sign in sign up
<<
Home , Natural law

The

Volume 17 Number 4 Volume 17, Autumn 1971, Number 4 Article 7

Scholastic Natural - Professor Goble's Dilemma

William J. Kenealy, S.J.

Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl

Part of the Natural Law Commons

This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more , please contact [email protected]. SCHOLASTIC NATURAL LAW- PROFESSOR GOBLE'S DILEMMA *

WILLIAM J. KENEALY, S.J.

P ROFESSOR GEORGE W. GOBLE wrote a challenging and significant article, entitled , Man and Law: The True Natural Law,' which was criticised by the present writer's Whose Natural Law?2 To this criticism Professor Goble has replied in his The Dilemma of the Natural Law.3 The dilemma indicated in the title is expressed in the following words:

The universality and immutability of principles of law can either be determined by objective or they cannot. If they can be so determined, the whole body of natural law becomes a system of em- pirical law. If they cannot be so determined, then objective evidence cannot be used to show the validity of one system over another claim- ing the same attributes. This is the dilemma of the natural law.4 (Italics supplied.)

The gist of my reply to this dilemma is that, conceding the second horn, I deny the first. The why I deny the first horn of the dilemma is because it assumes that objective evidence is confined solely to empirical data. It implies that we can have objective evidence only of physical facts adduced by the senses; and that we cannot have objective evidence of metaphysical perceived by the intellect. Since the physical themselves depend upon the validity of certain meta- physical truths, Professor Goble's dilemma seems to be predicated upon

