Natural Law's Modern Cousin Germain: Hume's on Our Side?

AN ENTIRE SECTION OF CHAPTER 2 of the First Part of John Finnis's Natural Law and Natural Rights is devoted to Hume's "naturalistic fallacy" as the latter stated it in his A Treatise of Human Nature. These famous words, the supposed bane of every natural law jurisprude, are written here in toto:

In every system of morality, which I have hitherto met with, I have always remarked, that the author proceeds for some time in the ordinary way of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surprised to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is, however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, it is necessary that it should be observed and explained; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention would subvert all the vulgar systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceived by reason.

Hume, A Treatise of Human Nature, III.i.1.* This frequently-quoted passage comes at the end of a section, representing a coda, a summarization or reprise, of the prior thought.

What is remarkable is that the passage does not appear to direct itself to nature, even human nature (unless human nature were to be defined as entirely speculative reason) as a source of moral value. In fact, it comes at the end of Hume's argument that speculative reason (as distinguished from practical reason) has nothing to do with morality because speculative reason is concerned with "is" whereas actions are moved largely by passions, sentiments, and desires. It would appear that these faculties (passions, sentiments, and desires) are more similar to, though certainly not identical with, what a natural law philosophy might consider something close inclinations or "intellectual feltness,"** or at least part of the human entelechy of human nature that ought to be considered part of the greater whole of human nature. The section itself is entitled by Hume as follows: "Moral distinctions not derived from reason."***

Hume's point seems to be that the mind has only perceptions, and that these are of two kinds: ideas and impressions. He asks whether either ideas or impressions in the mind are able to distinguish between virtue and vice and to determine good from evil. In answering the question, Hume rejects any notion of "conformity to reason" as being the "measures of right and wrong," for the simple reason that it presupposes the opinion "that morality, like truth, is discerned by ideas, and by their juxtaposition and comparison." In fact, Hume rejects the notion that reason (which the context reveals he understands as "speculative" reason alone) has anything to do with governing passions, unlike morals which may have a role. "Reason of itself is utterly impotent in this particular [to excite passions, or produce or prevent actions]. The rules of morality, therefore, are not conclusions of reason." (Elsewhere, he famously states: "It is not contrary to reason to prefer the destruction of the whole world to the scratching of my finger." II.iii.3.) Moreover, since reason is an inactive faculty, a "perfectly inert" faculty, and passions and action obviously an active matter, it follows logically that reason has nothing to do with morals. "An active principle can never be founded on an inactive." This also follows because, according to Hume, reason relates to truth or falsehood. And "passions, volitions, and actions," unlike speculative truths, "are not susceptible of any such agreement or disagreement" with real relations or with the relations of ideas to existence or to facts. Passions, volitions, and actions are not true or false, which is what reason is preoccupied with. "Actions may be laudable or blameable; but they cannot be reasonable. Laudable or blameable, therefore, are not the same with reasonable or unreasonable." Indeed, "upon the whole, it is impossible, that the distinction betwixt moral good and evil, can be made to reason." The source of the laud or the blame must be elsewhere other than speculative reason.

Even though this Humean paragraph palpably deals with speculative reason as a source of morality, the opponents of the natural law have recruited the paragraph to accuse advocates of the natural moral law who rely on a broader nature (which in the case of man includes his particularly rational nature, and understands reason more broadly to include both speculative components--which aim for truth--and more importantly for morality practical components--which aim for good--and which include inclinations) of the "naturalistic fallacy." It does not seem fair to be flogged with a whip that was designed for someone else. But all's fair in love, war, philosophy, and especially ideology.

Nevertheless, as Finnis points out, the final paragraph of this section does establish what seems to be abstractly a valid enough, and hardly revolutionary, principle:

Hume [announces] the logical truth, widely emphasized since the later part of the nineteenth century, that no set of non-moral (or, more generally, non-evaluative) premisses can entail a moral (or evaluative) conclusion.

NLNR, 37.

Samuel Clarke, Hume's Real Target

As Finnis also notes, this passage, though it asserts a principle that is logically true, may be less an attack on advocates of classical natural law than an attack on eighteenth-century rationalists, in particular, Samuel Clarke (1675-1729). And indeed, it may in fact be an attack on those who neglect nature and its sound inclination (which may be part of what Hume calls the trilogy of "passions, volitions, and actions").*** It is, at least within its historical context, an attack on moral rationalism alone, a rationalism that does not give weight to natural inclinations, and tries to built a theory of morality based upon speculative reason alone, neglecting human nature's more extensive qualities of practical reason, sound inclinations, and natural teleologies. According to Hume, speculative reason alone cannot distinguish between an acorn growing from a sapling into a large oak and killing its parent and parricide. Speculative reason alone cannot distinguish between the coupling between dogs in a litter and incest between a brother and sister. The "relations" between oak and acorn, child and father, between the male and female of a litter, brother and sister are the same. Yet, as Hume himself recognizes, the moral circumstances between these relations are palpably different, the similar relation withal. Sound inclination in both cases finds parricide and incest among humans morally intolerable.

Now whether it is true or not that Hume's suggestion that speculative reason alone cannot establish the enormity of parricide or incest is besides the point. The point is that he was not taking aim at classical natural law theories, but was taking aim at hyper-rationalistic theories, corruption of the classical theories, like those developed by the Anglican divines Ralph Cudworth (1617-1688), Samuel Clarke (1675-1729), and Joseph Butler (1692-1752) who, enamored with Newtonian physics, sought to have mathematically precise moral theories based upon reason alone, and theories, moreover, that ignored nature and its inclinations.† These were Protestant Christian versions of morals ad more geometrico.

In fact, it appears that Hume's principal target in this section seems to have been Samuel Clarke's work with a rather cumbersome title, A Discourse concerning the Unchangeable Obligations of Natural Religion, and the Truth and Certainty of Christian Revelation (herein Discourse). A comparison of what Clarke taught and Hume's wording in this section make it rather apparent that he was criticizing--not classical natural law--but natural law a la Clarke.

