God's Glory Appears: Submission to the Christ-Event

CONFRONTED WITH THE CHRIST-EVENT, specifically, the sacrificial death of Christ on the Cross, the Christian is presented with a theodrama, a drama which reveals the Glory of the Lord, and it requires a response. The proper response is a response of submission, or subjection, or obedience. But however one calls this act, one must not forget its person-to-Person quality.

For von Balthasar this act (in man) is a two-fold subjection, a creaturely one and a divine one.  There is a subjection "of our whole nature and person to the service of Christ inasmuch as we are made for him who is our divine head."  In the second subjection (which is simultaneous with the first) we internally adopt "the mind of Christ, whose divine inner freedom and personhood are identical with his obedience to the Father."  Steck, 80 (quoting Balthasar's Christian State of Life, 216-17)

We shall explore this first, creaturely kind of submission in this posting.  The second, divine kind of submission will explored in our next posting.

The first sort of obedient response, the creaturely, is the obedience of faith.  "[F]aith is 'demanded' by God from the one who perceives Christ-form not heteronomously but rather 'aesthetically,' as a free response of gratitude."  Steck, 80.  In other words, the obedience of faith requires us to see more than just a man dying on a cross.  We have to "look beyond" what we see with our eyes, "beyond" history, as it were, and recognize that before our eyes, and a certain time in history, something unique occurred: God gave the human life he had assumed for our sake up for us for our sake.  This is the "form" that must be perceived.  Once faith sees this, and understands the "why" of this dramatic event, this form, he is thankful.  This response is analogous to the aesthetic response, and so we have to recall that this "power of aesthetic expression is never overwhelming power."  Steck, 81 (quoting TD2.28)

Deus Pulchrum est! Venite! Adoremus!

This draw of the form of the Lord as he is found on the Cross is not overwhelming, and the divide caused by its lack of overwhelming nature and its respect of creaturely freedom is that two thieves hung with Christ have such disparate responses to the Lord between them.  One submits in faith.  The other mocks.

What of course the submitting thief learns and the mocking thief loses is that the submission to Christ yields in perhaps a paradoxical or oxymoronic character--it is certainly unexpected--a freedom.  This submission "grants freedom," and it "illuminates, in itself and in the man who encounters it . . . the realm of an infinite dialogue."  Steck, 81 (quoting TD2.28).  "Today you shall be with me in paradise."  (Luke 23:43)  There can be nothing more freeing, more life-giving that this promise obtained by the submission of faith.

The power of God which elicits and demands this response is not power in the way we might understand power.  It is wrong to use power--political, tyrannous--and our submission to it as the analog here.  (Matt. 20:25-29)  Jesus makes it clear that the power seen on earth is not the power he expects his disciples to exercise because it is not the power he will exercise when he gives his life as a ransom for many on the Cross.  This "power"--which Jesus compares to a power of service--is best understood in von Balthasar's eyes as a sort of aesthetic response to the divine Glory which (if one has the eyes to see) will see most vividly on the Cross.

"[T]he triune love of God has power [over us] only in the form of surrender (and in the vulnerability and powerlessness that is part of the essence of that surrender."  Steck, 81 (quoting Von Balthasar, "Eschatology in Outline," 435)  As Steck summarizes the issue: "Because it is not based on a power relation or demand of logic, but rather on an appeal to freedom, the aesthetic claim is both softer in its engagement with human freedom yet more effective."  Steck, 81.  It is through this particularly heuristic lense of aesthetics that von Balthasar is able to save his "command ethics" from "the mire of heteronomy which threatens Barth's ethics," and indeed any ethic based upon voluntarism, divine command.*  Steck, 81.

 The elevation by von Balthasar of the notion of "beauty" in the Christian ethical response to Jesus on the Cross--and the real meaning behind it--makes beauty in God (the divine Glory) a "theological category," and hence the response to such beauty--aesthetics--a "moro-theological category."**  This aesthetic component saves the divine command theory in Steck's view:

In pushing ahead to integrate the discontinuous and continuous themes in an aesthetics of the theological form, von Balthsar redeems divine command ethics for his Catholic audience. Perceiving the beauty of the human other always includes a moment of obedience or discontinuity, and this discontinuity is radicalized before the divine Other. Von Balthasar's theological aesthetics preserves the objective discontinuity of the divine and human judgments (divine glory is not earthly beauty) without postulating a disruption of human agency (i.e., mere hetronomous submission) in order to make this discontinuity tangible. His ethics offers an aesthetic version of what Paul Tillich describes as "thenonomous" ethics.***

Steck, 83.  By likening the ethical response to a human's response to beauty, i.e., by importing an aesthetics into moral theology, von Balthasar nimbly sidesteps some significant problems associated with the divine command theory will fully preserving the otherness and sovereignty of God.  Though submission to the Christ-event is wholly fulfilling, it is not--in the first response--fulfillment that drives our submission.  Though submission is to something "wholly Other," it is not a bowing down to a foreign power (which is at the heart of a religion such as Islam), but it is a sort of decentering of self when confronted with a sort of "hyper-beauty," the appearance of glory.  It is, nevertheless, a true submission, a recognition that we "could not construct its beauty on our own," yet it is a recognition that this Christ-form we see "transcend[s] our previous standards of beauty.  While there remains discontinuity between the nature of divien and earthly aesthetic claims, the heightened claim of the divine object is matched by its power to draw forth a human response of love."  Steck, 82.  We are not called to respond with a "Herculean attempt to meet its claim" (which would be a sort of Pelagianism), bur rather to respond with a "single-hearted recognition of its glory and majesty."

Succinctly: Von Balthasar's ethics might be reduced to the following: Deus pulchrum est!  Venite adoremus!  God is Beauty!  Come! Let us adore Him!

