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A history of the theory of natural law a moral philosophy theory

Some writers use the term with such a broad meaning that any moral theory that is a version of moral realism — that is, any moral theory that holds that some positive moral claims are literally true for this conception of moral realism, see Sayre-McCord 1988 — counts as a natural law view. Some use it so narrowly that no moral theory that is not grounded in a very specific form of Aristotelian teleology could count as a natural law view.

But there is a better way of proceeding, one that takes as its starting point the central role that the moral theorizing of Thomas Aquinas plays in the natural law tradition. If any moral theory is a theory of natural law, it is Aquinas's. Every introductory ethics anthology that includes material on natural law theory includes material by or about Aquinas; every encyclopedia article on natural law thought refers to Aquinas.

It would seem sensible, then, to take Aquinas's natural law theory as the central case of a natural law position: There remain, no doubt, questions about how we determine what are to count as the key features of Aquinas's position.

But we may take as the key features those theses about natural law that structure his overall moral view and which provide the basis for other theses about the natural law that he affirms. For Aquinas, there are two key features of the natural law, features the acknowledgment of which structures his discussion of the natural law at Question 94 of the Prima Secundae of the Summa Theologiae. The first is that, when we focus on God's role as the giver of the natural law, the natural law is just one aspect of divine providence; and so the theory of natural law is from that perspective just one part among others of the theory of divine providence.

Anthony J. Lisska

The second is that, when we focus on the human's role as recipient of the natural law, the natural law constitutes the principles of practical rationality, those principles by which human action is to be judged as reasonable or unreasonable; and so the theory of natural law is from that perspective the preeminent part of the theory of practical rationality.

The fundamental thesis affirmed here by Aquinas is that the natural law is a participation in the eternal law ST IaIIae 91, 2. The precepts of the natural law are binding by nature: This is so because these precepts direct us toward the good as such and various particular goods ST IaIIae 94, 2.

The good and goods provide reasons for us rational beings to act, to pursue the good and these particular goods. As good is what is perfective of us given the natures that we have ST Ia 5, 1the good and these various goods have their status as such naturally. It is sufficient for certain things to be good that we have the natures that we have; it is in virtue of our common human nature that the good for us is what it is. The precepts of the natural law are also knowable by nature.

This knowledge is exhibited in our intrinsic directedness toward the various goods that the natural law enjoins us to pursue, and we can make this implicit awareness explicit and propositional through reflection on practice. Aquinas takes it that there is a core of practical knowledge that all human beings have, even if the implications of that knowledge can be hard to work out or the efficacy of that knowledge can be thwarted by strong emotion or evil dispositions ST IaIIae 94, 6.

If Aquinas's view is paradigmatic of the natural law position, and these two theses — that from the God's-eye point of view, it is law through its place in the scheme of divine providence, and from the human's-eye point of view, it constitutes a set of naturally binding and knowable precepts of practical reason — are the basic features of the natural law as Aquinas understands it, then it follows that paradigmatic natural law theory is incompatible with several views in metaphysics and moral philosophy.

On the side of metaphysics, it is clear that the natural law view is incompatible with atheism: It is also clear that the paradigmatic natural law view rules out a deism on which there is a divine being but that divine being has no interest in human matters.

Nor can one be an agnostic while a history of the theory of natural law a moral philosophy theory the paradigmatic natural law view: On the side of moral philosophy, it is clear that the natural law view is incompatible with a nihilism about value, that is, the rejection of the existence of values.

It is also incompatible with relativist and conventionalist views, on which the status of value is entirely relative to one's community or determined entirely by convention. It is also incompatible with a wholesale skepticism about value, for the natural law view commits one to holding that certain claims about the good are in fact knowable, indeed, knowable by all.

What, though, of the normative content of Aquinas's natural law position? Is there anything distinctive about the normative natural law position? Here it is difficult to say much that is uncontroversial, but we can say a sufficient amount about Aquinas's natural law theory to make clear that it is an interesting alternative to utilitarian and more generally consequentialist ethics, Kantian views, and standard Aristotelian positions.

  • Other elements of natural law theory Intended to be part of a comprehensive theory of practical reasons that are fit to direct us to the common good of each of our communities and its members, any natural law theory of law brings to bear on law all the theses proposed and defended in natural law theory's moral and political parts and in a sound understanding of the human makeup and of the lasting characteristics of our circumstances;
  • What the law commanded varied from place to place, but what was "by nature" should be the same everywhere;
  • Classical Natural Law Theory All forms of natural law theory subscribe to the Overlap Thesis, which asserts that there is some kind of non-conventional relation between law and morality;
  • The Platonic version of the view has struck many as both too metaphysically ornate to be defensible, on one hand, and as not fitting very well with a conception of ethics grounded in nature, on the other.

