The Gordian Knot of Natural Law

ACCOUNTING FOR THE DIVERSITY of mores, institutions, laws, and judgments about right or wrong among men might help us understand why there can be a universal natural moral law and yet such a divergence of human expression of right and wrong in light of it. We have previously addressed the issue of how natural law theories do not require or even imply that there will be unanimity among men with respect to the existence of that law or its content. (See, e.g., The Natural Law's Sophist Strawman.) Yet withal the argument is frequently hurled against the natural law as if it were dispositive against it. Opponents feel it is the clincher, when it's nothing but an attempted sucker punch.

In fact, natural law theories frequently account for the variations of these fundamental differences among men across history and across cultures. It is therefore valuable to explore these explanations. In his The Tradition of Natural Law, Yves Simon divides this question into five parts: First, negative precepts of the natural law. Second, positive precepts of the natural law. Third the distinction between premises of the natural law and conclusions from those premises and their relationship. Fourth, the role of prudence in the decisions relating to the application of the natural law to specific or particular applications or problems in the concrete. And lastly, the effect that the relative hierarchy or necessity among the inclinations may have when these are in competition. Finally, he addresses the notions of both progress and blindness in our knowledge. These aspects of the problem, all bundled and tied together as if in a Gordian Knot, explain why the natural law is not known universally. The fact that rope is bundled up together in an knot that cannot be easily unbound does not mean the rope does not exist.

The Gordian Knot of Man's Nature

The negative injunctions or precepts of the natural law (and not necessarily the knowledge of these precepts, which is another issue) are unqualifiedly universal and absolute. Acts that are wrong by essence, by their very nature, are wrong without qualification. Simon, following St. Thomas Aquinas, distinguishes between the external act and the essence of that act. Two external acts that are apparently identical may be essentially different. As an example, Simon cites the effect of extreme necessity on the property rights of another. To take water surreptitiously from a neighbor's well to reduce one's water bill or to keep us from having to dig our own well is stealing and, in its very essence, wrong. To take water from our neighbor's well to put out a fire in our household while we have yet to dig our well is, externally, the same act (using our neighbor's water without permission), but the necessity involved in the circumstance changes its essence of the act. The essence of the latter act has no wrong attached to it because necessity changes the character, the nature, the essence of the act. Sloppy language, however, causes confusion. In the first case, we have stealing, an act which is, in essence, wrong and universally so. In the second case, we do not have stealing. It is therefore wrong to say that it is lawful to steal in cases of extreme necessity. (This suggests, wrongfully, that a wrong may be excused. The fact is, that because of necessity there is no wrong that needs excusing in the latter situation at all.) Rather, it is accurate to say that the latter act, though it involves the taking of an other person's property, is not stealing at all. The essence or fundamental nature of the act has changed as a result of circumstance. A similar observation may be made with respect to killing. It is wrong for me to kill my neighbor so that I may have his wife. It is an altogether different thing to kill my neighbor if he rushes at me with his knife in the hopes of stealing me of my house and home. The first act is murder. The second act is not murder that is excused. The second act, though it likewise involves the killing of a man (i.e., homicide) is not wrong. Its essence is fundamentally changed. Sometimes the difference gets very subtle, and as an example, Simon gives the qualitative difference between a spy taking a cyanide tablet to kill himself in the face of imminent capture so as to avoid the giving of secrets in the likely prospect of torture, versus a soldier who jumps out of a trench before enemy fire to take out an enemy position even though death is virtually imminent. The former is self-slaughter, the latter is not, and their essential difference, though perhaps subtle, is as different as night is from the day.

What is wrong by nature can never be rendered right, but we shall have to be very cautious before we declare that a particular act is wrong by nature.

Simon, 148. Modern moral thinking is particularly sloppy in this regard.

With respect to positive precepts, there is a universal principle: "One principle covers all cases," Simon writes, namely, "any good act may become wrong by reason of the circumstances." Simon, 148. The classic example is the example of a deposit. Generally, it is obligatory to return property to one who has put it in our care (we have here a positive precept). So if our neighbor has deposited with us a sword, we are obliged to return it to him upon request. But what if our neighbor comes to us demanding his sword in the heat of extreme passion so that he may use it to slaughter then and there another man? In the latter situation, it would be wrong to turn over the sword. Between the first instance and the second instance, a circumstance has interfered. So Simon crafts the general principle:

[W]hereas circumstances can never vindicate a wrong by essence [though they may change the nature of the act], an act good by essence can always be made wrong by the circumstances.