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*As Steck makes clear, Barth also recognized the beauty of the Christ-event, but he did not give it the emphasis that von Balthasar did.  "While both Barth and von Balthasar maintain the appropriateness of describing God's work in Christ as 'beautiful,' only von Balthasar pursues the full implicatdions of a characterization for ethics."  Steck, 81.  The matter is further treated by Steck in pages 81 through 82 amply supported by citations from Barth's Church Dogmatics, but will not be elaborated here.
**Steck suggests that this distinction between Barth and von Balthasar is even more fundamental than the well-known dispute between Barth and von Balthasar on the notion of analogy of being (analogia entis).  Steck, 82.
***Steck cites in footnote 56 (on page 186) Paul Tillich's definitions of autonomy, heteronomy, and theonomy.  This is a very serviceable definition and will therefore be quoted here.  "Autonomy asserts that man as the bearer of universal reason . . . is his own law.  Heteronomy asserts that man, being unable to act according to universal reason must be subjected to a law, strange and superior to him.  Theonomy asserts that the superior law is at the same time, the innermost law of man himself, rooted in the divine ground which is man's own ground."  Steck, 186 (quoting Paul Tillich's The Protestant Era (Chicago: University of Chicago Press, 1948) (trans., James Luther Adams)).  In his encyclical Veritatis splendor, John Paul II makes a very similar distinction, though John Paul II takes about "participated theonomy."

God's Glory Appears: Von Balthasar's Ethics

OVER THE NEXT SEVERAL DAYS, we are going to review Christopher Steck's book The Ethical Thought of Hans Urs von Balthasar.* Though as Steck indicates, von Balthasar never wrote any synthetic treatment on moral theology or ethics, Steck attempts to glean an ethic from von Balthasar's prodigious corpus, specifically from his multi-volume works The Glory of the Lord: A Theological Aesthetics (7 vols.), Theo-Drama: Theological Dramatic Theory (5 vols.), and, to a lesser extent, his Theologik (3 vols).  (There is also a short essay, "Nine Propositions of Christian Ethics," from which Steck draws.)  I have read some--though by no means all--of von Balthasar's work.  His thought is complex, and I have hardly scratched its surface, much less mastered it.  I shall therefore rely on Steck's efforts to "assemble a coherent theory of ethics out of his [von Balthasar's] approaches to related concepts--e.g., human agency, anthropology, and freedom."  (Steck, 5)  Necessarily, we will be looking more at "Steck on von Balthasar" than on von Balthashar himself independently.  I assume, therefore, that Steck presents a fair depiction of von Balthasar's ethical thought. (Though Steck himself sounds a warning: "Given the richness and depth of von Balthasar's ideas and their unsystematic presentation, however, there probably can be no definitive interpretation of his ethics.) As an aside, the title to this series is taken from Steck.  He presents this phrase--God's glory appears--as the central kernel of von Balthasar's ethical thought. (Steck, 1)

At first glance, I find some of Steck's overview in his introduction troubling.  There are some things he suggests can be found in von Balthasar's thought (which he compares and contrasts with Karl Rahner's and Karl Barth's thought) which are disconcerting.  There are other things he says which pique my interest and which suggest some real insights.

First, the attractive aspects.  To begin with, Steck characterizes von Balthasar's ethics as Christocentric.  It seems obvious to me that any Christian ethics must be Christocentric.  No flags here.**  While a natural law theory has the benefit of allowing us to speak with non-believers, there is no Christian natural law advocate that would suggest that the natural law is the last word on ethics.  The natural law is necessary, but not sufficient for salvation.  The natural law does not save, though it might help from landing us in Hell.  Who other than Christ can forgive us for our violations of the natural law?  Moreover, Christ saves.  Christ provides supernatural grace.  Christ is the way to human fulfillment in the sense of eternal beatitude.  It is Jesus that shows a way beyond the natural life of man.  Homo non proprie humanus sed superhumanus est!

A second attractive feature seems to be where Steck says that von Balthasar (and Rahner, and Barth) want to stress the relationship with God as covenantal (or personal). As I see it, a relationship with God ought to be a one-on-one relationship, although it is never one that takes us outside the natural law or the confines of the Church. Nevertheless, in stressing a personal relationship, there seems to be a danger of minimizing the public covenants within which this personal covenant must exist.  We are not each a church.  We are not each a people of God.  We are not each our own magisterium.  We do, however, each have our own conscience, and our own intimacy and personal relationship to God.

Third, von Balthasar's ethic wants to stress how God's relationship "constitutes, at least partially, our identity."  I should think God's relationship ought to be transformative, and should help form who we are.  And yet, our unique identity does not make us something other than we are.  Regardless of who we are as an individual, we are still human.  Our relationship with God does not make us something other than men.  I think Blessed John Paul II captures the concept that Christ perfects nature well when he exclaimed to man and his families: "Become what you are!"

Fourth, Steck argues that von Balthasar's ethical thought was deeply influenced by St. Ignatius of Loyola.  (Von Balthasar was a Jesuit between 1929 and 1950.)

The deep grammar of von Balthasar's ethics and theology resonates powerfully with the Spiritual Exercises [of St. Ignatius].  Therefore, his project might be understood as a contribution to this task of articulating an Ignatian theology and ethics for the Christian community. . . . Because of [St.Ignatius's] influence, we can appropriately describe von Balthasar's ethics as an "Ignation reconfiguration" of divine command ethics.

Steck, 5.  Steck suggests that von Balthasar's ethical thought--which drew little from the Thomistic well--was more able than Karl Rahner's thought in making this Ignatian character bloom.  The Ignatian principle to seek and find God in all things (which includes persons)--buscar y hallar Dios en todas las cosas--is quite lovely.  While the implied deprecation of St. Thomas is not welcome, I find the Ignatian angle worth exploring. 

