Schall NL in Medieval

7/28/2019 Schall NL in Medieval

1/8

A Symposium on Natural Right and Natural Law

Natural Law in theMedieval Intellectual ContextJ ames V . Schall, S.J .

Christianity, however, contains three ideas of decisive importance , . : the idea of thesupermundane, transcendent,personal God as Lawgiver in the absolute sense; the idea ofChristian personality, whose eternal goal transcends the state, the law, and the moresofthe polis; and the idea of the Church as the institution charged with the salvation ofmankind standing alongside and, in matters of faith and morals, above the state. Suchideas had in the long run to affect the whole problem of natural law: not, indeed, torevolutionize it, but to explore it more thoroughly, to strengthen its foundations,and tocomplete it materially. - Heinrich Rommen, The Natural LawFor what is revelation i fnot the macrocosm, in one way or another, imparting knowledgeof itself to the microcosm?. . . There is,I imagine,no need to arguefor the importanceofa right conceptof revelation as their (religion and philosophy) underlying dea. It seems tome almost self-evident hat normally religion begins as revelation and gradually becomestradition. I shall only suggest . . . that the essential difference between the Christian andall other religions, ncluding J udaism, is that the former did not begin with revelation butwith an historical event; the event namely by which the potential sourceof all revelationwas passed from macrocosm to microcosm, and thus, from withouttowithin. That, as Isee it, is why the Incarnation has been correctly described as the Word becoming flesh.

-Owen Barfield, The Concept o Revelation,Seven: An Anglo-American Literary ReviewTHE CONTEMPORARY PROBLEM in politicalphilosophy continues to be that con-stituted by the arbitrary presuppositions ofa theoretic relativism which are said toprevent any definitive grounding of rightand wrong, valid for all cases. Y et, we areloathe to suggest that right and wrong are,ultimately, arbitrary or relative to time orculture. Wedonot likeaHitler or a Stalinto have been possibly right in some

other time or place. The dominantrelativist position thus runs into the dif-ficulty of what the classical philosopherscalled the worst state. In contemporaryterms, this might be rendered intelligibleby asking how, other than on purely sub-jective, emotive grounds, can we in princi-ple reject the morality o an Auschwitz,whatever we might think of Aristotleand massive abortion statistics? If we are

228 Spring/Summer 1984


2/8

able, in practice, to reduce at least thehuman fetus in all its stages to the statusofa non-person, unprotected by law, whycannot we go and do likewise to justanyone on the basis of positive law? Whydoes the actual being o a seven-monthold fetus render the positive civil law per-mitting this extermination invalid morally,if it does?The cultural and political diversity omankind, furthermore, suggests a widerange of ways to organize civil society, sothat we can ultimately anticipate, indeedencourage, many different ways to do thesame sort of thing. But we hesitate tomake this variety sogreat that we are, oncultural grounds, prevented fromcondemning at least some actions aswrongs in the eyes of everyone, no matterwhat their socio-political diversity. And topoint to something as wrong is not thesame as saying it will not happen. In thissense, we live in a world in which whatought not to happen does happensometimes. And, often, this disorder hap-pens through human agency. The ques-tion arises, further, can we classify ourpolitical organizations and their premisesin such a way that, like Aristotle, we candesignate on objective grounds good andbad forms of rule, each in turn bearing agreater or lesser degree of goodness orbadness, decided on the basis of thenatural intelligibility of the best,whether it can exist or not? This effort willalso imply the need felt by Plato andCicero to address themselves to the notiono the second best state.I f we cannot do this, however, what isthe point of our moral anger or praise, ofour faculty of speech which, as Aristotlealso noted, was given to us precisely to in-dicate what was good, what evil, whatjust, what unjust. This would mean, I takeit, on the relativist premise, a radical in-capacity actually to speak to oneanother because our very words have noreferent in the nature of things to groundwhat we mean. J oseph Cropsey wrote:

Man is encouraged to cultivate anatural philosophy by which he tri- tions, which formed their own individualcharacters and destinies on this basis.

