Natural Law's Modern Cousin Germain: Ressourcement and Development

FINNIS THINKS THAT THE RATIONALISTS such as Samuel Clark made themselves easy targets for Hume's criticism, a criticism which deftly pointed out that these über-rationalistic theories were illegitimately leaping from fact to obligation, from two "is"-based premises to an "ought"-based conclusion without a middle term that coupled is to ought. Premises that were "is"-based could only yield "is"-based conclusions, not "ought"-based conclusions. So one had to give up, according to the argument, trying to construct any "ought"-based conclusions (that is, morally obligatory statements) from "is"-based premises that were predicated either upon nature or upon (speculative) reason. Practical reason as being a source of our "ought"-based premises was not something that factored into Hume's thinking since practical reason was executory of good, and not determinative of the good. Nor was it part of Hume's thinking that nature--created by God with its own ratio ordinis--might have some inner compelling inclinations, an internal movement, entelechy, or teleology, one based upon the reason of the Creator God himself, that necessarily imposed the obligatory "ought." He would not entertain the simple syllogism: we ought to act in accord with nature because nature has an order given it by God; nature suggests we should do act φ (or not do act φ); therefore, we ought to do act φ (or not do act φ).

How is it that Clarke made himself such an easy target for Hume? If Finnis is to be believed, it occurred through a historical shift or "turn," or actually two historical shifts or turns, in the thinking regarding natural law in between Thomas Aquinas (13th century) and Samuel Clarke, (late 17th early 18th century), one shift to which Clarke was heir, and one shift for which Clarke (and his fellow rationalist thinkers) were responsible. The first "turn" changed the model of natural law both in terms of the means of determine its content, and the basis of its obligation.

St. Thomas (under Finnis's interpretation) held a model that was based upon self-evident principles (and not nature) for its content. St. Thomas (again under Finnis's interpretation) held a model that with respect to obligation was built upon a "friendship" theory. As a result of the Jesuits Francisco Suárez and Gabriel Vásquez intermediated through the Dutch protestant Hugo Grotius, the natural law model shifted to a rationalistic-voluntaristic theory where content was obtained by a focus on nature and behavior fitting or unfitting to it and obligation was based upon divine command. Nature gave the "is," the divine command gave the "ought" to the "is," and the moral theory straddled both the world of "is" and the world of "ought."

According to Finnis, the Aristotelian/Thomasian classical tradition was thereby replaced by a false and unfaithful pseudo-Thomistic theory, one which sounded like Thomistic tradition but was actually a new "tradition of rationalism eked out by voluntarism." NLNR, 47. Through Suárez and Vásquez it entered into the Catholic intellectual world and took root in the early 17th century for four centuries until released through efforts of the some insightful theologians in the mid-1960s. Through Grotius it entered the Protestant intellectual world about the same time where it slowly morphed into rationalism to the extent it had any life at all, until it was practically banished in 1934 by the peremptory Nein! of Karl Barth.* In Finnis's interpretation, however, Clarke exposed himself further to Humean attack by rejecting the voluntaristic (Divine command) prong of the Suarezian/Vasquezesque/Grotian theory, and trying to bootstrap the obligation on an observation of nature, leaving himself only in the land of "is." Thus he left himself and all his progeny exposed to the attacks of Hume and of "the whole Enlightenment and post-Enlightenment current of ethics." NLNR, 47. The way out of the Humean and Enlightenment and post-Enlightenment critique according to Finnis's view is to go back to the original Aristotelian/Thomasian model based upon self-evident principles and the notion of friendship and not divine command. Since St. Thomas's development of these is insufficient, once re-acquired there must be some development. So Finnis's concept is one of ressourcement (return to the sources) and development (developing the original theory to clarify it).

According to Finnis, St. Thomas had a view of natural law that was neither rationalist or voluntarist. Instead, St. Thomas's theory of natural law was predicated, not upon nature or reason's reflection upon nature, nor upon God's will, but upon self-evident principles, whether self-evident per se, quoad omnes, or quoad sapientes.** To be sure, St. Thomas was "regrettably obscure on the question of which practical principles or precept are self evident," NLNR, 51. At best, Aquinas only "adumbrated but left insufficiently elaborated" these principles. NLNR, 47. According to Finnis, the natural law was neither based upon nature (i.e., rationalist), nor upon God's will (i.e., voluntarist), nor even upon nature cum Divine command (i.e., rationalist and voluntarist), but upon self-evident (and consequently unprovable, yet undeniable) first principles of practical reason. Essentially, however, St. Thomas's theory was neither rationalist nor voluntarist. With respect to content, St. Thomas did not advance a rationalist notion:

[W]hat is decisive [in Aquinas], in discerning the content of the natural law, is one's understanding of the basic forms of (not-yet-moral) human well-being as desirable and potentially realizeable ends or opportunities and thus as to-be-pursued and realized in one's action, action to which one is already beginning to direct oneself in this very act of practical understanding.

NLNR, 45. With regard to obligatoriness, St. Thomas did not adopt a voluntarist or Divine command (will) theory:

Aquinas . . . treats obligations as the rational necessity of some means to (or way of realizing) and end or objective (i.e., a good) of a particular sort? What sort? Primarily (i.e., apart from special forms of obligation) the good is a form of life which, by its full and reasonably integrated realization of the basic forms of human well-being, renders one a fitting subject for the friendship of the being whose friendship is a basic good that in its full realization embraces all aspects of human well-being, a friendship indispensable for every person.

