Jacques Maritain and Natural Law: Natural Law and Human Rights

THE NATURAL LAW IS THE LAW THAT BUTTRESSES individual humans their rights. For Maritain, there is no division, no separateness between natural law and human rights."The same natural law which lays down our most fundamental duties, and by virtue of which each law is binding, is the very law which assigns to us our fundamental rights."
--Jacques Maritain Human rights, sprout forth, as it were from the soil of natural law. "The same natural law which lays down our most fundamental duties, and by virtue of which each law is binding, is the very law which assigns to us our fundamental rights." Maritain, 48.For Maritain, just like there is no contradiction between law and right, there is no contradiction between duty and right. Indeed, human rights are not possible without the foundation of the natural law, which necessarily also includes the eternal law and God:

It is because we are enmeshed in the universal order, in the laws and regulations of the cosmos and of the immense family of created natures (and finally in the order of creative wisdom), and it is because we have at the same time the privilege of sharing in spiritual nature, that we possess rights vis-à-vis other men and all the assemblage of creatures

Maritain, 58-59. What is a right? Elsewhere,* Maritain gave us a rather lengthy, and perhaps a little clumsy, definition of right. But it has the merit of clearly referencing both the natural law and the eternal law as a foundational sine qua non of human rights. This link is wholly ignored by many who are most drunk on "rights talk." This definition is cited by the editors of the book Natural Law: Reflections on Theory & Practice, and merits quotation here:

A right is a requirement that emanates from a self with regard to something which is understood as his due, and of which the other moral agents are in conscience not to deprive him. The normality of function of the creature endowed with intellect and free will [i.e., the natural law] implies the fact that this creature has duties and obligations; it also implies the fact that this creature possesses rights, by virtue of his very nature--because he is a self with whom the other selves are confronted, and whom they are not free to deprive of what is due him. And the normality of functioning of the rational creature is an expression of the order of divine wisdom.

Maritain, 60 n. 27.

The "Chain" of Law and Right

The dependence of the rights of man on the rights of God is expressed by Maritain by an interesting expression: "[E]very right possessed by man is possessed by virtue of the right possessed by God, Who is pure Justice, to see the order of His wisdom in being respected, obeyed, and loved by every intelligence." Maritain, 60. There is a Scriptural analogue to this philosophical and jurisprudential truth: "Truly I say to you, to the extent that you did it to one of these brothers of Mine, even the least of them, you did it to Me." (Matt 25:40) To respect authentic human rights is the same as respecting the rights of God. Human right is thus inextricably tied to natural law, which is inextricably bound to eternal law, in a chain of law and right, as it were.

Positivism, however, rejects this triple linkage: human right-natural law-eternal law. For them, there is no "ought" in the order of the world and in the nature of man, and so all is "fact." Similarly, in either idealism or a materialism of absolute immanentism, all is "fact." Philosophies that are built upon positivism or immanentism, ideal or materialistic, are "powerless to establish the existence of rights which are naturally possessed by the human being, prior and superior to written legislation and to agreements between governments, right which the civil society does not have to grant but to recognize and sanction as universally valid . . . ." Maritain, 61. "Logically," Maritain observes, "the concept of such rights can seem only a superstition to these philosophies." Maritain, 61. Hence, Justice Oliver Wendell Holmes, that positivist jurist who stained American law with his vicious jurisprudence, deprecated the concept of natural law and "Every right possessed by man is possessed by virtue of the right possessed by God."
--Jacques Maritainnatural right in the common law, calling such a notion the belief that law was "a brooding omnipresence in the sky."** For the concept of human rights to make any sense, there must be a normative reality in the existential, created order. The order of nature, must not merely be considered a "factual datum in things," but must be viewed as existing in things as a requirement of their essence, as "demands to be realized" by them and "which imposes itself upon our minds to the point of binding us in conscience." There must be a notion of transcendence, of divine creation, of divine ordering in such creation for the notion of human right to have any basis. The notion of right, therefore, requires the notion of Eternal Law:

[T]he fact that things participate in an ideal order which transcends their existence and requires to govern it, would not be possible if the foundation of essences themselves and eternal truths, did not exist in a separate Spirit, in an Absolute which is superior to the world, in what perennial philosophy calls the Eternal Law.

Maritain, 61. There can be no "ought" in the order of things without it; only "is." A philosophy "which recognizes Fact alone," cannot fathom a notion of Value "objectively truth in itself," and not merely subjective--what Justice Holmes called our "can't helps."

