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Volume 4 Issue 1 Article 1
What Does Natural Law Jurisprudence Offer?What Does Natural Law Jurisprudence Offer?
George W. Constable
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WHAT DOES NATURAL LAW JURISPRUDENCE OFFER?
by
GEORGE W. CONSTABLE*
I. Statement of the Problem In a world of conflict and struggle, this much would seem to be agreed upon:-The price that must be paid for peace is the subjecting of the conflicting claims of society to some common principle of order. Since it is now "one world" economically and physically, some (^) uni- versally applicable plan of conduct is a necessity.
But there the agreement ends. For what normative absolute (^) can be agreed upon? Some have thought that the absolute of force alone could create (^) order; but the fruit has of course been disorder. Others have held the corrosive relativist view that absolutes and universals (^) are intrinsically impossible; and this, too, has fostered chaos, albeit unin- tentionally and with the excuse of (^) modesty and tolerance. Less cynical or despairing (^) are those extremists who attempt to pull the great mass of temperate, middle-of-the-road people over to some one-sided ideology. Thus, the individualist makes an absolute of equalized freedom and (^) the socialist makes an absolute of equalized (^) wealth. But here again disorder rather than order has resulted; and on a global scale at that, as may be readily observed in the struggle (^) between the so-called Right and Left.
This unhappy situation has led to a renaissance of a point of view which claims to offer the basis of a peaceful social order.' This is, of course, the so-called "natural law" approach-a school (^) of thought that has incidentally, far and away (^) the longest and most honorable jural pedigree. The views of this school of thought are elusive and somewhat variable. The position is more easily defined by what it repudiates than by what it endorses. Thus on the whole it repudiates both excessive socialism and excessive liberty. It rejects the primacy of force or of any mere human authority. At the same time it denies that absolute, (^) uni- versal law or laws are impossible. Furthermore it is critical of the disasso- ciation of legal (^) philosophy from the related fields of political theory, psy- chology, sociology, metaphysics and theology. There thus emerges a system which upholds liberty against the socialists, general welfare against the individualists, transcendental law against human power, universality ***** B. A., Princeton 1933; LL. B., Yale School of (^) Law 1936; Member of the Maryland Bar. 1See FRIEDMAN, LEGAL THEORY (1947), ch. 10 (revival of Natural Law Theories).
have not even heard of natural law. As to bad uses, it has often supplied misleading rationalizations to decisions and enactments reached on the basis of practical considerations. 5 Thus, it has been used to invest each person with a transcendental and mystical claim to inalienable rights, thereby justifying excessive individualism and the sanctity of vested property interests and impeding the imposition of controls for the general welfare and peace of society.' Conversely, it has been used to further the authoritarian programs of dictators, dynasties, races, classes and churches, contrary to the democratic principles of freedom and equality."
OBJECTION 2. (It is a Myth.) Further, natural law is bad because
its rules are not really rules at all; in fact they are essentially spurious; they do not exist.^8 For what are alleged to be universal and immutable rules have no actual universal acceptance but vary as the consciences and understandings and customs and normal behavior of its exponents vary.' Or in large areas and over long periods many of its alleged rules have been unenforced (^) and ineffective and hence are not to be validly called rules at all.'" Or what purport to be absolute and universal rules are vague and equivocal abstractions like "do good", "act honestly", "give each his due", obey "nature" or "reason", all of which are devoid of specific practical content in concrete cases." They are either empty formulas which beg the question until specification is supplied ex- traneously; or if they are given definition, the exponents do not show how any subsidiary rules necessarily flow from them. Thus where "good" is defined, as by the scholastics, in terms of the being which satisfies a natural tendency, there is a failure to show how the prime "natural law" of seeking goodness necessarily involves the satisfaction of particular natural inclinations like preserving life, procreating, knowing truth, liv-
5 See (^) some instances collected in HALL, READING IN (^) JURISPRUDENCE (1938), ch. 8. See also Parker, Natural Law and Kelsenism, 13 Ohio St. L. J. 160 (1952); and PATTERSON, JURISPRUDENCE (Foundation Press 1953), p. 375. 6 See T. T. VEBLEN, THE THEORY OF BUSINESS ENTERPRISES (1927); (^) KORKINOV, GENERAL THEORY OF LAW, (HALL, supra note 5, at 209); DEWEY, NATURE AND REASON (1931), p. 166-172; Bentham thought natural law let loose lawless revolutionary actions, THEORY OF LEGISLATION, (quoted in HALL, supra note 5, at 166). 7 Aristotle justified slavery; Hobbes, monarchial absolutism; (^) according to some natural law is thought to encourage Roman Catholic authoritarianism; Gerhart, The Doctrine of Natural Law, 26 N. Y. U. L. R. 76 (1951). As to these contrary pulls of natural law, see 11 Ency. Soc. Sc., Natural Law 284, 285. SFor example see KOCOUREK, MY PHILOSOPHY OF LAW (1941), p. 175; M. R. COHEN, Jus NATURALE REDIVmUM; JOHN DEWEY, FREEDOM, ITS MEANING (1940), p. 479; BENTHAM, THE THEORY OF LEGISLATION, (HALL, supra note 5, at 166). 9 See HALL, supra note 5, ch. 8 note 12; F. K. Beutel, Relationship of Natural Law to Experimental Jurisprudence, 13 Ohio St. L. J. 167, 170-171 (1952); Patterson, supra note 5, Sec. 4.16, p. 362-366. 10 See Parker, Natural Law and Kelsenism, 13 Ohio St. L. J. 160, 164 (1952). ItFRIEDMAN, LEGAL THEORY (1947), ch. 8, note comments on Hume; BENTHAM, THEORY OF LEGISLATION, (quoted in HALL, supra note 5, at 166); Kelsen, (see HALL, supra note 5, at 163); STAMMLER, THEORY OF JUSTICE (1925), ch. 3, p. 72-93.