NLNR, 46. In Finnis's view, then, we are obligated to follow the content of the natural law (obtained from self-evident principles) not because of a command from God, but because it is the means of friendship with God.

"Terra Nullius" by Lachlan Amore-Lloyd

In between Samuel Clarke and St. Thomas two things happened to queer the natural law doctrine and which made it so susceptible to Humean attack. The first turn or corruption according to Finnis is to be found in the version of natural law espoused and promulgated by the Jesuits Francisco Suárez (1548-1617) and by Gabriel Vásquez (1549/51-1604). Though seemingly predicated upon Aristotle and Aquinas, the theory advanced by these Spanish Jesuits "differed radically from the ethical theories actually maintained by Aristotle and Aquinas." NLNR, 45. Essentially, they dropped the Aristotelian and Thomasian reliance on self-evident principles. Instead, they advanced a combined "rationalist" and "voluntarist" theory of the natural law.

In terms of content, the reliance on self-evident principles of St. Thomas's theory was abandoned and replaced with a rationalistic basis. For Suárez and Vásquez, reason looked to human (rational) nature (and not self-evident principles) and therein discerned by a sort of extrapolation whether a certain act φ was befitting or unfitting with that nature. If it was fitting, then it was morally right. If it was unfitting, then it was morally proscribed. If φ was the only fitting act in the circumstances, then it was morally needful to to φ. This was the "rational" component of their theory.***

In moving from human (rational) nature to obligation, Suarez and Vasquez rejected the Thomasian "friendship" concept, and replaced with a Divine command theory. They required "an act of will be a superior, directing to moving the will of an inferior." NLNR, 45. This was the "voluntarist" part of their theory. The moral obligatoriness of nature, then, involved looking at whether a certain act φ was fitting (and therefore legitimate, and if φ was the only thing one could do in the circumstances, mandatory) or unfitting (in which case it was illegitimate) coupled with a divine command to follow nature. Their theory was then a blend or intertwining of rationalist and voluntarist principles.

Finnis states that this marked rationalist-voluntarist shift in the Suarezian and Vasquezesque doctrines of natural law from the Thomasian self-evident-friendship model shows itself in a shift language. Whereas those schooled in St. Thomas's original doctrine spoke of "end" and "good," those who relied on the Jesuit formulation started talking about "right" and "wrong." NLNR, 46.

It was not the original Aristotelian/Thomasian self-evident-friendship theory that made it into the influential treatise on law by Hugo Grotius (1583-1645), De Jure Belli ac Pacis, but rather the Suazerian and Vasquezesque rationalist-voluntaristic theory. It is clear from Grotius's text that the content of the natural law is obtained by rationally looking at what is fitting with human nature, and what is contrary to human nature, and then tying that determination with the divine command to follow nature. The act that was fitting to nature was commanded by God, the author of Nature. The act that was unbefitting to nature was proscribed by God, the author of Nature.

So by the beginning of the Seventeenth century, the Thomasian theory had essentially been replaced by the Suarezian/Vasquezesque model with nary a murmur by the theologians. By the beginning of the Seventeenth century, the kernel of the natural law theories was as follows:

What is right and wrong depends on the nature of things (and what is coveniens to such nature), and not on a decree of God; but the normative or motivating significance of moral rightness and wrongness, in particular the obligatoriness of the norm of right and wrong, depends fundamentally upon their being a decree expressing God's will that the right be done (as a matter of obligation) and that the wrong be avoided (likewise) . . . .

NLNR, 44.

The second "turn" is evident in Samuel Clarke (and incipient in Grotius himself), specifically Clarke's rejection of the "assumption that obligation is essentially the effect of a superior's act of will." NLNR, 44-45. In other words, of the rationalistic-voluntaristic Suarezian/Vasquezesqe/Grotian model, Clarke rejected the voluntaristic prong.**** But he retained the rationalistic part of the theory, remaining "so firmly within the grip of the thesis that practical reasoning is a matter of discerning relations of fittingness or consistency with nature that he tried to treat obligation as just one more of the set of relations of consistency."

It was these two turns that wholly corrupted the Aristotelian/Thomasian doctrine of natural law and exposed the substantially denuded and transformed doctrine of natural law to such withering attack by Hume and by Enlightenment and post-Enlightenment thinkers. But the theory of natural law that they dispatched into the grave was not the Aristotelian/Thomasian one, but rather a counterfeit. The theory they destroyed by the naturalistic fallacy was a rationalist-voluntaristic corruption sans the voluntaristic part, not the original, classical theory of Aristotle and St. Thomas which was based on self-evident principles and notions of friendship with God.

What therefore is required in Finnis's view is a ressourcement and a development of St. Thomas. We must recover his thought, says Finnis, and, where St. Thomas is deficient, we must develop it.

It is a bold theory and a bold project. One that has raised the hairs on the back of both classical and Thomistic natural law advocates, on one side, and modern consquentialists, relativists, and legal positivists, on the other side. But this is exactly what Finnis (through the work of Germain Grisez) claims to do and to have done in his Natural Law and Natural Rights. It is as if the triumvirate of Germain Grisez, John Finnis, and Joseph Boyle (who were the original collaborators and promoters of this "new" modern law theory) had boldly stepped into no man's land only to be fired on by both sides. What is not clear is whether this no man's land was once occupied by St. Thomas, a terra Sancti Thomae occupatum, or a land once occupied by Kant, a land des Kants, or a land-never-before-occupied and up for grabs, a terra nullium.