*Reprinted from 3 CATHOLIC LAWYER 22 (January, 1957). 1 Goble, 41 A.B.A.J. 403 (1955). 2 Kenealy, I CATHOLIC LAWYER 259 (Oct. 1955). 3 Goble, 2 CATHOLIC LAWYER 226 (July 1956). 4 Id. at 232. SCHOLASTIC NATURAL LAw-Professor Goble's Dilemma a truncated . Such an assumption Professor Goble has a ad hominem is essentially inadequate, not merely for point here-but only if and insofar as his the philosophical and legal sciences, but were aimed exclusively at his also for the positive and physical sciences. "primary" target, the seventeenth-century I shall attempt to clarify the above analysis and eighteenth-century natural law, which of Professor Goble's dilemma by the fol- Dean Pound described and called classical. lowing commentary upon his reply to my But the Professor's arguments were not so criticism. confined to his "primary" target. He dis- The substance of my criticism of Pro- charged a blunderbuss which scattered shot fessor Goble's original thesis was stated in at a more important and enduring target, the following topical sentences: the traditional scholastic natural law, which I termed classical. s This seems fairly clear Professor Goble sets up and rejects a con- from the tenor of his original article, and cept of natural law which would also be from the following statement in his reply: repudiated by every classicist from to Heinrich Rommen. By "classi- cists" I mean the scholars and spokesmen Father Kenealy's system, as well as the of the traditional natural law system described by Pound, encompasses as expounded by the medieval scholastics what are called "fundamental principles" and the modern neo-scholastics. The con- which are said to be "certain, immutable cept rejected by Professor Goble differs and universal," and which are "antecedent, essentially from the classical concept in both in and in nature, to the forma- two fundamental and all-pervasive aspects: tion of civil ." To the extent that the very meaning of the natural law, and Father Kenealy's system incorporates this its epistemological basis.5 view it seems to me to be vulnerable to at least some of the criticisms forth in 9 In his reply, however, Professor Goble my article. (Italics added.) states ". . . the primary target of my criti- cism was the natural law which developed Professor Goble expresses gratification at in Europe in the 17th and 18th centuries my statement that his arguments have "con- and was transported to the in siderable relevance to the 'natural law' the 18th and 19th centuries. Dean Pound of Pufendorf, Thomasius, Hobbes, called this the 'classical natural law.' " He Spinoza and their followers of the seven- asks, "Who is to say what is the classical natural law?", and asserts, "Father Kenealy described another system called natural 8 I did so instinctively, I suppose, because of , and then took great pains to show that ancient and unbroken development and my criticism had no application to it, and of the philosophia perennis from the ancient Greeks and Romans through the medieval scho- further that since it did not, it is obvious '7 lastics to the modern neo-scholastics. This tradi- that I do not understand his system." tional school still seems to me more deserving of the term "classical" than its seventeenth- and eighteenth-century off-shoots which perpetrated 5 Kenealy, supra note 2. the various " of nature" theories. 6 Goble, supra note 3. 9 Goble, The Dilemma of the Natural Law, 7 Goble, supra note 3, at 227. 2 CATHOLIC LAWYER 226, 228 (July 1956). 17 CATHOLIC LAWYER, AUTUMN 1971 teenth and eighteenth centuries."' 0 Never- concept of "good" and the concept of theless, his reply reinforces my conviction "obligation" must be sharply distinguished. that he misses the meaning and the episte- The former means suitability to or mology of the traditional scholastic natural nature; the latter means to end or law. destiny. Generically, the morally good act means a free act conformed to rational I. The Meaning nature, perfective of nature ade- 1. Referring to the fundamental prin- quately considered (and therefore condu- ciples of the natural law, which are certain, cive to that nature's end); the morally evil universal and immutable, I had recited the act means a free act difformed from ra- familiar doctrine that they "are generally tional nature, degrading to divided into a primary principle and its adequately considered (and therefore re- immediate specifications, called secondary pulsive to that nature's end). By human principles. The primary principle is usually nature "adequately considered" is meant phrased in such terms as 'What is good is the operative human being, considered in to be done, and what is evil is to be the light of the internal harmony of his avoided.' "" Commenting on this primary faculties and the external harmony of his principle, Professor Goble stated: relations to his Creator and his fellow creatures. By the end of human nature is If we define "good" in general terms, meant the fulfillment or of hu- that is, without reference to particular acts, man being. By obligation is meant the we would have to say something like this, determination or moral necessity to that "good is what one ought to do." But if we do that, the principle becomes tautological, end. i.e., "one ought to do what one ought to do." This can hardly be said to be a Therefore, while the primary principle 2 principle at all.' prohibits all evil acts, because they are nec- essarily repugnant to the end, it does not But this is not the meaning of the pri- command all good acts, because, although mary principle. The misconception lies in all are conducive, not all are necessary to the confusion of "good" and "ought." the end; but it does command all good acts There are many morally good acts which ontologically necessary to the attainment of are not morally obligatory. There are works the end of man. The point is that "good" of supererogation. Heroic acts of and "ought" are neither identical in concept are among the more conspicuous examples. nor coextensive in predication. The univer- Surely, Professor Goble is not morally sality and immutability of the principle obliged to perform all possible morally emanates from the ontological universality good acts within his power of choice. The and immutability of human nature and the ontological relation of human acts to hu- man destiny. The certain of the 10 Kenealy, Whose Natural Law?, 1 CATHOLIC principle is an epistemological matter LAWYER 259, 261 (Oct. 1955). which I shall attempt to discuss later. It " Id. at 262. 12 Goble, supra note 9, at 229. strikes me as extremely significant, how- SCHOLASTIC NATURAL LAw-Professor Goble's Dilemma ever, that Professor Goble's formulation could not have been suggested by any of the principle, by identifying the "good" scholastic treatise or manual. It is based and the "ought," seems to indicate that upon a verbalism utterly alien to scholastic he accepts as obvious and evident (and, thinking. It might make one wonder why logically, also as universal and immutable) Professor Goble does not consider the that "good ought to be done and evil swatting of a mosquito or the plucking of a avoided." If he does not, what would the bluebell as an "exception to the mandate." reason be for doubt, exception or change? The cited "exceptions" are not exceptions at all to the scholastic principle. I had used 2. In discussing the secondary princi- the expression, "the (still general) terms ples of the natural law, I had said: of the Decalogue," advisedly. The four monosyllables, "Thou shalt not kill," As immediate specifications of the primary principle, the secondary principles find - merely indicate the principle. The princi- miliar expression in the (still general) ple, in its negative aspect, prohibits the terms of the Decalogue. The secondary immoral killing or infliction of bodily harm principles share the , universality upon self or other human . In its and immutability of the primary princi- . positive aspect, it commands the preserva- ple." tion of life and bodily integrity of self and other human beings. As a verbal formula- To which Professor Goble replied: tion of the negative aspect, I would sug- gest "Thou shalt not kill or inflict bodily Suppose we consider the Commandment harm upon any human being unjustly." "Thou shalt not kill." Notwithstanding the literally clear, unqualified and uncondi- tional statement of this injunction, one may Wherefore, acts of self-, defense justifiably kill another in self-defense, in of others, warfare, executions for , defense of his family, or even in defense , anesthesia, surgery, of a stranger. . . . These are generally rec- vaccination, strenuous sports, and all other ognized exceptions to the mandate "Thou bodily harms or risks of the same, which shalt not kill." But these exceptions are in no sense "derived" from the rule, as are justifiable, are not exceptions to the Father Kenealy seems to suggest. An ex- principle. They are outside its prohibi- ception which permits killing cannot be tions; in fact, they may be within its com- "derived" from a rule which says the exact 14 mands. And the justification of the act opposite. depend upon the of , i.e., conformity with or difformity from human I do not wish to substitute adjective for nature adequately considered, and as spe- . But I am compelled to say that cifically determined by the nature of the this is a fantastic interpretation of a sec- act, the circumstances of the action, and ondary principle of the natural law. It the motive of the actor. This is not to say or suggest that the determination of such moral problems is easy or automatic. I had 13 Kenealy, supra note 10, at 262. stated in my criticism of Professor Goble's 14 Goble, The Dilemma of the Natural Law, 2 CATHOLIC LAWYER 226, 230 (July 1956). original article: 17 CATHOLIC LAWYER, AUTUMN 1971