Now, the worrisome things. Steck labels von Balthasar's ethics as a "command ethics," one based upon divine command, i.e., voluntarism.  Steck, 1.  Steck admits that this "runs counter to the general trend in catholic ethics."  Steck, 1.  He argues, however, that von Balthasar is able to get around the problems necessarily or frequently associated with voluntaristic ethics (nominalism, a-rationality or arbitrariness in God's commands, the chasm between what is divine and what is human stemming from the rejection of the analogy of being) through his theory of aesthetics.  Through his theory of aesthetics, von Balthasar is able to overcome the problems with a voluntaristic ethics, but also keep the benefits of such an ethic (e.g., absolute sovereignty of God, God's freedom, and "interpersonal encounter").***  Then he suggests that von Balthasar's enterprise should abrogate the traditional natural law ethic and replace it.†

Steck suggests that there are certain benefits associated with a voluntaristic ethic that cannot be obtained through a natural law ethic.  The "living presence and sovereignty of God in one's life; the Christian life as the intentional response to God's work in salvation history; the covenantal encounter, which stakes a particular claim on the human agent; the vocational call, which comes in prayerful consideration of what God wants for oneself."  He suggests that these are "kept on the margins" by those Catholic theologians that espouse a "strictly natural law reflection."  Steck, 2.  I have no idea why the first two don't fit in with natural law thought.  As to the last two--which deal with special calls, with vocations, with the evangelical counsels--I cannot see how they contradict the natural law, unless one believes that one can have a call or a vocation to violate the natural moral law or that the evangelical counsels violate natural law norms.  I do not see the natural law ethic as suffering from these flaws.

 Fr. Christopher Steck, S.J.

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*Christopher Steck, S.J., The Ethical Thought of Hans Urs von Balthasar (New York: Herder & Herder, 2001).
**Christocentrism can be so absolute as to disregard any reality about man outside the New Testament covenant.  In an extremist case such as Karl Barth  (who draws from John Calvin's theology and similar apprehensiveness on the natural moral law), it results in an absolute rejection of the natural moral law, and all ethics are based upon positivism.  This sort of Christocentrism is erroneous,whatever its sincerity, because it seems to forget the subject that Christ came to save: a human.   It also seems to go against St. Paul's letter to the Romans and the overwhelming weight if not unanimity of the Catholic tradition until the Protestant Reformation, which, in various ways, rejected the natural law doctrine of the Church.  (The Protestant tradition, one may note, has been particularly ineffective in holding the front against the collapse of morals in the West.  In most cases, they have been accommodating.  This is largely the result of their rejection of natural law.)  We have addressed Karl Barth's hostile relationship with the natural law in prior postings.  See "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."  As Steck summarizes Barth's thought: "An ethical system of universal moral norms threatens to squeeze human activity, and thus human identity, into a uniform mold that hides the existential quality of human activity--that is, its capacity to manifest an identity-shaped response to a grace that is always concrete, historical, personal, and ultimately determinative of our being." Steck, 3.  Based upon Steve Long's work, we have also had cause to address von Balthasar's (and others in the Nouvelle Theologie group) rejection of the concept of natura pura (pure nature).  See, e.g., the multi-post series on this blog: Balthasar's Theological Vacuoule, Parts 1-5.  (These can be accessed by going to the label "Hans Urs von Balthasar on Natural Law").
***I have a difficult time seeing how an "interpersonal encounter" arises from voluntarism and is not found in a realistic or natural law theory based upon reason.  Although I advocate a traditional natural law theory, it has never seemed to have minimized the "intepersonal encounter" with God through the Sacraments, prayer, lectio divina, meditative prayer, or contemplative prayer.  I think the "interpersonal encounter" may be a code word for finding an escape hatch out of the universal law. 
†"Ultimately, I want to go beyond a descriptive claim about von Balthasar's ethics (i.e., it is a form of divine command ethics) to a specific, normative claim: the central commitment of divine command ethics--that the moral obligation conforming the individual depends in a substantive way on the divine will-can and should be part of Catholic theological ethics."  Steck, 2.

Duns Scotus and the Natural Moral Law

JOHN DUNS SCOTUS is, perhaps, the Franciscan counterpart to the Dominican St. Thomas Aquinas, though he has to contend with the redoubtable St. Bonaventure for that title. Relative to St. Thomas Aquinas, the common doctor of the Church, Duns Scotus (1265(6)-1308) certainly suffers from less exposure or popularity, especially in the area with which we are concerned, his moral teachings. A clear understanding of his philosophical teachings were somewhat hampered by the uncertainty regarding the authorship of some of the work that was attributed to him, for example, the Theoremata, a work that shows nominalistic leanings not completely compatible with work that he was known to have authored, in particular, his two great commentaries on the sentences and the Opus Oxoniense. This, of course, caused quite a lot of confusion as various efforts were made to reconcile the quite contrary teachings between the questioned Theoremata and his other known works. His moral theology, which stresses the primacy of the will over the intellect, opened the door to voluntarism which, it its extreme form--for example in Ockham--is deeply problematic. For this reason, Scotus has often (and wrongly) tagged a voluntarist in ethics, where, in its extreme form, God can virtually will any act right merely by willing it, there being no other quality of the good other than the fact that God has willed it. Conceivably, then, God could even will men to hate him, and it would be considered good because God willed it. Though Scotus was not a voluntarist in the sense that Ockham was, there is no doubt that will predominates over reason in his moral teachings, and this colors his view of the natural law.

Other works of Scotus that are considered authentic include the Reportata Parisiensia, the Questiones Quodlibetales, the Collationes, and the De primo principio.

