By Professor Brian M. McCall<\/p>\n\n\n\n
Adapted from ch. 1 of The Architecture of Law: Rebuilding Law in the Classical Tradition<\/em> (Notre Dame Press 2018). Part 1 can be found here<\/a>.<\/p>\n\n\n\n Harold Berman once described three\nmodes of jurisprudence: positivist <\/em>(will of lawgiver), natural law <\/em>(expression of moral principles as understood by reason), and historicist <\/em>(law as a development of custom).26 <\/sup>For Berman, all\nthree are necessary elements of law, as all three are intrinsic to all being.\nHe explains:<\/p>\n\n\n\n Will, reason, memory\u2014these 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\u2014that is, the experience of time. . . . Their applicability to law is particularly striking, for law is indeed a product of will, reason, and memory\u2014of politics, morality, and history\u2014all three.<\/em>27<\/sup> <\/p>\n\n\n\n\n\n\n\n Three of the schools identified by Philip Soper28 <\/sup>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 \u201cnew\u201d 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\u2014universal principles understood by reason, commands of the legislator, and developing historical customs\u2014into 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 <\/sup>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: \u201cThe 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.\u201d30<\/sup><\/p>\n\n\n\n In contrast to this more abstract\nnew natural law, the classical definition of law, best formulated by St. Thomas\nAquinas, combines all three elements. Aquinas defines law as \u201can ordinance of\nreason for the common good, made by him who has care of the community, and\npromulgated.\u201d31 <\/sup>The first element, \u201cordinance of reason for the\ncommon good,\u201d incorporates within the concept of law universal principles of\nreason concerning the common ends of human nature. Second, \u201cmade\u201d and\n\u201cpromulgated\u201d refer to an act of the will\u2014a command of a specific authority\nwhose command binds as a rule and measure. Finally, laws are made by one who\n\u201chas care of the community.\u201d Lawmaking must be historically situated within a\ndeveloping community and not be a mere abstraction of reason or disembodied\ncommands. Classical natural law jurisprudence considers all three elements as\nnecessary components of law. In this introduction to natural law, I will merely\nattempt to sketch their terms.<\/p>\n\n\n\n Aquinas\u2019s definition of law begins\nby clarifying that anything which does not possess the qualities enumerated in\nhis definition is not in fact a law\u2014\u201cnothing is [law] other than that which . .\n.\u201d32 <\/sup>There are definitional criteria, beyond the volition of the\nlawgiver, necessary to make an utterance or command a law. Although the\nultimate answer is more complex, a primary reply to Hart\u2019s question of what\ndistinguishes the command of a gunman from a law33 <\/sup>is that a law\nmust be an ordinance of reason (ordinatio rationis<\/em>).34 <\/sup>Law is a product\nof reason. The primary criteria for something to be a law is that it must be\n\u201cof reason\u201d or reasonable. The great medieval jurist Gratian notes this\nrequirement of law when he says that law \u201cratione\nconsistat<\/em>,\u201d35\n<\/sup>which can be translated \u201cconsists in reason\u201d or \u201cstands with or agrees\nwith reason.\u201d In the same section, Gratian points out that reason designates\n(with a connotation of entrusting) the law (legem\nratio commendat<\/em>),\nand that if law consists in reason, then it will be all that may have already\nstood (or agreed) by reason (si ratione lex constat\nlex erit omne iam, quod ratione constiterit<\/em>).36 <\/sup>The use of the\nperfect subjunctive (constiterit<\/em>) in this last phrase is\ninteresting. It expresses the temporal potentiality of law. Law arises after\ntruths may have been constituted in reason. The grammatical mood of the verb constiterit <\/em>acknowledges the uncertainty of success in this first step\u2014\u201cmay\nhave stood by reason.\u201d There is no certainty of complete success in deriving\nlaw from truths known from reason. This uncertainty underlines one of the\ntensions of natural law jurisprudence: objective truths of reality are\naccessible to human reason, but we may fail to access them fully.<\/p>\n\n\n\n This relationship between law and reason\nis clearly distinguished from positivism, which accepts as law anything that\nmeets the currently reigning procedural requirements for making a law. For the\nnatural law system, such is not sufficient; to be a law, the rule and measure\nmust agree with or stand in the faculty of reason, not merely the will.<\/p>\n\n\n\n As Aquinas\u2019s and Gratian\u2019s\ndefinitions highlight, law is first an ordinance formulated by the rational\npower. Yet, as Gratian indicates, the rationality of human law flows from\nprelegal truths known by reason, with which law must agree. Classical\nphilosophy distinguished different types of reasoning\u2014the speculative and\npractical intellect. As the Thomist Henri Grenier explains, the two types of\nintellect are not two different powers but one single power distinguished by\nthe two different types of ends to which the power can be directed.37 <\/sup>According\nto Grenier, \u201cThe speculative intellect <\/em>is the name given to the intellect\nas it knows truth for the sake of the knowledge of truth. The practical intellect <\/em>is the name given to the intellect as it directs knowledge\nto work, i.e., it directs its knowledge to some practical end.\u201d38 <\/sup>The\nspeculative intellect is directed at knowledge of things as they are. It seeks\nto know the truth of things for what they are. The practical intellect is\ndirected to action. The former seeks to know what something is and the latter\nseeks to know what someone should do. Law is a practical discipline. Its end is\naction. A law is at its core a rule directing one to act. Yet, jurisprudence is\nrooted in both the speculative and practical intellect because one must first\nknow things for what they are before one can know how to act. As Grenier\nexplains, the practical intellect, although aimed at knowing the right action\nto attain an end, presupposes the speculative intellect has come to know the\nend to which the practical intellect tends:<\/p>\n\n\n\n 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.<\/em>39<\/sup> <\/p>\n\n\n\n Law directs action, and therefore\nin order to know how to make good law, we must understand to what end it\ndirects human action. We must know what is the nature and end of human action.