That natural law does not mean a closed principles of natural law cannot be uni- legal system, is evident from the fact that versal or immutable, because rules of civil the fundamental principles do not tell us law obviously are not."' The argument is automatically in concrete applications what is good or evil, just or unjust, wise or un- a non sequitur because the terms do not wise; what is idolatry, murder, theft, adul- mean the same thing. A principle of nat- tery, perjury or calumny.' 5 ural law can be known by man, because he can know his own nature and essential re- Hence, it is quite true that the solution lations; but the principle cannot be made, to a question of justifiable self-defense is changed or destroyed by man, because he not "derived" or deduced a priori from the cannot make, change or destroy his essen- principle which demands justification for tial nature; wherefore a principle of the the slaying of another. The solution of natural law is universal and immutable as such problems is what gives rise to the sci- the essential nature from which it ema- ence of morality-just as the difficulty of nates. But a rule of must be made, applying principles (and rules) of law and may be changed or abrogated by man's gives rise to the of law. Surely it is legislative or judicial process; wherefore a not true that a principle (or even a rule) rule of the civil law lacks the universality is meaningless or useless because its ap- and immutability of a principle of the nat- plication may be difficult in particular ural law. This is the reason why civil law cases. The phrase "due process" indicates enactments and rulings should be con- a legal principle (declaring and enforcing sonant with principles of natural law; it is a natural law principle) of great difficulty why the natural law constitutes a norm to in particular cases. But to me it is of great measure the or injustice of civil meaning and moment that the moral law, law. which says I may not be deprived of life Professor Goble cites, among others, the unjustly, is recognized and enforced by the rule of consideration in the law of Con- civil law, which says I may not be deprived tracts; 17 I might add, to spread the field, of life without due process-and this de- the rule of in Evidence, the rule of spite the fact that, in close cases, men and witnesses in Wills, the rule of recording of reasonable but finite mentalities, in , the rule of strict liability in may differ about the application of justice , the rule of "retreating to the wall" and due process. General principles may in , the rule concerning self-incrim- not decide particular cases; but particular ination in , and many cases cannot be decided without them. others, from the rules governing of A possible clue to Professor Goble's limitations all the way down to traffic rules misunderstanding of natural law principles and minor procedural . As may lie in his use of the terms "principle" rules, they have generality; but they are and "rule" interchangeably. He argues that also subject to exceptions properly so

15 Kenealy, Whose Natural Law?, 1 CATHOLIC 16 Goble, supra note 14, at 228-236. LAWYER 259, 262 (Oct. 1955). 17 Goble, supra note 14, at 231. SCHOLASTIC NATURAL LAW-Professor Goble's Dilemma called; and they may require change, grad- limited in the sense that they are subject ual or drastic, as time and wisdom de- to specification, qualification, expansion and mand. For they are practical and subsidi- contraction, and even forfeiture of exercise, as the equal of others and the de- ary means, of more or less efficiency, to mands of the common good from circum- enable to apply the great prin- stance to circumstance, and from time to ciples of the natural law to human beings time, reasonably indicate. who live in the constantly changing politi- are absolute only in the sense of the min- cal, economic and social conditions of civil imal requirements of a just and ordered . But this is not the stuff of a . s closed system of immutably "attained per- 9 3. A similar misunderstanding seems to fection."' color Professor Goble's notion of the ab- To which Professor Goble replied: solute and inalienable rights involved in the philosophy of the natural law. I had It is simply linguistic gymnastics to say stated in my article: in one breath that a principle is "certain, universal and immutable" or that a right is "absolute," and in the next that it is, never- Natural law does indeed imply the exis- tence of some human rights which are abso- theless, subject to "qualification," "ex- lute and inalienable, such as the right to life, pansion," "contraction" or "forfeiture." worship, marriage, property, labor, speech, "Qualification" and "contraction" include "exception," and an "exception" is an locomotion, assembly, reputation, etc. These actual are absolute in the sense that they derive subtraction from the rule. Each exception reduces the scope of the rule by the amount from human nature; they are not mere of the exception, and therefore makes it ap- handouts from the state; the state is bound ply to fewer to protect them and cannot destroy them situations. By any reasonable even though, by physical force, the state definition this is a change in the rule itself. ... has sometimes prevented their exercise. It seems to me that Father Kenealy has paid a terrific They are not absolute in the sense that they price in semantics to make it are unlimited in scope. It is a commonplace possible to say that his fundamental prin- ciples are "certain, universal and immut- in classical natural law philosophy that 20 human rights, even the most fundamental able." mentioned above, are limited. They are This reply confuses not merely princi- ples with rules, but both with rights. I Is Cf. Fagan, The Goble-Kenealy Discussion- stated that the fundamental principles of Two Comments, 2 CATHOLIC LAWYER 324 (Oct. the natural law are certain, universal and 1956). Professor Fagan seems to have missed the immutable; but I have never so described context of my statement that some derivative principles do not "share in the certainty, uni- rules or rights. A right is neither a princi- versality and immutability of the fundamental ple nor a rule. Generically, a right is an principles." Taken sensu composito, some deriva- individual's moral power to act, to omit, tives plainly do not have the certainty quoad nos. Moreover, I was refuting the notion that natural law involved a "closed legal system," indicating that many positive principles and practical rules, 19 Kenealy, Whose Natural Law?, I CATHOLIC constructed under the philosophy of the natural LAWYER 259, 263-64 (Oct. 1955). law, would obviously not be certain, universal or 2( Goble, The Dilemma of the Natural Law, immutable. 2 CATHOLIC LAWYER 226, 231-32 (July 1956). 17 CATHOLIC LAWYER, AUTUMN 1971

