Natural Approaches to Comparative Law

Natural Law Approaches to Comparative Law: Methodological Perspectives, Legal Tradition and

ROBERT A. GAHL, JR University of the Holy Cross *

INTRODUCTION

Robust theories of natural law, such as the standard Thomistic account, propose a universal criterion for the determination of . According to Aquinas’s medieval exposition, a foundational and fundamental determination of justice reaches across cultures, geography, and time. A that is sensitive to tradition, understood as a living, dynamic, and variable determination of convictions regarding ordered and just human flourishing in communities, stands in apparent contrast with the objective, universal, and permanent standard offered by the Thomistic account of natural law. Alasdair MacIntyre’s dialectical of Thomism as a living tradition and metaphysical account of human flourishing ambitiously defends the moral universality of natural law while offering an explanation for its rejection by a majority, even of those who live in those cultures that today have been most influenced by European Christianity. If natural law offers explanatory aid to the study of comparative legal traditions, then it must both supply an argument for a common, cross-traditional experience of legal exigency and an explanation for the legal differences across those traditions, especially regarding the ‘plain persons’ or non experts in legal doctrine. For natural law to exercise such a role within comparative law, it must at once constitute a fixed reference point in human nature and remain dynamically open to a potentially infinite panoply of propositional expressions situated within the particular historical and geographic contexts of its expression within moral convictions and legal codifications. This paper aims to expand MacIntyre’s defense of Thomistic natural law and his account of the divergence of many plain persons by offering a development of the central cognitive consequences of Aquinas’s account. A deeper defense of natural law requires a deeper reading of Aquinas and, in particular, an appreciation for the following interconnected components of his account. 1) The neoplatonic metaphysical context for natural and

* I am especially grateful to Russell Wilcox and Pia de Solenni for their penetrating suggestions for clarity, nuance, and expansion of my arguments. 66 JCL 8:2 robert gahl human law. 2) The four Aristotelian causes in Aquinas’s definition of law. 3) The three dimensions, implicitly proposed in his description of natural law: anthropic, epistemic, and theonomic. 4) Natural inclinations towards the goods and ends of human flourishing. 5) Practical reasoning and the metaphor of light. 6) Moral virtues, law, and community. 7) Cognitive discovery and narrative temporality. Given the apparent complexity of Aquinas’s account and its core foundational simplicity, after explaining the various features of natural law, those features then need to be reintegrated within his unified account in order to show how that account already includes a response to the question of why so many reject central consequences of that which Aquinas claims to be a universal exigency for justice. Finally, discrimination, and conscience will be briefly examined to exemplify the practical implications of natural law theory for a comparative legal study of traditions.

NATURE AND TRADITION, UNITY AND DIVERSITY

Many sectors of manifest deep appreciation for variety and pluralism regarding race, ethnicity, and (although less frequently) often religion. Elite universities in the United States, for example, drive their admissions strategies to maximize measurable diversity among their incoming student body. A pluralist polity sees diversity as useful and beneficial because of its capacity to enrich society with an array of experiences and viewpoints. But trained anthropologists and social scientists know that cultural diversity is much more complex and more finely grained than that which can be represented by the graphs drawn by an affirmative action program. Surely, personal identities are not shaped simply by the nation state (or states) that recognize one as a citizen, or by the color of skin, or mother tongue. Personal identity is shaped by much finer grained and potentially overlapping factors, some identifiable by one’s physical appearance, many entirely invisible, even to an attentive observer. We are not simply Germans, Poles, Britons, Italians, Africans, or Spaniards. We are Andalucians, Catalans, Calabrians, Sicilians, Welsh, and Scotts. But even such regional identities are insufficient to even begin to capture the complexity of factors that forge personal identity. The Maasai are a fascinating nomadic tribe of Nilotic origin, today mostly present in Kenya, with special privileges under the drafted after the Mau Mau uprising, independence, and the forming of Kenya’s national government. Their traditional culture, still dearly held by many Maasai, offers a provocative example for reflecting about a universal ethics and the particularities of tradition. When British settlers arrived in Kenya, they saw in the Maasai a frequent, even constant threat for their cattle. Upon deeper investigation, the settlers learned about the Maasai religious traditions and their myths of creation that included the story of a first couple of human beings, Adam and Eve if you will, who were Maasai, of course, and to whom God gave all the cattle on earth. Traditionally, therefore, Maasai held that all the cows were theirs by divine right. Any cow of a foreigner was theirs for the taking. The first reaction for some European observers was to think that the Maasai were thieves, thoroughly ignorant of the ethical demand to respect private . But in fact, the Maasai have a very strong sense of property and generally condemn stealing. Maasai traditional culture teaches that stealing is evil. They know not to steal their cousin’s cow. The Maasai conviction regarding cows and private property offers an illustrative example for examining the issues of unity and diversity, nature and

