Determining Rachel

CLASSIC THOMISTIC THEORY OF NATURAL LAW distinguishes between self-evident principles, conclusions, and determinations* of natural law. The self-evident principles and, to a large extent, the conclusions are matters that most will not disagree on, and are generally considered to be those sorts of matters which, in J. Budziszewski's expression, we can't not not know. Self-evident principles are matters such as we ought to do good, and avoid evil. Conclusions include such matters as one ought not to kill an innocent human being or commit adultery. The self-evident principles and conclusions must then be extended out to reach out all sorts of behavior. Some of these determinations are more clear than others (if they, say involve general principles: you should not use artificial contraception), whereas others clearly get into prudential decision and run into the gray of factual determinations (e.g., whether a war is just or not, what punishment, if any, ought to be assessed against certain behavior, e.g., assault with a deadly weapon). These determinations, though they may vary diversely from place to place, from time to time, from culture to culture, are still informed by the natural law, and are therefore binding. The determinations can be made both by individuals (in moral decisions) and by properly constituted authority in laws. In both events, the moral law informs the determinations.

Jacob and Leah by Erwin Speckter (1806-1835)

A classic example of determinations is the rule that one ought to drive on the right-hand side of the road. In England and other places influenced by England, as everyone knows, the rule is to drive on the left-hand side. These are determinations of a general natural law rule that the properly constituted authority has an obligation to pass reasonable laws so as to reduce the fatalities associated with the activities of its citizens to the benefit of the common good. Once, however the determination is made by properly constituted authority (or custom) to drive on the right side of the road, it would be a breach of both that particular law (or custom) and the natural law to drive on the left side.

Sometimes, these determinations are self-imposed as a result of choices that an individual makes. An example that J. Budziszewski gives in his short book Natural Law for Lawyers,** involves marriage. He plays off the biblical story of Leah and Rachel as an example of how a person can freely determine the natural law, but, once having made his decision, the natural law becomes highly specific.

A man (we shall call him Jacob) has the choice of one of two women as wife: Leah or Rachel. Suppose that Leah and Rachel are equally attractive to him, and equally virtuous. Let us suppose that, for whatever reason, Jacob loves Rachel more than Leah, and so chooses her to be his spouse. From a prudential (and moral) perspective, he could have chosen Leah without any fault. From a prudential (and moral) perspective, he chose Rachel, without any moral fault. But he has freely selected Rachel to marry.

However, once having chosen Rachel over Leah, he has chosen "the goodness of who-Rachel-is over the equal but different goodness of who-Leah-is, not because Rachel is more good in herself than Leah but because she seem more good to him." Budziszewski, 85. But this freely-made determination binds him, and makes the general moral precept that he should not commit adultery very specific: he may not engage with sexual relations with anyone except his chosen Rachel.

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*The topic of determinations is treated in various prior posts, but is extensively discussed in Natural Law's Modern Cousin Germain: Law's Relationship to Law
**J. Budziszewski, Natural Law for Lawyers (Nashville: ACW Press, 2006).

Ignorance of the Wrong-Levels of Knowledge

IN OUR EARLIER POSTING WE EXPLORED the issue of the ontological division of precepts with a focus on the relationship of the precept to the ultimate end. In this posting, we shall explore the epistemological division of precepts. The former looked at the precepts in se; the latter will look at the precepts quoad nos, as we know (or are ignorant of) them. Knowledge of the precepts is obviously important for if the precepts are to guide us in our reasonable quest for happiness and our ultimate good, then we must have knowledge of the precepts when choosing among the various particular goods that confront us in determining whether the particular goods are, in fact, leading us to happiness or our ultimate good.

The practical reason in man, not less than the speculative, is discursive; it draws conclusions from general principles which are, so to speak, their causes. As principles are better known than conclusions, it becomes evident that some precepts of the natural moral law will be better known than others. There will be a hierarchy of order according to the cognoscibility.

Bertke, 37. Knowledge of principles is affected by a variety of factors, but we may categorize them into two general areas: (i) the precepts' generality versus their particularity, and (ii) their closeness to our natural inclinations. These two areas are important in distinguishing what affects our knowledge of moral principles.