or to exact something of another. It is a as to age and consanguinity, etc.; but not, legal right when that power is granted, or I believe, by so-called miscegenation stat- recognized as existing, by the civil law. utes, which seem to me repugnant to the It is a natural right when that power ema- essence of the natural right. Property: may nates from human nature itself, i.e., from be qualified, contracted or expanded by essential human personality and destiny. reasonable zoning , anti-trust regula- Obviously, then, a right may be both nat- tions, wage and hour , etc. ural and legal. Now, I said that natural Labor: may be specified and qualified by rights "are absolute in the sense that they reasonable professional licensing require- derive from human nature, they are not ments, sanitary regulations, wage and hour mere hand-outs from the state"; and that and conditions-of-work legislation, etc. the state "cannot destroy them," because Speech: may be qualified by reasonable the state is unable to destroy the nature restrictions necessary, at least in time of from which they emanate; and that the grave emergency or catastrophe, for the state "is bound to protect them," because common good. Locomotion: may be speci- it is for the purpose of securing these rights fied, contracted or expanded by reasonable that are instituted among passport rules, imigration laws, etc.; and men. Nevertheless, I also said that natural I do not mean the "national quota system." rights, which are absolute in the sense ex- Assembly: may be qualified by reasonable plained, are limited in scope, "in the sense requirements in the of public that they are subject to specification, quali- health, safety and order. Reputation: may fication, expansion and contraction, and be qualified by reasonable laws requiring even forfeiture of exercise. . . ." To Profes- testimony in public , disclosure of em- sor Goble, this distinction is "simply lin- barrassing but contagious diseases, etc. guistic gymnastics." These are simply random examples of limitations upon the scope of the absolute They have blown the whistle on my ath- natural rights which I had enumerated; but letic days, but I do not think that the dis- they are typical of the limited scope which tinction requires particular agility, semantic is an attribute of all natural rights. or otherwise. I shall attempt to illustrate some typical limitations upon absolute nat- Is this "linguistic gymnastics?" I think ural rights. Life: may be forfeited by just not. If the scope of natural rights were sub- conviction of a capital crime, although ject to unreasonable or arbitrary limita- even then it would be retained as against tion, either by the fiat of a dictator or the private necktie parties. Worship: may be majority vote of a democracy, then indeed qualified by reasonable restrictions as to they would be subject to simple extinction time, place and circumstance, and hence I and could not be said to be absolute. But may justly be prevented from celebrating natural rights still exist in Budapest, no Mass when and where I would block the matter how their exercise is frustrated by necessary flow of traffic, e.g., in the middle civil law and brute force, because the Hun- of Times Square. Marriage: may be speci- garians are still human beings. If, however, fied and qualified by reasonable restrictions the scope of natural rights is subject only SCHOLASTIC NATURAL LAW-Professor Goble's Dilemma to reasonable limitation for the sake of the he takes that view. There were certainly a common good, then indeed they are not number of judges who claimed to be nat- ural-law who held to the extinction and can prop- subject to simple of the inviolability of freedom of . erly be said to be absolute. Reasonable Chase, Field, Miller and Brewer limitation of scope is a "built-in" attribute may be mentioned as among those who at of natural and inalienable rights. various times took this view. These judges were reprepresentatives of the natural law For the human person, in his essential of the nineteenth century, if not of the 22 nature, is not merely an individual being, natural law of Father Kenealy. he is also a social being living with his fel- lows in an external society which is subject I had also asked Professor Goble: " to political, economic, technological and [W]hat fundamental principle, what princi- social change. Hence, his natural rights ple held to be certain, universal and im- (and, of course, obligations) are both in- mutable has been relinquished at any time 23 dividual and social. To consider him solely by devotees of the classical natural law?" as an individual would lead to ; to To which he replied: consider him solely as a social unit would lead to . But his individual- This question is also impossible to answer social nature adequately considered leads to Father Kenealy's satisfaction, because to the conclusion that his natural rights are any person I might name as having relin- quished a fundamental principle of natural in the sense explained, because absolute, law would by such relinquishment disqual- he is an individual for whose good govern- ify himself as a "devotee" of Father Ke- ments are instituted; and to the perfectly nealy's classical natural law .... In relation compatible conclusion that his natural to this question I would like to propose the rights are limited in scope, in the sense name of Robert N. Wilkin as one who meets all of Father Kenealy's require- explained, because he is also a social per- 24 ments for a classical natural-law lawyer. son obliged by nature to contribute to the common good. From these two replies, it would seem 4. I had asked Professor Goble: "What that Professor Goble is somewhat wary of representative natural law or my cauda Jesuitica. Unnecessarily, I trust. spokesman held the principle that 'by nat- The two questions were rhetorical, I sup- ural law, could not be pose, but they were not "loaded." The interfered with by legislation'?"'2 1 To which expressed my conviction that no he replied: recognized scholastic philosopher, or rep- resentative spokesman for scholastic nat- This is a loaded question, because if I ural-law philosophy, has ever taken the name such a person, all Father Kenealy need do is to say that my selection is not a "representative" natural-law philosopher, 22 20, at 232. and he will not be representative because Goble, supra note 23 Kenealy, Whose Natural Law?, I CATHOLIC LAWYER 259, 262 (Oct. 1955). 24 Goble, The Dilemma of the Natural Law, 21 Kenealy, supra note 19, at 263. 2 CATHOLIC LAWYER 226, 233 (July 1956). 17 CATHOLIC LAWYER, AUTUMN 1971