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*On Karl Barth's highly negative assessment of natural law, see a series of posting in Lex Christianorum: Karl Barth's Response to Natural Law: Nein!, Karl Barth's Tin Ear: Notes, But No Melody, and Karl Barth: Rubbing Out the Image of God in Man.
**Self-evident propositions whether of speculative reason (such as the principle of non-contradiction: something cannot both be and not be in the same way and same time) or of practical reason (e.g., one ought always to do good) were traditionally divided into those that were obvious in themselves (per se nota secundum se or per se nota secundum se tantum) and those self-evident to us (per se nota quoad nos). The latter were divided into propositions that were self-evident to all (per se nota quoad omnes) and those propositions more complicated, and which only with those with sufficient understanding of the terms could grasp their self-evident status (per se nota quoad sapientes).
***Given the texts of St. Thomas, Finnis cannot outright say that this "rationalist" thinking is not present in St. Thomas, but he essentially demotes it, insisting that this "rationalist" thinking is secondary, and that fundamentally, St. Thomas is based upon "self-evident" principles and not rationalist observations of nature. "Aquinas would not reject the Vazquez-Suarez formulae, but would give them a subordinate and derivative place in the methodology of ethics." NLNR, 45. Finnis also states that a subsidiary effect of the shift in focus was the "perverted faculty" argument, which he colors as a "late but traceable descendant of the Vazquez-Suarez conception of natural law . . . which looms large among the modern [false] images of natural law theory, that natural functions are never to be frustrated or that human faculties are never to be diverted ('perverted') from their natural ends." He calls the argument "ridiculous," but gives no basis for that judgment other than a brief reference to Germain Grisez's Contraception and the Natural Law. NLNR, 48, 55. At least six things ought to be noted about the comment. First, Finnis's extreme formulation of the "perverted faculty" argument ("never"). Second, may there a more nuanced form of the "perverted faculty" argument that is acceptable (something à la "'close-in' teleologies" advanced by Steven A. Long in his Natura Pura? See Long on Porter: "Close-In" Teleologies and the Natural Law. Third, St. Thomas appears to have had a form of the "perverted faculty" argument (certainly in the case of lying, S.T. IIaIIae, q. 110, a. 3c, which Finnis acknowledges), and indeed (fourth) a form of it can be find in authoritative documents of the Catholic Church and in its common teaching. Fifth, what is the relationship between John Paul II's "theology of the body" and the "perverted faculty" theory? If one acts against the "theology of the body," is one also not guilt of having "perverted" [the bodily] faculty" argument? Sixth, why is it "ridiculous" without argument? Finnis is more tolerant of the opinions of Hart, Raz, and positivists than the moral theologians who advocated a "perverted faculty" argument.
****This is an assertion by Finnis without any supporting reference, and, in my view, dubious. It is difficult to see how such a conclusion can be based upon Samuel Clarke's Discourse, where it seems rather clear that the will of God was invoked by him, and so he would have combined both the rationalist and voluntaristic prongs of what Finnis identifies as the Suarezian/Vasqezesque/Grotian model of natural law as compared to the Aristotelian/Thomasian model:

That the same necessary and eternal different relations that different things bear one to another, and the same consequent fitness or unfitness of the application of different things or different relations one to another, with regard to which the will of God always and necessarily does determine itself to choose to act only what is agreeable to justice, equity, goodness, and truth, in order to the welfare of the whole universe, ought likewise constantly to determine the wills of all subordinate rational beings, to govern all their actions by the same rules, for the good of the public in their respective stations: That is, these eternal and necessary differences of things make it fit and reasonable for creatures so to act: they cause it to be their duty, or lay an obligation upon them, so to do, even separate from the consideration of these rules being the positive will or command of God, and also antecedent to any respect or regard, expectation or apprehension, of any particular private and personal advantage or disadvantage, reward or punishment, either present or future, annexed, either by natural consequence, or by positive appointments, to the practising or neglecting those rules.

That though these eternal moral obligations are, indeed, of themselves incumbent on all rational beings, even antecedent to the consideration of their being the positive will and command of God, yet that which most strongly confirms, and in practice most effectually and indispensably enforces them upon us, is this, that both from the nature of things, and the perfections of God, and from several other collateral considerations, it appears, that as God is himself necessarily just and good in the exercise of his infinite power in the government of the whole world, so he cannot but likewise positively require that all his rational creatures should in their proportion be so too, in the exercise of each of their powers in their respective spheres: That is, as these eternal moral obligations are really in perpetual force merely from their own nature and the abstract reason of things, so also they are moreover the express and unalterable will, command, and law of God to his creatures, which he cannot but expect should, in obedience to his supreme authority, as well as in compliance with the natural reason of things, be regularly and constantly observed through the whole creation.

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.