Simon, 148 (citing St. Thomas's S. T. IaIIae, art. 18, q. 4, ad. 3. and De Malo, art. 4, q. 4, ad 2.) Simon calls this the "diabolic privilege." "The wrong cannot be made good, but the good can be made wrong." The good can be made wrong by circumstance, including one's intent or end in doing the good, and the foreseeable consequential effect of the good beyond the act itself. A good act may be interfered with, and made not good, by the who, when, where, and by what means surrounding it. Two examples are cited by Simon. To honor one's father is a natural good, a positive precept of the natural law. However, if one's father is in a murderous state and is assaulting an innocent with the intent to kill, it is not only lawful, but meritorious and perhaps obligatory to kill one's father to save the innocent victim. Circumstance has "interfered" with the positive precept to honor one's father. Similarly (and this is a classic example, Simon cites to S. T. IaIIae, art. 20, q. 1; De Malo, art. 2, q. 4, ad. 2) the giving of alms (i.e., "relieving destitution through free distribution") is good by essence. However, if alms are given for vainglory or to acquire disorderly power over others (as liberals are wont to do) the act is wrong. Circumstances have "interfered" with the good. (We have discussed in another posting the role of intent in the giving of alms. See By Nature Equal: How are Men Equal? Uniformity of the Host Property, Part 1.)

There is an important distinction between premises and conclusions. It is wrong to suggest that premises of the natural law are binding, but conclusions are not necessarily binding. The binding nature of the conclusions depends upon the clarity between the premises and the conclusions:

If the derivation of the conclusion is purely and simply logical, the conclusion derives unqualified necessity from the necessary premises. . . . If the premises are necessary and universal, the conclusions are the same. . . . That a conclusion is always necessary as the antecedent is almost a definition of a strictly logical connection. But the antecedents may be divided into those which do not and those which do involve a contingent condition. It a relation between antecedent and conclusion, the conclusion will always be as necessary as the antecedent.

Simon, 150. The presence of contingent conditions is not always easy to express or determine, as they are sometimes implied. As an example, Simon cites the natural law involving private property. Ordinarily, that is, under a certain modicum of organized civilized life, the right to private property is a fundamental natural law principle and ought to be respected by both the public authority and private individuals. But the implied condition is that there is some sort of civilized structure before this natural right can be said to arise:

Is it by law of nature that things are owned privately, with certain limits, under the common circumstances of civilized life? It is. But notice that the statement is not particularly sharp: "within certain limits" and "under common circumstances of civilized life." In a very small tribe in a tropical forest, for instance, in the Amazon or Equatorial Africa, what meaning does private property assume? Are those common conditions realized which are needed in order that it be naturally right that there be some sort and some amount of private property? Perhaps not. . . . Do not try to obtain more precision, more specification, by way of logical connection. It will not work. . . . Clearly the answer to this question is not to be found by way of deduction from the axioms of natural law. The issue is not one of logic but of prudential determination.

Simon, 154.

The logical connection between necessary premise and ineluctable conclusion is, relatively speaking, rare. More common is it that we have contingent conditions to antecedent premises, or conditions relating to circumstance that drive us out of the comfort of logical connection into the realm of determinations (determinatio), and into the real of prudential, not logical, thinking. We travel from law into judgment. (See From Law to Judgment: Lex Nuda to Lex Vestita.)

[A]s soon as specific situations and specific regulations are involved, there is absolutely no possibility of proceeding by way of logical connection. . . . [W]e are in a flood of contingency and we have to find our way by methods that are appropriate to dealing with contingencies. . . . This point is of signal importance to this discussion. Even those things which in rough outline may be considered deductions from what is naturally right do not constitute standards or links by which the ultimate particular determinations might be logically connected with the first principles. . . . The particulars of regulation belong to prudential determination, not to logic. Logical connection is not completely severed.

Simon, 156. As an example, Simon points to the issue of marriage. Incest is against the natural law. From this principle we may logically apply it to very close relatives. But what about third cousins? What about fourth cousins? Are these latter always and everywhere encompassed by the prohibition against incest? Can the prohibition against incest, once we progress to third or fourth cousins, be dispensed with? Under what circumstances? We have clearly ventured down the path from logic to contingency, from law to prudence and judgment. The answers to questions in the area of prudence become much more knotty, much more subject to argument and differing opinion, much more various.

Finally, there are differing levels of necessity between human inclinations, or between laws of human nature. And human inclinations conflict with other human inclinations. Laws of human nature may conflict with other laws of human nature. And inclinations and laws may likewise conflict. And in such instances, the more necessary of the inclination or law at issue tends to supplant or override the inclination or law of lesser necessity, not unlike the situation in a scale, where the heavier weight overcomes the lesser weight. As an example, Simon points to monogamy, polygamy, and polyandry. It may be that, by natural law, monogamy is normative. The inclinations satisfied by monogamy (assuring the woman the exclusive devotion of her husband), however, are less urgently felt than inclinations toward survival (assuring the survival of the tribe, which under some circumstances--say a dearth of men because of war-- becomes significant and are better satisfied through polygamy), and are also less urgently felt than the need of identifying the father of the child (which is insulted by polyandry). Thus, though nature aspires to monogamy, circumstances may be such so that more fundamental felt needs interfere with its expression, and one faces a corruption caused by competition among fundamental needs, not all of which, because of contingencies, can be met:

The transition from polygamy to monogamy which may be observed in history, constitutes a normal progress from a state where only the more necessary laws of nature can be embodied in institutions to a state where institutions can afford to satisfy the less necessary and more lofty aspirations of nature.

