Libraries & Spaces
The Doctrine Lives
The Eternal Return of Natural Law
THE NEWS REPORTED in the last chapter—that the tradition of natural law is dead—calls for some verification, before it is accepted as true. For one thing, it may be a case of mistaken identity; perhaps it was for some contrefaçon of the doctrine that the funeral rites were held. This is possible. So many misunderstandings have conspired to obscure the true identity of the doctrine that it is often mistaken for what it is not. Some of the misunderstandings are naive; others are of the learned sort. Some are the product of ignorance; others result from polemic bias.
The doctrine is accused of abstractionism, as if it disregarded experience and undertook to pull all its moral precepts like so many magician's rabbits out of the metaphysical hat of an abstract human "essence." The doctrine is also interpreted as an intuitionism, as if it maintained that all natural-law precepts were somehow "self-evident." It is also derided as a legalism, as if it proclaimed a detailed code of particularized do's and don'ts, nicely drawn up with the aid of deductive logic alone, absolutely normative in all possible circumstances, ready for automatic application, whatever the factual situation may be. The theory is also rejected for its presumed immobilism, as if its concept of an immutable human nature and an unchanging structure of human ends required it to deny the historicity of human existence and forbade it to recognize the virtualities of human
freedom. It should already be clear from the earlier chapter on the origins of the public consensus that these conceptions are caricatures of the doctrine of natural law.
There is also the biologist interpretation, which imputes to natural-law theory a confusion of the "primordial," in a biological sense, with the "natural." This is a particularly gross and gratuitous misinterpretation, since nothing is clearer in natural-law theory than its identification of the "natural" with the "rational," or perhaps better, the "human." Its whole effort is to incorporate the biological values in man, notably his sexual tendencies, into the fuller human order of reason, and to deny them the status of the primordial. The primordial in man—that which is first in order—is his rational soul, the form of humanity, which informs all that is biological in him. Natural-law argument against sexual aberrations (including artificial contraception) indicts them precisely because in them man succumbs to his own biological inclinations in violation of the primordial inclinations of reason and real love.
There is also the objectivist-rationalist interpretation, which is the premise from which natural-law theory is criticized for its supposed neglect of the values of the human person and for its alleged deafness to the resonances of intersubjectivity. In point of fact, the theory never forgets that the "nature" with which it deals has no existence except in the person, who is a unique realization of the nature, situated in an order of other unique realizations, whose uniqueness, nevertheless, does not make them atomistic monads, since it is in each instance a form of participation and communication in the one common nature.
Finally, there is the charge that natural-law doctrine is not "Christian." If it be meant that the doctrine in structure and style is alien to the general Protestant moral system, in so far as there is such a thing, the charge is true enough. The last chapter will have made this clear. It would not, of course, be difficult to show that the doctrine
is, in germinal fashion, scriptural. However, I shall be content here to make only four comments.
First, natural-law theory does not pretend to do more than it can, which is to give a philosophical account of the moral experience of humanity and to lay down a charter of essential humanism. It does not show the individual the way to sainthood, but only to manhood. It does not promise to transform society into the City of God on earth, but only to prescribe, for the purposes of law and social custom, that minimum of morality which must be observed by the members of a society, if the social environment is to be human and habitable. At that, for a man to be reasonably human, and for a society to be essentially civil—these are no mean achievements. The ideal of the reasonable man, who does his duty to God, to others, and to himself, is not an ignoble one. In fact, it puts such a challenge to the inertness and perversity which are part of the human stuff, that Christian doctrine from the day of St. Augustine has taught the necessity of divine grace for this integral fulfillment of the natural law.
Second, beyond the fulfillment of the ideal of the reasonable man there lies the perennial question of youth, whatever its age. It is asked in the Gospel: "What do I still lack?" (Matthew 19:21). And there remains the Gospel's austere answer, put in the form of an invitation, but not cast in the categories of ethics, which are good and evil and the obligation to choose between them. The invitation opens the perspectives of a higher choice, to "be a follower of mine." For the making of this choice there is no other motive, no other inner impulse, than the free desire to respond to the prior choice of Him whom one chooses because one has been first chosen.
Third, the mistake would be to imagine that the invitation, "Come, follow me," is a summons somehow to forsake the universe of human nature, somehow to vault above it, somehow to leave law and obligation behind, somehow to enter the half-world of an individualist subjectivist "freedom" which pretends to know no other norm save "love." In other words, the Gospel invitation, in so far as
it is a summons to the moral life, is not a call to construct a "situation ethics" that knows no general principles of moral living but only particular instances of moral judgment, each one valid only for the instance; and that recognizes no order of moral law that is binding on freedom, but only a freedom that is free and moral singly in so far as it is sheer spontaneity.
Fourth, the law of nature, which prescribes humanity, still exists at the interior of the Gospel invitation, which summons to perfection. What the follower of Christ chooses to perfect is, and can only be, a humanity. And the lines of human perfection are already laid down in the structure of man's nature. Where else could they be found? The Christian call is to transcend nature, notably to transcend what is noblest in nature, the faculty of reason. But it is not a call to escape from nature, or to dismantle nature's own structure, and least of all to deny that man is intelligent, that nature is intelligible, and that nature's intelligibilities are laws for the mind that grasps them. In so far as they touch the moral life, the energies of grace, which are the action of the Holy Spirit, quicken to new and fuller life the dynamisms of nature, which are resident in reason. Were it otherwise, grace would not be supernatural but only miraculous.
I list these misunderstandings of natural law only to make the point that those who dislike the doctrine, for one reason or another, seem forever to be at work, as it were, burying the wrong corpse. For my part, I would not at all mind standing with them, tearless, at the grave of any of the shallow and distorted theories that they mistake for the doctrine of natural law. The same point will come clearer from a bit of history. At about the turn of the century it was rather generally believed in professional circles that the Scholastic idea of natural law, as an operative concept in the fields of ethics, political theory, and law and jurisprudence, was dead. In other words, it was generally assumed that the great nineteenth-century attack on natural law had been successful.
In this respect, of course, the nineteenth century exhibited those
extensive powers of learned misunderstanding which it possessed to an astonishing degree. In its extraordinary ignorance of philosophical and legal history, it supposed that the "law of nature" of the Age of the Enlightenment was the ius naturale of an earlier and in many ways more enlightened age. It supposed therefore that in doing away with the former, it had likewise done away with the latter. This was by no means the case. The theory of the "law of nature" that was the creature of the Enlightenment was as fragile, time-conditioned, and transitory a phenomenon as the Enlightenment itself. But the ancient idea of the natural law is as inherently perennial as the philosophia perennis of which it is an integral part. Its reappearance after its widely attended funeral is one of the interesting intellectual phenomena of our generation.
Admittedly, the phenomenon is not yet as plain as the old hill of Houth; but it is discernible. In 1902, when Sir John Salmond published his well-known book, Jurisprudence, he wrote: "The idea of a law of nature or moral law (lex naturalis, lex naturae) . . . has played a notable part in the history of human thought in the realm of ethics, theology, politics and jurisprudence. It was long the accepted tradition of those sciences, but it has now fallen on evil days, and it can no longer be accepted as in harmony with modem thought on those matters." However, when Parker edited the ninth edition in 1927 he was impelled to add the cautious footnote: "Sir John Salmond's view that the doctrine in all its forms is now discredited cannot be considered correct."
Today, thirty years later, when modern thought has caught up a bit more with the past, one might perhaps transcend the timidity of this footnote. As a matter of fact, it would seem that the ancient tradition of natural law is beginning to climb out of the footnotes of the learned books into the very text of our time, as the conviction dawns that there are resources in the idea that might possibly make the next page of the text sound less like a tale told by an idiot.
