Veritatis Splendor: Part 33--Human Equality and Natural Law

MAN DISPLAYS A GREAT DIVERSITY in his cultures and traditions, not to mention the tremendous diversity of natural, physical, intellectual, and psychological gifts in each individual man, woman, or child. Each man, woman, and child is different, and therefore incommensurable, uncomparable. And yet, for all their uniqueness and incommensurability, they are equal. Not only do they share a common human nature, they are equal when it comes to the moral law. Here is an unalterable, absolute, unchanging truth:

When it is a matter of the moral norms prohibiting intrinsic evil, there are no privileges or exceptions for anyone. It makes no difference whether one is the master of the world or the "poorest of the poor" on the face of the earth. Before the demands of morality we are all absolutely equal.

VS, 96.

The natural law, then, is a great equalizer. It cuts across the entirety of society, through all hierarchies, all socio-economic strata, all castes, all religions, all ideologies to govern all men in all societies, bar none:

In this way, moral norms, and primarily the negative ones, those prohibiting evil, manifest their meaning and force, both personal and social. By protecting the inviolable personal dignity of every human being they help to preserve the human social fabric and its proper and fruitful development. The commandments of the second table of the Decalogue in particular — those which Jesus quoted to the young man of the Gospel (cf. Mt 19:19) — constitute the indispensable rules of all social life.

VS, 97. By being the great equalizer, the natural moral law--and the human rights that flow from it--is a bulwark against totalitarianism of every kind--whether ideological or as a result of moral relativism. VS, 99.

There is no part of man's life--private or public--that would be outside the pale of the natural moral law. All his activities, from the most mundane to the most transcendent, are governed by moral considerations. "Thus, in every sphere of personal, family, social and political life, morality — founded upon truth and open in truth to authentic freedom — renders a primordial, indispensable and immensely valuable service not only for the individual person and his growth in the good, but also for society and its genuine development." VS, 101.

Democracy is not insulated from totalitarianism. It is an error to think that the democratic process is sufficient to preserve the freedoms and rights of its citizenry. Democracy coupled with moral relativism is a recipe for totalitarianism of a different kind. As the Pope, who haled from Poland and saw first-hand the evils of Marxist communism, warns:

[T]here is no less grave a danger that the fundamental rights of the human person will be denied and that the religious yearnings which arise in the heart of every human being will be absorbed once again into politics. This is the risk of an alliance between democracy and ethical relativism, which would remove any sure moral reference point from political and social life, and on a deeper level make the acknowledgement of truth impossible. Indeed, "if there is no ultimate truth to guide and direct political activity, then ideas and convictions can easily be manipulated for reasons of power. As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism."

VS, 101 (quoting Centesimus annus, 46).

The Ten Commandments, both in their general terms and through their more specific demands, are binding upon all men:

These commandments are formulated in general terms. But the very fact that "the origin, the subject and the purpose of all social institutions is and should be the human person" allows for them to be specified and made more explicit in a detailed code of behavior. The fundamental moral rules of social life thus entail specific demands to which both public authorities and citizens are required to pay heed. Even though intentions may sometimes be good, and circumstances frequently difficult, civil authorities and particular individuals never have authority to violate the fundamental and inalienable rights of the human person. In the end, only a morality which acknowledges certain norms as valid always and for everyone, with no exception, can guarantee the ethical foundation of social coexistence, both on the national and international levels.

VS, 97.

Manifestly, the world's "principalities and powers," its princes, ministers, and presidents, its multinational corporations, face and often cause "serious forms of social and economic injustice and political corruption," and these are often the result of violation of fundamental moral norms, particularly involving the violation of fundamental human rights which find their bases in those exceptionless norms of the natural law. Any reform, any "radical personal and social renewal capable of ensuring justice, solidarity, honesty, and openness," must not only be rooted in a "moral sense," but must also be "rooted and fulfilled in the religious sense." VS, 98.

This, of course, means that God must be at the center of all efforts at rectifying social and economic injustice among men.

Only God, the Supreme Good, constitutes the unshakable foundation and essential condition of morality, and thus of the commandments, particularly those negative commandments which always and in every case prohibit behaviour and actions incompatible with the personal dignity of every man. The Supreme Good and the moral good meet in truth: the truth of God, the Creator and Redeemer, and the truth of man, created and redeemed by him. Only upon this truth is it possible to construct a renewed society and to solve the complex and weighty problems affecting it, above all the problem of overcoming the various forms of totalitarianism, so as to make way for the authentic freedom of the person.