JCL 8:2 67 Natural Law Approaches to Comparative Law tradition and the implications for the relationship between Thomistic natural law theory and comparative legal tradition. Claims of a natural law hold that an unwritten and higher law precedes all human and is found within human nature, commonly shared by all men and women. This natural law contains a teleological order to perfection and a moral exigency grasped by the natural light of reason and expressed by judgments of conscience. It claims that all humans are naturally capacitated to grasp the fundamental principles of practical reason and, therefore, capable of appreciating the moral obligation to respect a set of fundamental norms. Surely, if there is such a thing as natural law, an objective and universal grounding of morality exists for all people, whatever their tradition or culture. Consequently, many proponents of natural law theory hold that anthropological studies should indicate a commonality of moral convictions across time and space for all humans and some have spent effort to emphasize such cross-cultural commonalities. Nonetheless, others have drawn attention to the divergences among cultures regarding apparently basic convictions related to the moral suitability of social practices, like burial ceremonies, marriage and related sexual practices, nutrition, or the practice of violent rituals of initiation for identification with a particular tradition. Moral relativists and other critics of a universal ethic, appeal to such contrasts, often found within today’s pluralist western societies, to contend that there is no natural basis for morality. In Three Rival Versions of Moral Enquiry1, MacIntyre developed a detailed account of the notion of a tradition of enquiry and of the criteria to evaluate the historical survivability of a tradition. MacIntyre points to the ability to explain from within one’s tradition why members of other traditions disagree with the fundamental convictions of one’s own tradition. According to MacIntyre, for a tradition to be truly alive and dynamic, capable of surviving across generations, it must not only be falsifiable, in a sense slightly different from Popper’s,2 but also capable of rationally responding in dialectical fashion to attempts to falsify it. Thus, for MacIntyre, the dynamism of a tradition finds fruitful stimulus in its boundary experiences with other traditions. MacIntyre’s dialectical defense of Thomism as a living tradition and metaphysical account of human flourishing ambitiously defends the moral universality of natural law while offering an explanation for its rejection by a majority, even of those who live in those cultures that today have been most influenced by European Christianity.

TRADITIONS AND THEIR ABILITY TO ACCOUNT FOR DIVERGENCE AND DISAGREEMENT

By living in contact, especially peaceful and rational, with rival accounts of human flourishing, a tradition is challenged, and most especially its expert members are challenged to respond with an account of its explicative superiority to the rival. Such superiority must include a response as to why others hold diverging convictions. A dialectical response is especially important for a tradition formed by an account of natural law because of its claim to universality. MacIntyre titled one of the core chapters of Three Rival Versions ‘Too Many Thomisms?’ to indicate the beneficial tension within the dynamic and alternative

1 MacIntyre, A (1990) Notre Dame University Press. 2 See Popper, K (1959) The Logic of Scientific Discovery Routledge Press. 68 JCL 8:2 robert gahl traditions of enquiry that rely upon Aquinas’ natural law theory. Such dynamism is a faithful reflection of the style of thought of Thomas himself, because he constantly defended and developed his systematic exposition of tradition by responding to the most challenging critiques available from within and from without of that tradition. One of MacIntyre’s motives for appreciating Thomism is because of its inherent dynamism of dialectical argumentation, ad extra and ad intra. In contrast with many Thomists who find discouraging the fragmentation among interpretations of Aquinas regarding controverted topics like participation, priority of the intellect over the will, and cognition of basic human goods as first principles of practical reason, for MacIntyre such disagreement is asign of vitality and strength. Indeed, a philosophy of law, sensitive to tradition, understood as a living, dynamic, and variable determination of convictions regarding ordered and just human flourishing in communities, while standing in apparent contrast with the objective, universal, and permanent standard offered by more static accounts of natural law, finds in Aquinas a robust and dynamic proposal for dialectical confrontation with the rival accounts encountered on its boundaries. Given that those boundaries are constantly encountered in our pluralist society, today’s Thomist should experience, at once, an acute challenge and the characteristic confidence of knowing that he belongs to a tradition that has survived more than seven centuries while numerous competitors have disappeared from the cultural scene. However, perhaps a deeper challenge to natural law, than those posed by the two competitors indicated in Three Rival Versions, that is encyclopedia and genealogy, lurks for the contemporary Thomist in the figure that MacIntyre has branded with the term ‘plain persons’ in more recent publications. In contrast with the legal expert or the philosophical scholar, the plain person enjoys no particular academic training and yet, for Aquinas and his view of natural law, the plain person has within himself the capacity to come to know the most fundamental legal demands that are at the basis of all law. Consequently, due to their common capacity to understand the demands of legal justice, plain persons, it would seem for the Thomist, should be in fundamental agreement regarding and morals. Nonetheless, MacIntyre comments ‘no fact seems to be plainer in the modern world than the extent and depth of moral disagreement, often enough disagreement on basic issues.’3 How is it possible for natural law theory to be true when it claims universal cognitive accessibility to its legal and moral demands and yet the vast majority of our plain person contemporaries reject its claims and most academic scholars deny the validity of its most basic arguments?4 What must natural law do to respond to the challenge? MacIntyre makes the point more sharply and in, perhaps, more starkly Popperian terms. ‘No theory of natural law can any longer be regarded as defensible that does not satisfy two conditions.... Those two conditions are, first, that it must furnish an adequate explanation of the failure of the natural law to secure widespread assent in some cultures, especially in the cultures of advanced modernity, such as our own and, second, that it must identify the grounds for assent to the precepts of the natural law, which are in fact available to all