ing in society, etc., when it is admitted" that only an Absolute Good like God would suffice. Moreover, (^) there is a total absence of a showing how this (^) allegedly primary inclination to do good and avoid evil in general implies any legal order or plan for society by which the innumerable conflicting claims of these diverse particular human inclinations are to be adjusted and coordinated.'" There is only a resort to a sterile concept of a hierarchy in the faculties of man or to a negative plan that everyone should respect the equal right of everyone else to preserve life, etc. This latter contribution does not depend on natural law jurisprudence. OBJECTION 3. (It has no lawgiver.) (^) Further, the natural law rules have no true rulemaker (^) to whom they can be traced and by whom they are (^) promulgated. The Divine Will or Reason, if there is such a thing, is revealed to no man, and it is arbitrary to designate as spokesmen for God some priestly hierarchy or the elite of some (^) despot, or whatever philo- sophical school can persuade (^) people that it has correctly interpreted "nature" or God's (^) "will" or "reason". (^) Traced (^) to its source, (^) the Will of God always turns out to be merely (^) some deep-seated human desire or sentiment which seems of universal import because (^) it represents the familiar, the normal, the customary, the ancient or the ideal." There is no proof (^) that the existence of such human inclinations gives rise to an absolute obligation to satisfy them. Ten thousand Is's do not make (^) one Ought.
III. The General Line of Favorable Authority
ON THE CONTRARY, there (^) stands the authority of Plato, 5 Aristotle, 8 Cicero," Augustine,^8 Aquinas,^ Bracton,^ " (^) Coke, 20 Grotius,^2 ' Blackstone,^2
12 ST. THOMAS AQUINAS, SUMMA THEOLOGICA, I-II, Q. 2, A. 8. 13 ST. THOMAS AQUINAS, SUMMA THEOLOGICA, I-II, Q. 94, A. 2. 14 To give only a few examples (^) of this reasoning; Holmes, Natural Law, 32 Harv. L. Rev. 40 (1918); K. Olivecrona, Realism and Idealism, 26 N. Y. U. L. R. 120, 129 (1951); PARETO, THE MIND AND SOCIETY, (quoted (^) in part in HALL, supra note 5, at 265): KELSEN, (See HALL, supra note 5, (^) at 158); KORKINOv, GENERAL THEORY OF LAW, (quoted (^) in HAL, supra note 5, at 262); STAMMLER, THE THEORY OF JUSTICE (1925), p. 89, 90; POUND, INTRODUCTION TO PHILOSOPHY OF LAW (1925), p. 96. '5 PLATO, LAWS. See CAIRNS, supra note 4, ch. 3, particularly p. 37. 16 ARISTOTLE, RHETORICA I, 13; NICOMACHEAN ETHICS; (^) CAIRNS, supra note 4, ch. 3. 17 See chapter on Cicero in (^) CAIRNS, supra note 4, p. 127-162; also passage quoted in HALL, supra note 5, p. 67-68. Is Chroust, St. Augustine's PhilosophicalTheory of Law, 25 Notre Dame Lawyer 255 (1950). 19 DE LEGIBUS ET CONSUETUDINIBUS ANGLIAE, III, 9, 2, fol. 1076; Y De (^) Legibus 39, 23. 20 See Calvins Case, 77 English Reprints 379. (^21) GROTIUS, DE JURE BELLE ET PACIS, Prologue. (^22) COMMENTARIES, I, 38-43.
