Natural Law's Modern Cousin Germain: To Know is Good

THE TERM "BASIC VALUE" IS A FUNDAMENTAL term in the Finnisian construct of natural law. For Finnis, basic values are: (i) self-evident and unquestionable without lapsing into unreason; (ii) pre-moral; and (iii) the basis of all moral judgments. In his book Natural Law and Natural Rights, Finnis begins his sally into this concept by choosing one such basic value--knowledge--from the larger set of basic values he identifies later on in his work: life, knowledge, play, aesthetic experience, sociability (friendship), practical reasonableness, and "religion" (scare quotes are Finnis's).

The "knowledge" that Finnis has in mind as basic good is speculative knowledge, that is "knowledge as sought for its own sake from knowledge as sought only instrumentally," knowledge that "is of truth," and not because it is useful. NLNR, 59. It is that thirst for knowledge that arises "out of curiosity, the pure desire to know, to find out the truth about [something] simply out of an interest in or concern for truth and a desire to avoid ignorance or error as such." NLNR, 60. It is, in fact, the knowledge that is spurred by what Aristotle identifies as wonder, θαυμάζω (thaumazō).*

Knowledge is the satisfaction of the "inclination or felt want that we have when, just for the sake of knowing, we want to find out about something." NLNR, 60. Knowledge justifies its own self, as it is not an instrumental good. It is simply good to gain knowledge. Good simpliciter. It is simply bad not to have it and remain in ignorance of the truth. While some knowledge may be more worth knowing than other knowledge (whether the philosophy of natural law is true is more important that the sexual habits of a snail darter), and while some value knowledge differently than others (the PhD will view things differently from the man waiting for food in the soup kitchen line), and while the pursuit of knowledge may sometimes have to be put off (man does not live by knowledge alone), and while it cannot be "pursued by everybody, at all times, in all circumstances," and while it is not "the only general form of good, or [even] the supreme form of good," it remains undeniably true:

[T]o say that knowledge is a value** is simply to say that reference to the pursuit of knowledge makes intelligible (though not necessarily reasonable-all-things-considered) any particular instance of the human activity [of seeking knowledge] and commitment involved in such pursuit.

NLNR, 62. Ultimately, we can say that "knowledge" is a basic value or good, which is the same thing as saying it is an aspect of human flourishing, because the opposite is insupportable rationally. Who can intelligibly support the general statement that knowledge is evil?*** Who can say we are better off, generally speaking, being ignorant? It is a basic good because it satisfies itself; it pulls itself up by its own bootstraps, as it were. "To avoid it [the self-evident nature of the proposition that knowledge is good and that knowledge ought to be pursued], I have to be arbitrary." NLNR, 72. By definition, being arbitrary is being unreasonable. When we justify a particular act (say reading a biography on Cardinal Newman, or going to college and taking a course on African Studies, or googling the term "synapses") by saying that we want simply to know, the statement is intelligible and final. Generally, nobody can answer, at least not unless other circumstances warrant, "That's unreasonable!" The self-evident good of knowledge is a final answer, a legitimate end, a stopping point, a one-need-not-go-any-further to the question why are you doing the act? Knowledge is therefore a bonum honestum as distinguished from a bonum utile or a bonum delectabile, a for-its-own-sake good, as distinguished from a merely useful good or merely pleasurable one.

Is it not the case that knowledge is really a good, an aspect of authentic human flourishing, and that the principle which expresses its value formulates a real (intelligent) reason for action? It seems clear that such is indeed the case, and there are not sufficient reasons for doubting it to be so. The good of basic knowledge is self-evident, obvious. It cannot be demonstrated, but equally it needs no demonstration.

Finnis, 64-65. One must not confuse the question of whether knowledge is a basic good with different questions, such as what are the physical, biological, or psychological aspects (the causes, pre-conditions, and/or concomitants) of that question. Whether knowledge is a basic good or value is not determined by whether the quest for knowledge is spurred by some psychological need, or stymied by some physical handicap, or part of some biological protective mechanism. Even more so, one ought to confuse the question of whether knowledge is a basic good with the question of whether one has any feelings of certitude with respect to that proposition. These are different questions. "The soundness of an answer to a particular question is never established or disconfirmed by the answer to [an] entirely different question."† NLNR, 65.

To say knowledge is not a good
is like saying this is not a picture of a pipe

The basic value or good of knowledge is not founded on "fact," but on self-evidency, which is not to say that it does not have its "factual" components and support. (That something may be self-evident does not mean that it has no factual reality. By being self-evident it does not become a non-fact and anti-fact.) But the value or good of knowledge ought not to be predicated upon such facts, for that would be a lapse into "is" which does not support an "ought."†† So even such observations of fact that "all men desire to know" or that "the human is wired to know" or that man has a "psychological need to know" or "the most exemplary men desired to know" are not the bases for the basic value of knowledge, though they may be a reflection of it as a basic value. Such facts are evidentiary of the basic value, but are not the source of its foundation.