Samuel Clarke, an Anglican cleric (he was rector of St. James Westminster from his appointment in 1705 to his death in 1729), was influenced by Descartes, with whom he had a sort of love-hate relationship. Clarke appeared to have accepted a Cartesian distrust of senses as the source of ultimate knowledge. He seems also to have accepted a Cartesian dualism between body and soul: mind is mind, matter is matter, and never the twain shall meet but by a form of fortuitous occasionalism. But if his relationship with Descartes was mixed, his relationship with Newton was quite a relationship of love and devotion. Clarke was an unflagging advocate of Newton, and a great supporter of Newton's physical and mathematical thought. He was perhaps best known for his correspondence with Leibniz on the matter of Locke, Newton, and English philosophy in general.

Clarke's thoughts on moral philosophy are concentrated in the second of his Boyle Lectures (delivered in 1705) which were later published as the Discourse. The Discourse is organized around a set of fifteen propositions. As Clarke summarized his ethical work, he "endeavoured to deduce the original obligations of morality, from the necessary and eternal reason and proportions of things." NLNR, 38-39. It is important to point out that Clarke did not look and man's nature as a source of "original obligations of morality," but looked at something that he called the "eternal different relations, that different things bear to one another." It is the relations of things, and in particular the fitness of things which was the source of moral obligation. Therefor it was the fitness of things that for Clarke was the source of moral law. It was a curious, rather vague theory, not particularly a classical natural law theory at all. There is nothing in Clarke's theory of practical reasoning or of inclinations. His aim was to construct a theory of morals that was exact, to build something in morals similar to what Newton had effected in mathematics or in physics. And he obviously confused speculative reason and practical reason.

In his quirky ethical theory, Clarke†† starts with the difference of things:

That there are differences of things, and different relations, respects or proportions of some things towards others, is as evidence and undeniable as that one magnitude is greater, equal to, or smaller than another.

This is, as it were, the foundation of Clarke's moral theory. It was the "differences of things" that gave rise to duty, that gave rise to law. The law arose from the "properties and relations," in the "proportions," of those different things. The properties and relations and proportions of things were "of eternal necessity," are part of the "things themselves," and so are "absolutely unalterable." Clarke distinguishes between things natural or mathematical (such as figures, numbers, weights, colors, etc.) and things moral (persons, actions, and circumstances), and his moral theory is concerned with things moral, i.e., persons, actions, and circumstances. Ultimately, however, everything comes down to relations between persons. As James Edward LeRossignol††† summarizes it:

Actions are actions of persons, circumstances are circumstances of persons. therefore things moral are in reality only persons, in their various relations to themselves and other persons.

LeRossignol, 37.

Just as the relations and proportions between things natural or mathematical are "eternal and unchangeable" (e.g., the relationship between the area of a circle and its radius is eternally and unchangeable A = πr² or the law that two parallel lines will never enclose a space because they will never meet), so likewise are the proportions and relations among things moral "eternal and unchangeable." Thus there are proportions and relations between persons, actions, and circumstances that are "eternal and unchangeable."

From this base, Clarke introduces another concept: the "fitness of things." There is a certain "fitness" or "agreement or disagreement" of things moral. That is, with respect to the proportions and relations between persons, actions, and circumstances, there is a certain "fitness" or a certain "agreement or disagreement." As Clarke himself says it:

That from these different relations of different things there necessarily arises an agreement or disagreement of some things with others, or a fitness or unfitness of the application of different things or different relations, is likewise as plain as that there is any such thing as proportion in Geometry and Arithmetic, or uniformity or difformity in comparing together the respective figures of bodies.

This "fitness of things," their "agreement or disagreement," is, for Clarke, the moral law. It predates, precedes any human positive law, and no law or opinion of man can change this inherent "fitness " or "agreement or disagreement" in things moral. As LeRossignol describes Clarke's view:

As no law or opinion of men can change the differences of things, so no human law or opinion can in the least degree alter the fitness of things. As things existed before all positive law, institution, or government, so no law or power, not even of an all-powerful Leviathan, can alter the eternal distinctions of right and wrong. So long as things exist, just so long do the fitnesses of things remain unchangeable, as the law of nature to man and the rule which God himself follows in the government of the world.

LeRossignol, 40. There is both a fitness of ends, arising largely from relations between persons, and a fitness of means, and indirect fitness relating to the relationship that actions have to those ends. In this latter view, he seems to brush up against an incipient utilitarianism.

Clarke states that there is a common consensus or common agreement on the relations and proportions in both mathematical and natural realms and in the moral realm. Clarke insists that "the differences, relations and proportions of things both natural and moral, in which all unprejudiced minds thus naturally agree, are certain, unalterable and real in the things themselves." So there ought to be in the uncorrupted and unprejudiced mind similar assents to moral truths as there are to mathematical or natural truths. Thus what is "fitting," what is "agreeable," and what is therefore morally good, is something that is perceivable by reason.

Now what these eternal and unalterable relations, respects, or proportions of things, with their consequent agreements or disagreements, fitnesses, or unfitnesses, absolutely and necessarily are in themselves, that also they appear to be, to the understanding of all intelligent beings; except those only who understand things to be what they are not, that is, whose understandings are either very imperfect or very much depraved.

There are some obvious lacunae in Clarke's thought, the most apparent being that he "nowhere gives a definition of the words fit and fitness," leaving the central part of his moral philosophy also "the most obscure part of his ethical philosophy." LeRossignol, 45-46.

With this most elementary of introduction into Samuel Clarke's notions of relations and fitness (which are the driving forces of his moral theory), it is apparent at once that Hume is referring to Clarke's moral theory in this section of his Treatise. Hume's invocation of Clarke is unmistakable. "Those who affirm that . . . there are eternal fitnesses and unfitnesses of things" are proposing that "morality, like truth, is discerned merely by ideas . . . ." "But . . . to show, that those eternal immutable fitnesses and unfitnesses of things cannot be defended by sound philosophy . . . ." "If . . . the character of virtuous and vicious . . . must lie in some relations of objects . . . ." "There has been an opinion very industriously propagated by certain philosophers, that morality is susceptible to demonstration . . . . to an equal certain with geometry or algebra. Upon this supposition, vice and virtue must consist in some relations . . . ." Hume's focus on the notions of fitness and relations in the matter of morals in this section of his Treatise is a clear reference to Clarke's presentation of his moral theory in the latter's Discourse.‡

There is then a certain "unfitness of things," if we may be allowed to adopt Clarke's words, when opponents of natural law invoke Hume's argument against someone advocating a theory of morality which is clearly not a classical theory of natural law, and then using that argument (an argument that Hume himself ignored when it served his purposes) against another theory altogether. It is somewhat akin to blaming a grandfather for the faults of his grandchild, and a double bastard grandchild at that.