3 MacIntyre, A (2000) ‘Theories of Natural Law in the Culture of Advanced Modernity,’ in McLean EB Common Truths: New Perspectives on Natural Law ISI Books 91 at 93. 4 It should be noted that in ‘Theories of Natural Law in the Culture of Advanced Modernity,’ (e.g. at 95) MacIntyre also addresses the preponderance in the academy of theories of natural law, like that of H.L.A. Hart, that owe more to modern positivism and enlightenment thinkers such as Hume, Hobbes, and, I would add, Rousseau, than they do to the medieval metaphysics of Aquinas. JCL 8:2 69 Natural Law Approaches to Comparative Law rational persons, even in our own culture, even if those grounds are in very large part either flouted our ignored.’5 If natural law offers explanatory aid to the study of comparative legal traditions, then it must both supply an argument for a common, cross-traditional experience of legal exigency and an explanation for the legal differences across those traditions, especially regarding the ‘plain persons’ or non experts in legal doctrine. In his succinct conclusion to ‘Theories of Natural Law in the Culture of Advanced Modernity,’ MacIntyre follows Jacques Maritain’s reading of Aquinas to highlight the foundational social component to Aquinas’ account of natural law and offers a diagnosis of the principle moral pathology of our time that blinds our natural capability to reach agreement regarding the legal demands of justice and morality. MacIntyre’s diagnosis of our age is of even greater clearer than his description of the overlooked inherent dynamism of Aquinas’ account of natural law. Advanced modernity offers each individual the opportunity to choose his or her moral good, to determine for him or herself the meaning of life and the content of one’s deepest aspirations. In stark contrast, Aquinas’ medieval account emphasizes the social and communitarian nature of the human being and of the human’s quest for flourishing. That quest is necessarily a joint venture in community. The medieval protagonist envisioned by Aquinas, very much like ’s ideal student of philosophy, lives closely in true friendship with others with whom he participates, in the give and take of daily life, in determining the objective and universal content of the virtues of acknowledged dependence.6 The modern, atomistic self finds himself alone before a great void, ashe faces the choice of meaning in life. The Aristotelian, or Thomist, knows that his or her end is already determined and specified by his nature. But he or she must discover its content in greater depth and specificity through love of friendship in community. The natural law account envisions a communitarian quest for a common good. The modern account replaces the common good with an individual choice as to the content of one’s own flourishing. Within the natural law account, all humans share in a meaningful quest according to their nature. Within the positivistic account of the separation of law and morality, the individual is alone, surely without the aid of a legal authority in determining his or her horizon of meaning.

AQUINAS ON NATURAL LAW: GOING DEEPER TO REACH PROPER BALANCE

MacIntyre’s brief but poignant defense of Thomistic natural law needs further development of the central cognitive consequences of Aquinas’ account to offer a more complete response to the challenge posed by the divergence of many plain persons and scholars alike from the claims of natural law. Indeed, MacIntyre’s proposed contrast between the communitarian character of Thomistic natural law and the solitary character of the common convictions of advanced modernity requires a deeper integration with Aquinas’ doctrine in the Treatise on Law in the Prima Secundae of his Summa Theologiae, such that the social requirements of coming to appreciate the demands of natural law may be better

5 Id. at 104-105. 6 I borrow the phrase, of course, from MacIntyre A (1999) Dependent Rational Animals: Why Human Beings Need the Moral Virtues Open . 70 JCL 8:2 robert gahl integrated with the principles, inclinations, and virtues in Aquinas. A deeper defense of natural law requires a deeper reading of Aquinas and, in particular, an appreciation for the following interconnected components of his account, that I will attempt to briefly develop in much of what remains of this paper.

1. The neoplatonic metaphysical context for natural and human law. 2. The four Aristotelian causes in Aquinas’s definition of law. 3. The three dimensions, implicitly proposed in his description of natural law: anthropic, epistemic, and theonomic. 4. Natural inclinations towards the goods and ends of human flourishing. 5. Practical reasoning and the metaphor of light. 6. Moral virtues, law, and community. 7. Cognitive discovery and narrative temporality.

Given the apparent complexity of Aquinas’s account and its core, foundational simplicity, after explaining the various features of natural law, those features then need to be reintegrated within his unified account in order to show how that account already includes a response to the question of why so many reject central consequences of that which Aquinas claims to be a universal exigency. First, regarding the neoplatonic metaphysical context for natural and human law, a full appreciation for the metaphysical depth of Aquinas’ account of natural law requires reading Quaestio 94 in the context of the entire Treatise and the Treatise in the context of the Prima Secundae, and so on. Unfortunately, some interpreters of Aquinas excise his account of natural law from the broader and more robust metaphysical context.7 Participation is of particular importance to Aquinas’ location of natural law within the order of creation and is crucial for appreciating his concept of natural law as truly law. That is, an ordering of practical reason, promulgated by the competent authority, for the common good.8 In the Treatise, Question 91, Article 1, that deals with eternal law, is of particular importance despite the fact that it is often ignored. From Aquinas’ perspective of a metaphysics of creation, of course, humans receive their being, generated not just by their human parents but also having received their being from God. Question 91, a. 1 poses the problem of the ultimate source of the reasonable ordering of humans to the common good. The response, of course, directs our attention to the Creator, as He, from whom, all things receive their being. In Aquinas’ version of neoplatonism, we find ordered hierarchy of all creatures receiving their being and their order to perfection from the Creator and for the Creator and His glory. All things are ordered to giving Him glory. Thus, scholars such as Marie-Dominic Chenu have spoken of a modified version of an exitus-redditus [exit- return] framework, modified from the pagan neoplatonists, to guarantee and to illustrate freedom, divine and human, in both the emanation and the return. For Aquinas, creation proceeds freely, not out of necessity, and the return of humans to their ontic source is also an entirely free process on account of our enjoying self-dominion and self-determination.

7 Finnis, J (1980) Natural Law and Natural Clarendon Press. 8 See, for example, Aquinas, T (1947) The Summa Theologica Benziger Bros., I-II, 90, a. 4: ‘Thus from the four preceding articles, the definition of law may be gathered; and it is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.’ JCL 8:2 71 Natural Law Approaches to Comparative Law