to all humanity or, in the alternative, whether there is such a controlling intention even though people do not recognize (^) or admit it. There are three general possibilities to be considered:"^2 -either (^) (1) each will is impelled in some specific, definable psychological, (^) biological or physical" direction; or (2) each will is completely autonomous (^) (absolutely self- determining); or (3) each (^) will is impelled in some general direction, but is free as to particular specifications of this general direction. (^) The first is fallacious, as (^) every person, in his own conscious choices, has power to choose between acting or not acting, and if acting, (^) then between various courses of action, (^) notwithstanding the interior pressure of any definable psychological, biological (^) or physical urges. Objectively, this is proven by the unpredictability (^) of human behaviour; subjectively, it is confirmed by our consciousness of a power of arbitrary personal 'inter- vention in any choice. (^) The second is also fallacious because no one has power to choose what he judges an unsuitable means to (^) carry out the inclination (^) moving him. Whatever he chooses, he chooses as "good" for the purpose at hand; even evil is done under the guise that (^) it is good for the (^) doer's purpose, the mind suppressing or minimizing the evil in- volved in the good chosen.^8 For a "good" (^) is something seen in a certain relation, viz., it is that "being" (i.e., that rational (^) entity,^8 " that of which unity can be mentally predicated, including (^) a thing, an action or an ab- straction) which corresponds to the given inclination (^) (principal of unity, tendency, nature). (^) Food, eating, indulgence are good to the man who wants to get fat but bad to the ascetic who (^) desires to fast. Good is that which fulfills, perfects, completes, a tendency.
This (^) manifests the truth of the third possibility, viz., that every human will is impelled (^) irresistibly only toward what the mind judges (perhaps erroneously) good-i.e., that which appears (^) to partake of good- ness-and within that ambit, it is free to select and particularize. "^ In other words, human nature (^) discloses that the will moves towards good universally. But (^) such a universal motion must proceed from a Universal Mover, for as Aquinas says: a particular cause does (^) not give a universal inclination.^8 Or to put it otherwise, (^) a mover cannot escape from the the motion of finite causes (^) unless it (the mover) can escape into the
29 The line of reasoning that follows is developed more fully in Constable, (^) Natural Law Jurisprudence and the Cleavage (^) of Our Times, 39 Geo. L. J. 365 (1950). 80 Be it noted that (^) physical determinism is the basis of the law of those who say that might makes right, that the law is what is effectively commanded, (^) that sovereign force is the final justification. These are saying that the (^) only lawgiver that has authority to control the human (^) will is the lawgiver who actually controls it. 81 Note (^) AQUINAS' explanation of malice, SUMMA THEOLOGICA, I-II, Q. 78, A. 1. 2 See AQUINAS, SUMMA THEOLOGICA, I-II, Q. 8, A. 1. 228 See SUMMA THEOLOGICA, I-II, Q. 10, A. (^) 2, I-Il, Q. 8, A. 1, also I-II. 4 SUMMA THEOLOGICA, I-II, Q. 9, (^) A. 6. A second reason assigned is "because the will is a power of the rational soul, which is caused (^) by God alone, by creation, as was stated in the First Part (Q. 90, A. 2)."
motion of an Infinite Cause. Or again, a^ power^ of^ selection^ among particular types of being implies a ground of operations (and of vision) equal to all the alternatives; and this means a ground equal to being as such; which is to say a Cause equal to the effect of being; hence not^ man but a Creator. Wherefore we conclude that the will is moved by God to goodness in general but man is free to choose this or^ that^ which^ is^ a^ true or^ ap- parent good. 5 For this reason it is said the Creator is our lawgiver"^6 in that he infixes in our nature a general directive, a prime "ought", to which all actions must^ be^ conformed and^ upon^ which^ many^ actions^ will depend-namely, to do good and avoid evil and to be free within this range. 7 In other words, according to the natural law, the controlling in- tention is God's; and the content or objective of this intention is goodness itself. Furthermore the^ attainment^ of^ this^ goodness^ signals^ a^ complete repose of the will, which is to say, happiness.^ Therefore^ the^ objective of the will is also said to be happiness."^6 Now a good is^ simply^ that^ being which^ has^ the^ power^ of^ suiting an inclination; hence goodness itself is suitable being as such; so^ that goodness itself can have no real existence (other than as an abstraction) unless there^ is^ a^ being which^ is^ by its^ very^ nature^ purely^ and^ simply suited to the inclination to being as such, i.e., unless there is a simple self-supplying being, a pure diffusion. But such a^ being^ is^ none^ other than God as indicated by His name-He Who is, which equates His existence to His nature."