Classical Natural Law and it's Decline

Part Three

Talk given on October 2019 to SPES economics meeting

Dr Joseph Milne

In our previous talks we have stressed how nature tends to order and harmony, both in individual things, and in their relation to the whole. The tendency is inherent in things. It is part of their nature. It is not some force imposed from outside. Law is not something outside things that regulates them. In Aristotle’s language, this means that all living things are ‘self-moving’, so their nature and their order cannot be separated, even though they can be rationally distinguished. We have called this self-moving property of things their teleology.

I mention all this again because it is so easy to slip into the idea that, in society, law is to do with making laws that are imposed upon citizens. And this idea is reinforced by the modern notion that law is grounded in ‘will’, either the will of the ruler or the will of the people. This idea of law being derived from will emerged at the close of the Middle Ages, when ‘divine wisdom’ was replaced by ‘free will’ in the conception of God. This idea changed the conception of law from that which belonged to things by nature to a power imposed upon them from outside. And so with Luther comes the idea that ‘human will’ and ‘divine will’ are directly opposed to one another. It was this way of thinking that led to the harsh puritanism of the sixteenth century and the burning of witches and suchlike. Justice became associated more with retribution than with the natural order or harmony of things.

With this caution in mind I would like to explore the understanding of law before that change in thinking occurred. We have looked at Plato previously and there is no better way of following this than with Cicero, the great Roman lawyer and consul in the first century BC. There is a passage in his Republic which resonated down the Middle Ages:

There is indeed a law, right reason, which is in accordance with nature; existing in all, unchangeable, eternal. Commanding us to do what is right, forbidding us to do what is wrong. It has dominion over good men, but possesses no influence over bad ones. No other law can be substituted for it, no part of it can be taken away, nor can it be abrogated altogether. Neither the people nor the senate can absolve us from it. It wants no commentator or interpreter. It is not one thing at Rome, and another thing at Athens: one thing to-day, and another thing to-morrow; but it is a law eternal and immutable for all nations and for all time.[1]

The important expression Cicero uses here is ‘right reason, which is in accordance with nature: existing in all, unchangeable, eternal’. This ‘right reason’ which exists in everything, is the intelligence of the cosmos itself. For the Stoic philosophers the cosmos is itself an intelligent being, even a divine being. The gods, in particular Zeus, are part of the cosmos. Human beings recognise this intelligence or reason in the universe because they participate in the same intelligence or reason. This notion of ‘participation’ in cosmic reason we also find in Plato, especially in the Timaeus. Cicero tends to blend Plato with elements of Stoic philosophy.

This inseparable relation of reason and nature corresponds with what we discussed previously about nomos and physis, law and nature corresponding with one another. The law of nature is part of nature, and so the nature of anything is bound up with and expressed in its law. So to call this law ‘reason’ is to say that law is the living intelligence of things – of all things. It follows from this that our human intelligence or reason is not only the law of human nature, defining us as human, but also the power that discerns the reason in the cosmic order.

It follows from this that for the human person to live according to law is to live according to human nature. The source of law is human nature itself. And it follows from this that any action performed according to human nature will be in accord with the cosmic law or reason. The whole question of society and government and law-making is the question of living together according to nature and in harmony with nature as a whole. This not only includes economics but culture and tradition and all the branches of learning. It is this beautiful connection of everything with everything that natural law invites our reason to understand.

This explains why Cicero says ‘It has dominion over good men, but possesses no influence over bad ones’. Good men naturally incline to live in harmony with nature, and so for them law is beneficial. It is like a divine blessing. This eternal law has no dominion over bad men because bad men act contrary to their own nature. For such bad men there has to be another kind of law. We will come to that later. But for now I would like to touch briefly on an aspect of ancient natural law which scholars have tended to separate from it, namely the virtues, the Classical understanding of ethics.

