognizing the singular good as a component of a more comprehensive common good flows from the statement that whatever is good for the part is also good for the whole. Utilitarianism, on the other hand, can only understand the good of the part to be oriented to the good of many other parts as parts, rather than the good of the whole. Education provides a good example. To truly educate an individual is good for the one educated, but, by being good for the one, education is also good for the entire community because the educated individual as a social animal communicates this good throughout the society through the shared natural inclination to know the truth. By perfecting an aspect of the individual through education, the common good is also perfected. Collectivism sees the common good as a good in itself but ultimately an instrumental end to satisfying singular goods. The communist collective is seen as good because it is seen as superior at satisfying the material needs of individuals. The proper understanding of common and personal good recognizes that neither is a merely instrumental good for the attainment of the other. The common good is an end in and of itself, which includes within it the singular good of the members of the community. De Koninck explains:

It is the singular itself, which, by nature, desires more the good of the species than its particular good. This desire for the common good is in the singular itself. Hence the common good does not have the character of an alien good—bonum alienum—as in the case of the good of another considered as such. Is it not this which, in the social order, distinguishes our position profoundly from collectivism, which latter errs by abstraction, by demanding an alienation from the proper good as such and consequently from the common good since the latter is the greatest of proper goods?101

The collectivists create a good of the whole that is distinct from the good of the individual. The true notion of the common good is not in contrast to the singular good because, as we shall see in examining the natural law, the desire for the good of the society in which one lives is a part of the natural end or perfection of each individual as a social being. Jeremiah Newman explains that it is important to note that when men are considered parts of the common good, they are not parts only. The common good is the unity of order proper to the group. But the parts of the whole are also wholes themselves possessing their own end.102 They are part-wholes of a larger whole. This is why the common good of the part-wholes also implies concern for the part-wholes as wholes. Likewise, the common good does not mean the good of a majority, but the good common to each and every member.103 It is more than the sum of the individual goods.

We moderns have a difficult time comprehending this conclusion because when we hear the phrase “the good of the individual” we tend to understand that to mean “the good chosen by the individual.” We ask: What if the individual chooses a good other than that of other individuals? We often see conflict between individual good and common good because we conceive of good as something arbitrary, chosen, or selected. In reality, individual good is distinct from individual desire. The eternal law in fixing the nature of man establishes for man the good or perfection of that nature independent of any choice by man himself.  Modern individualism with its basis in individual and competitive passions cannot conceive of this commonality of good. We harbor a notion that it is possible in theory, at least, for an individual to cheat the system, acting on his own outside the given qualities of human nature to achieve “his” uniquely chosen good, which differs from other humans’ good. But the meaning of man being a social and political animal is that this is impossible. Man needs society to attain his end common with other men because living in society is part of the nature of man. As Aristotle noted, a man living outside society is either a beast or a god—he is either below or above human nature. The common good corrects this erroneous understanding by reminding us that the good of the individual is not chosen, but given. It is the good common to all individual humans.

To work explicitly for the common good is proper to the perfection of each person, and it is a good denied to lower creatures. This inclination to work for the common good is a distinguishing trait of human existence. De Koninck continues:

Beings are more perfect to the degree that their desire extends to a good more distant from their mere singular good. The knowledge of irrational animals is bound to the sensible singular, and hence their desire cannot extend beyond the singular and private good; explicit action for a common good presupposes a knowledge which is universal. Intellectual substance being “comprehensiva totius entis,” being in other words a part of the universe in which the perfection of the entire universe can exist according to knowledge, the most proper good of it taken as intellectual substance is the good of the universe, an essentially common good.104

In sum, “imperfect beings tend towards the mere good of the individual as properly understood; perfect beings tend towards the good of the species; and the most perfect beings towards the good of the genus.”105 The common good is not desirable by individuals merely because it benefits them, but it is desired by individuals in itself as a good common to all people. As Aquinas explains, “Therefore, to love the good in which the blessed participate so that it might be had or possessed does not make man well-disposed toward beatitude, because the wicked also desire this good. But to love that good for its own sake in order that it might remain and be made wide-spread, and that nothing might act against that good, this does dispose man well toward that society of the blessed.”106

Aquinas summarizes this interdependence of individual and common good: “The goodness of any part is considered in comparison with the whole. . . . Since then every man is a part of the state, it is impossible that a man be good, unless he be well proportionate to the common good: nor can the whole be well consistent unless its parts be proportionate to it.”107 De Koninck comments on this statement of Aquinas:

This ordering is so integral that those who strive towards the common good strive towards their own proper good ex consequenti: “because, first, the proper good cannot exist without the common good of the family, of the city, or of the kingdom.” . . . And because, in the second place, as man is a part of the household and of the city, it is necessary for him to judge what is good for himself in the light of prudence, whose object is the good of the multitude; for the right disposition of the part is found in its relation with the whole.108

