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The Capacity of the Human Mind to Know Natural Law

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The Capacity of the Human Mind to Know Natural Law Copyright © 2012 Ave Maria Law Review THE CAPACITY OF THE HUMAN MIND TO KNOW NATURAL LAW Wolfgang Waldstein g The dominating opinion of science academics today is that the methods of the natural sciences are the only scientific methods. Pope John Paul II calls this scientism in his encyclical Fides et Ratio, a “threat to be reckoned with.”1 He then explains: “This is the philosophical notion which refuses to admit the validity of forms of knowledge other than those of the positive sciences; and it relegates religious, theological, ethical and aesthetic knowledge to the realm of mere fantasy.”2 This is equally true of legal science insofar as it does not only deal with positive law, but with questions of justice, human rights, and especially with natural law. Many recent methodological works have shown that a concept of science limiting its scope to natural sciences is not only insufficient, but inadequate and simply arbitrary.3 Long ago, Aristotle was able to recognize the reason for errors of former philosophers in the fact “that although they studied the truth about reality, they supposed that reality is confined to sensible things (thus their statements, though plausible, 4 are not true . .)” g I spoke about this in the eighth Assembly of the Pontifical Academy for Life. My text was published in the Proceedings of that Assembly in 2003. The present text is partly changed out of various reasons. The importance of the problem seemed to justify the repetition of the main parts. For a longer and more involved discussion on the same subject with many parts of this text taken verbatim therefrom and bearing the same title, see Wolfgang Waldstein, The Capacity of the Human Mind to Know Natural Law, in PROCEEDINGS OF THE VIII ASSEMBLY OF THE PONTIFICAL ACADEMY FOR LIFE (Juan De Dios Vial Correa & Elio Sgreccia eds., 2003) [hereinafter PROCEEDINGS], available at http://www.academiavita.org/index.php?option=com_ content&view=article&id=209%3Aw-waldstein-la-capacita-della-mente-umana-di-conoscere-il- diritto-naturale&catid=53%3Aatti-della-viii-assemblea-della-pav-2002&Itemid=66&lang=en. 1. Pope John Paul II, Fides et Ratio [Encyclical Letter on the Relationship Between Faith and Reason] ¶ 88 (1998) [hereinafter Fides et Ratio]. 2. Id. 3. See, eg., KARL LARENZ, METHODENLEHRE DER RECHTSWISSENSCHAFT 117 (2d rev. ed. 1969); WOLFGANG WALDSTEIN, TEORIA GENERALE DEL DIRITTO (2001). 4. ARISTOTLE, METAPHYSICS, Bk. IV, Ch. 5 (Hugh Tredennick trans.), reprinted in 1 ARISTOTLE IN TWENTY-THREE VOLUMES 189 (1980) [hereinafter METAPHYSICS]. 175 V11I1.WALDSTEIN.FINAL 2/20/2013 3:48 PM 176 AVE MARIA LAW REVIEW [Vol. 11:1 The human capacity of knowing truth has been affirmed by the greatest philosophers, from Socrates to Plato, Aristotle, and the Stoics, in such a way that today one is able to grasp the truth of the relevant findings. Aristotle not only says that “philosophy is rightly called a knowledge of Truth[,]”5 but he also shows with compelling logic that skeptical and relativistic ideas are self-contradictory and untenable.6 They have many times since been refuted convincingly.7 Innumerable philosophers have taken up true findings which are contained in true philosophy. It is naturally impossible to even mention them all. The most famous are St. Augustine and St. Thomas Aquinas. Pope John Paul II mentions in his encyclical Fides et Ratio not only these names, but many others, including John Henry Newman, Antonio Rosmini, and Edith Stein.8 I would like to add to these names Dietrich von Hildebrand, whose philosophy is very close to the Lublin School promoted by Karol Wojtyła.9 Pope John Paul II himself refutes the errors of skepticism, relativism, positivism, scientism, and others, especially in his Encyclicals EvangeliumVitae 10 and Fides et Ratio.11 In spite of the fact that these theories have been proven to be untenable, they are today widespread and dominant. They form part of the main obstacles for the knowledge of natural law. Therefore, it seems to me necessary first to discuss some of the main arguments against natural law in order to show that they are erroneous and therefore not at all valid arguments. Second, I will, as far as possible, try to show how natural law has been known since antiquity. It was not only known in a theoretical way, but it was recognized as an existing and knowable reality, which everyone is obliged to know in order to be able to be just.12 Through 5. Id. Bk. II, Ch. 1, at 87. 6. See WALDSTEIN, supra note 3, at 31–38. 7. See id. at 38 –45. 8. Fides et Ratio, supra note 1, ¶ 74. 9. See generally ALICE VON HILDEBRAND, THE SOUL OF A LION: DIETRICH VON HILDEBRAND (2000) (a biography of Dietrich von Hildebrand); POPE JOHN PAUL II, MAN AND WOMAN HE CREATED THEM ( Michael Waldstein trans., Pauline Books & Media 2006). 