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*I have updated the spelling and spelled out the words that have been contracted.
**The term "intellectual feltness" is my term, and is my best grasp of the notion of inclination, which is something that is based upon the faculty of reason, but is something that is almost impulsive or felt, something fundamental, and ordering, a tendency, an intellectual, if not entirely conceptually rational, entelechy. The subject has been treated in various postings, but one may access the discussion of inclination and natural law in the context of the natural law teachings of Jacques Maritain. See Jacques Maritain and Natural Law: Inclination and Law.
***In natural law literature, reason and human nature are sometimes treated as equivalent terms. Because man's nature is as a rational animal, the term "reason" is used as a synecdoche for human nature as a whole. But the reason that is equated with human nature is something different from mere speculative or theoretical reason (that reason concerned with truth); rather, it is a reason that incorporates, in addition to the speculative, the practical reason, a reason whose purpose is to grasp the good. The reason that Hume attacks here is speculative reason. For Hume, the practical reason was not the source for determination of good; rather, it was only a means, a "slave of the passions," see Treatise, II.iii.3. It is for this reason that Copleston's assessment (see Note † below) would appear wrong.
****In fact other than pure speculative reason, Hume was suggesting other "mental factors, such as conscience, moral sense, sentiment, and other passions." NLNR, 38, n. 44; Treatise, III.i.1.
†Indeed Frederick Copleston, S.J., detected remnants of natural law thinking in Hume behind this critique:

[Hume's] insistence on the original constitution or fabric of human nature suggests that this nature is in some sense the foundation of morality or, in other words, that there is a natural law which is promulgated by reason apprehending human nature in its teleological and dynamic aspect.

Frederick Copleston, History of Philosophy (Westminster, Md: Newman Press, 1959), Vol. 5, 34 (cited in Howard P. Kainz, Natural Law: And Introduction and Re-Examination (Peru, Ill.: Carus Publishing, 2004), 71). As Kainz observes, some more extreme defenders of Hume even call him a "'closet' natural lawyer." Kainz, 71. It is true that, Hume himself would seem to betray his own principle in that he suggests that ethics be "founded on fact and observations" about what sorts of characteristics and actions bring about moral approbation or disapprobation from men. NLNR, 37 n. 42; See An Enquiry Concerning the Principles of Morals, § 1. Even though Hume invokes certain aspects of human nature (volition, passions, sentiments) in his moral theory, I certainly would not place the skeptic Hume in the natural law camp, and certainly not in any classical or Thomistic natural law camp. More probable is the view that Hume advocated something similar to the "moral sense" theory of Hutcheson, rather than any concept of natural law. Kainz, 72. Finnis has a very interesting observation on Hume. Not only is Hume inconsistent with his own principle in building Humean "oughts" from "ises," Hume lapses into another fallacy beyond that of reasoning from "is" to "ought." He also seems to confuse "ought" to "will" or "must," that is, that something is morally obliging only if it in fact is forcibly compelling. NLNR, 41 (Those who find the "naturalistic fallacy" argument contained in Hume's words in III.i.1 "should be disconcerted by this manifestation of Hume's indifference to the distinction between the 'forcible' and the 'obligatory', between what ought to move the will and what 'must' (i.e., necessarily does) move it.")
††Clarke's Discourse is available on line at various places, most conveniently as the Christian Classics Ethereal Library. See Discourse.
†††James Edward LeRossignol, The Ethical Philosophy of Samuel Clarke (G. Kreysing 1892) (hereinafter LeRossignol).
‡Hume himself in other writings expressly confirms this. See NLNR, 38, n. 46.

The Four Requirements of a Classical Natural Law Theory

FROM BOTH A CLASSICAL AND CHRISTIAN perspective, a Natural Law theory will require a combination of four elements. It will require an epistemology (a theory of knowledge) that is "realist," that is, one which maintains that objective reality is communicated or translated from the object to the subject in a manner that is both reliable and true. Unlike the Kantian critique, it insists we are able to know the "ding an sich," the thing in itself. It will require a metaphysical understanding of nature that sees nature as have an "end," a reason, a blueprint in it. It will suppose a natural theology. In other words, it will acknowledge a Divine Creator and Orderer of the natural world. It will suppose that man is free and rational, and must use these faculties, and not only impulse, in knowing and doing good. Simply put, it will require that man (i) know (ii) himself and his nature, (iii) that that nature has a purpose or end, placed there by God, which informs him of the good, and (iv) that he is free, both in his reason and will, to do that good. Without these, any theory of law and morality, even one given the title natural law, will, at best, limp or falter. These requirements of a classical natural law are well-summarized by John Courtney Murray, S.J.

Natural law supposes a realist epistemology, that asserts the real to be the measure of knowledge, and also asserts the possibility of intelligence reaching the real, i.e., the nature of things--in the case, the nature of man as a unitary and constant concept beneath all individual differences. Secondly, it supposes a metaphysic of nature, especially the idea that nature is a teleological concept, that the "form" of the thing is its "final cause," the goal of its becoming; in the case, that there is a natural inclination in man to become what in nature and destination he is--to achieve the fullness of his own being. Thirdly, it supposes a natural theology, asserting that there is a God, Who is eternal Reason, Nous, at the summit of the order of being, Who is the author of all nature, and Who wills that the order of nature be fulfilled in all its purposes, as these are inherent in the natures found in the order. Finally, it supposes a morality, especially the principle that for man, a rational being, the order of nature is not an order of necessity, to be fulfilled blindly, but an order of reason and therefore of freedom. The order of being that confronts his intelligence is an order of "oughtness" for his will; the moral order is a prolongation of the metaphysical order into the dimensions of human freedom.

John Courtney Murray, S.J., We Hold These Truths: Catholic Reflections on the American Proposition (Lanham: Sheed & Ward, 1960), 327-28.

The philosopher Kant denied the first. In different ways, René Descartes and David Hume denied the second. Nietzsche denied the third. Calvin denied the fourth. These are some of the enemies of the Natural Law.