The general principles of the natural law may be self-evident inclinations or principles or may be direct conclusions from self-evident principles. On the other hand, they may be determinations much further down the discursive chain of reasoning. The injunction, "do not kill the innocent," is much more readily understood (and known) than the application of that principle in the issue of ordinary care and extraordinary care, and when extraordinary medical means may be refused, or when palliative care, which indirectly may hasten death, may be used to alleviate the suffering of a patient. It is apparent at once that the more common or general principle is more readily known than the more particularized application of it.

[I]t becomes evident that the practical intellect will be apt to know precepts which deal with human action in general before it becomes aware of those norms which guide particular actions, and the deeper we descend into the real of particular action surrounded by various circumstances, the more difficulty is encountered by the intellect in determining the correct norm to follow."

Bertke, 40.

Generality of a principle ought not to be confused with self-evidency, as there may be self-evident principles that are general and those that are particularized and require specialized knowledge. Self-evident principles are those in which the predicate is contained within the subject, so that if one knows the subject, one will necessarily know the predicate. St. Thomas divides the propositions into those which are self-evident considered in themselves (secundum se or per se notae quoad se) and those which are self-evident in relation to the knowing subject (quoad nos).* Since knowledge of self-evidency requires that we know the subject and the predicate (so as to recognize that the predicate is contained within the subject), it follows that ignorance of the subject or predicate will result in our failing to comprehend a self-evident proposition or principle.

Since our knowledge is derived from the senses, it follows that those principles that are more closely tied to the senses are more readily known. Similarly, those principles which are strongly tied to natural inclinations are generally better known. "[F]acility in the acceptance of a precept guiding an inclination will be in proportion to the strength of the inclination." Bertke, 39. Inclinations tend to be stronger the more further removed they are from man's conscious intellectual activity. The intellectual feltness found in man's basic inclinations are, in a manner of speaking, guttural and "these inclinations will be stronger in those regions farthest removed from the conscious life."** The principles behind the basic inclinations which incline and direct the will strongly will be more readily grasped than those to which the will is indifferent. There thus arises a certain curious paradox:

It is paradoxical that the intellect will more easily assent to precepts guiding to the attainment of those goods which are farthest removed from conscious life as such, while the easiest assent of all will be to that precept which guides us to the good which is possible only because of the nature of intellectual apprehension. The reason lies in the strength of the inclination. . . . [M]an must seek the total human good, or perfect happiness; this is man's strongest inclination, and a precept finding its wellspring therein will most easily find acceptance in the intellect.

Bertke, 40. There are, moreover, distinctions within the inclinations arising from whether these relate to being generally, animality, or rationality. There is, therefore a "threefold category of inclinations which man possesses by reason of his complex nature." Bertke, 42. "[E]ach distinct class of being has an inclination to the good which is in conformity with its nature. We find similar inclinations of all these types in man by reason of his complexity." Bertke, 41-42.

Following St. Thomas, Bertke therefore distinguishes the overriding first principle of moral life and "a series of precepts which, though less universal and therefore less easily known than the first principle, are nevertheless self-evident to all and therefore constitute with it the first class of precepts." They are as follows:

• good must be done; evil must be avoided (the first principle).
• being must be conserved.
• the species must be conserved.
• act in accordance with rational nature.
• do unto others as you would have them do unto you.
• give everyone his due.
  

As we descend from these self-evident general principles, we encounter a "second group of precepts," easily deduced from the first class, "and which have to do with determined actions or means to the realization of the general goods proposed to man's reason by the various inclinations." Bertke, 43. By and large, this second group of precepts is well-summarized in the Ten Commandments or Decalogue. Though the Ten Commandments are revealed precepts, they are coterminous with precepts of the natural law that are easily deduced from the fundamental principle of the natural moral law and the self-evident principles identified above.***

To St. Thomas the Ten Commandments are a sort of moral plexus which implicitly contain the fundamental precepts of the natural law and, further, implicitly contain the entirety of all further conclusions and determinations. "The first precepts are to be found in the Decalogue as principles are contained in conclusions drawn from them, while the remote precepts are contained in the Decalogue as conclusions in principles." Bertke, 43.†