Here then might be an approach to the whole subject of natural
law. It would be an historical approach, on the theme indicated by Heinrich Rommen in the title of his book, Die ewige Wiederkehr des Naturrechts. The idea would be to describe, first, the origins and political significance of the Western tradition of natural law; secondly, the supplanting of this tradition by a newly conceived "law of nature" that had its greatest intellectual popularity in the Age of the Enlightenment and its highest political success in the Era of Revolution; thirdly, the reaction against this law of nature, that resulted in the victory of juridical positivism (the triumph of the idea that "law is will" over the ancient idea that "law is reason"), behind whose success lay all the forces that came to power in the nineteenth century—scientific empiricism, sociologism, psychologism, historical and philosophical materialism; fourthly, today's reaction against the positivist theory, as the ideas of justice and of human rights have had a rebirth in the face of the problems raised by totalitarian government and by the multiple aspects of the social conflict and the international conflict. It is this reaction, which is in fact a progress, that has effected the latest Wiederkehr of the idea of natural law.
Another approach to the problem of natural law is possible—a more directly philosophical approach. The idea of natural law goes back to the remotest origins, not only of political thought, but of ethical thought—to the day when man first began to reflect on the problem, whether there be something that intrinsically distinguishes right from wrong, whether what is right ought to be, and (on the political plane) whether laws ought to be just, and whether what is just ought to be law. These problems raise the basic ethical question, whether there is a connection between "being" and "oughtness," whether the moral order is a reflex and prolongation of a metaphysical order. In consequence, they bring man to the heart of philosophy itself. In fact, every system of natural law, whether it be Aristotle's or St. Thomas's or Locke's or Pufendorf's, has its premises; it supposes an epistemology, and therefore a metaphysic (or the absence of one). On the other hand, every system of natural law has its con-
clusions; it issues in a political philosophy—a concept of the nature of the state, its end, scope, and functions. Consequently, to inquire what natural law is, means to inquire, on the one hand, what the human mind is and what it can know, and on the other hand, what human society is and to what ends it should work. But, as is obvious, all this is to inquire what man himself is—what this human "nature" is of which one predicates a law "natural."
Both of these approaches to the problem of natural law are evidently much too ambitious for the present purpose; I mention them only to suggest the architecture of the problem. Here I shall offer simply a comment on a conclusion suggested to the mind as it contemplates, in the light of contemporary problems, the two interpretations of the natural law that have historically put themselves forward as the basis of political philosophy. I mean the "law of nature" of the Enlightenment and the "natural law" of the philosophia perennis, whose origins go back to Heraclitus and to the greatest of Greek philosophers and Roman jurists, and whose developed expression is found in St. Thomas Aquinas and the later Scholastics. My suggestion is that the eighteenth-century "law of nature" (so I shall consistently call it, to distinguish it from the older "natural law") was indeed a potently revolutionary force in its own day, because of the nature of the problems of that day; today, however, its dynamism has run out, and its impotence in the face of the different problems that confront us is demonstrable.
"Today," Mr. John Bowle has suggested, "the tremendous initiative, the sprawling enterprise, of the nineteenth century may well be changing to an age of order, of consolidation." (Western Political Thought. London: Oxford University Press, 1947.) Today, as perverted social patterns are attempting to impose themselves on human life, to the destruction of human freedom, our problem in the West is ourselves to create a new social pattern—a pattern of freedom, that will be truly a pattern, but that will leave to freedom all its
necessary energizing dynamism. Our problem is not simply to safeguard "human rights," in the sense of fortifying each discrete individual in the possession of a heterogeneous collection of social empowerments; it is rather to erect, and secure against all assault, an ordo juris, an order of law that will be in consequence an order of rights and hence by definition an order of freedom. If this is so, as I think it is, the new "age of order," of just law and true freedom, must look to natural law as its basic inspiration.
THE LAW OF NATURE
Everybody knows that in the eighteenth century the "law of nature" and the "law of reason" were phrases to conjure with. With his usual engaging cynicism, that in this case does not veil the truth, the late Carl L. Becker described the phenomenon and the climate of opinion, set by Cartesian philosophy and Newtonian physics, that made it possible. To justify what one considered desirable, socially or personally, one appealed in those days to the "law of nature," as today one appeals to "democracy," always with fervor, if not always with good sense. This was true not only in France of the philosophes, but to a lesser degree even in America. Mr. Carl Van Doren in The Great Rehearsal recounts how one disturbed New Englander objected to the two-year senatorial term proposed by the Constitutional Convention, on the ground that a one-year term was a "dictate of the law of nature"; spring comes once a year, and so should a batch of new Senators.
If it is difficult for us today to share this enthusiasm for the law of nature, it is still more difficult for us to grasp the pivotal concept on which the seventeenth- and eighteenth-century theory of the law of nature depended—the concept of the "state of nature." Yet this was a concept that had all the power of a myth. It found its literary immortalizations, familiar to us all, in Defoe's Robinson Crusoe (1719) and Rousseau's Emile (1762). And its prominence in the
philosophical and political literature of the time is a well-known fact.
This "state of nature" was a purely imaginary construct possible only to the eighteenth-century reason; it was an imaginary state that was nevertheless supposed theoretically to have existed. It depicted what man was and how he lived antecedently to the formation of all human communities and to the establishment of all the laws and customs of social life. The value of the concept was functional. It was a methodological postulate, an abstraction posited as the starting point for a theory of the law of nature; for in the state of nature man was ruled only by the law of nature, and consequently in this state the law of nature could be discovered in all its abstract purity. The further function of the state of nature was to explain, in conjunction with the theory of the social contract, the genesis of political society, its form, and the relative rights of government and citizen.
The "state of nature" was, of course, a purely formal concept; one could fill it with whatever content one wished, make it pregnant of whatever political consequences one fancied. Here, however, we may confine ourselves simply to the theory of John Locke; it had the greatest fortune both in the Anglo-Saxon and in the French political world. In Locke's system, the state of nature had the initial essential function of establishing the inalienability of the rights of man, as Locke conceived them. In the state of nature, man appears with complete suddenness as a full-grown individual, a hard little atom in the midst of atoms equally hard, all solitary and self-enclosed, each a sociological monad. The idea of man, therefore, is that of an individual who is "absolute lord of his own person and possessions, equal to the greatest and subject to nobody," as he says in his Second Essay. In this absolute lordship, equality, and independence consists the Lockean idea of man's "freedom," a freedom that is natural and therefore inalienable save within the limits of his own free choice. On this free individual rests a single law—the law of nature—with a single precept, that of self-preservation, the preservation of his own life, liberty, and property. This law has only one limitation—the
same law as obligatory also on other individuals, who in their equally sovereign independence are likewise bound to preserve themselves. Beyond this duty of self-preservation, but subject to its primal exigencies, the individual has one further duty: "Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he as much as he can to preserve the rest of mankind."
This is the Lockean state of nature and law of nature. On it is based, by a process of pure postulation, the inalienability of the rights of the individual to life, liberty, and property, and the limitation of these rights solely by the equal rights of other individuals. The chief difficulty about this state of nature is, of course (as Locke naively admits), the obvious fact that it is "not to be endured." With the optimism characteristic of his age and the inconsistency characteristic of himself, Locke prattles a bit about the "innocent delights" attendant on the "liberty" of the state of nature. But it is difficult to see how a state could be delightful wherein every individual is a sort of little god almighty, whose power to preserve himself is checked only at the point where another little god almighty starts preserving himself. At this point, one is more sympathetic with the ruthless logic of Thomas Hobbes, who says forthrightly in his Leviathan that the state of nature is a "condition which we call Warre," and that the life of the omnipotent monads, among whom prevails the single law of the right of all to all things, is "solitary, poore, nasty, brutish and short." The first impulse of the law of nature, which is that of self-preservation, is, says Hobbes, that of "getting themselves out of the miserable condition of Warre." Locke puts it more politely: "Thus mankind, notwithstanding all the privileges of the state of Nature, being but in an ill condition while they remain in it, are quickly driven into society."
But how does one get these "absolute lords" into society, under government, subject to limitations on their natural omnipotence? Only by their own free act: "Men being, as has been said, by nature
all free, equal, and independent, no one can be put out of this estate and subjected to the political power of another without his own consent." Society is not the product of nature but of artifice. It comes into being by the social contract, by the act of men "agreeing together mutually to enter into one community and make one body politic." Thus Locke establishes his second principle on the same grounds as the first: as the rights of man are inalienable, because man is by nature an omnipotent sociological monad, so for the same reason government must be by the consent of the governed.
