The Natural Law

An inquiry into its relationship with the rights of the human person
(St Thomas Aquinas/ Wikimedia Commons)

 

[This article was first published in the May 15, 1942 issue of Commonweal]

In order to examine philosophically the question of the rights of a human being, it is well to investigate at the outset the question of what is called the natural law. Some of us may imagine that the natural law is an invention of the American founding fathers and of the French Revolution. Reactionaries of every sort have done much to spread this silly notion. Unhappily, in order to discredit the idea of the natural law, they have found allies on the one hand in the pessimism of certain religious thinkers of Lutheran or Jansenist tradition, and on the other hand among the majority of contemporary jurists (especially those of the positivist school). And these attack a false idea of the natural law; in doing away with this, they do away only with a man of straw erected by uncomprehending textbooks of philosophy.

The idea of natural law is a heritage of Christian thought and of classical thought. It does not stem back to the philosophy of the eighteenth century--a philosophy which more or less deformed it--but to Grotius and before him to Suarez and to Francis de Vitoria, and further back to Saint Thomas Aquinas, and further back to Saint Augustine, the Fathers of the Church, Saint Paul, and even further back to Cicero, the stoics, the great moralists, the great poets of antiquity, particularly to Sophocles. Antigone is the eternal heroine of the natural law, which classical man called the unwritten law, and this indeed is the name which best fits the thing.

I have not space here to discuss basic mistakes (highly intelligent philosophers will always be found who will brilliantly defend such); therefore I presume that you will admit that there exists such a thing as human nature and that this human nature is the same among all men. I presume that you admit that man is a being endowed with intelligence and who, as such, acts with understanding of what he does and thereby has the power to subject himself to an order determined by the ends he pursues. Then again, having a nature, being constructed after a certain determined fashion, man evidently has ends which correspond to his natural constitution and which are the same for all--just as all pianos, for example, whatever may be their shape or in whatever place they are, have as an end the production of sounds which are in set physical relation to each other. If a piano does not produce such sounds, it is no good, it must be tuned or else thrown away as useless. Moreover, since man is endowed with intelligence and himself determines his own ends, it is up to him to attune himself to the ends necessarily required by his own nature. This means that there exists, by very reason of human nature, an order or a pattern which human nature can discover and according to which the human will must act in order to attune itself to the necessary ends of the human being. The unwritten law, or the natural law, is nothing more than this.

The great philosophers of antiquity knew, the great Christian thinkers know even better, that nature flows from God and that the unwritten law flows from the eternal law which is creative Wisdom itself. This is why the idea of the natural or unwritten law was bound up in their minds to a feeling of natural piety, to that profound respect for holy things unforgettably expressed by Antigone. As they know the true principle of this law, faith in it is more firm and inescapable among those who believe in God than among others. In itself, however, it is sufficient to believe in human nature and in the liberty of the human being to be persuaded that there exists an unwritten law, to know that the natural law is something just as real in the moral order as the laws of growth and of growing old in the physical order.

The law and knowledge of the law are two very different things. A man who does not know the law (if this ignorance does not stem from some fault) is not responsible before the law. And to know that there is a law is not necessarily to know what that law is. It is through our forgetting this simple distinction that are born so many perplexities on the subject of the unwritten law. It is written, some say, in men's hearts. True enough, but in the hidden depths, as much hidden to us as our very hearts themselves. This very figure of speech has often been disastrous, leading men to conceive the natural law as a ready-made code neatly packaged in each man's consciousness and which each has only to unwrap--and whereof all men should by nature have equal knowledge. The natural law is not a written law. Men know it with greater or less ease, and in different degree, and, here as elsewhere, they run the risk of error. The only practical knowledge which all men naturally and infallibly share in common is that one must do good and avoid evil. And this is indeed the preamble and the principle of the natural law; it is not that law itself. The natural law is the sum total of things to be done and not to be done which follow from this principle in a necessary way and by virtue alone of the fact that man is man, regardless of all other considerations. That every sort of error and aberration should be possible in our determination of these things merely goes to show that our insight is weak and that innumerable accidents can pervert our judgment. Montaigne slyly pointed out that incest and theft have been held as virtues by certain peoples; Pascal was scandalized thereat; we are scandalized that cruelty, that informing on blood relatives, that lying in the interests of a Party, that cruel murder of old or sick people should be held as virtuous actions by young people brought up in accordance with nazi standards. All this proves nothing against the natural law, any more than a mistake in adding a column of figures proves anything against mathematics, or that the errors of primitive man, who thought the stars were holes in the tent spread over the world, prove anything against astronomy.