From the first level and second level precepts we may mover further down the deductive chain of reasoning. At this point we enter more and more remote conclusions or determinations. As we go further down this often times sinuous mental road, matters become more concrete, particularized, contingent, conditional and therefore more mentally tenuous. Commonly, the precepts of this third level are not self-evident or readily obtained by the ordinary man. The ordinary man needs help, either by reliance upon the judgment of a wise and virtuous person or upon positive law (either divine or human) to determine the correct norm of action. It is evident that a huge part of our lives plays out in this third level of precepts. Accordingly, it follows that a large part of our lives must be governed by the judgment of wise men or positive law.††

Error and ignorance of the natural moral law is not "the normal fruit of the mind," and yet, in the state of man as we find him, fallen and with a loss of integral nature, it is the case that error and ignorance are common, and in fact more frequent than truth and knowledge. Mental or moral abnormality is unfortunately common, and we have modern institutions in competition with the Church for man's soul that encourage, promote, and relish in propagandizing error.††† But before we can assess what is abnormal, we need to know what is normal and what may detract from normalcy.

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*S.T., IaIIae, q. 94, art. 2, c.
**As we have discussed before, it is not that these inclinations are irrational; rather, they are very rational even though their rationality is not such that result from the conscious or propositional rationality. Maritain and others have called this rational (but not conscious) knowledge by inclination or by connaturality, and we have used the concept of "intellectual feltness" to encompass both the rational aspect of it and the inclinatory, connatural, congenial aspect of it. See Jacques Maritain and Natural Law: Inclination and Law, Part 1. Yves Simon uses an interesting analogy to distinguish matters known by inclination versus matters known consciously through discursive knowledge. Knowledge known by inclination is, as it were, "smelled." Knowledge known discursively or consciously is, at it were, "touched," or "seen." See notes to Virtue Defined.
***Excepted would be the requirement to keep the Sabbath holy. Though the worship of God would be preceptive under the natural law, it would not necessarily translate into the separating apart of a particular day of the week to God.
†See S. T. IaIIae, q. 100, art. 3, c.
††Some of these wise men wear habits or soutanes. In the case of a person who has faith in Christ, he would have the further assured help of the Magisterium of the Catholic Church, which provides guidance, under some circumstances infallible guidance, of the content of the natural moral law even in this third level. It would seem, however, that even a person without faith in Christ and his Church would pay attention to the Church as an institution that has amassed tremendous wisdom of both matters divine and human. Even as a matter of natural faith, the Church ought to be recognized as a voice crying out in the moral wilderness. Far better to listen to the Church, than to the drone of the media and the opinions of their proffered pundits and talking heads, the psycho-babble of many psychiatrists and psychologists, the foolishness of "Dear Ann" columns or articles in Cosmopolitan, the inanities of the celebrities of Hollywood, or the slogans of self-serving politicians.
†††The names of these competing institutions are Legion (Cf. Mark 5:9; Luke 8:30). We might include such names as PP, ACLU, MSNBC, MTV, NAMBLA, KKK, ANP. Some of these demons of Gadarenes are decidedly less liberal or progressive, e.g., Al-Qaida.

Natural Law's Modern Cousin Germain: Law's Relationship to Law

IN DISCUSSING THE RELATIONSHIP BETWEEN positive human law and the natural law, Finnis tries to fit in his theory of the relationship with traditional understandings of that relationship. It is not entirely convincing that with the Finnisian theory of natural law we are dealing with the same thing as the traditional, classical theory of natural law. It is in this nexus between human law and the natural law were Finnis's theory seems to depart, to degree if not entirely in kind, with the notions reflected in every theory of natural law which is that the human law is derived from and finds it source in the natural law and, ultimately, the eternal law itself. As an example of this traditional teaching, Finnis cites the 16th century words of St. Germain's Doctor and Student:

In every law positive well made is somewhat of the law of reason . . . and to discern . . . the law of reason from the law positive is very hard. And though it be hard, yet is much necessary in every moral doctrine, and in all lows made for the commonwealth.