But in Article 1 of Question 91, the first text in the Treatise that addresses the eternal law, Aquinas formulates a powerful objection to the very notion of an eternal law. He asks how there can be such a law, given that, by its very definition, law requires . From all eternity, that is, before time and creation, to whom could the Creator have made known his plan? Aquinas’ response is metaphysically foundational for the entire Treatise and relies upon Judeo-Christian revelation. From all eternity, he responds, the law was made known by word and by writing, in the Eternal Word and in the Book of Life, God’s eternal knowledge of all things in their temporal activity. At first glance such ineffable promulgation may seem irrelevant to the philosophy of law. However, it does tell us much about the communitarian character of the common good according to the most robust account of natural law. All humans are children of God, even by nature, their souls directly created by Him ex nihilo (and up to here Aquinas offers arguments of reason). We are all ordered to our full perfection in God by means of a providential plan in divine wisdom (again, defensible by natural reason). Moreover, our reasonable ordering as the universal community of human beings is in and through the eternally begotten Son, the Word of God and according to the script of divine comedy. Despite the fall, He lifts us up through recreation by means of redemption, justification from sin and sanctification through the adoption of divine filiation. The apparently tragic consequences of sin become cause of divine redemption that includes the promise of not just natural happiness but divine beatitude. Following Maritain, MacIntyre affirms that the fulfillment of natural law requires living in a community of virtue ordered to the common good. With Aquinas’ account of neoplatonic participation of natural law in the eternal law, we see how the community of persons required for fulfillment of natural law extends to all eternity and includes the entire human race. MacInyre famously denied being a communitarian,9 nevertheless, in a very deep sense, Aquinas is a communitarian, although quite different sort from those from whom MacIntyre meant to distinguish himself. That is, those whose communitarianism is inspired by a reaction against political liberalism and its deficit of a thick theory of social relationships. Second, a proper appreciation for the four Aristotelian causes in Aquinas’ definition of law permits an appreciation for its manifold components in their unity, especially as offered in his account of natural law. To read Aquinas’ Treatise through the perspective of the four causes is not simply an exercise in arcane erudition. Rather, it allows for maintaining the proper balance between the three dimensions or foci of natural law: namely, the anthropic, the epistemic, and the theonomic.10 In Book II of the Physics, Aristotle explains how the four causes account for the multiple features of change by the illustrative example of a bronze statue. All things are called causes in many ways, it follows that there are several causes of the same thing (not merely accidentally), e.g. both the art of the sculptor and the bronze are causes of the statue. These are causes of the statue qua statue, not in

9 MacIntyre, A ‘Letter’ (1991) The Responsive Communitarian at 91: ‘In spite of rumors to the contrary, I am not and never have been a communitarian.’ 10 For an historical treatment of the foci of natural law and of difficulty maintaining their balance, see Hittinger R (2003) The First Grace: Rediscovering Natural Law in a Post-Christian World ISI Books especially at 4-8. 72 JCL 8:2 robert gahl

virtue of anything else that it may be—only not in the same way, the one being the material cause, the other the cause whence the motion comes.11 The sculptor is cause and the bronze is cause and both are causes of the statue insofar as it is a statue. Any understanding of the statue as such requires taking them both into account. And yet they are causes in different ways. Their explicative power for giving an account of why and how the statue came about are diverse. The sculptor is the efficient cause, ‘the cause whence the motion comes’ and the bronze the material cause. The modern mind, while following Newtonian physics, tends to think of causality as merely efficient, ‘the cause whence the motion comes’, and has special difficulty fathoming the formal and final causes. Question 90, the first question of theTreatise on Law, contains four articles that introduce the four constitutive elements of Aquinas’ definition of law. First, law is an ordering of reason. Second, law is for the sake of the common good. Third, law is legislated by the competent authority, that is, the one who has care of the community. And fourth, law is promulgated. These four constitutive elements of law correspond to the four articles of question 90. The body of the fourth article concludes with a summary of the entire question with a formal definition of law.Law is an ordinance of reason, for the common good, made by one who is in charge of the community, and promulgated.12 Since definitions are causal characterizations of specific differences and Aquinas offers four such characterizations, the Aristotelian-Thomistic reader should ask whether, and if so, how, these four elements correspond to the four Aristotelian causes. The four components of law listed in the definition do not perfectly coincide, or line-up, with the four, classic Aristotelian causes. Only the first three line up with the Aristotelian causes. The first three in Question 90 match up with the last three of the Aristotelian list: formal, efficient, and final, although, in Aquinas, the final precedes the efficient. But the material cause is absent from the main topics of the four articles that make up the Question. The ordering of reason is the formal cause and essential component of the law, the constitutive element central to the definition. The common good is the final cause. The competent authority is the efficient cause of the law. The authority makes the law by legislating. What, then, of promulgation, the topic of the fourth article, where should it be placed among the four causes? To map the articles to the causes, I would suggest an additional distinction, already mentioned in my analysis of the example of the sculptor of the statue and his chisel. The ruling authority is the principle efficient cause who makes the law be law. But legislation cannot take place only within the legislator. Even in the case of the eternal law, several Persons are involved.13 The lawgiver makes the law by means of promulgation. The lawgiver causes the law to have force by means of its promulgation just as the sculptor shapes the block of marble by means of the instruments of hammer and chisel. Promulgation, therefore, is the instrumental efficient cause. It is the instrument used by the promulgator to make the law known, whether by written or, in the case of the natural law (and the new law), by writing on the human heart so that every human being may apply reason to discover the demands of the law written within his very nature.

11 Aristotle, (1936) Physics Clarendon 195a4-8. 12 Aquinas, T (1947) The Summa Theologica Benziger Bros., I-II, 90, a. 4. 13 For a fascinating defense, especially for its Christological implications, of the legal character of eternal law, see Aquinas, T (1947) The Summa Theologica, Benziger Bros., I-II, q. 91, a. 1, ad 2. JCL 8:2 73 Natural Law Approaches to Comparative Law