\nThe classical natural law tradition refuses to accept the segregation of such\npractical enquiry from speculative knowledge about universals. Cicero (whose\ninfluence on the natural law tradition is significant) explains how speculative\nknowledge is essential for knowing how to live: \u201cHe who is to live in\naccordance with nature must base his principles upon the system and government\nof the entire world. Nor again can anyone judge truly of things good and evil,\nsave by a knowledge of the whole plan of nature and also of the life of the\ngods, and of the answer to the question whether the nature of man is or is not\nin harmony with that of the universe.\u201d40 <\/sup>The breadth of speculative\nknowledge essential to living well is not only natural but even touches\nknowledge of things divine. We will return to the question of whether\nspeculative knowledge of not only natural things but also supernatural things\nis necessary to perfect practical reason. From Cicero\u2019s quotation, we can see\nthat for him knowledge of things divine was essential.<\/p>\n\n\n\n Putting aside this issue of the\nnecessity of knowledge of things divine, we can establish for now that at least\nsome speculative knowledge is essential to natural law jurisprudence. As\nphilosopher Ralph McInerny indicates, some forms of intellectual activity\nrequire the engagement of both speculative and practical knowledge.41 <\/sup>When\none is making a law, one is engaging the practical intellect\u2014what law in this\nparticular set of circumstances conforms action to the good? Yet, to engage in\nthis reasoning, the lawmaker must know what is truly good. Analogically, a\nhousebuilder uses the practical intellect in knowing how to build a house, but\nhis intellect must know what it means to be a house. He must understand the\nuniversal \u201chouse\u201d before he can know how to build this house.<\/p>\n\n\n\n Alasdair MacIntyre explains that\ntwo interrelated questions must be asked in any craft, including the craft of\nphilosophy (and I would add law): What is good and best for me within the\ncontext and limitations in which I find myself? and What is good and best per se<\/em>?42 <\/sup>The answers to these questions are inherently\ninterdependent. For the natural law tradition of Aquinas, and for the\nAugustinian and Aristotelian strands upon which it drew, \u201cthere is then no form\nof philosophical inquiry . . . which is not practical in its implications, just\nas there is no practical enquiry which is not philosophical [i.e., speculative]\nin its presuppositions.\u201d43<\/sup><\/p>\n\n\n\n Modern philosophy forces a\ncleavage between speculative and practical knowledge, because they are seen as\nincompatible. The theories of Descartes, Rousseau, Hobbes, and Locke choose the\nspeculative. Knowledge about ourselves or society comes from speculative contemplation\nof a mythical disembodied self or a mythical state of nature. The other\nextreme, represented by Edmund Burke, disparages speculative knowledge and\ncontends that politics and law must be purely practical.44 <\/sup>Burke\nmaintains, \u201cWhereas theory rejects error, prejudice, or superstition, the\nstatesman puts them to use.\u201d45 <\/sup>It is the myopic focus of modern\nconceptual jurisprudence on practical knowledge that lies at the heart of Aaron\nRappaport\u2019s critique of how it has obscured the big questions that must be\naddressed to make jurisprudence meaningful and useful.46 <\/sup>John Finnis\nis a good example. He presents his concept of law as practical knowledge, and\nalthough he believes there is a sound speculative foundation for it, that\nspeculative knowledge is not essential to his presentation of practical reason.\nSpeculative knowledge, for Finnis, is literally an appendix rather than a\nfoundation. This separation of speculative and practical intellect is a break\nwith classical, and particularly Aristotelian, thought.47<\/sup><\/p>\n\n\n\n As the Thomist Charles De Koninck\nexplains, \u201cPolitical science and prudence are practical in that they direct\ntowards an end in conformity with right reason. But that presupposes that we\nknow in some way the nature of the thing to direct and of the end; which is to\nsay that the rectitude of practical rule presupposes the rectification of the\nspeculative intellect.\u201d48 <\/sup>The speculative must come first. We must\nknow what the goal is, and then law, practical knowledge, can tell us how to\nattain it. De Koninck further compares speculative and practical knowledge and\nshows the dependence of the latter on the former: \u201cIn speculative knowledge the\nintellect is measured by the object, and in speculative wisdom we are\nprincipally concerned with things better than ourselves. . . . In practical\nknowledge, insofar as it is practical, the intellect is itself measure.\u201d49\n<\/sup><\/p>\n\n\n\n A simple example can illustrate\nthis primacy of the speculative. If I am lost and stop to ask for directions, I\ncannot simply ask, \u201cWhich way should I turn?\u201d The person I ask cannot answer\nthis question. If he just formulates a practical rule \u201cturn left\u201d without\nknowing my ultimate end, the practical rule is of no value. If he happens to\nchoose the direction that will take me to my goal, it is only accidentally a\ngood rule. To formulate a rule for my action, the end must be known. The proper\nquestion to ask in this situation is this: \u201cI am trying to reach place X, which\nway should I turn?\u201d The speculative knowledge, where I am going, must come before\nthe practical question.<\/p>\n\n\n\n But the relationship is in fact\nmore complex. Not only is practical knowledge dependent upon speculative\nknowledge, but we come to know the universal nature of things through our\nknowledge of particulars. We come to understand the universal truths of the\nspeculative intellect in the context of making practical decisions in\ncontingent situations. Speculative truths are learned through encounters with\nparticulars. This conclusion is a corollary of the general principle that sense\nknowledge is the material cause of intellectual knowledge.50 <\/sup>Aquinas,\nrelying on Aristotle, argues that classical jurisprudence understood the\nprinciples of natural law to be general rules not made by human reason but\nrather discovered through reflecting on human nature in a process that is both\ninductive and deductive. These principles of natural law must be known both for\ntheir own sake (because they define the good of human existence) and for the\nsake of directing human lawmaking. Human-made positive laws, on the other hand,\nare formulated by human reason to add greater specificity to the general\nprinciples of natural law to direct people to specific action in particular\ncircumstances and to help them to know the principles of natural law that they\nshould see in particular laws. We can see in this simplified description of the\nnatural legal order the\ninterconnectedness of speculative and practical knowledge.