Scotus was, in any event, not a dunce, but rather a formidable thinker, and he earned his laurels as a Catholic theologian by his theological reflections and thinking on Mary's Immaculate Conception. His deep reflections and his incisive thinking removed the theological objections to Mary's Immaculate Conception in a manner that even St. Thomas was unable to do. He is therefore also frequently referred to as the Doctor Marianus, the Marian Doctor.

Duns Scotus, the Doctor Subtilis

Known also as the subtle doctor, the Doctor Subtilis, Scotus was born in Maxton, county of Roxburgh, in Scotland. The name Duns came from his family name which is derived from Duns, Berwick County, Scotland, the traditional family home, and Scotus, his country of origin. (An etymological tradition holds that the word "Dunce" came from "Duns," courtesy of the detractors of his teaching who called anyone who held foolish or unintelligible positions to be another "Duns.") Scotus studied at Oxford and Paris, eventually lecturing at the University of Paris. He joined the Franciscan Order in 1278, took the habit of the Friars Minor in 1280, and was ordained a priest in 1291. For reasons not altogether clear, he was transferred from Paris to Cologne, where he taught for the last year of his life.

Scotus is the founder of the school of thought called Scotism, a competitor to Thomism, and scholars debate the extent of the rift between the two thinkers. As Copleston summarized the state of affairs in his day:

Various general interpretations of Scotus's philosophy have been given, ranging from the interpretation of Scotus as a revolutionary, as a direct precursor of Ockham and of Luther, to the attempt to soften down the sharp differences between Scotism and Thomism and to interpret Scotus as a continuator of the work of St. Thomas. The first interpretation . . . can be dismissed, in its extreme form at least, as extravagant and insufficiently grounded, while on the other hand it is impossible to deny that Scotism does differ from Thomism. But is Scotus to be regarded as a continuator of the Franciscan tradition who at the same time adopted a great deal from Aristotle and from non-Franciscan mediaeval predecessors, or is to be regarded as a thinker who carried on the Aristotelian tradition of St. Thomas but at the same time corrected St. Thomas in the light of what he himself considered to be the truth, or is he simply to be regarded as an independent thinker who at the same time depended, as all philosophers must, on preceding thinkers in regard to the problems raised and discussed? The question is not an easy one to answer . . . but it would seem that there is truth in each of the foregoing suggestions.

Copleston, 481. Some differences are apparent. Scotus, in line with the Augustinian/Franciscan tradition emphasizes the superiority of the will over the intellect, rather than, as is typical for the Thomistic tradition, the intellect over the will. A characteristic of his moral teaching is to emphasize freedom even over love, and love over knowledge. One of the distinct features of his moral theology was his view that the first principle of moral action, that is, the "supreme practical principle is that God should be loved above all things." Copleston, 482. As mentioned above, inkeeping with the Augustinian/Franciscan school, Scotus emphasizes God's will as the source of moral obligation, although he does not espouse an extreme voluntarism such as Ockham. Nevertheless, "it can hardly be denied that the elements of voluntarism in his philosophy helped to prepare the way for the authoritarianism of Ockham." Copleston, 485. Some of these voluntaristic tenets influence Scotus's view that the natural law precepts could be divided into primary and secondary precepts (the primary dealing with the relationship between God and man; the secondary precepts involving the relationship between man and man). In Scotus's view, the secondary precepts were not part of the natural law in the strict sense and therefore could be dispensed with by God in a particular case (e.g., in the command to Abraham). Copleston, 485. His moral philosophy is much less reliant upon Aristotle than St. Thomas, and there is a notable departure from Aristotle in the area of virtues ethics or the role of happiness. But we are anticipating our topic.

The Victorian poet and Jesuit Gerard Manley Hopkins, who was deeply influenced by Scotus, described Scotus's fate thus: "[H]e saw too far, he knew too much; his subtlety overshot his interests; a kind of feud arose between genius and talent, and the ruck of talent in the Schools finding itself, as his age passed by, less and less able to understand him, voted that there was nothing important to understand and so first misquoted and then refuted him." Letters, III, 349. For the deeply sensitive Hopkins, Scotus was the thinker "who of all men most sways my spirits to peace."

Of realty the rarest-veinèd unraveller; a not
Rivalled insight, be rival Italy or Greece;
Who fired France for Mary without spot.

Hopkins, "Duns Scotus's Oxford."

Hopkins found confirmation of his unique doctrine of "inscape" in Scotus's works, though it clearly is not a concept identical with Scotus's philosophical doctrine of haecceitas but is rather much more broadly predicated on Scotus's Christological or Christocentric view of the creation. Hopkins found in Scotus a kindred spirit, particularly in what John Paul II called Scotus's characteristic as a "minstrel" of the Word Incarnate. Undoubtedly, the poetic inclinations of Scotus and his deeply Marian piety also resounded with Hopkins.

The Hopkinsean notion of "inscape" is difficult to grasp, but its essential aspect is that the inner nature of any created object contains a revelation of God which is manifested or communicated by its outer characteristics. Each created nature, then, contains a revelation of God, a "word, expression, news of God." Sermons, 129. So, for example, when Hopkins saw a bluebell in bloom, he came to know "the beauty of the Lord by it." Its inscape, "is strength and grace, like an ash." Journals, 199. The link between Hopkins and Scotus in this area of inscape is made clear in one of the entries in Hopkins's Journals where he states that after having read Scotus "when I took any inscape of the sky or sea I thought of Scotus." Journals, 221. This notion of Scotus was carried over by Hopkins (though undeveloped) in an analogous concept of "inlaw," which might be likened to a practical analogue of the theoretical "inscape," and thus may be a deeply Christological notion of the conscience or the natural moral law as a sort of natural calling of Christ in man into intimacy with him.**

His life is succinctly if nakedly summarized by the epitaph on his sarcophagus in Cologne:

Scotia me genuit.
Anglia me suscepit.
Gallia me docuit.
Colonia me tenet.†

In 1993, Scotus was beatified by John Paul II.