^9 Therefore, the intendment^ of^ the will^ toward goodness itself (or happiness) is in reality to be satisfied only^ by^ the reality of God Himself under His aspect of pure Diffusion,^ or^ Absolute Good. And this is a doctrine of the scholastic school of natural law.'" 85 Aquinas says in the same Question: "God moves man's will,^ as^ the^ Universal^ Mover, to the universal object of the will, which is good. And without this universal motion, man cannot will anything. But man determines himself by his reason to will this or that,^ which is true or apparent good." For a fuller discussion of how moral freedom and culpability are reconcilable with this divine motion, see Constable, supra note 29, p. 398-404,^ and citations therein. Note particularly Aquinas' statement, SUMMA THEOLOGICA, I-II, Q. 79, A. 2: "Accordingly, God is the^ cause^ of^ the^ act of^ sin^ and^ yet^ He^ is^ not^ the^ cause^ of^ the sin, because He does not cause^ the^ act^ to^ have^ a^ defect."^ See^ also^ Garrigou-La^ Grange, Predestination (particular article^ in^ appendix);^ MARITAIN,^ EXISTENCE^ &^ THE^ EXISTENT, SCHOLASTICISM AND POLITICS. 56 See ROMMEN, supra note 28, p. 197, note 11. 87 AQUINAS, SUMMA THEOLOGICA, I-II, Q. 94, A. 2. (^8) s ST. THOMAS AQUINAS, SUMMA THEOLOGICA, I-I, G 1, G 5, Arts. 3, 4 & 8. See- Authorities collected in Natural Law and the Right to Pursue Happiness, by J. C. Ford, IV Natural 8 Law Institute Proceedings 103-144, at 137 (1950). 9 That God is^ goodness,^ See^ AQUINAS,^ SUMMA^ GENTILES^ (Burns,^ Oates,^ and^ Wash- bourne 1924), chs. 37 and 38; BONAVENTURE, BREVILOQUIM (Herder 1946), p. 36; Itinerarium Mentis In Deum,^ ch.^^7 (".^ •^.^ the^ highest^ good^ is^ therefore^ supremely diffusive of itself.. ."). 40ST. THOMAS AQUINAS, SUMMA THEOLOGICA, I-II, Q. 2, A. 8; St. Augustine, as shown by Chroust, St. Augustine's PhilosophicalTheory of Law, 25 Notre Dame Lawyer 285 (1950); MAlUTAIN, POLITICS AND SCHOLASTICISM (1940).
which (^) is so pure as not to be conceivable as not (^) existing; so boundless in its (^) mastery as to be instantaneously always, (^) everywhere, all-capable, constituting a unique plentitude (^) of being. It is impossible for (^) finite things to (^) express such an infinite effect except (^) negatively-that is, by actions which tend to cancel limits (^) of existential power. In other words, the infinite act is to (^) be expressed among finite agents precisely (^) by a negation of their finitude; (^) by a motion of transcending boundaries (^) of mastery of being; by (^) dissolving of their margins in order to (^) bespeak a greater (^) fullness. That is to say, in the realm (^) of non-God, God is to be imaged by "flight" away (^) from nothingness as "aspiring" towards (^) existence. Hence to attain the likeness of this Creator among visible effects, a man (^) must give himself over in thought and (^) deed to the process of transition to an ever-fuller type (^) of existence. Now participation in such a process is (^) none other than an act of service or goodness;- (^) a limited being yields suitably (^) to the mastery and incursion of a less (^) limited being, becoming integrated in a (^) unity imposed by a more inclusive unity (^) than its own. The less inclusive "feeds" (^) the more inclusive principle; becomes assimilated to it; causing it to live (^) and grow and prosper."^5 We water flowers, we nourish (^) babies, we serve or "do good" to some (^) principle of unity whether it is constructing (^) a cathedral, forming an industry (^) or com- posing a piece (^) of music. In other words the visible (^) effects which repre- sent the Creator are actions that promote growth, expansion, (^) success- what people call productive actions, kind (^) actions, or more loosely, "crea- tive" actions. In such (^) actions the Creator acts, in concurrence (^) with his finite (^) agents, after his own nature, i.e., creatively, (^) as the cause of being;- He causes being to flow into a given (^) thing in accordance with that mode of acting which promotes its type of unity. Now (^) each act of service or goodness reflects (^) in some degree the infinite being since it (^) consists of the opening up or sacrifice (^) of a less inclusive to a more (^) inclusive principle of being. But (^) an escape from nothingness, a negation of finitude of existential (^) power, is a continuous sequence (^) of service, a chain of goodness that must (^) begin in nothingness and end in direct dedication to the Creator (^) whose being serves his own nature to-be. And, according to (^) scholastic natural law teaching, the universe (^) clearly discloses the outlines of such a progression, suggesting a pattern of transcendence in which the (^) various classes of creatures fall into definite roles (^) in an overall sequence." Thus nothingness in a sense yields to (^) matter which has at least the mastery (^) of its own bit of exist- ence; particles of (^) matter serve the wider mastery possessed (^) by vegetative 45 AQUINAS, SUMMA (^) THEOLOGICA, 1, Q. 118, A. 2; took (^) due note of the fact that the (^) production of one thing spells the destruction of another (^). 46 AQUINAS, SUMMA (^) THEOLOGICA, I-II, Q. 94, A. 2; Augustine, (^) as shown in Chroust, supra note 18; and see generally (^) MARITAIN, SCHOLASTICISM AND POLITICS (^) (MacMillian 1940).
life; matter and vegetation serve the still more inclusive mastery pos- sessed by sensory life; matter, vegetation, and animals serve the even more inclusive mastery possessed by rational life (man); and (^) all four serve the will of the Creator who, since He constitutes the mastery of being itself, (^) serves His own nature to-be.