<\/p>\n\n\n\n It is time to make explicit what\nhas been implied thus far in the consideration of the role of reason in natural\nlaw jurisprudence. A law is not just any ordinance. It is an ordinance of\nreason, by which is meant a particular type of reasoning from nature. This\nconcept is at the heart of the importance of speculative knowledge to natural\nlaw jurisprudence. An ordinance of reason is a rule that is consonant with the\nway things truly are. In short, legal rules are rationally discovered from\nconsidering the nature of things.<\/p>\n\n\n\n To introduce the term \u201cnature\u201d\nraises a host of issues. As Finnis remarks, as far back as the Stoics this term\nhas possessed a variety of meanings: \u201cBeing scholastics, interested in\nestablishing a technical vocabulary, the Stoics were aware that natura <\/em>was a word with a variety of meanings and shifting references.\u201d51\n<\/sup>Confusion over the meaning of the claim that rules of action can be\ndiscovered from rightly understanding nature has led to a widespread rejection\nof classical natural law reasoning as a fallacy. Since the Enlightenment, this\nancient epistemological approach has been dismissed as the \u201cnaturalist\nfallacy.\u201d The simplified version of the argument is that it is not possible to\ndemonstrate from what something is what it ought to do, or one cannot derive an\n\u201cought\u201d statement from an \u201cis\u201d statement.<\/p>\n\n\n\n MacIntyre explains that the key to\nrecognizing the legitimacy of classical reasoning from nature is that classical\nauthors clearly understood that the word \u201cnature\u201d had two related meanings.\nMacIntyre explains that for Aristotle, ethics is the science of the transition\nof \u201cman-as-he-happens-to-be\u201d to\n\u201cman-as-he-could-be-if-he-realized-his-essential-nature.\u201d52 <\/sup>Those\nwho decry natural law reasoning as fallacious would be correct if it merely\nargued that man-as-he-happens-to-be at a moment in history tells us what\nman-ought-to-be. This would be an unsupported mere rationalization of whatever\nman-happens-to-be at any point in time. It would provide no universally valid\nrules of action other than justifying the ever changing status quo. In\ncontrast, for Aristotelian and hence natural law jurisprudence, one critically\nconsiders what man-happens-to-be in light of the potential for what\nman-could-be if he perfected the elements of what makes him what he happens to\nbe. Aristotle\u2019s central concept of potency and act is at the heart of\nMacIntyre\u2019s insight. We consider man-as-he-happens-to-be in order to discover\nthe potencies for what man-could-be-if-he-realized-his-essential-nature.\nLikewise, by considering water as it happens to be we can discover that it has\nthe potency to become steam under the right conditions. When those grounded in\nthe naturalist fallacy argument encounter the term \u201cman-as-he-happens-to-be,\u201d\nthey understand it only to encompass current acts. Yet, for Aristotelians the\nterm also includes the unrealized potentialities within what man-happens-to-be.\nMan-as-he-happens-to-be encompasses both what man is in act at the moment plus\nall the potencies for perfection contained within man. Identification of\nnatural law precepts involves, at its heart, identifying these potentialities\ncontained within man-as-he-happens-to-be and then specifying rules directing\naction toward actualizing these potencies.<\/p>\n\n\n\n The closer one comes to attaining\nthe state of man-as-he-ought-to-be the closer one comes not only to goodness or\nperfection but to the fullness of being. The more good or perfect something is,\nthe more real it is or the more being it possesses.53 <\/sup>Many modern\nauthors who have an aversion to understanding rules in light of human nature\nare really arguing against basing laws on man-as-he-happens-to-be in act rather\nthan the position of classical natural lawyers that it should be based on\nman-as-he-could-be-if-he-realized-his-essential-nature as evidenced in the\npotencies for perfection. The transition from the former to the latter involves\nan interconnected examination in light of reason and experience of (1) man-as-he-happens-to-be,\n(2) the precepts of the natural law (or \u201crational ethics\u201d), and (3)\nman-as-he-could-be-if-he-realized-his-essential-nature.54 <\/sup>Rather\nthan deriving the precepts from man-as-he-happens-to-be as conclusions from\npremises, there is a more nuanced dialectic among all three perspectives. Their\nrelationship involves a movement from man-as-he-happens-to-be to\nman-as-he-could-be-if-he-realized-his-essential-nature by means of the principles\nof natural law.55 <\/sup>But it is only through the process of attempting\nthis movement from one to the other that we discover those principles of\nnatural law. The process is not a simple movement of one to the other through\nthe third. It is dialectical. The Christian synthesis expands (in a paradoxical\nway that simplifies rather than complicates matters) the notion of\nman-as-he-could-be-if-he-realized-his-essential-nature to include not only a\nnatural component but a supernatural component, and also an expanding notion of\nrules of rational ethics that includes precepts of divine law.56<\/sup><\/p>\n\n\n\n Jean Porter similarly highlights\nthe tension between facts about things as we find them and their underlying\norder and intelligibility in natural law jurisprudence. Nature as we find it\nmust be understood in terms of its preordained intelligibility. She explains\nthat natural law reasoning involves rational evaluations of natural facts in\nlight of the intelligibility of nature. She begins by distinguishing between<\/p>\n\n\n\n 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\u2019s 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.<\/em>57<\/sup> <\/p>\n\n\n\n Reasoning from nature involves\nrational consideration of the facts as we find them throughout history. The\nfacts of human experience of living in society and living with laws are the\nmatter necessary for speculative reflection on the underlying order and purpose\nof human existence that imperfectly shows itself through these facts. If we can\ndefine it by a negative, reasoning from nature is not merely accepting facts\nabout human experience as we find them. It is about discerning the underlying\nintelligibility hidden beneath often contradictory facts.