umphs over nature, even to creating itsorder out of his imagination, and amoral philosophy through which hecapitulates to nature entirely. If werecall the implication of the old-fashioned dualism described earlier, itwas very different from this. We sawthere that moral and politicalphilosophy was the field of mansstrenuous rebellion against brutenature, and natural philosophy was hisact of union with the intelligible nature.We are struck by the immense peram-bulations of the mind.If the order of nature is not merely the

product of our imagination, then moraland political philosophy must in somesense discover what we actually are. In-deed, in spite of Hume, we must withAristotle discover what we are for. Ifnature is intelligible and human natureitself belongs to this intelligibility, itselfopen in some sense to human intelligence,then the perambulations of the mind arenot infinite, except insofar as what is in-finite in being comes under the scrutiny ofthe human mind. This is to say, to knowwhat a thing is so limits the mind thatnothing about it can be affirmed of it ex -ceptwhat conforms to its particular levelof being, to its order of actions, to its in-dividual identifications.Since ancient times, then, the standardescape, as it were, from relativism hasbeen, in the area of politics, formulated interms o the natural law, which was seennot as some uniform plan imposed iden-tically in all existing beings, but asconforming to the peculiar modeof beingproper to each. Both Cicero and Paul ofTarsus suggested that men as men, by theuse o their peculiar natural faculties,which they did not give to themselvesbut discovered themselves already topossess by virtue of their own givenness inthe level of being they operated in,could-though need not-judge therightness of their proper actions. As aresult, they were responsible for their ac-

Modern Age 229


3/8

Cicero wrote, in a famous passage:True law is reason, right and natural,commanding people to fulfill theirobligations and prohibiting and deter-ring them from doing wrong. Itsvalidi-ty isuniversal; it isimmutable and eter-nal. Its commands and prohibitions apply effectively to good men, and thoseuninfluenced by them are bad. Any at-tempt to supersede this law, to repealany part of it, is sinful; to cancel it en-tirely is impossible. Neither the Senatenor the Assembly can exempt us fromitsdemands; we need no interpretation

or explanation of it but ourselves.There will not be one law atRome, oneat Athens, or one now and one later,but all nations will be subject all thetime to this one changeless andeverlasting law.2And some hundred years later, Paul ofTarsus wrote to these same Romans:

It is not listening to the law but keeping it that will make people holy in thesight of God. For instance, pagans, whonever heard of the Law, but are led byreason to do what the Law commands,may not actually possess the Law, butthey can be said to be the Law. Theycan point to the substance of the Lawingrained in their hearts-they cancalla witness, that is, their own con-science-they have accusation anddefence, that is, their own inner mentaldialogue, on the day when, accordingto the Good News I preach, God,through J esus Christ, judges the secretsof mankind.3

Thus, both from the tradition of reasonand from the tradition of revelation,natural law was a part of Westernheritage. And what stood behind this wasa theory of metaphysical realism and in-carnational theology that could accountfor stable essences which were not theirown cause ^Plato, Aristotle, Thucydides, and Cicerostood for what reason could and mustthink about the human condition from its

own resources. And while in Arabphilosophy especially, somuch related toAristotle, there was a tendency to subor-dinate revelation to reason, as myth to vi-sion, the general Judaeo-Christian think-ing at least sought to retain the validity ofboth reason and re~elati on.~hus, evenwhen natural reasoning came to beelaborated in revelation, as, say, with thepassage from Paul or in the Ten Com-mandments, its content was also con-sidered to be capable of being arrived atthrough aprocess of reason. The medievalelaboration of natural law, consequently,which saw reason as also law, tookplace against a background not ofunbelief, as perhaps in our own time, butagainst the traditions of revela-tion-Hebrew, Muslim, and Christian.jNow, it isthe standard contention of thosecontemporary political philosophers whowould meet the dangers of institutional-ized relativism by a return to Greekclassical theory, that the natural law tradi-tion, coming out of precisely the medievalphilosophic reflection, cannot be used.This is because it is somehow taintedfrom the standpoint of reason on accountof its relation to revelation, which did, asan historic fact, indeed, aid in thediscovery of what is natural. The objec-tion is not so much that the conclusionssaid to belong to natural law are notuniversal, but that they are only open tothe restricted group who believe.Thus, natural law and its revelation-inspired conclusions about what menought to do as understood by their ownreason has no validity insofar as itscontent was arrived at under the impulseof the existential questions addressedto reason by revelation, especially thosequestions pertaining to creation, retribu-tion, personal uniqueness, family, in-dividual destiny and its mode of possess-ing happiness. Thus, while Plato andAristotle, those most reasonable of men,entertained with calmness the idea of ex-posing deformed or unwanted children, itis said that they could only be provedwrong because of revelation, which noteveryone shared. Therefore, they were