VS, 99.

The natural moral law, of which God is the author as he is the author of our nature, will therefore necessarily govern economic and political questions, as these are nothing other than personal questions of morality writ large.

The economic sphere, if governed within the natural moral law, will exhibit certain features:

• There will be a certain temperance, a moderation of attachment to the goods of the world.


• There will be an attachment to the virtue of justice, a desire to give to our neighbor his due.


• There will be a sense of solidarity among the members of the system, which means that the Golden Rule will be followed and kept, and that there will be a sense of shared duty, of the acceptance of burdens, of helping those who are weakest or poorest.


• Some behavior will not be tolerated:




• Theft, deliberate retention of goods lent or objects lost.


• Business fraud.


• Unjust wages.


• Forcing up prices by trading on the ignorance or hardship of the other.


• Misappropriation and private use of corporate property of an enterprise.


• Work badly done.


• Tax fraud.


• Forgery of checks and/or invoices.


• Excessive expenses.


• Waste of resources.


• Any enslavement of human beings, or any system that shows disregard for their personal dignity such as chattel slavery.

Similarly, the political sphere will be influenced by the natural moral law and will exhibit certain features:

• The governing authorities will recognize an obligation to tell the truth to those being governed.


• There will be an openness in public administration.


• There will be impartiality in the service of the body politic.


• There will be respect for the rights of political adversaries.


• There will be safeguards which assure fair trials and which prevent summary trials and convictions.


• Public funds will be justly and honestly used.


• Equivocal or illicit means to gain, preserve, or increase power at any cost will be rejected.
  

Jacques Maritain and Natural Law: Résumé of Rights

AT THE END OF HIS REFLECTIONS on the theory of natural law and its application to the moral, political, and economic problems that confront modern man, Maritain provides us with a résumé of those rights, natural, based upon the ius gentium, or advised by positive law or the circumstances of the time. It is important to note that not all of these are natural rights. It is also important to understand this within the entire context of Maritain's teaching on natural law, natural rights, and justice. In this post, we will list those rights using, as far as possible, the words of Maritain.

Jacques Maritain

Rights of the International Order

• The right of each State, large or small, to freedom and respect for its autonomy.
• The right to the respecting of solemn oaths and the sanctity of treaties.
• The right to peaceful development (a right which, being valid for all, requires for its development the establishment of an international community having juridical power, and the development of federative forms of organization).

Rights of the Human Person as Such

• The right to existence.
• The right to personal liberty or the right to conduct one's own life as master of oneself and of one's acts, responsible for them before God and the law of the community.
• The right to the pursuit of the perfection of rational and moral human life.
• The right to the pursuit of eternal life along the path which conscience has recognized as the path indicated by God.
• The right of the Church and other religious families to the free exercise of their spiritual activity.
• The right of pursuing a religious vocation; the freedom of religious orders and groups.
• The right to marry according to one's choice and to raise a family, which will in its turn be assured of the liberties due it.
• The right of the family society to respect for its constitution, which is based on natural law, and not on the law of the State, and which fundamentally involves the morality of the human being.
• The right to keep one's body whole.
• The right to property.
• The right of every human being to be treated as a person, and not as a thing.
  

Rights of the Civic Person

• The right of every citizen to participate actively in political life, and in particular the right of equal suffrage for all.
• The right of the people to establish the Constitution of the State and to determine for themselves their form of government.
• The right of association, limited only by the juridically recognized necessities of the common good, and in particular the right to form political parties or political schools.
• The right of free investigation and discussion (freedom of expression).
• The right to political equality, and the equal right of every citizen to his security and his liberties within the State.
• The equal right of every one to the guarantees of an independent judiciary power.
• Equal possibility of admission to public employment and free access to the various professions.*

Rights of the Social Person, and More Particularly of the Working Person

• The right freely to choose his work.
• The right freely to form vocational groups or trade-unions.
• The right of the worker to be considered socially as an adult.
• The right of economic groups (trade-unions and working communities) and other social groups to freedom and autonomy.
• The right to a just wage.
• The right to work.
• Wherever and associative system can be substituted for the wage system, the right to joint ownership and joint management of the enterprise and to the "worker's title."
• The right to relief, unemployment insurance, sick benefits, and social security.
• The right to have a part, free of charge, depending on the possibilities of the community, in the elementary goods, both material and spiritual, of civilization.

Maritain, 96-98.