Simon, 157.

Alexander Cuts the Gordian Knot by Jean-Simon Berthelemy (1743-1811)

It is apparent that when these various distinctions and difficulties are put together in historical and cultural mixes, that we will find, in the history of man, and among his various cultures, departures and divergences in the understanding of and the application of the natural law. It should come as no surprise. We can add to this mix the fact that knowledge of the natural law may be recognized to be progressive, like most human knowledge, and that there is such a thing as social and cultural blindness under which we may operate.

There is absolutely no reason to postulate that man should have been created in a state of perfect acquaintance with what is naturally right; we do not postulate that he should be born with perfect acquaintance with the laws, say, of chemistry or biology. Thus there is nothing conclusive in the most common objection against natural law which notices that in a certain epoch a thing is considered to be naturally right about which the most intelligent and conscientious people were not so clear a few centuries before. That is normal; it reveals the law of progressivity, which is that of the human intellect.

Simon, 158. (Unmentioned here by Simon, though mentioned at some length later (pp. 162-63), is what may be called the law of regressivity. Man does not always progress. There is no ineluctable law of progress. And if he progresses in some areas, he may not only not progress in others, he may regress in certain areas. Thus, modernly, we have progressed in medical science and in certain moral respects (our sensitivity to the wrong of slavery or even racism). Yet we have regressed horribly, to the point of virtual savagery, in the area of the family, accepting such intrinsic evils such as serial polygamy (no-fault divorce), abortion, and contraception, not only as not evil, but even as if they are rights!)

Finally, Simon observes that there may be "an abnormal blinding of our understanding of what is naturally right." Simon, 158. Moral blindness, like physical blindness, is seen in individuals, and it follows and should come as no surprise that it may be seen in societies and cultures. The possibility of moral blindness to the natural law does not prove that there is no such thing as natural law; it simply proves that we may be blind to it.

[I]f a practice considered highly immoral, wrong by nature, in one society is commonly received by mores and by laws and by institutions of another society, it does not follow that the case of what is naturally right is dubious. The possibility of corrupt judgment in a social group cannot simply be excluded. In fact, it is to be suspected that the judgment of every social group is blind or corrupt in some respect and to some extent.

Simon, 158. Hypocrisy is never too far away; and the intelligentsia are perhaps most prone to it. It is easy to the the splinter or mote in another culture's eye, and overlook the plank or beam in one's own. (Cf. Matt. 7:5).

In terms of knowing the natural law and applying it, we sometimes confront a Gordian Knot. Our human nature is Gordias, and our knowledge is, to some degree, all knotted up. There is no Alexander on earth to whom we can turn to fully unravel the knot of of the natural law. There is no man of whom we can say:

Turn him to any cause of policy,
The Gordian Knot of it he will unloose,
Familiar as his garter.

Shakespeare, Henry V, I, 1.45-47.

There is someone we can turn to, however, to unravel the windings and turnings of that Gordian knot of human nature and natural law: God, the Incarnate Word, His Revelation in Scripture and in Tradition, and the custody of that Revelation by His Church, and most particular, His Vicar, the Pope of Rome. The natural law is as familiar to God and to His Christ as a garter is to an English knight. And the Church has been given, not an Alexandrian sword which ignores the knotty problems of human nature and natural law by slicing it all to pieces, but the sword of the Spirit which guides us through their difficult and challenging sinuosities.

Natural Law's but a Short Step to God

IN OUR LAST POSTING we discussed knowing the natural law. Before we know that law, does it exist? The answer is yes. It exists in things. Behind that, it exists in God.

[B]efore natural law exists in our mind as a proposition it exists in things. . . . [The nature of the things we perceive] we express . . . rationally, and we have the first component of the definition of law: it is a work of the reason. But notice that it is a reason measured by things [whether life, a mother protecting her baby, an untrue word, or a promise, or whatever], which bows before things: that is what we mean when say that those things are right by nature. The natural law exists in nature before it exists in our judgment, and it enjoys the latter existence--that is what natural law means!--by reason of what the nature of things is. . . . It exists ontologically before it exists rationally in our minds; it is embodied in things before it is thought out, thought through, understood, intelligently grasped. Plainly it is because natural law is first embodied in things that we declare such and such an action to be right, and such and such an action to be wrong, under circumstances which may have to be defined with great attention and particularity.

Simon, 137.

This is the predicate discussion to Simon's re-exploration of obligation, as he sees obligation as intimately tied to the notion of rational order in nature. Obligation cannot stop at things, at the non-rational, at the ontological. Obligation, if it exists, would have to be rational, and thus it requires a reason behind the ontological, and ultimately, that requires one who is ordering all things to their end, namely God.