Over the next several postings, we will take a cursory view over the moral teachings of this much-maligned and often misunderstood Franciscan genius. We will rely largely on Allan Wolter's text and commentary Duns Scotus: On the Will & Morality, though other texts will also be referenced.††

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*Copleston refers to Frederick Copleston, S. J., A History of Philosophy (New York: Image Books, 1985), Volume II ("Augustine to Scotus").
**The cites to Hopkins are taken from Sjaak Zonneveld, "Blessed John Duns Scotus and Recent Papal Pronouncements," Revue LISA/LISA e-journal [Online], Vol. VII – n°3 | 2009.
†Latin for: "Scotland borne me. England raised me. France taught me. Cologne has [or holds] me."
††Allan B. Wolter, O.F.M., Duns Scotus: On the Will & Morality (William A. Frank, trans. and ed.) (Washington, D.C., Catholic University Press, 1997).

Natural Law's Modern Cousin Germain: Voluntarism and Law

VOLUNTARISM IS THE NOTION THAT law and perhaps even all reality is, at its kernel, an act of will, and not an act of reason. The debate is perennial, though the answer, while fraught with difficulty, is plain enough. While frequently categorized as a dilemma (e.g., the Euthyphro dilemma)* or a fight among equals--Avicebron v. Averroes, Duns Scotus and William of Ockham v. St. Thomas Aquinas--the sound opinion, and certainly the Thomist solution, appears to be on the side of reason. The Thomist will say that the intellect recognizes being and being as good, and the will is then naturally attracted to the good recognized by reason. For a man, reason, then is the ultimate source of action, of value, of reality. Those opposed to St. Thomas will say that it is the will which determines what is good, and the will determines itself, as it is not determined by reason. Do we love something, desire it, because it is good? The Thomist will answer yes, the Ockhamite no. Is something good because we love it, desire it? The Thomist will answer no, the Ockhamite yes. Some, like perhaps Suarez, try to straddle both sides of the issue.

Is Moses holding God's Will or God's Reason?

The question of whether reality or law is principally will or reason extends out to the very basis of reality and of law--to the eternal truth to the eternal law, and the participation of eternal law we called the natural law. Is moral obligation ultimately predicated upon God's will or God's reason? For Finnis, the answer is plain:

The grounding of ethical obligations in God's will becomes a prize specimen amongst conceptual fallacies collected for exhibition in elementary philosophy books.

NLNR, 343.

But the question persists, and moderns still ask the question and align themselves on either side of the watershed, with all positivists--Bentham, Austin, and Kelsen among them--on the wrong side.

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*Plato, Euthyphro, 10a (ἆρα τὸ ὅσιον ὅτι ὅσιόν ἐστιν φιλεῖται ὑπὸ τῶν θεῶν, ἢ ὅτι φιλεῖται ὅσιόν ἐστιν: Is the pious loved by the gods because it is pious, or is it pious because it is loved by the gods?)

Natural Law's Modern Cousin Germain: Lex Pure Poenalis

ACCORDING TO JOHN FINNIS THERE IS a division between the advocates of the lex pure poenalis theory (whose representative we might make Suarez) and the Thomists who generally do not support the notion of a law purely penal. The difference between the two schools is, in Finnis's view, the result of their notion of the human act. Essentially, the difference between the Suarezians and the Thomists on this issue is the result of their telescoping their views of a human act into the legislative process. The problem comes from their respective views of the ultimate role of the will--both in an individual man's actions and (by telescoping) in the legislature's actions. It is part of a historical tendency to elevate will over reason, in both human activity and in law and politics.

In short, in examining the purely penal law theories, with their attribution of all moving and obligatory force to the lawgiver's will, we are examining one limited aspect or offshoot of that vast movement of thought which has sought, with overwhelming historical success, to expel from the analysis of individual and political action all systematic attention to the intelligibility of the good which are realizable in action.

NLNR, 342.

Suarez v. Aquinas
Is Will or Reason Supreme in Law?

For a Thomist (as well as for a Suarezian), a human act is a series of interacting human capacities: there is (i) the cognitive grasp of an end or objective (an act of reason); (ii) there is the elicited desire for that good (an act of will); (iii) there is the practical reason's efforts to find means to that desired end (an act of practical reason); (iv) there is the decision to terminate the means-to-end analysis and to act (an act of will). NLNR, 337-38. Up to this point there is agreement between the Thomist and the follower of Suarez.*

Suarez, however, stops his analysis there, and attributes the final internal action required before the completion of the human act to the be internal decision to terminate the means-to-an-end analysis and to act, which is an act of will. For the Thomist, however, there remains one more step: an executive command or imperative order (an imperium) which is, at root, a directive of reason to oneself.** Suarez, on the other hand, finds Aquinas's imperium to be "unnecessary and indeed impossible, 'certainly a fiction'." NLNR, 339 (quoting Suarez, De legibus, I, c.5, para. 6; c. 4, para. 4).***

It is this subtle difference between St. Thomas and his intellectual opponents (which includes Vasquez and Suarez) as to the human act that explains the difference between them in the legislative act, since both seem to analogize from the human act to the legislative act. So, for St. Thomas, "[t]he important thing is that the expressed imperium, the promulgated 'intention of the legislator', represents to the subject an intelligible determinate pattern of action, which, having been chosen by the lawgiver to be obligatory, can actually be obligatory in the eyes of a reasonable subject because the ruler's imperium can (for the sake of the common good) be reasonably treated by the subject as if it were his own imperium." NLNR, 341.†

For, just as an individual's imperium, his formulated resolve to act, motivates his exertions by being transparent for the value of his objectives and the appropriateness of teh chosen means to them, so in the eyes of the subject the ruler's imperium is compelling precisely be being transparent for the common good, tot the needs of which the ruler's stipulation is treated by the subject (who recognizes the need for authoritative resolution of social problems) as a relevant response.