NLNR, 281 (quoting D&S, I, c.4). This doctrine of St. Germain's is traditional. It is essentially identical with that of St. Thomas Aquinas: Omnis lex humanitus posita intantum habet de ratione legis inquatum a lege naturae derivatur. Every human law posited by man has the character of law insofar as it is derived from the eternal law. S.T. IaIae, q. 95, a. 2, c.

The relationship between positive law and natural law is most evident in certain laws that tightly bound with precepts of the natural law law. An example of this may be the criminal law against murder. St. Thomas would say (S.T., IaIIae, q. 95, art. 2, c.) that such a positive law is related to the natural law "by a process analogous to deduction of demonstrative conclusions from general principles," NLNR, 281, and consequently part of these laws' force comes from the natural law. Hooker, for his part, calls these sorts of laws "mixedly human" because they are a sort of admixture of human and natural law. NLNR, 281. (On the Laws of Ecclesiastical Polity, I, c. 10, sec. 11). Finnis calls St. Thomas's insight as "fundamentally correct, but vaguely stated and seriously underdeveloped." NLNL, 282. He finds Hooker's expansion not useful.

Finnis in some ways seems embarrassed by the traditional doctrine. Finnis avoids the term "natural law," and instead explores the question as one being the "relationship(s) between the particular laws of particular societies [i.e., particular positive laws] and the permanently relevant principles of practical reasonableness." NLNR, 281. He observes several qualities of human positive law that distinguish it from natural moral law:

1. Human legislation is generally written in propositional or indicative statements, not in hortatory or normative statements. The natural law would urge in the form of a command: "Do not kill!" State law would generally state it in a manner thus: "a person commits the offense of murder if he intentionally or knowingly causes the death of an individual." Finnis sees this characteristic as being one related to the acknowledgment that what's involved in the passage of law is the "pattern of a future social order," and that the language attempts "to reproduce that order." NLNR, 283.
   
2. Human law adds another level of reasoning since the "legal rendering of social order" provides the matrix for "a new train of practical reasoning." The law-abiding citizen therefore has more than the natural law to lean on; he may also lean upon the human law itself as defining for him the moral law in any given instance. He need not each and ever instance go back to fundamental principles, but may rely on the "artificial reason" of the law, as Edward Coke so adequately described it. Not only is it a new way of thinking, but it also gives a "distinct new motive for the law abiding citizen."
   

The example of murder is, of course, an easy one to work with because it is so intertwined with an intrinsic moral precept commonly and easily recognized that we ought not to take the life of someone who is innocent. The interrelationship between positive law and natural moral law (or the requirements of practical reasonableness) appears much more tenuous, perhaps even difficult to see when we deal with laws that seem to involve less strictly moral subjects, more jejune, even arbitrary decisions (such as that every-popular example of whether the state ought to decide whether drivers should drive on the right side or the left side of the road). The former type of laws (such as the laws against murder) Aquinas saw as derived from the natural law "like conclusions deduced from general principles," where these other types of laws were "like implementations [or determinations, or concretizations: the Latin term used by St. Thomas is determinationes, and it has no English equivalent by which it may be translated] of general directives."* NLNR, 284. Some of these determinationes are indeed so far-removed from, or only so-obliquely or tangentially related to, their original natural law basis that they become, as it were, authoritative "wholly from human law," as St. Thomas would say, or are, what Hooker calls "merely human laws." NLNR, 285.**

Perhaps the best way to understand the role of determinationes is to use the analogy of an architect. An architect knows that a house must have a means of entry and exit, a door, and knows further that such door must have some means of opening and closing it, say a knob, or handle, or similar device, and some means of security, a lock, deadbolt, chain, etc., to prevent those who we do not want opening it to open it. The determinationes or application, concretization, instantiation, or implementation of these general requirements and the freedom of action allowed an architect is virtually limitless yet in each and every instance he has remained faithful to the general requirements to have an instrument to allow opening and closing the door and unwanted access prevented.

"Determinationes" of "Door Entry Devices"
Should Human Law Have Less Freedom?