4/8

actually more reasonable than reasoninspired by revelation. That is, it isnaturally unreasonable to object toPlatos and Aristotles stated positions,since they embody reason. Or, to put it dif-ferently, if a believer arrives at theunreasonableness of their position, he can-not transcend their natural rationalpowers, sothat it must be unreasonableto conclude them wrong in this case. Theimportance of medieval philosophy,however, lies in posing the question ofwhether we can be more reasonable thanthe classics, even if our impetus for thisfurther reasoning began with the intellec-tual comprehension of a question arisingfrom faith. This, briefly, was what Aquinasmeant in his famous discussion of thenecessity (1-11, 91-4) of revelation, notonly that there were truths the intellectcould not arrive at by its own powers butalso that there were truths it could arriveat but for one reason or another did not.Ernst Cassirer put the issuein its properterms:

The structure of the moral world is ofthe same type as that of the physicalworld. God is not only the creator ofthe physical universe; he is, first andforemost, the lawgiver, the origin of themoral law. Y et, here too we must bearin mind the general principle that it isno increase of the glory of God butrather a detraction from this glory tooverlook the causae secundue or todeny their effectiveness. We must givetheir due to these secondcauses.Godis the first cause and the ultimate end.But the moral order is a human orderthat can only be brought about by thefree cooperation of man. It is not im-pressed upon us by a superhumanpower; it depends on our own free acts.Hence, Thomas Aquinas could not ac-cept the current theological doctrinethat the state isadivine institution ap-pointed by God merely asaremedy forhuman sin. ..Thomas Aquinas is convinced thatthe highest good, the summum bonumof the ancient philosophers, cannot be

attained by reason alone. The oisiobeutificu, the mystical vision of God, re-mains the absolute goal-and this goalalways depends upon a free gift ofdivine grace. But man himself mustbegin the work and prepare for thisevent. The divine right does notabrogate the human right whichoriginates in reason. Grace does notdestroy nature; it perfects nature.Despite the Fall, therefore, man has notlost the faculty of using his forces in theright way and thus of preparing for hisown salvation.Heplays no passive rolein the great religious drama; his activecontribution is required and is, indeed,indispensable. In this conception manspolitical life has won anew dignity. Theearthly state and the Cityof God are nolonger opposite poles; they are relatedto each other and complement eachother.8

The Thomist notion of the harmony ofreason and revelation, not merely thatthey cannot be shown to be contradic-tory, but that reason can be shown to bemore itself under revelation-for it is in-deed irrational to expose children,deformed or too many, for political oreugenic reasons-is the context in whichthe revival of classical theory must be con-sidered, even in its own classical terms.Perhaps the importance of this problemcan be ascertained by referring to Pro-fessor Leo Strausss discussion of Marsiliusof Padua, who is in many ways the directlink to Machiavelli and modern theory,the intellectual dividing line betweennatural law and natural right in themodern sense. Here, the issue of univer-sality or reason is juxtaposed in such afashion that the primacy of metaphysics totheology is at least hinted at. This wouldreintroduce the idea of civil religion inwhich the rites and practices of the poliswould be required even apart from theirtruth, while the philosopher would needprotecting from civil society in order thattruth itself might be preserved against theunknowingness of the generality and thenon-rational statusof theology. Strauss

