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Published online by Cambridge University Press: 01 January 2024
Why our interest in natural law still today? We can always criticize obligations and found human rights on the basis of natural law and we cannot accept a large gap between inclinations and desires on one hand and norms on the other. Natural law is not the lowest common denominator among men and is not always immediately apparent. We can find out it by a resolutio, going back from every day moral experience, from virtues and vices, from civil laws to the first principles. Natural law is the work of practical rationality, that makes order, looking with attention to reality and requires harmony between reason and inclinations towards perfect goods. Human desire is informed by reason and practical reason is always also speculative reason, because it knows reality. Desire “has eyes”, recognizing good. What goodness consists in is perfection. Since human being is open to infinity, the main and inclusive desire is desire for happiness and for God. Inclinations towards good are known, valued, interpreted by practical reason and they become moral norms thanks to the same practical reason.The normative dimension of law is also finalistic. The idea of conveniens is different from both Kantian and Utilitarian points of view. Ethical virtues are the flourishment of the seeds of natural law and there is no necessary opposition between freedom and natural law.
1 F. R. Hittinger, Natural Law Still Relevant Today? [in press]. Cf. F. R. Hittinger, Fallimento Del Diritto Naturale? Stato moderno, antropologia negativa e dignità umana in Riscoprire le radici e i valori comuni della civiltà occidental: il concetto di legge in Tommaso d'Aquino, Blasi, F. Di, ed. (Soveria Mannelli: Rubbettino, 2007), pp. 123–36Google Scholar.
2 See De veritate, q. 10 a. 9 ad s. c. 3.
3 Cf. Anscombe, G. E. M., ‘Modern Moral Philosophy’ Philosophy 33:124 (1958), pp. 1–19CrossRefGoogle Scholar.
4 The first is the case of Kant, the second of Hobbes.
5 See Audi, R., Moral Knowledge and Ethical Character, (New York: Oxford University Press, 1997)CrossRefGoogle Scholar.
6 On the gap between moral experience and moral philosophy, see Chappell, T., Ethics and Experience: Life Beyond Moral Theory (London: Acumen, 2009)Google Scholar.
7 Cf. Simon, Y., The Tradition of Natural Law (New York: Fordham University Press, 1992)Google Scholar.
8 Cf. ST I-II, q. 96, a. 2, ad 3: “The natural law is a participation in us of the eternal law: while human law falls short of the eternal law. Now Augustine says (De Lib. Arb. I, 5): ‘The law which is framed for the government of states, allows and leaves unpunished many things that are punished by Divine providence. Nor, if this law does not attempt to do everything, is this a reason why it should be blamed for what it does.’ Wherefore, too, human law does not prohibit everything that is forbidden by the natural law (I-II, q. 96, a. 2). Whether it belongs to the human law to repress all vices? I answer that, as stated above (q. 90, a. 1, ad 2), law is framed as a rule or measure of human acts. Now a measure should be homogeneous with that which it measures, as stated in Metaph. x, text. 3, 4, since different things are measured by different measures. Wherefore laws imposed on men should also be in keeping with their condition, for, as Isidore says (Etym. v, 21), law should be possible both according to nature, and according to the customs of the country. Now possibility or faculty of action is due to an interior habit or disposition: since the same thing is not possible to one who has not a virtuous habit, as is possible to one who has. Thus the same is not possible to a child as to a full-grown man: for which reason the law for children is not the same as for adults, since many things are permitted to children, which in an adult are punished by law or at any rate are open to blame. In like manner many things are permissible to men not perfect in virtue, which would be intolerable in a virtuous man. Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like.”
9 F. R. Hittinger, Natural Law Still Relevant Today?
10 Frankfurt, H., The Importance of what we care about. Philosophical Essays (Cambridge: Cambridge University Press, 1988), p. IXCrossRefGoogle Scholar.