"How, then, can one claim rights if one does not believe in values?" Maritain asks. He answers the question for us: "If the affirmation of the intrinsic value and dignity of man is nonsense, the affirmation of the natural right of man is nonsense also." At least Justice Holmes was true to his principles execrable as they were. Founded on his philosophical materialism, on his denial of any "oughtness" or "value" in the world about him, Holmes's jurisprudence was nothing but the fruit of where his steely logic led him en vertu des présentes, in the premises. And so, rather than be inconsistent, the brilliant if misguided jurist denied any such thing as justice and right. Consistency, of course, is not truth, just consistency. In his foundational jurisprudence, Holmes may have been consistent, but he was consistently wrong, and their ain't any virtue in that.

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*In Maritain's papers conserved at the Cercle d'Etudes Jacques & Raïssa Maritain in Kolbsheim (France).
**Some of Holmes's outrageous statements have been gathered together in a prior posting. See The Natural Law's Devil: Justice Oliver Wendell Holmes.

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.

Jacques Maritain and Natural Law: The Eternal Law

MARITAIN INSISTS ON THE FUNDAMENTAL NATURE OF THE ETERNAL LAW, as a faithful Thomist would be expected to do. The natural law's "definite meaning" requires the concept of the Eternal Law. For Maritain, the concept of Eternal Law "is not solely theological," i.e, a revealed truth; it is also a "philosophical truth, as well." Maritain, 40. The existence of the Eternal Law, then, is a truth that can be grasped by the use of reason and its ability to come to the conclusion that God exists, that he is the first cause of all being, "activating all beings." Maritain, 40. One thereby can arrive at a notion of philosophical Providence, that is, that the "entire community of the universe is governed by the divine reason." Maritain, 40.

Hence there is in God, as in one who governs the entirety of created beings, this very reality which is the judgment and command of the practical reason applied to the governing of a unified community: in other words, this very reality which we call law. Eternal Law is one with the eternal wisdom of God and the divine essence itself.

Maritain, 40. This is classic Thomistic doctrine: the Eternal Law is the eternal wisdom of God, indeed, it is God himself. It has deep roots in Stoicism and Platonism and the Church Fathers. As the Sachsenspiegel, the Mirror of Saxons, the ancient Germanic law code put it in its old German: Got is selber recht, dar umme is im recht lip,* "God is himself law, therefore law (or justice) is dear to him." The once-barbarian Saxon tribes clearly grasped this fundamental truth as tightly as they had grasped their scramseaxes, though modern barbarians, who no longer hold scramseaxes but instead iPods and iPhones, appear to have let the notion of the eternal law slip from their grasp.

Recourse to the concept of Eternal Law is needful if we are to find a sure foundation of natural law. In the classical view, law is a work of reason, and the natural law is therefore a divine work of reason the source of which must be "Subsistent Reason, the Intelligence which is one with the First Truth itself," that is to say, "the Eternal Law." Maritain, 40. "Hence there is in God, as in one who governs the entirety of created beings, this very reality which is the judgment and command of the practical reason applied to the governing of a unified community: in other words, this very reality which we call law."
--Jacques MaritainLaw, St. Thomas observes, is both in the ruler and the subject that is ruled, and so the Eternal Law is both in God (and is God) and is in us in a manner of speaking, "insofar as [man] participates in the measure and rule existing in the one who rules." Maritain, 41. This participation in the Eternal Law, in men and in a manner of speaking all creation, is called the natural law, and men, like all creation, participate in it "insofar as they derive from it the inclinations through which they then naturally toward their proper operations and ends." Maritain, 41 (quoting S.T. Iª-IIae q. 91 a. 2 co. "Manifestum est quod omnia participant aliqualiter legem aeternam, inquantum scilicet ex impressione eius habent inclinationes in proprios actus et fines.")

Man, however, participates in the Eternal Law in a markedly more dignified way that that part of creation which is not free and which does not have a rational nature.

We should note that, among all creatures, the rational creature is subject to divine providence in a particular way--a "more excellent way," St. Thomas writes--inasmuch as it has a share in providential government, by being provident both for itself and others."

Maritain, 41 (excellentiori quodam modo divinae providentiae subiacet). Accordingly, the rational creature participates in the eternal reason through its rationality, and as a result, even the rational creature has a natural inclination to the actions and ends that are proper to it. As St. Thomas Aquinas puts it: Unde et in ipsa participatur ratio aeterna, per quam habet naturalem inclinationem ad debitum actum et finem. (S.T. Iª-IIae q. 91 a. 2 co.) In the rational creature, these inclinations are in accordance with its nature, and are therefore "inclinations of knowledge," or "rational and intellectual inclinations." Maritain, 41. Yet, as part of creation generally, the rational creature also shares the general natural inclinations to which all material creation is subject, a "natural law" so to speak. But the rational creature, by virtue of its rationality, participates in the eternal law is a definitively distinct way; it has its own specific and unique "natural law." The rational creature has a specific concept of natural law wherein "all that is good and all that is evil is only an impression of the divine light in us." Maritain, 42.