The whole sequence reflects its Creator with increasing fidelity as it nears direct dedication to Him. Just as whiteness is expressed among things not pure white by an arrangement whereby the darker are tapered into the lighter inwardly around a common center so that a radiant sun finally emerges from the graduated negation of shadows, (^) so the Abso- lute Good is to be expressed among limited goods by ordering the less good in a graduated sequence culminating (^) in the dedication of the minds of men, with the eye of rational faith, to that Creative Presence which corresponds to the Being whose nature it is to-exist.
The focal point and climax of the whole process (^) of embodying the Absolute Good is the negation in the minds of men, of all particularity of acting in favor of the universal existential (or creative) action of the Creator. Man by reason of his rational powers of prescinding from the particular being to being itself is clearly the link between the finite and the infinite; he is the agent of a goodness which finds its creaturely climax in his own agency; he is,j in a true sense, the high priest through whom the created universe is focused back by way of (^) service to meet the Absolute Good from whom it proceeds. And the Creative Presence which is elicited from this final negation, is as it were, the form and shape and likeness of the Absolute Good insofar (^) as attainable in the realm of finite effects; (^) it is that effect, proceeding from within yet above us, in which we may know the likeness (^) of the Divine Cause moving us; it is the medium whereby the mind yields to, and, so to speak, "touches" and unites itself with the Absolute Good, and the Absolute Good communi- cates itself to the mind, without compromising either that (^) Good's unique plenitude or the individual's distinct personality. Furthermore it is the manner in which a multiplicity of individuals (^) can share in a common unity or social whole. '
It follows that if a man is to attain goodness itself through effects which represent its causality, he must give himself over to a participation in some phase of this universe-wide process of aspiration. Whatever he does must tend to carry out the grand design of ascending service. This is to say, he must be the servant of service itself; and in this (^) function will lie his mastery and dignity. For all things are designed to yield
'7 For a searching historical study of the ideas of unity in diversity and of the possible bases of an organic community-but with a false idea of the reality (^) of group-personality, see GIERKE, supra note 28, and NATURAL LAW AND THE THEORY OF SOCIETY (Barker's Transl. 1950).
and development of natural (^) resources; to the encouragement of produc- tive agencies by such means, where appropriate, as by the financing of promising research, the helping of potentially efficient producers and the construction of certain basic enabling facilities beyond private reach such as great irrigation, (^) metallurgical and power projects; to the per- petuation of soil productivity, the introduction of useful plants and ani- mals and the development of better breeds; to the maintenance of needed health and recreational facilities such as hospitals and parks; to the encouragement of charitable institutions; and to many other things: all to the end of promoting the power of service. Similarly natural law calls for the rendering to servants the considerations and the safeguards adequate to make the desired service feasible; thus it im- poses a duty to support one's family, to pay a living wage, to pay a fair price, and to provide (^) safe working conditions. Implicit in this whole program of facilitating men's serving of service itself, is the underlying call for them to organize themselves for that purpose. Thus there arises a certain natural duty for people to form into suitable groups such as families, communities, labor unions, and professional associations, insti- tutions, nations and federations. Not to be overlooked is the fact that the law itself and its instrumentalities (^) are subject to its own purpose of systematically eliciting man's service and hence it must be suitable to do so, i.e., swift, certain, efficient and available (^) to all. Negatively, this (^) natural law outlaws a person's interference in the services of others; to this end calling into existence specific codes, with appropriate policing apparati, to prevent crimes, torts, fraudulent sales; breach of the intentions of contractors, grantors and testators; the spread of disease and pests; and the denial of basic freedoms of life, vocation, speech, religion, property, enterprise, assembly; and the like; protecting all freedom of intention to the extent it is exercised within the ambit of service or goodness. Thus the natural law marks out and protects an area of freedom for the subjects of the law, i.e., that large range of choice within the general bounds of goodness where, as far as goodness is con- cerned, it is a matter of indifference what course is selected. Within this area, the equalized right of self-determination--in government, in re- ligion, in expression, in vocation, in contract, in use of property, and elsewhere-is absolute and inalienable and beyond legal encroachment by dictators, parliaments, popes, judges or (^) any human authority."^2 The 52 Thus the doctrine of inalienable rights derives from Natural Law. The literature on this aspect of Natural Law is immense. Suffice it here to cite the article on "Natural Rights" in 11 Encyc. Soc. Sciences; GIERKE, supra note 28, p. 81-82, and supra note 47, p. 113-114; and IV Natural Law Institute Proceedings (1950). See also Corwin, The Natural Law and Constitutional Law, III Natural Law Institute Proceedings 47 (1949); MANION, supra note 23, p. 3; ROMMEN, supra note 28, p. 231 et seq., p. 243 note 50; MARITAIN, THE RIGHT OF MAN AN HUMAN RIGHTS (1951), p. 65-66.
goodness of natural law here (^) is negative and protective. It does not extend to prescribing what shall or shall (^) not be done within these boundaries but leaves this to the so-called positive and human law--so long as freedom is preserved within (^) the framework of goodness.