Moreover, the motive of the consent, as of the "drive" that gets men into society, is self-interest, self-preservation, and particularly the preservation of what was very dear to Locke's middle-class heart, the preservation of property: "The great and chief end, therefore, of men uniting into commonwealths and putting themselves under government, is the preservation of their property, to which in the state of nature there are many things wanting." Society, paradoxically, is the product of egoism. It is an artificial contrivance to rescue the ego by restraining somewhat its egoism. The essence of social man, as of individual man, is selfishness. Finally, pursuing the same line of thought, Locke comes to his third principle, the limitation of governmental power by the "common good." This common good consists merely in the security of each individual in the possession of his property. That is the end of social life as of individual life; the social end differs from the individual end only quantitatively.
This, briefly, is Locke's theory of the law of nature, as embracing a theory of natural rights and their inalienability, of the origins of political society, and of the functions and limitations of governmental power—all based, as is clear, on an idea of man. The three characteristics of the system are obvious—its rationalism, individualism, nominalism. The law of nature, the rights of man, and the origins of society are not derived from what is "real," from the concrete totality of man's nature as it really is. They are deduced from an abstraction, a fictitious state of nature, a disembodied idea of man
that is put forward as "rational" and by that sole title real, whereas it was in effect but a reflex of the socio-philosophical individualism of a superficial age.
This individualism, this atomistic social outlook, is the predominant characteristic of Locke's system. His law of nature is solely a law of individual nature, conceived after the abstract fashion of the rationalist. The premise of Locke's state of nature is a denial that sociality is inherent in the very nature of man, and the assertion that the civil state is adventitious, that man is by nature only a solitary atom, who does not seek in society the necessary condition of his natural perfectibility as man, but only a utilitarian convenience for the fuller protection of his individual self in its individuality. Bentham's utilitarianism is, in fact, but the logical prolongation of Locke's thought. Locke's individualism completely deprives society of any organic character. Society is not organized in ascending forms of sociality that are made necessary by, and radicated in, nature itself, beginning with the family, through the occupational group, and culminating in the "perfect society," the political community as such, the respublica.
In Locke's theory all forms of sociality are purely contractual; they have no deeper basis in the nature of man than a shallow "reason" that judges them useful. (Even the church he will allow to be no more than a voluntary association of like-minded people—a concept congenial indeed to a certain wing of Protestantism, but one that an increasing number of Protestants today are finding it difficult to live with.) Against this evacuation of all reality from the notion of society and "social being" the Romantic movement, with its love of the "organic," was a reaction, that in time carried the world to the excesses of the totalitarianisms of race and class.
In England, of course, Locke's individualistic law of nature never had its logical social consequences. There were too many elements of the more human medieval tradition deposited in English institutions, and above all in the English common law, for the inherent
consequence of Locke's theory to work itself out; I mean the dissolution of the organic character of the total political relationship and its reduction to the harsh antithesis, individual versus state, together with the connected idea of the juridical omnipotence of the state. However, the French enthusiasts who took up his ideas had none of the inhibitions imposed on him by his British common sense, caution, and feeling for tradition. In consequence, his law of nature, when it had passed through their politically irresponsible "reason," results in the complete social atomism of the Constitution of 1791 and the Declaration of the Rights of Man and Citizen. There it appears that there are only two "sovereignties": that of the individual over his private life and that of the state over all forms of social life. There are no autonomous social forms intermediate between the individual and the state. Not only are the traditional etats dissolved, but it is decreed that: "There are no longer iurandes, nor corporations of professions, arts and crafts, nor any private humanitarian associations or private schools." (The famous loi Chapelier of 1793 carried this atomism to its ultimate absurdity, that produced a reaction; not even the conquering "reason" of the philosophes could convince a lot of sensible, provincial Frenchmen that they had only two loyalties—one to themselves as individuals and the other to the state.)
Finally, the individualism of Locke's law of nature results in a complete evacuation of the notion of the "rights" of man. It is quite evident that Locke's state of nature reveals no ordo juris, and no rights in any recognizably moral sense. There is simply a pattern of power relationships—the absolute lordship of one individual balanced against the equally absolute lordship of others. Significantly, Locke uses the word "power" more frequently than the word "right" in describing the state of nature. Moreover, what the social contract does, in effect, is simply to transfer this system of power relationships into the civil state, with the sole but significant difference that there is now added to it a "third power," the public power of government.
In the naked essence of Locke's thought, government is the arbiter of "right," only in the sense that it is a power to check power. And its use is "right" when behind it is the consent of the community, that is, the consent of the majority, that is, again (in Locke's explanation of majority rule), "the greater force," in which is embodied "the power of the whole."
Again, Locke did not draw all the implications from his theory, but the French did. There was Montesquieu, for instance, with his doctrinaire theory that only power checks power, and that when the checks are adequate the mechanical resultant is freedom (unless, one is inclined to add, it be the situation in which the French to this day seem to delight—the paralysis of power and consequent chaos). Moreover, there was the fourth article of the Declaration of the Rights of Man, wherein the logic of Locke's theory runs out in the statement that the "limits" of individual rights "can be determined only by law," that is, by positive law. Here is the explicit denial of any ordo juris antecedent to the state; here is the seed of legal positivism, and the essence of Rousseau's omnipotent democracy, wherein there is complete identification of state and national community, and the consequent subjection of all forms of community life to total state control. The logical outcome of Locke's individualistic law of nature, in its French transcription, was the juridical monism of the successive French Republics. In consequence of the false antithesis, individual versus state, all self-governing intermediary social forms with particular ends are destroyed, in order to create "free and equal citizens," who are subject only to one law, the positive law of the state, the exclusively competent lawmaker. There is no longer any pluralism of social institutions existent and self-directing by natural or positive divine right (e.g., workers' unions or the Church), antecedent to, or above the state. There is only the monistic unity of the political order, under a legislative that is juridically omnipotent, the source and origin of all right. And to enforce this political unity, by destruction of all possibly com-
peting allegiances, there was a state-fostered political mysticism, the "civil religion" of Rousseau, which was indeed no kind of religion but simply a means to homogeneity in the state. (I have already pointed out in a previous chapter that it was against this type of liberalist individualism—as positing a social and juridical monism and a concept of the juridical omnipotence of the state, both based on the concept of the absolute autonomy of the individual human reason—that the Catholic Church directed her uncompromising attacks during the nineteenth century, under appeal to the traditional natural law.)
The third characteristic of Locke's system of natural law is its nominalism. Since he was on the one hand an empiricist in epistemology (who denied the power of intelligence to reach anything beyond the individual singular thing), and since on the other hand he wished to talk as a philosopher (using the traditional terms—man, nature, law, right, authority, society, state, etc.), Locke could not be anything but that most decadent of all philosophical things, a nominalist. All these terms to him are mere flatus vocis, symbols to which corresponds no metaphysical reality. For instance, society as such, or man as ens sociale, signifies nothing real; the terms are symbols indicating a certain amount of material utility that the individual derives from contractual forms of association with other individuals. Similarly, the law of nature is but a nominalist symbol for a collection of particular empowerments considered desirable for the preservation of "property" in the wide Lockean sense. Or again, the "common good" is nothing real in itself, a social good qualitatively distinct from individual goods, but simply a symbol for the quantitative sum of individual goods. Finally, "right" is not a term relating to a moral order deriving from the essences of things; it is simply a symbol flourished to assure the free functioning of self-interest. In the rarefied mental climate of the philosophes, as well as in the muzzy mysticism of Rousseau, this purely symbolic value
of the phrase, "the rights of man," as a potent form of political incantation, is still more marked.