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*The text has a misprint on page 98, stating "venous" instead of "various."

Jacques Maritain and Natural Law: Political Rights

FROM NATURAL RIGHT MARITAIN SEGUES into political rights or what he calls the "rights of the civic person." Maritain, 80. Directly, these rights arise from "positive law and from the fundamental constitution of the political community." Maritain, 80. Like all law and all institutions, however, political rights are indirectly predicated upon natural law, and this in two ways. First, the positive law, including that law relating to political rights, complements or supplements where the natural law leaves things undetermined. But political rights seem particularly close to the natural disposition or "aspiration inscribed in man's nature." Maritain, 80. It is for very good reason that Aristotle called man a "political animal," a zōon politikon (ζῷον πολιτικόν) or homo politicus. Politics, 1253a7–18. And the political rights of man are an expression of this deep-seated inclination towards the political life, towards the common good of the group.

Maritain understands Aristotle's description of man to be more than merely the truism that man naturally lives or flourishes in society. Aristotle also intended the term to include the natural capacity and desire that men have to lead a political life, to participate, in an active way, in the life of the political community. The right to vote--suffrage--is ultimately Aristotelian in inspiration: "It is upon this [Aristotelian] postulate of human nature that political liberties and political rights rest, and particularly the right of suffrage." Maritain, 81.

Of course, historically, men have not enjoyed participatory democracies over other forms of government, and neither did Aristotle suggest that all men--especially women, slaves, and children--participate in the political life, the leadership life of the polis. (Naturally, all these disenfranchised were active and necessary parts of the polis but they acted, not in public, political roles, but in private, domestic roles.) How then can such a aspiration be as universal as Maritain suggests? Maritain suggests that there is a sort of tug-of-war in man wherein the labors associated with the political life to which man aspires are checked by the desire to renounce such a life and let others take custody over the common good of the community. He suggest that for every Demosthenes in us that wants to participate in political life there is a Cincinnatus who wants to turn back to the plow. There is therefore also a tendency to reject the natural desire to participate, something which Maritain says is against the human dignity that political life implies.

Perhaps it is easier for men to renounce active participation in political life; in certain cases it may have happened that they felt happier and freer from care while dwelling in the commonwealth as political slaves; or while passively handing over to their leaders all the care of the management of the community. But in this case they gave up a privilege proper to their nature, one of these privileges which, in a sense, make life more difficult and which bring with them a greater or lesser amount of labour, strain and suffering, but which correspond to human dignity. A state of civilization in which men, as individual persons, by a free choice designate those who shall hold authority, is itself a more perfect state.

Maritain, 81. For this reason, Maritain values highly the right of universal suffrage, and sees it as "a wholly fundamental political and human value and is one of those rights which a community of free men can never give up." Maritain, 82. Allowing for universal suffrage simply makes for a better social framework, politically-speaking.

In addition to the right to vote, persons have the right to form political groups, "according to the affinity of their ideas and aspirations," and thus form"Freedom of investigation is a fundamental natural right, for man's very nature is to seek the truth."
--Jacques Maritain "political parties and political schools." Maritain, 82. Maritain admits the potential for abuse in these associations, and that political parties can even cause democracy to degenerate into mere partisan bickering and quest for power against the interests of the common good. But abusus non tollit usum. The abuse of political parties does not take away from their proper value.

[The vices in political parties] however, are not essential to the very notion of these groups, whose diversity corresponds to the natural diversity of practical conceptions and perspectives existing among the members of the political community.

Maritain, 82. Moreover, as Maritain trenchantly points out, one-party systems do not remedy, but exacerbate the party problem; one party systems "bring[] to a peak the vices and the tyranny with which the adversaries of democracy reproach the party system." Maritain, 82. "The totalitarian Single Party system is the worst form and the catastrophe of the party system." Maritain, 82. Better is it to put up with the problems of political parties and simply guard against the excesses that frequently arise with them.

More fundamental than the right to vote or the right to political association, is the "right of the people to take unto itself the constitution and the form of government of its choice." Maritain, 83. "The constitution established by the people is the right of the people, as the rights and liberty of the citizen are the rights of the civic person." Maritain, 83. "Such a right," Maritain insists, "is subject only to the requirements of justice and natural law." In the past the constitutions of societies and their governments were "a matter of consent and tradition," largely unwritten, and not principally a matter of "juridical institution." However, the juridical institution of a political constitution, "formulated and established, by virtue of the will of the people deciding freely to live under the political forms thus set up," is a tremendous progress in the "grasp of political consciousness and in political organization." Maritain, 83. It is something that, once learned, ought not to be let go.