positions indicated. But had Professor sake of the point in issue, let us suppose Goble surprised me by naming a philoso- that he does. What follows? I still ask pher or spokesman in point, I trust that I "What fundamental principle, what prin- would have the candor to admit it. I am ciple held to be certain, universal and im- interested in the philosophy, which is quite mutable has been relinquished" by Judge independent of the aberrations of any par- Wilkin? Although he stated that, in his ticular philosopher. We have sharpened opinion, segregation was "supported by the focus of our controversy to the point general principles of natural law," he was where the laissez-faire nineteenth-century obviously making a particular application rugged of Justices Chase, of the principles (which he did not name Field, Miller and Brewer are not in issue. or describe) to a concrete case. But I had There remains the case of Judge Wilkin already said: to consider. Natural-law agree on the Judge Wilkin is listed by Harold Reusch- fundamental principles of the natural law; lein 25 as a neo-scholastic. He wrote the they differ on its derivative principles and opinion in Hayes v. Crutcher,26 which Pro- standards; and there is wide divergence of fessor Goble describes as follows: opinion as to the concrete applications of its derivative principles and standards to the constantly changing political, economic, In 1952, Judge Wilkin wrote a judicial social and legal conditions of human soci- opinion in which he stated that since it is ety. But what do such differences prove? contrary to nature for black birds, white Surely not the invalidity of the funda- birds, red birds and blue birds to roost on mental philosophy. Such differences prove the same limb of a tree, it is contrary to that the area of opinion is larger than the natural law for colored persons to have a area of certainty .... 29 right to the use of a public golf course which by city ordinance was limited to In fairness to Judge Wilkin, it should be white persons. "It seems" said the judge, "that segregation is not only recognized in recalled that he wrote his opinion in 1952 constitutional law and judicial decision, but as the judge of a lower federal before that it is also supported by general prin- the Supreme Court overruled Plessy v. '27 ciples of natural law." Ferguson in the School Segregation Cases. Nevertheless, it is unfortunate that his Without consciously deviating from my dicta about birds attempted to link natural protestations of candor in controversy, and law to segregation on golf courses. The despite Harold Reuschlein's listing, I do answer to Judge Wilkin seems to be that not think that Judge Wilkin qualifies as a men are not birds, and birds do not play scholastic philosopher or as a spokesman golf. It would be diverting, if somewhat for that philosophy. 28 However, for the

Kenealy is evident from his comment on Judge 25 Cf. REUSCHLEIN, 391 (1951). Wilkin's opinion in the Hayes case. 2 CATHOLIC 26 108 F. Supp. 582 (M.D. Tenn. 1952). LAWYER 234 (July 1956). 27 Goble, supra note 24. 29 Kenealy, Whose Natural Law?, 1 CATHOLIC 28 That Dean Reuschlein agrees with Father LAWYER 259, 265 (Oct. 1955). SCHOLASTIC NATURAL LAw-Professor Goble's Dilemma startling, to imagine the logical conclusions ciples of natural law are established by "ob- from a premise that men should act like jective evidence" are mystifying. I know of no scientific means, or and error birds. It appears that the Judge's argument procedures by which principles of law can about the instinctive actions of our feath- be determined to be immutable and uni- ered friends has no relevance to the ra- versal. How can it be established by objec- tional conduct of human beings at all, but tive evidence that principles are good or is strictly for the birds. My own opinion bad for society if we must accept them as immutably created before there was any about the application of natural law to the 33 society? issue of compulsory racial segregation is 30 expressed elsewhere in these pages. I had stated that "natural rights and ob- ligations are inalienable precisely because II. The they are -given. They are antecedent, 1. The epistemology 3t of scholastic both in logic and in nature, to the forma- ' 34 philosophy constitutes another stumbling tion of civil societies. Which drew this block for Professor Goble. It is something response: quite mysterious. I had made the follow- ing statement: The proposition that certain legal prin- ciples are "antecedent, both in logic and in nature, to the formation of civil societies" I infer that Professor Goble that seems to assume that the mind can reason the epistemological basis of natural law without -that it can by deduc- philosophy is: the criterion of is sub- tive logic reach conclusions about how men jective certitude or of subjective ought to conduct themselves in society, be- conviction. This is simply not true ... fore society exists, and therefore before On the contrary, natural law philosophers there are facts upon which reasoning can be unanimously set up objective evidence as based. Psychologists, I believe, would deny the criterion of truth. The philosophers of this. The mind cannot create knowledge. It various theories of , Descartes, cannot think in a vacuum.3 5 Spinoza, Leibnitz, Berkeley, Hume and their followers are again the express episte- mological adversaries of classical natural Analyzing the above two quotations, and 32 law. their cited contexts, it seems to me that Professor Goble is committed, explicitly or To which Professor Goble replied: implicitly, to the five following proposi- tions: (a) That the immediate evidence, of These positive assertions by Father the fundamental principles of the natural Kenealy that immutable and universal prin- law, assumes "that the mind can reason without experience." (b) That the anteced-