The natural law is an unwritten law. Man's knowledge of it grows little by little with the progress of moral awareness. And this was at the outset only a twilight. Ethnologists tell us within what structures of tribal life, and in the bosom of what magic of what half dream, it first took shape. All this merely proves that the idea of the natural law, first immersed in rites and mythologies, only tardily became differentiated-- as tardily, indeed, as the very idea of nature itself. And it proves that the knowledge which men have had of the unwritten law has passed through more diverse forms and states than certain philosophers or theologians would have believed. The knowledge which our own moral conscience has of this law is doubtless itself still imperfect, and it is likely that it will continue to develop and become refined as long as humanity endures. When the Gospel shall have penetrated to the very depths of human substance--only then will the natural law appear in its full flower and perfection.

The natural law and human rights

Now we must ponder the fact that the natural law and the light of moral conscience within us not only prescribe certain things to do and not to do; they also recognize rights, and particularly rights linked to the very nature of man. The human person has rights by the very fact that it is a person, a whole, master of itself and of its acts, and which is consequently not only a means, but an end, an end which must be treated as such. The dignity of the human person--this phrase means nothing if it does not mean that through the natural law the human person has the right to be respected and is the subject of right, possesses rights. There are certain things which are owed to man by the very fact that he is man. The notion of right and the notion of moral obligation are correlative; they both rest upon the freedom proper to spiritual agents. If a man is morally bound to the things necessary for the accomplishment of his destiny, it is because he has the right to accomplish that destiny; and if he has the right to accomplish his destiny, he has the right to do the things necessary therefor. The notion of right is even deeper than that of moral obligation, for God has a sovereign right over creatures, and He has no moral obligation toward them (even though He owes it to Himself to give them what is required by their nature).

The true philosophy of the rights of the human person thus rests upon the idea of the natural law. The same natural law which prescribes for us our most fundamental duties, and by virtue of which every law has its force, is also that which attributes to us our fundamental rights. It is because we are enmeshed in the order of the universe, in the laws and the regulations of the cosmos and of the immense family of created natures (and finally in the order of creative wisdom), and it is because at the same time we have therein the privilege of being spirits that we possess rights in the face of every man and of the whole assemblage of creation. In the last analysis, since every creature acts only in virtue of its Principle, which is the pure Act, since all authority worthy of the name--that is, just- is binding in conscience only in virtue of the Principle of beings, which is pure Wisdom, thus also every right possessed by man is possessed only in virtue of the right possessed by God, Who is pure Justice, that the order of His Wisdom in beings be respected, obeyed and loved by every intelligence.

Another altogether contrary philosophy has undertaken to base the rights of the human person on the pretension that man is subject to no law except that of his own will and his own freedom, and that he should "obey only himself," as Jean Jacques Rousseau put it, because every measure or regulation springing from the world of nature (and ultimately from creative wisdom) would cause him to lose at once his autonomy and his dignity. This philosophy has founded no base for the rights of the human person, because one cannot base anything upon illusion; it has compromised and scattered these rights, because it has led men to conceive these rights as rights divine in themselves and hence infinite, eluding all objective measure, refusing every limitation imposed upon the claims of the ego, and ultimately expressing the absolute independence of each human subject; and as a so-called absolute right, inherent in everything attached to that subject by reason alone of its presence there to stand sovereign against all the rest of beings. When men thus convinced were everywhere confronted by the impossible, they believed they had witnessed the bankruptcy of the rights of the human person. Some turned against these rights in a fury of enslavement; others have continued to call them sacred, but, in the depths of their conscience, suffer with regard to these rights a temptation to skepticism which is one of the most alarming symptoms of the present crisis. What is required of us is a sort of intellectual and moral revolution calculated to reestablish in a true philosophy our faith in the dignity of man and in his rights, and calculated to rediscover the authentic sources of this faith.

Awareness of the dignity of the person and of the rights of the person remained implicit in pagan antiquity, over which the law of slavery cast its shape. It was the message of the Gospels which, suddenly, awoke this awareness to itself, under a divine and transcendent form, by revealing to men that they are called to be sons and heirs of God, in the kingdom of God. Under the motive power of the Gospels, the same awakening was little by little to increase its extent in that which concerns the requirements of the natural law itself, within the realm of the life of man here below and of the earthly commonwealth.

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