If promulgation is not the material cause but, rather, the instrumental efficient cause, the problem remains of determining the material cause of law. On my reading of the Treatise, Aquinas does not offer us an explicit explanation with an entire article dedicated to the subject as with the other three causes but only a quick pointer within the very definition. In many cases, the material cause is the most evident and regarding law, the material cause was not in dispute. However, on account of the influence of modern rationalism, it has become important for Thomists today to make explicit the material cause and to offer a solution to current debates within Thomism so that the full meaning of the three foci can be clarified. The material cause is the body politic, the community, or the subjects of the law that are formed by the order of reason expressed by the law. The people are shaped and ordered towards their perfection, the common good, by the practical understanding expressed by the law that comes fully into being only once it is embodied in the behavior of the polity.14 Thus, Question 90 does include all of the four causes but with the additional, although implicit, distinction between the principal and the instrumental efficient causes. To see that the subjects of the law constitute its material cause helps illuminate the formal cause of the law, because the form takes shape in the matter. It is the community and its members who are directed by the law. The people embody the law. Perhaps the Thomist can rightly conclude that in the English tradition, custom is law insofar as it is embodied by the traditional practice of the people rather than positively expressed by a legislative decree. MacIntyre’s development of the Aristotelian notion of practice constitutes an embodiment of the natural law. The form, or order of reason, is embodied in the subjects by means of their habitually rational behavior constitutive of the good life according to one’s nature. Since according to the very definition of law, every law must be (1) an order of reason, (2) for the common good, (3) mandated by the competent authority, and (4) properly promulgated, (5) that shapes a people by ordering them towards their perfection, then, of course, the natural law must also include these five elements, the four Aristotelian categories of causality and promulgation as the necessary, sine qua non, instrumental efficient cause of law. In Question 91, article 2, Aquinas offers a succinct definition of natural law. It is the rational creature’s participation in the eternal law.15 Natural law is an order of reason that directs human beings to their common good. Natural law is commanded by the competent authority, who rules over and cares for the entire community of the human family. Of course, only God has such competence to rule over and care for all human beings, of all races and languages, from all continents, and from the beginning to the end of history. Natural law is promulgated by the human’s rational participation in the divine light. Divine rule over humans follows God’s respect for us as creatures made in his very image. Rather than a model of command and control, for Aquinas, the model for divine authority in natural law is one of neoplatonic participation whereby the human can come to discover with the natural intellectual lights that he receives from God within his own power of reason that human natural inclinations towards flourishing are at once good, reasonable, and of divine origin.

14 Mary Geach’s penetrating question has helped me to formulate more carefully the sense in which the material cause (the body politic) is cause of the law which would remain abstract and formal if it did not in any way order those for whom it is meant. If a law were somehow never to order any one in their actions, then such an entirely abstruse law would be lacking in its legal features, at least according to Aquinas. 15 Aquinas, T. (1947) The Summa Theologica, Benziger Bros. q. 91, a. 2. 74 JCL 8:2 robert gahl

The material cause of natural law is the community of all human beings. The formal cause is the order of reason. The final cause is the common good. The principal efficient cause is the Divine Legislator. The instrumental efficient cause, natural law’s promulgation, is human nature, insofar as the natural light of reason is capable of participating in the eternal law by grasping the practical principles contained in natural inclinations. The practical knowledge that makes up the content of natural law ‘is something constituted by reason, even as a proposition is a certain work of reason.’16 In fact, all ‘law is a certain dictate of practical reason.’17 This practical knowledge is at once from God, discovered by natural human understanding, and inherent to the natural inclinations common to all humans. My third observation regarding natural law’s dimensions flows directly from my interpretation of Aquinas’ natural law theory through the lens of the Aristotelian causes. Natural law is at once anthropic, epistemic, and theonomic. Natural law is in human nature. It came to be in time with the creation of Adam. It is an ordering of reason. It is also God’s law, while being naturally known by humans, and contained within our nature. As a participation in the eternal law, natural law is, of course, metaphysically distinct from the eternal law. The exigencies of natural law are eternal since they were always present in God’s mind within the eternal law, his loving and providential plan for the perfection of all creatures, but especially among those endowed with reason. Some contemporary scholars have stressed one of these dimensions at the expense of the others. Most common today, especially among the influential proponents of the so-called ‘new classical natural law theory,’ is an emphasis on the epistemic focus of natural law at the expense of the anthropic and theonomic.18 Perhaps reacting against this emphasis with its under-appreciation of the divine and natural character of natural law, Russell Hittinger has argued for a recovery of the theological context of natural law theory by claiming that natural law is found principally in God, as Promulgator, and only secondarily in the human being.19 (Fulvio di Blasi has also proposed such an emphasis on the theonomic.) In fact, in a footnote to his The First Grace: Rediscovering the Natural Law in a Post-Christian World, Hittinger asserts that natural law, as discussed in Question 94, as in the creature, is merely the ‘ratio materialis’ [concept in the matter] of the natural law, and not a discussion of natural law according to its definition.20 If Hittinger were right, natural law