<\/p>\n\n\n\n Aristotle likewise mentions two\ncompeting understandings of nature as either the matter of something or its\nsubstantial form: \u201cSome identify the nature or substance of a natural object\nwith that immediate constituent of it which taken by itself is without\narrangement, e.g., the wood is the \u2018nature\u2019 of the bed, and the bronze the\n\u2018nature\u2019 of the statue. . . . Another account is that \u2018nature\u2019 is the shape or\nform which is specified in the definition of the thing.\u201d58 <\/sup>He\nconcludes that the \u201cform indeed is \u2018nature\u2019 rather than the matter; for a thing\nis more properly said to be what it is when it has attained to fulfilment than\nwhen it exists potentially.\u201d59 <\/sup>The form of something contains the\ndefinition of that which constitutes its fulfillment. Thus, another way to\ndefine nature is \u201cthe end or \u2018that for the sake of which\u2019\u201d of a thing.60 <\/sup>Even\nin saying that the form is the proper meaning of nature, Aristotle argues that\nwe need knowledge of both particular matter and the universal form to know\nsomething, whether in the discipline of medicine, physics, housebuilding, or\nlaw. He concludes:<\/p>\n\n\n\n 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.<\/em>61<\/sup> <\/p>\n\n\n\n Yet, although the end of something\nis properly its nature, the end \u201cbelongs to the same department of knowledge as\nthe means.\u201d62 <\/sup>As we have seen throughout this discussion, Aristotle\nalso argues that practical knowledge of the means is related to speculative\nknowledge of the end, or \u201cthat for the sake of which.\u201d Law is about human actions.\nThe matter of the jurisprudential reasoning is actual human actions;\njurisprudence requires the discovery of the forms that transcend individual\nhuman acts.<\/p>\n\n\n\n Thus, returning to the alleged\nnaturalist fallacy, as MacIntyre points out, the question of what something\n\u201cis\u201d and what it \u201cought\u201d to do are not distinct questions but rather the same\nquestion. What I ought to do is a function of what I am. As MacIntyre notes:\n\u201cSo \u2018such and such is the good of all human beings by nature\u2019 is always a\nfactual judgment, which when recognized as true by someone moves that person\ntoward that good. Evaluative judgments are a species of factual judgments\nconcerning the final and formal causes of activity of members of a particular\nspecies.\u201d63 <\/sup>Elsewhere, MacIntyre argues that evaluative and factual\njudgments are commonly encountered together. The claim of those who decry of\nthe \u201cnaturalist fallacy\u201d is itself a fallacy, for the rule that an \u201cought\u201d\njudgment cannot be derived from an \u201cis\u201d statement is not universally true. For\nexample, MacIntyre observes when we state that this is a watch, we can and do\nconclude that it ought to display the correct time, because the reason we\nidentify it as being a watch is that it is a being that ought to keep time.\nThis conclusion is true even if we find as a fact that it has been keeping\nincorrect time. Notwithstanding this fact, it ought to be keeping accurate\ntime. The more accurate time it keeps, the more perfect a watch it will be.64\n<\/sup>Likewise, if we know that a person is a firefighter, we regularly\nconclude that he ought to fight fires. The ought conclusion flows from the\nfunction or purpose identified in the predicate of each sentence (i.e., is a\nfireman).65<\/sup><\/p>\n\n\n\n At the heart of classical natural\nlaw jurisprudence\u2019s understanding of law as an ordinance of reason is this\nclaim that rules of action (\u201cought\u201d conclusions) can be known from speculative\nknowledge about the nature (or end or \u201cthat for the sake of which\u201d) of things.\nBy rationally considering what human beings do we can discover what they can\ndo, their potencies for perfection. Rules can then be formulated directing\nhuman action toward these potencies for perfections. It is in this sense that\nwe can say that an ordinance of reason is a rule derived from nature. This\nclaim is at the heart of the fundamental break of the so-called new natural law\nschool of jurisprudence, which abandons this leg of the three-part classical\nunderstanding of law as historically and communally situated commands that\nagree with ordinances of reason derived from the natural end of human nature.\nFor classical authors, all law must be rooted in the metaphysical realities of\nhuman nature, properly understood. Porter explains this cleavage with classical\njurisprudence by means of a compelling example:<\/p>\n\n\n\n There is a more fundamental difference between the \u201cnew natural law\u201d 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\u2019s 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.<\/em>66<\/sup> <\/p>\n\n\n\n As we have seen from Aquinas, law\nmay not be made by just anyone but only \u201cby him who has care of the community\u201d\n(ab eo qui curam\ncommunitatis habet<\/em>).67 <\/sup>It is not someone merely in authority or in\npossession of power. The rule maker must have care of the community. Note that\nthis formulation is not regime-type specific. It does not require the law be\nmade by a king, or a legislative body, or the people at large. The test of\nlegitimacy (that which binds) is that the lawgiver has care of the relevant\ncommunity. There must be a relationship of entrustment and responsibility\nbetween the community and the legitimate lawgiver. The order of reason must not\njust exist in the mind of the lawgiver but must be externalized; it must become\nword; it must be publicly spoken or \u201cpromulgated\u201d (promulgata<\/em>). Although born of reason, law\nbecomes an act of the will, not just a product of speculation. Reason gives\nrise to the act of promulgation.<\/p>\n\n\n\n Although we are critical of legal\npositivism\u2019s claim that human law should be understood solely or primarily as a\nvolitional act, that criticism does not mean that positivists are wrong in\nunderstanding lawmaking to involve an act of the will. The enacting of human\nlaw involves a free human choice, albeit a choice that is still constrained by\nordinances of reason. That we must drive on the right as opposed to the left\nside of the road is not determined by human nature or an ordinance of reason. A\nlawmaker must make a choice between left and right. Higher law would preclude a\nchoice requiring random changes in driving direction, as that would unduly\nendanger human life. Yet, within the constraints imposed by higher law, the\nchoice of left or right is reserved to the election of the lawmaker. Law is an\nordinance of reason, yet it is more than pure intellectual speculation. It\ninvolves willed human choice.