11 Cf. ST I-II, q. 91, a. 2: “I answer that, as stated above (q. 90, a. 1, ad 1), law, being a rule and measure, can be in a person in two ways: in one way, as in him that rules and measures; in another way, as in that which is ruled and measured, since a thing is ruled and measured, in so far as it partakes of the rule or measure. Wherefore, since all things subject to Divine providence are ruled and measured by the eternal law, as was stated above (a. 1); it is evident that all things partake somewhat of the eternal law, in so far as, namely, from its being imprinted on them, they derive their respective inclinations to their proper acts and ends. Now among all others, the rational creature is subject to Divine providence in the most excellent way, in so far as it partakes of a share of providence, by being provident both for itself and for others. Wherefore it has a share of the Eternal Reason, whereby it has a natural inclination to its proper act and end: and this participation of the eternal law in the rational creature is called the natural law. Hence the Psalmist after saying (Psalm 4:6): “Offer up the sacrifice of justice,” as though someone asked what the works of justice are, adds: “Many say, Who showeth us good things?” in answer to which question he says: “The light of Thy countenance, O Lord, is signed upon us”: thus implying that the light of natural reason, whereby we discern what is good and what is evil, which is the function of the natural law, is nothing else than an imprint on us of the Divine light. It is therefore evident that the natural law is nothing else than the rational creature's participation of the eternal law.”
12 Cf. Porter, J., Nature as Reason. A Thomistic Theory of the Natural Law (Cambridge: Eerdmans, 2005), p. 303Google Scholar: “Aquinas offers a credible way of distinguishing between doing and allowing in the form of a more fundamental analysis of the structure of human action, in terms of which we can (non ironically) speak of ‘the act itself’ and distinguish it both from its consequences and from the agent's overall intention.”
13 See J. Calvin, Institutes of the Christian Religion; and J. Locke, Questions Concerning the Law of Nature.
14 ST I-II, q. 19, a. 10.
15 See De veritate, q. 14, a. 2; De virtutibus, q. 1, a. 8, co.
16 Cf. ST I-II, q. 51, a. 1: “In the appetitive powers, however, no habit is natural in its beginning, on the part of the soul itself, as to the substance of the habit; but only as to certain principles thereof, as, for instance, the principles of common law are called the ‘nurseries of virtue.’ The reason of this is because the inclination to its proper objects, which seems to be the beginning of a habit, does not belong to the habit, but rather to the very nature of the powers”. Cf. De veritate, q. 14, a. 2
17 I quote the entire responsio of the famous article ST I-II, q. 94, a. 2: “I answer that, As stated above (Question 91, Article 3), the precepts of the natural law are to the practical reason, what the first principles of demonstrations are to the speculative reason; because both are self-evident principles. Now a thing is said to be self-evident in two ways: first, in itself; secondly, in relation to us. Any proposition is said to be self-evident in itself, if its predicate is contained in the notion of the subject: although, to one who knows not the definition of the subject, it happens that such a proposition is not self-evident. For instance, this proposition, ‘Man is a rational being,’ is, in its very nature, self-evident, since who says ‘man,’ says ‘a rational being’: and yet to one who knows not what a man is, this proposition is not self-evident. Hence it is that, as Boethius says (De Hebdom.), certain axioms or propositions are universally self-evident to all; and such are those propositions whose terms are known to all, as, ‘Every whole is greater than its part,’ and, ‘Things equal to one and the same are equal to one another.’ But some propositions are self-evident only to the wise, who understand the meaning of the terms of such propositions: thus to one who understands that an angel is not a body, it is self-evident that an angel is not circumscriptively in a place: but this is not evident to the unlearned, for they cannot grasp it. Now a certain order is to be found in those things that are apprehended universally. For that which, before aught else, falls under apprehension, is ‘being,’ the notion of which is included in all things whatsoever a man apprehends. Wherefore the first indemonstrable principle is that ‘the same thing cannot be affirmed and denied at the same time,’ which is based on the notion of ‘being’ and ‘not-being’: and on this principle all others are based, as is stated in Metaph. iv, text. 9. Now as ‘being’ is the first thing that falls under the apprehension simply, so ‘good’ is the first thing that falls under the apprehension of the practical reason, which is directed to action: since every agent acts for an end under the aspect of good. Consequently the first principle of practical reason is one founded on the notion of good, viz. that ‘good is that which all things seek after.’ Hence this is the first precept of law, that ‘good is to be done and pursued, and evil is to be avoided.’ All other precepts of the natural law are based upon this: so that whatever the practical reason naturally apprehends as man's good (or evil) belongs to the precepts of the natural law as something to be done or avoided. Since, however, good has the nature of an end, and evil, the nature of a contrary, hence it is that all those things to which man has a natural inclination, are naturally apprehended by reason as being good, and consequently as objects of pursuit, and their contraries as evil, and objects of avoidance. Wherefore according to the order of natural inclinations, is the order of the precepts of the natural law. Because in man there is first of all an inclination to good in accordance with the nature which he has in common with all substances: inasmuch as every substance seeks the preservation of its own being, according to its nature: and by reason of this inclination, whatever is a means of preserving human life, and of warding off its obstacles, belongs to the natural law. Secondly, there is in man an inclination to things that pertain to him more specially, according to that nature which he has in common with other animals: and in virtue of this inclination, those things are said to belong to the natural law, ‘which nature has taught to all animals’ (Pandect. Just. I, tit. I), such as sexual intercourse, education of offspring and so forth. Thirdly, there is in man an inclination to good, according to the nature of his reason, which nature is proper to him: thus man has a natural inclination to know the truth about God, and to live in society: and in this respect, whatever pertains to this inclination belongs to the natural law; for instance, to shun ignorance, to avoid offending those among whom one has to live, and other such things regarding the above inclination.”
18 Cf. Campodonico, A., Vaccarezza, M.S., La pretesa del bene. Teoria dell'azione ed etica in Tommaso d'Aquino (Napoli: Orthotes, 2012), p. 150–188Google Scholar. See also Vaccarezza, M.S., Le ragioni del contingente. La saggezza pratica tra Aristotele e Tommaso d'Aquino (Napoli: Orthotes, 2012), pp. 73–88Google Scholar.
19 Cf. ST I-II, q. 9, a. 1: “Now good in general, which has the nature of an end, is the object of the will. Consequently, in this respect, the will moves the other powers of the soul to their acts, for we make use of the other powers when we will. For the end and perfection of every other power, is included under the object of the will as some particular good: and always the art or power to which the universal end belongs, moves to their acts the arts or powers to which belong the particular ends included in the universal end. Thus the leader of an army, who intends the common good – i.e. the order of the whole army – by his command moves one of the captains, who intends the order of one company”.
20 Cf. S. Brock, ‘Natural Inclination and the Intelligibility of the Good in Thomistic natural law’, Vera lex VI: 1–2, pp. 61–62. See In II De anima lect. XII, 747: “Desire or shunning did not follow at once from the grasp of that which is good or bad, as here with intellect; but pleasure and pain followed, and then from this, desire and shunning. The reason for this is that just as sense does not grasp universal good, so too the appetite of the sensitive part is not moved by universal good or bad, but by a certain determinate good which is pleasant to sense, and by a certain determinate bad which is painful to sense. But in the intellective part there is the grasp of universal good and bad; whence too, the appetite of the intellective part is moved immediately by the apprehended good or bad.” ST II, q. 19, a. 3: “I answer that, as stated above (q. 1, a. 2), the goodness of the will depends properly on the object. Now the will's object is proposed to it by reason. Because the good understood is the proportionate object of the will; while sensitive or imaginary good is proportionate not to the will but to the sensitive appetite: since the will can tend to the universal good, which reason apprehends; whereas the sensitive appetite tends only to the particular good, apprehended by the sensitive power. Therefore the goodness of the will depends on reason, in the same way as it depends on the object”. There are different interpretations of the inclinations in Aquinas’ natural law. Cf. ST I, q. 60, a. 1, ad 3: “As natural knowledge is always true, so is natural love well regulated; because natural love is nothing else than the inclination implanted in nature by its Author. To say that a natural inclination is not well regulated, is to derogate from the Author of nature.”