Natural Law's Modern Cousin Germain: You Gotta Hand it to Hume

JOHN FINNIS ADDRESSES THE STANDARD objection against natural law theories, Humean in origin at least in ascription, that natural law bases itself on an illogical jump from fact to value, from description to prescription, from "is" to "ought." This criticism is called the "naturalistic fallacy," and opponents of the natural law consider it the conclusive death knell against natural-law-based morality and jurisprudential theories. At the heart of such doctrine, however, is an empirically-based view of nature, a rejection of any teleological importance to nature, and a rejection of any notion of God's providence and reasonable ordering in nature, including the nature of man. For Hume perhaps, and for most moderns certainly, nature, even human nature, simply is not theonomic and has no internal ratio, actuality, or entelechy* which yearns forwards or upwards persistently to the the end intended for it by the God who created it to be what it is and what it is supposed to become. Nature for Hume and his philosophical ilk does not have any prescriptive value whatsoever. (It may be, as explained below, Hume had a little bit of classical nature left in him, at least to the degree of the "moral sense" school.)

John Finnis, however, sidesteps the entire issue, but with a massive concession, perhaps even a capitulation. He agrees with the Humean critique, and then argues that a theory of natural law does not require any reference to nature in a descriptive or any other sense in order to arrive at any of its prescriptions. What is curious, and quite imprecise or at least not sufficiently nuanced, is his declaration that natural law jurists "have not, nor do they need to, nor did the classical exponents of the theory dream of attempting any such derivation."** NLNR, 33. In a manner of speaking this is true, since none of the classical exponents of natural law ever dreamed of a nature with no meaning, no order, no entelechy, no beginning in God and no end in God. The classical exponents of the natural law saw nature in fact having its origin in God's creative act, participating in God's lasting providence, and, at least for rational creatures, finding its end or fulfillment in God. Nature had a teleology, an entelechy, that gave it prescriptive qualities. Hume's conception of nature, on the other hand, is largely if not completely bereft of such a notion. In other words, the "nature" of the classical natural law advocate is not the "nature" of Hume. If we accept the definition of Humean "nature" (which is a very discrete, narrow, empirical and even atheistic or at least deistic or agnostic view), Hume is right. But then should we be allowing the atheist Hume to define our terms?

Hume's Fork (Wie kommt die Moral in die Welt?)
by Ulrich Plessner

But Finnis allows Hume to define terms, to establish the ground rules, and to formulate the agenda. And perhaps as an apologetic accommodation to the academic world that rejects natural law almost reflexively, tendentiously, there may be some justification to the strategy. (Finnis, however, would seem to view this concession as more than just strategic; Finnis appears to believe that Hume is, in fact, sound and that nature--in any sense--has no role in the fashioning of morality.)

Finnis also rejects the notion that natural law is predicated upon metaphysics. "Nor is it true that for Aquinas 'good and evil are concepts analysed and fixed in metaphysics before they are applied in morals.'" NLNR, 33 (quoting D. J. O'Connor) Traditionally, classical natural law theorists believed that the good precedes the right, that that nature had a certain end or telos, and that ontology preceded morality.*** Natural law was considered an ontological (being) ethic, as distinguished from a deontological (duty) ethic or a teleological (consequential) ethic. But Finnis insists that no metaphysical presuppositions are required or demanded from anyone by the theory of natural law, even an authentically Thomistic one. St. Thomas, Finnis avers, based his moral theory on self-evident principles, principles per se nota, though he curiously failed to identify very well what those were. In Finnis's reading of St. Thomas, St. Thomas's moral bases "are not inferred from speculative [metaphysical] principles." They equally "are not inferred from facts." Likewise, they "are not inferred from metaphysical propositions about human nature, or about the nature of good and evil, or about 'the function of a human being.'" NLNR, 33 (quoting Margaret McDonald). Nor are they "inferred from a teleological conception of nature or any other conception of nature." In Finnis's view, the foundational principles of natural law--including the theory of St. Thomas Aquinas--are based upon "underived (though not innate)" principles. "They are not inferred or derived from anything." NLNR, 34. The bases for natural law (Finnis insists even under the theory of St. Thomas) are these self-evident, inarguable and yet unprovable, "pre-moral principals of practical reasonableness." NLNR, 34.

Finnis, moreover, seems to suggest that one can yank Thomist natural law from the greater synthesis of his work, and that we ought not to take seriously, or at least intellectually compelling, St. Thomas's "analogies running through the whole order of being" which is what makes him tie in morality to the cosmos and to the eternal law. It is this desire to "fit" morality into his great chain of analogy of being that makes St. Thomas say things like human virtue is in accordance with nature and human vice is contra naturam, or against nature. But, in Finnis's elaboration, St. Thomas does not really mean it: he is just being a poetic theologian waxing grandiloquently. When he uses the word "nature," we ought to consider it sort of like an appendix, a useless artifact, "a speculative appendage." NLNR, 36. What St. Thomas really has in mind in terms of morality is not conformity with nature, but "conformity with or contrariety to . . . reasonableness."

In other words, for Aquinas, the way to discovery what is morally right (virtue) and wrong (vice) is to ask, not what is in accordance with human nature, but what is reasonable.

NLNR, 36. All of a sudden nature and reason are rifted, when in St. Thomas they would, especially in man, appear in haec verba to have been joined. Nature is no longer reason: reason is reason and nature is nature, and, apparently, never the twain need meet. In short, Finnis seems to make St. Thomas Kantian avant la lettre. Aquinas was Kantian, before Kantian was cool.