Response to Griffiths' "The Nature of Desire"

I thought I would post my comments to Paul J. Griffiths' "The Nature of Desire," found in the December 2009 Issue of First Things. You may see Griffiths' article at http://www.firstthings.com/article/2009/11/the-nature-of-desire. Griffiths is the Warren Professor of Catholic Theology at Duke Divinity School. There seems to be something wrong with Griffiths' article, and my best articulation of the problem, prepared in a short period of time, is given below.

In his "The Nature of Desire," Paul Griffiths’ vision of man is unfortunately more Humean than Catholic. He is perceptive enough to anticipate a virulent Thomistic—indeed Catholic—opposition to it. Whatever his view of man and morality, it seems well-outside the confines of the Catholic moral tradition; in fact, in many ways it seems antithetical and incompatible with it. Indeed, Griffiths seems to recognize and relish in that very fact. Though he suggests his vision to be more true than the received theories of natural law that govern Catholic moral teaching, he does not advance persuasive arguments for that assessment.

Griffiths’ argument starts from a very narrow and Humean view that man post lapsus, that is, after the Fall, is nothing but a bundle of desires. For Griffiths, man is impulse only, and he possesses no nature to distinguish him from the brute (except perhaps, after the Fall, the dubious ability to have infinite desires). In defining man as a bundle of desires only, Griffiths appears wholly to neglect the role of reason as the defining distinction between man and brute (tellingly, the word reason is not used once in his article as a source of binding norms). In Griffiths' view, man is not homo sapiens, but homo desiderius. Focusing then entirely on human desire as the only possible basis for the natural moral law, and rejecting reason’s role without mention why reason plays no part, Griffiths finds postlapsarian human desire to be “deranged,” infinitely “protean,” total “chaos,” and bereft of the least whiff of God’s prior antelapsarian ordering. This infinitely “plastic” desire no longer betrays a clue to a divine order, and therefore retains no value in informing us of what is right and good. Human nature is for Griffiths is what it was for Calvin (though the latter included reason in his definition of nature): hopelessly depraved. Desire, which for Griffiths is the sum and substance of man, accordingly yields no clue to God’s law, and is no accurate source to determine our good, or, for that matter, of our telos or end. It is unable to give us a definition of what is natural to man. It is too ambivalent a source to allow us to define human nature, i.e., what is natural to us, or what accords with our good. “The nature of human desire," Griffiths concludes, "is that no particular desire is natural.”

Thus among the cacophony of the chorale of myriad desires, Griffiths despairs on ever finding the key to harmony, that is, he cannot find the natural law in man’s nature. There is no basso continuo, no steady constant, no deep melody in man. For Griffiths there is no essence, no nature from which we may glean a natural moral law, since our essence is “glassy,” insubstantial, invisible, and undiscoverable. And so, finally, Griffiths proclaims that a “full appreciation of human nature—a sort of meta naturalism—properly denies the natural.”

With such a narrow and emasculated view of nature, Griffiths rightly concludes, then, that any natural moral law predicated upon man’s subjective desires is bound to fail. While Griffiths acknowledges that these chaotic desires in man are subject to being configured (by social convention, self-imposed strictures, or even divinely-given strictures), these strictures—conventional or self-imposed or even willed by God—are equally unavailing in determining the good because they cannot be ranked. “[W]e are not in fact more open to any particular configuration of desire than to another,” Griffith concludes. These configurations appear to be extrinsic, accidental molds placed upon our plastic desires, and so morality is an act not unlike a baker shaping his muffins.

What is worse, there are no means by which these various efforts to fence in and mold the otherwise infinite plastic desires may be objectively judged, or at least Griffiths despairs of finding such means. So the moral difference between a necrophiliac and a celibate priest is the difference between speaking English or speaking Japanese, between preferring oysters to roasted cat.

For a Christian, Griffiths concedes, the molder or the source of the configuration is Christ, and Christians are called to configure their desires so as to “turn us from death and fit us for life,” whatever that means. But this self-imposed law is fideistic, subjective, and proper to Christians alone. It is decidedly not universal. Though Griffiths suggests that “theoretically” there is a “hierarchy of goodness” that may allow us to rank these “configurations,” Griffiths never offers any suggestion as to how this may be done. In fact, he appears resigned to the practical impossibility in ranking these configurations. He confesses that all configurations—presumably also the Christian’s configuration—are “to some extent, damaged, blood-and-violence threaded, idolatrous, lured by lack and absence.” He further cautions that the theoretical ordering of configurations is not “easily” obtained, and “never without qualification and ambiguity.” So what is already theoretically well-nigh unattaniable is a fortiori practically impossible. The way I interpret Griffiths' comments, there is no way to distinguish the configuration chosen by Judas from the configuration chosen by St. John of the Cross. Presumably even God has problems judging configurations, and so (unrepentant!) rapists and torturers may be found in Paradise with repentant saints.

Ultimately—because human desire is so amorphous, and because the configurations so subjective and fraught with ambiguity—there is no overriding, universal moral concept, no natural law that governs all men, and by which all men shall be judged. So Christians ought not to talk about a fundamental law, an objective natural law binding on all men, but rather ought to use Griffiths' horribly clumsy term to refer to their own particular subjectively-preferred configuration, a "to-be-cultivated-in-response-to-divine-gift law."

Superficially, the prolix suggestion for a new term for the "natural moral law" is risibly clumsy. But, more seriously, Griffiths' theory of "to-be-cultivated-in-response-to-divine-gift law" not only ill-suits the English language, it ill-suits a Catholic theologian.

Ecstasis and Telos: Immanuel Kant and Selflaw

FOR A MAN THAT NEVER TRAVELED more than 100 miles from his home town of Köningsberg, the philosopher Immanuel Kant's (1724-1804) effect on the world of ideas was massive. With his publication of his Critique of Pure Reason in 1781, he effected what has been called the "Copernican Revolution" of philosophy. His contributions in the field of moral philosophy and law have likewise been immense. As Rommen puts it in his book The Natural Law, Kant was "the watershed from which flow so many and such varied streams of modern thought." Rommen, 83. If Kant's moral and legal philosophy found in such complex texts such as The Philosophy of Law, the Introduction to the Metaphysic of Morals, and his Critique of Practical Reason could be boiled down to a small kernel without serious injustice to the thought, it would be "autonomy," selflaw. Kant "exhibits in his philosophy the individualist natural law in its final, highest form,"Rommen, 88, but this law is so distilled of any notion of ecstasis and telos that it is no longer recognizable as law. It is the law one gives to oneself. It is absolutely autonomous, nay, more, it is anti-heteronomous, as it positively excludes any outside source of the law--even to the point of excluding Nature and Nature's God. Kant's morality is, in a way, the complete antithesis of Natural Law.