For a magisterial treatment of Aquinas's natural law ethic, see Rhonheimer 2000. Aquinas says that the fundamental principle of the natural law is that good is to be done and evil avoided ST IaIIae 94, 2. This is, one might say, a principle of intelligibility of action cf. But no one can in acting simply pursue good — one has to pursue some particular good. And Aquinas holds that we know immediately, by inclination, that there are a variety of things that count as good and thus to be pursued — life, procreation, knowledge, society, and reasonable conduct ST IaIIae 94, 2; 94, 3 are all mentioned by Aquinas though it is not clear whether the mentioned items are supposed to constitute an exhaustive list.

So on Aquinas's view it is the good that is fundamental: The good is, on Aquinas's view, prior to the right. But on Aquinas's view we are, somehow, able to reason from these principles about goods to guidelines about how these goods are to be pursued.

  1. But while Austin thus denied the Overlap Thesis, he accepted an objectivist moral theory; indeed, Austin inherited his utilitarianism almost wholesale from J. These are only examples, not an exhaustive list of absolutely forbidden actions.
  2. Each of these goods, according to Finnis, has intrinsic value in the sense that it should, given human nature, be valued for its own sake and not merely for the sake of some other good it can assist in bringing about. And this is a process, according to Dworkin, that "must carry the lawyer very deep into political and moral theory.
  3. On Aquinas's view, killing of the innocent is always wrong, as is lying, adultery, sodomy, and blasphemy; and that they are always wrong is a matter of natural law.
  4. The intrinsic desirability of such states of affairs as one's flourishing in life and health, in knowledge and in friendly relations with others, is articulated in foundational, underived principles of practical reasoning reasoning towards choice and action. Thomas Aquinas' account of human positive law treats the central case of government as the self-government of a free people by the rulers and institutions which that people has appointed for that purpose, and the central case of law is the co-ordination of willing subjects by law which, by its public character promulgation , clarity, generality, stability and practicability, treats those subjects as partners in public reason Summa Theologiae I-II q.
  5. But once one begins to deal in reasons, can anything other than good reasons count?

Aquinas's thoughts are along the following lines: The important task, then, is to identify the ways in which an act can be intrinsically flawed. Aquinas does not obviously identify some master principle that one can use to determine whether an act is intrinsically flawed though for an attempt to identify such a master principle in Aquinas's work see Finnis 1998, p.

An act might be flawed through a mismatch of object and end — that is, between the immediate aim of the action and its more distant point. If one were, for example, to regulate one's pursuit of a greater good in light of a lesser good — if, for example, one were to seek friendship with God for the sake of mere bodily survival rather than vice versa — that would count as an unreasonable act.

An act might be flawed through the circumstances: An act might be flawed merely through its intention: Aquinas has no illusions that we will be able to state principles of conduct that exhaustively determine right conduct, as if for every situation in which there is a correct choice to be made there will be a rule that covers the situation.

He allows for the Aristotelian insight that the particulars of the situation always outstrip one's rules, so that one will always need the moral and intellectual virtues in order to act well Commentary on NE, II, 2, 259.

Aquinas’s Theory of Natural Law: An Analytic Reconstruction

But he denies that this means that there are no principles of right conduct that hold everywhere and always, and some even absolutely. On Aquinas's view, killing of the innocent is always wrong, as is lying, adultery, sodomy, and blasphemy; and that they are always wrong is a matter of natural law.

These are only examples, not an exhaustive list of absolutely forbidden actions. Part of the interest of Aquinas's substantive natural law ethic lies in its not falling into the neat a history of the theory of natural law a moral philosophy theory categories for moral theories.

His natural law view understands principles of right to be grounded in principles of good; on this Aquinas sides with utilitarians, and consequentialists generally, against Kantians. But Aquinas would deny that the principles of the right enjoin us to maximize the good — while he allows that a history of the theory of natural law a moral philosophy theory of the greater good have a role in practical reasoning, action can be irremediably flawed merely through e.

And while Aquinas is in some ways Aristotelian, and recognizes that virtue will always be required in order to hit the mark in a situation of choice, he rejects the view commonly ascribed to Aristotle for doubts that it is Aristotle's view; see Irwin 2000 that there are no universally true general principles of right.

The natural law view rejects wholesale particularism. Further, it holds that 4 the good is prior to the right, that 5 right action is action that responds nondefectively to the good, that 6 there are a variety of ways in which action can be defective with respect to the good, and that 7 some of these ways can be captured and formulated as general rules. Aquinas was not the only historically important paradigmatic natural law theorist. Thomas Hobbes, for example, was also a paradigmatic natural law theorist.

There are also a number of contemporary writers that affirm the paradigmatic view. These writers, not surprisingly, trace their views to Aquinas as the major influence, though they do not claim to reproduce his views in detail.