<\/p>\n\n\n\n Law is a product of both reason\nand will. Errors occur when either one or the other is overemphasized. As Brian\nTierney has demonstrated in his discussion of Villey\u2019s theory of Aquinas on\nnatural law, Aquinas maintains a distinction between law as describing things\nthe way they are and ought to be and law as a set of precepts.68 <\/sup>Law\nis both a system that explains things as they are and a system of precepts\ndirecting action. Yet, after Aquinas, the volitional sense of law as precept\nseems to dominate later natural law thinkers\u2019 understanding of all kinds of\nlaw, to the exclusion of the first. This emphasis on the volitional aspect\npredates and in some senses prepares the way for Austin. Francisco Su\u00e1rez,\nalthough still clearly a natural law jurist in the Thomistic tradition, tends\nto emphasize law as \u201cbinding precepts, promulgated to rational creatures only,\nwho are directed to a morally good life.\u201d69 <\/sup>As the centuries have gone\nby, this second concept of law, law as willed precepts, and not the former, law\nas that which is and ought to be, has come to dominate. Therefore, contemporary\ndefenses of natural law may err either by overemphasizing the intellectual\ncomponent of natural law jurisprudence or by focusing on natural law as a list\nof commanded precepts. The two aspects are indispensable and related for\nAquinas. Law is not merely an ordinance of reason. To be law, it must be\npromulgated by a real person in time. Law, in the first sense of the state of\naffairs that exists and that ought to exist, produces precepts. Reason is\nnecessary to produce the precepts. It is in this sense that human laws (as\nprecepts) are derived from the natural law principles, which in turn are derived\nfrom the proper ends contained in the exemplar, idea, and type of all laws, the\neternal law. The greatness of the power to make human laws is nothing other\nthan a participation in the authority of God himself. This participation\ninvolves moving from the purely intellectual\u2014knowing the nature of things and\ntherefore what they ought to do\u2014to an act of the will, the promulgation of a\nprecept. Austin is correct that laws are commands of one with the authority to\nutter them. Yet, natural law jurisprudence qualifies this claim by limiting the\nscope of those commands to commands consonant with reason and human nature.<\/p>\n\n\n\n Although law is more than\nprecepts, Su\u00e1rez is correct that law is a system of binding precepts that\ndirect human, that is, rational, action. The incorporation of the idea that\nnatural law is a set of rules or precepts into natural law jurisprudence is one\nof the contributions of Stoicism to the tradition. Although it is certainly\ntrue that the classical natural law tradition is rooted in Aristotle\u2019s\ndistinction between natural justice and conventional justice, Aristotle does\nnot discuss natural justice as a system of laws containing precepts. The Stoics\nlater add to the more general understanding of Aristotle a definite law-like\nquality to their understanding of natural law. The Stoics develop Aristotle\u2019s\nnotions of natural justice or a natural order into laws that create duties on\nus.70 <\/sup>By the time of Aquinas, the natural and eternal laws are not\nseen as analogous to law or merely law-like. His argument sets out to prove\nthat they clearly satisfy all the criteria of a real law. To do so each of them\nmust contain real rules or precepts that have been promulgated.71 <\/sup>Natural\nlaw is an ordinance of divine reason and contains precepts promulgated by God.<\/p>\n\n\n\n In so doing, Aquinas distinguishes\ntwo aspects of the concept of legal precept. Law is both a rule (regula<\/em>) and a measure (mensura<\/em>).72 <\/sup>These two terms\nindicate that to be a law a thing must both direct an action toward an end and\nmust serve as a basis for evaluating a completed action. A rule directs or\nrestricts action by binding or requiring actions to conform to a standard.\nAquinas notes that one Latin word for law, lex<\/em>, legis<\/em>, is derived from ligare <\/em>(\u201cto bind\u201d).73 <\/sup>Law binds specific acts to their proper ends.\nAs a rule, a law has a dual function of proscribing and prescribing actions\nthat hinder or further, respectively, the end of human nature. As a measure,\nlaw serves as a way of evaluating or measuring acts to see to what extent they\nconform to the rule. Did a chosen action bind the actor to a proper end, or was\nthe act unhinged from human perfection? The measure is not simply a binary\nevaluation (it complies or not) but determines how far along the line formed by\nthe directing rule an action lies. Precepts involve both prospective and\nretrospective evaluation. In this dual function, we can again see Aquinas\u2019s\nunderstanding of law both normatively directing action (a rule) and\ndescriptively telling us about the state of affairs (a measure).<\/p>\n\n\n\n However, not all precepts are of\nthe same species. All laws are precepts, but not all precepts are of the same\nlevel of generality. Consideration of laws must therefore take account of\nwhether the particular ordinance of reason is a general or a specific rule.\nBoth types of laws can bind to varying degrees. Both aim at the same end but\nwith lesser or greater specificity. If one asks for directions, one may receive\na general or a specific rule of action: \u201cHead north\u201d or \u201cturn left on a\nparticular street, right on another.\u201d Both types of rule are necessary due to\nthe variety of contingent circumstances in which people find themselves. Rules\nthat are drafted in more general language encompass more contingent\ncircumstances and thus apply to more people. The more particular and concrete\nthe rule, the more limited circumstances to which it will apply. The complexity\nemerges once we understand that every human act is a means to some end; the act\nis oriented either toward the end, or goods, of human nature, or it is directed\naway from this end. It is in this context that we can introduce the concept of\nintrinsically evil acts.<\/p>\n\n\n\n For this introductory\nconsideration, we can state in general that an action is good if it directs the\nactor toward a perfection or end of human nature, and evil if it directs toward\nits opposite. In this sense, we consider objectively the relation of the act to\nits end and not the subjective awareness of the actor of this relation. For\nexample, if a person is walking north objectively, the relation between his\nact, walking, and its end, the north, exists irrespective of whether or not the\nperson subjectively knows or wants to walk north. A person who is in fact\nwalking north but erroneously believes he is walking south is objectively\nwalking north.74 <\/sup>Yet, all human acts cannot simply be categorized as\ngood or evil. Some acts are indispensable for the attainment of the end of\nhuman existence and are therefore called \u201cintrinsically good.