Historically, the natural law was related or linked to a Theistic world view. God was seen as the author of both physical creation and rational creation, the physical nature and the rational or moral nature. God as a rational Creator was the "backing," the "standard," in the words of Simon, the "ultimate guarantee," which gave stability to the laws of nature, and by analogy, to the laws of the moral order. Thus all order resided in the rational, most fundamentally, in the Logos, the Reason or Word of God.

The discovery of natural law is typically found in three stages beginning with the created order. First, the natural law presents itself to our minds as an explanation or proposition for the order we witness and as being part of the "nature" of things, whatever those things might be. The second stage is the recognition that by saying that something exists "by nature," there is implied that, before apprehended by the intellect, the natural law exists in things. The natural law in things precedes our thought about the natural law, or else we would not have found it therein. We draw it out of things, as it were, out of things where we find it (even intangibles such as promises), and where it has been placed by someone else. Thus we are led to the third stage. What is it that is behind nature that leads our mind to discover that law and that is in that nature independent of our minds? We thus are led to the threshold of the discovery of the "author of nature," the "legislator of nature," the "nature" that has the laws that we discovered first with our minds, and later determined to be in these things.

And thus the law which, in the order of discovery, exists first as a proposition in our minds, secondly as a way of being, thirdly and ultimately exists in the divine mind, where it takes on the name of divine [read: eternal] law.

Simon, 139. So the rational, bows to the ontological, and the ontological bows to Reason, that is to say, God. Our reason is therefore not ultimately subservient to things, but to the God behind the things. "To know" comes from the "to be" and the "to act" of things, and all three lead to that being in which "to act," "to know," and "to be" are identical, and this is God whom we are then obliged "to adore." That's where the non serviam of those who reject the natural law ultimately stems from.

Christ the Pantokrator, El Shaddai, the Ruler of All

So it is that we confront what in practice is the real objection against natural law. The natural law implies the existence of God and all the moral responsibilities, the answerability, and in extremis, the final judgment and the possibility of punishment following. We learn that our freedom is not without responsibility, and we are responsible, answerable to another for its use or abuse. It may also demand metanoia, repentance. (The part we often forget is that it also means the opportunity for mercy and grace and reconciliation.)

There are a hundred reasons for opposition to natural law, but this is one of them and at certain times it may be the strongest: obligation in natural law does not hold unless the natural law exists in a state which is actually prior, but which is ultimate in the order of discovery--"this law is an aspect of God."

Simon, 139. In fact, it takes us to the threshold of a proof of God's existence.

The fifth way is taken from the governance of the world. We see that things which lack intelligence, such as natural bodies, act for an end, and this is evident from their acting always, or nearly always, in the same way, so as to obtain the best result. Hence it is plain that not fortuitously, but designedly, do they achieve their end. Now whatever lacks intelligence cannot move towards an end, unless it be directed by some being endowed with knowledge and intelligence; as the arrow is shot to its mark by the archer. Therefore some intelligent being exists by whom all natural things are directed to their end; and this being we call God.

Quinta via sumitur ex gubernatione rerum. Videmus enim quod aliqua quae cognitione carent, scilicet corpora naturalia, operantur propter finem, quod apparet ex hoc quod semper aut frequentius eodem modo operantur, ut consequantur id quod est optimum; unde patet quod non a casu, sed ex intentione perveniunt ad finem. Ea autem quae non habent cognitionem, non tendunt in finem nisi directa ab aliquo cognoscente et intelligente, sicut sagitta a sagittante. Ergo est aliquid intelligens, a quo omnes res naturales ordinantur ad finem, et hoc dicimus Deum.

S.T., Ia, q. 2 a. 3 co.

There is thus a relationship between obligation and order, between obligation to law and God's Providence:

Here we see about how reasoning about finality in nature and reasoning about obligation ultimately converge. The ways are slightly different, but the logical structure and the end are the same. The facts of order in the universe and the facts of obligation under natural law, i.e., that our reason bows before things, both require rationally a transcendent First Being in whom "to be" and "to act" and "to think" are one and the same.

Simon, 145.

Something More Than Pure Reason

HOW IS THE NATURAL LAW KNOWN? This question Yves Simon questions "formidable," and perhaps it is. It is certainly formidable, in fact impossible to answer, if scientific knowledge is the only kind of knowledge that is demanded. The knowledge of the natural law and its content is scientifically unknowable. For one, there is no experiment that could be envisioned to prove whether a proposition is part of the corpus of the natural law or not. Moreover, if we were to engage in a rigorously scientific social study across peoples and cultures to try to establish content of the natural law (if that were even possible), presumably on the basis of a majority or perhaps supermajority view, it's foreseeable without even taking such a study that we would confront disappointment. But which advocate of natural law ever suggested that the the natural law is to be learned through materialistic means, or that a majority opinion among men is equivalent to natural law? To the questions of natural law, like many deeper human questions questions (Does God exist? What is man's end? and so forth), science and "social statics" yield no answer. Natural law is not an empirical matter. It is not a matter of statistics. It is a matter of deep thought.