To understand Kant, one must recall Descartes's mechanistic view of nature and the Baconian rejection of a final and formal cause in nature. This is because, as Levering says, "Kant returns firmly to Descartes's project, which he advances." Levering, 117. Informed by philosophical nominalism, Bacon insisted that the notion of a final cause (or telos) in nature was a muzzle on true science that had to be discarded "The final cause rather corrupts than advances the sciences." Bacon, Novum Organon, aph. 3. Similarly, the notion of a formal cause, or an understanding of the "form" or "nature" of a thing, was useless. To exercise power over nature, man had to limit his analysis of nature to material causes only. "Matter rather than forms should be the object of our attention . . . ." Nature, as it were, had to be put to torture and put on the rack. Similarly, Descartes rejected the notion of a final cause. "The entire class of causes which people customarily derive from a thing's 'end,' I judge to be utterly useless in Physics." Descartes, Meditation 4. Matter was "dead," it had no principle of life outside mechanics that could be perfectly transcribed into mathematical equations. Coupled with this mechanistic view of nature was Descartes's extreme dualistic view of man, where man was a detached spiritual mind almost jailed in his material body. As a result of this deprecation of the body and the body/soul union, Descartes viewed the will and not reason as the preeminent human good. As he stated in a letter to Christina of Sweden:"Now freewill is in itself the noblest thing we can have because it makes us in a certain manner equal to God . . ." It was an apotheosis of will that proved regnant in Cartesian philosophy. So on the one side was a mechanical cosmos with no purpose, the res extensae, the extended order of things. On the other was the human mind or soul, the thinking thing or res cogitans.

Kant then stood on the shoulders of Bacon and Descartes. And there he was confronted with Hume's skepticism. It was Hume and his skepticism which "interrupted" Kant's "dogmatic slumbers." (Kant, Prolegomena to Any Future Metaphysics) Kant sought a means around the Humean skeptic fence that barred reason from knowing the good, and made reason slave to his passions. Kant's efforts at preserving the Cartesian mechanistic view of nature while yet overcoming Hume's radical skepticism required a severe restraint on reason, both theoretical and practical. Reason could not know the things in themselves (ding an sich), it only knew the appearances of the things in the mind as informed by sense data. "I had to do away with knowledge," Kant said in his Critique of Pure Reason, "to make room for faith." Kant may have better said "emasculate" or "amputate" Reason. And what kind of faith did he allow for?


In the area of morality, three notions were placed outside of pure reason's grasp by Kant: freedom, the immortality of the soul, and the existence of God who will reward the good and punish the evil. Kant maintained that none of these could be proved by reason (as they could also be disproved), and in his famous antinomies, Kant both proves and disproves the existence and non-existence of these three truths. So Kant shows with equal rigor that the world had a beginning in time, and no beginning in time. Through reason, Kant shows that it can be argued that the world is both made of composite substances made of simple substances, and that no composite substance is made of simple substances. He shows that there is free will, and that there is not free will, but all things are fastly determined. Kant argues that there must be a necessary Being, and then again that no such Being exists. Kant's point in his antinomies is not that these things don't exist, but that they are beyond the pale of reason. To accept them required faith. We had to act "as if" the soul was free and immortal, and there was a God who rewarded good and punished evil (als ob ein Gott sei), as if there were a reason or an end though, in fact, we must disabuse ourselves of the belief that these can be gleaned by reason. The God of Kant's faith was safely insulated from Reason's and the World's assault, and from Hume's skepticism, but that meant that God had only a presence in human consciousness and not in the worlds of Nature and Reason. For Kant, the cosmos is without God, and God is without being, an emasculated God. God is only in our minds. This is not the God to which we pray, "I believe, help Thou my unbelief!" It is a God that is marginalized, compartamentalized, housed in a Ghetto. (Unfortunately, once confined to our minds, this God in our minds becomes very pliable, as we shall see.)

So God deftly out of the way: "What is to be done, if the will is free, if there is a God, and if there is a future world?" asks Kant. (Kant, Critique of Pure Reason). The answer is given in Kant's moral philosophy, and Kant here applies as radical a critique as he did in regards to theoretical reason. First, Kant rejected any role of human nature in determining good and evil. Kant rejected the role of natural inclinations or desire for happiness as containing anything of importance to the question of the good. In fact, these inclinations and desires worked against the preeminent determinant of good: a good will informed by duty alone. In an effort to overcome Hume's guillotine (his "is"-"ought" argument), Kant jettisoned Nature like he did Reason. For Kant, a good will is most pure when it goes against inclinations or desires. It is most pure when it follows a categorical imperative: "Do this!" and not a conditional imperative, "If you want to be good or be happy, do this!" (Kant, Groundwork of Morals)

For Kant, therefore, (and like any good Cartesian) morality is solely within, in the will. In Kant's view, the human will has two main components. First, it is a self-caused movement. Second, it is a rational power that uses universal concepts. Accordingly, the purity with which the will moves itself (outside of any inclination or desire) and the universality of the rational imperative is what makes the will good. For Kant, the chiefest universal law is what he called the "categorical imperative." "Act only according to the maxim by which you can will at the same time that it becomes a universal law." (Kant, Groundwork of Morals) The categorical imperative is the highest law because it is pure command and most universal. It references no matter, no nature, no happiness, not even God; it is pure and uncorrupted.