(continued)
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*Entelechy is a marvelous word, and it ought to be in the lips and in the mind of any natural law advocate. It comes originally from the Greek word, ἐντελέχεια (entelecheia), of which it is an obvious transliteration. The word is Aristotelian in origin, an Aristotelian neologism in fact, a word that Joe Sachs in his work on Aristotle's Physics, calls "a three-ring circus of a word, at the heart of everything in Aristotle's thinking." The whole Aristotelian show revolves around the notion of entelechy. In his glossary, Sachs defines entelecheia as "being-at-work-staying-itself," but he explains further thus:

[Entelecheia is] a fusion of the idea of completeness with that of continuity or persistence. Aristotle invents the word by combining enteles (complete, full grown) with echein (=hexis, to be a certain way by the continuing effort of holding on in that condition), while at the same time punning on endelecheia (persistence) by inserting telos (completion). This is a three-ring circus of a word, at the heart of everything in Aristotle's thinking, including the definition of motion. Its power to carry meaning depends on the working together of all the things Aristotle has packed into it. Some commentators explain it as meaning being-at-an-end, which misses the point entirely, and it is usually translated as "actuality," a word that refers to anything, however trivial, incidental, transient, or static, that happens to be the case, so that everything is lost in translation, just at the spot where understanding could begin.

Despite the long quotation, it merits also to look at the discussion of the word entelecheia (entelechy) in the context of Aristotle's greater teaching on nature.

The primary fact about the world we experience is that it consists of independent things (ousiai), each of which is a this (tode ti), an enduring whole, and separate (choriston), or intact. Since thinghood is characterized by wholeness (to telos), or that for the sake of which (hou heneka) it does all that it does. This doing is therefore the being-at-work that makes it what it is, since it is what it keeps on being in order to be at all (to ti ēn einai). Thus thinghood and being-at-work merge into the single ides of being-at-work-staying-itself (entelecheia).

It follows that nature (phusis) is not just a sum of bodies but is an activity, seen in the birth, growth, and self-maintenance of independent things and in the equilibrium of the parts of the cosmos. The cluster of central ideas in Aristotle's thinking is built on a few word roots that overlaps in meaning: the phu of phusis, meaning birth and growth; the erg of energeia, meaning work; the ech of entelecheia (entelēs echein), meaning holding-on in some condition (in this case completeness); and in the ēn of to ti ēn einai, meaning being in the progressive aspect of that verb. This active, dynamic character is present in the very material (hulē) of each thing, as a potency (dunamis) spilling over into the activity that gives the thing its form (eidos or morphē).

Joe Sachs, Aristotle's Physics: A Guided Study (New Brunswick: Rutgers University Press, 2004), 31, 295. One thing is for certain: Hume did not have this concept of nature in mind when he fashioned his "naturalistic fallacy" argument.
**Finnis predicts dissatisfaction on the part of the opponents since the concession robs them of a popular punching dummy. What he may not have predicted is the dissatisfaction by many of classical natural law philosophers, who found the concession as ill-advised.
***This subject has treated multiple times in Lex Christianorum. One may refer to our review of Professor Cortest's book The Disfigured Face. The matter is treated from John Courtney Murray's perception briefly in the posting The Four Requirements of a Classical Natural Law Theory, who clearly believed that one must subscribe to (1) a "realist" philosophical (epistemological) view, (2) a "metaphysic of nature," that is,an ontology that is teleological, (3) a natural theology that allows one to conclude through reason in a God as First Cause and Providential Creator, and finally, (4) human freedom. After treating Finnis's work, we hope to review the insightful criticism of it by Professor Hittinger in his book A Critique of the New Natural Law Theory. Finnis, however, does not see these requirements as Thomistic; rather, he sees them as part and parcel of the Stoic view of natural law and as a result of corruptions arising via "some Renaissance theories [of natural law], including some that claimed the patronage of Thomas Aquinas and have been influential almost to the present day." NLNR, 35.

Contra Consequentialismum: Skeptical of Skepticism

SKEPTICISM ABOUT THE OBJECTIVE NATURE of good and evil, right and wrong--moral skepticism--runs rampant in the Western world. Advance the notion of objective right and wrong in any conversation, or insist on an absolute exceptionless rule, and people become unsettled, and they tune you off, even ridicule you as an obscurantist, since such a position seems to be contrary to the primary virtues of the day: open-mindedness, tolerance, pluralism, relativism. But moral theory--which concerns itself with right and wrong--would be a poor science indeed (and it claims to be a science, though obviously not an empirical or experimental science such as chemistry or sociology) if its subject matter--moral right and wrong--were so amorphous and shapeless, so unbased upon reality, as to have no objective, intelligible substance; or if its method, teachings, and expression were irreparably and fundamentally nothing but an expression of the proponent's subjective opinion. If morality is like poetry or like painting, then it is not a science, and it yields not knowledge, but is an art at best. If morality is based upon nothing else but subjective feeling, then it is analogous to the Eucharist being just a symbol, and not the Real Presence of Christ. "Well, if it’s a symbol, to hell with it," the writer Flannery O'Connor famously said. And if morality is not based upon objective reality, if there really is not an objective, real moral world, a moral realm "out there" or "within us," then to hell with morality! That's, of course, what relativists and moral skeptics basically say.