30 Kenealy, Segregation-A Challenge to the Le- gal Profession, 3 CATHOLIC LAWYER 37 (Jan. 1957). 33 Goble, The Dilemma of the Natural Law, 31 Epistemology is the science of the methods 2 CATHOLIC LAWYER 226, 228 (July 1956). and grounds of knowledge, especially with ref- .34 Kenealy, Whose Natural Law?, 1 CATHOLIC erence to its limits and validity. LAWYER 259, 260 (Oct. 1955). 32 Kenealy, supra note 29, at 264. 35 Goble, supra note 33, at 229. 17 CATHOLIC LAWYER, AUTUMN 1971 ence "in logic and in nature," of inalien- clusion, etc. Such universal ideas do not able rights to the formation of civil so- exist, as universals, independently of an act cities, necessarily means antecedence in of the intellect; but they have a foundation time "before society exists." (c) That the in objective , because they represent only evidence constituting the criterion of reality as abstracted from particular ob- truth is that specific to the "scientific jects which do exist independently of an means, or trial and error procedures" of act of the intellect. But the intellect can do the positive and physical sciences. (d) That much more than apprehend ideas, it can such procedures are competent to deter- also reflect, compare, reason, and form mine whether or not the fundamental judgments; judgments do not exist, as principles of the natural law-command- judgments, independently of an act of the ing good and prohibiting evil, forbidding intellect; but, because they are predica- unjust killings and the like-are, as prin- tions of objective reality, they will be true ciples, "good or bad for society." (e) That or false insofar as they do or do not con- such procedures are competent to test the form to the reality of the object existing validity of the ultimate and necessary independently of the act of judging. Hence, metaphysical premises of the positive and the criterion of truth (and the motive of physical sciences themselves. I shall at- certitude) can only be objective evidence, tempt to indicate why I think these five which may be defined as the manifestation, propositions are erroneous. to the judging intellect, of the ontological necessity of the object to be what it is. (a) It is a fundamental axiom of scho- Accordingly, as the ontological necessity lastic epistemology that "nihil est in intel- of the object is metaphysical, physical or lectu nisi prius aliquo modo in sensu," moral, the truth (and certitude) of the that is, nothing can exist in the mind which will be metaphysical, physical, has not been previously in some manner or moral. Moreover, as the manifestation in the senses. Wherefore, a man who has of that necessity does or does not depend never seen cannot conceive a proper idea upon some previously known truth, the of color; a man who has never heard can- objective evidence involved will be medi- not conceive a proper idea of sound; and ate or immediate. For knowledge must be- a man who had never experienced any gin somewhere. And all knowledge, both sensation, internal or external, could not speculative and practical, must depend have any intellectual idea at all. It is cer- upon some immediately evident truths. tainly true that the mind cannot "create Otherwise we could never know anything, knowledge" or "think in a vacuum." even probabilities. But we certainly do Nevertheless, the senses supply only know some things. particular and material data, whereas the intellect can abstract from such data ideas The scholastic doctrine, therefore, that which are universal and spiritual, e.g., the the fundamental principles of the natural idea of being, nature, end, relation, act, law are objectively and immediately evi- potency, good, evil, right, obligation, prin- dent, does not "assume that the mind can ciple, controversy, premise, argument, con- reason without experience." It does not as- SCHOLASTIC NATURAL LAW-Professor Goble's Dilemma sert that such principles are the first truths know something about truth itself, about known by men. It merely recognizes that freedom, faith, , love, , jus- such principles constitute the basis upon tice, , fortitude, sacrifice, pa- which all truths of the practical moral or- triotism-which are not the least compo- der ultimately depend. nents of the "good life" of men and their societies. They are also the objects of (b) Antecedence "in logic and in na- knowledge and, therefore, have their own ture" does not necessarily mean anteced- objective evidence. ence in time "before society exists." An- tecedence means priority: in logic, priority (d) Nor are such procedures competent of premise to conclusion; in nature, pri- to determine whether or not the funda- ority of cause to effect; in time, priority by mental principles of the natural law-com- the calender or clock. Inalienable natural manding good and prohibiting evil, forbid- rights are antecedent in logic to society, ding unjust killings and the like-are, as because we argue from what man's nature principles, good or bad for society; because is to what society should be; we do not the positive and physical sciences are not argue from what society is to what man's normative. They study the "is" and not the nature should be. Inalienable natural "ought;" they prescind from "values." rights are antecedent in nature to society, They bring to light extremely important because man's nature and natural activities positive and physical data which, however, are the cause of society, sc., material, for- must be evaluated by the normative and mal, efficient and final; man makes society, metaphysical sciences. society does not make man. It is "to secure (e) Nor are such procedures competent these rights" that "governments are insti- to test the validity of the ultimate and nec- tuted among men;" the Hungarians appre- essary metaphysical premises of the positive ciate this. As to time, whether man ever and physical sciences themselves. Among existed in a "," as the seven- such premises are: the principle of contra- teenth and eighteenth century philosophers diction, that a thing cannot be and not be seem to have held, i.e., "before society" at the same time under the same aspect; existed, is disputed by most scientists; but the principle of sufficient reason, that what- is completely immaterial to scholastic doc- ever exists must have a sufficient reason trine and to my argument. for its ; the principle of , (c) Nor is the evidence specific to the that whatever exists contingently, or begins "scientific means, or trial and error pro- to be, must have a cause of its existence; cedures" of the positive and physical sci- the existence of objective reality indepen- ences the only evidence constituting the dent of the human intellect; the capacity of criterion of truth. Such procedures, and the intellect to know some reality; the dif- their specific evidence, have reference to ference between truth and error, between the formal objects of such sciences, sc., certitude and probability, etc. These are what is in the positive and physical order. metaphysical truths necessarily presup- But we also know some things about the posed by the positive and physical sciences normative and metaphysical orders; we for the validation of their own procedures 17 CATHOLIC LAWYER, AUTUMN 1971 and conclusions; they are above and be- formity ("badness") of other acts from yond the self-imposed formal objects of that nature, the fulfillment or perfection such sciences. Moreover, such premises which is the end of that nature, the neces- cannot be "proved," in the sense of pro- sity of attaining that end, the possibility of ceeding from the known to the unknown, frustrating the end, the relation of attain- because they are immediately evident; be- ment between good acts and the end, the cause the very attempt to "prove" them relation of frustration between bad acts supposes their truth-just as Professor and the end, and the fact of the physical Goble cannot "prove" to himself that he freedom of man in action--considering exists, because any effort to do so would such things, the intellect cannot help but suppose his existence. Nevertheless, such see that man, although physically free, is metaphysical premises are the starting nevertheless morally obliged ("ought") to points of all human knowledge. Every for- do good and avoid evil. ward march of science presupposes them, and none can "prove," disprove or change The above sentence, of course, is not an them. For, when properly understood, they attempt to "prove" the primary principle. are objectively and immediately evident as Any such attempt, in the sense of moving certain, universal and immutable truths. from the known to the unknown "ought," would be impossible; because it would The metaphysical truths indicated above necessarily presuppose some logically are among the first principles of the specu- "ought;" but no logically prior lative order; the fundamental principles of "ought" can be adduced, because there is the natural law are the first principles of none. The positive and physical sciences the practical order. This distinction is one obviously cannot adduce one, since they of convenience made because the same in- are concerned exclusively with the "is;" tellect can know and reason about es- and no one can get an "ought" in front of sences, causes and effects, the "is" of a microscope or a telescope. All men ac- necessary being, i.e., truths which are posi- cept the primary principle; none deny it. I tive or speculative; and it can also know am sure that Professor Goble does not. For and reason about conduct, means to ends, all men, no matter how violently they may the "ought" of physically free human ac- differ upon its application to particular tions, i.e., truths which are normative or acts or concrete fact situations, agree upon practical. The primary principle of the nat- the basic truth that good should be done ural law is the basic truth of the practical and evil avoided. Its denial would make moral order, which is supposed by all other futile any discussion of the moral order, of truths of the same order, and upon which , justice and injustice, rights their validity depends. It is not known and obligations, due process and equal "without experience," nor is it the first protection, etc. Its denial, in fact, has been truth known by the intellect. For the intel- incorporated into the insanity tests of civil- lect, considering man's rational nature, his ized criminal codes. And this is because capacity for action, the conformity ("good- the primary principle, again when properly ness") of some acts to that nature, the dif- understood, is objectively and immediately SCHOLASTIC NATURAL LAw-Professor Goble's Dilemma