Since knowledge is a basic value or basic good, it follows that it can be the basis for a practical principle: since knowledge is a basic good, knowledge is something good to have, and that good ought to be pursued and ignorance avoided. There is therefore a translation of the self-evident principle "knowledge is a basic good" to the self-evident principle "knowledge, as a basic good, ought to be pursued." Basic practical principles are not rules, but rather provide a form of orientation to one's practical reasoning which can be "instantiated (rather than applied [as rules]) in indefinitely man, more specific, practical principles and premisses."††† NLNR, 63.

"The principle that truth is worth knowing and that ignorance is to be avoided is not itself a moral principle." It is a pre-moral principle, one that is foundational to the making of moral judgments.

In closing his chapter on knowledge as a basic good, Finnis shows how knowledge is unique relative to the other basic goods in that one can show that denying its self-evidency is self-defeating. Any argument that knowledge is not self-evidently good is bound to fail, is self-contradictory, and ends in an intellectual cul-de-sac, a sack's end.

In addressing this issue, Finnis identifies three kinds of propositions: (1) intrinsically self-defeating propositions; (2) pragmatic self-defeating propositions; and (3) operationally self-refuting propositions.

Intrinsically self-defeating propositions are internally inconsistent because they contain their own contradiction. The examples given by Finnis are: "I know that I know nothing." "It can be proved that nothing can be proved." "All propositions are false." These are like saying A = not A.

Pragmatically self-defeating statement

Those propositions that are pragmatically self-defeating which are defeated by the circumstances in which they are stated. Finnis gives the example of a person singing "I am not singing" as such a proposition. The statement could be true if, for example, it is said or if it is written. He also calls it a "performative inconsistency," which he defines as an "inconsistency between what is asserted by a statement of facts that are given in and by the making of the statement." An example of this may be René Magritte's La trahison des images (The Treason of Images), with its famous depiction of a pipe with the statement "Ceci n'est pas une pipe" ("This is not a pipe"). Or perhaps even more accurately, the statement "Nothing is written in stone" inscribed on stone.

The final group of propositions, operationally self-defeating propositions, are not logically incoherent, but are "inevitably falsified by an assertion of them." NLNR, 74. They are a form of performative inconsistent statements (see above) but but are inconsistent with the fact arising from their very assertion (and not from a fact extrinsic to them). Examples of these are: "I do not exist," which is immediately falsified in its mere assertion. As another example, Finnis gives the proposition: "No one can put words (or other symbols) together to form a sentence."

Operationally self-refuting propositions have a quite definite reference and so can be (and inevitably are) false. They have a type of performative inconsistency; that is, they are inconsistent with the facts that are given in and by any assertion of them. An operationally self-refuting proposition cannot be coherently asserted, for it contradicts either the proposition that someone is asserting it or some proposition entialed by the proposition taht someone is asserting it.

NLNR, 74.

To state that knowledge is not a good is operationally self-defeating. If one asserts "knowledge is not good," then presumably one believes that the knowledge that "knowledge is not good" is good to know. So how can knowledge be both not good to know and yet good to know? Thus the skeptic to the proposition "knowledge is good" finds himself in an operationally self-defeating situation. Unless one relishes in living a life of absurdity, which itself is unreasonable, self-defeating positions ought to be abandoned.

In summary, Finnis states that the proposition that knowledge is a basic good and ought to be pursued is self-evident. Its contrary, that knowledge is not a basic good and ought not to be pursued is operationally self-defeating. The self-evident nature of the proposition that knowledge is good and ought to be pursued, then, has the tags or indicia of objective truth. It is pre-moral in the sense that it is a "given" that exists before the moral decision which must use practical reason to make moral decisions regarding the entire ensemble of basic goods, including, but not limited to knowledge.