When the will acts in accordance with the categorical imperative, the human will will reject any other law outside of the imperative. Duty is solipsistic. It looks towards itself, it never looks outside itself, it judges for itself. Therefore, the will legislates for itself. We have the law of one. The will, to be free and good, must become autonomous. "The will is not simply subject to the law, but subject in such a way that it must also be considered as self-legislative and for this reason, at the very first, subject to the law whose author it can consider itself to be." (Kant, Groundwork of Morals) Therefore the person is autonomous, not heteronomous. A person must be like a greek city--a polis--that issues its own laws out of its own sovereignty (auto-nomos), and not a city that relies on another city with jurisdiction to issue laws (hetero-nomos). The person must act in accordance with the imperative (autonomy) unmoved, uninfluenced by any desire or inclination for good or evil encountered in external experience (heteronomy). As Michael Waldstein summarizes it:

I am autonomous when I will what I will without being motivated by any good or evil, that is, when I move myself according to the categorical imperative. I fall into heteronomy when I will something because it is good. In heteronomy, I degrade my will and make it a servant of my internal desires. I reach autonomy and freedom only when my will is completely independent from the whole sphere of appearances based on received sense-data, 'for, independence of the determining causes of the world of sens (and independence which reason must always claim for itself) is freedom.'

Waldstein, 50 (quoting Kant, Groundwork of Morals).

Well that certainly takes care of Hume. But at what expense?

As Pierre Manent summarizes it: "At last [man] can think what until that time he could only will: he can now think that he is neither a creature of God nor a part of Nature, that he is in short born of himself, the child of his own liberty." (Manent, The City of Man (Princeton: Princeton University Press, 1998), 189 (quoted in Levering, 119 n. 178). According to Kant, a rational being achieves greatest dignity when it "obeys no law except the law which it simultaneously gives to itself." Kant, Groundwork of Morals. Autonomy and freedom are the highest goods, not obedience to a law that is wise or good or that may lead us to happiness or union with God. Thus in a masterful sophistry, Kant baptizes as the good autonomy and its necessary concomitant: disobedience to any externally-imposed law. More, because each person is completely autonomous, each deserves dignity, and each becomes his own law, and his own end:

For what end (quem in finem) does [man] exist? His existence has the highest purpose in itself . . . It is only in man, and in man only as the subject of morality, that an unconditioned legislation concerning purposes can be found, which thus enables him alone to be a final purpose to which the whole of nature is teleologically subordinated.

(Kant, Critique of Judgment) Waldstein summarizes what Kant has proposed: "Each and every person is the final end of the whole of nature. There are as many final ends as there are persons." Waldstein, 51-52. This principle of autonomy is also reflected in Kant's political philosophy, which views government's task not as promoting any good, but as protecting autonomous individual's rights. Government's role is not to promote the happiness of its citizens, but to promote the rights of its citizens. Government is no-wise to be paternal (imperium paternale); rather, it is to be patriotic (imperium non paternale, sed patrioticum). Pace George F. Will, Statecraft is not Soulcraft. Indeed, counterintuitively, the "greatest despotism imaginable" is a government that desires and promotes the good of its citizens, more despotic, presumably, that a government which does not intend the good of its citizens, but rules them for its own ends. Waldstein, 52-53.

The distance of Kant's moral philosophy from that of Natural Law and Scripture is at once apparent. Indeed, as Waldstein notes, Kant's notions of autonomism and disdain of any dependence contradict the very heart of The Lord's Prayer: Pater noster, qui est in caelis, . . . fiat voluntas tua . . . panem nostrum quotidianum da nobis hodie . . . Our Father, who art in heaven . . . thy will be done . . . give us this day our daily bread . . . . The Lord's Prayer implies a heteronomous relationship with God in which we find freedom; we are not our own, but both our beginning and our in are in God. One wonders how sincerely Kant prayed the Vater Unser, one wonders if he could without wincing.

It is Kant to whom credit is given for separating law and morals, ethics and law, by separating law and its external compulsion from notions of the inner freedom or moral autonomy of the individual person. Rommen, 88-89. This separation was so severe, that for Kant "[t]he legal order is devoid of moral character." Rommen, 90. As Pierre Manent puts it:

[Man] flees the law that is given to him and seeks the law he gives himself. He flees the law given to him by nature, by God, or that he gave himself yesterday and that today weights on him like the law of another. He seeks the law he gives himself and without which he would be but the plaything of nature, of God, or of his own past. The law he seeks ceaselessly and continuously becomes the law he flees. In flight and in pursuit, with the difference of these two laws always before him, modern man proceeds in this way to the continual creation of what he calls History. In this enterprise, the nature of man is his principal enemy.

Manent, 204 quoted in Levering, 120, n. 178.

We could perhaps adapt Kipling's famous words in his "Ballad of East and West": Oh law is law, and morals is morals, and never the twain shall meet. The excessive separation between law and morals has led more than one person, even such redoubtable and diverse thinkers such as Ayn Rand and Hannah Arendt, to link Kant's ideas to Hitler and Eichmann. Whatever the link in factum esse, it is true that neither the evil and original Hitler or the evil and banal Eichmann would have been possible had German society held fast to a Natural Law jurisprudence. Ideas have consequences; and bad ideas have bad consequences.

We will close by quoting Kant. "Two things fill the mind with ever new and increasing admiration and awe, the more often and steadily we reflect upon them," said Kant, "the starry heavens above me and the moral law within me." Zwei Dinge erfüllen das Gemüt mit immer neuer und zunehmender Bewunderung und Ehrfurcht, je öfter und anhaltender sich das Nachdenken damit beschäftigt: der bestirnte Himmel über mir und das moralische Gesetz in mir.

Stars and duty, not God above or God within. John Paul II is supposed to have remarked about Kant in the context of his wrestling with Kant's thought: Kant! Mein Gott! Kant! Kant! My God! Kant! (Weigel, Witness to Hope (New York: Harper Collins, 1999), 128). It was as if John Paul II, in an unguarded moment, were challenging Kant from his very grave to turn his gaze from the lesser deities of stars and of duty to his God, the God of Abraham, Isaac, and Jacob. The God that became Man in Christ Jesus and taught us to pray . . . .

Note: These reflections rely heavily on Michael Waldstein's masterful summary of Kant's moral philosophy in John Paul II, Man and Woman He Created Them: A Theology of the Body (Boston: Pauline Books, 2006), 34-54.