THE LAW OF NATURE AS A POLITICAL INSTRUMENT
What then does one say about this individualistic law of nature in Locke's statement, and the French restatement, of it? What one says depends on whether one regards it as a piece of philosophy or as a political weapon. As a piece of philosophy—that is, as ultimately resting on an idea of man and human society—it hardly needs refutation today. As a matter of fact, the refutation of the system was supplied before the system itself was born; Aristotle himself suggested its substance, even apart from the development of Aristotelian epistemology, ethics, and political philosophy in the Scholastic tradition. However, one need not appeal to thinkers antecedent to Locke; those subsequent to him will do. Darwin, Freud, and Marx are sufficiently his judges in what concerns the pillars of his system. The genuine and true insights that lie at the root of these three latterly proposed systems have destroyed completely the Lockean idea of man, of the state of nature, and of civil society; this, notwithstanding the fact that these true insights are so denatured by their incorporation into falsely monistic systems that in their own context they are themselves false.
Darwin and the principle of continuity in nature dealt a mortal blow to the atomism of post-Reformation anthropology, with its theory of discrete individuals who "happen" suddenly and live "unattached" save in so far as with sovereign freedom they attach themselves. In evolutionary theory, man is solidary, by all that is material in him, with all life. Purified of monistic connotations, the notion is compatible with a central thesis of Christian anthropology, that asserts the law of solidarity for both flesh and spirit; but it is not compatible with Lockean individualism. Again, when Freud fulfilled his promise, "Acheronta movebo," he shattered forever the "angel-
mindedness" of the Cartesian man, and the brittle rationalistic optimism founded on it with the aid of eighteenth-century mechanicism, which supposed that there were "laws of reason" in human affairs that needed only to be discovered to be acted upon, and likewise (with Rousseau) supposed that all men would, as has been said, cease to be evil, if only no one tried to compel them to be good. Finally, the Marxist intuition of the reality of the "collective" and its organic character, of the importance of material factors in society, and of the conditions of heteronomy and loss of freedom produced by the individualism of capitalist society, effectively disposed of the empty nominalism and false idealism of the "law of nature" concept of human community based solely on the social contract struck between "absolute lords."
In this day and age, therefore, one need not take with any philosophical seriousness Locke's account of human nature, or his individualistic law of nature, or his simplistic theory of the origins of society; these are all as "dated" as the clothes Locke himself wore. The same remark goes for Rousseau. How "dated" he, and the Declaration of the Rights of Man and Citizen inspired by him, actually are, may be seen, for instance, by a glance at the Italian Constitution of 1948, into whose making went the four currents of the contemporary world—the Christian Democratic, the Liberal (of the Mazzinian tradition), the Socialist, and the Communist. The Second Article will illustrate the difference of spirit: "The Republic recognizes and guarantees the inviolable rights of man, both as an individual and in the social formations in which his personality unfolds itself, and calls for the fulfilment of the duties of political, economic and social solidarity." Neither Locke nor Rousseau could have written that.
At all events, Locke's law of nature did not owe its undeniable success to its philosophical shallowness (though in a philosophically shallow age that was no disadvantage). Its philosophical weakness vanished before its strength as a political weapon in the performance
of the political task that at the moment needed to be done. At bottom, the focus of Locke's thought was narrow and practical. He was not searching for a generalized theory that would make society right, but simply for a theory that would make it right for England to have resisted an autocratic king—to have cut off his head (Charles I) or at least dethroned him (James II). He wrote, as he admitted, to justify the "Glorious Revolution" of 1688, and to settle William of Orange on a throne to which his theoretical title was highly dubious. Besides this particular political aim, he had other preoccupations of a practical order that appealed to common sense. He wrote at a time when the common sense of England was weary of the socially sterile enthusiasms of the Civil Wars; when the business community of England stood looking into the long horizons of commercial prosperity opened by colonial expansion and the development of foreign trade; when mercantile influence on government in the interests of property and freedom for commercial enterprise was on the rise; when economic advantage rather than dynastic or religious rivalries was becoming the moving force in the international field. Consequently, Locke was interested in seeing government influenced by the propertied class through the principle of representation; he wanted government by the consent of the landowners and merchants (this, in effect, is what Locke's "consent of the governed" meant). He was further interested in advancing the concept that government's sole function is the guaranteeing of individual liberty (i.e., property, and the freedom to increase it). In a word, his problem was to devise a law of nature that would support a political theory that would in turn support a businessman's commonwealth, a society dominated by bourgeois political influence through the medium of the "watch dog" State whose functions would be reduced to a minimum, especially in the fields of business and trade.
As an instrument for these particular political and politico-economic aims, his theory of the individualistic law of nature was ad-
mirably adapted, whatever its philosophical shortcomings. With the last of the Stuarts gone, and a new world opening up, the time was ripe for a new kind of polity; and since Locke was not its prophet but its apologist, he had honor in his own country. Whether his law of nature made philosophical sense or not, the ordinary English property owner did not trouble to ask; it delivered the goods demanded at the moment, and that was enough. I should add, too, that Locke delivered the goods—helped to create a stable and vigorous political community—largely because he restated, and did not quite succeed in denaturing, the great political truths that were the medieval heritage, but that had been obscured in the era of absolutism and the divine right of kings (which, as Kem has pointed out, was not a development but a denial of medieval ideas).
Against the principle of absolutism—the assertion of the irresponsibility of the king and the unlimited scope of his power—Locke asserted (in debased form) the central medieval tradition of the supremacy of law over government, and of government by law which is reason, not will. Against the central point of divine-right theory—that the monarch's right to rule is inalienable and independent of human agency—he asserted (on philosophically indefensible grounds) the medieval principle that sovereignty is "translated" from the people to the ruler, who is responsible to the people in its exercise and holds title to it only as long as he serves their common good. Finally, against absolute centralization of power in the monarch, he asserted (again on false premises) the medieval doctrine of the right of the people to participate in government. In other words, though Locke knew only an artificial law of nature, he asserted in effect the fundamental positions of the natural-law philosophy of the state that had been the creation of greater minds than his, operating at the center of a tradition to whose periphery he himself had moved. These truths, that were not of Locke's own devising, furnished the essential dynamism of his system. Their truth stood up, in spite of Locke's failure to understand and demonstrate
it; and this truth gave them their impact on the political conscience of the time. Not even Locke's narrow individualism, his thin rationalism, and his empty nominalism could quite veil their absolute validity as imperatives of a human reason that has a greater and more universal power than was dreamt of in Locke's philosophy.
Locke had great honor also in France. The success of his theory of the law of nature, put into more doctrinaire form by French theorists, might be explained on similar lines. It was congenial to the individualistic and rationalistic mentality of that extraordinarily small group of men whose ideas succeeded in turning France upside down. They were not concerned, as Locke was, with justifying a revolution, but with making one. And they made it in the name of the law of nature. The prime value of the idea lay in its power of destruction. What these men, for a variety of reasons, wanted to do was to destroy the rigid, clumsy, anachronistic, crippling absolutism of the ancien regime. What they needed to lay hands on in the first instance was a corrosive, not a constructive, force. And they found it in the theory of the "rights of man," based on the individualistic law of nature.
There is no need here to go into the history of the lengthy, complicated, very bloody revolution that strove to incorporate this theory into political institutions. What I want to note is that the revolution was professedly political. It has been remarked that the political essence of the revolution was in the decision of the Third Estate on June 17, 1789, to set about the making of a constitution quite by itself, apart from the nobles and clergy, and in the subsequent resolution of the Estates General into the National Assembly. This was a political decision—the assumption by "the people" of their right to govern themselves. The problem of the moment was essentially political. And the temper of the times was largely that voiced by Rousseau when he said in his Confessions, describing the inspiration of his Social Contract: "I had come to see that in the last resort everything depends on politics, and that whatever men may do, no nation
will ever be anything but what the nature of its Government may make it." The principle, like most things at the time, is on its head; its reverse is more certainly correct. However, it was the revolutionary principle. And it was allied with the further principle that government will necessarily be good, if "the people" run it; for "the people," according to Rousseau, are themselves necessarily good; it is only bad government that makes them bad. If then the "general will" of the people makes the laws, the laws will be right, because the sovereign people is always right.