NLNR, 342.

While Suarez and Vazquez apply the notion of imperium to the legislative command, they see it "primarily as an expression of the lawgiver's decision (to impose an obligation)." As a consequence, "the important thing for them is the act of will (decision) thus expressed and addressed to subjects." Finnis believes that Suarez (mistakenly), then, "makes the point that unless the lawgiver decides to make obligatory the pattern of action which prefers, it will not be obligatory," which menns that "what makes the conduct actually obligatory is, precisely and simply, the lawgiver's decision that it should be."†† NLNR, 341.

What takes precedence in man's law in foro interno and in man's law in foro externo? Is it reason or is it will? Does the good precede the right, or does the right precede the good? Is the gist, the kernel of law rationalism or voluntarism? The Thomists will stand on the side of reason. The advocates of purely penal law, as well as most moderns, will stand on the side of will.
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*In assessing the thought of Suarez and Aquinas, one ought not to look at reason and will as wholly separate or reified or personified faculties within a man. The one-and-the-same person reasons and wills, and the reason and will "are psychologically entirely interdependent and only analytically distinguishable." NLNR, 338, n. 37. The various steps are not even to be considered to occur separately and seriatim: they are not "necessarily chronologically extended." NLNR, 337.
**Finnis cites to S.T. IaIIae, q. 17, art. 1: "Command [imperare] is an act of the reason presupposing, however, an act of the will. . . . . Consequently it follows that command [imperare] is an act of the reason, presupposing an act of the will, in virtue of which the reason, by its command [imperium], moves (the power) to the execution of the act." [I]mperare est actus rationis, praesupposito tamen actu voluntatis . . . . Unde relinquitur quod imperare sit actus rationis, praesupposito actu voluntatis, in cuius virtute ratio movet per imperium ad exercitium actus."
***Finnis also refers to Gabriel Vasquez who in his Commentarium Ac Disputationum in Primam Secundae, disp. 49, c. 4 (which addresses St. Thomas's Summa Theologiae, IaIIae, q. 17, art. 17, ad. 1). Vasquez states that the Thomist notion of imperium was "unnecessary," "inept," and "futile." NLNR, 339 n. 39.
†Finnis cites to S.T. IIaIIae, q. 50, art. 2, c. and ad 3; q. 47, art. 12, c.
††Finnis cites to De legibus, I, c. 4, paras. 7-8; c. 5, paras. 16, 19.

Law: Is It Will First or Reason First?

LAW IS A RULE AND A MEASURE OF HUMAN ACTION. With this "nominal and dialectical definition," the "commonly accepted" definition, Yves Simon begins his exploration of human law with the aim of establishing a "real and scientific" definition of law through further reasoning. He does this by trying to grasp what exactly law must have, what conditions must be present, for something to be a rule and a measure of human action. In doing so, Simon fashions four fundamental questions: (1) whether law is the work of reason; (2) what is the end or purpose of law; (3) what is the cause of law; and (4) how and what is promulgation of the law.

In addressing the first question--whether law is predominantly a work of reason--the opposite question naturally raises itself: whether law is principally or predominantly work of the will. Legal rationalism or legal voluntarism appear to be the two choices as we walk the great divide of the law. But whether law involves reason and law involves will are not mutually exclusive options. The real question is which ought to predominate in law? Which is another way of asking which ought to be subordinate in law? Reason or will? Yves Simon concedes what seems apparent: "That every law involves an act of will is taken for granted." Simon, 71.

Thus the first question in our progression from the nominal and dialectical [common] to the real [and scientific] definition of law is whether, in order to have the character of a rule and measure of human action, the thing called law should be primarily a work of the reason or a work of the will.

Simon, 72.

From a historical perspective, a theory of legal voluntarism (where the will predominates over reason in law) has a checkered reputation. It seems a refuge of tyrants and revolutionaries and democratic demagogues. So we see it as a justification for the arbitrary power of Caesar, or the alleged "divine right" of Kings, or the ukase of the Czar: The Roman jurist Ulpian's unsettling dicta: princeps legibus solutus est (the prince is not bound by the laws) and quod principi placuit legis habet vigorem (what pleases the prince has the force of law) come to mind as indicative of this tendency. See Dig. 1.3.31; 1.4.1. More contemporaneously, we might point to Rousseau "for whom law is an act of the general will, and expression of what the people will, so that, in case of dispute about justice or wisdom of the law, the fact that the people wants it to be that way is final." Simon, 73. Populi locuti, causa finita est. Rousseau and his French Revolution minions decapitate the noble tradition of Heraclitus: that the counsel of one man is also law, for the opinion of one man, if he is the best, is worth ten thousand. See DK 33, 49 (νόμος καὶ βουλῇ πείθεσθαι ἑνός, "and it is law also to obey the counsel of one," and εἷς ἐμοὶ μύριοι, ἐὰν ἄριστος ᾖ, "one is ten thousand to me, if that one be the best.") It matters not reason: the general will supplies its own reason. Here, Juvenal's line is relished: Hoc volo, sic jubeo sit pro ratione voluntas. (Satires, VI, 223). "I will this, I order it, so let my will stand for reason." Will, whether of one tyrant or of a tyrannous majority, is the juggernaut in law for the legal voluntarist.