As an applied science, moral knowledge (not necessarily behavior) ought to progress or converge upon truth, advancing from relative ignorance, and there ought to be significant agreement among its adepts as to proper teaching. If it doesn't move towards greater knowledge and agreement, then its lack of progress or the lack of agreement ought to be able to be explained. That people generally disbelieve that moral knowledge has progressed or converges upon truths and its advocates have reached consensus is the result of a prevailing spirit of moral skepticism.

Moral skepticism denies the existence of objective right and wrong--which necessarily means it advances moral relativism: all moral thought is relative, there is no one single truth on the matter that all must hold with regard to the good and the right. Wrested away from modern biases, or perhaps better, ideologies, however, the case for an objective moral reality is very strong. And the case against moral skepticism is unanswerable, since, from an intellectual point of view, moral skepticism is intellectually baseless.* In other words, modernly, we have put ourselves in the shade of skepticism, and so are unable to appreciate the light of objective moral truths. Moderns are blinded by irrational bias; they are diseased with the cancer of skepticism and have made the foolish diagnosis that the cancer is the healthy tissue, and the healthy tissue is diseased.

Though moral knowledge is objectively-based, true knowledge, it would be wrong to expect it to be as precise as, geometry or chemistry. A "crucial point, one made by Aristotle" long ago, must be kept in mind by us moderns: "every science is only as precise as its subject matter allows." Oderberg, MT, 3. Moral theory, by its very nature, is therefore inexact, often, though not always, dealing with probable or approximate answers.** But being inexact is not equivalent to being unknowable. We ought not be misled by the inexactitude of moral knowledge:

There is an essential element of inexactitude in moral theory, corresponding to the elusiveness and unfathomability of man of the predicaments people find themselves in. It stems also from the mysterious depths of the human soul, with its often dimly understood thicket of motivations, desires, beliefs, and emotions. . . . The moral theories should minimize these where possible, but they cannot be eliminated and should indeed be welcomed as indicators that morality is about people, not machines.

Oderberg, MT, 4. Moral knowledge is also hampered by social influences, personal desires, prevailing ideology, in ways that the empirical sciences are not (though empirical sciences are not absolutely immune from these influences either).*** Moral knowledge, then, is knowledge about what is right and wrong, good and evil. It is applied or practical knowledge, that is, it tells us how we should act to do right and advance the good, to avoid doing wrong and so shun evil. It informs us how to be good humans. If one is a moral "realist," then morality is "real," and there is a "moral realm" which is real, true, objective, intelligible, and binding upon us.

David Hume, Empirical Philosopher and Advocate of the "Natural Fallacy"

The modern penchant toward rejecting moral realism and instead adopting a moral skepticism is largely the result of the "empiricist tradition in philosophy." Oderberg, MT, 9. One of the most significant sources of modern moral skepticism is the critique of moral knowledge resulting from the fact-value distinction (also called the naturalistic fallacy, "is/ought" distinction, or Hume's guillotine).

The distinction finds its classic statement in the philosophy of David Hume: He famously remarked: 'In every system of morality, which I have hitherto met with, I have always remarked that the author . . . makes observations concerning human affairs; when of a sudden I am surprised to find, that instead of the usual . . . propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not.'

Oderberg, MT, 9 (quoting Hume's Treatise on Human Nature, III.I.I). The fact-value distinction states that it is logically wrong to jump from fact (is) to obligation or value (ought). Since moral matters involve obligations and duties (oughts and ought nots), they cannot be based on fact. (ises or is nots). And so they must be based upon something else, choose your poison: perhaps feeling, tastes, emotions, in any event, something other than fact. Since facts are the only objective reality (and the only basis for sciences, narrowly understood empirically) it follows, Hume insists, that morality is not about objective reality. So teaches Hume, and the whole Western world seemed to have swallowed Hume's pill. Ingemuit totus orbis, et Humeanum se esse miratus est. The modern world groaned and has found itself Humean. Has swallowing Hume's pill been wise or foolish?

Foolish. Foolish because the advocates of the fact-value distinction have put themselves on the horns of a dilemma which reflects the absurdity of their main philosophical tenet regarding the moral world. The dilemma comes from their understanding of "fact." They have to define "fact" to exclude "ethical facts," but in doing so they simply beg the question, that is, avoid the confrontation of the "ethical realist"** who insists that there are such things as "ethical facts." So how can they argue with the ethical realist to prove that the Humean position that all there are is empirical fact is the assumption to make? "If the skeptic about moral facts wants to use the notion of a fact to cast doubt on [moral] realism, then, he must not rely on a conception that the moral realist does not share in the first place." There are no givens shared by the Humeans and the non-Humeans from which argument between them can be based. So where does the Humean go to establish his argument?

Humeans in fact, are doom to fail based upon their presuppositions. There is no empirical "fact" that exists to which the Humeans can point to that "ethical facts" do not exist. Where, in the concrete reality they say is the entirety of reality, is the fact that says there is no such thing as an ethical realm? To argue that empirical facts are the entirety of reality, and that moral or ethical facts are not facts, the Humeans must leave the empirical world of empirical facts, thus disproving their insistence that all there are are empirical facts. The Humeans, in other words, are in the predicament of having to prove (from empirical fact alone) the proposition that "one ought not to believe in ethical facts, but only in empirical facts," but to argue such a proposition they violate their basic assumption by having to depart the world of empirical facts. In other words, there is no way for them to prove, given their assumptions, that there are no such things as "ethical facts." They can only endeavor to prove their assumption by violating it. Their fundamental oughtness that all there is is isness cannot be proved from the fundamental assumption that all there is is isness. Hence their dilemma.