The exaltation of private individual goods over a common good, which is a hallmark of modern philosophy and jurisprudence, has been understood by those rooted in classical jurisprudence to lead to tyranny. As De Koninck states, “A society constituted by persons who love their private good above the common good, or who identify the common good with the private good, is a society not of free men, but of tyrants . . . who lead each other by force, in which the ultimate head is no one other than the most clever and strong among the tyrants, the subjects being merely frustrated tyrants.”109

Still, the foregoing has not described what the matter of the common good is. We now understand its nature in general but need to bring more specificity to its content. A complete consideration is not possible in an introduction such as this but some specificity can be sketched. Since the common good is the perfection of human nature, we need to understand the components of human nature. It is precisely the primary precepts of natural law that define for us those aspects of human nature and hence the common good. Yet we can summarize, in general, the content of the natural or temporal common good.110 It can be summarized as the “‘unity of order’ . . . [a] dynamic order, the good life of the multitude.”111 The proximate aspect of the common good of a political community is peace, prosperity, and training in virtue as necessary elements to living the good life.112 Its more remote and more primary aspect is the actualization of the good life by the members of the community as members of the community.113 Thus there are two different purposes for which any law made for the care for a political community can aim. The proximate end can be to prohibit and require acts necessary to bring about the potency for individuals to perfect their nature by living a good life. Those acts that are contrary to this proximate end require law, or the potency cannot exist. Those acts that prevent actualization of the remote end are also subject to law, but if they do not affect the proximate end, then they are less urgently addressed by law. The prudential balancing of which acts of virtue to prohibit is a balancing between these proximate and remote ends of law.

Since a prong of Aquinas’s definition of law is that it is directed toward the common good, the effect or end of law must be the common good of those subject to the law. As this section has argued, the common good of man is his “proper virtue” or “that which makes its subject [man] good.”114 In order to make men good, law fixes punishment with respect to three kinds of human acts: (1) those intrinsically good (ex genere, having connotations of birth or generation), (2) intrinsically evil (ex genere), or (3) intrinsically indifferent (again ex genere). As to the first type of acts, the law may order or command (praecipere vel imperare) that these acts be done, as political prudence requires. With respect to the second, the law prohibits (prohibere) them as political prudence requires. As to those acts neither good nor evil in themselves, the law leaves them alone (permittere), neither requiring nor forbidding them by the fear of punishment. Although discretion is left to those who have care of the community as to the details of which acts to require, prohibit, or permit, the bounds of the exercise of political prudence are fixed by the nature of the acts. A lawgiver may for political prudence refrain from prohibiting a particular intrinsically evil act, but he may not require it. Something may be against natural law and therefore contrary to the end of human existence but not be a violation of positive law because due to political prudence it has not been enacted in civil law. But whenever individual action affects the common good, it becomes proper matter for positive law to address.

95.    De Koninck, “On the Primacy of the Common Good.”

96.    Ibid.

97.    Summa Theologica I-II, q. 21, a. 4, reply to obj. 3.

98.    De Koninck, “On the Primacy of the Common Good.”

99.    See Jeremiah Newman, Foundations of Justice: A Historico-Critical Study in Thomism (Cork: Cork University Press, 1954), 36.

100. De Koninck, “On the Primacy of the Common Good.” 101. Ibid.

102.     See Newman, Foundations of Justice, 21 (citing Aquinas’s Commentary on the Nichomachean Ethics, lecture 1).

103.     See ibid., 34: “The good of the parts is the matter of the common good.” 104. De Koninck, “On the Primacy of the Common Good.” 105. Ibid.

106.          Thomas Aquinas, On Charity, trans. Lottie H. Kendzierski (Milwaukee:

Marquette University Press, 1960), art. 2.

107.          Summa Theologica I-II, q. 92, a. 1, reply to obj. 3.

108.          De Koninck, “On the Primacy of the Common Good,” quoting Summa

Theologica II-II, q. 47, a. 10, reply to obj. 2.

109.          De Koninck, “On the Primacy of the Common Good.”

110.          As discussed in chapter 5 of The Architecture of Law: Rebuilding Law in the Classical Tradition, beyond man’s natural end, God has through grace given a supernatural end to man that transcends this natural or temporal end. As this is a work of jurisprudence and not theology, this book is not concerned directly with this supernatural end of man other than to acknowledge its existence and the subordination of the temporal end to the attainment of this greater supernatural end. For us moderns, human society and law are primarily or exclusively material and temporal. For the classical tradition, the material is only an initial part. The purpose of law and society is to establish, preserve, and promote virtuous living in the multitude; see Newman, Foundations of Justice, 40 (citing Aquinas, De Regimine Principum 1.15). But in light of the ultimate remote end of civil society, man’s supernatural end, this common living well of the multitude is also a means to attain the divine end; see De Regimine Principum 1.14.

111.          Newman, Foundations of Justice, 37– 38 (citing Aquinas, De Regimine Principum 1.14, 15, and Aquinas, Commentary on the Aristotle’s Politics, bk. 3, lecture 5).

112.          Newman, Foundations of Justice, 38.

113.          Ibid.

114.          Summa Theologica I-II q. 92, a. 1 (citing Aristotle, Nicomachean Eth ics 2.6).