The political rights of civic persons also encompass what Maritain calls the "three equalities." Maritain, 83. The "three equalities" are:

• Political equality which assures to each citizen his status qua citizen, and his security and liberties within the State.
  
• Equality of all before law, which implies an independent judiciary, access to courts, and the right to the rule of law, including due process.
• Equal admission of all citizens to "public employment according to their capacity," and free and ready access of all the various professions without racial or social discrimination.
  

Maritain also considers it important to stress, that, though citizens, as compared to aliens or the underage that reside within the State, have certain prerogatives over the non-citizens with respect to the political rights relating to the administration of the State, non-citizens retain rights "of the civic person," rights related to the ius gentium or Law of Nations, rights that come with their living and participating in civilized life. Maritain, 84.

Maritain completes his discussion of political rights and the rights of the civic person by visiting the right of association and freedom of expression, two rights that clearly have importance in the matter of exercising political rights, so closely are these two linked to political expression.

The right of association is a natural right. The right of association has political effects, and so it legitimately can be the subject of State regulation, even prohibition if the common good requires it. The State "has the right to prohibit and dissolve--not arbitrarily, but according to the decision of appropriate juridical institutions--an association of evil-doers or an association of enemies of the public good." Maritain, 84. The natural right of association does not protect crime syndicates or terrorist organizations.

"What we know as freedom of speech and expression," Maritain suggests, "would, in my opinion, be better designated by the term freedom of investigation and discussion." Maritain, 84. "Freedom of investigation is a fundamental natural right, for man's very nature is to seek the truth." Once the truth is found, the knowledge of it may clearly be promoted, and so there is a concomitant freedom to spread ideas. "Freedom to spread ideas which one holds to be true corresponds to an aspiration of nature." Yet, "like freedom of association it is subject to the regulations of positive law." Maritain, 85. Freedom of speech--like freedom of association--is not absolute:

For it is not true that every thought as such, and because of the mere fact that it was born in a human intellect, has the right to be spread about in the community. The latter has the right to resist the propagation of lies or calumnies; to resist those activities which have as their aim the corruption of morals; to resist those which which as their aim the destruction of the State and of the foundations of common life.

Maritain, 85. Maritain is disdainful of censorship and police methods, since these are the "worst way--at least in peace-time--to insure this repression" of illegitimate speech. Better to use a sort of common moral suasion, "that spontaneous pressure of the common conscience and of public opinion, which spring from the national ethos when it is firmly established." Maritain, 85.

It is manifest that the freedom of association and freedom of speech are both essential to the political life fundamental to the State and yet present it with the potential for its destruction if captured by those intent on dissolving the State or injuring the common good. Even in a democracy, the State is justified in protecting itself from those who would harm it, even if it means a limitation on association and speech:

I am convinced that a democratic society is not necessarily an unarmed society, which the enemies of liberty may calmly lead to the slaughterhouse in the name of liberty. Precisely because it is a commonwealth of free men, it must defend itself with particular energy against those who, out of principle, refuse to accept, and who even work to destroy, the foundations of common life in such a regime, the foundations of which are liberty and co-operation and mutual civic respect.

Maritain, 85. What then distinguishes a free society from one that is unfree in the matter of controlling associations and speech when the latter are commandeered toward the destruction of common liberties? "What here distinguishes a society of free men from a despotic society is that this restriction of the destructive liberties takes place, in a society of free men, only with institutional guarantees of justice and law." Maritain, 85.

Jacques Maritain and Natural Law: Charter of Natural Rights

JACQUES MARITAIN PROVIDES us a summary, a charter, as it were, of fundamental natural rights in Section I of Chapter 4 of the book Natural Law: Reflections on Theory and Practice.

Enumerated, they are as follows:

1. The right to existence and life.
2. The right to personal freedom or to conduct one's own life as master of oneself and of one's acts, responsible for them before God and the law of the community.***
   
3. The right to the pursuit of the perfection of moral and rational human life.
4. The right to keep one's body whole (i.e., bodily integrity).
5. The right to private ownership of material goods, which is a safeguard of the liberties of the individual.
6. The right to marry according to one's choice and to raise a family which will be assured of the liberties due it.****
7. The right of association.
8. The respect for human dignity in each individual, whether or not he represents an economic value for society.*
   

"All these rights," Maritain insists, "are rooted in the vocation of the person," that is, the vocation proper to "a spiritual and free agent," a vocation which is ordered and rooted in "absolute values and to a destiny superior to time." Maritain, 78.