That the natural law is a matter of deep thought does not mean it is a matter of pure reason. In striving to know the natural law, we are not called to practice a discipline of pure reason, abstracted from all human inclination. Man does not become moral by physical disembowelment. There are natural inclinations that are part of the recipe of man, and that inform him of right and wrong. Natural inclinations are a form of knowing right and wrong. The natural inclinations ought not be ignored.

Thus, Yves Simon talks about the two "modes" or two "ways" of determining judgments of right and wrong, the "way of cognition" and the "way of inclination." Cognition is knowledge that is obtained "by antecedent cognitions up to axioms or experience." In other words, with respect to a certain proposition or judgment (say, doing "x" is wrong), knowledge of whether that proposition or judgment is true is gained by working "backwards" from that proposition or judgment until one reaches, through a certain chain of reasoning, back to an axiom or an irrefutable datum of experience. Once the entire chain of reasoning or cognition backwards to an axiom or a datum of experience is obtained and anchored back to an axiom or to an irrefutable datum of experience, we have what we could call rational knowledge. This is the "way of cognition." Outside of this pure chain of intellectual title (a work which Simon states in some cases may take "centuries"), as it were, we work within the realm of probable and not certain propositions and opinions. Simon, 127-28.

The "way of cognition" is not the only form of knowledge of right and wrong. Where the "way of cognition" is available, it takes a certain precedence and serves as a sort of load star. Yet, in a wide variety of matters and circumstances the "way of cognition" is not available to us. In such circumstances, the "way of inclination" is an alternative means of forming judgment on the veracity of certain propositions of what is right or wrong. However, not every human inclination is to be followed willy nilly. Only sound human inclinations are worthy guides. There are unsound or disordered inclinations which ought not to be followed at all, but shunned as unreliable guides. To follow unsound or disordered inclinations is like the blind following the blind. In post-lapsarian man, in man after the Fall, not all inclinations are planted in human nature by God.

Every plant which my heavenly Father hath not planted, shall be rooted up. Let them alone: they are blind, and leaders of the blind. And if the blind lead the blind, both will fall into the pit.

Matt. 15:13-14.

The Blind Leading the Blind by Pieter Breugel the Elder

In the way of inclination, one walks outside or parallel to (and certainly never contrary to) the way of cognition. "One way is not necessarily exclusive of the other." Simon, 130. Sometimes judgments or propositions are known by cognition and inclination ("cheating on a contract is wrong"). Simon, 135. Yet the "way of inclination" is antecedent to the "way of cognition." Simon, 135. Decisions based upon the "way of inclination" are largely intuitive, based upon "moral sign" and "moral symbol," in the extreme we are in the area of the mantic, of divination, and so may be difficult to explain and to justify. Simon, 128, 132. There is a certain groping in the dark, perhaps, in the "way of inclination," and so we ought to be open to the guidance of the prudent, the wise, the sage.

(Indeed, as Christians, we have a yet more reliable guide regardless of whether we act in the "way of cognition" or the "way of inclination": the Magisterium of the Church, which, guided by the Holy Spirit of God ceded her by the Son of God, is a competent, reliable, even infallible guide of right and wrong. We ought to be inclined to follow the Church in matters moral without--certainly external, but also internal--dissent, even in those matters that do not clearly involve infallible teachings. Sound inclination on the part of Christians would require religious submission of will and mind (obsequium religiosum) to the Church's guidance even where not clearly infallible. In the case of infallibly-taught teachings, whether ordinarily or extraordinarily expressed, more than religious submission is required: they are to be accepted de fide, as moral dogma.)

The rejection of inclinations, and reliance on reason alone, dehumanizes us. That is what makes Kant so unattractive. Similarly, it is what makes Bertrand Russell such an unattractive guide in the area of marriage and sexual mores, for example. (Bertrand Russell had the temerity to write a book Marriage and Morals, when his own multiple marriages were failures, and his affairs and infidelities notorious. He was a cad, a very clever cad, perhaps, but a cad. Only a fool would take him as a guide of marital life and its morals.) These men, and those of their ilk, disemboweled of all inclination, seem to relish in a way of cognition alone, as if the natural inclinations, prejudices, repugnance of men even when sound ought to be ignored as if they were voices of sirens.

Indeed, sound inclinations are not the voices of sirens.

They are the voice of God.

They are part of the way of the natural law.