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*Aristotle, Metaphysics, 982a.
**Finnis uses the term "good" in both a particular sense (as a reference to "some particular objective or goal" a "particular object of a particular person's desire,choice, or action") as wells as in its broad general sense (good in general). He reserves the term "value" as the "general form of good that can be participated in or realized in indefinitely many ways on indefinitely many occasions." NLNR, 61. He admittedly strays from St. Thomas: "Aquinas's exposition of his ethics particularly suffers for want of a term reserved for signifying [value as a general form of good, the aspect or description under which particular objects are (or are regarded as) good]." Why the word "value" is needed and good is not sufficient is not really explained.
***Knowledge is not an absolute good without regard to circumstances. It may be inappropriately pursued as, for example, when it contradicts charity or a more important or immediate duty. Thus, a husband who studies his philosophy while his wife is choking on a piece of meat next to him is pursing the good of knowledge in an improper way. There are other forms of knowledge that may not be properly pursued, and thus give rise to the vice of curiositas, NLNR, 76, which is a corruption of knowledge or false knowledge. There is knowledge that may be called Promethean or Faustian or Sadian: the best means of torturing one's captive, for example, or knowledge regarding perverse sexual techniques. Was the Marquis de Sade's knowledge good? See generally Roger Shattuck's Forbidden Knowledge: From Prometheus to Pornography (New York: St. Martin's Press, 1996).
†This principle becomes particularly important with respect to the basic good of life. Whether life is a basic good is an entirely different question than the biological, psychological, and/or physical pre-conditions or concomitants of that question. "Value" is something different from St. Thomas's bonum commune, bonum generale, bonum universale, or even just plain bonum.
††I ask myself the question: does self-evidency take us out of the land of "is" into the land of "ought"? Cannot self-evidency relate to descriptive matters (something cannot both be and not be at the same time and same way seems to be a reality that is descriptive, not prescriptive. "Knowledge is a basic good," seems likewise to be a descriptive, not prescriptive statement. There are, true, some self-evident statements that are "oughts," for example, "good ought to be pursued, and evil avoided." But "knowledge is good" is not such a statement. What Finnis does is to reformulate the self-evident proposition "knowledge is a basic good or value" into another self-evident proposition that "knowledge is a basic good or value that ought to be pursued." The latter formulation is an "ought." (Another way of saying this is that Finnis changes a speculative principle into a practical principle.) Yet what is the difference between translating self-evident descriptive propositions to self-evident prescriptive propositions and a classical natural law proponent translating descriptive propositions (e.g., the sexual organs' functions are ordered to procreation) to prescriptive propositions (the sexual organs ought to be used in conformity with that order)? How does Finnis move from a pre-moral principle (knowledge is good) to a moral principle (knowledge ought to be pursued)? Why is Finnis allowed the translation from is to ought but not the traditionalist? Why is Finnis allowed to argue: "It is equally irrelevant for the sceptic [read Hume] to argue that values cannot be derived from facts. For my contention is that, while awareness of certain 'factual' possibilities is a necessary condition for the reasonable judgment that truth is a value, still that judgment itself is derived from no other judgment whatsoever." NLNR, 73.
†††The word "instantiate" is not a word in common use, but is an important concept. It is the particularization, one "instance," of a larger, general, abstract concept, idea, value, or transcendental such as being, good, beauty. Thus, Michelangelo's "Pietà" at the Basilica of St. Peter at the Vatican City may be said to be an artistic, sculptural instantiation of the maternal sorrow that Mary had for her son Jesus (cf. Luke 2:35), just as Luis de Morales's "Pietà" housed at the Real Academia de Bellas Artes de San Fernando, Madrid, Spain, is an artistic, painted instantiation of the same maternal lament and grief. Similarly, Mike's decision to study philosophy by picking up St. Thomas Aquinas's Summa Theologiae is an instantiation of the practical pursuit of the basic good or value of knowledge. Cindy's decision to study the difference between pinnately compound leaves and palmately compound leaves by picking up and perusing Loudon's An Encyclopedia of Plants is another (different and unique) instantiation of the same practical pursuit of the basic good or value of knowledge. Both Cindy's decision and Mike's decision participate in the same more general practical pursuit of the basic good or value of knowledge. They are therefore both "good" pursuits in their unique, particular ways. This decision to participate in a basic good Finnis calls "commitment." Commitment is "that sort of participation-in-a-value which is never finished and done with (except by abandonment of the commitment) and which takes shape in a potentially inexhaustible variety of particular projects and actions, each with its particularized first premiss of practical reasoning." So both Mike and Cindy are "committed" to the pursuit of the same basic good of knowledge. While they share in same premise: to pursue knowledge and eradicate ignorance is good, and so participate in, and are committed to, the same good, it is reflected in two particular ways--picking up the Summa and picking up Loudon's Encyclopedia--of a "potentially inexhaustible variety of particular projects and actions."

Natural Law's Modern Cousin Germain: Ressourcement and Development

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

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

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

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

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

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

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

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

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

"Terra Nullius" by Lachlan Amore-Lloyd

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

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

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

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

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

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

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

NLNR, 44.

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

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

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

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

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

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

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

Natural Law's Modern Cousin Germain: Hume's on Our Side?