This enumeration of rights bear some similarity to the French Declaration of the Rights of Man and the rights contained in the American Declaration of Independence. Yet one must be aware of differences in rendition. The French Declaration of the Rights of Man** was rationalistic in origin. The American Declaration of Independence is somewhat more classical and Christian in character, though it to is marked or marred by the "influence of Locke and 'natural religion.'" Maritain, 78. The rationalism of the French version made the natural law "no longer an offspring of creative wisdom, but a revelation of reason unto itself," and thus changed natural law into "a code of absolute and universal justice inscribed in nature and deciphered by reason as an ensemble of geometric theorems or speculative data." Maritain, 78. Law and justice therefore became more like mathematics, geometry, and physics, and less like philosophy, music, or art. In Maritain's view, the blame is not to be placed entirely on the philosophes, but also on the leadership--civil and ecclesiastic--that supported the Ancien Régime, or, more precisely, refused to correct the corruption of Christian principles that had become ossified. The Christian bones of the French ruling bodies had become brittle, their hearts sclerotic, and their ears deaf to the plight of their neighbor. Maritain really believes the controversial proposition that the "consciousness of the rights of the person [in revolutionary France] really has its origin in the conception of man and of natural law established by centuries of Christian philosophy." Maritain, 79. I feel rather guarded about the accuracy of that statement.


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*Maritain does not put this in "right" form.
**For an English translation of the Declaration of the Rights of Man and the Citizen of 1789, click here. For the text in French, click here.
***Maritain elaborates with respect to religious freedom:

The first of these rights is that of the human person to make its way towards its eternal destiny along the path which its conscience has recognized as the path indicated by God. With respect to God and truth, one has not the right to choose according to his own whim any path whasoever, he must choose the true path, in so far as it is in his power to know it. But with respect to the State, to the temporal community and to the temporal power, he is free to choose his religious path at his own risk, his freedom of conscience is a natural inviolable right.

Maritain, 79.
****Maritain elaborates on the rights of the family:

Here [in the family] the person is no longer considered merely an individual person. It is by virtue of the fact that it is part of a group that special rights are accorded at the same time to it and to the group in question. The rights of the family, the rights of the human person as father or mother of the family, belong to natural law in the strictest sense of the word.
The same must be said of the rights and liberties of spiritual and religious families, which are at the same time the rights and liberties of the person in teh spiritual and religious order. These rights and liberties belong to natural law--not to mention the superior right which the Church invokes by reason of her divine foundation.

Maritain, 80.

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.

Cardinal Mercier and the Natural Law, Part 14: Natural Law, Right, and Duty

FROM GENERAL ETHICS, Cardinal Mercier goes into special ethics. His introduction to the topic of special ethics begins with clarification between the moral law, the natural law, positive law, rights, their origins and their kinds. Natural law or natural right, in its wide or most broad sense, "comprises all the rules of conduct which are logically deduced from the [natural] moral law, and which form the basis of our rights and duties both with regard to our neighbour and society in general." In this wide sense it is equivalent to "social morality." Used in this broader sense, we are dealing not with the foundational natural law, but with natural law after it has been determined, fitted, as it were, to the contingencies of contemporaneous society. Thus, although the natural law in the narrow sense is immutable and universally known, in this wide sense, the natural law or right may not be immutable or universally known. (In fact, it may not even exist until a contingency. Before in vitro fertilization, there was no need for natural law guidance in this area. Before the advent of paper money, "fiat" money, there was no need for natural morality to be applied to this human creation, etc.) The term natural law may also be used in a more restrictive sense than "social morality." It may be used that part of "social morality which treats of our duties arising from justice." [264(70)]. This subset of "social morality," also referred to as natural law, "designates all the rules of conduct which are logically derived from the moral law and whose execution, if need be, may be enforced by coercive measures." [263(70)] Thus we have natural law in the narrow sense, and natural law broadly defined as equivalent to "social morality," and natural law defined as a subset of "social morality," being those aspects of social morality which are subject to enforcement because of their close relationship to justice.

Positive law is the law that is posited,* or promulgated, by legitimate authority over a civil society. By its nature, it is flexible and changing by circumstance, and its aim, and indeed its justification, is that it orders the body politic with the end of the common good.