evident as a certain, universal and im- of the will, is a quality of actions, whereas mutable truth. "truth," as the object of the intellect, is a quality of judgments; and principles are 2. These qualities of the primary prin- judgments. Hence, if I am asked how a ciple of the natural law are equally attribu- perennially true principle can be proved table to its immediate specifications, the presently by objective evidence, I must secondary principles, e.g., that one should reply: If it is a fundamental principle, not unjustly kill another. Professor Goble, either in the speculative or in the practical however, asks: order, it can never be "proved" or "dis- proved" in the past, present or future; Assuming that a principle has always it been good and always will be good, how can be seen, however, at any time, in the can that fact be proved presently by "ob- light of its own immediate objective evi- jective evidence"? The only basis for a dence. If it is a non-fundamental principle, in the validity of a principle before it can be proved provided there is sufficient or after the date of its verification by evi- light from mediate objective evidence, and dence is probability. . . . To the extent that we project a principle forward or the method of will be deductive, in- backward beyond this point of time, we ductive, or a combination of both. And be- rely solely on faith, but not on objective cause truth is objective and our minds are evidence .... Science limits itself to stating finite, there are many truths which we do its laws as probabilities or plausibilities, not now, and never will, in this life at least, and not as absolutes, universals or immu- know or prove. But, because truth is ob- tables.36 (Italics supplied.) jective, whatever we do or will know will Sincerely desiring not to be captious, it be known by objective evidence. is my turn to find Professor Goble's termi- The context of the above quotation nology "mystifying." In the quotation stresses the fact that the "science" of Pro- above, the "basis" for assent to a principle fessor Goble is positive science to the ex- is variously referred to as "evidence," clusion of normative science. Hence, ignor- "probability" and "faith." Faith I shall ing the latter which deals with the moral deal with later; evidence is obviously the order, he argues from the former which, by basis for assent; but probability is never the self-denial of its formal object, has the basis for assent. Probalility and certi- nothing to do with the subject matter of tude are both qualities of assent, which are the present controversy. determined by the quality of the evidence upon which the assent is based. Moreover, 3. Nevertheless, Professor Goble's ref- although the possession and use of truth is erences to "faith" as the "basis" of assent "good," it seems confusing to refer to prin- to a principle is intriguing. He repeats the ciples as "good" or bad, rather than as true idea as follows: or false. Because "goodness," as the object My argument is based on the premise that the qualities of "universality" and 36 Goble, The Dilemma of the Natural Law, "immutability" of rules cannot be proved 2 CATHOLIC LAWYER 226, 228-29 (July 1956). by objective evidence. The existence of 17 CATHOLIC LAWYER, AUTUMN 1971