Tripartedness of Man's Nature and His Law

IT WOULD SEEM VIRTUALLY INARGUABLE that there is a natural law. It is implied by every positive law, by the fact that we argue over such positive laws' justice, whether they ought to be passed or amended, or even whether and when they ought to be obeyed. It is really only stubborn unwillingness to face the consequent of the natural law (that we may be answerable to something other than ourselves, God perhaps) that makes some men stubbornly refuse to acknowledge the natural law's existence. The consequent that some find unattractive is that man is limited, is constrained by his very nature. He cannot do as he like without fault. But that he may be limited by nature is not a limitation on his freedom. For man can like what he ought not like; he can like things that contradict his very nature. He is a creature who, as a result of his free will, can defeat his own nature, his own purpose, assault his very nature and so is open to self-injure or self slaughter. Man does not like to hear "no," even though the "no" is what keeps him in the "yes," sort of like the curbs or side rails keep one on the road. Some people, I am not quite sure why (the mystery of iniquity), like to ride off-road, and invariably end up in a ditch or worse.

"[N]othing would be right by [positive] enactment if some things were not right by nature." Simon, 118. In his treatment of the natural law, Simon explores a bit further the meanings of the word "right," ius. Like the word "law," lex, it is a word with rich implications and equivocal though related uses (i.e., analogical). The principle meaning of right or ius (or jus) is "that which is right, the thing that is right, the objective right," what Aristotle would call τὸ δίκαιον, or Cicero would refer to as justum. This is tautological, but fundamental.

Another meaning of "right" is more directly related to law. "That which is right is always such, in some way or other by reason of a law." There is a sort of confusion caused by this link between law and right, because the law by reason of which what is objectively right is also called ius or jus in Latin. That use of the word is carried over in most European languages, so we have the word Recht in German, droit in French, diritto in Italian, derecho in Spanish. The word plays therefore a dual role. In English, on the other hand, that concept is carried by the word "law," and so English is particular in parting the first meaning of ius (the right) with the second meaning of ius (the law underlying the right), and it putting the second meaning under the auspices of the word law. What all this means is that the English word "law," instead of the word "right" carries a dual role that it does not have in the other mentioned languages.

This famous particularity of the English language has probably exercised considerable influence on the Anglo-Saxon way of thinking about juridical (or legal matters. What is called the study of jus, Recht, droit, diritto, derecho, is not called the study of right in English, but the study of law. A whole library could be filled with controversies as to whether it is felicitous or not that one and the same word, "law," should be used to express the two ideas which are expressed in Latin by ius and lex, in German Recht and Gesetz, in French by droit and loi, in Italian by diritto and legge, in Spanish by derecho and ley.

Simon, 119.

The third meaning of ius, Recht, droit, diritto, derecho, in English "right," is "the legally recognized and sanctioned claim or faculty to do this or not do do that." This is a post-law notion of "right," which translates to being a "claim or a faculty" which is resident "in a person, or in a community, to whom something is due," and so may be "described as a good, as a service, or as a freedom to do or not to do." Simon, 120. This use of the word "right," which arises subsequent to law is entirely distinct from the other uses of the word "right." The use of the word "right" in this sense, not as the thing which is right, nor as that which is objectively right, but as that which a person can claim as due to him or her by reason of contract, or of positive law, or by custom, or even by nature is of relatively recent origin. Whether it was felicitous that the same word "right" was selected to describe something distinct is really beside the point, since by this day and age this use of the word "right" as claim due to one is too entrenched to change. We must suffer it, and the difficulties in thinking and communication is poses.

Going back to the first use of the term "right" as "that which is right," Simon insists that there are things that are right by nature. "The right by nature . . . would be that which is right by reason of what the things are. In other words, if some things are right by nature, that implies that a law exists in the nature of things." Simon, 120. And here Simon confronts the big division between the physical and moral worlds, both of which would appear to carry the same implication: that there are some things that are right by nature, and so imply that there is a law in the nature of things physical and things moral. So Simon considers "first the unity and then the contrast in the expressions "natural law" and "law of nature," the first by convention used to speak of the moral world, the latter by convention used to speak of the physical world.

Admittedly, there has not been absolute consistency in the use of these terms as referring to the physical world or the moral world. Often enough, the word "law of nature" is used in moral contexts, and the words "natural law" are used in physical contexts. And these are not two absolutely distinct worlds anyhow. There is substantial overlap between the physical and moral worlds, at least in man, and so we simply have to deal with the vagaries in human language. One, however, must recognize that, in man, there is a large area where the "law of nature" in terms of physical law overlaps with the "natural law" in terms of moral law, and it is a false dualism to propose that the physical nature of man has no meaning to his moral nature. It is a false division that was introduced largely by Kant. What Descartes did in dividing the world of matter from the world of soul, Kant did in dividing the physical world from the moral (and intellectual) world. The idealistic philosophies such as that of Kant, "sharpen the contrast between the universe of nature and the universe of morality." Simon, 121. And improperly so.