16 Aquinas, T (1947) The Summa Theologica, Benziger Bros. I-II, q. 94, a. 1. 17 Aquinas, T (1947) The Summa Theologica, Benziger Bros. I-II, q. 91 a. 3. 18 For an especially striking example, see Finnis, J ‘Natural Law,’ in Honderich T (1995) Oxford Companion to Philosophy Oxford University Press at 606-607: ‘Natural Law. Moral standards which, on a long-dominant but now disfavoured type of account of morality, , and law, can justify and guide political authority, make legal rules rationally binding, and shape concept formation in even descriptive social theory’.The sounder versions (e.g. of Plato, Aristotle, and Aquinas) consider morality “natural” precisely because reasonable (in an understanding neither consequentialist nor Kantian). Likewise, contemporary versions plead not guilty of the “is-ought” fallacy: natural law’s first (not yet specifically moral) principles identify basic reasons for action, basic human goods which are-to-be (ought to be) instantiated through choice. Practical knowledge of these presupposes, but is not deduced from, an “is” knowledge of possibilities; full ‘is’ knowledge of human nature is partly dependent on, not premise for, practical (“is-to-be”) understanding of the flourishing (including moral reasonableness) of human individuals and communities.’ 19 For an appreciative critique of Hittinger’sThe First Grace, see my: ‘Grace or Nature First? A Commentary on Russell Hittinger’s The First Grace. Rediscovering the Natural Law in a Post-Christian World,’ in di Blasi, F (2008) Ethics Without God St. Augustine Press. 20 Hittinger, R. (2003)The First Grace: Rediscovering Natural Law in a Post-Christian World, ISI Books at 286, note 17: ‘But in q. 94 he [Aquinas] is not defining the natural law; the ratio formalis—what it is, and what makes JCL 8:2 75 Natural Law Approaches to Comparative Law would be formally identical with the eternal law. But natural law is, by its very definition, the (properly) human participation in the eternal law. Of course, as all created forms, it is understood by God and yet its form is, properly speaking, in nature. It is promulgated by God, it is in human nature, and it is a work of reason. All three dimensions must be kept in proper balance in order to maintain the full depth of Aquinas’ entire theory. In fourth place, the Thomistic contention that natural law is constituted by natural inclinations has, at times, led to claims that natural law were, somehow, heterogeneous with reason.21 Especially since Kant, modern philosophy has viewed nature and reason as antagonists. But for Aquinas, human reason is not only part of human nature but the proper part, the part that is specific to us as rational animals. Nature requires us to be reasonable and to act reasonably. For the human being, to act according to nature is not to act instinctively or spontaneously, but rather rationally and freely, with self-dominion, and with virtue, that is on account of good and righteous habits.22 So, if natural law is a work of reason, is it in nature only insofar as reason is the natural faculty whereby we come to know? Or, is natural law also in the lower potencies that we share with the other animals? To answer this question in Thomistic terms, one should turn to the concepts of measure, measured, and active measuring. Of course, only God, and his eternal law is entirely without external measure. Moreover, he eternally measures all with his wisdom, providence, and legislation. While explaining the rational, or epistemic, character of natural law, Aquinas specifies that reason is the rule and the measure of human acts. The acts are ruled and measured by human reason that participates in the light of God.23 But is natural law only in reason or is it also somehow in the other powers or faculties of nature? Is it correct to speak of inclinations as being at once natural and as somehow constituting the law? While explaining the multiplicity of precepts within the natural law, in Question 94, Article 2, Aquinas answers the question regarding the legal character of natural inclinations by considering the relationship between the legal force of right reason and the natural inclinations, for instance to conserve one’s own life, to procreate, to make friends, to make intellectual progress through new discoveries of

—is discussed in qq. 91 and 93. Question 94 takes up the ratio materialis: natural law as an effect in the creature.’ 21 See for instance, Maritain’s claims about knowledge by connaturality and Gabriel Chalmeta’s trenchant, Thomistic critique: Chalmeta G. (1989) Jaques Maritain: El Elemento Gnoseológico en la Constitución de la Ley Moral Natural Urbanium Pontifical University. 22 See Brock, S.L. (2005) ‘Natural Inclination and the Intelligibility of the Good in Thomistic Natural Law,’ Vera Lex 57-78. It would be hard to overestimate the importance of rational self-dominion in the Prima Secundae. The Prologue is itself an eloquent and programmatic expression of intent for the entire work. See: Aquinas, T. (1947) The Summa Theologica, Benziger Bros. I-II, Prologue. ‘Since, as Damascene states, man is said to be made in God’s image, in so far as the image implies “an intelligent being endowed with free-will and self-movement”: now that we have treated of the exemplar, i.e. God, and of those things which came forth from the power of God in accordance with his will, it remains for us to treat of His image, i.e. man, inasmuch as he too is the principle of his actions, as having free-will and control of his actions.’ See also Tonello, A. (2009) La racionalidad de las inclinaciones naturales en Santo Tomás de Aquino EDUSC. 23 Aquinas, T. (1947) The Summa Theologica, Benziger Bros. I-II q. 90 a. 1: ‘I answer that, Law is a rule and measure of acts, whereby man is induced to act or is restrained from acting: for “lex” [law] is derived from “ligare” [to bind], because it binds one to act. Now the rule and measure of human acts is the reason, which is the first principle of human acts, as is evident from what has been stated above; since it belongs to the reason to direct to the end, which is the first principle in all matters of action, according to the Philosopher . Now that which is the principle in any genus, is the rule and measure of that genus: for instance, unity in the genus of numbers, and the first movement in the genus of movements. Consequently it follows that law is something pertaining to reason.’ See also q. 91, a. 2 76 JCL 8:2 robert gahl understanding, and so on. In order to explain the relationship between the legal force of the dictates of right reason and the natural law in natural inclinations, Aquinas returns to the analogy of the rule and the measure to express how even the concupiscent and the irascible appetites can be law. Insofar as any inclination whatsoever is ruled by reason, that inclination pertains to the natural law and, he concludes, ‘may be reduced to the one, first precept’.24 Therefore, the natural powers and faculties are law insofar as they are ruled and measured by right reason.25 That is, insofar as they participate in human reason, which is, of course, in its turn, a participation in the divine reason of the eternal law.26 Moreover, as Stephen Brock has convincingly argued, the ‘natural inclinations’ mentioned by Aquinas in Question 94 Article 2 are rational inclinations, consequent upon the cognitive understanding of the goods as ends of human perfection.27 In summary, there is no tension whatsoever between the three foci. Natural law is at once in human nature, reasonable, and from God. In fifth place, Aquinas uses the metaphor of light and even asserts that natural law is nothing but the impression of the light of God’s face upon the human being.28 This light is from God but entirely human and proper to our nature, entirely distinct from the supernatural illuminations due, for instance, to the participation in God’s nature through sanctifying grace that is given, for instance, in the gifts of the Holy Spirit. Aquinas uses this metaphor to explain cognition, abstraction, and the relationship between agent and patient intellect. Although Aquinas does not develop the metaphor in any systematic treatment of natural law, nonetheless, by studying his texts on natural law, especially Question 94 Article 2 through the metaphor of light, one sees how the human’s grasp of the principles of natural law is a discovery of that which is given in nature (at least in potency). Moreover, this discovery is achieved on account of a natural habit. In practical reasoning, and by syllogisms, working towards conclusions that result in choice for action, the natural light of human reason is involved at each of the levels of the syllogism: when grasping the principles, when evaluating the alternatives for choice, in the of conscience, in the election of choice itself, and, when it comes time to put oneself into action, in the use of one’s faculties to perform the action. What does Aquinas’ treatment of light add to his account of natural law? Natural law is received by a higher power and yet, nonetheless, proper to natural human capabilities. And, natural law entails a discovery of one’s own order to perfection. Since the light is shared, through participation, by all human beings, it