10. See Pope John Paul II, Evangelium Vitae [Encyclical Letter on the Value and Inviolability of Human Life] ¶ 70 (1995) [hereinafter Evangelium Vitae]. 11. See Fides et Ratio, supra note 1, ¶¶ 22–35. One can say that this encyclical does, against all kinds of modern errors, in its entirety reestablish the human capacity to know truth. 12. See CICERO, DE RE PUBLICA, Bk. III, Ch. 33, reprinted in CICERO ON THE REPUBLIC ON THE LAWS 12, 186 (C. W. Keyes trans., Jeffrey Henderson ed., Loeb Classical Library 1928); id. Bk. V, Ch. 5, at 248 (“[S]ine quo iustis esse nemo potest . .”); CICERO, DE LEGIBUS, Bk. I, Ch. 42, reprinted in CICERO ON THE REPUBLIC ON THE LAWS, supra, at 296, 348 (“[E]st enim unum ius, V11I1.WALDSTEIN.FINAL 2/20/2013 3:48 PM Fall 2012] CAPACITY OF THE HUMAN MIND 177 the work of Roman jurisprudence, it formed the legal order that governed all of Europe until the so-called codifications of natural law in the eighteenth and nineteenth centuries.13 In Austria, this codification from 1811 is still valid though many parts of it were changed for various and partly political reasons. But two paragraphs which refer expressly to natural law are still in force. I will come back to one of them later. I. SOME OF THE MAIN ARGUMENTS AGAINST NATURAL LAW A. Skepticism and Agnosticism Natural law is necessarily denied by every form of skepticism and agnosticism as for instance developed by Christian Thomasius (1655– 1728). He started as one of the natural law specialists of the enlightenment, but he wanted to detach the natural law from any theological dependence and to establish it on autonomous human reason.14 As Stefan Buchholz has shown in a masterly analysis, the autonomized human reason ends up in its self-destruction.15 The fundamental premise: “voluntas semper movet intellectum” (the will always moves the intellect) turns in its consequence the “animal rationale ” into a “servus passionum suarum ” (slave of one’s passions).16 The human intellect and the liberty of will are denied. As a consequence of this assumption, human knowledge becomes a product of constraint and by that very fact cancels itself. According to Christian Thomasius, passions stamp the will and the will imposes its prejudices on reason (“voluntas praeiudicium facit intellectui ”).17 In this way, individual knowledge is absolutely excluded. From this it follows that all men in fact are fools.18 They can only be guided by positive law (“exinde necessitas iuris positivi ”; therefore the necessity of positive law).19 The subject, who as a fool is held to be “under age,” has to accept the command of the law without having criteria to quo devincta est hominum societas, et quod lex constituit una; . quam qui ignorat, is est iniustus, sive est illa scripta uspiam sive nusquam.”). 13. See FRANZ WIEACKER, PRIVATRECHTSGESCHICHTE DER NEUZEIT 322 –47 (1967). 14. STEFAN BUCHHOLZ, RECHT, RELIGION UND EHE: ORIENTIERUNGSWANDEL UND GELEHERTE KONTROVERSEN IM ÜBERGANG VOM 17. ZUM 18. JAHRHUNDERT 156– 61 (1988). 15. See id. at 159. 16. Id. 17. Id. 18. Id. at 161. 19. Id. at 171. V11I1.WALDSTEIN.FINAL 2/20/2013 3:48 PM 178 AVE MARIA LAW REVIEW [Vol. 11:1 examine the question of the rightness and justness of a law.20 By his submission he serves the unifying goal of the state.21 As far as the principle “voluntas praeiudicium facit intellectui ” (will imposes its prejudices on reason) is concerned, there can be no doubt that this phenomenon really exists. But there can equally be no doubt that the consequences, which Thomasius draws from this fact, are not the whole truth. The complete denial of human reason and free will is, in view of all human knowledge since antiquity, simply absurd. It is the consequence of a distorted concept of human nature. Thomasius only forgets to explain why and how he himself should be exempt from being a fool. He, on the contrary, feels himself to be entitled to identify all those as fools who contradict him.22 B. “Is” and “Ought” A seemingly more scientific argument is founded on the supposed dualism of “is” and “ought” with the consequence that from an “is” no “ought” can follow. According to this argument, every attempt to derive natural law from nature as an “is” was labeled as “naturalistic fallacy.”23 Nature in this argument is presupposed to be only matter which can not contain any norms. And if matter is the only existing “is,” then logically from an “is” without a normative content, a normative “ought” cannot be derived. Therefore the supposed deduction of norms from nature as an “is” is argued to be a “naturalistic fallacy.” In the historical reality, however, natural law was since the earliest times, as documented since the second millennium B.C., never deduced from a non-normative “is.” It was seen to be “evident to reason,” as § 16 of the Austrian Civil Code (“ABGB”) still affirms.
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