Empirically, Reason Why One Gives Alms Doesn't Exist

There is, however, more. The Humean assumption that only empirical facts exist poses real problems, as it excludes a whole demimonde of facts we routinely accept as description of reality. "[T]he distinction [between fact and value] does imply an unbridgeable conceptual gap between facts and values--but the cost of forging it, for the Humean, is that he loses his grip on reality." Oderberg, MT, 13. In his insistence on empirical reality, the Humean loses out on the reality of things like human intent, or human assessment. The Humean, sort of like Oedipus but for less noble reasons, blinds himself, gouges out his eyes, and then suggests he sees better than the rest of folks. He is Aesop's fox without a tail, arguing to his fellows that tails are cumbersome extremities. Therefore, Hume can empirically equate the sapling growing up and overtaking its parent tree robbing it of the sun, to a son being ungrateful or even a son killing his father. For a Humean, the "relations are the same." Both descriptions of the event, from an empirical point of view, are identical in the Humean world looked at with gouged-out eyes. Empiricism cannot distinguish the obvious difference between the two. The Humean cannot distinguish between the man who gives alms in charity and the man who gives alms in vanity: empirically, they are both doing the same thing: putting money in the poor box. The Humean world clearly involves "a radically impoverished apprehension of reality; not [only] an impoverished conception of morality, but of what exactly is going on." Oderberg, MT, 14. It is a Humean trait to describe abortion as the "termination of pregnancy," instead of murder. It is a Humean trait to describe lies as "misstatements" or being "economical with the truth." The world of reality extends far beyond the Humean world of empirical fact:

With a more complete appreciation of reality, there will still be a distinction between facts and values; there will still be a way of describing the world that only pays attention, say, to microphysics, to chemistry, to the movements of particles, to the interaction of objects, to pure cause an effect, and so on. But these descriptions will only capture a segment of reality, one which has a definite but limited place in ethical theory.

Oderberg, MT, 15. In other words, the moral realist can accept empiricism while yet recognizing that there is an entire reality outside of it; the moral realist can see (he has not gouged out his intellectual eyes like the Humean Oedipus, though he may see enough figuratively to pluck one of his eyes out so that he does not get cast into Hell if that eye causes him to sin, cf. Matt. 5:29; 18:9; Mark 9:47). The moral realists can see that empiricism, while valuable in its sphere, fails to describe the entirety of reality. Empiricism can only describe a part, a small part, and perhaps the least important part of the cosmos. It is wholly blind to the pearls of great price which are seen in the moral realm.
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*Since true philosophical and moral knowledge (e.g., the existence of God, the existence of objective moral truth) is based upon certain self-evident principles, which cannot be certainly proved, as by definition self-evident principles cannot be proved; however, with enough patience and effort, any thought that rejects such self-evident principles can be shown to be certainly false, baseless, or lead to absurdity.
**Hence the fight among probabilists, probabliorists, and equiprobabilists.
***See Mark Walker, ed., Science and Ideology: A Comparative History (New York: Routledge, 2003).

Jacques Maritain and Natural Law: Natural Law, Analogically Speaking

“THE CONCEPT OF LAW," MARITAIN OBSERVES, "is an analogous concept." Its analogous characteristic relates to the great chain of law from human positive law, through natural law, through eternal law, into the very truth of God. Though each link in this "chain of law" is "law," there is an analogical relationship between them which must be grasped, or one will misunderstand the eternal law, the natural law, and one may sever necessary links in this great "chain of law" which follows the "chain of being."

The fundamental fact is that the law we are most familiar with is the written law of man, human positive law. So it is that human law that most clearly and familiarly fits into St. Thomas's definition of law. Law, says St. Thomas in his Summa Theologiae, "is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated." S. T. Iª-IIae q. 90 a. 4 co. (nihil est aliud quam quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata.) But human law is not the only law that exists, though it may be the law with which we are most familiar.

It should be noted . . . that the very word "law" risks being misunderstood because the most obvious and the most immediate notion that we have of law is that of written law or positive law: consequently, if we overlook the analogical character of the notion of law, we run the risk of conceiving Natural Law and every species of law after the pattern of law best known to us--the written law.

Maritain, 44. To maintain that human written law is the paradigmatic form of law would be a massive mistake, because the ideal, the paradigm of law is not human law, but the eternal law, and subsequent to that the natural law. The eternal law and the natural law--and not human law--are more fundamental and pure forms of law than human law. And there are huge distinctions between these laws, most notably in the knowledge of the law and the means of promulgation of that law.