AN ENTIRE SECTION OF CHAPTER 2 of the First Part of John Finnis's Natural Law and Natural Rights is devoted to Hume's "naturalistic fallacy" as the latter stated it in his A Treatise of Human Nature. These famous words, the supposed bane of every natural law jurisprude, are written here in toto:

In every system of morality, which I have hitherto met with, I have always remarked, that the author proceeds for some time in the ordinary way of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surprised to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is, however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, it is necessary that it should be observed and explained; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention would subvert all the vulgar systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceived by reason.

Hume, A Treatise of Human Nature, III.i.1.* This frequently-quoted passage comes at the end of a section, representing a coda, a summarization or reprise, of the prior thought.

What is remarkable is that the passage does not appear to direct itself to nature, even human nature (unless human nature were to be defined as entirely speculative reason) as a source of moral value. In fact, it comes at the end of Hume's argument that speculative reason (as distinguished from practical reason) has nothing to do with morality because speculative reason is concerned with "is" whereas actions are moved largely by passions, sentiments, and desires. It would appear that these faculties (passions, sentiments, and desires) are more similar to, though certainly not identical with, what a natural law philosophy might consider something close inclinations or "intellectual feltness,"** or at least part of the human entelechy of human nature that ought to be considered part of the greater whole of human nature. The section itself is entitled by Hume as follows: "Moral distinctions not derived from reason."***

Hume's point seems to be that the mind has only perceptions, and that these are of two kinds: ideas and impressions. He asks whether either ideas or impressions in the mind are able to distinguish between virtue and vice and to determine good from evil. In answering the question, Hume rejects any notion of "conformity to reason" as being the "measures of right and wrong," for the simple reason that it presupposes the opinion "that morality, like truth, is discerned by ideas, and by their juxtaposition and comparison." In fact, Hume rejects the notion that reason (which the context reveals he understands as "speculative" reason alone) has anything to do with governing passions, unlike morals which may have a role. "Reason of itself is utterly impotent in this particular [to excite passions, or produce or prevent actions]. The rules of morality, therefore, are not conclusions of reason." (Elsewhere, he famously states: "It is not contrary to reason to prefer the destruction of the whole world to the scratching of my finger." II.iii.3.) Moreover, since reason is an inactive faculty, a "perfectly inert" faculty, and passions and action obviously an active matter, it follows logically that reason has nothing to do with morals. "An active principle can never be founded on an inactive." This also follows because, according to Hume, reason relates to truth or falsehood. And "passions, volitions, and actions," unlike speculative truths, "are not susceptible of any such agreement or disagreement" with real relations or with the relations of ideas to existence or to facts. Passions, volitions, and actions are not true or false, which is what reason is preoccupied with. "Actions may be laudable or blameable; but they cannot be reasonable. Laudable or blameable, therefore, are not the same with reasonable or unreasonable." Indeed, "upon the whole, it is impossible, that the distinction betwixt moral good and evil, can be made to reason." The source of the laud or the blame must be elsewhere other than speculative reason.

Even though this Humean paragraph palpably deals with speculative reason as a source of morality, the opponents of the natural law have recruited the paragraph to accuse advocates of the natural moral law who rely on a broader nature (which in the case of man includes his particularly rational nature, and understands reason more broadly to include both speculative components--which aim for truth--and more importantly for morality practical components--which aim for good--and which include inclinations) of the "naturalistic fallacy." It does not seem fair to be flogged with a whip that was designed for someone else. But all's fair in love, war, philosophy, and especially ideology.

Nevertheless, as Finnis points out, the final paragraph of this section does establish what seems to be abstractly a valid enough, and hardly revolutionary, principle:

Hume [announces] the logical truth, widely emphasized since the later part of the nineteenth century, that no set of non-moral (or, more generally, non-evaluative) premisses can entail a moral (or evaluative) conclusion.

NLNR, 37.

Samuel Clarke, Hume's Real Target

As Finnis also notes, this passage, though it asserts a principle that is logically true, may be less an attack on advocates of classical natural law than an attack on eighteenth-century rationalists, in particular, Samuel Clarke (1675-1729). And indeed, it may in fact be an attack on those who neglect nature and its sound inclination (which may be part of what Hume calls the trilogy of "passions, volitions, and actions").*** It is, at least within its historical context, an attack on moral rationalism alone, a rationalism that does not give weight to natural inclinations, and tries to built a theory of morality based upon speculative reason alone, neglecting human nature's more extensive qualities of practical reason, sound inclinations, and natural teleologies. According to Hume, speculative reason alone cannot distinguish between an acorn growing from a sapling into a large oak and killing its parent and parricide. Speculative reason alone cannot distinguish between the coupling between dogs in a litter and incest between a brother and sister. The "relations" between oak and acorn, child and father, between the male and female of a litter, brother and sister are the same. Yet, as Hume himself recognizes, the moral circumstances between these relations are palpably different, the similar relation withal. Sound inclination in both cases finds parricide and incest among humans morally intolerable.