Thus spake the Eclaircissement—as usual, mixing truth with nonsense. And also as usual, the truth derives from the Western political tradition of natural law; the nonsense, from the eighteenth-century philosophoumenon, the law of nature. The agglomeration of both (obviously, along with other causes) made the Revolution. But it was powerful enough to do so (and this is my point) for the reason that the Revolution to be made was political. The determination that existed was that of bringing to an end an era and an order of political privilege (or, in America, that of preventing the rise of such an order). The principle embedded in the political philosophy of St. Thomas Aquinas was having a rebirth under the pressure of arbitrary power on the conscience of the people: "In regard of the good ordering of rulers in a city or nation . . . the first thing [to be observed] is that all should have some share in the government. . . . " And the validity of the reason he gives, on the authority of Aristotle, was again being confirmed: "for in this way the peace of the people is preserved, and all love and cherish such an order, as it is said in the Second Book of the Politics" (Summa Theologia, I-II, q. 105, a. 1). Locke and Rousseau, in whose angular rationalistic thought there was little room for experience and psychology as sources of political philosophy, were, in fact, carried to popularity by a psychological drive of discontent born of harsh experience. In such times of discontent with the fundamental structures of society, as
Laski has pointed out, the gospel of human rights always has a resurgence.
The eighteenth-century gospel, based on the individualistic law of nature, could not at the time fail to be popular. For the primary drive then was toward destruction, and the law of nature concept of human rights was an appropriate dynamism of destruction, precisely because of the philosophical nonsense it enshrined. I mean that its individualistic rationalistic nominalism, precisely because it disregarded the organic character of society, and precisely because its concept of "progress" entailed a complete denial of the past and of the continuity of human effort, was an effective solvent of the corporate institutional structure of society as it then was. It could not (in France, at least) initiate simply a movement of reform; it could only operate as an engine of destruction. In the same way, its rationalistic secularism was effective against the usurping theory of divine right on which sovereignty at the time was based. And its mobilization of the "power of the people," under the nominalist slogan of the "rights of man," was an effective counterpoise to the unendurable centralization of power in king and nobles. This theory, therefore, could ride against the evils of the time with all the force, not only of truth but of error itself. Its theoretic dogmas were, as theories, false; but, as dogmas, powerful. Its exclusive attention to the problem of politics, and its attempt to solve it by violently creating an artificial "equality of citizens" (free, supposedly, as men, because equal as citizens), could end, as it did, only in dictatorship. But at least it could accomplish the social ruin that made dictatorship inevitable. And for the moment, a work of ruin was the immediate objective; for anger was abroad as well as reason, and it was not averse to using "reason" as its instrument.
On the other hand, the theory of natural rights, based on a law of nature, had also a measure of constructive dynamism—this time, not by reason of the philosophical nonsense involved in its theoretical scaffolding, but by reason of the intuition of truth that even the
scaffolding could not wholly obscure. By nature all men are, as Bergbohm despairingly said, natural-law jurists. Intuitively they reach the essential imperatives of their own nature and know them to be unthwartably imperative—however much they may subsequently deform them, and destroy their proper bases, by uninformed or prejudiced reflective thought. And just as all men by nature—by the native power of moral intelligence—know that there is a difference between the iustum naturale and the iustum legate (the one based on natural law, the other on positive law), so, too, they naturally "see" the natural-law truth that "sovereignty is from the people," however much they may then go on falsely to conceptualize this truth. Usually the suffering of injustice is needed to bring the vision, just as immunity from suffering may obscure it. It is, as Pascal said, "the passions that make us think." And in those days the theory of divine right, together with the oppressive weight of the remnants of the feudal system, generated enough passion to make men think furiously. In their fury, they thought of the truth anciently deposited in the lex regia of Justinian's Institutes, and elaborated by the Christian intelligence since the eleventh century.
Being men of the eighteenth century, whose intelligences were by this time very superficially Christian, they did not see this truth in its proper setting, the natural law. But they at least dimly glimpsed it: "Sovereignty is from the people; therefore they are not to be ruled save by their consent, and for their common good, by a power subject to law, whose end is justice, which is an order of right." They did not, I say, know that they were looking at natural law; for the law of nature had shut off natural law from their vision. But it was, for all that, natural law that swam before them; and this obscure intuition furnished whatever positive, constructive dynamism there was behind their revolutionary, destructive efforts. So they set about their work of political liberation—the work of incorporating the doctrine of consent into the structures of government, of creating channels of consent, of establishing political institutions whereby the natural-law
right of popular participation in government might be made effective. In a word, they brought into almost exclusive focus the problems of representation and suffrage, as the necessary expression of the doctrine of popular sovereignty, which was at the heart of the "principles of '89." Their dominant concern was with the external form of government.
To make a long story short, let it be said that this movement for political liberty through political equality expressed in the equal right of franchise ultimately succeeded; by the last decade of the nineteenth century "the people" were furnished with their political weapon in all the major countries of Western Europe. This was a great fundamental success indeed, though it is highly improbable that much of it was due to the law-of-nature concept of natural rights that was the theoretical justification of the original political explosion. At all events, by the end of the nineteenth century Rousseau's man, the individual atom, who had been born free and was everywhere in chains, had supposedly struck off his chains with the hammer of natural rights, based on the law of nature. The only remaining difficulty was that the unfortunate fellow found himself still in chains. And by a curious paradox, the new chains were forged by the very doctrine that was supposed to free him. The doctrine of natural rights that in the eighteenth century was the dynamism destructive of political privilege became in the nineteenth century the dynamism constructive of economic privilege. It was the bulwark of Manchesterism and the laissez-faire state.
No one need have been surprised at this who understood the empty nominalism of the doctrine. Its inherent ambivalence and susceptibility of opposite consequences had already been manifested. In Locke the state of nature and the individualistic law of nature had been so interpreted as to yield moderately liberalist consequences. But with Hobbes its consequences had been rigorously statist; it had been the justification of the royal absolutism of the Stuarts. The "omnipotent democracy" which Rousseau drew from
the doctrine became, with Hegel, a statism that Rousseau would have repudiated. And the individualistic law of nature as evolved by Pufendorf and Thomasius was used to justify the "enlightened despotism" of the Prussian Fredericks and of the Austrian Emperor Joseph II. The law of nature was, in effect, a veritable Pandora's box. There seemed to be a great hope at the bottom of it, but on its opening many winged evils took their flight across the face of Europe.
If one were, in fine, to sum up its political significance, one would have to say, I think, that it was able to destroy an order of political privilege and inaugurate an era of political equality; but it was not able to erect an order of social justice or inaugurate an order of human freedom. The testimony to the fact is the contemporary protest, in the name of "human rights," against the order (if one can call it an order) which is our heritage from the law of nature of the eighteenth and nineteenth centuries. The characteristics of the law of nature—its rationalism, individualism, and nominalism—made it an effective force for dissolution in its time; but today we are not looking for forces of dissolution, but for constructive forces. Similarly, its power as a solvent made it a force for liberty, in the thin and bloodless, individualist and negative nineteenth-century concept of liberty; but today we are looking for liberation and liberty in something better than this purely formal sense. We want liberty with a positive content within an order of liberty of rational design. Rousseau's "man everywhere in chains" is still too largely a fact. Our problem is still that of human freedom, or, in juridical terms, human rights. It is a problem of the definition of freedom, and then, more importantly, its institutionalization.
But the statement of the problem that we have in common with Locke and with the men of Paris and Philadelphia in 1789 has greatly changed. It is now seen to have a social dimension that no longer permits its statement in the old individualistic terms. Its multiple factors are now grasped with a realism that will not suffer its solution in the old nominalistic categories. And its background now has a
new depth that the old one-dimensional, rationalistic thought never penetrated. The background is an idea of man in his nature, history, and psychology, that transcends the limited horizons of the rationalist mind. Finally, the growing conviction as to the ultimate impotence of the old attempts to solve the problem of human liberty and social order in purely secularistic, positivist terms had created a new openness to the world of metaphysical and religious values. If these alterations in the statement of the problem of freedom and human rights have in fact come about, as I think they have, they will explain the contemporary Wiederkehr of the ancient natural law of the Greek, Roman, and Christian traditions. Only the old idea is adequate in the face of the new problem. It alone affords the dynamic basis from which to attack the problem of freedom as posited in the "age of order" on whose threshold we stand. And it is such a basis because it is metaphysical in its foundations, because it is asserted within a religious framework, and because it is realist (not nominalist), societal (not individualist), and integrally human (not rationalist) in its outlook on man and society. In other words, the structure of the old idea of natural law follows exactly the structure of the new problem of human liberty.