But to the individualist it says, your regime of equalized (^) freedom, logically derived (^) as it is from the concept of the absolute autonomy of the human will, necessarily involves, along with those good laws against disservices (in which it agrees (^) with natural law), the multiple evils of selfishness which require, for correction, (^) a return to the primacy of the natural law principle of goodness. Your principle of equal freedom (^) is not so broad as to justify selfish neglect of clear (^) calls to service, whether in the case of parents neglecting (^) their children; able-bodied men refusing to defend their country; the prosperous abandoning the unemployed, the disabled (^) or the aged; the monopolist"^3 exploiting or refusing to meet the needs of the community; the patent-owner suppressing a useful inven- tion; the rich man hoarding his money or exacting usury; the laborer extorting from the employer through feather-bedding, stretch-outs and other (^) forms of parasitism; the employer denying work to a willing and capable worker merely because of color or creed; (^) the capitalist squander- ing natural resources, the large competitor driving smaller but more efficient producers out of (^) business, the conspirator to restrain trade; majorities in a democracy deciding (^) an issue solely on the basis of popu- larity rather than on intrinsic merit, (^) and the like.
And to the (^) collectivist, it says, your regimes of social planning logically derived as they are from some sort of (^) volitional determinism, inevitably involve along with many good provisions for coordinated effort (in (^) which it agrees with natural law) a one-sided organization of society which spells disservice, (i.e., tyranny) to that side of human nature (^) or of society which is not favored. Your economic determinism leads (^) to a proletarian despotism; your biological determinism leads to dynastic or racial dictatorships (^) like fascism and Nazism; your physical determinism (^) (law considered as what is effectively commanded) lends to the despotism (^) of sheer self-justifying power. The primacy of the principle of goodness must be invoked to correct the first principle of your collectivist plan. Your (^) plans can never justify governmental in- hibitions on the freedom and opportunity of each citizen to his capabili- ties. This prohibition embraces all the governmental (^) and legal disservices committed in the interests of the plan, including disseminating fraudulent or slanderous propaganda, (^) holding rigged trials, enforcing party-line orthodoxy by threats and engaging in similar "police-state" (^) methods; 53 See II Nat. Law Institute Proceedings 122-123 (1948). Molina's views.
Second, because (^) it states accurately for the subjects the overall con- tent or objective of this controlling (^) intention, i.e., goodness itself, or happiness, (which turns out to be none (^) other than God Himself under His aspect of Creativity). This supplies both an inducement to obedience and a (^) rationale for the understanding and development of (^) the legal means.
Third, because it prescribes systematically for (^) its subjects the actual path that should be chosen to reach (^) this Divine Diffusiveness, i.e., the ways of freedom within (^) a pattern of systematized productivity, service, kindness. For the fruit of this way is (^) to draw the immense diversity of creation together in a plan of (^) harmonious cooperation under the steward- ship of man wherein, as in a living image, God Himself takes up His residence. Natural law (^) is the wisdom whereby man orders all things to fruition in (^) peace; it is the sceptre by which he rules; the formula (^) by which he causes nature to invest him with her (^) powers. The exercise of this power, the wielding (^) of this sceptre, the use of this wisdom is the good life, the creaturely mirroring of that Living (^) Goodness which alone will bring repose and (^) joy to man.
In plain (^) words, the natural law makes us children of God, brothers of one another, and co-heirs of the powers (^) of the universe. As the guide to the life of freedom within the walls of goodness, (^) it establishes the City of God in which each man is ennobled (^) and liberated--ennobled by his part in the divine activity of (^) imaging this goodness, liberated within the scope (^) of this part. Subjective experience discloses that in the voluntary works of good-will, man has his (^) perfection, his peace, his joy; in de- liberately bad works, he contradicts his basic intention, promotes his own frustration and (^) becomes the author of his own misery. One does (^) not say this of free works or of prosperous works (^) but of free good works alone. And natural law, as properly (^) developed, is the systematic ordering of these free good works, (^) aiming to promote simultaneous free goodness in all which is (^) the common good 5 and which is our joint finite partici- pation (^) in the Absolute Good.