The Two Worlds in Which Man Moves

Eppur si muove, Signor Kant. The contrast between physical and moral worlds, as Simon notes, "is not so complete" as Kant would have it and would parcel it. Simon, 121.

[M]an, after all, also has a nature; man resembles other things inasmuch as he also has a nature. There is an interior, an immanent law of operation which connects the universe of mankind with the universe of physical nature. Indeed, laws of the physical kind extend to a number of aspects of man. . . . [and being] antecedent to free choice . . . these things . . . belong to the universe of nature. . . . What is particular about the natural law of man, of the moral world, is that essentially it operates through free choice. It exists as a rule inherent indeed in the nature of things bu which does not direct operation in determinate fashion. It governs behavior through judgment and through free choice.

Simon, 122. So man straddles two worlds: the physical and moral world, and, though they may be distinguished, they are, in reality, not entirely separate. There is a physical part. There is a moral part. There is a part that is both physical and moral. The physical informs the moral. The moral informs the physical. Man is one, not two, though there are two aspects to his unity.

Because of man's unique or particular nature, the natural law as it pertains to him may be divided into three divisions according to Simon. The first two divisions of natural law relate principally, but not entirely, to the physical world. Whereas the third division relates principally, but again not entirely, to the moral world.

The first division stems from the fact that "there are in man tendencies which he has in common with all things, above all, the tendency to keep existing." Simon, 123. Simon here invokes the words of Baruch Spinoza: "Every being strives to persevere in being." [Ethics, III, 6] (Conatus, quo unaquaeque res in suo esse perseverare conatur).

The second division relates to "inclinations that man has in common with animals."

Here man communes in a sense with all living nature, but more particularly with the animal nature, since both in man and in many animal species there is some infrarational control of these inclinations. Included in this division are the matters of sex in general, the association of male and female, the care of offspring.

The third division relates to "the inclinations proper to rational beings." It is perhaps the richest, and includes a panoply of human institutions and inclinations: the requirements of life in society, the desire to search and know the truth, to worship God, to express oneself, the problem of obedience, of government, etc.

The Three-Fold Division of Natural Law in Man

This three-fold division in man results in an all-encompassing view of the natural law:

Thus everything that is right by nature [in man] is right either because the universal nature of being is such, or because the universal nature of animal is such, or because the rational nature is such. This threefold classification insures the community between the natural law of the moral world and the natural law of the physical world, no matter how sharply these laws may be contrasted in some respects. After all, man is part of this universe; after all, man has a nature.

Simon, 124.

The theory of natural law is decidedly not Kantian. In practice, Kant placed a huge divide in physico-moral man, a huge intellectual cut between his physical and animal natures and his rational nature. "[T]he most constant tendency of Kant and the Kantian tradition is to strengthen, bring forth, overdo, render overwhelming, if not theoretically exclusive, the contrast between the universe of nature and the universe of morality." Simon, 124-25. The advocate of natural law is absolutely open to the three-in-oneness, the tripartedness yet essential unity of man.

The natural law of the moral world is immanent in a person by reason of his being a being, by reason of his being an animal, and by reason of his being a rational agent with inclinations, tendencies, aspirations which cannot be arbitrarily chosen. Concerning human behavior . . . it is by judgment and by choice that we act either according to or at variance with the inclinations of being the inclinations of the animal nature, and the inclinations of the rational nature.

Simon, 125.

From Law to Law: De Legis ad Lege

THE WORD "LAW" DOES NOT CUT LIKE A KNIFE, and does not handle lightly, precisely. It is a blunt, broad, heavy word with a significant depth and breadth of meaning, and it is easy to get lost in a thicket if we forget that the word "law" has rich analogical meaning and varied conventional use. The context where the term is used (at least in English) is truly daunting: a "law" of physics (say, a "law" of thermodynamics or the "law" of gravity), to mathematics (one may mention the commutative, distributive, associative "laws"), to economics (e.g., the "law" of supply and demand), to the laws of human communities (the "law of the land"), to authority ("Stop! In the name of the Law!"), to moral behavior (the natural "law"), to religious, revealed law (the "Law" of Moses, the "Law" of Grace). We even attribute laws to bad luck: Murphy's "law." Except for perhaps its use with respect to Murphy (where the use of "law" is metaphorical), the uses of the word "law" in these various instances are clearly are certainly not used univocally, but neither are they used entirely equivocally. Their relationship is analogical. "The analogy involved is that of proper proportionality, it is not a metaphorical analogy, and it is not analogy of attribution." Simon, 110. [For discussion on analogy, see The Analogy of Law: From Law to Law.] Thus, we have the situation where there is a proportion of a proportion. In mathematical relationships, the proportionality analogy may be depicted thus:

The proportionality analogy may be applied mutatis mutandis to conceptual relationships, so that there may be an analogy of proportionality between human law and human society and the natural law and mankind, or even the eternal law and the cosmos.