Our obedience is due to positive laws because such obedience is a condition of social life in its full development. Hence nature, or what comes to the same, natural law, enjoins a respect for the commands of a human legislator. The will of a legislator, since it is of a kind no different from our own, cannot of itself constitute the source of a true obligation for us; but the natural law, being dictated by God, does possess sovereign claims to our obedience.

[264(72)] Thus human positive law is, as it were, an appendage to the natural law. It requires the natural law for its authority. "There is a higher law than human laws, one 'written on the tablets of the heart', in the name of which the individual always has the right to protest against the tyranny of rulers."
--Cardinal Mercier It has no authority outside of the natural law, since it is based upon the will of man, and one man's will has, without authority behind it, no particular right to obedience. Mere aggregation of human wills in a chamber at a capitol does not make those wills any more grand so as to justify obedience without authority. Since all authority comes from God (Rom. 13:1), it follows that the positive law must accord with the law of God, must be within the scope of God's agency, or it ceases to have any binding nature. A human law that strays from its justification, that issues outside of the scope of its agency, collapses once again mere human will. So even though it comes dressed as a law, it is not law at all.

That is precisely where Mercier finds a corollary that is anathema to the positivists, secularists, and tyrants of any time and place:

No one must obey a positive law that clearly contradicts the fundamental principles of the moral law. In such circumstances the inalienable rights of the individual conscience must be resolutely vindicated against the claims of any form absolutism.

[264(73)] The source of this absolutism is irrelevant: it can be the will of one man, it can be the will of all but the conscientious one, it can be the will of any number in between.

It is at once apparent that this principle is subject to abuse. It is not a recipe for revolution or easy excuse for disobedience to properly constituted authority. But the fact that it is subject to abuse does not change one iota the fundamental truth of the principle. The danger of its abuse, however, "only furnishes a reason for not making a light use of its application and for carefully gauging its extent." The danger of its abuse does not give reason for "repudiating it." [264(73)] The fact that a law may be prejudicial to our interests is not justification for disobedience. The fact that a law may be against our best opinion is no justification for disobedience. Benefit of the doubt should be given to authority. Even if a law is clearly unjust, we may have to tolerate it, as affirmative disobedience to an unjust law may foreseeably result in more injustice than tolerance of an unjust law. But with all those caveats it remains unalterably true:

There is a higher law than human laws, one 'written on the tablets of the heart', in the name of which the individual always has the right to protest against the tyranny of rulers. In vindication of this right the martyrs shed their blood.

[265(73)]

Mercier's discussion of the relationship between natural law and positive law then gives way to the discussion of the origin of rights, both natural rights and positive rights. As positive law finds its fons et origo in the natural law, the question can be translated to whether positive rights find their fontes et origines in natural rights.

Mercier rejects at once any notion of rights being derived from a priori principles of individual reason. Thus, any Kantian basis for individual rights (which has essentially been adopted by political liberalism such as John Rawls's version) is spurned. And for good reason. Any Kantian basis for individual rights either ends in might over right or in right being nothing but convention. Mercier explains. Kantian notion of right stems from the categorical imperative, which a priori stems from the constitution of the mind itself. The Kantian formula begins with absolute autonomy of will, and limits it only by the categorical imperative. That imperative requires us to act externally in such a manner with respect to the free exercise of our will so that we may co-exist with the freedom of others and that it may be applied as universal law. The formula essentially requires that "the liberty of each must be reconciled with the liberty of all." [266(74)] The problem with the Kantian formula arises in its overemphasis of autonomy:

If the autonomy of the human person is in a true sense absolute [as proposed by the Kantian formula], I shall respect this autonomy in myself only by exercising my liberty as fully as possible; my right then will know no limit but my might. And everyone else may say the same of himself. Hence an inevitable conflict will arise between the activity of individuals, each of whom will try to extend his rights indefinitely.

[265(74)] In this incessant competitive scramble and clamor for individual rights, which is a necessary result of Kantian autonomy, two things must happen. Either the strongest will win over the weakest, and we fall into that most horrible of prospects that might makes right. Or else some sort of Hobbesian social compact may be made among all competitors so that there may be some sort of mutual pact of coexistence. The basis of right, as a consequence, will either be force or social contract. In one of these two manners will the competition of autonomous wills end. And there will be no notion of natural right. At its root, Mercier further notes, Kantian autonomy, and its emphasis on individualism, is anti-social since it advances the notion that autonomy is the superior good, and there is a mistaken perception that there is a loss of dignity or freedom in subordinating one's autonomy to the life of the community. Mercier therefore rejects any Kantian basis of individual right based upon autonomy and the application of the categorical imperative.