Now whether it is true or not that Hume's suggestion that speculative reason alone cannot establish the enormity of parricide or incest is besides the point. The point is that he was not taking aim at classical natural law theories, but was taking aim at hyper-rationalistic theories, corruption of the classical theories, like those developed by the Anglican divines Ralph Cudworth (1617-1688), Samuel Clarke (1675-1729), and Joseph Butler (1692-1752) who, enamored with Newtonian physics, sought to have mathematically precise moral theories based upon reason alone, and theories, moreover, that ignored nature and its inclinations.† These were Protestant Christian versions of morals ad more geometrico.

In fact, it appears that Hume's principal target in this section seems to have been Samuel Clarke's work with a rather cumbersome title, A Discourse concerning the Unchangeable Obligations of Natural Religion, and the Truth and Certainty of Christian Revelation (herein Discourse). A comparison of what Clarke taught and Hume's wording in this section make it rather apparent that he was criticizing--not classical natural law--but natural law a la Clarke.

Samuel Clarke, an Anglican cleric (he was rector of St. James Westminster from his appointment in 1705 to his death in 1729), was influenced by Descartes, with whom he had a sort of love-hate relationship. Clarke appeared to have accepted a Cartesian distrust of senses as the source of ultimate knowledge. He seems also to have accepted a Cartesian dualism between body and soul: mind is mind, matter is matter, and never the twain shall meet but by a form of fortuitous occasionalism. But if his relationship with Descartes was mixed, his relationship with Newton was quite a relationship of love and devotion. Clarke was an unflagging advocate of Newton, and a great supporter of Newton's physical and mathematical thought. He was perhaps best known for his correspondence with Leibniz on the matter of Locke, Newton, and English philosophy in general.

Clarke's thoughts on moral philosophy are concentrated in the second of his Boyle Lectures (delivered in 1705) which were later published as the Discourse. The Discourse is organized around a set of fifteen propositions. As Clarke summarized his ethical work, he "endeavoured to deduce the original obligations of morality, from the necessary and eternal reason and proportions of things." NLNR, 38-39. It is important to point out that Clarke did not look and man's nature as a source of "original obligations of morality," but looked at something that he called the "eternal different relations, that different things bear to one another." It is the relations of things, and in particular the fitness of things which was the source of moral obligation. Therefor it was the fitness of things that for Clarke was the source of moral law. It was a curious, rather vague theory, not particularly a classical natural law theory at all. There is nothing in Clarke's theory of practical reasoning or of inclinations. His aim was to construct a theory of morals that was exact, to build something in morals similar to what Newton had effected in mathematics or in physics. And he obviously confused speculative reason and practical reason.

In his quirky ethical theory, Clarke†† starts with the difference of things:

That there are differences of things, and different relations, respects or proportions of some things towards others, is as evidence and undeniable as that one magnitude is greater, equal to, or smaller than another.

This is, as it were, the foundation of Clarke's moral theory. It was the "differences of things" that gave rise to duty, that gave rise to law. The law arose from the "properties and relations," in the "proportions," of those different things. The properties and relations and proportions of things were "of eternal necessity," are part of the "things themselves," and so are "absolutely unalterable." Clarke distinguishes between things natural or mathematical (such as figures, numbers, weights, colors, etc.) and things moral (persons, actions, and circumstances), and his moral theory is concerned with things moral, i.e., persons, actions, and circumstances. Ultimately, however, everything comes down to relations between persons. As James Edward LeRossignol††† summarizes it:

Actions are actions of persons, circumstances are circumstances of persons. therefore things moral are in reality only persons, in their various relations to themselves and other persons.

LeRossignol, 37.

Just as the relations and proportions between things natural or mathematical are "eternal and unchangeable" (e.g., the relationship between the area of a circle and its radius is eternally and unchangeable A = πr² or the law that two parallel lines will never enclose a space because they will never meet), so likewise are the proportions and relations among things moral "eternal and unchangeable." Thus there are proportions and relations between persons, actions, and circumstances that are "eternal and unchangeable."

From this base, Clarke introduces another concept: the "fitness of things." There is a certain "fitness" or "agreement or disagreement" of things moral. That is, with respect to the proportions and relations between persons, actions, and circumstances, there is a certain "fitness" or a certain "agreement or disagreement." As Clarke himself says it:

That from these different relations of different things there necessarily arises an agreement or disagreement of some things with others, or a fitness or unfitness of the application of different things or different relations, is likewise as plain as that there is any such thing as proportion in Geometry and Arithmetic, or uniformity or difformity in comparing together the respective figures of bodies.