NATURAL LAW 1N THE NEW AGE
This is the point to which I have been coming. However, I have been so long in coming to it that there is now no time or space to develop it! I shall have to be content with some brief comments on the vital resources inherent in the idea of natural law, that indicate its new validity.
First in importance is its metaphysical character, its secure anchorage in the order of reality—the ultimate order of beings and purposes. As a metaphysical idea, the idea of natural law is timeless, and for that reason timely; for what is timeless is always timely. But it has an added timeliness. An age of order is by definition a time
for metaphysical decisions. They are being made all round us. No one escapes making them; one merely escapes making this one rather than that one. Our decisions, unlike those of the eighteenth century, cannot be purely political, because our reflection on the bases of society and the problem of its freedom and its order must be much more profound. And this in turn is so because these problems stand revealed to us in their depths; one cannot any longer, like John Locke, be superficial about them. Our reflection, therefore, on the problem of freedom, human rights, and political order must inevitably carry us to a metaphysical decision in regard of the nature of man. Just as we now know that the written letter of a Bill of Rights is of little value unless there exist the institutional means whereby these rights may have, and be guaranteed, their expression in social action, so also we know—or ought to know—that it is not enough for us to be able to concoct the written letter unless we are likewise able to justify, in terms of ultimates in our own thinking about the nature of man, our assertion that the rights we list are indeed rights and therefore inviolable, and human rights and therefore inalienable. Otherwise we are writing on sand in a time of hurricanes and floods.
There are perhaps four such ultimate decisions open to our making, and each carries with it the acceptance of certain political consequences.
First, one could elect to abide by the old Liberal individualism. At bottom then one would be saying that "natural rights" are simply individual material interests (be they of individuals or social groups or nations), so furnished with an armature by positive law as to be enforceable by the power of government. In this view one would be consenting to a basically atomist concept of society, to its organization in terms of power relationships, to a concept of the state as simply an apparatus of compulsion without the moral function of realizing an order of justice; for in this view there is no order of justice antecedent to positive law or contractual agreements. In a
word, one would be accepting yesterday's national and international status quo; for one would be accepting its principles.
Secondly, by an extreme reaction from individualistic Liberalism, wherein the individual as an individual is the sole bearer of rights, one could choose the Marxist concept of human rights as based solely on social function, economic productivity. One would then be saying that all rights are vested in the state, which is the sole determinant of social function. It is the state that is free, and the individual is called simply to share its freedom by pursuing its purposes, which are determined by the laws of dialectical materialism. In this view one would be consenting to the complete socialization of man (his mind and will, as well as his work), within the totalitarian state, all his energies being requisitioned for the realization of a pseudo-order of "justice," which is the triumph of collective man over nature in a classless society that will know no "exploitation of man by man." In this view, as in the foregoing one, one accepts as the ultimate reality the material fact of power—in one case the power of the individual, in the other the power of the collectivity. One bases society and the state on a metaphysic of force (if the phrase be not contradictory).
A third decision, that somehow attempts a mediation between these extreme views, is soliciting adherents today; I mean the theory that its protagonists call "modern evolutionary scientific humanism," but that I shall call "the new rationalism."
It is a rationalism, because its premise is the autonomy of man, who transcends the rest of nature and is transcended by nothing and nobody (at least nothing and nobody knowable). It is new, because (unlike the old rationalism) it maintains (with Spinoza, whom Bowle has pointed to as one of its earliest forerunners) that man is something more than reason. It identifies natural law (though the term is not frequent with it) with "the drive of the whole personality," the totality of the impulses whereby men strive to "live ever more fully." It is new, too, because it abandons the old rationalist
passion for deductive argument and for the construction of total patterns, in favor of the new passion for scientific method and the casting up of provisional and partial hypotheses. Finally, it is new because it does not, like eighteenth-century rationalism, conceive nature and its laws, or the rights of man, as static, given once for all, needing only to be "discovered." It adds to the old rationalistic universe the category of time; it supplements the processes of reason with the processes of history and the consequent experience of change and evolution.
Nature, therefore, is an evolving concept, and its law is emergent. It is also wholly immanent; for the new rationalism, like the old, denies to man, his nature, or its law all transcendental reference. The new rationalistic universe, like the old, is anthropocentric; all human values (reason, justice, charity) are man-made, and in consequence all human "rights," which are the juridical expression of these values, look only to man for their creation, realization, and guarantee. Their ultimate metaphysical justification lies in the fact that they have been seen, by experience, to be the contemporaneously necessary "expression of life itself." And for "life itself" one does not seek a metaphysical justification; it is, when lived in its fullness, self-authenticating. In this system, therefore, the theological concept is "fullness of life." As this is the end for the individual (to be realized as best may be in his stage of the evolutionary process), so, too, it is the end for the state. The ordo juris is conceived, after the fashion of the modem schools of sociological jurisprudence or realistic jurisprudence, as a pure instrumentality whereby lawmakers and judges, recognizing the human desires that are seeking realization at a given moment in human society, endeavor to satisfy these desires with a minimum of social friction. The ideals of law or of human rights are "received" from the "wants" of the society of the time and place, and any particular ordo juris is throughout its whole texture experimental.
Much could be said further to explain, and then to criticize, this
subtle and seductive system, so much a product of the contemporary secularist mentality (its basic premise is, of course, secularism, usually accepted from the surrounding climate, not reached as the term of a metaphysical journey—few secularists have ever purposefully journeyed to secularism). I shall say only two things.
First, the new rationalism is at bottom an ethical relativism pure and simple. Its immanentism, its allegiance to scientific method as the sole criterion of truth, its theory of values as emergent in an evolutionary process, alike forbid it the affirmation of any absolute values (that is, as long as its adherents stay within their own system, which, being men and therefore by intrinsic necessity of reason also natural-law jurists, they frequently do not, but rather go on to talk of right, justice, equity, liberty, rationality, etc., investing these concepts with an absoluteness they could not possibly have within the system). Second as an ethical relativism, the new rationalism is vulnerable to all the criticisms that historically have been advanced against that ancient mode of thought, since the time when Socrates first argued against the Sophists and their dissolution of a knowable objective world of truth and value.
Chiefly, there are two objections. The first is that the new rationalism, like all the old ones, is unreasonable—surely something of a serious objection to a philosophy. "You do not," said Socrates to the Sophists, "know yourselves—your own nature, the nature of your reason." The same ignorance, though in more learned form, recurs in the modem heirs of sophistry. Secondly, the new rationalism, like all the old ones, is ruinous of sound political philosophy. "You are," said Socrates to the Sophists, "the enemies of the polis, who undermine its nomoi, especially its supreme nomos, the idea of justice, for whose realization all laws exist."
This objection, of course, will be vehemently repudiated by the new rationalists. They are fond of putting their system forward as the proper ideological basis of democracy; conversely, they say that democracy is the political expression of their philosophy. Its separa-
tion of church and state is the expression of their secularist humanism. Its freedom of thought and speech are the reflection of their philosophical and ethical relativism. Its respect for human rights creates the atmosphere in which science may further the evolution of man to higher dignities and fuller life. For my part, however, I should maintain that, by a curious but inevitable paradox, the relativism of the new rationalists must find its native political expression in a new and subtle form of state absolutism. The essential dialectic has already been displayed in history. The absolute autonomy of human reason, postulated by the old rationalism, had as its counterpart the juridical omnipotence of the state. And with accidental variations the dialectic will repeat itself: the autonomy of human reason (the denial of its subjection to a higher law not of its own creation) = relativism in regard of human values = absolutism in regard of the value and functions of the state. Admittedly, the new Leviathan would not be on the Hobbesian model, but it would be for all that the "Mortal God." And the outwardly humble garments that it would wear—the forms of political democracy—would hardly hide the fact that it was in effect the divina maiestas. It would be a long business to explain the working of this dialectic; let me state the substance in a brief paragraph.