\u201d Others are\nincapable of being oriented to the end of human existence regardless of\ncircumstances and are designated as \u201cintrinsically evil.\u201d75 <\/sup>A third\ncategory of acts comprise those that in and of themselves are indifferent\ntoward the end; they can be related either to the end of human nature or its\nopposite.76 <\/sup>An act that in and of itself is incapable of having a\ntranscendental relationship of harmony with the end of human nature is\nintrinsically evil. Thus, a rule of a general nature can be formulated that\napplies objectively to all beings who share this common nature or end. Such a\nrule would be a general principle of natural law that universally directs them\nto that end. Disregarding the subjective knowledge and hence culpability of an\nactor, one who engages in an intrinsically evil act is objectively not oriented\nto his proper end and hence objectively acting contrary to the universally\nbinding precept of natural law. The person\u2019s culpability or responsibility for\nso doing is another matter. He may be inculpably ignorant of this fact.<\/p>\n\n\n\n Many human acts fall into the\nthird category. They are by their very nature capable either of being oriented\ntoward one\u2019s end or toward its contrary. For example, if a person must travel\nfrom Dallas to Chicago, we can say that his end is Chicago. The simple act of\nboarding a plane is not intrinsically oriented toward or opposed to this end.\nIf the airplane is traveling to Chicago, then the act of boarding the plane is\noriented to the end, but if it is flying to Mexico City, then the act of\nboarding the plane is not oriented to the end. Acts of this third category may\nbecome good or evil acts not by any intrinsic quality of the act. Once the\nowner of a plane decides that a particular flight is flying to Chicago, then\nthe act of boarding the plane becomes oriented to the end of the person wanting\nto go to Chicago, not by the act of boarding the plane itself but by the\nextrinsic choice of the owner. Acts oriented to an end of human nature not by\nvirtue of the act but by the willed choice of someone can be called\nextrinsically good, and acts oriented to the opposite of an end of human nature\nby virtue of a determination are extrinsically evil.77 <\/sup>For example,\nstopping one\u2019s car when encountering a light that is red in color is not in and\nof itself good or evil. Once a legitimate authority has determined that in\norder to protect human life from unnecessary danger that a red light means a\ncar should stop, then doing so becomes oriented to the end of the preservation\nof life and hence extrinsically good. <\/p>\n\n\n\n Rules that state what actions are\nintrinsically good or evil are therefore of the general type, because they\napply to all human beings in all circumstances. Rules that change the nature of\nan otherwise neutral act to good or evil are specific rules because they apply\nonly to the circumstances enumerated in the rule in which the otherwise neutral\nact will be good or evil. The determination of the owner of the airplane to fly\nto Chicago applies only to the particular time a particular flight is\ndeparting, not to all flights and all passengers in general.<\/p>\n\n\n\n Rules of law can thus be\ndistinguished as either general or specific. General rules are universal in\napplication. They direct human nature not by the choice of any human lawgiver,\nbut by the intrinsic nature of the act and its intrinsic compatibility, or not,\nwith universal human nature. Specific rules are more limited in scope. They\napply extrinsic criteria, chosen by the applicable legislator, to otherwise\nneutral acts (vis-\u00e0-vis the end of human nature), and the fact of the rule\nitself is what establishes a transcendental relation between the act and the\nend of human nature. The two types of rules are distinct, yet not unrelated.\nSpecific rules are limited to those that conform to general rules. Thus, an\nintrinsically evil act cannot be made good by a specific rule. General rules\nlimit and define the scope of specific rules.<\/p>\n\n\n\n Legal positivism in all of its\nvarious forms emphasizes law as a collection of individual rules. For the pure\npositivists, such as Austin, law is composed of whatever particular collection\nof rules the sovereign declares. More nuanced positivists such as Hart surround\nthis core concept with procedures, such as Hart\u2019s own concept of the Rule of\nRecognition. Yet even for Hart, a legal system is composed of those rules from\nthe internal point of view that one in the system would recognize as law. Rules\nare detached from reason. Although more moderate positivists such as Hart and\nRaz might advise that a legal system would be a better system if its rules were\nformulated and promulgated in a rational manner, the quality of reasonableness\nis not a necessary condition for the rules to be recognized as law. They might\nbe poorly crafted rules, but they are law nonetheless. Classical natural law\njurisprudence accepts that law is composed of rules, but those rules\npromulgated by the will of a lawgiver must be consonant with the precepts of\nnatural law that are known to human reason.<\/p>\n\n\n\n Historicism understands law merely\nas the product of particular communities\u2019 societal evolution. Laws develop out\nof the lived experience of cultures. In a certain sense, historicism is a form\nof collective positivism. Positivism relies upon the will of a particular\nperson or persons at a point in time. The law is whatever the sovereign\ndecrees. Historicism sees law as an undirected and unconstrained social\nphenomenon arising out of the collective will of a community that reveals\nitself over time. Despite rejecting historicism\u2019s exclusive reliance on a\nhistorically unfolding collective will as the only source of law, natural law\njurisprudence does recognize a role for historically developing societal\npractices. As Aquinas\u2019s definition makes clear, law is more than an abstract\nordinance of reason; it is a rule promulgated by a particular lawgiver, one who\nhas care of the community, for the purpose of the common good of that\nparticular community. Law encompasses both general principles of reason\napplicable to all communities and particular laws made for historically\nsituated communities.<\/p>\n\n\n\n Human nature is not disembodied.\nIt is encountered in historically situated contexts. Leo Strauss explains that\nat the heart of the emergence of philosophy is the recognition of the\ndistinction between natural and conventional, between natural and ancestral.78\n<\/sup>Likewise Aristotle recognizes that justice can be divided into general or\nnatural justice and political or conventional justice.79 <\/sup>Something\nnatural is that which it is simply by virtue of its own being; whereas\nsomething conventional is what it is due to the convention of human society.