This "fitness of things," their "agreement or disagreement," is, for Clarke, the moral law. It predates, precedes any human positive law, and no law or opinion of man can change this inherent "fitness " or "agreement or disagreement" in things moral. As LeRossignol describes Clarke's view:

As no law or opinion of men can change the differences of things, so no human law or opinion can in the least degree alter the fitness of things. As things existed before all positive law, institution, or government, so no law or power, not even of an all-powerful Leviathan, can alter the eternal distinctions of right and wrong. So long as things exist, just so long do the fitnesses of things remain unchangeable, as the law of nature to man and the rule which God himself follows in the government of the world.

LeRossignol, 40. There is both a fitness of ends, arising largely from relations between persons, and a fitness of means, and indirect fitness relating to the relationship that actions have to those ends. In this latter view, he seems to brush up against an incipient utilitarianism.

Clarke states that there is a common consensus or common agreement on the relations and proportions in both mathematical and natural realms and in the moral realm. Clarke insists that "the differences, relations and proportions of things both natural and moral, in which all unprejudiced minds thus naturally agree, are certain, unalterable and real in the things themselves." So there ought to be in the uncorrupted and unprejudiced mind similar assents to moral truths as there are to mathematical or natural truths. Thus what is "fitting," what is "agreeable," and what is therefore morally good, is something that is perceivable by reason.

Now what these eternal and unalterable relations, respects, or proportions of things, with their consequent agreements or disagreements, fitnesses, or unfitnesses, absolutely and necessarily are in themselves, that also they appear to be, to the understanding of all intelligent beings; except those only who understand things to be what they are not, that is, whose understandings are either very imperfect or very much depraved.

There are some obvious lacunae in Clarke's thought, the most apparent being that he "nowhere gives a definition of the words fit and fitness," leaving the central part of his moral philosophy also "the most obscure part of his ethical philosophy." LeRossignol, 45-46.

With this most elementary of introduction into Samuel Clarke's notions of relations and fitness (which are the driving forces of his moral theory), it is apparent at once that Hume is referring to Clarke's moral theory in this section of his Treatise. Hume's invocation of Clarke is unmistakable. "Those who affirm that . . . there are eternal fitnesses and unfitnesses of things" are proposing that "morality, like truth, is discerned merely by ideas . . . ." "But . . . to show, that those eternal immutable fitnesses and unfitnesses of things cannot be defended by sound philosophy . . . ." "If . . . the character of virtuous and vicious . . . must lie in some relations of objects . . . ." "There has been an opinion very industriously propagated by certain philosophers, that morality is susceptible to demonstration . . . . to an equal certain with geometry or algebra. Upon this supposition, vice and virtue must consist in some relations . . . ." Hume's focus on the notions of fitness and relations in the matter of morals in this section of his Treatise is a clear reference to Clarke's presentation of his moral theory in the latter's Discourse.‡

There is then a certain "unfitness of things," if we may be allowed to adopt Clarke's words, when opponents of natural law invoke Hume's argument against someone advocating a theory of morality which is clearly not a classical theory of natural law, and then using that argument (an argument that Hume himself ignored when it served his purposes) against another theory altogether. It is somewhat akin to blaming a grandfather for the faults of his grandchild, and a double bastard grandchild at that.

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*I have updated the spelling and spelled out the words that have been contracted.
**The term "intellectual feltness" is my term, and is my best grasp of the notion of inclination, which is something that is based upon the faculty of reason, but is something that is almost impulsive or felt, something fundamental, and ordering, a tendency, an intellectual, if not entirely conceptually rational, entelechy. The subject has been treated in various postings, but one may access the discussion of inclination and natural law in the context of the natural law teachings of Jacques Maritain. See Jacques Maritain and Natural Law: Inclination and Law.
***In natural law literature, reason and human nature are sometimes treated as equivalent terms. Because man's nature is as a rational animal, the term "reason" is used as a synecdoche for human nature as a whole. But the reason that is equated with human nature is something different from mere speculative or theoretical reason (that reason concerned with truth); rather, it is a reason that incorporates, in addition to the speculative, the practical reason, a reason whose purpose is to grasp the good. The reason that Hume attacks here is speculative reason. For Hume, the practical reason was not the source for determination of good; rather, it was only a means, a "slave of the passions," see Treatise, II.iii.3. It is for this reason that Copleston's assessment (see Note † below) would appear wrong.
****In fact other than pure speculative reason, Hume was suggesting other "mental factors, such as conscience, moral sense, sentiment, and other passions." NLNR, 38, n. 44; Treatise, III.i.1.
†Indeed Frederick Copleston, S.J., detected remnants of natural law thinking in Hume behind this critique:

[Hume's] insistence on the original constitution or fabric of human nature suggests that this nature is in some sense the foundation of morality or, in other words, that there is a natural law which is promulgated by reason apprehending human nature in its teleological and dynamic aspect.