these can be based only upot of natural law, rules of positive science, and faith.37 (Italics supplied.) apparently all judgments, are "subjective" and have "no existence except in the Assuming that he does not mean Divine mind": Faith, which would be irrelevant to this philosophical controversy, I am puzzled as Basic to much that has been advanced to what he does mean. To me, faith means in this discussion is the view that a rule has assent to a proposition, not because of the no objective existence in any other form intrinsic objective evidence of the proposi- than as a group of spoken or written words, tion itself, but because of the extrinsic au- that is, as a symbol. The idea or judgment thority of the witness to the proposition. which the words symbolize is the important and it has no existence except in the But faith itself supposes objective evidence thing, mind. The rule is therefore subjective and of the existence, the competency, the ve- not objective. . . . Of course, conduct racity, and the testimony of the witness; which results from knowledge of the rule is and upon the objective evidence of these objective, but conduct in compliance with a four things will depend the quality of the rule, can hardly be said to be the rule itself.38 (Italics supplied.) assent to the testified proposition. There- fore objective evidence is always the ulti- With the statement that judgments are mate criterion of truth and the ultimate more important than the words which sym- motive of certitude. Natural law principles bolize them, I agree; and I regret that Pro- are not offered on the authority of any- fessor Goble gave such importance to the body. They stand or fall on their own in- four symbols, "Thou shalt not kill," that he trinsic and objective evidence. Professor missed the meaning of the principle which Goble's recurrence to "faith" seems to stem they symbolize. Accordingly, despite the from his desire to uphold principles which symbols used above, I do not think that cannot be proved from positive science. Professor Goble is a philosophical subjec- That they cannot be "proved" from positive tivist. He agrees with the scholastic position science, I agree. But I cannot agree that that objective reality exists independently of there is no objective evidence outside of an act of the mind, that the mind "cannot positive science. I would have to take that create knowledge," that the mind "cannot proposition on "faith" from Professor think in a vacuum," that the mind cannot Goble. But I cannot, because it is im- "reason without experience," and that the mediately and objectively evident that, de- positive sciences, at least, depend upon spite what I positively do, I "should" do "objective evidence." Why, then, does he good and avoid evil. If Professor Goble say that judgments are "subjective" and does not "know" this, but only "believes" have "no existence except in the mind"? it, on whose authority does he believe it, Judgments are acts of the intellect purport- and why does he accept that authority? ing to represent objective reality. Precisely 4. Professor Goble states that principles as vital acts of the intellect, they are all, of

37 Goble, supra note 36, at 232. 38 Goble, supra note 36, at 234. SCHOLASTIC NATURAL LAW-Professor Goble's Dilemma course, subjective. But from the standpoint accept. . . It is my belief that in the of human knowledge and all sciences they search for truth the mind should not be 39 have a much more important aspect: they shackled by unverifiable rules. are purported representations of reality It is quite correct and logical to say that outside the act and independent of it. False the scholastic position is that "man's judgments (men are birds), chimerical broader knowledge or deeper insights" will ideas (square circles), figments of the never prove that men should do evil and imagination (winged horses) and the like, avoid good, or kill one another unjustly, do not represent objective reality existing or be indifferent to either; just as the same independently of the act which elicits them; broader knowledge or deeper insights will they are purely subjective, therefore, both never prove that things can be and not be as acts and as representations. But true at the same time under the same aspect, judgments (men are not birds, they are that things can exist without a sufficient rational animals) do represent objective reason, that contingent things can exist reality existing independently of the act without a cause, that objective reality does which elicits them. Hence, as representa- not exist independently of an act of the tions, they are reasonably, and more ap- human intellect, that the mind can know propriately, called "objective." Similarly, nothing, that there is no between the reality which objective judgments repre- truth and error, between certitude and sent is reasonably and appropriately called probability, etc. Far from shackling the "objective truth." It is essential to have a mind in its pursuit of truth, these are the criterion of truth and error; it is appro- immediately and objectively evident prem- priate to have significant terminology to ises indispensable to the pursuit of truth separate the two. And "objective evidence," and the advance of human knowledge. "objective truth," "objective judgments" But they do not dispense with the neces- square with the ordinary uses of language, sity for the pursuit or the hope of the e.g., "Pay no attention, it is just in his advance. Therefore I had said: mind." The construction and maintenance 5. Professor Goble seems to believe that of a corpus juris adequately implementing the adherence to the fundamental principles of natural law is a monumental and perpetual the natural law would hobble the pursuit of task demanding the constant devotion of truth and handicap the search for a better the best brains and the most mature schol- society and a more efficient administration arship of the . For the of justice. He asserts: fundamental principles of the natural law, universal and immutable as the human na- It appears that Father Kenealy believes ture from which they derive, require ra- that fundamental principles should not yield tional application to the constantly changing to man's broader knowledge or deeper in- political, economic and social conditions sights, because he is sure that the funda- of . The application of the na- mental principles man now has are "cer- tural law postulates change as the circum- tain, universal and immutable" and there- fore perfect, and incapable of improvement. This proposition I find myself unable to 39 Goble, supra note 36, at 235, 236. 17 CATHOLIC LAWYER, AUTUMN 1971

stances of human existence change. It re- This is a blueprint for pursuit, not a pudiates a naive and smug complacency shackle to search. Moreover it is a libera- in the quo. It demands a reasoned tion of the ethical and legal mind from the acceptance of the good, and a rejection of the bad, in all that is new. It commands a limited confinement of purely positive sci- critical search for the better. It requires ence. Hence, the distinction and reply an exhaustive scrutiny of all the available which I made in the beginning of this essay data of history, , , sociol- to Professor Goble's dilemma. ogy, psychology, philosophy, and every other pertinent font of human knowledge. In conclusion I am happy to record my Of primary importance, it insists that the appreciation of the cordial spirit and search for a better corpus juris be made in schol- the light of the origin, nature, and arly manner in which Professor Goble has destiny of man; and in the knowledge of responded to my criticism of his original the origin, nature, purpose and limitations 40 article. We both seek the truth. And we of the state. seek it with the disadvantage of discordant terminology. But we seek it also with the

40 Kenealy, Whose Natural Law?, 1 CATHOLIC important advantage of mutual respect and LAWYER 259, 260 (July 1956). friendship.