Ecstasis and Telos: David Hume and "Feelings, Nothing More than Feelings . . . "

DAVID HUME, THE "GREAT INFIDEL," presents a formidable and corpulent foe to the proponent of a Natural Law theory. Considered part of the Scottish Enlightenment, David Hume (1711-1776) was principally a historian, but his contributions to political and moral philosophy are what have catapulted him to lasting fame. In this area, his A Treatise on Human Nature (1739-40) and his Enquiry Concerning Human Understanding (1748) are the most important. Though there is some dispute about whether Hobbes was an atheist, there is no doubt on the score with respect to Hume. Hume was without doubt an unbeliever, even up to the point of death he expressed disbelief. One wonders if, on the day of the Last Judgment, he will walk out from his tomb as if he were Lazarus with great surprise.



But we are not here to judge the everlasting fate of Hume's soul, a matter which is infinitely outside our competence in any event. Nor are we here to undertake a description of Hume's philosophy and its sophisticated brand of skepticism which informs it, as that would be a Herculean task. Suffice it to say that at the root of all his theories--whether of belief, of knowledge, of induction, causation, the outer world, or morality--was anti-rationalism. Perhaps one of the most famous of all statements in moral philosophy, and one that best describes his moral philosophy in a nutshell, is found in his Treatise on Human Nature: "Reason is, and ought only to be the slave of the passions, and can never pretend to any other office that to serve and obey them." Or again: "Morals excite passions, and produce or prevent actions. Reason itself is utterly impotent in this particular." For Hume, the moral law is not based upon reason, but upon passion, feeling, sentiment. It therefore follows that Law is nothing but passion writ large.


Though Hume recognized something he called the "Law of Nature" present in man, it is clear that this is something altogether different from the perennial Natural Law.

The 'law of nature', then, is not "natural" in the deepest sense, and yet its rootedness in our self-interested desire to satisfy our passions in the best possible way gives it an adequate stability. For Hume, the "three fundamental laws of nature" are "that of the stability of possession, of its transference by consent, and of the performance of promises". Each is a "law of nature" both for individuals and for nations because each is necessary for the satisfaction of human feelings (or passions, desires, sentiments). These feelings are nature's lawgivers: "Nothing is more vigilant and inventive than our passions." Reason does not guide the feelings by means of abstract moral principles; rather the feelings, rooted in self-interest, attune reason to the conventions necessary for the satisfaction of our desires.

Levering, 108. Hume rejected the ability of the mind to form universal ideas from sensory observations of nature that had any validity. Everything we know is material, and we know nothing that is not material. Hence, we can have no knowledge of anything spiritual or non-material. Souls are impossible to conceive. God is impossible to conceive, and the proofs of God derived from the observation of nature have no validity to Hume. The whole thing is unintelligble to Hume. Levering, 104. Hume therefore rejects any notion of a teleological order. In fact his whole moral philosophy is directed against those who believe "that there are eternal fitnesses and unfitnesses of things, which are the same to every rational being that considers them; that the immutable measures of right and wrong impose an obligation, not only on human creatures, but also on the Deity himself." Levering, 104-05 (quoting Treatise).

One of Hume's arguments has been particularly significant in the area of the Natural Law. It is frequently called the "Is-Ought" Problem, or "Hume's Guillotine." Essentially, Hume's claim is that one cannot go from a descriptive statement to a prescriptive statement. It involves a logical fallacy. The argument goes that one cannot argue from a fact of nature (an "is") to end up with a proposition of morality (an "ought"). Hume suggests that advocates of Natural Law have lapsed into this logically fallacy. One may directly quote Hume on this matter (Book III, Part I, section I of his A Treatise of Human Nature.)

In every system of morality, which I have hitherto met with, I have always remark'd, that the author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when all of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, 'tis necessary that it shou'd be observ'd and explain'd; and at the same time that a reason should be given; for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it.

(Fear not: the argument is answerable; however, now is not the time to handle it.)

In his book Biblical Natural Law, Matthew Levering concluded that Hume's doctrines leave us far away from the "biblical portrait of the richly 'ecstatic' capacities of the human person created by God for communion with God."

We might fancy a battle of legal philosophies between these two corpulent wrestlers. In one corner, the champion of the non-believer, David Hume. In the other corner, the hope of the believer and the current underdog, St. Thomas. The bell has rung. Were I a betting man, I would chose the Dumb Ox over the Great Infidel in this match of champions.

Natural Law: Ecstasis and Telos

ETIAMSI DAREMUS . . . NON ESSE DEUM. These temerarious but still tenuously introduced words in the introduction (Prolegomena) of Hugo Grotius's treatise De iure belli ac pacis (1625) symbolize a historical phenomenon of which anyone who studies the Natural Law must be aware. In this treatise on international relations, Grotius (1583-1645), commonly called the "Father of International Law" (although the title could equally be claimed by the Spaniard and Catholic Vittoria), relied on the doctrine of the Natural Law. Though the Dutch Grotius was himself a Christian [of Protestant bent, he wrote an apologetic of Christianity in Dutch, Vewisjs van den waren Godsdienst (1622) which was translated into Latin as De veritate religionis Christianae (1627)], he argued that the Natural Law would bind us etiamsi daremus . . . non esse Deum, even if "we dare to say there is no God." It is true that the Natural Law binds all men, including the Atheist, and if understood in this manner, there is no controversy to what was said. But Grotius's etiamsi is indicative of something in the air a little more subtle, and a little more ominous. It is perhaps the first shoot, the first flowering of a Natural Law theory wholly unmoored from the notion of God, if such a theory is even tenable. It was the maturation of trend of turning away from God being the measure of all things to a Protagorean man is the measure of all things. In his classic The Natural Law: A Study in Legal and Social History (Indianapolis: Liberty Fund, 1988), the historian of Natural Law, Henrich Rommen, identifies Grotius as the "turning point." The "turn," however, started much earlier than Grotius.


In his excellent book Biblical Natural Law (Oxford: Oxford University Press, 2008), Matthew Levering, an Associate Professor of Theology at Ave Maria University, discusses this "turn" from a theocentric notion of Natural Law to an anthropocentric notion of Natural Law. According to Matthew Levering, two things are required for a wholesome (and also Biblical, i.e., consistent with Revelation) theory of Natural Law. The first he calls ecstasis. The second he calls teleology.