I take it that the political substance of democracy consists in the admission of an order of rights antecedent to the state, the political form of society. These are the rights of the person, the family, the church, the associations men freely form for economic, cultural, social, and religious ends. In the admission of this prior order of rights—inviolable as well by democratic majorities as by absolute monarchs—consists the most distinctive assertion of the service-character of the democratic state. And this service-character is still further enforced by the affirmation, implicit in the admission of the order of human rights, of another order of right also antecedent to the state and regulative of its public action as a state; I mean the order of justice. In other words, the democratic state serves both
the ends of the human person (in itself and in its natural forms of social life) and also the ends of justice. As the servant of these ends, it has only a relative value. Now it is precisely this service-character of the state, its relative value, that tends to be undermined by the theories of the new rationalism—by their inherent logic and by the psychology they generate.
Psychologically, it is not without significance that evolutionary scientific humanism should be the favorite creed of our contemporary social engineers, with their instrumental theories of education, law, and government. And it seems that their inevitable temptation is to hasten the process of evolution by use of the resources of government, just as it is to advance the cause of scientific humanism by a somewhat less than human application of science. The temptation is enhanced by the circumstance of the contemporary welfare state in the midst of an urbanized and industrialized mass civilization. The "sin" then takes the initial form of a desertion of their own premises. The "socially desirable objectives" are no longer "received" from society itself (as in the theory they should be); rather they are conceived in committee and imposed on society. The humanism ceases to evolve from below, and is directed from above; it remains scientific, and becomes inhuman. This is the psychological dynamism of the system: the state tends to lose its character of servant, and assume that of master. The psychological dynamism would be less destructive were it not in the service of the logic of the system. In the logic of the system is the destruction of all barriers to the expanding competence of the state. For one thing, the new rationalism is far too pale and bloodless a creed to stand against the flushed and full-blooded power of the modern state. For another, it hardly attempts to make a stand; in fact, its ethical relativism destroys the only ground on which a stand can be made—the absoluteness of the order of human rights that stands irremovably outside the sphere of state power, and the absoluteness of the order of justice that stands imperiously above the power of the state.
These then are three possible metaphysical decisions that one can make as a prelude to the construction of the new age. None of them, I think, carries a promise that the age will be one of true order.
There remains the fourth possible decision—the option of natural law in the old traditional sense. Here the decision is genuinely metaphysical; one does not opt for a rationalization of power, but for a metaphysic of right. I say "right" advisedly, not "rights." The natural law does not in the first instance furnish a philosophy of human rights, in the sense of subjective immunities and powers to demand. This philosophy is consequent on the initial furnishing of a philosophy of right, justice, law, juridical order, and social order. The reason is that natural-law thinking does not set out, as Locke did, from the abstract, isolated individual, and ask what are his inalienable rights as an individual. Rather, it regards the community as "given" equally with the person. Man is regarded as a member of an order instituted by God, and subject to the laws that make the order an order—laws that derive from the nature of man, which is as essentially social as it is individual. In the natural-law climate of opinion (very different from that set by the "law of nature"), objective law has the primacy over subjective rights. Law is not simply the protection of rights but their source, because it is the foundation of duties.
THE PREMISES OF NATURAL LAW
The whole metaphysic involved in the idea of natural law may seem alarmingly complicated; in a sense it is. Natural law supposes a realist epistemology, that asserts the real to be the measure of knowledge, and also asserts the possibility of intelligence reaching the real, i.e., the nature of things—in the case, the nature of man as a unitary and constant concept beneath all individual differences. Secondly, it supposes a metaphysic of nature, especially the idea that nature is a teleological concept, that the "form" of a thing is its
"final cause," the goal of its becoming; in the case, that there is a natural inclination in man to become what in nature and destination he is—to achieve the fullness of his own being. Thirdly, it supposes a natural theology, asserting that there is a God, Who is eternal Reason, Nous, at the summit of the order of being, Who is the author of all nature, and Who wills that the order of nature be fulfilled in all its purposes, as these are inherent in the natures found in the order. Finally, it supposes a morality, especially the principle that for man, a rational being, the order of nature is not an order of necessity, to be fulfilled blindly, but an order of reason and therefore of freedom. The order of being that confronts his intelligence is an order of "oughtness" for his will; the moral order is a prolongation of the metaphysical order into the dimensions of human freedom.
This sounds frightfully abstract; but it is simply the elaboration by the reflective intelligence of a set of data that are at bottom empirical. Consider, for instance, the contents of the consciousness of a man who is protesting against injustice, let us say, in a case where his own interests are not touched and where the injustice is wrought by technically correct legislation. The contents of his consciously protesting mind would be something like these. He is asserting that there is an idea of justice; that this idea is transcendent to the actually expressed will of the legislator; that it is rooted somehow in the nature of things; that he really knows this idea; that it is not made by his judgment but is the measure of his judgment; that this idea is of the kind that ought to be realized in law and action; that its violation is injury, which his mind rejects as unreason; that this unreason is an offense not only against his own intelligence but against God, Who commands justice and forbids injustice.
Actually, this man, who may be no philosopher, is thinking in the categories of natural law and in the sequence of ideas that the natural-law mentality (which is the human mentality) follows. He has an objective idea of the "just" in contrast to the "legal." His
theoretical reason perceives the idea as true; his practical reason accepts the truth as good, therefore as law; his will acknowledges the law as normative of action. Moreover, this man will doubtless seek to ally others in his protest, in the conviction that they will think the same as he does. In other words, this man, whether he be protesting against the Taft-Hartley Act or the Nazi genocidal laws, is making in his own way all the metaphysical affirmations that undergird the concept of natural law. In this matter philosophical reflection does not augment the data of common sense. It merely analyzes, penetrates, and organizes them in their full abstractness; this does not, however, remove them from vital contact with their primitive source in experience.
LAW IMMANENT AND TRANSCENDENT
From the metaphysical premises of natural law follow its two characteristics. It is a law immanent in the nature of man, but transcendent in its reference. It is rational, not rationalist. It is the work of reason, but not of an absolutely autonomous reason. It is immanent in nature in the sense that it consists in the dictates of human reason that are uttered as reason confronts the fundamental moral problems of human existence. These are the problems of what I, simply because I am a man and apart from all other considerations, ought to do or avoid in the basic situations in which I, again simply because I am a man, find myself. My situation is that of a creature before God; that of a "self" possessed of freedom to realize its "self"; that of a man living among other men, possessing what is mine as the other possesses what is his. In the face of these situations, certain imperatives "emerge" (if you like) from human nature. They are the product of its inclinations, as these are recognized by reason to be conformed to my rational nature. And they are formed by reason into dictates that present themselves as demanding obedience. Appearing, as they do, as dictates, these judg-
ments of reason are law. Appearing, as they do, in consequence of an inclination that reason recognizes as authentically human, they are "natural" law.
However, these dictates are not simply emergent in the rationalist sense. Reason does not create its own laws, any more than man creates himself. Man has the laws of his nature given to him, as nature itself is given. By nature he is the image of God, eternal Reason; and so his reason reflects a higher reason; therein consists its rightness and its power to oblige. Above the natural law immanent in man stands the eternal law immanent in God transcendent; and the two laws are in intimate correspondence, as the image is to the exemplar. The eternal law is the Uncreated Reason of God; it appoints an order of nature—an order of beings, each of which carries in its very nature also its end and purposes; and it commands that this order of nature be preserved by the steady pursuit of their ends on the part of all the natures within the order. Every created nature has this eternal law, this transcendent order of reason, imprinted on it by the very fact that it is a nature, a purposeful dynamism striving for the fullness of its own being. In the irrational creation, the immanence of the eternal law is unconscious; the law itself is a law of necessity. But in the rational creature the immanent law is knowable and known; it is a moral law that authoritatively solicits the consent of freedom. St. Thomas, then, defines the natural law as the "rational creature's participation in the eternal law." The participation consists in man's possession of reason, the godlike faculty, whereby man knows himself—his own nature and end—and directs himself freely, in something of divine fashion but under God, to the plenitude of self-realization of his rational and social being.