Wherefore the natural law system of jurisprudence, inasmuch as it is in essence (^) precisely a means to, and the way of, goodness in (^) human conduct, is itself (^) good. However, its goodness does not extend to prescribing (^) what shall not be done within that large (^) range of choice where, as far as goodness 55 In the triple (^) sense of (a) the good of society as a unit (^) (b) the good of each member, and (c) the good held in common by every member. For the (^) different meanings of "common (^) good" see GILBY, BETWEEN COMMUNITY AND SOCIETY (1953), (^) pp. 89-90, 195-6, 211-12; MARITAiN, THE PERSON (^) AND THE COMMON GOOD (1947), p. 5-20 in particular; ROMMEN, supra (^) note 28, p. 241 note 46; AQUINAS, SUMMA THEOLOGICA, I-I, G 90, Art. 2, Reply (^) Obj. 2 (stating that the common good which is the end of law is not a common genus or species but a (^) common final cause or common end).
is concerned, it is a matter of indifference what courses of (^) action are selected. For (^) example, so long as safety of life is promoted, (^) the natural law (^) is indifferent to whether traffic stop-lights (^) shall be red or some other color or whether there shall be any traffic lights. Nevertheless natural law has a two-fold beneficial (^) influence even upon this range of free choice which is the area (^) of the so-called positive or human law:- it (^) fixes the end which is to be freely implemented and it insists on the preservation of (^) man's freedom to select among the implements."
V. Replies to the Basic Objections The aforegoing analysis supplies the (^) direct answers to the three basic objections to natural law, offering (^) in outline the proof that there is a Divine Will knowable by the intelligence, (^) that ordered goodness is the specific content of (^) a true natural law, and that such a natural (^) law is useful in leading (^) society, by a middle path, to goodness and (^) happiness. There (^) remains to indicate through what and whose (^) errors the objections arose. For this purpose the objections will (^) be considered in order. REPLY TO OBJECTION 1. As (^) to the alleged uselessness of natural law-the fact that a tool is not used, or not (^) properly used, does not establish its uselessness. It (^) is necessary to perceive the suitability of natural law to the execution (^) of our basic intention. Three classes of persons dealing with law miss the usefulness (^) of natural law because of a (^) defective perception of this. First, there are those (^) who are wedded to a system (^) whose controlling intention is something else (^) than goodness, for example, the communist aiming (^) at satisfying the material self-interest of laborers by (^) taking the instruments of production away from (^) the exploit- ing (^) owners and vesting them in the hands of (^) the workers;" or the individualist (^) aiming at satisfying the impulse to autonomous (^) freedom.
These could, but will not, profit from (^) the natural law. Second, there are those who live in a (^) society like ours essentially based on natural law and (^) who, because this foundation is unchallenged, (^) are only concerned with the applications of particular (^) laws. For example, in a limited con- stitutional (^) democracy like our own, lawyers can spend (^) their lives en- forcing criminal, tort and contract (^) laws, settling points about the manner of fair trials or procedures, (^) applying the various laws to the facts, and in general administering justice, without (^) ever being obliged consciously to invoke the natural (^) law simply because it is a foundation upon (^) which all operate by tacit agreement. Nevertheless (^) it is useful even to these to understand and maintain it as a foundation lest inadvertently it might be undermined from within. The Third class (^) are those skeptics and
(^56) See Note 50, supra. 5 7 (^) VISHINSKI, THE LAW OF THE (^) SOVIET STATE (1948), p. 41.
partly at the door of some of the expositors of natural law (a) for failing to make clear that "nature", "reason", "right", even (^) the "Will of God" or the "Divine Reason", (^) etc., refer to "goodness" as their ultimate con- tent-giving (^) term and that goodness itself is an aspect of "being";" (b) for failing to describe (^) convincingly in terms of modern psychology the irresistability of "goodness as such" (^) and the resistability of particular goods; (c) for failing (^) to show logically by what consequent "natural" legal plan (^) and order the diverse inclinations to particular goods are to be adjusted and allowed; and (d) thereby opening (^) the door for expositors to put forth their (^) own preferences. It does not suffice (^) merely to describe so-called "natural" inclinations (like the will to live, to satisfy the sexual urge, to live (^) in society, to know truth,^61 to live in peace, "2^ and to act freely8 8^ ) and to say (^) the law is simply the system necessary to foster and protect these (^) inclinations. Since (^) a man is not irresistibly inclined towards the satisfaction of these particular tendencies (^) (many people desire oblivion, celibacy, isolation, fighting), it is necessary to explain why satisfaction of these tendencies has a clear relation (^) to satisfying the general tendency to goodness, it being apparent that only an absolute good (^) (God) can satisfy the latter.