What do these words mean? Ecstasis is the transliteration of a Greek word ekstasis or ἔκστασις. It means to "extend outwards" to "stretch out." It is the word from which we derive the English word ecstasy. It is used here for the desire of union with the Divine. This ecstasis need not be religious in origin, though it most often is. For example, the neo-Platonic philosopher Plotinus, no Christian himself, in his Enneads speaks of his ecstasis, his virtual experience of union, with his philosophic notion of God which was based upon a natural theology. The term ecstasis was readily adopted by Christians to describe the union with the Trinity. Levering's point is that the Natural Law must recognize ecstasis, a desire for union with God, which means that our lives on earth are ordered to God.


The second requirement that Levering argues is required for an adequate theory of Natural Law is a teleology of nature. The word teleology is a technical word derived from a combination of two Greek words: telos (τέλος), which means "end", "purpose", or "goal," and logos (λόγος), a word which means "reason" or "word." For example, in the Gospel of Christ Christ is referred to as the Logos of God, the Word or Reason (logos) of God. John 1:1. In St. Paul's letter to the Romans, Christ is also referred to the end (telos) of the Law. Rom. 10:4. As applied to Nature, a teleological view would include the concept that God created nature, including the nature of man, and that He did so with a plan, a purpose, an end, a reason in view.

In short, requiring a theory of Natural Law to possess a notion of ecstasis and a notion of teleological nature means that God is both the origin and the end of things, including man. God is the alpha (A), He is the omega (Ω), the first and last letters of the Greek alphabet, and the first and last letters of the Natural Law. Put another way, the requirement that a theory of Natural Law include notions of ecstasis and notions of teleology in nature mean that a theory of Natural Law must presuppose Eternal Law.

The traditional or classical notion of Natural Law includes both notions of ecstasis and teleology in nature. This notion of Natural Law found its most mature expression among the Stoics, e.g., Cicero, and was advocated in modified form by the Church, e.g., in St. Augustine and St. Thomas Aquinas, as consonant with, and in fact revealed in, Scripture and Tradition. Many modern theories of the Natural Law shun notions of ecstasis. They turn not outward to God (ecstasis), but wholly inward (in what may be called an entasis) to man. Though a turning inward to man is not fatal to a theory of the Natural Law (in fact it would be part of our discovery of our nature), it is when this turning inward is exclusive or in opposition to the turning outward to God that it becomes a problematic to a theory of Natural Law.

The story of how the Natural Law came to be progressively emancipated from its theological roots is a long one, and there are many controversial points about it, for example who initiated the process, and whether the arguments made to justify such emancipation are valid or not. Regardless, Levering calls this disassociation from of the Natural Law from its original theological roots the "Anthropocentric Turn" or "Anthropocentric Shift." He wrests out eight individuals from history to make his point. And for the next series of reflection we will rely on his choices: Renè Descartes, Thomas Hobbes, John Locke, David Hume, Jean-Jacques Rousseau, Immanuel Kant, George W. F. Hegel, and Friederich Nietzsche. There are many others Levering could have chosen (e.g., Ockham, Scotus, Machiavelli, or Luther). Though these may (or may not) have been believers in various shades, the "natural law" of Messrs. Hobbes, Hume, Locke, Rousseau, Kant, and Hegel is not the Natural Law. These gentlemen's ideas are already on the way out of the Porch (Stoa) or the Church (Ekklesia) , and in some instances completely out of the Porch or the Church into the Wilderness.

To a greater or lesser degree, each of these men rejected the notion of ecstasis and teleology in nature. In some cases, there was no apparent rejection, but some of their presuppositions would lead to or implied such rejection. Each played a part in the Western world's turning from God as the measure of all things, including Law, to Man as the measure of all things, in particular Law. Some of their notions have prevailed and are assumed in modern culture, and we have to be aware of them in order to understand better the Natural Law, to reject these ideas, or to respond to them.

St. Thomas Aquinas's Definition of Law

IN AN OFT-QUOTED DEFINITION, St. Thomas Aquinas defines law as "nothing other than a certain dictate of reason (rationis ordinatio) for the common good, made by him who has the care of the community and promulgated." ST. IaIIae, Q.90, art.4. Perhaps the most significant emphasis of this definition is that law is based upon reason, and not upon custom, will, politics, or power. Therefore, St. Thomas is clearly outside the voluntaristic camp, those who, like the medieval Ockham, sought the essence of law in God's will as distinguished from His reason. Similarly, he departs from those who suggest a command theory of law, the most notable of these being perhaps John Austin (1790–1859) who, seeking to disassociate the law from precepts of morality, in his The Province of Jurisprudence Determined (1832) defined law as the command of the sovereign backed by sanctions. St. Thomas Aquinas's emphasis on the practical reason as a source of substantive values also distinguishes him from philosophers such as David Hume, who rejected the role of practical reason in legislation, as he found it only instrumental ("Reason is, and ought only to be the slave of the passions," Treatise of Human Nature, 2.3.3.4). Similarly, the German jurisprudential scholar Rudolf von Jhering, who, in his Der Zweck im Recht, saw law as merely a "means to an end" without substantive component other than the convenience of the society works outside St. Thomas's frame of reference. Although St. Thomas recognizes the role of customary law, in it focal meaning, law is more than that which merely what steps out of the practice (Übung), conventions (Sitte), and customs (Gewonhneit) of a society, something that rises from an inner, silently-working forces, the innere, stillwirkende Kräfte, of a people's consciousness. St. Thomas would therefore not be in agreement with the likes of Frederich Carl von Savigny. The concept of law envisioned by St. Thomas radically departs from the Critical Legal Studies school which claims that law is indeterminate, and ultimately that "law is politics" and nothing else. Similarly, Michel Foucalt's view that all law is nothing but power is rejected by St. Thomas Aquinas in his definition of law.

It is not that these other theories do not have some truth to them, and perhaps in some fashion they even adequately explain law, or its abuse, or a certain characteristic of it, in certain times and places. They may be valuable in ascertaining law in a loose sense, or in a sense which is not its focal sense, i.e., its sensu lato. For St. Thomas, however, the issue was what the definition of law was in sensu stricto, in its principal focal meaning. For St. Thomas, the kernel, heart, and soul of the law is reason, above all other things. Thus, a "law" may be a command of the sovereign, may be the result of the political process, may be issued by the powerful against the weak, may be perfectly customary, and yet--if it does not conform to reason--it is not law in the strict sense. Rather, though it may have indicia of being a "law," it ought, in fact, be considered tantamount to violence. ST IaIIae, Q. 93, art. 3, ad. 2.