Natural Law Theory: Its Past and Its Present
Its Past and Its Present
The past in which theory of this kind had its origins is notably similar to the present. For this is theory—practical theory—which articulates a critique of critiques, and the critiques it criticizes, rejects and replaces have much in common whether one looks at them in their fifth-century BC Hellenic (Sophistic) or their modern (Enlightenment, Nietzschean or postmodern) forms.
In the name of nature or the natural (in some of the many dozens of meanings of those terms), the thinkers whom natural law theory corrects have scathingly criticized conventional conceptions of justice and injustice, of (more generally) right and wrong, and (most generally) of good and bad in human action, affairs and institutions. The conventional conceptions are denounced, or more covertly subverted, as unjustifiable impositions on what is natural: a life pursuing passionate satisfactions such as power, sex, and other bodily and emotional interests (today often conceived as psychological or “subconscious” drives or “complexes”). The Sophistic conception of the natural is not naïve; it accommodates some main realities of social existence: typically it counsels compliance with social norms whenever one’s detected violation of them would incur sanctions, or other resistance, that would frustrate one’s pursuit of one’s interests. And it acknowledges that one’s interests need not be individualistic; one may find one’s satisfactions in one’s group’s power and prestige, lorded ruthlessly over other groups. The survival and predominance of the fittest, which is the natural goal of existence, is naturally a social matter. It includes winning the support or acquiescence of other members of the group by such stratagems as professing the conventional belief in justice and morality, and making or postulating agreements (“social contracts”) to abstain from harming them, to lend them reciprocal assistance and so forth—agreements silently subordinated always to their purpose of advancing the natural priority of one’s own purposes and interests in survival, domination, pleasure, etc.
The critique of such theories and forms of life that was carried through by Socrates and Plato (“the Platonic critique”) included a purposeful capturing or radical reshaping of the idea of nature, the natural and the naturally fitting. The Platonic critique shares with the Sophists some elements in their critique of the conventional and traditional. For although people who respect traditional norms and standards of evaluating human conduct may well regard these not merely as a social fact but as having directive force for them, and thus a kind of moral truth, nonetheless this attitude of theirs is often—indeed, characteristically—marked by its uncritical marginalizing of the question of truth. For them, the fact that the norms and standards are what they found respected in their society and among their forebears counts in practice as if it were sufficient warrant. The Platonic critique foregrounds the question of the truth or error, the moral reasonableness or unreasonableness, of any and all normative propositions (claims, norms) held out—whether in traditions, dialogue or personal reflection (conscience)—as directive for individuals and groups. It insists on the distinction basic also to the present article: that if there is a natural law that, by reason of the true goodness to which it directs us, is entitled to direct all consciences, it has no past, present or future; only beliefs and theories about it have temporality and a history (Finnis 2011/1980: 24–25).
A central text in this critique of the Sophists’ critique is Plato’s dialogue Gorgias. Here Plato presents, in fictionalized parties to the discourse, a spectrum of Sophistic positions, from the less (Gorgias) to the more radical (Polus) and most thoroughgoing (Callicles). Socrates triumphs dialectically over Callicles while the reader knows that, in real history, politically unprincipled operatives of perhaps Calliclean type worked on a malleable crowd of conventionally minded jurymen fired up about the state’s traditions to bring Socrates to his unjust condemnation and execution. The Socratic thesis (Gorgias 469b–c, 479c, 489b, 508d–e) that it is better to suffer injustice than to do it is thus given a tacit force and challenge even as Plato tests and vindicates it through a probing discussion of what the criteria of “good” and “better” really are, in reasonable judgment. So, for example, the Calliclean proposals to assimilate the better to the stronger (entitling the strong to rule over the weak regardless of other merits or deservings) is refuted by the consideration that the weak collectively are stronger than the strong, and that a life spent in avoiding this menace to the unscrupulous is a life of servitude to the opinion, interests and whims of the crowd. So if the naturally superior strength of the many entails (as Callicles would have it) that they and their views are better, the Calliclean position breaks down, in a kind of self-refutation:
Socrates: Don’t the many [who collectively are stronger] have a rule that says it’s just to have an equal share, and a rule that doing what’s unjust is more shameful than suffering it?…So it isn’t merely “as a matter of law” that doing what’s unjust is more shameful than suffering wrong, or that justice is a matter of equal shares, but “by nature” too. So you seem to have spoken falsely, earlier, when you challenged me with your claim that nature and law [instituted by people] are opposites.
(Gorgias 488–9, with 483a–b)
The demonstrations that the Calliclean position is incoherent are less important, in the end, than the dialogue’s more implicit disclosures of the intelligible goods that are at stake in any dialogue worthy of the name. Dialogue is real, and worth pursuing, only under conditions of knowledge, goodwill and frank free speech among the participants. They, and any audience, can find it worthwhile as a dialogue only if they value both truth and the sharing in discovery and acknowledgement of truth by all concerned. To value and secure this active sharing is a further intelligible good, worthy of pursuit alongside the good of truth and knowledge. This further good can be called friendship.