Why should the art of human law be any different from the art of architecture? Why should it trouble us that human laws can display such diversity and imaginative creativity, adaptability and arbitrariness, uselessness and utility, artistic beauty and simplicity, sophistication and intricacy and primitiveness and yet remain intrinsically faithful to, based upon, or tied with the natural law as determinationes? Indeed, no natural law theory is concerned with limiting the exercise of human freedom and ingenuity in the passing of laws, but is concerned with providing them legitimacy. "The tradition of natural law theorizing is not concerned to minimize the range and determinacy of positive law or the general sufficiency of positive sources as solvents of legal problems." NLNR, 290. Essentially, natural law does nothing other than insist that human laws ought to be human, and not inhuman. The laws ought to be in conformity with nature, and not disharmonious with it. The laws ought to be in accord with reason, and not unreasonable. Such constraint is hardly a constraint. To say that laws ought not be inhumane, that laws ought to be consonant with the deeply-felt needs of human nature, that laws ought to be reasonable constrains only those (and there are unfortunately sufficient of them around in history and at present) who wish to impose inhumane, unnatural, vicious, and irrational laws upon their fellows.

But ordinarily, in the area of "second order" decisions, the freedom of action is truly marvelous. How much of each handle or its ornament is due to the original need for a means of entry and exit, and how much is just sheer human ingenuity? It some cases it is hard to tell apart. In every case, however, there is the fundamental requirement that must be complied with, and the human ingenuity and independence that is--within the fundamental requirement that a door entry device comply with its nature--entirely free.

So the law that we drive on the right side of the road at at the maximum speed of 70 mph may be viewed in two ways. First, from the principle that gives it its force. Second, from the human component that fleshes the general principle out.

There is a sense in which . . . the rule of the road gets 'all its force' from the authoritative custom, enactment, or other determination which laid it down. For until the stipulation 'drive on the [right], and at leass than 70 miles per hour' was positived . . . there was no legal rule of the road . . . . But there is also a sense in which . . . the rule of the road 'gets all its normative force' ultimately from the permanent principles of practical reason (which require us to respect our own and others' physical safety) in combination with non-posited facts such as that traffic is dangerous and can be made safer by orderly traffic flows and limitation of speed . . . .

NLNR, 285.

A similar area is the institution of private property. Private property is a requisite to the efficient use of material goods necessary for human flourishing. In a general sense, the institution of private property is one of natural law, and so it participates even in the eternal law. But there will be a whole slew of subordinate laws that will address the definition, protection, transfer of such property rights, and these latter--all of which will be at the level of the determinationes will be at the discretion of properly constitute authorities and obtain their force from them. For example, whether a transfer needs to be filed at some public office, or notarized, or whether some property rights may be lost by adverse possession for a requisite number of years, and under what circumstances, etc. are determinationes left at the liberty of the law-making authorities.

Thus, the legislative (and to a limited extent--in the interstices of the law--even the judicial) will be one focused on the determinationes, and only rarely will their be the need to focus on the "first order" questions. The "second order" questions will itself be governed by rules, propositions, principles, and maxims, some of which are closely-tied to "first order" questions (e.g., the prohibition of ex post facto laws), some of which are requisite to a reasonable legal regime (i.e., the Rule of Law) (e.g., legislative intent is derived from the words of the statute), some of which are principles of practical prudence and experience (e.g., stare decisis: laws ought not to change without good reason).

In sum: the derivation of law from the basic principles of practical reasoning has indeed the two principal modes identified and named by Aquinas; but these are not two streams flowing in separate channels. The central principle of the law of murder, of theft, of marriage, of contract . . . may be a straightforward application of universally valid requirements of reasonableness, but the effort to integrate these subject-matters into the Rule of Law will require of judge and legislator countless elaborations which in most instances partake of the second mode of derivation. This second mode, the sheer determinatio by more or less free authoritative choice, is itself not only linked with the basic principles by intelligible relationship to goals . . . which are directly related to basic human goods, but is also controlled by wide-ranging formal and other structuring principles (in both first- and second-order form) which themselves are derived from the basic principles by the first mode of derivation.

NLNR, 289.
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*S.T. IaIIae, q. 95, art. 2, c.
**S.T. IaIIae, q. 95, art. 2, c. (ea quae sunt secundi modi, ex sola lege human vigorem habent); Laws of Ecclesiastical Polity, I, c. 10, sec. 11.