24 Aquinas, T. (1947) The Summa Theologica, Benziger Bros. I-II q. 94, a. 2, ad 2: ‘All the inclinations of any parts whatsoever of human nature, e.g. of the concupiscible and irascible parts, in so far as they are ruled by reason, belong to the natural law, and are reduced to one first precept, as stated above: so that the precepts of the natural law are many in themselves, but are based on one common foundation.’ 25 Id. a. 4 ad 3: ‘As, in man, reason rules and commands the other powers, so all the natural inclinations belonging to the other powers must needs be directed according to reason. Wherefore it is universally right for all men, that all their inclinations should be directed according to reason.’ 26 Id. q. 91, a. 6: ‘the law, as to its essence, resides in him that rules and measures; but, by way of participation, in that which is ruled and measured; so that every inclination or ordination which may be found in things subject to the law, is called a law by participation.’ 27 See Brock, S.L. ‘Natural Inclination and the Intelligibility of the Good in Thomistic Natural Law,’ (2005) Vera Lex 57-78. 28 See: Aquinas, T. (1947) The Summa Theologica, Benziger Bros. I-II 91, 2, c. ‘”The light of Thy countenance, O Lord, is signed upon us”: thus implying that the light of natural reason, whereby we discern what is good and what is evil, which is the function of the natural law, is nothing else than an imprint on us of the Divine light. It is therefore evident that the natural law is nothing else than the rational creature’s participation of the eternal law.’ JCL 8:2 77 Natural Law Approaches to Comparative Law also indicates the commonality among us in our capacity to reach practical understanding and the need to act in common to perfect this capacity. Moreover, the metaphor of light shows that the law’s discovery is not a rationalist’s task, accomplished through the mere reading off of propositions written in ink upon the yellowed pages of some code. Rather, the discovery of the law is achieved by the understanding of natural forms and their inherent teleology towards the goods that can make us happy within communities of virtue. Insofar as a community instantiates life in accord with nature and reason, its forms of social practice embody virtuous behavior. For instance, a community that regularly respects and generally expects loans to be repaid in timely fashion thereby facilitates both the learning the value of the virtue of justice and how to live it. By understanding and living the virtues, the light of practical reason can radiantly shine upon novel circumstances to discover the reasonable demands of natural law. In contrast, a band of pirates instantiates forms of social practice that conflict with virtue and thereby obscures the natural light of reason in the pirates from discovering the demands of natural law, without, however, obliterating the natural capacity to reason about justice and therefore to critique one’s own community, whether more or less virtuous. In sixth place, Aquinas’ account of natural law is inseparable from his treatment of the moral virtues and of the human’s social nature. Some neoaristotelians see law as rigid, impersonal, and abstract, but virtues as flexible, personal, and dynamic. Authors like propose, therefore, overcoming the rigidity of the requirements of a natural law by founding morality on virtues of personal authenticity. But no such tension exists in Aristotle or Aquinas between law and virtue. The two aid one another in learning and in practice. A rudimentary understanding of the demands of the law instructs regarding the mean wherein virtuous behavior lies. And, habitual exercise of virtue clears the mind from the stains of vice, that, like dead bugs on a windshield, impede the vision of the principles of natural law and how they are to be implemented through choice. Virtue also frees the human from disordered passions that deflect practical reasoning away from the objective good. Vice makes disordered choices appear erroneously attractive. Thus, virtue is necessary for a functional and mature understanding of the demands of natural law and virtue is achieved through apprenticeship in a community. Disordered communities, with, for instance, rampant corruption, impede practical reason from perceiving the inherent justice in keeping promises, telling the truth, and offering services in accord with the duty of one’s office.29 In seventh place, Aquinas’ account of natural law is laden with implications for narrative self-understanding as the protagonist and author of one’s own autobiography. Thomists today should recognize that human embryos have the natural law inscribed in their human nature, along with the specifically human genetic coding of their DNA. But clearly, due to their very primitive development, they are incapable of knowing the law. Discovery of the law, requires biological growth, human experience, and examples of virtue in a well- ordered community. True, even a child raised among pirates or among cannibals can come to realize that stealing, kidnapping, murder, and the mutilation of human bodies is unjust and despicable. Such realization is possible because, like all of us, the child raised in such

29 See, for example, Aquinas’ reference to the Julius Caesar’s claim about the Germans in Aquinas, T. (1947) The Summa Theologica Benziger Bros. I-II q. 94. a. 4. 78 JCL 8:2 robert gahl a disordered community enjoys the light of natural reason and the natural habit of the first practical principles, synderesis. But it is much more difficult for such a child to come to understand the demands of natural law than a child raised among saints in a strong with a well-established . Thus, Aquinas’ account of natural law does not guarantee that all peoples will come to the same conclusions. Rather, his account of natural law, affords all with the capability of critically evaluating not just other cultures and traditions in comparison with their own but also their own from within. Natural law theory does not exclude the possibility of societies laden with lying, cheating, stealing, and sexual infidelity. Rather, it promises that even those who live amongst lying, cheating, stealing, and infidelity have, nonetheless, a natural capability to come to recognize the disorder in their community. Natural law makes us capable of authentic cultural criticism. But such criticism depends upon temporal self-awareness while living for the sake of an end which determines what we see as constitutive of happiness. To order one’s life towards an end of happiness is to live a life ordered by a plot that unites all of one’s actions. It is to tell a story, through the dramatic narrative, or representation through one’s actions, of the story of which one is protagonist and author. A life that aims for happiness is a life truly worth living and entirely rational. Only in such a life can one come to appreciate the full demands of practical reasonableness.