Each of these intelligible goods is the subject of a normative proposition which naturally—or, more precisely, rationally—even if inexplicitly, comes into play when one is reflecting or deliberating about one’s opportunities, and which directs us to be interested in the actualizing of this good and in the avoiding of what negates it (such as ignorance or superstition, or hatred and deception). This normativity or directiveness is not yet “moral,” as justice and injustice are. But it soon unfolds into the normativity of the virtuous or vicious (the right and the wrong, if you prefer) because the competition between various worthwhile opportunities (knowledge, friendship, patriotism, marriage, etc.), and between all or any of these and opportunities for gratifying more or less subrational, emotional desires and aversions, calls urgently for adjudication and control by some further and, as controlling, higher principle or source of order in one’s deliberating, choosing and acting—in one’s soul, as Plato puts it. This is the adjudication that only practical reasonableness (Plato’s virtue of phronêsis) can make, and make actual in one’s life and conduct. It is this virtue that enables one to discern, practically, what is just and unjust, courageous and cowardly and rash, and so forth. Its adjudications are, in the last analysis, propositional, and the normativity of these propositions is moral. We have arrived at a new conception of (moral) law, to transcend and replace the directiveness attributed to subrational nature by the Sophists.
The last step in this conceptual reordering is the transfer of the predicate “natural” to this moral “law.” The transfer is justified for multiple, distinct reasons. First, one’s understanding that truth, friendship, human life itself and the other such possible objects of choice are indeed good—not only as means to other ends but intrinsically—is an understanding achieved readily, non-inferentially and in that sense spontaneously, as an achievement of one’s intelligence when attentive to real possibilities and alternatives and free from external distractions or dominantly passionate, subrational factors in one’s psychic makeup. It is in these senses a natural understanding, an achievement of natural reason (to be carefully distinguished from data-free intuition). It is available even to children, once they have had sufficient experience of the world to be aware of real possibilities and their alternatives.
Second, the intrinsic and thus basic intelligible goods are understood precisely as pursuit-worthy. So this understanding is practical, concerned not merely with what truly is, but also and essentially with what truly is-to-be in a sense that is not predictive but directive, normative, articulable from the outset in the language of normativity: should, ought, is–to–be–done. Nonetheless, this practicality of one’s understanding of human good in no way entails that the objects of practical understanding and judgment are a matter of invention or creation. Rather, the basic human goods are discovered (as to-bebrought-into-existence). In this way, they stand over and against our understanding, and in this respect they are like the natural world of objects that are what they are, and have the natural order they have, and follow the natural laws they do, quite independently of human thought, contrivance and action.
Third, life, knowledge, friendship and so forth are understood as basic aspects of human flourishing or well-being or fulfillment, actualizable if chosen intelligently and pursued and acted upon. They are understood as good “for me” and anyone like me—and this “like me” soon becomes intelligible securely as: any other being capable, at least radically, of self-conscious flourishing or failure—any human being or person. As aspects of such flourishing, these basic human goods give point, shape, meaning and specific identity to human action. But such actions are always the actualizing of human capacities (powers, potentialities), and capacities in turn are given us by our makeup, our nature, prior to all choice or action of our own. So: to understand the basic aspects of human flourishing is implicitly to understand basic outlines of human nature. Propositions picking out and directing us to the basic human goods can thus be well described as principles of natural normativity, natural rightness or fittingness, and natural law.
Such natural law, though sharply and cleanly distinguishable from laws of nature that govern entities and processes (including many aspects of human reality) independently of any understanding or choices, is factually (that is, ontologically: in the order of being) dependent upon natural reality that we find, not make. But epistemologically (that is, in the order of coming to know), the first principles of natural law are first principles of practical reason and, as such, are not dependent upon a prior adequate knowledge of human nature. Our understanding of them presupposes some knowledge of the factually given structures of possibility, availability, causality and realizability, but adds very significantly to that prior knowledge. In so adding, it makes possible an adequate understanding of human nature via understanding of the human flourishing made possible by human openness to ways of acting and living that quite transcend the given—possibilities such as courageous friendship, devotion to justice, humane artistic creativity, holiness of life and so forth. In sum: the oughts of the first practical principles (principles of natural right and law) are not inferred from prior knowledge of the is of nature. Rather, our ought-knowledge of them both presupposes some elements of, and very significantly adds other elements to, the eventual body of such is-knowledge.