It is also easy to identify a number of writers, both historical and contemporary, whose views are easily called natural law views, through sharing all but one or two of the features of Aquinas's paradigmatic position. Recently there have been nontheistic writers in the natural law tradition, who deny 1: There were a number of post-Thomistic writers in the medieval and modern periods who in some way denied 2the natural authority of the natural law, holding that while the content of the natural law is fixed either wholly or in part by human nature, its preceptive power could only come from an additional divine command: Arguably the Stoics were natural law thinkers, but they seem to deny 4holding the right to be prior to the good see Striker 1986.

Hallett 1995 have taken up the natural law view with a consequentialist twist, denying 6. For a discussion of the relationship between proportionalism and natural law theory see Kaczor 2002. And while some see Aristotle as being the source of the natural law tradition, some have argued that his central appeal to the insight of the person of practical wisdom as setting the final standard for right action precludes the possibility of the sort of general rules that would at least in a theistic context make Aristotle's ethics a natural law position.

There is of course no clear answer to the question of when a view ceases to be a natural law theory, though a nonparadigmatic one, and becomes no natural law theory at all. Theoretical Options for Natural Law Theorists Even within the constraints set by the theses that constitute the paradigmatic natural law position, there are a number of variations possible in the view.

Here we will consider several issues that must be addressed by every particular natural law view, and some difficulties that arise for possible responses to these issues. But how is universal, natural goodness possible? Given the variability of human tastes and desires, how could there be such universal goods?

Natural law theorists have at least three answers available to them. The first answer is Hobbesian, and proceeds on the basis of a subjectivist theory of the good.

On subjectivist theories of the good, what makes it true that something is good is that it is desired, or liked, or in some way is the object of one's pro-attitudes, or would be the object of one's pro-attitudes in some suitable conditions.

One might think that to affirm a subjectivist theory of the good is to reject natural law theory, given the immense variation in human desire. But this is not so. This is in fact what Hobbes claims. For while on the Hobbesian view what is good is what is desired, Hobbes thinks that humans are similarly constructed so that for each human when he or she is properly biologically functioning his or her central aim is the avoidance of violent death.

Thus Hobbes is able to build his entire natural law theory around a single good, the good of self-preservation, which is so important to human life that exceptionlessly binding precepts can be formulated with reference to its achievement. The second answer is Aristotelian.

Natural Law Theories

The idea here is to reject a subjectivism about the good, holding that what makes it true that something is good is not that it stands in some relation to desire but rather that it is somehow perfective or completing of a being, where what is perfective or completing of a being depends on that being's nature.

So what is good for an oak is what is completing or perfective of the oak, and this depends on the kind of thing that an oak is by nature; and what is good for a dog is what is completing or perfective of the dog, and this depends on the kind of thing that a dog is by nature; and what is good for a human depends on what is completing or perfective of a human, and this depends on the kind of thing a human is by nature.

So the fact of variability of desire is not on its own enough to cast doubt on the natural law universal goods thesis: This is the view affirmed by Aquinas, and the majority of adherents to the natural law tradition. The third answer is Platonic. Like the Aristotelian view, it rejects a subjectivism about the good.

The Natural Law Tradition in Ethics

But it does not hold that the good is to be understood in terms of human nature. The role of human nature is not to define or set the good, but merely to define what the possibilities of human achievement are.

So one might think that some things — knowledge, beauty, etc. This view of the good is not much defended — in part because of the scathing criticism offered of Plato's view by Aristotle in the Nicomachean Ethics NE I, 6 — but it was affirmed by Iris Murdoch 1970and forms part of the natural law view defended by Michael Moore 1982. None of these answers is without difficulties. While there are contemporary defenders of Hobbesian moral theories see Gauthier 1986there is no one who is on record defending Hobbes's interesting combination of a thoroughgoing subjectivism about the good along with an account of a dominant substantive good around which the moral rules are formulated.

The basic reason for this just seems to be that Hobbes's arguments that the human desire for self-preservation is such an entirely dominant desire are implausible, and there do not seem to be any better arguments available.

The Platonic version of the view has struck many as both too metaphysically ornate to be defensible, on one hand, and as not fitting very well with a conception of ethics grounded in nature, on the other.

While the Aristotelian version of the view has also been charged with some of the metaphysical excesses that the Platonist view allegedly countenances, most contemporary natural law theory is Aristotelian in its orientation, holding that there is still good reason to hold to an understanding of flourishing in nature and that none of the advances of modern science has called this part of the Aristotelian view into question.

For defenses of such Aristotelian accounts of the good, see Foot 2001, Thompson 1995, and Thompson 2004. How can we come to know these fundamental goods? Return to Aquinas's paradigmatic natural law position.