At this point, Maritain refers us to article 4 of question 19 of the Prima Secundae of the Summa Theologiae:

Wherever a number of causes are subordinate to one another, the effect depends more on the first than on the second cause: since the second cause acts only in virtue of the first. Now it is from the eternal law, which is the Divine Reason, that human reason is the rule of the human will, from which the human derives its goodness. Hence it is written (Psalm 4:6-7): "Many say: Who showeth us good things? The light of Thy countenance, O Lord, is signed upon us": as though to say: "The light of our reason is able to show us good things, and guide our will, in so far as it is the light (i.e. derived from) Thy countenance." It is therefore evident that the goodness of the human will depends on the eternal law much more than on human reason: and when human reason fails we must have recourse to the Eternal Reason.

Respondeo dicendum quod in omnibus causis ordinatis, effectus plus dependet a causa prima quam a causa secunda, quia causa secunda non agit nisi in virtute primae causae. Quod autem ratio humana sit regula voluntatis humanae, ex qua eius bonitas mensuretur, habet ex lege aeterna, quae est ratio divina. Unde in Psalmo IV, dicitur, multi dicunt, quis ostendit nobis bona? Signatum est super nos lumen vultus tui, domine, quasi diceret, lumen rationis quod in nobis est, intantum potest nobis ostendere bona, et nostram voluntatem regulare, inquantum est lumen vultus tui, idest a vultu tuo derivatum. Unde manifestum est quod multo magis dependet bonitas voluntatis humanae a lege aeterna, quam a ratione humana, et ubi deficit humana ratio, oportet ad rationem aeternam recurrere.

S.T. Iª-IIae q. 19 a. 4. co.

We see therefore an intimate relationship between the goodness of the human will, which depends upon reason, which in turn depends upon the natural law as its immediate measure, but which depends "all the more on the eternal law, which is the divine reason." Maritain, 42. This series of dependencies makes it clear that "the goodness of the human will depends much more on Eternal Law which is the Divine Reason than on Human Reason [or Natural Law]."* Maritain, 42.

The dependence is total, absolute. The dependence upon the Eternal Law is not merely limited to being some foundational yet distant root, foundation, or guarantee, which allows us to use our reason virtually independent and free of the divine reason. No, more actively, the "divine reason alone is the author of natural law, and natural law emanates from it." Maritain, 42. What this means is that "the divine reason is the only reason to be considered. . . . Indeed, in the case of Natural Law, human reason has no share in the initiative and authority establishing the Law, either in making it exist or in making it known." Maritain, 43.*** Man is not free to use his reason to make the natural law.

For Maritain, this is particularly significant because for him it means that both the content of natural law and the means of knowing that content are determined by God. Human discursive and conceptual reasoning is not the source or means of knowing the natural law. The source or means of knowing the natural law is through inclinations, through connaturality, through that intellectual feltness or intellectual tendentiousness which is built in man and which precedes, in both authority and dignity, man's conceptual and discursive reason.

The formal medium by which we advance in our knowledge of the regulations of Natural Law is not the conceptual work of reason, but rather those inclination to which the practical intellect conforms in judging what is good and what is bad. Through the channel of natural inclinations the divine reason imprints its light upon human reason. This is why the notion of knowledge through inclination is basic to the understanding of Natural Law, for it brushes aside any intervention of human reason as a creative factor in Natural Law.

Maritain, 43.

From this notion of the Eternal Law and the natural law's participation in it, and what it means, Maritain turns to the analogical character of the natural law. That will be the topic of our next post.

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*A copy of a manuscript of this document is available at Sachsenspiegel Online. The Mirror of Saxons has been the subject of a previous posting on Lex Christianorum on the Eternal Law. See Lex Aeterna: God is Law.
**The section in brackets was not in the original Leçon 2 - La loi naturelle ou loi non écrite, but was added in a revision published as "Natural Law and Moral Law" in Moral Principles of Action: Man's Ethical Imperative, Ruth Nanda Anshen, ed. (New York & London: Harper & Brothers, 1952).
***The first emphasis is in the original. The second emphasis is mine.