Some excellent scholarship has been done in recent times into what has now become known as ‘virtue ethics’, especially in relation to Aquinas, Aristotle, and Plato. For Plato and Aristotle it is the virtues that create harmony in the soul and therefore establish the capacity for right or just action. The famous ‘four cardinal virtues’ are the principles ones discussed – Prudence, Courage, Justice, and Temperance. Our word ‘prudence’ has got misleading associations, such as being cautious. It really means ‘right discernment’ or ‘right judgement’. The Greek word is phronesis which in its simplest sense means ‘practical wisdom’. It is a kind of knowledge that informs action in the moment, and is therefore distinguished from ‘theoretical wisdom’ which is concerned with eternal wisdom. It includes a capacity to see or discern things as they really are.

In practice the virtues all work together and cannot be separated. For example, if one is to perform a just action one must first be recollected or ordered in the soul. This is temperance. Next one must discern correctly what is present and calling for action, which is prudence. Then one must act resolutely to perform the just action. This is courage. Then the just action can be performed properly. This sequence of virtuous acts of itself brings order to the soul and establishes a right relation with nature as a whole. The medieval scholars put that sequence slightly differently. Beginning with prudence, justice can be discerned, courage then enables justice to be performed, and this brings about temperance in the soul. But whichever sequence is used, it is the practical working of natural law. There is the Greek goddess named Eunomia which means good law, good order, good government, well ordered, well-ruled, which expresses all of this. Eu means good and nomia means ‘law’. It also follows from all this that the cosmos itself is virtuous and wise. Thus Cicero has Zeno say in The Nature of the Gods:

Why, then, seeing that the universe gives birth to beings that are animate and wise, should it not be considered animate and wise itself?” (The Nature of the Gods, Book 2, VIII)

And again Cicero writes:

As there is nothing more perfect than the universe, and nothing more excellent than virtue, it follows that virtue is an attribute of the universe. Human nature is not indeed perfect, yet virtue is attained in man, so how much more easily in the universe! Virtue, then, does exist in the universe, which is therefore wise, and consequently divine. (The Nature of the Gods, Book 2)

I think we can see that Richard Dawkins is no fan of Cicero! Yet, even though I say that in jest, it shows how far our age has come from the ancient vision of nature and of our human place within nature. In a world of genetic determinism, which is merely another variant of the Hobbesian atomistic view of nature as the philosopher Mary Midgely has pointed out,[2] there is no scope for understanding natural law.

It is worthwhile, then, considering for a moment the implications of Cicero’s first question: ‘Why, then, seeing that the universe gives birth to beings that are animate and wise, should it not be considered animate and wise itself?’ The modern view is that the universe is inanimate and certainly not wise. It is therefore assumed that animate beings have arisen from inanimate matter through some form of evolution, such as natural selection, or even by some accident. This way of seeing things excludes in advance any kind of teleology. Yet there is one modern theory of evolution which is teleological which is based on what is called the ‘anthropic principle’. This theory argues that for the human species to have come into being, with its intelligence and biological complexity, everything in the entire universe had to be structured as it now is. According to this theory, life on earth is not an isolated incident but is entirely conditional upon the whole universe having the form it has taken. This is nearer to Greek thinking on nature and how Cicero sees nature.

There is also the evolutionary theory of Teilhard de Chardin[3] in which he sees the whole process of evolution governed the principle of complexity-consciousness. This theory holds that matter inherently tends towards more complex forms, becoming more and more integrated, which become capable of consciousness. The most complex form we know is that of the human brain, which is also the most conscious form we know. Hence the expression ‘complexity-consciousness’. Teilhard explains that, if the universe, and specifically the planet earth, tends to such complexity, then the principle of complexity-consciousness must exist in the essence of all matter, and that the evolution through time is the actualisation or manifestation of the potential of matter. In other words, all matter is inherently conscious and this unfolds into actualisation through time. This means that what comes into being last was in fact the first principle of matter.