The analogy of proportion may be extended even further, so that the relationship between the various elements of positive law that we have studied, say the requirement that the law be a rule of reason, or for the common good, or supported by sanctions, or promulgated by the one that has responsibility for the community have analogical relationships with the natural law. As a result, we may say that the natural law is also a rule of reason, for the common good of mankind, supported by sanctions, and promulgated by the one who is responsible for mankind. For example, the relationship between a human legislator and the positive law may, by analogy of proportionality, be extended to explain the relationship between God and the natural law.

Having defined the positive law and identified its various components, and aware of the analogical use of the term law, we may then ask ourselves "whether the understanding of the positive law leads rationally to an antecedent, to a more profound or universal law, which we might call the 'law of nature'." Simon, 111. In answering this question, Simon asks three further questions. First, what is it that is meant when one asks whether a human positive law is just or unjust? Second, on what grounds is it that we conclude that a positive law ought to be changed? Third, why should positive human law be obeyed? Through the use of these three questions, Simon concludes that there is a law underlying human positive law so that "nothing would be right by [human] enactment if some things were not right by nature." Simon, 118. In short, human law presupposes a natural law, or human law makes no sense.

On the question of whether a human law may be just or unjust, men are almost unanimous that human laws can be just and that human laws can be unjust. In the extremes we may find doubters, so that anarchists would believe any human law is, by definition, unjust. At the other extreme, we may find inveterate positivists that would maintain that it is meaningless to mix terms like "justice," which is a term of value, with a term like "law," which is a term of fact.

But the extremists are not consistent with their ideologies, however sincere they may hold them. One wonders, for example, if Anarchist groups do not have organizational rules to handle their operations and governance. And they would be the first to invoke the laws protecting free speech if governments made efforts to squelch them. And even the most stubborn positivist, unless he were a Nazi supporter and blinded by its ideology, would admit that the laws against non-Aryans in Nazi Germany would be unjust. "The problem of injustice certainly exists with regard to every positive law." Simon, 113. Indeed, the question as to one law (and its justice or injustice) may be framed so as to encompass an entire political system. As a matter of unanimous practice, men discuss the justice of laws and of political systems, a practice which implies a notion of an extra-legal or extra-political standard. By further implication, this extra-legal or extra-political standard suggests an end or a purpose of law or of political systems.

The second question--when and on what grounds ought a positive law be changed?--in one way is already answered by the first question. A law ought to be changed on the grounds that it is just to change it, or at least not unjust to change it. (In fact, the question is asked when the law is passed in the first place.) This clearly suggests, again, and extra-legal standard, a natural law underlying all positive law. The difficulty of discovering its particulars does not justify refusing to acknowledge its existence.

This brings us to the last question. Why should human law be obeyed? "If there is no idea of an antecedent law," Simon observes, "the reason why positive law should be obeyed is entirely contained in the constraint possessed by civil society." Simon, 116. In other words, law would have no claim on the conscience, but would be obeyed only to avoid the sanctions that the state could impose upon us. Obedience to law would based upon reasons entirely pragmatic. In other words, the motive for obedience to law would be reduced "completely and in all cases, to a desire to avoid the trouble which would follow if the law was disobeyed." This may be often a motive. But can it be the only motive all the time? Is this sufficient grounds for justifying obedience in all cases? Simon thinks not. Most fundamentally, if one were to accept the argument that obedience to human law is in all cases justified by avoidance of sanction or inconvenience, then we are really voiding men from any obligation toward the positive law, and instead basing the relationship between positive law and men "in sheer power." Simon, 116. With respect to this, Simon observes:

There is an almost universal reluctance to interpret the obligation to obey positive law in terms which annihilate it and replace it by a system of physical constraints where there is no choice, no freedom, and no morality. The obligation to obey positive law obviously requires a different interpretation and this must be derived from the definition of positive law.

And that definition of positive law includes references to an extra-legal standard. In this case, the legal standards are in the definition: reason, for the common good, etc. Others may be further implied. What it suggests, even if simply by inclination, is that there is an extra-legal justification, one other than sheer power, that would make human law something that ought, if just, if ordered to the common good and predicated upon reason, to be obeyed, even if it results in inconvenience to ourselves.

So Simon concludes:

To sum up. No one could maintain with any appearance of consistency that it makes no sense to ask whether a law is just or unjust. And if we confess that the question makes sense, we also confess that there is a justice anterior to human enactment, that prior to their being just by reason of enactment some things are just by nature. These considerations also explain why a law happens to be changed. Finally, to say law should be obeyed exclusively because of the trouble which somewhat regularly follows upon the breaking of law is dialectically impossible. Men have never reasoned that way. When a society is in such a condition that its laws are obeyed only insofar as there is real danger of being caught and punished, it has already disintegrated and even the fear of punishment cannot do much to hold it together.

Simon, 117-18.

On the last observation by Yves Simon, we may wonder if we have not already reached the point of social disintegration.