Modern Age 231


5/8

wrote:Within the confines of politicalphilosophy, Marsilius tacit oppositionto Thomas Aquinas shows itself mostobviously in his teaching regarding

natural law or natural right. Marsiliusdenies that there isanatural law properly so called. He presupposes thatreason knows no other legislator thanman and hence that all laws properly socalled are human laws: reason is indeedcapable of discerning what ishonorable, what is just, and what is ofadvantage to society. But such insightsare not as such laws. Besides, they arenot accessible to allmen and hence notadmitted by all nations; for this reasonthey cannot be called natural. .. Whatis universally admitted is not rational,and what is rational is not universallyadmitted. A mong the rules which canmetaphorically be called naturalrights Marsilius mentions the rule thathuman offspring must be reared by theparents up to a certain time; he mayhave regarded this rule as not un-qualifiedly rational since Aristotle hadheld that no deformed child should bereared. More generally, if wars are bynature necessary in order to preventoverpopulation, the distinction be-tween just and unjust wars loses muchof its force, and this grave qualificationof the rules of justice cannot but impairthe rationality of those rules of justicewhich are universally or generally ad-mitted to obtain within the com-monwealth. In other words, the univer-sally admitted rules of right are not ra-tional since there exists a naturalnecessity to transgress them or sinceman does not possess freedom of will totheextent to which both common opin-ion and the teaching of revelationassert it.9

There are, perhaps, two reflections thatcan be made from the medieval point ofview to this position that either freedom istoo weak or reason too particularized tobear a true and universal natural law.The first context of medieval thinking in

politics is always to recall Augustine, theone thinker that everyone knew. The no-tion of a natural necessity to transgressthe rule of right reason, of which Straussspoke, as well as of aweakened conditionof the will, would be nothing more thanthe classic doctrine of the Fall. This wouldsuggest that it is not necessary to denynatural law or freedom, even on empiricalgrounds, to admit these practical conse-quences of non-observance or non-understanding, for which Augustinesstate was designed to account. Saint Paulhad also suggested the common ex-perience about which A ugustine likewisewrote, that the things that we would do,wedo not, while the things we would notdo, we end up doing. Pauls answer tothis was that Gods grace would be suffi-cient to us, that no one would be temptedbeyond his means, that we could beforgiven. That is, freedom would not beremoved, nor would understanding, norwould the consequences of human ac-tions, good or bad, The Fall and grace,however, are clearly derivative fromrevelation, even though, being known andintelligible, they can serve to account forwhat does happen, contrary to our expec-tations of what men do do.Y et, the crucial issue to which Augustineaddressed himself in the context ofpolitical theory concerns the reason Platowas finally able to speak of immortality inthe Last Book of TheRepublic, the reasonwhy, as Hannah Arendt postulated, Hellmight beamost pertinent topic in politicalphilosophy, especially if we do think it ispossible to do real evil in this world to ourfellow men and not have it accounted forby the polis.11 Once we recognize thenatural intelligibility of justice as a properpolitical category, then, such that wewould rather be just than merely seem soamong our fellows, we likewise recognizethat not everything which deservesreward or punishment can be resolved orpunished in political life.This, of course, is one of Aquinasarguments for the need of revelation tounderstand reasons full meaning to itself.But beyond this, it also postulates the



6/8

question of the abiding significance of ourpersonal acts, whether or not they beproperly rewarded or punished in thepolis, and thus of our personal worth fromwhich our acts proceed. Once weacknowledge a personal significancetranscendent to the polis, but for livesresiding in it, then we can ask whatAugustine asked-not, Is there aRepublic, but How do we locate it vis-8-vis this world? Augustine did not disagreewith Plato, nor even with Hobbes, aboutthe normal altercations of men aswe findthem inhabiting the radically imperfectcities that do exist. A ugustine understoodthat the answer to the question of thelocus of punishment and reward, to thehigher question of the meaning of the vi-sion of the Good, cannot be settled finallywithin any political regime since it isnot aquestion o regime at all but of our deedsas reflective of our own goodness.Augustine does not say that our deeds areinsignificant because often corrupt, butrather the opposite. The limiting of politicsis at the same time a discovering of itsnature, what can be expected of it. Theconnection of political philosophy andmetaphysics then is grounded in the realbeing of man which can, with its givenfaculty of reason, recognize an other-wise and a not-otherwise, as Aristotlesaid. The things that can be otherwiseare themselves reflective of themetaphysics by which we conclude theFirst Mover, which thinks on itself, movesby being known and loved.In this context, then, Strauss went on toremark that One can understand Mar-siliuss denial of natural law best if onestarts from the fact that he implicitlydenies the existence of first principles ofpractical reason.12 This remains the heartof the question about natural law as aris-ing from the medieval experience. Arethe first principles of the practical in-tellect-do good; avoid evil-themselvesrooted in the metaphysics of being suchthat contemplation does happen to menprecisely insofar as they have reason?Revelation brought up the question ofwhether all men could be saved even if