21 Cf. ST I-II, q. 94, a. 2, ad 2. See ST I-II, q. 94, a. 4, ad 3. “[…] the inclinations of the parts of human nature, such as the concupiscible and irascible appetites, pertain to natural law insofar as they are regulated by reason.”
22 In XII Meta., lect. vii, 2522.
23 ST I, q. 5, a. 6, ad 2.
24 See S. Brock, Natural Inclination and the Intelligibility of the Good in Thomistic natural law, p. 66, footnote 25: “Even as regards goods to which sense-appetite also extends, is it true in every case that we experience sense-desires for them before we understand their goodness? For instance, can a child not understand the good of coniunctio maris et feminae before he feels any urge toward it himself?”
25 Cf. ST II-II, q. 145, a. 2: “The honest concurs in the same subject with the useful and the pleasant, but it differs from them in aspect. For, as stated above (a. 2), a thing is said to be honest, in so far as it has a certain beauty through being regulated by reason. Now whatever is regulated in accordance with reason is naturally becoming to man. Again, it is natural for a thing to take pleasure in that which is becoming to it. Wherefore an honest thing is naturally pleasing to man: and the Philosopher proves this with regard to acts of virtue (Ethic. i, 8). Yet not all that is pleasing is honest, since a thing may be becoming according to the senses, but not according to reason. A pleasing thing of this kind is beside man's reason which perfects his nature. Even virtue itself, which is essentially honest, is referred to something else as its end namely happiness. Accordingly the honest, the useful, and the pleasant concur in the one subject. Nevertheless they differ in aspect. For a thing is said to be honest as having a certain excellence deserving of honour on account of its spiritual beauty: while it is said to be pleasing, as bringing rest to desire, and useful, as referred to something else. The pleasant, however, extends to more things than the useful and the honest: since whatever is useful and honest is pleasing in some respect, whereas the converse does not hold (Ethic. ii, 3)”.
26 ST I, q. 16, a. 4, ad 2.
27 Thomas finds the notion of “perfect” closely associated with that of active power. A being is perfect, mature, when it can effect its like. This makes sense, since likeness is “communication in form”. The being is “full” when its form can “overflow.” Thus grasping active power entails grasping form; and the ratio of good, or of final cause, presupposes the rationes of formal and agent cause. See Dewan, L., Wisdom, law and virtue, Essays in Thomistic ethics (New York: Fordham University Press, 2008)Google Scholar.
28 Cf. ST I-II, qq. 1–5.
29 Cf. ST I-II q. 94, a. 6.
30 ST I-II, q. 94, a. 6.
31 S. Brock, Natural Inclination and the Intelligibility of the Good in Thomistic Natural Law, p. 78.
32 ST I-II, q. 20, a. 6, ad 1.
33 Cf. MacIntyre, A., Intractable Disputes about the Natural Law. Alasdair Macintyre and Critics, Cunningham, L.S., ed. (Notre Dame: Notre Dame University Press, 2009)Google Scholar, in particular pp. 19–52. See p. 52: “The best defence of Natural Law will consist in radical, philosophical, moral, and cultural critiques of rival standpoints” and p. 50: “The claim that I am advancing that is that the failure of utilitarians to overcome the difficulties that arise from their use of the concept of happiness, or of some substitute of it, provides Thomistic Aristotelians with sufficient reason to judge that they are able to understand the truth about utilitarians better than utilitarians can.”