Equally rejected by Mercier is the notion that individual rights derive from the State. Here, the vaguely pantheistic musings of Hegel and Schelling and their followers tie in the Absolute with the State.

The Absolute is one with the substance of the Universe, and this substance is mind. The State is only a mode or aspect of the absolute or divine reason. The will of the State, not as arbitrary but as regulated according to the immutable principles of reason, creates rights.

[266(74)] Not only are these pantheistic theories subject to the criticisms against pantheism generally, but it is more patently offensive and in fact endemically against any sense of natural right. The State is the provider of right, and civil law becomes raised to the stature of absolute sovereignty.

Mercier also rejects any suggestion that human rights derive from a hedonistic or utilitarian principle. The natural right to these essentially Hobbesian thinkers derives from the natural "free for all" that exists in a State of Nature. These rights are entirely traded in for the peace and security of the social compact. Following this trade, the only rights that exist are those that are given by the State, which parcels them out on some sort of utilitarian formula (greatest good for greatest number). So it is that these ultimately lapse into notions that laws and rights derive from social compact or from the will of the legislator.

Similarly, Mercier mentions other competitors to Kant, Hegel, Hobbes, Mill: Rousseau (rights are the result of free will), Herbert Spencer (rights are the product of biological factors or the social organism), only to reject them. [267-68(74)]

The traditional basis for natural right is distinct from those bases advanced by the post-Enlightenment thinkers:

Rights are founded immediately on the moral law inasmuch as this is the expression of the intrinsic exigencies of our nature, and mediately on the Divine Will.

[268(74)] Quite obviously, this basis for human rights is different from the other theories. While it shares with Kantian theories the notion that the basis for human rights is the moral law, it bases itself on a traditional, classical natural-law foundation, both ontological and teleological. It thus does not suffer from the subjectivity of Kantian moral theory, but is ruggedly objective.

[T]his [moral] law, we maintain, [unlike Kant's moral law,] does not resolve itself into a priori judgments arising from the constitution of the mind and without any objective validity. The principles of our reason are the expression of essential relations which exist between things; our reason is not determined in the formation of its judgments by any blind necessity (e.g., by a priori forms) but by the force of objective evidence [i.e., reality, the way things are]. Hence when it prescribes certain rules of conduct in our dealings with other men, it does but formulate an order of relations which are derived from our very nature. Man is by nature a social being. The moral law therefore teaches him to live in accordance with that social nature. From this there result a number of practical judgments or imperatives which constitute the Natural Law.

[268(74)]

The purpose of the positive law, then, is to enflesh, in a human way, these fundamental human rights that derive from the natural law.

The function of Positive law is to interpret what is enjoined by the Natural Law, to develop its consequences, to enforce its execution, and to check its violation.

[268(74)] (emphasis added).

To maintain, as the positivist juridical theorists such as John Austin and his ilk maintain, that law and morality are, like East and West, separate and never should "Rights are founded immediately on the moral law ..."
--Cardinal Mercierthe twain meet, is folly. The moral law is, in fact, the one and only sure basis and foundation, the fons et origo of positive law and positive right. Ultimately, we find human right informed by our nature, "[b]ut as our nature, and consequently the moral law, have their origin from God, it must be the Divine Will, acting under the guidance of the Divine Reason, which is the metaphysical source of the natural law," and, through the natural law, the positive law.

Mercier then launches into a discussion of rights. These he divides into three general groupings: individual right, family right, and public right.

What, in Mercier's view, individual right consists of in light of the natural law is the topic of our next posting.

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*posit comes from the Latin positus, past participle of the verb ponere "to put" or "to place." Thus it means having been put or placed forth. It is thus law that is put or placed by the will of the legislator which could be human (in which case it is human positive law) or God (in which case it is divine positive law).

St. Albert the Great: Lex et Ius, Law and Right

PRIOR TO ST. ALBERT THE GREAT'S treatment of it in his De bono, no significant distinction between right (in Latin, ius) and law (in Latin, lex) was made by scholars. "Prior to the Universal Doctor" Professor Cunningham states, "the terms 'right' and 'law' are used interchangeably." Cunningham (2006), 216. "Both in doctrine and procedure Albert distinguishes between these notions." Id. The procedural distinction arises from Albert's handling of the two notions in separate questions. The first question of the last part of De bono deals with right (ius), whereas the second question is devoted to law (lex).