^64 It is also necessary to explain how, i.e., by what consequent hierarchical order, all the crucial conflicts among these diverse inclinations (^) are to be re- solved. Apart from the negative proposition that no one can satisfy (^) his inclinations except subject to an equal regard for the (^) right of others- which the individualists as well as natural (^) law jurists hold in common- 80 This will be a hard saying to (^) many trained in the schools that organize their treatises in terms of "reason" (^) and "nature". To clarify the point, it is well to distinguish two kinds of legal generalization: (^) (1) the directive that is general because it is inclusive (like "win the war", (^) "seek goodness") (^) and (2) the directive (^) that is general because (^) it is equivocal (like "render each his due", "be reasonable", (^) "fulfill your nature"). The former is general but (^) definite in content. The latter is general but indefinite in content. It might be objected that "good" is as equivocal as "reason" or (^) "nature". But reflection will show that in human action reason merely implies logical coherence of means to ends (and (^) hence is equivocal as respects the basic content of the means and (^) ends in human conduct) whereas good implies being under its aspect (^) of desirability or suitability (and hence is definite, though inclusive, in its content). Similarly "nature" as (^) a principle of action necessarily takes its definition (^) from the direction toward which it faces, i.e. the good or end to which it moves. It might be countered that this good (^) which is the end of the nature involved is in turn defined by reference back to (^) the essence of the particular being of which it is the fulfilling reality. (^) This is true. However, in the case of man, the essence of the being of (^) which his good is the fulfilling reality is not man himself or "rational animal" but rather that essence which supplies reality simply, i.e. which diffuses existence; which is to say the hypostasis (^) of Goodness. Man's nature for its perfection, looks to that good which is ultimately defined (^) as Subsisting Goodness or as the Essence whose nature is to-be, and not as reason or (^) nature, or rational animal. 81 These four inclinations are particularly enumerated (^) by St. Thomas Aquinas. 82 Hobbes deduces his natural law from the desire for peace. (^) LEVIATHAN (Waller ed. 1904). 63 Locke deduced his natural law from man's natural freedom but he made no (^) clear showing of the limits of freedom. OF CIVIL GOVERNMENT. 84 Since all ends (^) are willed for the last end. AQUINAS, SUMMA THEOLOGICA, I-1I, Q. 1, A. 6.
all the important legal questions^ are^ left^ unsolved. Thus natural law seemed to leave the Courtroom precisely when help was most needed-when the case began. And it was unnecessary. For as explained above, the^ order^ of^ coordination^ among^ particular^ in- clinations (between all creatures; between men; and within each man)
is suggested by the order of subordination of all inclinations to a single
theme of creativity. The^ universe^ discloses^ a^ line^ of ascending^ representa- tion of creativity from a pure taking to the pure giving of^ the^ Creator grasped in men's minds, thereby yielding a pattern of inter-relation among creatures generally and between men in particular. In other words, just as notes of music are correlated on the^ basis^ of relation^ to^ a^ common theme, so each creature finds its place in relation to its neighbors by virtue of a relation to^ a^ common^ God.^ In^ order to^ see^ this^ basis of coordination among human claims to particular goods (like life, truth, friends, sex), the moral eye must project its vision beyond the target of promoting these things to the ultimate target of promoting the presence of the Substantive Good. By^ the^ measure of^ its^ dedication^ to^ the^ presence of that which gives being, each creature is justified in its "taking". Duty to God precedes rights from creatures." ° On the part of the opponents of^ natural^ law,^ there^ has been^ a^ failure to discern in human nature^ a^ fixed^ intention^ of^ goodness^ as^ distinct^ from either (a) the arbitrary intention of an autonomous^ human^ will^ or^ (b) the fixed intention of definable or psychological appetites. Consequently they can understand only systems dedicated^ to^ human^ freedom^ (the programs of which are only negative, i.e., non-interference) or^ systems dedicated to particular human satisfactions such as racial fulfillment, economic prosperity, effective power, intellectual coherence of norms and the like (the programs of which, while positive, suppress freedom). Lacking the idea of "servant of goodness", they aim to^ give^ man^ either a god-like liberty or an animal like satisfaction which frustrates one side or the other of human nature. In either case,^ the^ end^ is^ a^ human "taking"; duties (^) have therefore (^) grown out of rights; (^) and the logical (^) basis for a binding co-ordination among essentially equal claimants^ is^ lost. REPLY TO OBJECTION 3. As to the alleged lack of a knowable law- giver-a person does not determine the Divine Will (as many critics assume) by virtue of his status as philosopher, priest, "^ king, elite or 65 See ROmmEN, supra note 28, p. (^243) note 50, also p. 204. 88 Some have thought that the Roman Catholic Church takes to^ itself^ the^ right^ to decide what is true or false natural law. See Gerhart, The Doctrine of Natural Law, 26 N. Y. U. L. R. 76 (1951).^ It^ is^ true^ that^ the^ Church^ teaches^ that^ the^ secondary^ object^ of infallibility is extended to all and only those truths which are^ necessary^ that^ the^ data^ of revelation be faithfully guarded. TANGUEREY, SYNOPSIS^ THEOLOGIAE^ DOGMATICAB^ FUNDA- MENTALIS, Vol. 1, p. 618 et. seq. (1937 ed.). But this is merely to say that natural law as arrived at by reason cannot conflict with revealed^ truth^ entrusted^ by^ scripture^ and^ tradition to the Church. This does not mean that the Church can infallibly describe (let alone