they were not, as most were not,philosophers, a position that enhanced thedignity of each person no matter what hisoccupation. But what is at stake withnatural law is rather the unity of man andcosmos, together with a statement of hisunique mode of acting on the basis ofwhatafinite being can know of the whole.Charles N. R. McCoy wrote:

Natural law in its first precepts (asdistinguished, then, from natural law inits secondary precepts-Jus Gentium)embraces actions that are naturallyknown as bearing on absolute naturalcommensuration with what nature in-tends for men: for example, to seekgood and avoid evil. The mattersbelonging to J us Gentium, on the otherhand, are said to bear a relutiuenatural commensuration with whatnature intends for man. These are thecivilizing institutions without which theprincipal ends of human life cannot beattained except with the greatest dif-ficulty. 3

The institutions of the polis, in otherwords, are themselves natural in thesense that, knowing what we are and howwe act, we can reasonably figure out whatbest aids or hinders us. The classical locusof this issue, even today, concerns Platoscommunality of property, wives, andchildren. But behind this lies the questionof evil and good proceeding from men nomatter what the particular regime, evenaregime of communality of wives, childrenand property.McCoy remarked that many reason-able political and constitutional questionsfell into place once the question ofperfect happiness was clarified byrevelation, a question that arises over thenature of post-A ristotelian philosophy andits modern revivals.14The unity of politicsand metaphysics, and their different rela-tion to revelation, can best be seen byrecalling that the question of human happiness is indeed one that comes up frompolitics but cannot be fully answered by it.

The frustration of half-contem-

ModernAge 233


7/8

plation and half-action of the post-Aristotelian world, its weariness withthe human lot, had threatened to ruinthe structure of human knowledge inethical and political science. Thisfrustration had its roots in the intricatepsychological structure of mansnature, reflected in A ristotles triplealternatives: god, beast, and socialanimal. It had its roots in the im-possibility of asatisfactory natural solu-tion to the ultimate political question ofhuman happiness. A revolution pro-founder than man was capable of by hisown natural powers seemed required ifthe natural wisdom of the ancientworld, so hard won, was to be pre-served, if the structure of politicalphilosophy was to be safeguarded.15

That the happiness to which the humanperson tends is not alone a political one,granting the legitimacy of Aristotles no-tion of a true practical happiness, is itselfevidence of natural law. This is whyAugustines City of God remains theultimate check on the notion that someelite group of philosophers will by theirown powers discover that which finallyconstitutes human happiness. The humanintellect is proper to each, standingagainst any notion of a separate, singleagent intellect for everybody, andtherefore it is capable of recognizing anintelligible answer when given.The medieval legacy of natural law re-mains an intellectually essential constit-uent for the de facto discussion politicalphilosophy has engaged itself in over thequestion of the best regime and its relationto personal happiness and to regimes thatare not the best. The tradition ofAugustine is abiding and significantbecause it relates to the Platonic questionof the location of the ideal state, aques-tion that is part of the structure of thehuman intellect to inquire about. This toomust recognize the reality of the real ac-