Albert the Great by Vincente Salvador Gomez

In Question 2, St. Albert discusses law (lex) specifically. In article 1 of Question 2 he offers three definitions of law, but favors one in particular which he attributes to Cicero (thought it is not Cicero's): Lex est ius scriptum asciscens honestum prohibensque contrarium. De bono, V, 2, 1 (quoted in Cunningham (2006), 234) "The Law is written right encouraging the good (honestum) and prohibiting its contrary." Beginning from this definition, St. Albert then turns to Aristotle, specifically, his Nicomachean Ethics. According to Aristotle, the end of law is to promote the virtue of its citizens, and so law is ordered to the human good (humanum bonum). Understanding the pseudo-Ciceronian term honestum to mean the goodness relating to virtue, it follows that the end of law should be the virtue of its citizens. In Albert's view, only per accidens can laws be said to be prohibitive of evil; that is, they prohibit evil as a means to achieve the end of virtue.

Whereas goodness signifies its end, "written right" designates the genus in the definition of law. Albert argues that his above definition is still a valid formulation of natural law since scriptum in this case may be taken in a much wider or metaphorical sense to mean "written by the finger of God and inserted in the human heart."

Cunningham (2006), 234 (citing De bono V, 2, 1). In the last two articles of Question 2, St. Albert treats of the various kinds of law, identifying the natural law, the Mosaic law, the law of grace, and the so-called law of sin. De bono, V, 2, 3.

[I]t must be said that law [lex] pertains more to obligation arising from the command of rational nature, whereas right pertains to the deliberations about practicable objects through rational nature; and thus the difference between natural law and natural right is clear. Hence, natural right adopts the good and prohibits the contrary through through the manner of one judging. Natural law, however, effects these two functions through obligation and rule or precept. And thus the difference is clear.

V, 2, 3 (quoted in Cunningham (2006), 235.) And so here we have the kernel of St. Albert's thought on the matter. Law (lex), which is derived from the Latin word ligare, a word meaning to "to bind." The goal of lex is to guide its subject to moral excellence, that is, to virtue. It does so by means of obligation, command, rule, or precept. Ius does not act through means of obligation, command, rule, or precept, but through a work of reason or of judgment (per modum iudicantis), through the deliberations of practical reason regarding the proper course of action for the actor (cogitationes operabilium).

Albert the Great by Ralph Carlin Flewelling
(Mosaic from James Harmon Hoose Library of Philosophy, USC)

Cunningham concludes:

The notion of "right," then, is both ontologically and ethically prior [to that of "law"]: it is the universal knowledge possessed by the person of what is good, fitting, and commensurate with rational nature. But this same habitus or reportoire of first principles carries with it the force or impulse (instinctus) of nature inclining us to goodness. Thus Albert speaks of natural law as an "inclining nature" (inclinans natura). That inclinational or instinctual movement is how Albert conceives the element of "obligation" attaching to natural law.

Cunningham (2006), 235. It would be wrong to view St. Albert's notion of the natural law as a series of prohibitions and rules that are imposed upon us by a legislator without regard to our nature. In fact, St. Albert the Great's notions of the natural right and natural law are an intimate and fundamental part of what it is to be human. In denying the natural law or natural right, we deny our very self. For St. Albert the Great, the natural law and natural right represented:

a dynamic, embedded determination of the practical intellect inclining the agent to human natural goodness through his or her understanding, judgments, and affective nature. In an age when natural law was commonly treated in the jural language of dictates, prohibitions, and restrictions, and where as a result it came to be conceived as if it too were positive law, Albert has launched a striking reversal of an old thinking pattern. The division of his treatise into a question dedication to ius followed by another on lex both reflects and clarifies this move. The quintessence of natural law for Albert is not obligation and prohibition, but the innate wisdom of practical reason. Obligation, not in the sense of a restriction, but rather in the sense of a moral-gravitational pull toward perceived goodness, naturally and necessarily follows upon this. Ius and lex, therefore, though distinguishable, are two facets of the one reality: the debitum rationis [the duty of reason]. The result is a flexible and analogical notion of law wherein priority belongs to natural law because it is the metaphysical and metajuridical foundation of all subsequent human rights, laws, and obligations. In this way, Albert reverses the traditional procedure of viewing natural law through the lens of positive law.

Cunningham (2006), 235-36.

With this blog posting we end our treatment of St. Albert the Great on the natural law.