Yves Simon

On the other hand, the proposition that law is "a thing which is a rule and a measure of human action," and "primarily the work of reason," is what Yves Simon calls "axiomatic," which, from a philosophical viewpoint, is to say that it is an "absolute premise," that is, a proposition that is undeducible, indemonstrable. (This, of course, suggests that the opposition premise, that law is "primarily the work of will," is also an opposing absolute premise, one which cannot be deduced or demonstrated to be true, but one, since erroneous, which can be demonstrated to be false.) To say that a proposition is axiomatic is to say "that if we understand the subject" (in this case, "law"), "and the predicate of this proposition," (in this case "a thing which is a rule and a measure of human action"), "we also understand that they are to be connected by the copula 'is'". Simon, 77. That an axiomatic proposition, one which is logically self-evident, is psychologically evident is a different story. "It may take years or generations or centuries for the mind to understand a proposition that is logically immediate." Simon, 77. As an example, one might point to traditional Islamic societies. It is doubtful that these societies, having been so ingrained with the irrational notion that law is nothing but the will of Allah, would recognize the self-evident nature of the proposition that law is a rule or measure principally of reason. (See, e.g., Robert R. Reilly's The Closing of the Muslim Mind (ISI Books 2010). On the matter of legal voluntarism, these minds have been poisoned at the intellect's well, have been stunted by a sort of mental hydrargyria. It exhibits itself by their mercurial, irrational, impulsive violence.

Law involves a rule or measure of "human action." By "human action" we mean to exclude those parts of men's activities that are involuntary or the result of insanity, temporary or lasting, or some sort of pathological emotion. (These latter are "cosmic events" in Simon's nomenclature, not "human actions," though the acts of humans may be incidentally involved.) In other words, to be in the world of "law" we must be placed in the realm where there is a sufficient modicum of freedom so that actions can be governed by rational measure or rational rule. This is the realm where the external action would be generally viewed as having with it moral implication in addition to a mere physical implication. Where the man is answerable for it, where he ought either to be praised or to be condemned.

How do we know that a case of killing is a cosmic event rather than a human action? We hold that the mind of a man is gone, that the use of his judgment is suspended, that his reason is out of commission. It is the presence of reason which makes all the difference. . . .Thus by reflecting upon the rational character of what is recognized as "human action" we come to understand that ruling human action primarily pertains to reason. The rule of an action proceeding from the reason must be rational. If the will is reasonable, if it follows the reason, it is to the reason that primacy belongs; but if the will is held to enjoy primacy, it is also held to be free from reasonableness, from agreement with the reason, from direction by the reason. Such a will is arbitrary, and the most adequate way to convey the rationality of the law may be to say that such a will is lawless.

Simon, 79-80. Ordinary cosmic events, events which man has no control over, such as the movement of the planets, the countless physical and chemical processes witnessed every day, are subject to "law," as they exhibit an order; however, it is an order or law entirely outside the scope of human law. In comparing the order relating to "cosmic events," to a notion of legal voluntarism, the absurdity of the latter relative to legal rationalism is apparent: "A voluntaristic interpretation of law would place less rationality in human actions than in processes that are just natural. The absurdity of such an interpretation helps to perceive the truth of the opposite view and of its consequences." Simon, 80. In other words, to hold to legal voluntarism would mean to say that man is governed by processes less rational than the world of nature in which he finds himself. There is a fundamental absurdity in such a proposition. Thus, the self-evident proposition that "law" must be a measure or rule principally based upon reason preserves itself through the apparent absurdity of the opposite proposition.

There is, however, the question of instinct, which itself is a sort of "rule" or "intelligence" by which animals, and in a certain manner, also man are governed. How does human "law" differ from such rule of instinct? It is in the apprehension of an end, knowing it to be an end, that we find what distinguishes instinct from reason. The ordering of activity with knowledge of an end, knowing it to be an end, and the structuring of means to achieve that known end, is what distinguishes the impulse of instinct from the impulse based upon reason. The legislative activities of man, which encompass "a constant effort to embody a certain philosophy of man and society," cannot be confused with animal instinct. If there are societies, or part of societies, that base themselves on such nonrational instinct, they are, at least to that respect, infrarational or subhuman. Simon, 81.

Potpourri of Natural Law

QUESTIONS RELATING TO A PHILOSOPHY OF NATURAL LAW overlap with other philosophical questions, including those relating to freedom of choice (free will), the priority of reason over will, and the existence of God. So inextricably intertwined are these issues, that it is doubtful that a natural law theory can be accepted if there is a disbelief in free will, if will is given precedence over reason in the assessment of good (if right takes precedence over good), or if the existence of God is denied. Before he discusses the natural law proper in his The Tradition of Natural Law, Yves Simon summarily addresses these three issues.

Free Choice. The principal point that Simon stresses in his discussion of free choice is to dispute the false dichotomy generally posited between free choice and lack of causality or order. There is a tendency to pit freedom of choice against law. This is a false opposition, as freedom of choice is not inconsistent with reason, or order, or with law, but works hand in glove with these. Whatever its source (and the Christian tradition would place its source in the Fall), there is a tendency to place law and freedom in opposition, since freedom is seen to exist only where there is indeterminacy, which is another way of saying where there is no law.

There seems to be in the human mind an everlasting readiness to associate free choice with indeterminacy and, under favorable circumstances, to place the principle of freedom in a lack of determination, in the lack of a positive feature, in a lack of causality and rationality.

Simon, 58. Thus (the argument goes), if God exists, man is not free. Or if natural law exists, we are not free. Or if man has a human nature to which he ought to conform, he is not free. Unless man is servant to no God, to other man, to no social convention, to nothing but his existential self, he is not free. Autonomy from reason, from (any) cause, from nature, from God is the hackneyed recipe for freedom. It is as foolish a recipe, or perhaps as satanic an inspiration, as the argument that one is free only if one jumps into an abyss and is spared the limitations of being supported by the earth. It is this false perception which must be overcome and seen as a falsehood, or else one will be blinded to the notion of freedom within the constraints of reason, or of law, or the love of neighbor, or under God.