Teilhard has, through the scientific observation of evolution, rediscovered the teleological principle of nature – the principle that holds that the ‘final cause’ is what brings things into being. This is no different from Aristotle’s observation that human nature is to be discerned most clearly in the fully mature adult. Aristotle says ‘nature does nothing unnecessary’. That means it is organised and purposeful. In the writings of Cicero we find many observations of how things take place in nature, even down to how the seed springs forth from the soil. All things seek the perfection of their kind. Is it such a radical rational deduction, then, to assume nature is ‘wise’, and if wise, then also ‘virtuous’.

From this we can see that the unfolding development of each being is its law of being, its law of becoming, and that this law belongs to its most interior essence. And the fact that the law of each kind of being, and of all beings in nature as a whole, operate in harmony with one another, shows that there is a wisdom or intelligence that binds them all together in the most just and beautiful manner. This, it seems to me, is the ‘wisdom’ of the universe that Cicero is speaking of.

Plato deals with this in a most interesting way in Book X of the Laws, which no doubt you are familiar with, where he challenges the view of those who hold that the elements and the stars came into being by chance and without soul or intelligence, and that the gods and the highest things came into being last and by art rather than nature. Here is the passage:

Athenian Stranger. I'll express it still more clearly, as follows. Fire, water, earth, and air are all by nature and by chance, they claim, and none of these is by art; and the bodies that come after these—of the earth, sun, moon, and stars—came into being through these, which are beings completely without soul. They are each carried about by the chance of the power each has; when they fall together with things that somehow harmonize with what is proper to them—hot things with cold things, or dry things in relation to wet things, and soft things in relation to hard things, and all things that are mixed together, by the mixing of opposites according to chance, that arises out of necessity— then in this way and according to these means, the whole heaven and all things in heaven, and also the animals and all the plants have come into being, once all the seasons had come into being out of these things: not through intelligence they claim, nor through some god, nor through art, but, as we're saying, by nature and chance. Art is later, coming into being later from these; being itself mortal and from mortals, it later has brought into being certain playthings that don’t partake much of truth, but are certain images that are akin to one another—such as the things brought into being by painting and music and whatever arts are fellow workers with these. But some of the arts do bring into being something serious, and these are the ones that have their power in common with nature—such as, again, medicine and farming and gymnastics. And indeed, as for the political art, they claim that there is a small portion of it that is in partnership with nature, but that most of it is by art; and thus the whole of legislation, whose assumptions are not true, is not by nature but by art.[4]

This is a challenge to the ancient Greek equivalent of materialism. By claiming that the universe came into being by ‘nature and by chance’, nature is made blind and without soul. And for those things that came into being later and with intelligence or art, they are not rooted in nature but exist by artificial invention. And this is most especially true of ‘the whole of legislation, whose assumptions are not true’.

Plato links this false view of the order of the cosmos with three false beliefs about the gods. The first is that there are no gods. The second is that there are gods, but they have no care for human life. The third is that the gods can be bribed. A great deal could be said about these three forms of ‘impiety’, as Plato calls them. But all that concerns us here is that they represent three wrong relationships with the ‘intelligence’ in nature. Coupled with the inverted conception of the world order, arising from chance instead of soul or intelligence, we have a host of reasons why human laws or jurisprudence cannot be derived from nature. And it would seem that Plato is giving a very grave warning that a society is always liable to fall into these views and bring about disorder. And this most especially effects the understanding of law or jurisprudence.

We could trace these ideas, especially those of Cicero, through medieval philosophy, but I would like to leap over that for now and look instead at the sixteenth century where this tradition of natural law did battle with the new mechanistic view of nature that arose with Descartes, Francis Bacon and Thomas Hobbes. I should mention here that it was through a theological shift in the understanding God, creation and human nature that this new mechanistic view of nature arose. As we mentioned earlier, the late scholastics argued that the will of God was prior to the divine intellect, thus giving the will precedence over intellect and wisdom. According to this new doctrine all that takes place in nature is due to the divine will and not the divine reason. This meant that nature became indeterminate, since will had no order or ground other than itself. It was argued that the will of God was absolutely free, and could therefore change the order of things arbitrarily, or could have made things differently. And since man is made in the image of God, this meant that will took precedence over reason in human nature also.