Some of these differences are pointed out by Maritain. For example, the analogical character of law is illuminated in the notion of Eternal Law. Contrary to written law, the "Eternal law is not written upon paper; it is promulgated in the divine intellect and is known in itself solely to God and by those who see him in his essence." Maritain, 45. This means, of course, that contrary to human law, Eternal Law in its fullness is, at least in this life, unknown to us and unknowable by us by natural means. "The Eternal Law is as infinitely distant from written or human law as the divine essence is from created being." Maritain, 45. And yet, as rational creatures, were know "a certain reflection" of the Eternal Law insofar as we know the truth. "For all knowledge of truth is a sort of reflection of and participation in the Eternal Law, which is the unchangeable truth." Maritain, 45 (quoting S. T. Iª-IIae q. 93 a. 2 co. "Omnis enim cognitio veritatis est quaedam irradiatio et participatio legis aeternae, quae est veritas incommutabilis.")

This analogous character of law is also reflected in natural law, which is distinguished from human, written law by its unwritten nature and its means of promulgation. Natural law is defined thus:

Natural Law is an order [of reason] based in nature, or required appropriately by human nature, whose regulations are naturally known by man--naturally, which is to say, through the inclinations by means of which the rational creature participates in the divine [i.e., eternal] law.

Maritain, 45.*

Importantly, the order of reason concerned with is not the order of reason in nature separate and independent from God. The order of reason that is behind the natural law is that of the author of nature, God. That is why it is a huge mistake, a massive blunder, to separate God and the Eternal Law from the natural law, as was done in the 16th Century, most notably by the likes of Hugo Grotius (1583-1645) and his successors who took his cue. Grotius famously wrote that the natural law would remain valid, would bind, even if, one, in a most wicked proposition, assumed that God did not exist.** Thus the corpse of natural law should be obeyed, in Grotius's view, even though the head of the eternal law be lopped off. This was a "rationalistic deformation of the concept of Natural Law." Maritain, 46.

And, of course, this turned out to be horribly false argument. If the reason in the natural law is not divine reason, but nature's "reason" independent of God, then by what authority does an impersonal nature bind man? Nature cannot be presupposed, absent its creator, to be reasonable. Nature itself has thus no power to oblige. When thinkers, following Grotius's lead, severed God from nature, and concentrated "solely upon the order of nature--as deciphered by human reason--and did not perceive the relationship between the order of nature and the eternal reason," the enterprise was bound to fail. It was bound to fail because nature--bereft of eternal reason to give it its "ought"--is merely fact, merely is an "is," and there is no "ought" to be found in it. Thus severing the divine reason from nature naturally led to Hume's famous destruction of natural law without the eternal law, the so-called "Hume's Guillotine," or the "naturalistic fallacy," or the "Is-Ought problem."*** What Hume destroyed with his famous naturalistic fallacy argument was not a living natural law theory, but a natural law theory already decapitated by Hugo Grotius. Hume, who claimed to kill the natural law, was but stabbing a headless corpse and claiming victory, no real great feat of intellectual prowess. As Maritain summarizes it:

Suppose, absurdly, that God does not exist and that nothing is changed in things [i.e., let us suppose everything remains as it is]: then, by hypothesis, nature would continue to exist, and consequently the normality of functioning of human nature; the requirements of the ideal order based upon the essence of man would likewise continue to exist. But a second question presents itself: is this order rational, is it wise, does it oblige me in conscience? Indeed, the only foundation for its rationality is the Eternal Law, the divine reason, and it is precisely this which Grotius did not perceive.
. . . .
[W]hy should I be obliged in conscience by a purely factual order? In reality if God does not exist, the Natural Law lacks obligatory power. If the Natural Law does not involve the divine reason, it is not law, and if it is not law, it does not oblige.

Maritain, 46. In short, if God does not exist, if the natural law does not involve divine reason, it is not law.**** It has no "ought," and only is an "is," and the atheist Hume is absolutely and totally correct in criticizing someone who jumps from a mere "is" to an "ought." And we are orphans without law. The laws would all be flat. And the exchange between More and Roper in Bolt's "A Man for All Seasons" may be heightened and paraphrased to its metaphysical proportions: "Oh? And when the last natural law was down, and the Devil turned 'round on you, where would you hide, Grotius and Hume, the laws all being flat?"

Indeed, where would we hide if there were no right, no law, no truth and only might makes right? A law without eternal law, without right, reason, or truth is an abomination of law, it is to make law an idol, to render law desolate. Then let those that are in Judaea, that is those faithful of Israel, flee into the mountains (cf. Matt. 24:16), let no one go into their homes or their fields, and woe for pregnant women and nursing mothers, for the law, and the human power that has usurped law, will have no mercy on private property, labor, and human life if it finds it inconvenient.

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*I have added the content in brackets for clarity.
**Hugonis Grotii, De jure belli et pacis libri tres (Oxford 1913) (reproduction of 1646 edition), Prolegomena: "Et haec quidem quae jam diximus, locum aliquem haberent etiamsi daremus, quod summo scelere dari nequit, non esse Deum, aut non curari abe eo negotia humana." Translated, these famous words are: "And that which we have been saying would have a degree of validity even if we should dare to concede that which cannot be conceded without utmost wickedness, that there is no God."
***For a short discussion on this, see Ecstasis and Telos: David Hume and "Feelings, Nothing More Than Feelings . . . "
****The same should be said for "human rights." If these do not find their ultimate source in divine reason, in the eternal law, there is no reason except convenience for the strong to recognize them. Unmoored from the eternal law, human rights become unmoored from reason, and so we have people clamoring for such irrational, unnatural, and repugnant "rights" such as homosexual marriage or abortion.

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.