\nAlthough this distinction seems clear at first, the complexity lies in the fact\nthat the natural and conventional are intermingled. The natural is not simply\nknown naturally. It is hidden within the conventional. The ancestral\nconventions contain principles incorporated from nature and practices\nestablished merely by the community. Philosophy is the quest to disentangle\nthem and to find the distinction. The quest ultimately leads to questions about\nthe first things and the nature of man as perfect or imperfect.80 <\/sup>One\ntask that natural law jurisprudence assigns to human lawmakers is to\ndistinguish, within the ancestral conventions of a community, those consonant\nwith nature and those opposed to it. To separate the natural from the\nconventional and the good customs from the evil ones, we require principles,\nrules against which to measure historically situated customs. The precepts of\nthe natural law provide these principles against which the customs of a people\nmust be measured. Historicism is correct in seeing that laws have evolved\nthrough historical circumstances. Yet, it attains this insight at the cost of\nlosing sight of the natural that is intertwined within this process.<\/p>\n\n\n\n Further confusion arises in\ncontemporary jurisprudence when jurists such as Hart confuse morality with mores<\/em>, or the customs of a people. The contemporary notion of morality\ndiffers dramatically from our ancient and medieval ancestors\u2019 understanding of\nthe subject. The word \u201cmorality\u201d as used to mean a compartmentalized set of\nnonlegal norms (primarily negative) governing personal behavior did not even\nexist in the vocabulary of classical or medieval philosophers.81 <\/sup>The\nconcept of a distinct body of nonlegal rules directing individual action as a\nscience or discipline distinct from law or politics was alien to classical and\nmedieval writers. Ethics was an integral part of politics for Aristotle.82\n<\/sup>One of the most important, and least noted, achievements of Porter\u2019s work\non law and morality is to remind us that our grouping of natural law and\nmorality on one side and human laws on the other is alien to classical and\nmedieval philosophy and jurisprudence, including that of Aristotle and Aquinas.83<\/sup>\nMorality is inseparable from law, not in the sense that law embodies moral\nrules but that moral rules embody law. \u201cMorality,\u201d as I use the term here,\nincludes the determination of natural law precepts by individuals applying them\nto their personal actions, as distinguished from determinations of natural law\nmade by authorities (either personal or political superiors), and applicable to\nmultiple members of a community.84 <\/sup>Morality is distinct from human\nlaw, but merely as a different species of the same genus, not as belonging to a\ndifferent genus or normative system.<\/p>\n\n\n\n The root of the confusion over law\nand morality can be seen in Hart\u2019s introduction of the subjectivist idea of\nunderstanding law as the concept that most people in the community or legal\nofficials have of law.85 <\/sup>Finnis adopts this concept approach to law.86\n<\/sup>Hart sees both law and morality as the concepts a society has of these\nterms. He refers to \u201cmorality of a social group\u201d87 <\/sup>rather than\nmorality as such. For Hart, morality is virtually synonymous with the tradition\nor customs of a society. He struggles to distinguish law and morality from the\ncustom of a man taking his hat off indoors.88 <\/sup>He argues that\nmorality does not have to conform to reason.89 <\/sup>Morality can be\nwhatever a people consider as morality as long as it contains certain\ncharacteristics; there can be such a thing as a barbarous morality for Hart.90<\/sup><\/p>\n\n\n\n In contrast, classical philosophy\nanchors both morality and humanmade law in the same source, the eternal law\nthat is known through the natural law. Grenier defines morality as \u201cthe\ntranscendental relation of a free act to its object as in conformity or\ndisconformity with the rules of morals, i.e., with right reason and the eternal\nlaw.\u201d91 <\/sup>Morality is therefore not distinct from law but rather\nultimately derived from the eternal law. Yet, morality involves a particular\ntype of conformity. It is the conformity of a free act. A bee that produces\nhoney conforms to the eternal law in a different, unfree way. A free act is one\nin which the intellect knows and the will choses the act in conformity with the\neternal law. Therefore, as Grenier states, the \u201cproximate rule of morality is\nright reason, and its supreme rule is the eternal law.\u201d92 <\/sup>The\nproximate rule of both morality and law is therefore natural law (or right\nreason), but the remote rule is eternal law. Yet, this conformity is known and\nwilled in three distinct ways, corresponding to the classical three-part\ndivision of morality, based upon the person establishing the conformity of acts\nto right reason and the eternal law\u2014individuals (monastics, or ethics),\ndomestic superiors (morality of the family), and legal authorities (politics,\nor the morality of civil society).93 <\/sup>Rather than attempting to\ndivide \u201claw\u201d and \u201cmorality\u201d as Hart sought to do,94 <\/sup>classical\nphilosophy and hence jurisprudence understood that human beings are whole\nbeings who live not only as individuals but within domestic and political\ncommunities. Their freely chosen actions are directed to their proper end\nultimately by the eternal law and proximately by their own determinations\n(ethics), their personal superiors (domestic commands), and political\nauthorities (civil laws). To separate morality from law is to separate morality\nfrom its origin.<\/p>\n\n\n\n The development of human law\nunfolds in the context of historical communities\u2014families, social groups, and\npolitical communities\u2014all making determinations of natural law precepts. Human\nlawmaking is a part of this integrated system of developing rules of ethics (or\nmonastics), customs, and human laws.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 26. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition <\/em>(Cambridge, MA: Harvard University Press, 1983), 556.<\/p>\n\n\n\n 27. Harold J. Berman, \u201cAn Ecumenical Christian Jurisprudence,\u201d in The Teachings of Modern Christianity on Law, Politics, and Nature<\/em>, vol. 1, ed. John Witte, Jr., and John S. Alexander (New York: Columbia University Press, 2006), 756\u2013 57.