Human Lemmings Following "Autonomy" to a Moral Abyss

Yves Simon notes that the notion of freedom as absence of cause was historically manifested in the Epicurean response to the atomism of Democritus. Confronted with the necessity associated with the Democritean "necesitarianism" that "everything is made of atoms," and its doctrine that the "soul is nothing else than an aggregate of atoms that are more polished and move more smoothly that others," Simon, 59, Epicurus devised the notion of the unpredictable, indeterminable swerve, in the downward rain of atoms, the paregklisis (παρέγκλισις), what Lucretius, the Roman materialist, called the clinamen.

(Oh how dark and dreary, nay depressing, are Democritus and Lucretius! What sort of comrades are they! Let us theists say with the poet John Dryden in his "Epistle the First" against all who would rob us of our God, whether they be Democritus or Lucretius or Christopher Hitchens :

. . . [T]his is a piece too fair
To be the child of chance, and not of care.
No atoms, casually together hurl'd
Could e'er produce so beautiful a world.
Nor dare I such a doctrine here admit,
As would destroy the providence of wit.

And poor Epicurus! Who would save us from this dreariness by the doctrine of swerve! As if we should be happy that, in jumping into the abyss, we may gain meaning from the fact that we "swerve" before we hit bottom. Either way, it seems to me, we end up rather flat, our end being one-dimensional, pancake-like.)

We ought not to accept the general concept without some sort of critical frame of mind:

Some discrimination should be exercised before assuming that a free act has to be an event without a cause, and event without law and without reason, a thing akin to chance but more causeless than a chance event.

Simon, 60.

Let our minds stay. Let our minds pause. Let our minds go up instead of down. Let us suppose, even ex hypothesi if not ex fide, the opposite is true. Let us suppose:

[F]ree choice is to be described not as a case of indetermination but rather as a case of superdetermination, as a distinguished case of domination over diverse ways of acting and over the diversity of acting and nonacting, the notion of a law immanent in free natures assumes a sense widely different from whatever its sense might be in a theory which conceives of freedom after a pattern of indeterminacy.

Simon, 60. It would seem that the advocate of the natural law, and not its opponent, has the open mind. Only the close minded man, the man of a lemming-like mind, is foolish enough to jump into the abyss and hope for swerve. The open-minded man is willing to think that perhaps it may be wise to think twice before jumping into an abyssal void.

Reason versus Will. "In most, if not all, phases of its adventurous history, the notion of natural law is violently attacked whenever the voluntaristic trend is predominant." Simon, 61. When, in one's philosophical or jurisprudential view, will is placed before reason, there can be no natural law. This is because natural law places reason as logically prior to the will. Reason, not will, is the fundament of law. Since our understanding of the natural law is affected by the predominant notion of human law, when legal positivism reigns, as it did, for example, in Nazi Germany, or in the philosophy of the Franciscan William of Ockham (ca. 1288-ca. 1348), or the jurisprudence of the English philosopher John Austin (1790-1859) or the American Supreme Court Associate Justice Oliver Wendel Holmes, Jr. (1841-1935) we may be sure that the environment for the natural law is poor. Legal voluntarism, a jurisprudence where law is primarily will, the command of the sovereign, is like throwing salt into the jurisprudential field. It stunts the growth of a sound philosophy.

God. The tentative words of the Dutch jurist Hugo Grotius--etiamsi daremus non esse Deum--seem to us moderns harbingers of the evils of atheism in law. (For a short treatment of Grotius's statement see Natural Law: Ecstasis and Telos.) God's absence in law is far from theoretical when we are confronted with the gaunt faces and lifeless bodies of our brothers and sisters in the Gulag of Soviet Russia or the Konzentrationslager of Nazi Germany.

Victims of the Rejection of Natural Law at a Gulag

Victims of the Rejection of Natural Law at Dachau

In the face the evils harvested by Marxist materialistic philosophy in Communism or in Nazi Germany where the will of the State overcame all right, one is haunted by Dostoevsky's message as summarized by Jean Paul Sartre: "Where there is no God, all things are lawful," Если Бога нет, то всё дозволено. Natural theology and natural law are inextricably intertwined, despite the efforts of many to divide them and their insistence that one can proceed lustily without the other.

There is no question of denying the connection between the problem of natural law and the problem of God. But it is not easy to show precisely what this connection is. One may wonder whether the study of moral nature and of natural law is a way to the knowledge of God or whether the knowledge of God must be had before the proposition that there exists a natural law of the moral world is established.

Simon, 62 Simon favors the first option.

The Prison of Atheistic Existentialism

But from this logical priority in the order of discovery it does not follow that the understanding of natural law can be logically preserved in case of failure to recognize in God the ultimate foundation of all laws. Again, the intelligence of natural law is a way to God. This means, for one thing, that it normally leads to the knowledge of God's existence and it means, for another, that if the way to God is blocked, no matter what the obstacle, the intelligence of natural law is itself impaired (this is logically inevitable).

Simon, 62. Thus, someone who, like Jean Paul Sartre, has locked himself in a cell of atheistic existentialism with the fundamental premise that there is no God, will be forced to reject, time and time again, any concept of the natural law because to accept it would require abandonment of his fundamental premise. Jean Paul Sartre, is, in the words of the popular Eagles song "Hotel California," a prisoner of his own device. And there are stubborn men who will remain in the prison made with their own hands, though someone shows them that their cell door is wide open. 'Tis a pity he's a fool.