This voluntarist conception of God was coupled with a new atomistic view of nature, or what is called nominalism. Nominalism holds that all universals exist only as concepts. So, for example, the nominalist will claim that we can speak of ‘humanity’ while in fact there are only individual human beings. The same holds for the colour ‘green’. There is no such thing as ‘green in itself’ but only individual green things. It is the reason that generalises or ‘abstracts’ about things and conceives universals, but these remain conceptions only. This atomistic view of nature assumed that each being has come into existence individually and directly from the divine will, and so there were no actual general relations between them. In Luther and Calvin this took a further very radical form, where it was held that any kind of investigation into the nature of things was an act of hubris. God had ordered things according to His inscrutable will and it belonged to man only to obey that will without question. According to Luther, as we mentioned earlier, the human will was by nature contrary to the divine will, and the divine will was to be known only through the Scriptures. The created world or nature offered no wisdom or guidance to man. Indeed, Luther even went so far as to say the created world was ruled by Satan.

Given this situation and all the turmoil of the reformation, we should not be too surprised that more thoughtful people began to enquire into nature afresh. Yet in order to avoid any conflict with the Church, they adopted the voluntarist and nominalist view of nature as a starting-point. In this way the new voluntarist and nominalist outlook became pervasive. The works of the medieval scholastics were ridiculed and discounted, and also were the works of Plato and Aristotle.

There was one sphere in which this new outlook was resisted: the sphere of jurisprudence. Law is something that crosses the boundaries between church and state, so that there cannot be either an exclusively ‘religious’ law or an exclusively ‘secular’ law. But also, law can only be either something belonging to the essential property of things, or something imposed on them from outside. A third option is that, for society, law is either the will of each individual to rule by his own law, or for law to be made by contract agreed between citizens. This option is the Hobbesian option, which remains essentially nominalist and voluntarist. This view has its adherents today, though under other names, and is even to be found in more recent Georgist thinking. It is a kind of default thinking of our times and a major obstacle to understanding natural law.

There is one most important thinker on natural law who influenced the English Reformation in very positive ways. This was Richard Hooker (1554-1600). It is interesting that he is an almost exact contemporary of Shakespeare (1564-1616). Hooker’s most important and most famous work was his Laws of Ecclesiastical Polity. In this he sought a reconciliation between the various Protestant factions and Church and State. To achieve this he drew upon the Scholastic tradition of natural law with new arguments. Here is an example:

As long as each thing performeth only that work which is natural unto it, it thereby preserveth both other things, and also itself. Contrariwise let any principle thing, as the sun, the moon, any one of the heavens or elements, but once cease or fail, or swerve, and who doth not easily conceive that the sequel thereof would be ruin both to itself and whatsoever dependeth on it? And is it possible, that Man being not only the noblest creature in the world, but even a very world in himself, his transgressing the Law of his Nature should draw no manner of harm after it? Yes, “tribulation and anguish unto every soul that doeth evil.” Good doth follow unto all things by observing the course of their nature, and on the contrary side evil by not observing it;

Then Hooker makes a distinction between how the law effects other creatures and man:

…but not unto natural agents that good which we call Reward, not that evil which we properly term Punishment. The reason whereof is, because amongst creatures in this world, only Man’s observation of the Law of his Nature is Righteousness, only Man’s transgression Sin. And the reason of this is the difference in his manner of observing or transgressing the Law of his Nature. He does not otherwise than voluntarily the one or the other. What we do against our wills, or constrainedly, we are not properly said to do it, because the motive cause of doing it is not in ourselves (Richard Hooker Laws of Ecclesiastical Polity I. ix. 1)

Straight away we see the connection back to Cicero and the medieval natural law tradition. So long as things follow their natural course they preserve themselves and other things. Nature is mutually supportive and mutually beneficial. This is directly contrary to the nominalist and voluntarist position. While for all other creatures to follow the law of their nature is neither due for reward or punishment, for human nature this is different. If man elects to act contrary to the law of his nature, this brings about evil, and in religious terms, punishment. ‘He does not otherwise than voluntarily the one or the other.’ Human will is not corrupt by nature and neither is it prior to reason. Human will is the power to make decisions based on reason. It is really an action of prudence. It is not a law unto itself as Luther and Hobbes claimed.