DISCRIMINATION

In the introduction, I promised to address discrimination and conscience to exemplify the practical implications of natural law theory for the comparative legal study of traditions. To acknowledge the exceptionless demand to respect human equality and to understand the demands of non-discrimination requires an appreciation of the very nature of the human being. A relativistic foundation posing as neutrality lacks an appreciation for the true value of the human being and therefore relies exclusively upon procedural equality and majority consent in view of achieving some form of maximization within a predicted end state of affairs. Mere utility fails as a foundation, as dramatically evidenced in the past, because when governments appeal to such a fragile foundation, they end up violating the rights of the weakest members of society, when their exploitation seems expedient for the powerful.30 Given that the dignity of human nature is not an empty concept, but a meaningful one, every human being deserves the respect required to develop, not as an abstract or generic substance, but as an individual person, as a woman or man, regardless of the choices that they have made in their lives. Respect for every human person as unique and unrepeatable entails appreciation and recognition of the diverse characteristics, capacities,

30 See Pope Benedict XVI, Address in Westminster Hall September 17, 2010 available at: http://www.vatican. va/holy_father/benedict_xvi/speeches/2010/september/documents/hf_ben-xvi_spe_20100917_societa-civile_ en.html: ‘Yet it is evident that for the fundamental issues of law, in which the dignity of man and of humanity is at stake, the majority principle is not enough: everyone in a position of responsibility must personally seek out the criteria to be followed when framing laws.’ See also Pope Benedict XVI, Address to Bundestag, Berlin, September 22, 2011 available at: http://www.vatican.va/holy_father/benedict_xvi/speeches/2011/september/ documents/hf_ben- xvi_spe_20110922_reichstag-berlin_en.html: ‘reason too can fall prey to distortions, as when it is manipulated by ideology, or applied in a partial way that fails to take full account of the dignity of the human person. Such misuse of reason, after all, was what gave rise to the slave trade in the first place and to many other social evils, not least the totalitarian ideologies of the twentieth century.’ JCL 8:2 79 Natural Law Approaches to Comparative Law and personalities that color the vast array of human diversity. As the Universal Declaration of asserts those diversities can never justify wrongful discrimination or limitations of rights, for instance, on the basis of ‘race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other ’.31 All human beings enjoy specific rights, regardless of particular characteristics or of their state of individual development throughout the course of human existence.

CONSCIENCE

Natural law theory proposes that human beings are ends in themselves. They are for their own sake on account of their capability to order themselves by reason to their end, and to order communities to the common good of all. The inherent capacity for self-determination is the foundation for the inherent inviolable dignity of all human beings. Since we are endowed with the ability to come to know the truth, justice and right reason require that these capabilities always be respected. To force someone, through violence, torture, or threats, to act against his or her conscience is to violate the core of the human person, the cause of his or her inviolability. Any authority that attempts to use legislation to force its citizens to act against their conscience thereby undermines the authority’s own standing as legitimately constituted in authority insofar as they act against their own role of helping direct self-directing agents towards their end. From the perspective of natural law theory, civil government enjoys authority only insofar as it respects the inherent ability of humans to direct themselves according to their convictions. The state can intervene with force against the conscience of an individual only when, on account of a personal conviction in conflict with natural justice, the individual poses a serious, imminent threat to other members of society. Forceful state intervention in such a scenario would be required to defend the polity and to help the individual to correct their appreciation of the demands of justice.

CONCLUSION

In the introduction, I described the need for a deeper understanding of the relationship between natural law and traditions. Within the paper, I offered an account for how natural law theorists can explain the lack of agreement among legal traditions, and why the plain person of advanced modernity disagrees with the principal claims of natural law, while also offering an instrument for discerning the comparative legal value of traditions. To illustrate how all members of all traditions share a common humanity with its ability to discover moral and legal obligations, I mentioned the Maasai of Kenya, their creation myth regarding cattle, their appreciation for private property, and their recognition of the prohibition of theft. From the point of view of the natural law, we all have the inherent capability to understand respect for persons, love of neighbor, private property, keeping one’s promises and so on. With time, experience, and effort, while growing in virtue, we all face the challenge of questioning the convictions of our communities of origin, especially as we come into comparative contact with rival traditions of moral and legal enquiry. This

31 Universal Declaration of Human Rights, art. 2.. See also, Vatican II, Gaudium et Spes, 29; cf. Catechism of the Catholic Church (1997) LEV at n. 1935. 80 JCL 8:2 robert gahl challenge forms part of our identity as we live our personal stories within the broader context of the stories of our communities, striving for human fulfillment while constantly aware of the need to review our convictions in the face of their rivals. In sum, classical natural law theory offers an account of the commonalities and the diversities of moral obligation underlying the diverse ethical demands amidst diverse traditions. Natural law also offers a discerning reference point for evaluating the diverse traditions in relation to one another and in relation to the fixed reference point of human nature and its objective flourishing. Aquinas’ account also recognizes that every vantage point is limited. No one but the Creator has a perfect understanding of human nature and justice. Therefore every propositional formulation of natural law is inherently partial and susceptible to refinement and revision. Natural law’s claims with respect to universal objectivity and with respect to the dynamic dependence upon traditions in appreciating that universal objectivity indicate how deeply the study of comparative law can benefit from natural law and how urgent the need for natural to engage in the study of comparative law. In sum, natural law and comparative law need one another.

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