Evidently, the immanent aspect of natural law relieves it of all taint of tyrannical heteronomy. It is not forcibly imposed as an alien pattern; it is discovered by reason itself as reason explores nature and its order. Moreover, it is well to note that in the discovery
there is a necessary and large part reserved to experience, as St. Thomas insists: "What pertains to moral science is known mostly through experience" (Eth., 1, 3). The natural law, Rommen points out, "is not in the least some sort of rationalistically deduced, norm-abounding code of immediately evident or logically derived rules that fits every concrete historical situation." Like the whole of the philosophia perennis, the doctrine of natural law is orientated toward constant contact with reality and the data of experience. The point was illustrated above, in the chapter on public consensus.
The "man" that it knows is not the Lockean individual, leaping full grown into abstract existence in a "state of nature," but the real man who grows in history, amid changing conditions of social life, acquiring wisdom by the discipline of life itself, in many respects only gradually exploring the potentialities and demands and dignities of his own nature. He knows indeed that there is an order of reason fixed and unalterable in its outlines, that is not at the mercy of his caprice or passion. But he knows, too, that the order of reason is not constructed in geometric fashion, apart from consultation of experience, and the study of "the customs of human life and . . . all juridical and civil matters, such as are the laws and precepts of political life," as St. Thomas puts it. The natural-law philosopher does not indeed speak of a "natural law with a changing content," as do the Neo-Kantians, to whom natural law is a purely formal category, empty of material content until it be filled by positive law and its process of legalizing the realities of a given sociological situation. However, the natural-law philosopher does speak of a "natural law with changing and progressive applications," as the evolution of human life brings to light new necessities in human nature that are struggling for expression and form. Natural law is a force conservative of all acquired human values; it is also a dynamic of progress toward fuller human realization, personal and social. Because it is law, it touches human life with a firm grasp, to give it form; but
because it is a living law, it lays upon life no "dead hand," to petrify it into formalism.
In virtue of its immanent aspect, therefore, the natural law constantly admits the possibility of "new orders," as human institutions dissolve to be replaced by others. But in virtue of its transcendent aspect, it always demands that the new orders conform to the order of reason, which is structured by absolute and unalterable first principles.
NATURAL LAW AND POLITICS
In the order of what is called ius naturae (natural law in the narrower sense, as regulative of social relationships), there are only two self-evident principles: the maxim, "Suum cuique," and the wider principle, "Justice is to be done and injustice avoided." Reason particularizes them, with greater or less evidence, by determining what is "one's own" and what is "just" with the aid of the supreme norm of reference, the rational and social nature of man. The immediate particularizations are the precepts in the "Second Table" of the Decalogue. And the totality of such particularizations go to make up what is called the juridical order, the order of right and justice. This is the order (along with the orders of legal and distributive justice) whose guardianship and sanction is committed to the state. It is also the order that furnishes a moral basis for the positive legislation of the state, a critical norm of the justice of such legislation, and an ideal of justice for the legislator.
This carries us on to the function of natural law in political philosophy—its solution to the eternally crucial problem of the legitimacy of power, its value as a norm for, and its dictates in regard of, the structures and processes of society. The subject is much too immense. Let me say, first, that the initial claim of natural-law doctrine is to make political life part of the moral universe, instead of leaving it to wander as it too long has, like St. Augustine's sinner, in regione
dissimilitudinis. There are doubtless a considerable number of people not of the Catholic Church who would incline to agree with Pius XII's round statement in Summi Pontificatus that the "prime and most profound root of all the evils with which the City is today beset" is a "heedlessness and forgetfulness of natural law." Secretary of State Marshall said practically the same thing, but in contemporary idiom, when he remarked that all our political troubles go back to a neglect or violation of human rights.
For the rest, I shall simply state the major contents of the political ideal as it emerges from natural law.
One set of principles is that which the Carlyles and others have pointed out as having ruled (amid whatever violations) the political life of the Middle Ages. First, there is the supremacy of law, and of law as reason, not will. With this is connected the idea of the ethical nature and function of the state (regnum or imperium in medieval terminology), and the educative character of its laws as directive of man to "the virtuous life" and not simply protective of particular interests. Secondly, there is the principle that the source of political authority is in the community. Political society as such is natural and necessary to man, but its form is the product of reason and free choice; no ruler has a right to govern that is inalienable and independent of human agency. Thirdly, there is the principle that the authority of the ruler is limited; its scope is only political, and the whole of human life is not absorbed in the polis. The power of the ruler is limited, as it were, from above by the law of justice, from below by systems of private right, and from the sides by the public right of the Church. Fourthly, there is the principle of the contractual nature of the relations between ruler and ruled. The latter are not simply material organized for rule by the rex legibus solutus, but human agents who agree to be ruled constitutionally, in accordance with law.
A second set of principles is of later development, as ideas and in
their institutional form, although their roots are in the natural-law theories of the Middle Ages.
The first is the principle of subsidiarity. It asserts the organic character of the state—the right to existence and autonomous functioning of various sub-political groups, which unite in the organic unity of the state without losing their own identity or suffering infringement of their own ends or having their functions assumed by the state. These groups include the family, the local community, the professions, the occupational groups, the minority cultural or linguistic groups within the nation, etc. Here on the basis of natural law is the denial of the false French revolutionary antithesis, individual versus state, as the principle of political organization. Here too is the denial of all forms of state totalitarian monism, as well as of Liberalistic atomism that would remove all forms of social or economic life from any measure of political control. This principle is likewise the assertion of the fact that the freedom of the individual is secured at the interior of institutions intermediate between himself and the state (e.g., trade unions) or beyond the state (the church).
The second principle is that of popular sharing in the formation of the collective will, as expressed in legislation or in executive policy. It is a natural-law principle inasmuch as it asserts the dignity of the human person as an active co-participant in the political decisions that concern him, and in the pursuit of the end of the state, the common good. It is also related to all the natural-law principles cited in the first group above. For instance, the idea that law is reason is fortified in legislative assemblies that discuss the reasons for laws. So, too, the other principles are fortified, as is evident.
Here then in briefest compass are some of the resources resident in natural law, that would make it the dynamic of a new "age of
order." It does not indeed furnish a detailed blueprint of the order; that is not its function. Nor does it pretend to settle the enormously complicated technical problems, especially in the economic order, that confront us today. It can claim to be only a "skeleton law," to which flesh and blood must be added by that heart of the political process, the rational activity of man, aided by experience and by high professional competence. But today it is perhaps the skeleton that we mostly need, since it is precisely the structural foundations of the political, social, and economic orders that are being most anxiously questioned. In this situation the doctrine of natural law can claim to offer all that is good and valid in competing systems, at the same time that it avoids all that is weak and false in them. Its concern for the rights of the individual human person is no less than that shown in the school of individualist Liberalism with its "law of nature" theory of rights, at the same time that its sense of the organic character of the community, as the flowering in ascending forms of sociality of the social nature of man, is far greater and more realistic. It can match Marxism in its concern for man as worker and for the just organization of economic society, at the same time that it forbids the absorption of man in matter and its determinisms. Finally, it does not bow to the new rationalism in regard of a sense of history and progress, the emerging potentialities of human nature, the value of experience in settling the forms of social life, the relative primacy in certain respects of the empirical fact over the preconceived theory; at the same time it does not succumb to the doctrinaire relativism, or to the narrowing of the object of human intelligence, that cripple at their root the high aspirations of evolutionary scientific humanism. In a word, the doctrine of natural law offers a more profound metaphysic, a more integral humanism, a fuller rationality, a more complete philosophy of man in his nature and history.
I might say, too, that it furnishes the basis for a firmer faith and a more tranquil, because more reasoned, hope in the future. If there
is a law immanent in man—a dynamic, constructive force for rationality in human affairs, that works itself out, because it is a natural law, in spite of contravention by passion and evil and all the corruptions of power—one may with sober reason believe in, and hope for, a future of rational progress. And this belief and hope is strengthened when one considers that this dynamic order of reason in man, that clamors for expression with all the imperiousness of law, has its origin and sanction in an eternal order of reason whose fulfillment is the object of God's majestic will.