In another passage Richard Hooker confirms the rational basis of law:

Law rational, therefore, which men commonly use to call the Law of Nature, meaning thereby the Law which human Nature knoweth itself in reason universally bound unto, which also for that cause may be termed most fitly the Law of Reason; this law, I say, comprehendeth all those things which men by the light of their natural understanding evidently know, or at leastwise may know, to be beseeming or unbeseeming, virtuous or vicous, good or evil, for them to do. (Laws of Ecclesiastical Polity, I. viii. 9)

Here Hooker sees the ‘Law of Nature’ is what reason discerns and is ‘universally bound unto’ and which therefore may also be called the ‘Law of Reason’. In this we see the medieval understanding in which ‘nature’ and ‘reason’ are inseparable. Nature is ordered according to reason, intelligence, and not according to divine will. When the divine will is conceived as prior to reason, it is arbitrary and no order can be discerned in it. That is why it destroys the understanding of natural law, but also the understanding of human nature in relation to society or citizenship and the virtues.

It is worth clarifying here what the original understanding of ‘will’ was before it changed through nominalism. The medieval scholastics understood will is rooted in the desiring part of human nature, and what all desire seeks is ‘the good’. In this sense it complements the rational part of the soul which is inclined to knowledge and truth. For Aquinas, drawing on Aristotle and the Platonic tradition as well as the Gospels, the desire for the good is the desire for the perfection of ‘being’. All desire springs from the love of being or existence. For this reason Aquinas says ‘insofar as anything has being, it is good’. Indeed, being and good are words meaning the same. This is most so in God whose being is His goodness. The divine goodness reaches out beyond itself since it is infinite, and this is the real nature of the will of God. It confers being on all creatures. But also the goodness of God cannot be separated from His wisdom, which is also infinite, and so the goodness that confers being on all creatures also confers wisdom upon them.

Further, every creature – not just the human person – desires to rest in perfect being. Since perfect being resides in God, who is perfect being, all creatures desire to participate as fully as possible in God’s being. In this sense, Aquinas says, every creature loves God more than itself, since love loves what is most unified. And further, Aquinas sees the proper work of the human race is to assist the return of all creatures to God through knowing their nature. That is to say, human consciousness is the outer limit of the created order through which everything is directed back to God as the source of their being.

It is this, almost mystical, understanding of the nature of the divine will that was overturned by the nominalists and voluntarists, and which placed human nature, and nature as a whole, in contradiction with God. Although most people have little knowledge of these matters and the shift that took place in the High Middle Ages, that shift is still at play in our general culture and in the general ideas that rule law and politics. So when law or politics are discussed in terms of ‘will’, either the ‘will of the people’, or the ‘will of the ruler’, then a confusion enters which clouds questions of right action or justice.

Contrary to these prevailing attitudes, the natural orientation of the human will in society is towards the common good and the welfare of all. For Cicero, or Aquinas or Richard Hooker we naturally recognise this.

(Shakespeare 1564-1616)

Richard Hooker (1554-1600)

Hugo Grotius (1583-1645)

Francisco Suárez (1548-1617) School of Salamanca

Samuel Pufendorf (1632-1694)

Francisco de Vitoria (1483-1546)

Domingo de Soto (1494-1560)

Navarrus (Martín de Azpilcueta) (1491-1586)

 

[1] Cicero, De Republica, translated by George William Featherstonhaugh (Alpha Edition, 2017) III.XXII, 33

[2] Mary Midgely, The Solitary Self (Acumen, 2010)

[3] Teilhard de Chardin, The Phenomenon of Man (Collins 1959)

[4] Plato, The Laws of Plato, translated by Thomas Pangle (Focus Books 1980) 889b