<\/p>\n\n\n\n 28. Soper identifies four schools of jurisprudence: classical natural law, classical positivism, modern positivism, and modern natural law. See Philip Soper, \u201cIn Defense of Classical Natural Law in Legal Theory,\u201d 205\u2013 6.<\/p>\n\n\n\n 29. Berman, Law and Revolution<\/em>, 529.<\/p>\n\n\n\n 30. Lloyd L. Weinreb, \u201cThe Moral Point of View,\u201d in Natural Law, Liberalism, and Morality: Contemporary Essays<\/em>, ed. Robert P. George (Oxford: Oxford University Press, 2001), 202.<\/p>\n\n\n\n 31. St. Thomas Aquinas, Summa Theologica<\/em>, 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 <\/em>are from this edition).<\/p>\n\n\n\n 32. Ibid., I-II, q. 90, a. 4 (my translation).<\/p>\n\n\n\n 33. Hart, Concept of Law<\/em>, 6\u2013 7.<\/p>\n\n\n\n 34. Summa Theologica <\/em>I-II, q. 90, a. 4.<\/p>\n\n\n\n 35. Gratian, Concordia Discordantium Canonum<\/em>, in Corpus Iuris Can onici <\/em>(Graz: Akademische Druck-u. Verlagsanstalt, 1959); electronic reproduction, vols.<\/p>\n\n\n\n 1\u2013 2 (New York: Columbia University Libraries, 2007), D.1, C.5 (hereafter cited as Decretum<\/em>), http:\/\/www.columbia.edu\/cu\/lweb\/digital\/collections\/cul\/texts\/ldpd _6029936_001\/pages\/ldpd_6029936_001_00000059.html.<\/a><\/p>\n\n\n\n 36. Ibid.<\/p>\n\n\n\n 37. See, Henri Grenier, Thomistic Philosophy<\/em>, vol. 2, Philosophy of Nature<\/em>, trans. Rev. J.P.E. O\u2019Hanley (Charlottetown, PEI: St. Dunstan\u2019s University Press, 1950), 220\u2013 21.<\/p>\n\n\n\n 38. Ibid.<\/p>\n\n\n\n 39. See ibid.<\/p>\n\n\n\n 40. Marcus Tullius Cicero, De Finibus Bonorum et Malorum<\/em>, 2nd ed., trans. H. Rackham (New York: G.P. Putnam\u2019s Sons, 1921), 293.<\/p>\n\n\n\n 41. Ralph McInerny, St. Thomas Aquinas <\/em>(Notre Dame, IN: University of Notre Dame Press, 1982), 61. See also Aquinas, Summa Theologica <\/em>I, q. 14, a. 16, and St. Thomas Aquinas, Commentary on the Nichomachean Ethics<\/em>, trans. C.I. Litzinger (Chicago: Henry Regnery, 1964), bk. 6, lect. 2 (discussing the relationship between speculative and practical intellect).<\/p>\n\n\n\n 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 <\/em>(Notre Dame, IN: University of Notre Dame Press, 1990), 62.<\/p>\n\n\n\n 43. Ibid., 128.<\/p>\n\n\n\n 44. See Leo Strauss, Natural Right and History <\/em>(Chicago: Chicago University Press, 1953), 309\u2013 12.<\/p>\n\n\n\n 45. Ibid., 311.<\/p>\n\n\n\n 46. See Aaron J. Rappaport, \u201cOn the Conceptual Confusions of Jurisprudence,\u201d Washington University Jurisprudence Review <\/em>7, no. 1 (2014): 77\u2013 106.<\/p>\n\n\n\n 47. Strauss, Natural Right and History<\/em>, 312.<\/p>\n\n\n\n 48. Charles De Koninck, \u201cOn the Primacy of the Common Good: Against the Personalists and The Principle of the New Order,\u201d The Aquinas Review <\/em>4 (1997): II: \u201cNegation of the Primacy of the Speculative,\u201d http:\/\/ldataworks.com <\/a>\/aqr\/V4_BC_text.html#BC_h003.<\/a><\/p>\n\n\n\n 49. Ibid.<\/p>\n\n\n\n 50. See Summa Theologica <\/em>I, q. 84, a. 6 (citing Aristotle, Metaphysics <\/em>1.1, and Posterior Analytics <\/em>2.15).<\/p>\n\n\n\n 51. John Finnis, Natural Law and Natural Rights<\/em>, 2nd ed. (Oxford: Oxford University Press, 2011), 375.<\/p>\n\n\n\n 52. Alasdair MacIntyre, After Virtue: A Study in Moral Theory<\/em>, 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.<\/p>\n\n\n\n 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 <\/em>(San Francisco: Ignatius, 2016), 59\u2013 60.<\/p>\n\n\n\n 54. MacIntyre, After Virtue<\/em>, 53.<\/p>\n\n\n\n 55. Ibid.<\/p>\n\n\n\n 56. Ibid.<\/p>\n\n\n\n 57. Jean Porter, Natural and Divine Law: Reclaiming the Tradition for Christian Ethics <\/em>(Grand Rapids, MI: Eerdmans, 1999), 77.<\/p>\n\n\n\n 58. Aristotle, Physics<\/em>, in The Basic Works of Aristotle<\/em>, ed. Richard McKeon (New York: Random House, 1941), 2.1.<\/p>\n\n\n\n 59. Ibid.<\/p>\n\n\n\n 60. Ibid., 2.2.<\/p>\n\n\n\n 61. Ibid.<\/p>\n\n\n\n 62. Ibid.<\/p>\n\n\n\n 63. MacIntyre, Three Rival Versions<\/em>, 134.<\/p>\n\n\n\n 64. Edward Feser provides another excellent example that demonstrates the logical connection between being and goodness: \u201cIt 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 <\/em>triangle than the former. Indeed, we would naturally describe the latter as a good <\/em>triangle and the former as a bad <\/em>triangle\u201d; Edward Feser, Neo-Scholastic Essays <\/em>(South Bend, IN: St. Augustine\u2019s Press, 2015), 298\u2013 99.<\/p>\n\n\n\n 65.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0See MacIntyre,\u00a0After Virtue<\/em>, 57\u2013 59. <\/p>\n\n\n\n 66. Porter,\u00a0Natural and Divine Law<\/em>, 93. Notes to Pages 22\u201333.<\/p>\n\n\n\n 67. Summa Theologica <\/em>I-II, q. 90, a. 4.<\/p>\n\n\n\n 68. Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natu ral Law, and Church Law, 1150\u20141625 <\/em>(Grand Rapids, MI: Eerdmans, 1997), 23\u2013 24.<\/p>\n\n\n\n 69. Pauline C. Westerman, The Disintegration of Natural Law Theory:<\/em><\/p>\n\n\n\n Aquinas to Finnis <\/em>(Leiden: Brill, 1998), 82.<\/p>\n\n\n\n 70. See Hill, After the Natural Law<\/em>, 53.<\/p>\n\n\n\n 71. See Summa Theologica <\/em>I-II, q. 93 and 94.<\/p>\n\n\n\n 72. Ibid., I-II, q. 90, a. 1.<\/p>\n\n\n\n 73. Ibid.<\/p>\n\n\n\n 74. For a more complete discussion of the distinction between objective and subjective morality, see Henri Grenier, Thomistic Philosophy<\/em>, vol. 4, Moral Philosophy<\/em>, trans. Rev. J.P.E. O\u2019Hanley (Charlottetown, PEI: St. Dunstan\u2019s University, 1950), 76\u2013 79.<\/p>\n\n\n\n 75. Ibid., 82\u2013 86.<\/p>\n\n\n\n 76. Ibid., 78.<\/p>\n\n\n\n 77. See ibid., 82\u2013 86.<\/p>\n\n\n\n 78. Strauss, Natural Right and History<\/em>, 81\u2013 91.<\/p>\n\n\n\n 79. See chapter 7 in The Architecture of Law: Rebuilding Law in the Classical Tradition<\/em>.<\/p>\n\n\n\n 80. See Strauss, Natural Right and History<\/em>, 81\u2013 91.<\/p>\n\n\n\n 81. MacIntyre, Three Rival Versions<\/em>, 28, 191.<\/p>\n\n\n\n 82. Ibid., 191.<\/p>\n\n\n\n 83. See Jean Porter, Ministers of the Law: A Natural Law Theory of Legal Authority <\/em>(Grand Rapids, MI: Eerdmans, 2010), 278\u2013 79.<\/p>\n\n\n\n 84. See chapters 6 and 7 in The Architecture of Law: Rebuilding Law in the Classical Tradition.<\/em><\/p>\n\n\n\n 85. See Jonathan Crowe, \u201cClarifying the Natural Law Thesis,\u201d Australian Journal of Legal Philosophy <\/em>37 (2012): 161.<\/p>\n\n\n\n 86. See Finnis, Natural Law and Natural Rights<\/em>, chap. 1.<\/p>\n\n\n\n
\n\n\n\nTHE DEFINITION OF LAW AS\nA DIALECTIC AMONG REASON, COMMAND, AND CUSTOM<\/strong><\/h3>\n\n\n\n
Ordinance of Reason:\nReasoning from Nature<\/strong><\/h3>\n\n\n\n
Law as Command:\nPromulgated by One Who Has Care of a Community<\/strong><\/h3>\n\n\n\n
Custom and Mores<\/strong><\/h3>\n\n\n\n
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