Frederick Copleston, History of Philosophy (Westminster, Md: Newman Press, 1959), Vol. 5, 34 (cited in Howard P. Kainz, Natural Law: And Introduction and Re-Examination (Peru, Ill.: Carus Publishing, 2004), 71). As Kainz observes, some more extreme defenders of Hume even call him a "'closet' natural lawyer." Kainz, 71. It is true that, Hume himself would seem to betray his own principle in that he suggests that ethics be "founded on fact and observations" about what sorts of characteristics and actions bring about moral approbation or disapprobation from men. NLNR, 37 n. 42; See An Enquiry Concerning the Principles of Morals, § 1. Even though Hume invokes certain aspects of human nature (volition, passions, sentiments) in his moral theory, I certainly would not place the skeptic Hume in the natural law camp, and certainly not in any classical or Thomistic natural law camp. More probable is the view that Hume advocated something similar to the "moral sense" theory of Hutcheson, rather than any concept of natural law. Kainz, 72. Finnis has a very interesting observation on Hume. Not only is Hume inconsistent with his own principle in building Humean "oughts" from "ises," Hume lapses into another fallacy beyond that of reasoning from "is" to "ought." He also seems to confuse "ought" to "will" or "must," that is, that something is morally obliging only if it in fact is forcibly compelling. NLNR, 41 (Those who find the "naturalistic fallacy" argument contained in Hume's words in III.i.1 "should be disconcerted by this manifestation of Hume's indifference to the distinction between the 'forcible' and the 'obligatory', between what ought to move the will and what 'must' (i.e., necessarily does) move it.")
††Clarke's Discourse is available on line at various places, most conveniently as the Christian Classics Ethereal Library. See Discourse.
†††James Edward LeRossignol, The Ethical Philosophy of Samuel Clarke (G. Kreysing 1892) (hereinafter LeRossignol).
‡Hume himself in other writings expressly confirms this. See NLNR, 38, n. 46.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Natural Law's Modern Cousin Germain: Images and Objections

IN THE SECOND PART OF HIS FIRST SECTION in his book Natural Law and Natural Rights, John Finnis seeks to disabuse the opponents of natural law theories from their false "images" of natural law theory. He also addresses some of the more frequently hurled objections against natural law theories.

In addressing these, the principles of natural law are first given by Finnis without elaboration (he elaborates on them in Part II of his book). Essentially, he states that there are a set of "basic practical principles," which are universal, and "which indicate the basic forms of human flourishing as goods to be be pursued and realized." Within this set of basic practical principles is another set, this one being a set of "basic methodological requirements of practical reasonableness . . . which distinguish sound and unsound practical thinking." This set of basic practical principles (including the set of methodological principles of practical reasonableness) allow for determination of right and wrong, and thus allow the formulation of a "set of general moral standards," standards which, moreover, extend beyond the individual, but also to the community, "in political philosophy and jurisprudence, in political action, adjudication, and the life of the citizen." NLNR, 23. The set of general moral standards are then incorporated into the Rule of Law, respect for human rights, and the common good. These principles explain the obligatoriness of human law, but they also allow for identification of any radical defectiveness (and accordingly non-obligatorinesss) of such radically defective human laws. In other words, we have a standard, one outside of the narrow confines of positive law, that allows for a sound critique of that positive law.

Finnis then makes a curious statement: "But of natural law itself there could, strictly speaking, be no history." And this statement includes the "principles of natural law" which likewise "have no history." NLNR, 24. The point is based upon a distinction between the subject matter (the res, the thing) and the "theory, doctrine, or account" of the subject matter, res, or thing. The "theories, doctrines, or accounts" of the thing may have a history; these theories may appear, as Hart accused them, in "protean guises." But the thing itself, the natural law itself, is outside of time, place, and therefore history. For Finnis, natural law and its principles are not unlike mathematical, physical, or geometric truths: these simply exist and are, unchanging, eternal, even though they may not have been grasped, or may have been inadequately grasped, or indeed, may have been implicitly or even expressly rejected by men in history. Distinction between "discourse about natural law," and "discourse about a doctrine or doctrines of natural law," is a distinction that has been inadequately maintained. In Finnis's view, natural law--the thing itself--is beyond history: it is suprahistorical, an unalterable, unchangeable, unchanging reality:

Natural law could not rise, decline, be revived, or state 'eternal returns'. It could not have historical achievements to its credit. It could not be held responsible for disasters of the human spirit or atrocities of human practice.