This account has got ahead of Plato’s, and fallen behind it. It has fallen behind by omitting, thus far, his critique of the tradition-bound states of mind and culture which the Sophists themselves criticized and delegitimated (even when conforming, by choice, to traditions and conventions). Plato’s critique of tradition is presented, explicitly, not so much in the Gorgias as in his later, greater work,The Republic. And it is a critique not so much of particular customs, perhaps more or less peculiar to one or more societies, but rather of conventional wisdom. But what exactly is that? Plato identifies the object of his critique by exemplifying it. Cephalus, representative of the oldest living generation, the grandparents, defines justice as paying one’s debts and telling the truth, and loses interest in the matter when Socrates points out that there are occasions when it is wrong to return what one has borrowed (say, a weapon from a lender who has now gone mad), and wrong to tell the truth (say, to a dangerous maniac) (Republic 331b–d). Cephalus’s son Polemarchus, host of the whole occasion of the dialogue, is a little closer to the sophistication of the Sophists. He holds that justice is a matter of benefiting one’s friends and harming one’s enemies, or (under dialectical pressure from Socrates) of benefiting just people and harming the unjust (334). Socrates demonstrates that it is never just to (choose/try to) harm anyone, and Polemarchus has to concede that what he learned about justice from powerful political and financial leaders was unsound (335d–336a). The stage is cleared for the intervention of the radical Sophist, here in the person of Thrasymachus who, like Plato’s Callicles, holds that:
…injustice, if it is on a large enough scale [as in the tyrant’s efficacious rule over his community], is stronger, freer and more masterly than justice [conven tionally conceived] … [J]ustice [truly conceived] is what is advantageous to the stronger, while injustice [conventionally conceived] is to one’s own profit.
The rest of the dialogue, in effect, is Plato’s response, his critique of the Thrasymachean (and Calliclean) critique and rejection of the conventional conceptions of injustice.
The Platonic critique takes it as obvious that the large elements of truth in conventional wisdom about (say) giving people their due (335e) must be vindicated against the corrosive Sophistic critique, which sophistically inverts and negates that truth; and obvious too that the vindication will have to be critical and philosophically grounded in ways that conventional wisdom has simply not inquired after or understood. In the terminology of the eventual theory emergent in Plato: natural law and natural right must be vindicated by the theoretical reflections, conceptualizations and arguments that a textbook or companion to philosophy may label natural law theory.
Enough has been said in this sketch of some Platonic dialectic to indicate that the conventional or traditional morality which Plato is concerned both to criticize and to (partially) vindicate is not to be understood as merely “positive morality” or “social morality” in the sense proposed by John Austin and H. L. A. Hart. They (especially Hart) spoke as if such a morality were held as positive, rather than as true. Plato, the more accurate sociologist and philosopher, is clear that even those who hold to a partially untrue morality, and do so without sufficient critical attention to its coherence or its warrant, nonetheless are very unlikely to hold and consider it as simply a fact about their society’s beliefs, and equally unlikely to explain it to themselves as warranted precisely and simply because their society or their elders have held them; almost certainly they will hold it rather as a truth (as they suppose) about what is good and bad for people and right and wrong in human action. The problem, as Plato rightly sees it, is that their lack of critical interest in the grounds of their belief—the lack that makes their belief conventional—leaves them (and the conventions) exposed to distortion and error about the truth of, or error in, the belief’s moral content.
How is moral error detected and avoided? Implicitly, the answer given by Plato and the whole philosophical tradition which he initiated (the tradition represented by Aristotle and Aquinas) is something like this. A judgment—the affirming or denying of a proposition—is erroneous when it does not cohere with judgments which, even after critical questioning and the test of dialogue and dialectic, one holds to be rationally justified and expects other similarly critical and careful persons, similarly placed, would agree with. In the case of judgments about realities that are what they are independently of anyone’s thinking about them, their justification is that they conform/correspond to—fit, and are in line with—those realities; that they so correspond is what is meant in calling them true. These realities, of course, are only known in judgments, but the judgments are based on the data of experience (evidence in all relevant forms), and are justified only on condition that they do not overlook or neglect but rather do rationally account for the data. In the case of judgments about human goods whose realization is dependent on being conceived, considered desirable, opted for, and pursued and achieved or instantiated by action carrying out such choices, the justification of the judgments is again a matter (i) of coherence with other judgments that one thinks all other people would, under ideal epistemic conditions, agree with, and (ii) of correspondence with something that stands over and against one’s judgments as their object, something that is affirmed when the judgment is true and misstated or denied when the judgment is false. What is this something, in relation to judgments about what is good and right in human action and achievement? There has been a tendency in the tradition to respond: human nature. But that kind of response overlooks the difference between realities that are what they are affirmed to be, independently of our thought or affirmation (which can thus be called “theoretical” or descriptive reason), and realities that it would be good to achieve by rational choice and action (and as such are the primary subject matter of practical reason). A better response is: practical reason’s judgments are true when they accurately anticipate—are in anticipatory correspondence to—the human good that can be realized (call it fulfillment or flourishing) by actions in accordance with them (Grisez, Boyle and Finnis 1987: 115–20; Finnis 1998: 99–101).