tionsof men as describedsobrilliantly andsadly by this same Augustine or by aMachiavelli or a Hobbes.Aquinas, on the other hand, whileagreeing with Augustine on both of thesepoints, recognized the Aristotelian tradi-tion of reason, speculative and practical,as itself addressed by certain questionsarising from revelation, but questions ad-dressed to intellect in its own terms.Aquinas did not argue that human reasoncan completely achieve the answers tothose intimations o happiness it doesreceive by reflecting on its own ex-perience. He recognized the limitednature of politics while acknowledgingthat what can be achieved by politics isperfectly proper and good. What he add-ed, however, is that the additions toreason deriving from faith are not, on thataccount, unreasonable.16The source ofstimulated knowledge is not the same asthe knowledge once acquired in its ownterms.The conclusion, then, would suggestthat natural law ought not to be thoughtback out of existence on ecumenicalgrounds, however useful an intellectualexercise it might be for pedagogical pur-pose~.~ather, natural law should belooked upon as being itself made morecomplete and profound in its own orderbecause questions posed by revelation, bythe macrocosm to the microcosm, asOwen Barfield put it, do enable us to thinkbetter about the good in our actions andthe good to which they are directed, in thelight of which we think of rewards andpunishments, both civil and ultimate. Thefact is that natural law is explored,strengthened, and completed by the im-pulse of thinkers in the medieval periodbeginning their reflections with questionsposed to them by revelation. Openness totruth remains the hallmark of the humanintellect, even when this truth is notcreated out of mans own imagination.



8/8

J oseph Cropsey, Political Life and a NaturalOrder, Political Philosophy and the Issuesof Politics(Chicago, Ill., 1977). p. 229. Cf. also, Reo Christen-som, Natural Law: M aybe the Fathers Were Right,Heresies: Right and Left(New Y ork, 1973), pp. 1-16.Ticero, On the Commonwealth, 111 33. 3Paul,Romans, 2:13-16. Cf. S. Jaki, The Road of Scienceand the Ways to God (Chicago, Ill., 1978). T f . M .Mahdi, Alfarabis Philosophyof Plat0 and Aristotle,(I thaca, N.Y., 1962). Tf.M. Fox, M aimonides andAquinas on Natural Law,Studies in Maimonides andAquinas (Elmsford, N.Y., 1975), pp. 75-106 LeoStrauss, Natural L aw, International Encyclopediaof the Social Sciences,vol. 11,8045. Cf. J ohn Finnis,Natural Law and Natural Right(Oxford, Eng., 1980),Ch. 13. Cf. also the authors On the Christian State-ment of the Natural Law, Christianity and Politics(Boston, Mass., 1981), pp. 213-42. 8Ernst Cassirer,Nature and Grace in M edieval Philosophy, TheMyth of the State (New Haven, Conn., 1946), pp.114-15. gLeOStrauss, Marsil iusof Padua, HistoryofPolitical Philosophy, ed. Leo Strauss and J osephCropsey, 2nd ed. (New Y ork, 1972), p. 267. ]This isthe burden of Augustines Confessions.Cf. Paul,Romans, 7:15-16. Cf. the authors On the Neglect

of Hell in Political Theory, The Thomst, anuary1980, pp. 27-44. W rauss, Marsilius. . ,p. 267.I3Charles N.R. McCoy, The Structure of PoliticalThought(New Y ork, 1963). p. 95. Cf.alsoH. McKin-non, The Higher Law (Berkeley, Calif., 1946); LordHailsham, Modern Reflectionson the Natural Law(London, 1978); Henry Veatch, Natural Law: Deador Alive? Literatureof Liberty,October 1978, pp.7-31; J acques M aritain. Man and the State(Chicago,Ill., 1951), Ch. IV; A.P. dEntrhves, Natural Law: AnHistorical Survey (New Y ork, 1965); E.B.F. Midgley,The Natural Law Tradition and the Theory of Inter-national Relations (London, 1975); and the authorsGeneralization and Concrete Activity in NaturalLaw Theory, Archiv f i i r Rechts- undSozialphilosophie,no. 2, 1959, pp. 162-92. Cf. theauthors Post-A ristotelian Philosophy and PoliticalTheory, Cithara,November 1963, pp. 56-79. I5Mc-Coy, p. 98. Wf.Etienne Gilson,Reason and Reuela-tion in the Middle Ages (New Y ork, 1938); F.Wilhelmsen, Faith and Reason, Modern Age,Winter 1979, pp. 25-32; and the authors Reason,Revelation, and Politics: Catholic Reflections onStrauss, Gregorianurn, nos. 2-3, 1981. Cf. LeoStrauss, The City andMan (Chicago, Ill., 1964), Ch. 1.

Modern Age 235

Documents

Schall NL in Medieval