NLNR, 24. Finnis wants to go beyond the question of whether a particular doctrine of natural law is true or not true. Finnis wants to ask the question of whether the natural law--regardless of how expressed--is true. He also challenges some of the incomplete, warped, or simply mistaken notions, "imaginary image[s] of natural law theory, that positivistic or analytic jurists had regarding the natural law. NLNR, 31. He notes that in entertaining these images, perhaps even caricatures, of the natural law, "they themselves scarcely identify, let alone quote from, any particular theories as defending the view that they describe as the view of natural law doctrine." NLNR, 26. In other words, in their jousts against the natural law advocates, the positivists were largely battling with strawmen that they had concocted, perhaps themselves the victims of arrogance or naivety.

For example, Hans Kelsen and Joseph Raz accuse natural law theorists of being unable to distinguish between positive law and moral law, so all they are able to say is whether a positive law is moral or immoral, and are unable to determine whether a positive law exists or does not. Here, Kelsen and Raz are oblivious to the wide range of meaning given to the analogical term law by natural law jurists, so that whereas an immoral positive law may be said to be law in one sense, it may not be said to be law in another sense. The positivist penchant for univocity in the word law cripples them. NLNR, 26. Similarly, Kelsen has an odd notion that natural law jurists had some sort of "delegation" theory, which Finnis shows is based upon an inability to distinguish between delegation in general and delegation unconditionally. NLNR, 27. Finnis also challenges Hart and his advocacy of the hackneyed argument against the natural law: if the natural law existed then why is there not more agreement? Since there is so little agreement, Hart argues, there is no natural law. But, as Finnis shows (here recruiting the help of Leo Strauss*) it is the lack of common consent not the existence of it that spurred the natural law jurists to developing their theories. So how can the very fact that was the impetus for their theorizing be the fact that disproves their theory? Moreover, the theories make accommodations for, and attempt to explain why, there is such lack of uniform consent to the natural law, though there is in fact such a natural law. For example, St. Thomas distinguishes between the natural law's most general principles, its conclusions, and its proximate and remote determinations. The level and consent to the general principles is well-nigh universal, whereas consent to the more remote determinations is not to be expected. NLNR, 29-31. Hart seems insensitive to such subtleties. Moreover, Hart falls into a non sequitur. From the fact that there is some controversy as to a proposition, one cannot argue that one side of the controversy is therefore wrong. If there is an acrimonious debate, say, between a natural law jurist and a moral relativist on the moral liciety of abortion or contraception, that does not mean that the natural law jurist is wrong. It may equally be the case that the moral relativist is wrong. In other words, the existence of debate does not determine the validity or invalidity of any side. NLNR, 31. Julius Stone (1907-1985), a distinguished jurist whose work focused in particular on human rights and social justice, likewise lapses into error. In his Human Law and Human Justice, Stone asks whether natural law advocates are "entitled to claim that what they assert as self-evidence must be recognized as self-evident by all?" But this is not the issue. The issue is not whether something must be recognized. (After all, by that test, Professor Stone's theories, or for that matter, anyone else's, are deficient, since they are not recognized by all.) The issue is not whether there is some consent, or majority consent, or universal consent. The questions is whether claims to something being self-evident is true.** There are, alas, many men and many societies that reject truth, whether it be as a result of invincible ignorance, laziness, hatred of truth: it is of no moment. As Finnis also explains, a whole set of human knowledge--logic, mathematics, and sciences of all kinds--rely on self-evident principles that have not been proved, and that cannot be proved.

[W]hat is certain is that the natural sciences and in general all theoretical disciplines rest implicitly on epistemic principles, or norms of theoretical rationality, which are undemonstrated, indemonstrable, but self-evident in a manner strongly analogous to the self-evidence described by Aquinas to the basis principles of practical reasonableness.

NLNR, 32. Why should natural law advocates be under a burden different from anyone else? There are some men that think that the world is flat. Are we therefore to maintain that the spherical nature of the earth is a truth up for grabs? There are a substantial amount of men that, in theory or practice, reject the natural law. Are we therefore to maintain that the natural law does not exist? What's good for the legal positivist's goose, is good for the natural law jurist's gander.

(continued)

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*We have addressed Leo Strauss's great work Natural Right and History in series of blog postings. These are accessible via the hyperlink: Leo Strauss and Natural Law.
**As an aside, St. Thomas even explains that there are different levels of self-evident propositions, some of which are available to men as a whole, and some of which require some understanding of terms and therefore are available only to the learned. NLNR, 31-32 (discussing S.T. IaIIae, q. 94, a. 2c). In his Nicomachean Ethics, Aristotle also speaks about a certain requisite intellectual maturity required to speak of ethics and politics.