34 Porter, J., Nature as Reason, A Thomistic Theory of the Natural Law (Cambridge: Eerdmans, 2005), p. 174–221Google Scholar. Cf. ST II-II, q. 141, a. 6: “I answer that, as stated above, the good of moral virtue consists chiefly in the order of reason: because “man's good is to be in accord with reason,” as Dionysius asserts (Div. Nom. iv). Now the principal order of reason is that by which it directs certain things towards their end, and the good of reason consists chiefly in this order; since good has the aspect of end, and the end is the rule of whatever is directed to the end. Now all the pleasurable objects that are at man's disposal, are directed to some necessity of this life as to their end. Wherefore temperance takes the need of this life, as the rule of the pleasurable objects of which it makes use, and uses them only for as much as the need of this life requires”.
35 ST II-II, q. 122, a. 1. In ST I-II Aquinas considers the relationship between natural law and the precepts of Decalogue in a different way. See ST I-II, q. 100, a. 3, ad 1: “I answer that, the precepts of the Decalogue differ from the other precepts of the Law, in the fact that God Himself is said to have given the precepts of the Decalogue; whereas He gave the other precepts to the people through Moses. Wherefore the Decalogue includes those precepts the knowledge of which man has immediately from God. Such are those which with but slight reflection can be gathered at once from the first general principles: and those also which become known to man immediately through divinely infused faith. Consequently two kinds of precepts are not reckoned among the precepts of the Decalogue: viz. first general principles, for they need no further promulgation after being once imprinted on the natural reason to which they are self-evident; as, for instance, that one should do evil to no man, and other similar principles: and again those which the careful reflection of wise men shows to be in accord with reason; since the people receive these principles from God, through being taught by wise men. Nevertheless both kinds of precepts are contained in the precepts of the Decalogue; yet in different ways. For the first general principles are contained in them, as principles in their proximate conclusions; while those which are known through wise men are contained, conversely, as conclusions in their principles. Reply to Objection 1. Those two principles are the first general principles of the natural law, and are self-evident to human reason, either through nature or through faith. Wherefore all the precepts of the Decalogue are referred to these, as conclusions to general principles.” On this topic see L. Dewan, Wisdom, law and virtue, Essays in Thomistic ethics (New York: Fordham University Press, 2008), pp. 244–45: “Or is ‘ignorance to be avoided’ rather the fruit of an experience in which ignorance is encountered as what is meant by the “humanly bad” and so is immediately seen as “that which is to be avoided” (with no middle term)? It appears to me that it is that sort of derivation that is meant by Thomas. Just as we do not expect a reasoning process to be involved in the sequence of intelligibles “being”, “true”, “good”, so neither is there a reasoning process required in the application of goodness to the particular objects that are naturally apprehended as human goods”: I believe that those are correct who see ST I-II, q. 94, a. 2, as presenting many precepts that are per se nota to all. However, the precepts must be indeterminate enough that they do not have the determinateness of the ten Commandments. The sort of precepts Thomas has in mind are known through the very meanings of the terms […]. Whereas in the prima secundae the Ten Commandments are presented as immediate conclusions from the first principles, by the time he writes the secunda secundae Thomas has decided that they are most manifest principles of natural law; thus, they are surely considered per se nota”.
36 Macintyre, A., God, philosophy, universities. A Selective History of the Catholic Philosophical Tradition (Lanham: Rowan & Littlefield Publishers, 2009), p. 89Google Scholar. According to Macintyre, “They would have to be rules prohibiting the taking of innocent life and the use of violence against the property and liberty of others and enjoining truthfulness and candour in deliberation. They would have to include rules prohibiting one from making commitments to others that one does not expect to fulfil and that bind one to keep whatever promises one might have made. Since they are to be rules without which genuinely rational deliberation would be impossible, they would have to be rules that would inform one's social relationships with anyone with whom one might at some time have to enter into shared deliberation, that is, with anyone whatsoever. But this set of precepts turns out to be identical with the precepts that Aquinas identifies as the precepts of natural law, so that as rational agents we are, just as Aquinas concluded, committed to conformity to the precepts of the natural law”.
37 ST II-II, q. 114, a. 1.
